OF THE CHAPEL HILL TOWN COUNCIL
TUESDAY, NOVEMBER 5, 2002, AT 7:00 P.M.
Mayor Kevin Foy called the meeting to order at 7:00 p. m.
Council members present were Flicka Bateman, Pat Evans, Ed Harrison, Mark Kleinschmidt, Bill Strom, Dorothy Verkerk, Jim Ward, and Edith Wiggins.
Staff members present were Town Manager Cal Horton, Assistant Town Managers Sonna Loewenthal and Florentine Miller, Assistant to the Town Manager Bill Stockard, Town Attorney Ralph Karpinos, Principal Planners Rob Wilson and Gene Poveromo, Planner Kay Pearlstein, Senior Development Coordinator J. B. Culpepper, Stormwater Management Engineer Fred Royal, Planning Director Roger Waldon, and Acting Town Clerk Vickie Hackler.
Item 1—Continued Review of Third Draft of the Proposed
Land Use Management Ordinance (LUMO)
Town Manager Cal Horton explained that he and his staff had prepared a coherent set of ideas for the Council's consideration. With regard to the Resource Conservation District (RCD) section, he said, there were a couple of illustrations that would be worth the Council's attention.
Mayor Foy noted that Council members should bring up any additional issues they want to discuss. Following tonight's discussion, he said, the Council should establish a clear schedule for completing this project.
Issue #1. Neighborhood Conservation Districts
Mayor Foy noted that the Manager's recommendation was the same as the third draft.
Council Member Bateman established that the 51% majority would only trigger a discussion and that the Council would still make the decisions. Mr. Horton agreed that the neighborhood could propose ideas but the Council would decide what was allowed. Council Member Bateman stressed that that she would never support anything that had only a 51% majority.
Mayor Foy explained that the 51% would initiate the conversation and that even if 100% of the neighbors wanted something it would not go into effect unless the Council approved it. Mr. Horton verified that this is not the only way to initiate the process and that the Council could initiate it as well.
Mayor pro tem Evans expressed concern that this would become a political issue rather than a planning issue. She stated that there could be a "block face" majority where three out of five homes that are next to each other could initiate a process. Mayor pro tem Evans predicted that elected officials would have difficulty denying 51% of property owners an initiative that they wanted to pursue. She recommended writing in a minimum number of homeowners to initiate the process rather than a percentage.
Mayor Foy expressed support for the Manager's recommendation. He pointed out that the Town Council guards against something detrimental happening to a neighborhood.
PRELIMINARY VOTE ON MANAGER'S RECOMMENDATIONS: 8-1, WITH MAYOR PRO TEM EVANS VOTING NAY.
Council Member Ward asked if there was a size element within the ordinance that addressed Mayor pro tem Evans’ concerns. Town Planning Director Roger Waldon replied that there were some parameters for area in a Neighborhood Conservation District, but no minimum size.
Issue #2. Minor Subdivisions
No discussion.
PRELIMINARY VOTE ON MANAGER'S RECOMMENDATION: UNANIMOUS (9-0).
Issue #3. Burial of 3-phase Electric Lines
Mr. Horton explained that this essentially shifts the burden to the developer to bear the costs. It assumes that the legal test allowing the Council to do that had been met, he said. Mr. Horton recommended that the Council seek legislation to broaden its authority.
Mayor Foy noted that the Council needed to take action on the staff's recommended provision in the third draft: New three-phase lines must be buried unless the developer can show that it did not meet the rational nexus test or the rough proportionality test, or that it could not be safely done. Mayor Foy pointed out that this does not accomplish retrospective burying, which could be achieved by other mechanisms.
Council Member Ward asked how this would affect Duke Power's concerns about the resulting shifts in technology causing transmission problems. Mr. Horton explained that because this would be associated with new developments there would be logical termination points that would not create a problem.
Council Member Ward asked for an example, such as how this would affect Weaver Dairy Road. Mr. Horton explained that a subdivision or Special Use Permit (SUP) coming to the Council under the new ordinance would include a proposed routing of utilities showing how they would reach the site. If the Council determined that the utilities could withstand the two tests, he said, then they could direct that it be placed underground and the costs charged to the developer.
Mayor pro tem Evans asked if the Town would bear the cost of burying power lines in affordable housing neighborhoods. She expressed concern about the rising cost of future housing in Chapel Hill.
Council Member Bateman asked if the "rational nexus" could ever be that a development is better served without burying lines. She wondered if the Council could write an exception for affordable housing.
Mayor Foy noted that his issue had arisen from a specific incident at Carol Woods. That type of situation could occur again, he said, and the neighbors would view it the same way. If the community thinks that burying 3-phase lines is important then the Town should consider absorbing the cost of burying them, he said.
Council Member Kleinschmidt recommended that the Town provide the same environment in affordable housing areas that it does in other neighborhoods in Town.
Mayor pro tem Evans pointed out that the Town already requires branch lines to be buried in neighborhoods. This ordinance addresses principal distribution lines, she said.
