SUMMARY MINUTES OF A BUDGET PUBLIC FORUM

SUMMARY MINUTES OF A BUSINESS MEETING

OF THE CHAPEL HILL TOWN COUNCIL

MONDAY, MARCH 24, 2003 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, Town Attorney Ralph Karpinos, Assistant to the Manager Bill Stockard, Police Chief Gregg Jarvies, Parks and Recreation Director Kathryn Spatz, Fire Chief Dan Jones, Planning Director Roger Waldon, Police Legal Adviser Terri Gale, Principal Planner Gene Poveromo, Traffic Engineer Kumar Neppalli, and Acting Town Clerk Sandy Cook.

Town Manager Cal Horton asked Police Chief Gregg Jarvies and the Fire Chief Dan Jones to report on emergency preparedness.

Chief Jarvies explained that the Police Department had recently managed rallies and demonstrations held in response to the United State’s invasion of Iraq. The Department had addressed these events in a fair and patient manner in accordance with community values, he said. Chief Jarvies noted that arrest is always a last resort and that arrests are made only in response to chaos that affects public order. Arrests would not be made "to remedy inconvenience," Chief Jarvies said. He noted that the Police Department's mission was to allow people to voice concerns in a safe and orderly environment without interference from others.

Mr. Horton pointed out that Chief Jarvies had been in communications with State and federal law enforcement agencies and had remained well informed.

Chief Jones explained that the Fire Department's role was to prepare for emergency mitigation and to respond in a prepared way to alert levels presented by the Office of Homeland Defense. He said this preparation was the same as for any major emergency; that is, the Department would contact other agencies, refresh contact lines with law enforcement, and review all standing procedures for crisis response that apply to major emergencies or acts of violence within the community. Chief Jones noted that the Fire Department had reviewed equipment that would be used in such a response and had interacted with other area fire departments. He added that he had met with Chief Jarvies and with UNC Police Chief Poarch, noting that the Chapel Hill Fire Department was UNC's sole fire protection provider.

Mayor pro tem Evans asked Chief Jones who would be responsible if there were threats to UNC dormitories. Chief Jones replied that threats are handled primarily by University Police. He explained that the Town had a high level of communication with UNC and regular interaction with University Housing as well as the Vice Chancellor of Student Affairs.

Council Member Ward verified that there was close communication among the Fire Chief, Police Chief and OWASA officials. Chief Jones remarked that since the September 11, 2001 attack on the World Trade Center, the three had met several times to discuss community risk, infrastructure and capabilities. They had shared information and updated that information when necessary or appropriate, he said.

Item 1 - Ceremonies: None.

Item 2 - Public Hearing: Proposed Legislative Bill to Require Sprinkler

Systems in Bars, Restaurants, and Similar Places of Public Assembly

Mr. Horton explained that this proposal had come at the end of the Council's process for putting forward legislative requests. Tonight's meeting was being held because of the Council's policy on holding a public hearing on any proposed legislation, he said.

Mr. Horton outlined several actions that Council members could take: take action to request the legislation as drafted; request legislation in a modified form; or, refer the legislation back to the Manager and Attorney for further consideration and a follow-up report. Mr. Horton pointed out that related legislation had been introduced in the State House of Representatives.

Chief Jones told Council members that the Town's inquiry about fire safety followed a recent tragic fire in a Rhode Island nightclub. The Manager requested that he determine what the Town could do to ensure that such a tragedy could not occur in Chapel Hill, he said. Chief Jones described the Town's aggressive inspection program and noted that the Town periodically checks on inspection codes. But installing fire sprinklers would ensure that a similar tragedy could not occur in Town, he said.

Chief Jones referred Council members to information regarding occupancy ratings and costs. He said that installing sprinklers would not require a tap fee, stand-by fee, or supply fee from OWASA, except for the $200 cost of drilling the connection. Chief Jones noted that there would be construction costs not associated with OWASA. He concluded that fire sprinkler systems would provide the optimum fire protection option in virtually any situation.

Council Member Harrison questioned whether the legislation that had been introduced was the Orange County "blank bill," or a State-wide bill. Town Attorney Ralph Karpinos replied that it was a local bill.

Council Member Kleinschmidt thanked Chief Jones for the report, but commented on some anomalies in the occupancy figures. He asked how those figures had been determined. Chief Jones explained that the Building Inspections Department uses several formulas, including square footage, type of furnishings, open areas, and other features. He said that the Fire Department had compiled the list based on the occupancy ratings listed in records held by Building Inspections and the Fire Department.

Mayor pro tem Evans determined that Representative Verla Insko had initiated the legislation.

Council Member Bateman requested more information about the frequency of unannounced sweeps (inspections). She also asked how many had been found to be out of compliance with occupancy limits and what the penalty was for exceeding the limit. Chief Jones replied that the Department does not do sweeps on a regular basis. They do so during large athletic events and at certain times of the year, such as Halloween and nights associated with partying by the UNC student body, he said. Chief Jones explained that they had not found any overcrowding the last time they did so.

Council Member Bateman asked how many establishments had been "swept." Fire Marshal Caprice Mellon replied that they had checked everything in the Downtown business district during the Duke-Carolina basketball game and before Spring Break. She stated that they had found no problems, with the exception of one establishment that was so crowded they could not do a head count.

Council Member Bateman asked what the penalty was for such overcrowding. Captain Mellon replied that the Department instructs the manager to have a certain number of people leave and to allow them back in on a 1-for-1 basis. She said that officers sometimes cite owners for overcrowding. If it occurs several times within a certain period of time their license is revoked or suspended, she said. Council Member Bateman ascertained that the names of establishments cited for overcrowding are a matter of public record and on file at the Fire Department. She expressed hope that such information would be made more public, and requested systematic information from Chief Jones on frequencies, probation and fines.

Council Member Strom asked Mr. Horton to explain where the Town was in Bill process and what the additional steps for public input would be. Mr. Horton repeated his opening remarks regarding the choices that Council members had before them. If the Council decides to move ahead with the request for legislation, he said, then the legislative delegation, having already introduced a Bill, would have the Council's feedback on the nature of the Bill that the Town would like to see. Mr. Horton noted that the Council would be allowed to enact a local ordinance if the Bill is enacted into law. The Council probably would want to take public comment before considering a final enactment, he said.

Council Member Strom asked what types of adjustments would be available to the Council if they did receive authority. Mr. Karpinos replied that the Town would have a fair amount of flexibility if there is some rational basis.

Mayor pro tem Evans verified that the Department inspects fire exits when it does occupancy inspections.

Larry Eldridge spoke in opposition to the action. He suggested that the action was being driven by an accident in Rhode Island that is far out of the norm of what the Town might expect. Mr. Eldridge said that the Rhode Island fire was ten times worse than the 16,000 total fires in the last 20 years, according to National Fire Protection Association (NFPA) statistics. He said that he could not recall any fires in bars in Chapel Hill since he had been operating a business Downtown. To require sprinklers would impose a substantial amount of investment for a very small risk, he said. Mr. Eldridge recommended that the Council put the decision off for a year, so that everyone could "catch their breath" rather than just reacting.

Fred Meier said that most deaths in fires are caused by panic. He stated that panic in the Rhode Island fire had been caused by "sheer stupidity," referring to the use of fireworks in a crowded room with limited but legal exits and flammable materials. Mr. Meier suggested limiting the root causes rather than requiring 101 Chapel Hill establishments to spend $2 million. He recommended banning flammable decorations and open flames in meeting places. Mr. Meier also suggested having people point out the exits, as the airlines do. Panic can occur whether alcohol is served or not, he said, and recommended that that the rules apply to all meeting places.

Mildred Council, owner of Mama Dips's Restaurant, suggested that the Fire Department hold drills to teach restaurant owners and workers how to get people out in case of fire. If anyone sent a firecracker toward the ceiling at Mama Dip's, she said, it would do no damage because the ceiling is fireproof. She added that she would not have let that happen anyway. Ms. Council noted that smoking is not permitted in Mama Dip's and that her fire doors cannot be locked on the inside. Even though she sells alcohol, she said, her restaurant is not a place where people get drunk. Ms. Council suggested that the Fire Department develop a plan for employees, so that nobody panics. This would be a better solution than adding sprinklers, she said.

Seymour Freed read a February 26, 2003 letter that he had recently published in the Chapel Hill News. In his letter, he argued that fire sprinklers save lives and that the Town should consider upgrading the sprinkler law so that all buildings meet the minimum requirements consistent with nationally recognized good practice. Mr. Freed said that "flashover," which had occurred in the Rhode Island fire, means that people must get out in three minutes. It was not a matter of panic or stupidity in the Rhode Island fire, he said, but that people needed to get out in three minutes or die.

Joy Preslar expressed concern about the prospect of electrical wiring mixing with water, and implored the Town Council to rethink the sprinkler idea because a sprinkler system itself presents a lot of potential for danger. Ms. Preslar praised the Town's Police and Fire Departments and said that musicians would be more than happy to sign contracts that prohibit the use of flames indoors. A good band does not need pyrotechnics to entertain the audience, she said. Ms. Preslar added that bands would be happy to announce where the fire exits are. She recommended banning inside fireworks and allowing them outside only in the hands of qualified pyrotechnicians. Ms. Preslar also suggested adding more fire extinguishers.

Joe Hatch said that he had met all building and fire codes when outfitting his establishment and that his fire extinguishers are inspected and recharged every six months. Mr. Hatch stated that his electrical cooking and gas equipment is inspected, cleaned and serviced every three months. He pointed out that several businesses were vacant on Franklin Street. There will be a lot more vacant if the Council requires this cost, he said. Mr. Hatch remarked that only new businesses had been required to meet new codes. The property on Franklin Street is very valuable, he said, and he suggested that the landlords might be required to install the sprinkler systems.

Mark Sherburne, general manager for the Sienna Hotel and Il Palio Restaurant, said that all of tonight's speakers consider safety to be very important for customers and employees. He described the proposal as the "Mercedes" of fire protection and argued that other elements could be put into place that would be much more sympathetic to the business community. Mr. Sherburne pointed out that there had been 300 people at the Rhode Island establishment and that Chapel Hill was discussing instituting this for 50. He said that 83 local establishments would be affected by it and that most of them would close because they would not be able to afford it.

Mr. Sherburne explained that it would take about 1,400 people dining at Il Palio just to break even on the cost of a sprinkler system. He pointed out that Il Palio's customers pay more than most people dining out and that his cost estimate for the sprinkler system probably was low. It would not make sense for many other businesses to make this investment, he said, predicting that it would result in more empty storefronts. Mr. Sherburne recommended that the Town compromise. He suggested the following possibilities: raise the occupancy limit to well over 100; enact guidelines that prohibit pyrotechnics; and, increase fire inspections. Mr. Sherburne pointed out that a fire would most likely start in the kitchen and suggested installing sprinklers only there.

Eleanor Howe explained that she is the mother of a teenage boy who likes to attend clubs in Carrboro. Even though there was a law against the material on the ceiling of the Rhode Island club, she said, people had broken that law. Ms. Howe passed out information from the Internet regarding assembly occupancies. She noted the following proposals: eliminate general admission seating unless certain requirements are met; require the use of crowd managers; and, increase the use of automatic fire sprinklers. Ms. Howe stated that sprinklers will become part of the NFPA standards.

Mickey Ewell, representing Spanky's, Squid's, and the 411 Restaurants, stated that the North Carolina Restaurant Association would adamantly oppose any legislation such as this. There are very few deaths caused by restaurant fires, he said, noting that a NFPA representative had given an average of three deaths per year from 1994 to 1998. Mr. Ewell stated that the economic impact on businesses in Chapel Hill would be devastating to many. He pointed out that restaurants are inspected by insurance companies and fire departments. Mr. Ewell argued that there was a difference between people who come to hear a band and people who dine in a restaurant. Most restaurant fires occur in the kitchen, he said, and are put out by the system required by the code. Mr. Ewell pointed out that the State ABC Board and insurance companies categorize restaurants, taverns and nightclubs separately. He asked Council members to seriously consider how devastating this would be for many.

Aaron Nelson, Director of the Chapel Hill-Carrboro Chamber of Commerce, explained that the Chamber had not yet taken a position on this issue. The sense of members, he explained, was that there should be a more appropriate way to "parse apart" this regulation. He agreed with the suggestion to possibly separate nightclubs, taverns and restaurants. Mr. Nelson proposed that 50 was an inappropriate number, pointing out that a restaurant with 13 four-top tables would require a sprinkler system at a possible cost of more than $40,000. The NFPA is taking another look at this, Mr. Nelson said, adding that it recommends fire sprinklers only in places of assembly with greater than 300 people. He described this issue as "too ripe" for legislation and pointed out that the Chamber would hold a fire safety educational program on April 26 for local clubs, bars, and restaurants.

Bill Chamberlain asked why not apply this to all places of public assembly, including schools, athletic theater, and music auditoriums. He pointed out that the vast majority of restaurants already were required to have chemical suppression systems installed in their kitchens and exhaust hoods above their cooking equipment. Mr. Chamberlain asked Council members not to rehash the situation that required fraternity and sorority houses to install sprinkler systems. Use intelligence and expertise before simply reacting to an isolated incident, he said.

Downtown Commission Director Robert Humphreys described the Downtown area's three distinct populations: daytime population, including shoppers, workers, students, faculty and staff; evening population, including the drink/dinner crowd, moviegoers, or leisurely shoppers; and, the late night entertainment population, which is the one most affected by this proposed ordinance. The nighttime population keeps Downtown safe just by the sheer numbers of people who are out and about, he said. Mr. Humphreys asked the Town Council to carefully consider the matter rather than just reacting to a tragedy. He suggested increasing the base occupancy number and instituting some formula that would include factors other than occupancy. Mr. Humphreys also asked for tighter and more frequent inspection of establishments to assure the safety of citizens and patrons. He urged Council members to consider the cost to small business owners, and their importance to the community.

Mayor pro tem Evans noted that some establishments already have sprinkler systems. She asked what the building regulations were with regard to sprinkler systems. Chief Jones explained that current regulations require sprinklers of any new building over 5,000 square feet, any building under renovation of more than 50% that is 5,000 square feet or greater, any public assembly of 300 occupancy or greater, and fraternity/sorority houses.

Mayor Foy stated that citizens had raised valid points about the type and size of establishments that the Town seeks to regulate. He proposed asking for further analysis from the staff, with other options. Any action taken would be a long process, he said, adding that there would be no detriment to refining the proposal.

Council Member Bateman asked for feedback on citizens' suggestions, such as instituting evacuation plans.

Council Member Ward noted that some of those suggestions might be implemented inexpensively and quickly.

COUNCIL MEMBER VERKERK MOVED, SECONDED BY COUNCIL MEMBER WARD, TO REFER COMMENTS TO THE MANAGER AND ATTORNEY FOR FURTHER ANALYSIS, OTHER OPTIONS, AND FEEDBACK ON CITIZENS' COMMENTS. THE MOTION WAS ADOPTED UNANIMOUSLY (9-0).

Council Member Wiggins asked if Representative Insko had introduced the Bill on her own or on the Council's behalf. Mr. Karpinos responded he did not know the answer to that question. Mr. Horton pointed out that the Council had made no request that a Bill be introduced. Council Member Wiggins explained that she wanted to make sure that the Council was not getting attached to the Bill in light of the action that they just taken. Mr. Karpinos agreed to follow up and report back to the Council.

Item 3 - Petitions by Citizens and Announcements by Council Members

3a. Petitions by citizens on items not on the agenda.

1. Friends of Chapel Hill Parks, Recreation, and Greenways: Petition for Seed Funding to Begin Seeking Potential Sponsors for Parks and Recreation Programs, Equipment, and Facilities.

Andrea Rohrbacher explained that "The Friends" was a non-profit organization, established in the 1990s, that acts as a funnel for donations to the Town for parks and recreation purposes. The Friends would like to start actively soliciting donations from businesses and individuals, she said. Ms. Rohrbacher asked the Town Council for $10,000 in seed money to hire a marketing director to design materials and to cover the cost of printing and postage. She had provided the Council with a list of equipment and activities, she said, adding that there would be a fairly significant potential of funding for some of those items.

Mayor Foy pointed out that having a resolution and ordinance before the Council was somewhat unusual with a petition. He said that it would not be appropriate to refer it back to the Manager since there already was a staff recommendation.

COUNCIL MEMBER KLEINSCHMIDT MOVED, SECONDED BY COUNCIL MEMBER BATEMAN, TO ADOPT R-2. THE MOTION WAS ADOPTED UNANIMOUSLY (9-0).

A RESOLUTION AUTHORIZING THE MANAGER TO PROVIDE $10,000 TO THE FRIENDS OF CHAPEL HILL PARKS, RECREATION, AND GREENWAYS FOR THE ESTABLISHMENT OF A MARKETING PROGRAM TO INCREASE DONATIONS TO THE TOWN’S PARKS AND RECREATION DEPARTMENT (2003-03-24/R-2)

WHEREAS, the Friends of Chapel Hill Parks, Recreation, and Greenways is an existing 501(c)3 non-profit organization established to provide support to the Chapel Hill Parks & Recreation Department; and,

WHEREAS, the Friends of Chapel Hill Parks, Recreation, and Greenways has provided services to the Department since the 1990s; and,

WHEREAS, the Friends of Chapel Hill Parks, Recreation, and Greenways desires to increase its level of support to the Department;

NOW, THEREFORE, BE IT RESOLVED by the Council of the Town of Chapel Hill that the Council authorizes the Manager to enter into a performance agreement with the Friends of Chapel Hill Parks, Recreation, and Greenways for the purpose of developing and implementing a fund-raising program that would be designed to increase the number and scope of donations designated for the Chapel Hill parks and recreation programs and facilities.

BE IT FURTHER RESOLVED by the Council that the performance agreement with the Friends of Chapel Hill Parks, Recreation, and Greenways would require:

The Friends of Chapel Hill Parks, Recreation, and Greenways to use the funds for the development and implementation of a fund-raising program designed to increase funds for the Chapel Hill parks and recreation programs and facilities.
An accounting, after one year, of the uses the organization made of the funds and its level of success in raising funds for parks and recreation programs and facilities.

This the 24^th day of March, 2003.

COUNCIL MEMBER KLEINSCHMIDT MOVED, SECONDED BY COUNCIL MEMBER BATEMAN, TO ENACT O-1. THE MOTION WAS ADOPTED UNANIMOUSLY (9-0).

AN ORDINANCE TO AMEND “THE ORDINANCE CONCERNING APPROPRIATIONS AND THE RAISING OF REVENUE FOR THE FISCAL YEAR BEGINNING JULY 1, 2002” (2003-03-24/O-1)

BE IT ORDAINED by the Council of the Town of Chapel Hill that the Budget Ordinance entitled “An Ordinance Concerning Appropriations and the Raising of Revenue for the Fiscal Year Beginning July 1, 2002” as duly adopted on July 26, 2002, be and the same is hereby amended as follows:

ARTICLE I

APPROPRIATIONS	Current Budget	Increase	Decrease	Revised Budget

GENERAL FUND

Non-Departmental
Contingency	9,329	35,000	10,000	34,329

Agency Allocations	617,203	10,000		627,203

REVENUES	Current Budget	Increase	Decrease	Revised Budget

GENERAL FUND	1,716,561	35,000		1,751,561

This is the 24^th day of March, 2003.

2. Deborah Andrews regarding the Drainage Problem on Newton Drive.

Ms. Andrews, speaking for herself and her neighbors, elaborated on her written petition regarding a faulty pipe that had caused her yard to cave in twice. She described public runoff going under private property into another public drain. Ms. Andrews said that she had a $3,500 estimate to repair that, and she asked the Council to direct the Manager to give the assistance necessary to make the repair. Ms. Andrews stated that time was critical because her neighbors wanted to put their house on the market.

COUNCIL MEMBER BATEMAN MOVED, SECONDED BY MAYOR PRO TEM EVANS, TO RECEIVE AND REFER THE PETITION TO THE MANAGER. THE MOTION WAS ADOPTED UNANIMOUSLY (9-0).

Council Member Bateman asked when this item would come back to the Council. Mr. Horton replied that it would be within a couple of meetings, as soon as he had a chance to talk with the Town Engineer.

Mayor Foy explained the process to Ms. Andrews and told her that the Manager would attempt to bring back a report by late April or early May.

3. Delores Bailey, Northside Community Association and Sykes Street Steering Committee,

requesting a New Committee Core Group.

Ms. Bailey, Community Organizer for the Northside Community Association, petitioned the Council for permission to go ahead with the Northside Neighborhood Conservation District as outlined in their letter.

Council Member Harrison clarified that Northside residents would comprise the Steering Committee.

Mayor Foy ascertained from Mr. Horton that the Council could offer its support to this petition tonight.

Council Member Wiggins pointed out that the neighborhood was also asking for staff support, and asked Mr. Horton if he wanted to comment on that. Mr. Horton welcomed the idea of having a formal group to work with. The staff was ready to offer support, Mr. Horton said, adding that it should cost little outside the regular budget.

COUNCIL MEMBER WIGGINS MOVED, SECONDED BY MAYOR PRO TEM EVANS, THAT THE COUNCIL ACCEPT THE PETITION AND ASK THE MANAGER TO IDENTIFY THE STAFF PERSON THAT WOULD WORK WITH THE COMMITTEE AND SOLICIT REPRESENTATION FROM THE PLANNING BOARD AND ANY OTHER TOWN BOARD OR COMMISSION THAT WOULD BE APPROPRIATE. THE MOTION WAS ADOPTED UNANIMOUSLY (9-0).

4. Owen Gwyn, Chapel Hill Museum: Request to Use the Town Seal on a Poster and Program That Will be Produced to Commemorate the Dedication of the James Taylor Bridge.

Mayor Foy held up a copy of the poster and explained that UNC and the Museum were cosponsoring this dedication with the Town. Mr. Horton added that the Department of Transportation and Orange County had already agreed to allow their logos to be used. Mayor Foy noted that the dedication would be held at the Smith Center on April 26, 2003, and that James Taylor would attend.

COUNCIL MEMBERS AGREED BY CONSENSUS TO GRANT THE PETITION.

3b. Petitions by citizens on items on the agenda. None.

3c. Announcements by Council Members.

Council Member Harrison announced the Transportation Board's annual forum on Tuesday, April 8, 2003, at 7:00 p.m. in the Council Chambers. This is the best time of the year for citizens to discuss the bus system and other transportation issues, he said.

Item 4 - Consent Agenda

COUNCIL MEMBER WIGGINS MOVED, SECONDED BY COUNCIL MEMBER WARD, TO ADOPT R-3.

With regard to item 4g, Demolition of House Located at 127 Greene Street, Creighton Humphries stated that he was trying to recycle materials from his Greene Street house but had received conflicting and confusing notices from the Town. This had included a notification, which had not yet expired, that he had ten days to take action, he said. Mr. Humphries said that he had not been notified about tonight's discussion and proposed action. He asked Council members to postpone action so that he could resolve the problem himself.

Council Member Bateman verified that Mr. Humphries was the owner of the property and had said that he had not been notified of either the demolition or tonight's proposed action.

Mayor Foy read the list of notices that the staff had reported sending to Mr. Humphries between August 2001 and December 2002, including a notice of demolition and an extension of that notice.