Council Member Ward pointed out that it is exponentially more expensive to do it this way. He asked for real life examples of the cost difference, such as a comparison between Carol Woods with old regulations vs. Carol Woods with the proposed new regulations. Mayor Foy explained that the difference in cost was about $35,000.00. Mr. Horton agreed with that figure. Council Member Ward inquired about the cost of burying lines along Weaver Dairy Road, but the staff did not know that figure.
Council Member Ward inquired about the point at which the developer would take on the cost. Mr. Horton explained that the test of rough proportionality addresses the nature of the impact created by the development and determines whether it is reasonable to assess costs of certain improvements to that development. Mr. Waldon added that the proposed language establishes that 3-phase lines go underground unless costs are exorbitant or there is no rational nexus between that impact and the proposed development. The main difference, he said, is that this establishes the expectation that they will go underground.
Council Member Strom said that "expectation" is the key word. The language leaves plenty of room to support affordable projects, he said, if a Council does not feel that the expectation is worth it. Council Member Strom pointed out that some Habitat for Humanity projects had been burying lines.
Council Member Kleinschmidt inquired about the rational nexus test. Town Attorney Ralph Karpinos explained that it was like those in other development projects where the Town asks a developer to contribute to offsite improvements, such as widening the street or installing sidewalks. And to achieve that, he continued, there has to be some rational nexus between the impact created by the development and the need for that offsite improvement. Mr. Karpinos stated it will largely depend on the facts of the case.
In response to a question by Council Member Ward, Mr. Horton said that he did not think Duke Power Company would have agreed to bury a small segment of lines near the Larkspur entrance, since the rest of Weaver Dairy Road is all above ground. Mr. Horton agreed to get an estimated cost differential and bring that back to the Council.
PRELIMINARY VOTE ON THE MANAGER'S RECOMMENDATION: 7-2, WITH COUNCIL MEMBERS BATEMAN AND EVANS VOTING NAY.
Issue #4. Height Limits
Council Member Kleinschmidt proposed limiting building height to three stories rather than some number of feet. Mr. Horton explained that the staff had recommended feet because stories are variable and would not impose an effective limit. He said that experience had shown that some people would use a limitation on stories in a way that the Town did not intend.
Mayor Foy clarified that this regulation would be for residences only and that it is on the height limit at the property setback line.
Mr. Waldon explained that the current stipulations work well because they are flexible and effective in a variety of circumstances. The stipulations were based on property setback lines, he said, and are allowed to be a foot taller for every two feet from the property line. This would be more difficult to regulate with stories, Mr. Waldon explained. For example, he said, at what point could you add another story? He noted that setbacks can be eight feet in some areas and there is concern about very tall structures being too close to someone else's property.
Council Member Kleinschmidt expressed concern that this would not work for all neighborhoods. He proposed finding a better way to address height limits than a Town-wide standard. Mr. Horton pointed out that Neighborhood Conservation Districts could include different standards for height, so there would be the possibility there for variability.
Council Member Verkerk expressed support for Council Member Kleinschmidt's suggestion to allow stories rather than feet. It would give architects more flexibility, she said.
Mayor pro tem Evans asked what regulatory burden stories, when compared to setbacks, would place on staff. She remarked that the current 29' stipulation had worked in the past and recommended leaving it as it is.
PRELIMINARY VOTE FOR MANAGER'S RECOMMENDATION: 8-1, WITH COUNCIL MEMBER VERKERK VOTING NAY.
Council Member Strom clarified that this was just for residential development.
Council Member Ward asked the Council to think about lowering height limits in areas with smaller setbacks, such as Northside. Mr. Horton recommended that the Council work with Northside neighbors to invoke a Neighborhood Conservation District and set their own rules for their neighborhood.
Council Member Ward inquired about whether development stops in a neighborhood once the 51% is achieved. Mr. Horton explained that the neighborhood would not have to wait for 51% because the Council could initiate that on its own. Mr. Waldon noted that creating a Neighborhood Conservation District would create a new zoning district. Some communities cease processing applications while they are creating that District, he said. Mr. Horton added that, in such a case, the Town probably would recommend completing the work in a limited period so that people would not be unreasonably delayed.
Issue #5. Parking
Mayor Foy noted that the Council had expressed interest in eliminating the minimums and tailoring the maximums. He advised leaving parking alone and inserting a provision to give the Council flexibility when reviewing proposals. Mayor Foy further recommended that the Council tailor parking requirements as the consultant had proposed, with individual requirements and no minimums.
Mr. Horton commented that there was no rationale or explanation for present parking minimums. He recommended reviewing the entire subject so that the Council could create a standard that fits Chapel Hill. It would not be unreasonable to retain the present method until Council is satisfied with the new one, he said.
Mayor pro tem Evans agreed with temporarily retaining the present method, but stressed her desire for a common-sense minimum that a use can expect. She noted that what works for Chapel Hill will differ from what works for other communities. Mr. Horton agreed that there might even be different needs among areas within Chapel Hill. He added that he could imagine a situation where the Council would not wish to require any parking at all.
Council Member Verkerk stated that a national standard would not be appropriate for Chapel Hill. She pointed out that the consultant, Mark White, had recommended deleting minimums. Council Member Verkerk said that she had asked Mr. White to expand on this and would share his response with Council members when she receives it.