Council Member Ward asked Mr. Humphries when he might get the matter resolved without Town intervention. Mr. Humphries replied that he hoped to do so within 30 days. By then the Building Inspections Department would be satisfied with the condition of the property, he said. Council Member Ward expressed support for the staff's frustration but noted that it would be better to recycle some of the materials than to send them to the landfill.

Mayor Foy asked Mr. Horton if he wanted to modify his recommendation. Mr. Horton replied that he would find it hard to object to giving a 30-day extension. But based on past experience, he said, he feared he would be back in 30 days with a similar recommendation.

Mayor Foy and Council Member Wiggins discussed options, and Mr. Karpinos recommended taking it off the agenda and putting it back at a later meeting, if necessary.

The Council agreed by consensus to remove item 4g from the agenda for 30 days.

Council Member Ward determined from Mr. Horton that the Town would inspect the property again in 30 days to determine whether or not there is need for Town action. Council Member Ward commented that Mr. Humphries had already left the room and might not understand that. He requested that the staff send Mr. Humphries a formal written notice.

COUNCIL MEMBER WIGGINS MOVED, SECONDED BY COUNCIL MEMBER WARD, TO ADOPT R-3, AS REVISED TO REMOVE 4g FOR 30 DAYS. THE MOTION WAS ADOPTED UNANIMOUSLY (9-0).

A RESOLUTION ADOPTING VARIOUS RESOLUTIONS AND ORDINANCES (2003-03-24/R-3)

BE IT RESOLVED by the Council of the Town of Chapel Hill that the Council hereby adopts the following resolutions and ordinances as submitted by the Town Manager in regard to the following:

a.	Adoption of Minutes from January 17, and 29 (Budget Public Forum and Business Meeting), February 10, 12, 19, and 24 (Legislative Breakfast and Business Meeting).
b.	Nominations to Various Town Boards (R-4)
c.	Response to Petition regarding Use of Town Seal (R-5).
d.	Response to Public Arts Commission Petition regarding Arts ‘Round Town Event on Franklin Street (O-1.1).
e.	Million Solar Roofs Budget Ordinance Amendment (O-4).
f.	Amendments to the Cemetery Code (O-3).
h.	Initiation of Process to Donate Property to Town of Carrboro (R-6).
i.	Response to Petition from EmPOWERment, Inc. (R-6.1).
j.	Dedication of General Utility Easement at Meadowmont ParkPump Station (R-6.2).

This the 24^th day of March, 2003.

A RESOLUTION NOMINATING APPLICANTS TO VARIOUS ADVISORY BOARDS AND COMMISSIONS (2003-03-24/R-4)

WHEREAS, the applications for service on an advisory board or commission or other committees listed below have been received; and

WHEREAS, the applicants have been determined by the Town Clerk to be eligible to serve;

NOW, THEREFORE, BE IT RESOLVED by the Council of the Town of Chapel Hill that the following names are placed in nomination to serve on an advisory board or commission:

Human Services Advisory Board

Ernest Roberts, Jr.

Stormwater Utility Policy Review Committee

Philip Berke

David Brower

Mark Cate

Milton Heath, Jr.

Julie McClintock

Transportation Board

Anup Dashputre

This the 24^th day of March, 2003.

A RESOLUTION AUTHORIZING THE TOWN MANAGER TO NEGOTIATE AND ENTER INTO AN AGREEMENT WITH MRS. ELIZABETH RYAN TO USE A COPY OF THE TOWN SEAL OF THE TOWN OF CHAPEL HILL (2003-03-24/R-5)

WHEREAS, Mrs. Elizabeth Ryan petitioned the Town Council on February 24, 2003, for use of the Town Seal, to appear on a title page of a section of a book she is currently writing to celebrate the 250^th anniversary of the founding of Orange County; and

WHEREAS, the Town Seal, a trademark of the Town of Chapel Hill registered with the State of North Carolina, may be assigned to a person or entity by the Town by written permission;

NOW, THEREFORE, BE IT RESOLVED by the Council of the Town of Chapel Hill that the Council hereby authorizes the Town Manager to negotiate and enter into an agreement with Mrs. Elizabeth Ryan to allow her to use a copy of the Town Seal, only for the purpose of appearing in a section of a book she is currently writing to celebrate the 250^th anniversary of the founding of Orange County subject to such reasonable terms and conditions as the Manager and Attorney deem appropriate to preserve the Town’s Service Mark rights to said Seal.

BE IT FURTHER RESOLVED that Mrs. Elizabeth Ryan may not use the Town Seal for any other purpose, and may not assign its use to another party.

This the 24^th day of March, 2003.

AN ORDINANCE AUTHORIZING A ONE TIME MODIFICATION TO ARTICLE VI, CHAPTER 17 OF THE TOWN CODE TO PERMIT THE PUBLIC ARTS COMMISSION TO SPONSOR THE APRIL 5, 2003, ARTS ROUND TOWN EVENT (2003-03-24/O-1.1)

BE IT ORDAINED by the Council of the Town of Chapel Hill as follows:

Section 1. Chapter 17, Article VI, of the Town Code, is hereby revised by adding a new Section 17-79, to read as follows:

“Sec. 17-79. Sale of Art Work Permitted on Sidewalk.

(a) Notwithstanding any other provision of this Article, the Chapel Hill Public Arts Commission, upon issuance of a permit by the Town Manager, may conduct a one day event on the Franklin Street sidewalk, including the area between the sidewalk and the curb, and any planter boxes in this area, in the downtown between Henderson Street and Columbia Streets.

(b) The Public Arts Commission may use this area for the display and sale of artworks by private artists under permits issued by the Commission.

(c) Activities permissible under this Section shall not create a public safety hazard; shall not unduly interfere or impede the safe and orderly flow of pedestrian and vehicular traffic; and shall leave clear for pedestrian traffic a continuous area of paved sidewalk at least six (6) feet wide.

(d) Sales under this section shall not be conducted:

(1) Within ten (10) feet of a fire hydrant, driveway, alley used by vehicles, or of a parking space for handicapped persons.

(2) In any manner which damages or endangers any tree or shrub.

(3) So as to interfere with any bus stop area.

(4) In any area where the sale would be in direct conflict with the sale of food authorized by this Article.

(5) In any area where the sale would be in direct conflict with any other activity for which the Town has issued a permit.

Section 2. This Ordinance shall be effective upon enactment and shall permit a one day event on April 5, 2003. In the event of rain, the one day sale may be conducted on April 12, 2003.

Section 3. This Ordinance shall expire and be void on the day following the holding of the one day event authorized herein.

This the 24^th day of March, 2003.

AN ORDINANCE TO AMEND “THE ORDINANCE CONCERNING APPROPRIATIONS AND THE RAISING OF REVENUE FOR THE FISCAL YEAR BEGINNING JULY 1, 2002” (2003-03-24/O-4)

ARTICLE I

APPROPRIATIONS	Current Budget	Increase	Decrease	Revised Budget

GENERAL FUND
Non-Departmental
Contingency	34,329		3,000	31,329

Planning	1,012,717	3,000		1,015,717

This the 24^th day of March, 2003.

AN ORDINANCE AMENDING CHAPTER 6 OF THE TOWN CODE OF ORDINANCES REGARDING CEMETERIES (2003-03-24/O-3)

BE IT ORDAINED by the Council of the Town of Chapel Hill as follows:

Section 1. Section 6-2 of the Town Code of Ordinances, “Required depth of graves; opening and closing graves.” is hereby revised to read as follows:

“~~Required depth of graves; opening and closing graves.~~

~~No grave shall be opened to a depth of less than five (5) feet to the bottom thereof.~~ ~~Graves~~ ~~shall be opened and closed only by the funeral director in charge of interment and subject to supervision by the town manager but at no cost to the town~~”.

“Multiple burials in graves; required depth of graves; opening and closing graves.

(1) Multiple burials in a single grave shall be limited to one of the following: a) the interment of two burial vaults; or b) the interment of one burial vault and one cremation urn; or c) the interment of no more than four cremation urns.

2) No grave shall be opened to a depth of less than five (5) feet to the bottom thereof. All burial vaults and cremation urns shall be at least eighteen (18”) below the ground level. Graves shall be opened and closed only under the direction of the funeral director in charge of the interment, subject to supervision by the Town Manager, and at no cost to the Town”.

Section 2. This ordinance shall become effective March 24, 2003.

This the 24^th day of March, 2003.

A RESOLUTION AUTHORIZING SUBMISSION OF A DISPOSITION FORM TO THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (2003-03-24/R-6)

WHEREAS, the Town of Carrboro requested that the Town of Chapel Hill consider conveying a portion of the Oakwood public housing site not currently needed to meet the development regulations of the Town of Carrboro, for future use as affordable housing; and

WHEREAS, the Council of the Town of Chapel Hill on June 25, 2001, authorized the initiation of conveyance procedures, contingent upon the satisfaction of several conditions;

WHEREAS, the Towns seek approval of the U.S. Department of Housing and Urban Development of the change in the land area of the Oakwood property, and the disposition of the property to the Town of Carrboro;

NOW, THEREFORE, BE IT RESOLVED by the Council of the Town of Chapel Hill that the Council authorizes the Town Manager to submit the disposition application as contained in Attachment 1, including all certifications therein, to the U.S. Department of Housing and Urban Development for its approval, and upon approval, to convey the property to the Town of Carrboro.

BE IT FURTHER RESOLVED that the deed conveying the property include a reverter clause that in the event the Town of Carrboro does not develop the property for affordable housing purposes within ten years, the property would revert to the Town of Chapel Hill.

This the 24^th day of March, 2003.

A RESOLUTION AUTHORIZING AN EXCEPTION TO THE GUIDELINES OF THE HOUSING LOAN TRUST FUND (2003-03-24/R-6.1))

WHEREAS, the Town entered into a Performance Agreement with EmPOWERment, Inc. for the acquisition of 613 Sykes Street; and

WHEREAS, the Performance Agreement required the house to be renovated and sold to a household that lived or worked in Chapel Hill; and

WHEREAS, EmPOWERment has identified a potential buyer that is not a current resident of Chapel Hill;

NOW, THEREFORE, BE IT RESOLVED, that the Council of the Town of Chapel Hill authorizes an exception to the guidelines of the Housing Loan Trust Fund to allow a non-Chapel Hill resident to receive deferred second mortgage assistance from the Housing Loan Trust Fund to purchase 613 Sykes Street in order to help achieve the objective of revitalizing the Sykes Street area.

This the 24^th day of March, 2003.

A RESOLUTION AUTHORIZING THE TOWN MANAGER TO EXECUTE A GENERAL UTILITY EASEMENT FOR THE MEADOWMONT PARK SANITARY SEWER PUMP STATION (2003-03-24/R-6.2)

WHEREAS, the Town of Chapel Hill has dedicated easements to OWASA for the construction of a sanitary sewer pump station on Meadowmont Park land, adjacent to the Rashkis Elementary School, and

WHEREAS, it is not clear that the existing sanitary sewer and pump station easements are sufficient to accommodate the Duke Power and Southern Bell lines that are needed to operate the pump station, and

WHEREAS, the Council has dedicated easements for the construction and operation of a sanitary sewer pump station,

NOW, THEREFORE, BE IT RESOLVED by the Council of the Town of Chapel Hill that the Town Manager is authorized to execute a general utility easement needed to serve the pump station on Town park land next to the Rashkis Elementary School.

This is the 24^th day of March, 2003.

Item 5 - Information Items

Council Member Strom thanked Mr. Horton for making the report on item 5c, Report on Orange Flag Crosswalks and Adopt-a-Crosswalk, and asked to make certain that it had been referred to the Bicycle and Pedestrian Advisory Board.

Council Member Ward commented on item 5f, Response to Request for Parking Accommodations during Inclement Weather, asking if the University had taken action as well. Mr. Horton replied that UNC had suspended it in at least some lots but he was not sure about streets. Council Member Ward recommended that the Town provide more than just on-street parking for citizens when buses are not running.

COUNCIL MEMBER WARD MOVED THAT THE COUNCIL INSTRUCT THE STAFF TO GIVE THE FINANCIAL IMPLICATIONS OF OPENING UP ONE OR MORE LOTS IN THE DOWNTOWN AREA DURING INCLEMENT WEATHER. THERE WAS NO SECOND, AND THE MOTION FAILED.

Item 6 - Amendment to the Solicitation Ordinance

Regulating Nighttime Panhandling (Second Reading)

Mayor Foy explained that this was the second reading of this ordinance change, which had not had gained sufficient votes for adoption on the first reading. He noted that the ordinance would prohibit panhandling or solicitation of contributions from dusk to dawn and that there were definitions regarding what constitutes panhandling.

Stephanie Hunter said that during her six years as a student in Chapel Hill she had become friendly with a homeless man who lives on Franklin Street. "Dennis" attributes his survival to the generosity of people in Chapel Hill, she said, adding that Dennis was afraid of being arrested if this ordinance is enacted. Ms. Hunter urged Council members not to enact the ordinance.

Bruce Stone proposed that the restriction be given a specific hour, such as 6:00 p.m. to 6:00 am rather than sunset to sunrise, which is too vague and could lead to enforcement difficulties. He pointed out that saying "sunset" would also push back the time that people would comfortably come Downtown and patronize businesses. This would have the effect of shrinking those hours when commerce should be flourishing, Mr. Stone said.

Stephen Dear explained that he had come to know several of the people whom this ordinance would hurt most. He had hired some of them for short-term projects, he said, adding that they had been eager to work. Mr. Dear told Council members that he had been grateful to know the panhandlers and hear their stories. He had never felt threatened late at night by homeless people needing money, he said. Mr. Dear pointed out, though, that he had felt threatened by drunken college students “with chips on their shoulders”. He described several public displays by drunken college students, including a recent incident during which they sprayed urine on high school students holding a peace vigil.

Mr. Dear remarked that college students are not banned from the Downtown because they have money to spend. He said that if the issue really were about safety then the Town would start enforcing the public drunkenness laws in whole new ways. Mr. Dear described the ban as an attempt by some economic interests to further homogenize the Downtown and make it indistinguishable from shopping malls. Enacting this ordinance would mean losing our soul as a community, he said, and he asked the Town Council to reconsider.

Sally Greene distributed to Council Members an addendum to a memo that she had co-author with UNC law student Ryan Willis. Mr. Willis then discussed the memo, addressing some of the constitutional questions regarding the ban on nighttime panhandling. He argued that the ordinance goes too far in regulating conduct and is overly broad. He said that he had not found one case in which a city had been able to regulate the problem of aggressive panhandling by writing an ordinance that also regulates non-aggressive panhandling. Mr. Willis stated that the proposed ordinance was unconstitutional and that passing it would open the Town up to potential lawsuits. He agreed that it was important to find a solution to aggressive panhandling, and offered to help develop an ordinance that meets everyone's concerns.

Sally Greene commented on the difference between aggressive begging, which is conduct, and passive begging, which is speech. She stated that it would be risky for the Town to encompass a broader ban than is necessary. The Town has a tradition of not wanting to subject itself to lawsuits, said Ms. Greene.

UNC student Ginny Franks said that even though she was only 110 pounds she felt safe Downtown and confident in her ability to let panhandlers know when she does not wish to be approached. She argued that the Town already had passed appropriate ordinances regarding aggressive panhandling. Ms. Franks said that the Council had previously voted with a mistaken view of the homeless and a mistaken assessment of the views of many women. She asked Council members to rectify their mistake by voting against the ordinance this time. Ms. Franks stated that there was no need to limit the speech of those whom most people ignore anyway. "Can you spare some change?" is not threatening or rude, she said, adding that she prefers that to some of the cat-calls or derogatory remarks that she endures from fellow students when they've had too much to drink.

Law student Erwin Byrd proposed that not many students or community members who value their right of free speech in this "proudly politically active community" would support an ordinance that restricts others rights. She said that witnessing the plight of less fortunate members of the community contributes to the education of all Town members. She noted that people cannot get that experience by watching television or reading the papers filled with news that makes them feel better about themselves and their country. There might be people who are frightened by panhandlers, said Ms. Byrd, but those are unreasonable reactions and do not make begging a crime.

Duncan Murrell urged Council members not to rush and pass another ordinance regarding panhandling when the vast number of laws against aggressive behavior, including the Town's own aggressive panhandling ordinance, are not being enforced. He urged Council members to find out why those laws have not been enforced before passing an ordinance to round people up whose only transgression is that they are poor, unknown, and in need of money. Mr. Murrell described this as a divisive issue that gets to the heart of who we are as a community. He recommended that the wider community discuss the issue rather than limiting it to Council debate.

Kimberly Brewer explained that she had been approached by panhandlers many times over the 20 years that she has lived in Chapel Hill. She has never felt threatened by them, she said, but she has had to question what to do in the situation. Ms. Brewer asked the Town Council to let this continue to be a personal choice of conscience rather than a legal mandate.

Phillip Lyons shared his observations about the "cadre" of panhandlers in Town. The problem has grown, he said, adding that panhandlers target students, women, and summer campers. Mr. Lyons remarked that panhandlers seem in desperate need of mental health, medical and occupational services. He said that he had observed very few new faces among those who panhandle near the 100 block of Franklin Street. Mr. Lyons urged the Town Council to enact the ordinance and force people to seek the services they need.

Virginia Knapp, Director of External Affairs for the Chapel Hill-Carrboro Chamber of Commerce, reported that the Chamber Board feels the ordinance would be useful in dealing with the problem of panhandling and had voted to support the Manager's recommendation. She said that the Board pledges to work with Town Council and staff and other community organizations to raise awareness of the needs of the poor in the community and to address the root causes of panhandling. The Chamber would like to host a roundtable discussion to discuss ways to direct money to the homeless, she added. Ms. Knapp explained that the Chamber considers the ordinance just one tool, and listed other ideas that she had found while researching other approaches being used throughout the country. She noted that these include receptacles for donations, cards to hand out, and educational posters.

Jim Gray commended the Town for its previous vote, which he described as correct. He stressed that the ordinance does not ban panhandling, noting that people can panhandle all day and all night too, but just not aggressively. Mr. Gray urged Council members to listen to the Police Chief, the Downtown merchants, and UNC. All this ordinance does is protect people from dusk to dawn, he said, and asked Council members to reconfirm their vote.

Ruby Sinreich noted that more than 60 people had signed onto a memorandum that she had posted on the web six days ago. She pointed out that this was a large response, considering that she had little time and no staff to work on it. Ms. Sinreich read the current law and noted that aggressive panhandling already was prohibited. What was being proposed, she said, was that no person should solicit contributions in a public place by vocal appeal during the nighttime. Ms. Sinreich argued that this is directed at appeasing people's fear, adding that fear cannot be legislated away. Ms. Sinreich warned that passing the ban would legitimize an approach of prohibiting that which makes us uncomfortable.

Attorney Michelle Lewis reminded Council members that there had been a federal Appellate Court case that looked specifically at the ordinance the Town was considering. The Court had analyzed it fully, she said, and had concluded, without a doubt, that it is constitutional. Ms. Lewis argued that the memo the Council had received from Mr. Willis and Ms. Greene did not provide even a remotely compelling case about why the Council should substitute their opinion. She stressed that the standard the Town would have to meet to explain why the federal Appellate Court decision was wrong had not been met by their memo. Ms. Lewis told Council members that they should feel very comfortable about the constitutionality of the proposed ordinance. She added that they should also feel encouraged by the Downtown merchants' interest in putting together a creative approach for getting more services to people in need and for explaining to the public that giving spare change to a panhandler is counter-productive.

Vivian Olkin described panhandling as a gender issue that makes young women feel guilty and intimidated. She said that young women had told her that they give homeless people money because they don't know what to do when approached. Ms. Olkin related a story about her relationship with a mentally ill homeless person. She explained that she had recently taken the person out of jail and had acted as his advocate to get him the services he needs. Ms. Olkin suggested that other people advocate for the homeless as she has, and urged the Town Council to pass the ordinance so that people could feel safer.

MAYOR PRO TEM EVANS MOVED R-5, AND COUNCIL MEMBER VERKERK SECONDED.

Council Member Bateman asked Police Chief Gregg Jarvies to restate the problem. Chief Jarvies explained that the Police Department hears, and has heard for many years, that people are fearful because of the numbers of times and the manner in which they are approached Downtown by panhandlers. The Department has tried being more assertive in enforcing the aggressive panhandling ordinance that is on the books, Chief Jarvies said, but described the difficulty of prosecuting someone based on how someone else felt. That makes it difficult for an officer to enforce the law that is on the books, he said.

Council Member Bateman wondered what it was about the proposed ordinance that makes it a better solution than the aggressive panhandling ordinance. Chief Jarvies replied that the proposed ordinance focused on the solicitor's conduct whereas the aggressive panhandling ordinance requires evidence that the person approached felt intimidated. With the new ordinance the officer only has to witness a solicitation for money, Chief Jarvies said.

Council Member Kleinschmidt stated that the proposed ordinance would allow the police to arrest a panhandler whether or not there is the presence of fear. He said that this was broader than the stated intent. Chief Jarvies proposed that the ordinance would deter acts that create fear and that many of the people who panhandle would adhere to it. Council Member Kleinschmidt wondered if it really would deter anyone inclined to violate the present ordinance. Chief Jarvies repeated that he thought it would.

Council Member Kleinschmidt ascertained that a police officer would be the chief witness in this case. The officer would be the one to testify in court that s/he had received information that the act was done at night by someone who directly approached someone else, he said. Council Member Kleinschmidt agreed that this was something an officer could observe and testify to, as opposed to testifying about someone's fear, which they cannot do. He argued, though, that since the question hinges on whether or not a person's fear is reasonable, it makes it an objective test. Chief Jarvies said that the Department feels the proposed ordinance meets those objective standards. "As does the original," said Council Member Kleinschmidt.

Mayor Foy remarked that the Chief was saying the new ordinance was more objective because it was based on witnessing someone's behavior rather than asking about someone's subjective feeling. Mayor Foy then noted a misperception about how the law is being enforced in Orange County. With regard to the concern about the fine/penalty, he said, there is a Community Resource Court that brings services to people rather than churning them through the criminal justice system. He said that panhandlers do not get services, such as Department of Social Services or the Orange-Person-Chatham Mental Health, because they are in difficult situations. Mayor Foy described this as a very successful and good way to deal with repetitive, low level criminal behavior. He said that what the ordinance says about the penalty or fine is not the way it actually plays out in the County courts.

Council Member Strom spoke against the motion, noting that people on both sides were calling for a process whereby more conversations could occur and solutions could come to the surface. Putting the solution before the process would be an error, he said, and probably would be ineffective. Council Member Strom said that this was not about whether or not the Town could do something but about whether or not it was the right approach for the community. He noted that the Downtown police force had not grown since 1984, and argued that the Town should help with recruitment. Council Member Strom asked Council members to engage in more discussion rather than making such a departure on a 5-4 vote.

Council Member Ward asked if Council Member Strom was making a substitute motion.

COUNCIL MEMBER STROM MOVED THAT THE COUNCIL TAKE NO ACTION AND SET IN MOTION A PROCESS BY WHICH THE TOWN CAN COME TOGETHER AND TALK ABOUT PANHANDLING DOWNTOWN. THE PROCESS SHOULD BE SIMILAR TO THAT WHICH THE TOWN UNDERTOOK AFTER HALLOWEEN TWO YEARS AGO WHEN THERE WAS A NEED FOR CONVERSATION AND CORRECTIVE ACTION.