Council Member Ward agreed with Mayor Foy's proposal, noting that every community is unique and situations within communities differ. He said that creating another arbitrary maximum/minimum would add another layer of uncertainty. Council Member Ward expressed support for the Mayor's proposal to keep the standard as it is while working to determine appropriate numbers for Chapel Hill.
Council Member Harrison noted that applications that had been tailored to the third draft had included restrictions that produce inappropriate results. Tailoring to each neighborhood and each development is much more appealing than what was in the third draft, he said.
Council Member Strom suggested that Mr. Ray Moe, author of "The Chapel Hill Mobility Study," take on this task. Mr. Horton agreed that Mr. Moe might be well prepared to do so.
PRELIMINARY VOTE FOR LEAVING THE CURRENT PARKING STANDARDS AND ADDING A PROVISION TO GIVE THE COUNCIL FLEXIBILITY IN REVIEWING PROPOSALS WITH THE UNDERSTANDING THAT THE TOWN WILL PROCEED IN A DIFFERENT DIRECTION OVER THE NEXT FEW MONTHS: UNANIMOUS (9-0).
Mr. Horton suggested that the Council decide on a target date for completing this work. Six to nine months would be reasonable, he said.
Council Member Strom proposed asking Mr. Moe when he could complete the work. "And also his cost," Mr. Horton added.
Council Member Ward suggested making the target date nine months from the day the LUMO is adopted. Mr. Horton agreed that nine months would fit in with the Council's schedule.
Issue #6. Front Yard Parking
Mayor pro tem Evans asked if there could be exceptions to the 40% limit. Mr. Waldon replied that the Manager would have discretion in unusual circumstances.
Council Member Bateman verified that this does not address front yards/rights-of-way. Mr. Horton explained that the Town had not (except through "resident only" restrictions) been able to prohibit people from parking along the roadside without prohibiting neighbors as well.
Council Member Bateman verified that with the 40% limit people would be able to park in the rights-of-way overnight. Mr. Horton added that, in many cases, they could park in rear yards and side yards as well.
PRELIMINARY VOTE ON THE MANAGER'S RECOMMENDATION: UNANIMOUS (9-0).
Issue #7. Floor Area Ratio for Single-family, Two-family Dwellings
No discussion.
PRELIMINARY VOTE ON THE MANAGER'S RECOMMENDATION: UNANIMOUS (9-0).
Issue #8. Occupancy Restrictions
Mayor Foy stated the current rule states no more than two unrelated people can live on each side of a duplex and no more than four unrelated people can live in a single-family residence. He explained that the proposal, which states that if more than four unrelated persons occupy a dwelling unit, it will be treated as a rooming house. One cannot operate a rooming house in certain zoning districts, Mayor Foy explained. He added that a rooming house operator would need approval by at least the Planning Board. Mr. Waldon pointed out that this would make the current rules more workable and sensible.
Council Member Wiggins asked who would enforce this restriction. She also wondered if it would be a meaningful change since the onus would still be on the owner to report the number of renters. Mr. Horton replied that when the Town makes observations or receives complaints of a violation it follows up and checks on whether or not there are more people than allowed on the lease. Council Member Wiggins said that she had been under the impression that evidence brought by neighbors could not be used. Mr. Horton replied that this was true, and Mr. Waldon commented that enforcing this kind of restriction was "incredibly difficult." Mr. Waldon argued, though, that the restriction was worth having because it is one more tool that might be useful in some situations.
Council Member Wiggins noted that the majority of people in Chapel Hill abide by what is on the books. Mayor Foy asked if this would be different from what the Town already has. Mr. Waldon replied that it corrects a flaw in the ordinance by clarifying the duplex issue.
Council Member Kleinschmidt noted that the third draft had proposed eliminating occupancy limits but the memo dated November 18th proposes restricting the number of bedrooms. Mr. Waldon explained that the third draft says that below a certain number of bedrooms no one will worry about occupancy. Above a certain size, he said, the house becomes a rooming house with restrictions.
Council Member Kleinschmidt inquired about how the Town determines relationships. Mr. Waldon replied that people who are related in some way are considered a unit. Two cousins would be considered one occupant, he said. But two cousins and two immigrants who are not related to anyone would be considered three people.
Council Member Kleinschmidt noted that this approach had been used to discriminate against gays and lesbians. It also creates a new burden on immigrants, he said, and on others who must live with people they are not related to just to afford Chapel Hill. Council Member Kleinschmidt noted that the LUMO would not solve all the problems related to groups of students living in houses in Chapel Hill neighborhoods. He said that existing ordinances should be used for these purposes. There is nothing about unrelated people living together that causes negative behaviors, Council Member Kleinschmidt said, but restricting it in this way will make them feel illegal. He also objected to having laws on the books that are not enforced. Council Member Kleinschmidt said that the occupancy limit issue was important to him and to his support of the LUMO.
Council Member Verkerk verified that the LUMO treats domestic partners the same as married couples.