Mayor Foy stated that he would support that but that he also supported the ordinance. He did not see the two as mutually exclusive, he said.

Mayor Foy objected to the perception that all panhandlers are homeless and all homeless people are panhandlers. Panhandling can continue all day long, he pointed out, arguing that it is not unreasonable to place limitations on it at night. "This is not an abrogation of people's rights," said Mayor Foy. "Everyone has limitations on all of their rights. And I don't think that there is an unlimited right to panhandle 24 hours a day, 365 days a year, in this community. It's reasonable to regulate this behavior." Mayor Foy described enacting the ordinance and bringing resources to people as legitimate parts of a solution. He was willing to take that step this evening, he said, and also willing to take the step that Council Member Strom had suggested.

COUNCIL MEMBER KLEINSCHMIDT SECONDED COUNCIL MEMBER STROM'S SUBSTITUTE MOTION.

Council Member Bateman noted that the Town had set up a task force, as a companion action, at the time that they passed the first ordinance.

Council Member Kleinschmidt explained that he supported the substitute motion because it is best not to try solving a problem before the problem has been defined. Also, he said, the proposed ordinance had come before the Council so fast that there had not been sufficient public discussion. Council Member Kleinschmidt argued that the substitute motion proposed the appropriate first step since there seemed to be nothing close to consensus in the community on the solution.

Council Member Ward said that he was in support of a process to flesh out options to address this issue, but also saw the ordinance as an appropriate step. Otherwise, he said, the Council would be advancing an addition to the current ordinance, which is "a clumsy tool at best."

Council Member Wiggins asked the Manager if there had been a report from the task force that Council Member Bateman had mentioned. She added that this topic did not feel new or rushed to her. It had been before Council members for a number of years, she said.

Mayor pro tem Evans added that she thought there were several reports in existence. She noted that the issue was older than some Council members. Council Member Kleinschmidt injected that in fact he would be 33 years old the next day. Mayor pro tem Evans attempted to clarify by stating she meant older than the tenure of some Council members. She stated she had been receiving complaints regarding panhandling from summer camps for years. Mayor pro tem Evans acknowledged that the solution would have to be far more complex than the ordinance alone. This is a small step toward addressing a big issue, she said. She recommended working with the Chamber on some of their proposals.

Council Member Strom remarked that summer campers come Downtown during the daytime. He predicted that this ordinance would have no impact on that situation. Council Member Strom recommended supporting the Police Chief in this budget cycle by getting more police Downtown on a regular basis.

Council Member Verkerk explained that she would vote in favor of the ordinance because it shifts the responsibility for witnessing to the police, making it more objective. Her concerns had been laid to rest by tonight's discussion, she said.

Council Member Verkerk suggested moving on and Mayor Foy restated the substitute motion.

COUNCIL MEMBER STROM MOVED, SECONDED BY COUNCIL MEMBER KLEINSCHMIDT, TO ENGAGE IN A PROCESS TO DISCUSS WHAT KINDS OF EFFORTS MIGHT BE MADE TO DEAL WITH PANHANDLING AND OTHER SAFETY ISSUES DOWNTOWN AND TO DEFER CONSIDERATION OF THIS ORDINANCE. THE MOTION FAILED (4-5) WITH COUNCIL MEMBERS KLEINSCHMIDT, STROM, WARD AND HARRISON VOTING AYE AND COUNCIL MEMBERS EVANS, WIGGINS, VERKERK, BATEMAN, AND FOY VOTING NAY.

MAYOR PRO TEM EVANS’ MOTION REMAINS THE MAIN MOTION.

Council Member Kleinschmidt commented that fear had been identified as the problem but that the proposed solution does not ask if someone was afraid. So it does not address the stated primary reason for regulating the behavior, he said. Council Member Kleinschmidt stated that the ordinance creates a new criminal act that leaves to law enforcement officials the necessity of engaging in some kind of profiling based on what the person asking for money looks like. The ordinance is too broad, he said, because it does not even ask if the person panhandled is afraid. Council Member Kleinschmidt described the ordinance as "a lot of talk and no action."

Council Member Ward explained that he would change his vote in favor of the ordinance because he believed that it would withstand constitutional challenges. He agreed that a ban on nighttime vocal appeals would not address many of the security and safety concerns that the Council had heard from citizens. But he would vote in favor of it, he said, because the Police Chief believes it will significantly improve the ability to reduce the nighttime encounters that intimidate too many citizens. Secondly, Council Member Ward said he wanted to express support for the rights of all people to feel safe Downtown. "They have rights as well," he said. Council Member Ward added that he looked forward to working to ensure a greater police presence Downtown, as well as with area service agencies to address the needs of the poor and homeless in the community.

Council Member Harrison said that he had been ready to vote for this ordinance until he read the memo from Ms. Greene and Mr. Willis. There are many occasions when the Council legislates based on people's fears, he said. Council Member Harrison stated that he would likely oppose the ordinance if he were not a Council member. If the ordinance is challenged legally, he would not vote to defend it, he said. Council Member Harrison explained that he would vote in favor of the ordinance, but reluctantly.

Council Member Wiggins stated that she would vote in favor of the ordinance, as she had on the first reading. She explained that her vote would not be against panhandlers and that she would never vote for a motion to remove them from the community. This ordinance only restricts the active solicitation by panhandlers at night, she said, arguing that it is a reasonable action to take in response to so many citizens' concerns. The ordinance does not forbid panhandling at night, she pointed out. Council Member Wiggins remarked that she was extremely sensitive to disadvantaged people, since she had often been among that group. She described this as a behavioral issue, not one of race.

THE MAIN MOTION WAS ADOPTED (7-2) WITH COUNCIL MEMBERS KLEINSCHMIDT AND STROM VOTING NAY.

AN ORDINANCE AMENDING CHAPTER 11 OF THE CODE OF ORDINANCES REGARDING REGULATION OF AGGRESSIVE PANHANDLING (2003-03-24/O-5)

BE IT ORDAINED by the Council of the Town of Chapel Hill as follows:

Section 1. Article XVII, Chapter 11 of the Town Code is hereby revised to read as follows:

“ARTICLE XVII. REGULATION OF AGGRESSIVE PANHANDLING

Sec. 11-170. Begging, panhandling, or soliciting contributions.

(a) Definitions:

(1) To beg, panhandle, or solicit contributions shall be defined to include, without limitation, the spoken, written, or printed word or such other acts as are conducted in furtherance of the purpose of obtaining contributions;

(2) Accosting another person shall be defined as approaching or speaking to someone in such a manner as would cause a reasonable person to fear imminent bodily harm or the commission of a criminal act or damage to property in his immediate possession;

(3) Intimidate another person shall be defined as acting in such a way as would cause a reasonable person to fear bodily harm and therefore to do something he or she would not otherwise have done;

(4) Forcing oneself upon the company of another person shall be defined as:

(i) Continuing to request or solicit contributions in close proximity to the person addressed after that person has responded negatively;

(ii) Blocking the passage of the person addressed; or

(iii) Otherwise engaging in conduct which reasonably could be understood as intended to force a person to accede to demands.

(5) Public place shall be defined to include streets, highways, and roadways (including the shoulders and medians), sidewalks, alleys, and other public property, as well as town-owned and town-controlled property and private property open to the public unless permission to solicit has been obtained from the town or from the property owner or other person in authority.

(6) Vocal appeal shall be defined as begging, panhandling, or solicitation of contributions by spoken word or other verbal request. This shall not include the act of performing music with a sign or other indication that a contribution is being sought, without any vocal request other than in response to an inquiry.

(7) Direct written appeal shall be defined as begging, panhandling, or solicitation by handing to a person or attempting to hand to a person a written solicitation for immediate contributions.

(8) Nighttime shall be defined as the time from dusk to dawn.

(b) No person shall beg, panhandle, or solicit contributions in a public place in a manner so as to intimidate another person or by accosting another person, or by forcing oneself upon the company of another person.

(c) No person shall beg, panhandle, or solicit contributions from another person within twenty (20) feet of an entrance or exit of any bank or financial institution or within twenty (20) feet of any automated teller machine.

(d) No person shall beg, panhandle, or solicit contributions in any public transportation vehicle owned or operated by the Town of Chapel Hill or at any station for such vehicle or within six (6) feet of a bus stop sign, bus stop shelter, or bus stop bench.

(e) No person shall beg, panhandle, or solicit contributions while sitting or standing on a roadway or the shoulder or median of a roadway.

(f) No person shall beg, panhandle, or solicit contributions in a public place by vocal appeal or direct written appeal during nighttime.

~~(f)~~ (g) Violation of this section shall constitute a misdemeanor and shall subject the violator to a fine of not more than fifty dollars ($50.00) or imprisonment for not more than seven (7) days.

Section 2. This ordinance shall become effective the twenty-fourth day of March, 2003.

This the 3^rd day of March, 2003. (FIRST READING)

This the 24^th day of March, 2003. (SECOND READING)

COUNCIL MEMBER BATEMAN MOVED, SECONDED BY COUNCIL MEMBER VERKERK, THAT THE COUNCIL DIRECT THE MANAGER TO WORK WITH THE CHAMBER OF COMMERCE, SOCIAL SERVICE AGENCIES, UNC, AND DOWNTOWN COMMISSION REPRESENTATIVES TO HAVE A COHESIVE, HOLISTIC APPROACH AND DIALOGUE CONCERNING THE ISSUES OF DOWNTOWN AND THE HOMELESS AND/OR PANHANDLERS THERE, AS AMENDED BY COUNCIL MEMBER KLEINSCHMIDT THAT THE CONVERSATION INCLUDE THE OFFICE OF GREEK AFFAIRS AND ANY OTHER RELEVANT UNC OFFICIALS TO ALSO ADDRESS INAPPROPRIATE BEHAVIOR BY STUDENTS THAT CREATES FEAR AND OFFENSIVENESS, AND AMENDED BY COUNCIL MEMBER STROM TO RECEIVE A REPORT FROM CHIEF JARVIES AS TO THE TIME ALLOCATION OF OFFICERS ASSIGNED TO THE DOWNTOWN SQUAD. THE MOTION WAS ADOPTED UNANIMOUSLY (9-0).

Item 7 - Report from Solid Waste Advisory Board

Due to the late hours, Council members discussed deferring some items to a later date.

Council Member Bateman proposed discussing, but not hearing, the full report from the Solid Waste Advisory Board (SWAB).

Mayor Foy gave a brief synopsis of the SWAB report, explaining that there were three possible ways of funding. The SWAB was discussing the possibility of bridge funding, as well as long-term funding, to make up for the gap in tipping fees, he said. Mayor Foy noted that this would leave a budget shortfall for the entire County with regard to recycling.

SWAB Chair Jan Sassaman explained that they were proposing a comprehensive, pre-paid, solid waste services fee that would vary with customer class. The fee would include a base amount to cover services available to all the so-called universal services, he said.

Mayor Foy drew the Council's attention to page 21 of the SWAB report. He noted the five potential funding options listed there: an availability fee, a straight property tax, a solid waste district tax, a blend of taxes and availability fees, and a prepaid comprehensive solid waste availability fee. Dr. Sassaman stated that those were the five the SWAB Board had considered. They had unanimously recommended the prepaid, comprehensive, solid waste availability fee, he said.

Council Member Strom asked if this would be the right time tell the Board if Chapel Hill wanted different curbside options, such as using recycling roll-out carts and having mixed paper picked up at the curb. Solid Waste Director Gayle Wilson replied that the Town was not being presented with a menu from which it might shop for services. Changes in services would be uniform to all the municipalities, he said, stressing that they could not be tailored for each community. Mr. Wilson stated that tonight's proposal was a way to fund existing and future services, which are broadly defined. He explained that details, such as what type of container, would be worked out later.