Mayor Foy clarified that the only proposed change was that each part of a duplex or triplex be treated as a dwelling unit, allowing four persons in each.
Mayor pro tem Evans asked what would happen to a widow who rents out rooms to five unrelated people in an R-2 zone. Mr. Horton replied that she would be asked to reduce the number of people to the allowable limit. Mr. Karpinos added that it could be a "lawful nonconforming use" if her rooming house had been established prior to the 1981 ordinance. Mayor pro tem Evans asked if she would be permitted to convert it into four apartments. Mr. Waldon replied that a person could not take a single-family house in an R-2 district and turn it into four apartments.
Mr. Horton explained that for many years the staff had understood that four unrelated people were allowed to live on each side of a duplex. Then a Council question had prompted a review and a legal analysis, he said, and they determined that only two persons were allowed on each side of a duplex. This proposal, Mr. Horton explained, is to go back to the condition that existed for many years, with four allowed on each side.
Council Member Bateman, referring to Council Member Kleinschmidt's comments, stated that she would be the first to abandon the occupancy limit if she saw it being used to discriminate against people in Chapel Hill. She pointed out that she had not heard anyone say that, however, and did not want to abandon a remedy based on the potential for a problem. Council Member Bateman recommended that the Council write in that this limitation cannot be used to discriminate on the basis of race, ethnicity, sexual orientation, and so forth. She expressed concern about what would happen to neighborhoods such as Northside if there are no occupancy restrictions.
Council Member Strom agreed that the possibility that this could be used to discriminate was not an appropriate reason to take away the tool. He said that he would support the Manager's recommendation even though it is not the optimal approach.
Mayor pro tem Evans inquired about "group facilities." Mr. Waldon explained that "group homes" often fall into the single-family dwelling category. Mayor pro tem Evans asked if religious groups designated as rooming houses would have to ask for a rezoning. Mr. Karpinos replied that they would have to be rezoned and then meet the site plan approval procedures for a rooming house. Mayor pro tem Evans explained that she was just raising a few of the unintended consequences. Mr. Karpinos replied that he had just described the current ordinance and that there was nothing different from those regulations in the new ordinance.
Council Member Kleinschmidt determined that a group of seven people who own a house would be in violation of the ordinance. Stating that he would never think that anyone supporting this was favoring discrimination, he described the ordinance as a mask for discrimination because there is no inquiry about why the unrelated people are living together.
Council Member Harrison asked if Council Member Kleinschmidt was asking to remove what is in the existing ordinance. Council Member Kleinschmidt replied that he would like all references to limitations on how people can live together removed from the ordinance.
Council Member Ward described this part of the ordinance as a "blunt, clumsy tool" because it allows the Town to delve into someone's personal relationships. He said that he had faith, however, in the way it will (and has been) handled by the staff and Council. Council Member Ward added that he would support withdrawing it if it was ever found to be used inappropriately.
Council Member Wiggins ascertained that the overlay districts could have different occupancy limits, such as two on each side in the Northside duplexes.
PRELIMINARY VOTE ON THE MANAGER'S RECOMMENDATION: 8-1, WITH COUNCIL MEMBER KLEINSCHMIDT VOTING NAY.
Issue #9. Tree Protection Regulations
Mayor Foy noted that there had been a change in the third draft—from 2,000 to 5,000 square feet of newly disturbed land area.
Council Member Strom recommended keeping the 2,000 square-foot threshold.
Council Member Harrison requested a notation that this would not be triggered for expansions. Mr. Waldon stated that it would be a very unusual expansion that would disturb more than 5,000 square feet of an area and that almost all new construction would be over 2,000.
Council Member Harrison noted people's concerns that the ordinance might affect anything they want to do with individual trees in their yards. Mr. Horton explained that there were no rules to abide by if one is not seeking a building permit. He said that nothing would require someone to get a permit to cut down or remove a tree. Mayor Foy commented that he did not know where those concerns had cone from since it had never been in any of the drafts.
Council Member Harrison, noting that this ordinance would be labor intensive, asked Mr. Horton about its impact of the staff. Mr. Horton replied that the impact on staffing requirements was one reason for recommending 5,000 square feet on both trees and stormwater. The impact on individual property owners was another reason, Mr. Horton said. Council Member Harrison asked for an estimate of the impact on staff resources.
Council Member Bateman inquired about the change in diameter of trees related to land disturbance. Mr. Waldon explained that changing the definition of specimen tree from 24" to 18" had not created objections and did not relate to the threshold. Mr. Horton added that this would not be an issue if one were disturbing fewer than 5,000 square feet on a single-family lot. He noted that citizens can remove trees and establish sizeable gardens before reaching the threshold being discussed.
Mayor pro tem Evans said she favored the 5,000 square-foot threshold because it would be less expensive. She did not think people would unilaterally cut down trees and lower the value of their land, she said, unless they had to.