Council Member Strom inquired about the process, and Dr. Sassaman explained that the Town had made its recommendation to the County Commissioners, whose hands it was now in. He expressed hope that there would be a process for educating the various stakeholders, such as the Town of Chapel Hill. Council Member Strom suggested conveying to the County Commissioners that a fee for service should allow the Town to get the services it wants to receive. Rolling out trash and carrying out recycling is backwards, he said, adding that there should at least be an opportunity to roll out recycling. Council Member Strom added that leaving mixed paper at the curb would be a very desirable service if the Town were serious about reducing solid waste flows.

Dr. Sassaman agreed that the area should do anything it can to increase the rate of recycling. But Orange County is the first county in the State to reach the 40.1% recycling per capita rate, he pointed out. Dr. Sassaman explained that the County's goal is 60% and that it will encourage citizens to recycle and will provide opportunities for them to do so. But the County will have to find a way of financing that, Dr. Sassaman said.

Mayor pro tem Evans asked if the recycling facilities in Town would be closed. Dr. Sassaman replied that, if anything, the number of recycling options would increase. Mayor pro tem Evans commented on the need to educate citizens, many of whom believe the Town makes money by recycling. Mayor pro tem Evans asked what had happened to the notion of regionalism and cooperation with adjoining counties. Dr. Sassaman replied that there still were discussions underway regarding that, but that tonight's recommendation addresses funding some way to finance the operations of the solid waste enterprise.

Mayor pro tem Evans wondered why the Town would not use Durham's recycling and transfer station. Principal Planner Gene Poveromo replied that the plan did not preclude doing that. It does not restrict going in that direction, he said, but it will take a while to work that out.

Mayor pro tem Evans advised the Board to encourage the County Commissioners to look at regional cooperation as a way of saving taxpayers' money. She also inquired about the cost of land for a transfer station and wondered about using the Greene Tract. Mr. Wilson replied that no site had been finalized for the transfer station. The staff had proposed land on Eubanks Road, he said. Mr. Wilson emphasized that the Greene Tract would not be considered for a transfer station or any other solid waste facility.

Council Member Ward asked where Pay-As-You-Throw would fit into the plans. Dr. Sassaman replied that if the Town desired to have such as system for collection that would be fine. He noted that the SWAB recommendations did not address solid waste collection, but only the handling of recycling and disposal of solid waste. Collection of garbage and delivering it to landfill facilities is a function of Town and the County public utilities, Dr. Sassaman said.

Mayor Foy thanked the SWAB Board representatives and explained that they would carry the Council 's comments back to the County Commissioners. He noted that an upcoming Assembly of Governments meeting would be an appropriate time for the Council to directly communicate some of their concerns to the Commissioners. These might include what kind of service enhancements the Town can expect in exchange for this new revenue source, Mayor Foy said. Dr. Sassaman pointed out that the Carrboro Board of Aldermen was planning to hold advisory and public meetings and to bring this issue to the Assembly of Governments meeting.

COUNCIL MEMBERS AGREED BY CONSENSUS TO PUT THE SWAB ITEM ON THE AGENDA FOR THE UPCOMING ASSEMBLY OF GOVERNMENTS MEETING.

Mayor pro tem Evans requested that the staff guide the Council on questions to ask the County Commissioners. Mr. Horton suggested that the Council refer the SWAB report.

MAYOR PRO TEM EVANS MOVED, SECONDED BY COUNCIL MEMBER STROM, TO REFER THE SWAB REPORT AND THE COUNCIL'S COMMENTS AND QUESTIONS TO THE MANAGER. THE MOTION WAS ADOPTED UNANIMOUSLY (9-0).

Item 8 - Marriott Residence Inn Hotel – Application for Special Use Permit

for Planned Development-Mixed Use

Mayor Foy explained that the public hearing on this matter had been closed and that the Town was considering a resolution, which would grant the Special Use Permit (SUP). Mr. Horton suggested that the staff outline key points and that the Council hear from the applicant regarding the proposed stipulations.

Town Planning Director Roger Waldon explained that the resolution includes what the staff believes the Council had instructed them to include in the stipulations. He indicated the ideas offered about the cross-section at Dobbins Drive.

Mayor Foy asked if the applicant had any comments regarding the stipulations. Scott Radway, representing the applicant, stated that the applicant agreed to the specific language of most of the new stipulations but wanted to discuss stipulations 6, 9 and 39.

Mr. Radway stated that the applicant agrees in concept with stipulation 39, regarding HVAC systems. They believe there should be performance-based criteria requiring conformance with the very stringent standards of the Town's Noise Ordinance, he said. Therefore, Mr. Radway continued, the applicant does not believe the Town should prescribe a specific system in the way that stipulation 39 does.

With regard to stipulation 9, Mr. Radway said that the applicant concurs with Council Member Harrison that a 30-foot pavement area would be better than 26 feet. However, it is the NCDOT that determines the pavement width and the applicant has no control over it, he said. The applicant agreed with the Town Manager's recommendation on page three of tonight's memo, Mr. Radway said, adding that stipulation 9 should be adopted with a 26-foot light pavement requirement.

With regard to stipulation 6, Mr. Radway said that the applicant agrees with the staff position and the Manager's recommendation to the Council dated March 3, 2003. At that time, the Manager had commented that there was not enough information in the traffic impact analysis to recommend a stipulation that would withhold the issuance of occupancy permits if the construction of the superstreet is not completed, he said. Mr. Radway noted that the traffic consultant had stated that additional traffic from the Residence Inn would be so small as to be unnoticeable. Other road improvements will significantly improve traffic conditions prior to the superstreet, Mr. Radway pointed out. He asked the Council members to remove stipulation 6.

Mayor Foy clarified that the applicant accepted all of the stipulations in Resolution 7, except 6, 9 and 39. Mr. Radway replied that the applicant wanted stipulation 6 removed, stipulations 9 written as 26 feet, and 39 to include the following: "that the heating and air conditioning system be subject to Town Manager approval and comply with the Chapel Hill Noise Ordinance. An analysis of the proposed system and its noise characteristics shall be submitted to and approved by the Manager before issuance of a Zoning Compliance Permit." Mr. Radway explained that this would allow the applicant to take advantage of available technology and provide the best product.

Mayor Foy ascertained that all of the other stipulations were acceptable as written. He asked Mr. Horton to comment on the substitute language for stipulation 39. Mr. Horton explained that the Town had inserted "or the equivalent or a better system." So he was in agreement in general with Mr. Radway's suggestion and that specifying any particular piece of equipment borders on the impractical.

Council Member Kleinschmidt asked how Mr. Radway's request differed from the resolution. Mr. Horton replied that he, too, would like to better understand the applicant's objection. Mr. Radway explained that stipulation 39, as written, describes a specific type of system that should be used in this facility, when there might be better solutions and changes over time that would be improvements.

Mayor Foy asked why the applicant did not consider "or the equivalent or better system" to be adequate wording. Mr. Radway replied that it is everyone's understanding that the applicant has the option to provide performance-based alternatives for the Manager's review. Mayor Foy remarked that this seemed clear from the language. Mr. Horton said that this had been his intent.

MAYOR PRO TEM EVANS MOVED R-7 WITH STIPULATION 6 DELETED AND STIPULATION 9 AMENDED TO 26 FEET. COUNCIL MEMBER VERKERK SECONDED.

COUNCIL MEMBER BATEMAN OFFERED A SUBSTITUTE MOTION TO AMEND STIPULATION 9 TO 26 FEET.

Mayor Foy pointed out that the substitute motion differs from the main motion in that stipulation 6 would remain.

COUNCIL MEMBER KLEINSCHMIDT SECONDED THE SUBSTITUTE MOTION.

THE MOTION WAS ADOPTED (6-3) WITH COUNCIL MEMBERS VERKERK, EVANS AND FOY VOTING NAY.

Council Member Harrison noted that the agreement between NCDOT, the Town, and the applicant had produced a version of Dobbins Drive, clearly a local collector street, which does not meet the Town standard. He added that Dobbins Drive does meet standards for the basic urban cross-section of a DOT road (two 13-foot lanes), which is tight when a bus and bicycle are in the same lane. Council Member Harrison predicted that Dobbins Drive would be a substandard road. Mayor Foy asked Council Member Harrison if he wanted to amend the motion. Council Member Harrison replied that this project, with the 26-foot width, had been programmed and that there was nothing he could do but express displeasure.

Council Member Harrison agreed with the motion's support for stipulation 6, noting that Mr. Radway had submitted a January 8, 2003 letter to the Town Council that concluded with a statement from the TTA. That statement predicted that Residence Inn traffic would have minimal impact with the improvements associated with the superstreet, the Dobbins Drive/Irwin Road project, and the improvements deemed necessary regardless of whether the site is built or not. Council Member Harrison pointed out that one cannot contend that the traffic impact would be minimal if any of those elements is left out. That is why he would support this motion, Council Member Harrison said.

Gene Singleton, the applicant, commented that his project would not be feasible if tied to the superstreet as written. To require that would be the same as voting against the project, he said. Council Member Wiggins asked why that was so. Mr. Singleton explained that the project could not be financed if dependent on DOT finishing the road. The project could be half done and DOT might stop, he said. Council Member Harrison replied that the DOT’s chief engineer for the TIP, who had more than 20 years experience, had told last month’s meeting of the NC League of Municipalities’ Transportation Committee that he had never seen a project stopped mid-process. Mr. Singleton repeated that he would not be able to get financing under these terms. The details in the conclusions of both reports state that traffic will be better because of other improvements even without the superstreet, he said. Council Member Harrison disagreed that the reports said that.

Council Member Verkerk objected to adding stipulation 6. "If you don’t want to approve the project, then just don't approve it," she said, because adding that stipulation will just tie the developer up. Council Member Verkerk noted that the Council had not asked other developers in the area for that sort of stipulation. "If you don't like the project, turn it down. But don't tie it up in so many chains that it is going to fail anyway," she said.

Mayor pro tem Evans suggested tying the project to a specific completion date during the time in which the Town expects the superstreet to be completed. Mr. Horton replied that the Council could insert a stipulation saying, "construction may not begin prior to…" and a specific date. He added that the Council could also write that construction must begin no later than a certain date and that it must be completed no later than X number of years after it started.

Mayor pro tem Evans inquired about the dates for the superstreet. Mayor Foy suggested that the staff work on that while Council members continue to offer comments.

Council Member Harrison read from a memo from a DOT design engineer that gave the right-of-way date of September 2003. The project would most likely be let for construction in November 2004 and be completed in 2006, said Council Member Harrison. Council Member Ward suggested tying the date to occupancy and traffic generation rather than to construction. Mr. Horton agreed that it could be written in to specify that no certificate of occupancy would be given prior to a date certain.

While the staff was deciding on language, Council members discussed the remaining agenda. Mayor Foy noted that three people had signed up to speak on Item 9. He asked Council members how they would like to proceed on Items 9 and 10. Council Member Bateman recommended reaching decisions on both of them.

With regard to R-7, Mr. Horton suggested modifying stipulation 6 as follows: "No certificate of occupancy would be issued for any part of this development until November 1, 2006." Mayor Foy invited the applicant to comment on that language. Mr. Singleton said that the amount of time was unreasonable for putting a $10 million project on hold on a $1 million piece of land. He requested the earliest possible date, which is November 2005, adding that even March 2006 would be more reasonable than November. Mr. Singleton asked Council members to help him out if this was a project that they wanted. Mayor Foy clarified that Mr. Singleton was rejecting the proposed stipulation. Mr. Horton pointed out that the Council would also need to modify stipulation #1 to say "and be completed by November 1, 2006."

Council Member Harrison explained that the November 2006 date had been based on a bad winter for construction. August 2006 would be okay, he said.

The Council agreed by consensus to use the suggested August 2006 date. Mayor Foy stated that this would now be the date inserted in stipulations 1 and 6. Mr. Horton pointed out that if the superstreet were completed earlier than that then the date would be moot. Therefore, the stipulation should say "until superstreet improvements are completed or until August 1, 2006," he said.

Council Members Bateman and Kleinschmidt accepted the amendment.

COUNCIL MEMBER BATEMAN MOVED, SECONDED BY COUNCIL MEMBER KLEINSCHMIDT, TO ADOPT R-7 WITH STIPULATION NINE CHANGED TO 26 FEET, AS AMENDED TO SAY "NO CERTIFICATE OF OCCUPANCY WOULD BE ISSUED FOR ANY PART OF THIS DEVELOPMENT UNTIL SUPERSTREET IMPROVEMENTS ARE COMPLETED OR UNTIL AUGUST 1, 2006. THE MOTION WAS ADOPTED (5-4) WITH COUNCIL MEMBERS WIGGINS, HARRISON, WARD, EVANS AND BATEMAN VOTING AYE AND KLEINSCHMIDT, FOY, STROM AND VERKERK VOTING NAY.

A RESOLUTION APPROVING AN APPLICATION FOR A SPECIAL USE PERMIT/ PLANNED DEVELOPMENT-MIXED USE FOR THE MARRIOTT RESIDENCE INN HOTEL (2003-03-24/R-7)

BE IT RESOLVED by the Council of the Town of Chapel Hill that it finds that the Special Use Permit/Planned Development-Mixed Use application proposed by Summit Hospitality Group, Ltd., on property identified as Chapel Hill Township Tax Map 27, Block A, Lot 3 (PIN # 9799-48-0252), if developed according to the site plan dated January 13, 2003, and the conditions listed below, would:

1. Be located, designed, and proposed to be operated so as to maintain or promote the public health, safety, and general welfare;

2. Comply with all required regulations and standards of the Land Use Management Ordinance, including all applicable provisions of Articles 3 and 5, the applicable specific standards in the Supplemental Use Regulations (Article 6), and with all other applicable regulations;

3. Be located, designed, and proposed to be operated so as to maintain or enhance the value of contiguous property; and

4. Conform with the general plans for the physical development of the Town as embodied in the Land Use Management Ordinance and in the Comprehensive Plan.

BE IT FURTHER RESOLVED that the Town Council hereby approves the application for the Special Use Permit/Planned Development-Mixed Use for the Marriott Residence Inn Hotel development in accordance with the plans listed above and with conditions listed below:

Stipulations Specific to the Development

1. That construction begin by March 24, 2005 and be completed by August 1, 2006.

2. Land Use: That this Special Use Permit authorizes the construction of a Planned Development – Mixed Use including the following:

A. A three-story hotel building and associated one-story guest check-in building containing no more than 73,120 square feet of floor area, and a maximum of 108 lodging units. Use of the guest check in building shall include a hearth room, meeting room, exercise room, lobby/vestibule, front desk area, administrative offices, limited food service facilities, housekeeping, maintenance and associated employees and utility areas.

B. A two-story building including 3,000 square feet of general office floor area on the ground floor and 3,000 square feet of residential floor area, consisting of four one-bedroom dwelling units on the second floor.

C. Associated recreational amenities including a pool.

D. This approval does not authorize a restaurant.

E. Extended-Stay Facility: The hotel shall be an extended-stay hotel facility containing lodging units which include independent kitchen facilities and which are designed and marketed to the public for occupancy primarily for periods of five nights (one business week) or more. Any change to the use of the hotel facility from an extended-stay facility shall require Town Council approval of a Special Use Permit Modification.

3. Parking: That a maximum of 126 parking spaces shall be provided on the site. All parking lots shall be designed to Town standards.

4. Building Location and Height Limitations: No building shall be placed closer than 175 feet to the joint property line of the Marriott site and Summerfield Crossing, nor closer that 100 feet to any other property line and no building shall exceed 45 feet in height.

5. Taxation: That during any time this property is exempt from ad valorem property taxes, the owner shall make annual payments-in-lieu of property taxes, the amount to be determined based on a valuation determined by the Orange County Tax Supervisor and the applicable year’s established city and county tax rate.

Required Improvements

6. U.S. Hwy. 15/501: That no Certificate of Occupancy shall be issued for any part of this development until the Superstreet improvements at the intersection of U.S. 15-501 and Europa Drive/Erwin road, being designed and constructed by N.C. Department of Transportation, are completed and open to traffic, or until August 1, 2006, whichever is sooner.

7. Dobbins Drive Relocation and Reconfiguration: That public right-of-way be dedicated along Dobbins Drive to correspond with the North Carolina Department of Transportation’s plans for the relocation and reconfiguration of this roadway, and that the width of this right-of-way dedication be approved by NCDOT and the Town Manager, and the right-of-way dedicated, prior to issuance of a Zoning Compliance Permit.

8. Dobbins Drive Right-of-Way Dedication: That a 60-foot public right-of-way, or one-half of a 60-foot public right-of-way as applicable, be dedicated along Dobbins Drive prior to issuance of a Zoning Compliance Permit.

9. Dobbins Drive Realignment and Reconfiguration: That the portion of Dobbins Drive located west of Erwin Road (and along this property’s frontage) be realigned/reconfigured to line up with the eastern intersection of Dobbins Drive and Erwin Road. This realigned/reconfigured portion of Dobbins Drive shall be constructed to include 26 feet of pavement, curb and gutter, and a 5-foot concrete sidewalk along one side of the road. No Certificate of Occupancy would be issued for any part of this development until Superstreet improvements are completed or until August 1, 2006.

10. Dobbins Drive – Existing Portion (No Reconfiguration Needed): That the portion of Dobbins Drive that is not involved in the NCDOT reconfiguration project be improved to include curb and gutter, and a five-foot concrete sidewalk. These improvements shall be constructed prior to the issuance of a Certificate of Occupancy.

11. Bus Stop on Dobbins Drive: That the developer either provide a bus stop including a shelter, bench and 5-foot by 10-foot pad on Dobbins Drive once this road is reconfigured; or, that a payment-in-lieu be provided for this bus stop, at an amount to be approved by the Town Manager, prior to issuance of a Zoning Compliance Permit.

12. Sidewalk from Parking Lot to Dobbins Drive: That a sidewalk be constructed from the southern parking lot to Dobbins Drive, in order to provide a direct pedestrian connection to Dobbins Drive and the required bus stop.

13. Erwin Road Right-of-Way: That one-half of a 110-foot public right-of-way be dedicated along this property’s Erwin Road frontage, and that the location of this right-of-way be approved by the North Carolina Department of Transportation and the Town Manager, and the right-of-way dedicated, prior to issuance of a Zoning Compliance Permit.

14. Erwin Road Improvements: That Erwin Road be improved to provide 44 feet of pavement width along this site’s frontage, including a bicycle lane, a left turn lane, curb and gutter, a three-foot wide planting strip, and a five-foot wide concrete sidewalk. These improvements shall be constructed prior to the issuance of a Certificate of Occupancy.

15. Construction of Road Improvements/Payment In Lieu: That the applicant shall work with North Carolina Department of Transportation and the Town to construct improvements required by the Town and desired by North Carolina Department of Transportation. In the case of the Dobbins Drive realignment and Erwin Road improvements, the applicant shall provide a payment in lieu to the Town for forwarding to North Carolina Department of Transportation for the Town required improvements that exceed the improvements North Carolina Department of Transportation would otherwise make. For the “remainder of Dobbins Drive (the approximately 340 feet of Dobbins Drive not involved in the realignment) the applicant shall either construct the improvements required by the Town or make a payment in lieu should the Town or North Carolina Department of Transportation wish to construct these improvements.

16. Pedestrian Access: Sidewalks connecting the internal sidewalks on the site to external sidewalks on Erwin Road and Dobbins Road will be provided as well as a sidewalk connecting the parking areas on the southern side of the site directly to Dobbins Drive.

17. Bicycle Parking: That bicycle parking, as required by the Town’s Design Manual, will be provided. Three (3) Class I (enclosed) bicycle parking spaces and ten (10) Class II (stationary ‘U’ rack) bicycle parking spaces be provided on this site. Safe bicycle access to and from the hotel site will be provide.

Stipulations Related to State or Federal Government Approvals

18. Permits: That any required State permits or encroachment agreements be approved and copies of the approved permits and agreements be submitted to the Town of Chapel Hill prior to the issuance of a Zoning Compliance Permit.

Stipulations Related to Landscaping and Architectural Issues

19. Landscape Plan Approval: That a detailed landscape plan, landscape maintenance plan, and lighting plan be approved by the Town Manager prior to issuance of a Zoning Compliance Permit.

20. Landscape Protection Plan: That a Landscape Protection Plan be approved by the Town Manager prior to issuance of a Zoning Compliance Permit; and that the Plan include Town standard notes and details.

21. Required Buffers: That the following landscape bufferyards be provided; and if any existing vegetation is to be used to satisfy the buffer requirements, the vegetation will be protected by fencing from adjacent construction:

¨ Western Property Line (Summerfield Crossing): Type ‘C’ landscape bufferyard (minimum width 100 feet);

¨ Southern Property Line (Dobbins Drive): Type ‘D’ landscape bufferyard (minimum width 30 feet);

¨ Northern Property Lines: Type ‘C’ landscape bufferyard (minimum width 20 feet); and

¨ Eastern Property Line (along Erwin Road): Type ‘D’ landscape bufferyard (minimum width 50 feet);

Alternative buffers will not be permitted.

22. Tree Protection Fencing: That tree protection fencing shall be installed a minimum of 15 feet from the interior edge of the required western landscape bufferyard to protect the root systems of the landscape bufferyard vegetation, subject to Town Manager approval.

23. Buffer Adjoining Summerfield Crossing: A permanent deed restricted buffer of existing vegetation, a minimum of 100 feet in width, shall be created along the joint property line with Summerfield Crossing.

24. No Paths/Trails: No connector pedestrian paths or trails shall be permitted in the perimeter landscape bufferyard adjacent to Summerfield Crossing.

25. Preservation of 24-inch Cedar: That the 24-inch Cedar tree located in the southwest corner of the site adjacent to the southern detention basin be preserved.

26. Building Elevations: That the Community Design Commission approve building elevations, including the location and screening of all HVAC/Air Handling Units for this project, prior to issuance of a Zoning Compliance Permit.

27. Lighting Plan: That the Community Design Commission approve a lighting plan for this project prior to issuance of a Zoning Compliance Permit.

28. Building Lighting: No building mounted lighting will be placed on the sides or ends of the guest buildings where those facades face Summerfield Crossing.

29. Parking Lot Lighting: Parking lot lighting shall: a) Be designed to provide for the safe movement of hotel guests and employees; b) Use fixtures not greater than 15 feet in height with high pressure sodium lamps; c) Use cut-off or similar shield devices to prevent light spillage away from the parking lots; and d) Be consistent with the Town of Chapel Hill and Duke Power lighting standards.

Stipulations Related to Environmental Issues

30. Impervious Surface Limits: That the maximum amount of impervious surface area on the site shall not exceed 20% of the gross land area of the site.

31. Stormwater Flow and Site Disturbance-Northern Drainage Swale: The natural drainage swale passing from west to east across the northern portion of the site (and to the north of all proposed site disturbance shown on the accompanying Special Use Permit) shall be protected from encroachment during construction by tree protection fencing and other devices as approve by the Town of Chapel Hill.

32. Parking Lot on Northern Portion of Site: That the parking lot proposed to be located on the northern portion of the development be reduced in size or relocated, subject to Town Manager approval, and that the stormwater management plan include special attention to the stormwater run-off from this portion of the site to protect the northern drainage swale in the vicinity.