Council Member Ward determined that the Town had arrived at 5,000 square feet because it matches the stormwater regulation. He asked it the Council would be willing to discuss an intermediate number. Council Member Ward also suggested that the staff provide better cost/benefits analysis for homeowners at different thresholds. Mr. Horton replied that the staff was working on the additional cost of enforcement at the 5,000 square foot threshold and probably could have that information within a couple of weeks. Council Member Ward said that he was more interested in numbers of lots captured. Mr. Waldon explained that 2,000 would include just about every new single-family house, which is about 250 per year. At 5,000 square feet, Mr. Waldon said, that number probably would be cut at least in half.
Council Member Ward said that, although he had advocated capturing single-family homes, 5,000 seemed too high to him. He suggested finding a number somewhere in between. Mayor Foy asked the staff what would be reasonable. Mr. Waldon suggested talking to the Town's urban forester regarding that. Council Member Ward emphasized that this change was not onerous. It can have real value in protecting streams, he said, noting that nearly all of them were impaired.
Mayor Foy said that it made sense to make the stormwater and tree protection thresholds the same. Mr. Horton asked Stormwater Management Engineer Fred Royal to discuss possibly changing the limit from 5,000 to 4,000 square feet. Mr. Royal explained that 5,000 is about 1/8-acre and that reducing it to 4,000 for stormwater would not make any difference in the staff resources required or the applicability of the standard. He did not know about the tree threshold, he said. Mr. Horton added that there was a good rationale for having the two connected, especially for the homeowner or developer, because getting specialists to assist can be a significant cost.
Council Member Ward asked about going below 4,000. Mr. Royal replied that at 2,000 square feet every single-family lot probably would require a stormwater impact statement, engineering analysis, and so forth.
Council Member Strom recommended staying with 2,000 square feet. He noted that the Comprehensive Plan states that the tree ordinance was not as effective as the community wanted. Council Member Strom pointed out that the Council had known there would be increased costs associated with enforcing these regulations. The Town had established the principle that development pays for development, he said, and that costs would not be passed on to the general tax base. Council Member Strom recommended that the Town do the "best possible" rather than the "least worst" job it can.
Council Member Wiggins asked about the requirements for a 1,500 square foot home at the 2,000 square foot threshold. Mr. Waldon replied that the tree protection regulations would require a tree survey to identify trees and prepare a plat that specifically identifies specimen tree locations. Then it would require a discussion with staff about the placement of buildings to preserve as many of the trees as possible, he said, and it would require installation of some mechanism to help trees survive construction.
Council Member Wiggins determined that hiring someone to do the tree survey would be an additional expense for the homebuilder. She asked if protecting trees during construction would be costly, and Mr. Waldon replied that professional design work would be the main expense.
Mayor Foy noted that tree identification would be done as part of the survey. Mr. Waldon added that Town Forester Curtis Brooks said that the additional cost would be about $1,000.
Council Member Harrison expressed a preference for the lower threshold, except for the fact that it was more expensive for the homeowner and Town.
Mayor pro tem Evans remarked that this is a balancing act, noting that the Million Solar Roofs program often requires cutting trees.
Council Member Bateman recommended voting for the Manager's recommendation rather than erring on the side of the more costly and restrictive option. The Town can always change it later on if it does not achieve the goals, she said.
Mayor Foy asked who would support 2,000 square feet. Council Members Verkerk, Strom and Foy raised their hands. Mayor Foy pointed out that only 5,000 square feet would pass on an official vote. Mr. Horton recommended that the staff bring back estimated costs for the Town and the individual at both 4,000 and 5,000 square feet, as well as more information on 2,000 square feet, if the Council wishes. Mayor Foy agreed.
Council Member Ward also asked for information on the implications if the stormwater and tree ordinances do not have the same threshold.
Issues #10, 11, 12 & 13. Resource Conservation District
Mayor Foy suggested addressing these four issues together. Mr. Waldon noted that the RCD issues tend to inter-relate with each other. He added that two of these issues in particular—how the Town defines perennial intermittent streams and what it establishes as buffer widths—are linked. Mr. Waldon displayed a drawing illustrating how different properties would be affected by changes in the RCD boundary, based on their proximity to a stream. He pointed out that the Council had determined that existing houses would be allowed to expand if they were in the expanded RCD area but would not be permitted to expand into the RCD area if they were still outside. Vacant lots, Mr. Waldon pointed out, would not be permitted to build within the expanded RCD.
Mr. Waldon explained that the staff had begun identifying intermittent streams and were now developing a database to be verified in the field. He displayed a map showing these streams, indicating that such maps had led to the recommendation of a 100-foot and 50-foot protective area for perennial and intermittent streams. Mr. Waldon noted that the 150-foot buffer was still an option, adding that the Council could also distinguish between what it wants for perennial and intermittent streams.
Mayor Foy asked Mr. Waldon to address what happened in 1984 with lots that had been platted prior to 1984. Mr. Waldon replied that when the RCD was established in 1984, existing lots were made not nonconforming so the RCD boundary for them is currently set at 50 feet.
Mayor Foy pointed out that the Council had to make four decisions: the first was regarding what the protected area will be from both perennial and intermittent streams; the others included levels above the floodplain, variances for streets and bridges, and exemptions.
Council Member Harrison commented that the intermittent stream definition in paragraph 18 of the memo dated October 28th was better than the one that had been in the third draft. He said that a colleague of his had sent additional information that might be added to tighten the definition further. Mr. Horton agreed that he and Mr. Waldon would discuss this further with Council Member Harrison and Mr. Royal.
Mayor Foy determined that the definition before the Council tonight would be the default language.
Mayor pro tem Evans noted that the goal was to have something that “a lay person” could understand. She suggested writing it in "plain English" so that a person would not have to pay a surveyor to determine where things are. Mr. Horton pointed out that the one with an interest in the property might not be the right one to make the determination about whether it is affected by a perennial or an intermittent stream.
Mayor Foy and Mayor pro tem Evans debated the value of discussing this. She stated that there was not much new to discuss, but argued that including intermittent streams raised an important monetary issue. Council Member Harrison said that intermittent streams had been included on the east coast for 15 years. He had not proposed adding them in the past, he said, because the State is going to require that throughout the entire Cape Fear Basin. Council Member Harrison said that having the staff verify what is in the field would be better than hiring a consultant from Raleigh and losing control of the process.
Council Member Strom stated that Mayor pro tem Evans had been mistakenly addressing short-term profits. These expenditures were not short term, he said, but investments in improving the ordinance so that Chapel Hill maintains its livability. This will help people's investments in the long run, Council Member Strom said, and it addresses the reality that the creeks and streams in Town are impaired. He proposed that the Town proceed with the 150-foot buffer for perennial streams with the three managed zones that appear in article 3. Council Member Strom endorsed the notion of a 50-foot buffer for intermittent streams and suggested that they receive the same status that the streamside zone in article 3 receives.
Council Member Harrison recommended prohibiting detention facilities within the 50-foot streamside zone and not counting these facilities as impervious surface.
Mayor Foy summarized that the proposal was for 150 feet from perennial streams, 50 feet from intermittent streams, and that the managed use grid and definitions in article 3.6.3-1 would all apply.
Council Member Harrison proposed that detention or retention basins be permitted in the managed use zone. He said he accepted the Manager's recommendation that street crossings be by class or SUP instead of a variance.
Mayor pro tem Evans, noting that Chapel Hill was almost built out, argued that the Council's role should be to balance community good with community cost. She said that this would detrimentally affect all future residential growth and raise the price of existing residential growth.
Council Member Bateman asked Council Member Harrison to explain the difference between his proposal and the Manager's recommendation. Council Member Harrison summarized his three-tier recommendation. Council Member Bateman asked him why he had dropped it, and Council Member Harrison replied that he had not received support for it. He described it as taking the system in the current ordinance, adding on intermittent streams, and "kicking up the numbers for each of them."
PRELIMINARY VOTE ON ISSUE 10, AS MODIFIED, AND 12 AS RECOMMENDED BY THE MANAGER: 8-1, WITH MAYOR PRO TEM EVANS VOTING NAY.
Issue #11. RCD—2' or 3' Above Floodplain
Council Member Harrison emphasized that this will be a federal mandate and not a Council decision. Council Member Bateman verified that the ordinance would have to be changed to conform to new flood maps. She noted that there would not be much discussion since the Town must comply.
PRELIMINARY VOTE ON THE MANAGER'S RECOMMENDATION: UNANIMOUS (9-0).
Issue #13. RCD—What is Exempt from Regulation
Mayor Foy noted that the current Development Ordinance would apply to everything that is platted as of today. This means that those platted before 1981 would have the 50-foot RCD, those platted from 1981 to 2002 would have the current RCD, and those platted from 2002 forward would have the new RCD, he said. Mr. Waldon added that as development proposals are submitted to the Town they would be subject to the new boundaries. He pointed out, though, that the boundary in place is the one that exists for anyone who wants to put a single-family house on an existing lot.
Council Member Kleinschmidt clarified that "they get what they bought," and "What they have today, they will have tomorrow."
Council Member Wiggins inquired about inherited land. She asked what the owner of a large tract that has not been platted, which had RCD running behind it, could do. Mr. Waldon replied that the RCD boundary that is in place today would apply to building a single-family house on that lot. But subdividing it, he said, would make it subject to the new boundary of 150 feet.
Council Member Harrison explained that he had intended the section on intermittent streams in his proposal to apply only to new development.
Mayor Foy verified that a house built in 1950, where the owner knocked it down to build a new house, would be subject to old boundary rules. Everything that is platted is subject to the current rules, he said, and everything from this point forward will be subject to the new rules.
Council Member Harrison asked how this would affect expansion or redevelopment of non-residential properties. Mr. Waldon replied that the boundary would not change. And the owner could reconstruct, he said, because of the action the Council had already taken on non-conformities. Mr. Waldon noted that the staff was recommending taking out the restriction on commercial expansion within the RCD. He pointed out that the floor area ratios were still in place and would limit expansion of a non-residential development.
Council Member Harrison noted that this was issue #15 and that the Council must take action on it. Mr. Horton added that the impervious surface limits have been the most controlling feature.
Council Member Wiggins pointed out that new regulations alone will not repair the streams. But they will help prevent additional damage, she said, and other new advances will help repair the streams. Council Member Wiggins added that these regulations were just one piece of an overall plan.
PRELIMINARY VOTE ON MANAGER'S RECOMMENDATION: UNANIMOUS (9-0).
Issue #14. Steep Slopes
Mayor Foy pointed out that this would apply to sites that are being developed, not to single-family lots. He explained that the goal was to force development away from steep slopes, if possible.
Council Member Harrison proposed expanding the first part and added a change in the purpose statement. He suggested adding Town goals concerning water quality, habitat and natural beauty. Council Member Harrison also recommended adding more criteria defining steep slopes and proposed restrictions, and a variance procedure.
Mayor Foy asked how this differed from the Manager's recommendation. Council Member Harrison explained that it included the Town's environmental goals, was expanded with a threshold area, stated a distance from streams, had a limit on reconstructed slopes, and had a cap on the amount of slope that can be disturbed without permission. Mayor Foy clarified that Council Member Harrison was suggesting adding the goals into the purpose statement.
Council Member Strom asked if this would be applied to the construction of new single-family homes. The Council determined that it did not, he said, but that the staff's recommendation did not include this.
Mayor Foy described the general sense of the Council as wanting to apply restrictions prospectively but not retrospectively.
Council Member Bateman noted that these were like the RCD rules in that they would apply to a large tract of land that is being subdivided.
Council Member Ward determined that steep slopes less than 10,000 square feet would not be protected under Council Member Harrison's proposal. Mr. Waldon pointed out that there was consistency in the Council's intent not to apply new rules to existing lots but only to new proposals. Mr. Horton stated that this was the intent of the staff as well and that they would insert the word "existing" before "single-family dwellings." Mr. Waldon noted that once the concept is agreed upon it can be inserted more clearly into the documents.
Council Member Strom pointed out that the Planning Board had recommended that 15%, rather than 50%, of area be disturbed within the steeply sloped portion of the site. At a 25% slope, he said, 50% is a significant amount of disturbed area. Council Member Harrison replied that 15% would be rough to work with in terms of undeveloped land in Chapel Hill. This could be increased, he said, but not above 50%. Mr. Waldon noted that the Manager's recommendation of 50% was for application everywhere, whereas neighboring towns' 15% limitation was only for large tracts and only near streams. They are not equivalent, he said, agreeing that applying 15% to everything in Chapel Hill would not be workable.
Mayor Foy pointed out that Council Member Harrison's proposal was for streams inside or within 50 feet of the RCD with a size limit of 10,000 square feet. Council Member Strom suggested that the Planning Board was closer to the proper percentage. He said that Council Member Harrison's proposal yields no protection for steep slopes or for slopes away from RCDs. Mayor Foy stated that the Manager's recommendation does cover everything.
Council Member Verkerk suggested postponing this until everyone fully understood Council Member Harrison's proposal.
Mayor Foy recommended taking some position tonight, which could then be modified later. If the Council is not prepared to go ahead with Council Member Harrison's recommendation, he said, then take the Manager's recommendation so there will be something in the final draft.
Mayor pro tem Evans proposed taking the Manager's recommendation but inserting "existing" before single-family.
Council Member Harrison stated that the Manager's recommendation was more restrictive than his proposal. Mr. Horton agreed.
PRELIMINARY VOTE ON THE MANAGER'S RECOMMENDATION: 7-2, WITH COUNCIL MEMBERS BATEMAN AND STROM VOTING NAY.
Council Member Harrison recommended that the Town include a statement about reconstructed slopes. He also suggested adding a cap and goals.
Mayor pro tem Evans and Council Member Kleinschmidt requested that Council Member Harrison's proposal be more simply written.
Mayor Foy recommended adding Council Member Harrison's goals to the Manager's recommendation.
Council Member Harrison explained that he had voted against his own proposal because it was not restrictive enough in terms of the intent of this Council.
Council Members Ward and Wiggins requested a comparison of the two proposals. Mr. Horton agreed to work with Council Member Harrison to provide that.
Issue #15. Impervious Surface Limitations
Mr. Horton explained that the intent was to create watershed limitations in the northern part of the community similar to those in the southern part. Mayor Foy summarized Mr. Horton's argument that increasing the 50% to 70%, if stormwater facilities are provided, would create inequities between northern and southern parts of Town. Mr. Horton commented that one could argue that this is irrelevant.
Council Member Strom determined that 50% in the southern part could be boosted to 70% to make it equal to the north.
Mayor Foy supported the idea of having it uniform throughout Town.
Council Member Harrison explained that the State rule was 70%. Mr. Horton said that the staff had not evaluated making it 70% throughout Town because they had not assumed that 50% was the State allowance.
Council Member Strom commented that the dominating feature for Chapel Hill in the future would be the Urban Services Boundary. Going to 70% would support that if the Town gets engineered stormwater management facilities on these sites, he said.
Mayor Foy recommended accepting the Manager's recommendation for now, and then perhaps changing the 50% after receiving the report back from the Manager.
PRELIMINARY VOTE ON THE MANAGER'S RECOMMENDATION: UNANIMOUS (9-0).
Issue #16. Stormwater Management
Mayor Foy noted that this raises again the issue of 5,000 versus 2,000 square feet of land disturbance area. He inquired about distinguishing between "major" and "minor" subdivisions. Mr. Waldon agreed that they should be separated, adding that it should also state that the exemption does not apply to preliminary plat applications that come to the Council after the date of this ordinance. Mr. Waldon noted that the intent was to exempt construction of a single home from the volume requirements on existing lots.
Council Member Strom determined that this would keep the volume requirement along with the other requirements for new development for major subdivisions. Mr. Horton said that the issue was that it not apply to a single lot because that would be "very troublesome."
Council Member Bateman determined that the Town was controlling for volume, rate, and pollutants in the O&I-4 zone.
Council members agreed to treat this issue in the same way as the Tree Ordinance. That is, they asked the Manager to compare 4,000 and 5,000 square feet and give the effects of 2,000 square feet in a follow-up report.
PRELIMINARY VOTE ON THE MANAGER'S RECOMMENDATION: UNANIMOUS (9-0).
Issue #17. Nonconforming Status
Issue #18. Stormwater Management (see #16)
Issue #19. Water/Sewer Requirements
Mr. Horton said that he would include language making it clear that people can appeal this on the basis of hardship.
PRELIMINARY VOTE ON THE MANAGER'S RECOMMENDATION: UNANIMOUS (9-0).
Issue #20. Setbacks in Planned Developments
Mr. Waldon explained that the old 1981 provision, which required a 50-foot setback in planned developments, was not consistent with the Town's goals. The Planning Board had suggested permitting a 50-foot setback but eliminating that as a requirement, he said. Mr. Waldon noted that the large setback leads to parking in front of the building.
PRELIMINARY VOTE ON THE MANAGER'S RECOMMENDATION: UNANIMOUS (9-0).
Issue #21. Response to UNC Comments
Mayor Foy pointed out that this is not a change but just a clarification.
PRELIMINARY VOTE ON THE MANAGER'S RECOMMENDATION: UNANIMOUS (9-0).
Mayor Foy said that he agreed with the Manager's recommendation that the Council ask the Planning Board and staff to work together over the next year to make suggestions for refinements and changes, and to monitor what is actually happening. He asked the Council to think about that as one of the things they plan to formally do when they enact the ordinance. Mayor Foy added that they should also make it clear that they will immediately address any serious errors in what they have adopted.
Regarding the last sentence under item E, #2 on page 58 of the draft, Mayor pro tem Evans said that she was not sure the Town intended to have some of the regulations associated with the RCD apply to the entire watershed protection district. Mr. Waldon stated that the sentence was just a reminder and a reference that there are other rules that apply. She requested that they state it differently or take "all development" out. Mayor Foy suggested adding the statement “if applicable." Mr. Waldon said it could be removed.
Mayor pro tem Evans asked if the staff had included James Carnahan's information on floor area ratio and higher density in transit zones. Mr. Waldon replied that they were not proposing changes in the floor area ratios but that everyone was giving more thought to the issue of transit-oriented development. Mr. Waldon pointed out, though, that this does not apply to any piece of ground unless the Council specifies that.
Council Member Strom stated that he agreed with Mr. Carnahan's goals. He asked what the Town would be sacrificing if it changed the floor area ratio. Mr. Waldon explained that when someone applies for a SUP under the third draft, the Council would have flexibility to modify regulations if there are public purpose findings. Also, if someone is applying for greater intensity on a piece of land within the context of a rezoning proposal, the Council could balance community goals, he said.
Discussion on Scheduling
Mr. Horton explained that the staff had not scheduled a meeting on December 16th because many people might be away.
Council Member Ward recommended option three so that there would be more time for the Council and public to digest the information. Mayor pro tem Evans agreed.
Council Member Verkerk asked to push ahead and get it done in December, but Council Member Wiggins asked not to add another meeting in December. Mayor pro tem Evans stated that option three allows more time for the public process to happen.
Mayor Foy favored getting it done in December.
Council Member Strom proposed option two, with the January 6th action date changed to December 16th.
Council Member Kleinschmidt noted that the Council could receive the report on November 25, and have two weeks to digest it.
Council Member Strom agreed, and suggested option one with an action date of December 16.
Council Member Wiggins explained that she would not be available on December 16, however.
Council Member Ward remarked that rushing it now did not make a difference, and suggested an action date of January 27, 2003.
Mayor Foy noted that there were 62 days between today and the action date of option two. He recommended voting on option two but receiving the consultant's report on November 25 as Council Member Kleinschmidt had suggested.
COUNCIL MEMBERS VOTE ON OPTION TW0: 8-2, WITH COUNCIL MEMBERS EVANS AND WARD VOTING NAY.
Mayor pro tem Evans stated that this misleads the public, since the Council had said the public would have an opportunity to review this.
Council Member Strom said that the public will have 62 days. Mayor pro tem Evans replied that the public does not have a copy and does not know what the Council did tonight.
The meeting adjourned at 10:50 p.m.