33. Land Disturbance in the Resource Conservation District: That land disturbance in the Resource Conservation District is prohibited in accordance with the rules and regulations of Article 5 of the Town’s Land Use Management Ordinance.

34. Stormwater Management Plan: That a Stormwater Management Plan shall be approved by the Town Manager prior to issuance of a Zoning Compliance Permit. The plan shall be based on the 1-year, 2-year, and 25-year frequency, 24-hour duration storms, where the post-development stormwater run-off rate shall not exceed the pre-development rate and the post-development stormwater runoff volume shall not exceed the pre-development volume for the local 2-year frequency, 24-hour duration storm event. Engineered stormwater facilities shall also remove 85% total suspended solids and treat the first inch of precipitation utilizing NC Division of Water Quality design standards.

Depending on the development site location, size in area and the condition of the existing conveyance system and associated lands, the Manager may waive or change the peak discharge rate criteria in part or in whole if, based on an approved Stormwater Management Plan, it is demonstrated that detention would intensify existing peak discharges or may cause other problems on abutting or downstream properties. In addition, the plans shall show all storm drainage outlets and address any impact the stormwater from these outlets may have on abutting properties.

35. Stormwater Easements: That the final plans and final plat include an easement titled “Reserved Storm Drainageway.” That the easement shall be included on all engineered stormwater features located above and below ground including pipes, streams, and ditches that carry water to and from abutting properties. The easement must be recorded prior to issuance of a Zoning Compliance Permit.

That unless specifically designated by the Town as “Public,” drainage features and infrastructure, within the “Reserved Storm Drainageway” shall be considered private and the responsibility of the property owner. That drainage easements are not required for drainage structures and conveyance systems that handle internal stormwater runoff within a single lot or parcel. This detail shall be noted on the final plans.

36. Performance Guarantee: That if more than one acre of land is disturbed, then a performance guarantee in accordance with Section 5-97.1 Bonds of the Town Code of Ordinances shall be required prior to final authorization to begin land-disturbing activities.

37. Erosion Control: That a detailed soil erosion and sedimentation control plan, including provision for a maintenance of facilities and modification of the plan if necessary, be approved by the Orange County Erosion Control Officer, and that a copy of the approval be provided to the Town Manager prior to issuance of a Zoning Compliance Permit.

38. Silt Control: That the applicant take appropriate measures to prevent and remove the deposit of wet or dry silt on adjacent paved roadways.

Stipulations Related to Utility and Service Issues

39. Heating/Air Conditioning System: That the heating/air conditioning system for the facility be a ductless split system unit with rotary compressor and noise abatement, or the equivalent or better system, subject to Town Manager approval, with dense shrubs planted adjacent to each compressor. The system shall comply with the Chapel Hill Noise Ordinance.

40. OWASA Sewer Connection: The hotel shall be developed so that sanitary sewer service shall not require the clearing of and use of the existing OWASA easement crossing Summerfield Crossing.

41. Utility Plan Approval: That the final utility plan be approved by Orange Water and Sewer Authority (OWASA), Duke Power Company, BellSouth, Public Service Company, Time Warner Cable, and the Town Manager before issuance of a Zoning Compliance Permit.

42. Underground Utilities: That all utility lines, other than 3-phase electric power distribution lines, shall be placed underground.

43. Fire Flow: That a fire flow report prepared by a registered professional engineer, showing that flows meet the minimum requirements of the Design Manual, be approved by the Town Manager prior to issuance of a Zoning Compliance Permit.

44. Sprinkler system: That a sprinkler system be provided in the proposed building, and that the Fire Marshal approve the Fire Department’s connections to the system prior to issuance of a Zoning Compliance Permit.

45. Fire Prevention: That all Fire Department safeguards and requirements be established and confirmed, and that the Department approve all fire hydrant locations, siamese connections, building evacuation capabilities, and fire truck access to the proposed building, prior to issuance of a Zoning Compliance Permit.

46. Location of Refuse Collection Facilities: That the refuse collection/recycling facility shall be relocated, away from the Summerfield Crossing neighborhood and the northern drainage swale, to a new location on the site subject to Town Manager approval.

47. Refuse Collection Facilities: That a minimum of two bulk refuse dumpsters be provided to service the site; or, alternative refuse collection facilities be proposed and approved by the Town Manager prior to the issuance of a Zoning Compliance Permit.

48. Solid Waste Management Plan: That a detailed solid waste management plan, including a recycling plan and a plan for managing and minimizing construction debris, be approved by the Town Manager prior to the issuance of a Zoning Compliance Permit.

Stipulations Related to Recreation Space

49. Recreation Space for Four One-Bedroom Dwelling Units: That residents of the four one-bedroom dwelling units shall have access to the recreational amenities associated with the hotel. That prior to the issuance of a Zoning Compliance Permit, the applicant shall submit to the Town Manager, for review and approval, a proposed deed guaranteeing use of the recreation facility by residents of the dwelling units. Deed shall include a provision allowing use of the recreation facility free of fees or cost to residents of the dwelling units.

Affordable Housing Stipulations

50. That the developer shall identify and reserve no fewer than one of the four one-bedroom dwelling units as an “affordable unit,” in accordance with the following conditions:

A. If the affordable unit(s) is provide for private ownership, such opportunity shall be provided in accordance with the following conditions:

§ That the affordable unit shall only be available for private ownership and occupancy.

§ That the affordable unit shall be priced so as to be affordable for Qualified Buyers. Qualified Buyers shall be defined as individuals or families with gross incomes equal to 80% or less of the median income for the Raleigh-Durham-Chapel Hill Metropolitan Statistical Area (MSA), as provided by the U.S. Department of Housing and Urban Development (HUD).

§ Each Qualified Buyer shall deliver to the Developer written evidence, acknowledged in writing by the Orange Community Housing Corporation (or alternative organization as approved by the Town Manager), that such buyer has been officially determined to be a Qualified Buyer.

§ That mechanisms shall be established to guarantee that the affordable unit shall be permanently affordable and available to Qualified Buyers, subject to the approval of the Town Manager and the Orange Community Housing Corporation (or alternative organization as approved by the Town Manager), prior to the issuance of a Zoning Compliance permit.

§ That the affordable unit shall be constructed and available for occupancy, prior to issuance of a Certificate of Occupancy for the hotel.

B. Alternatively, if the affordable unit(s) is provided for rental, such opportunity shall be provided in accordance with the following conditions:

§ That eligible renters for affordable dwelling units shall include families earning 80% or less of median 3-person family income for the Raleigh-Durham-Chapel Metropolitan Statistical Area (MSA). Section 8 vouchers will be accepted for these units.

§ That rental rates shall not exceed current Section 8 Fair Market rents (including utilities) as published by the U.S. Department of Housing and Urban Development, according to the number of bedrooms in each unit (e.g. 2002 rate: 2 bedroom unit, $777/month).

§ That the owner and management company enter into a “good faith” marketing agreement to ensure that the affordable units are rented to eligible low-income renters. The owner shall work with local non-profit low income housing organizations to advertise affordable units and recruit eligible renters. The “good faith” marketing agreement shall be subject to the approval of the Town Manager and the Orange Community Housing Corporation (or alternative organization as approved by the Town Manager) prior to the issuance of a Zoning Compliance Permit.

§ That the recorded deed restrictions shall include a provision that if after working with local non-profits, owner/management company are unable to recruit eligible renters, they may rent such units to other renters without restrictions for up to 12 months, if written authorization is provided in advance for such rental units from Orange Community Housing and Land Trust (or alternative organization as approved by the Town Manager) and approved the Town of Chapel Hill.

C. That the applicant shall record deed restrictions to ensure that the affordable units remain affordable in perpetuity to low income owners or renters, subject to approval by the Town Manager and the Orange Community Housing and Land Trust (or alternative organization as approved by the Town Manager), prior to the issuance of a Zoning Compliance Permit.

D. That the affordable unit(s) be constructed and available for occupancy prior to the issuance of a Certificate of Occupancy for the hotel.

Miscellaneous Stipulations

51. Detailed Plans: That final detailed site plan, grading plan, utility/lighting plans, stormwater management plan (with hydraulic calculations), landscape plan and landscape management plan be approved by the Town Manager before issuance of a Zoning Compliance Permit, and that such plans conform to the plans approved by this application and demonstrate compliance with all applicable conditions and the design standards of the Land Use Management Ordinance and the Design Manual.

52. Transportation Management Plan: That prior to issuance of a Zoning Compliance Permit, the applicant prepare a Transportation Management Plan for approval by the Town Manager. The required components of the Transportation Management Plan shall include:

1. Provision for designation of a Transportation Coordinator;

2. Provisions for an annual Transportation Survey and Annual Report to the Town Manager;

3. Quantifiable traffic reduction goals and objectives;

4. Ridesharing incentives;

5. Public transit incentives; and

6. Other measures determined appropriate by the Town Manager.

53. Construction Management Plan: That a Construction Management Plan, indicating how construction vehicle traffic will be managed, shall be approved by the Town Manager prior to the issuance of a Zoning Compliance Permit.

54. Construction Sign Required: That the applicant post a construction sign that lists the property owner’s representative, with a telephone number; the contractor’s representative, with a telephone number; and a telephone number for regulatory information at the time of issuance of a Building Permit. The construction sign may have a maximum of 32 square feet of display area and may not exceed 8 feet in height. The sign shall be non-illuminated, and shall consist of light letters on a dark background.

55. Continued Validity: That continued validity and effectiveness of this approval is expressly conditioned on the continued compliance with the plans and conditions listed above.

56. Non-severability: That the Council’s findings are expressly based on this permit and the approved development being completed in compliance with all of the conditions set out in this permit. Therefore, if any of the above conditions is held to be invalid, approval of this Special Use Permit in its entirety shall be void.

BE IT FURTHER RESOLVED that the Town Council hereby approves the application for a Special Use Permit/Planned Development-Mixed Use for the Marriott Residence Inn Hotel in accordance with the plans and conditions listed above.

This the 24^th day of March, 2003.

Item 9 - Response to Petition regarding Access to Chapel Ridge Development

Mayor Foy pointed out that the Council had been through this several times and so there was no need for another representation. Mr. Horton apologized to the residents who had not been notified in the past.

Robert Loomis, president of the Lake Ellen Homeowners Association, reaffirmed his neighborhood's safety concerns, which they had noted on November 13, 2000, when the Council approved the Chapel Ridge SUP. He said that the neighborhood had also expressed safety concerns in March when the Brookstone Apartments’ residents requested that Brookstone Drive be opened. He asked that Paul Wilson's analysis of Airport Road accident data be included in the record, or at least acknowledged and that the acknowledgement be included in the record.

Mr. Loomis discussed the congestion on Airport Road and the many hazardous entrances and exits near Northfield Drive. Nothing has been proposed to address safety concerns since the original approval was made, he said, adding that the issue of people getting off the bus and then crossing the road had been avoided. Mr. Loomis pointed out that pedestrians had been using the center lane as a refuge. He said that the Town had described the traffic analysis as difficult to understand and superficial. If so, he said, then the results of that traffic analysis are questionable. Mr. Loomis suggested that the new connection option might be the most practical and cost effective, noting that it had been taken out of the plan because of tree conservation concerns. He argued that this option would avoid creating new traffic problems on Airport Road and would reduce expected pedestrian/traffic conflicts. It would also limit Chapel Ridge traffic in Brookstone Apartments, Mr. Loomis said.

Herbert Slapo described Airport Road as a "no man's land for residents along its length." It does not take a genius, he said, to understand that a little imagination could lessen the problem. Mr. Slapo asked the Town Council to imagine how difficult the problem will be if Chapel Ridge residents use Brookstone Drive. Mr. Slapo suggested installing a traffic signal at Northfield and Airport Roads that will allow pedestrians to cross safely and residents of Chapel Ridge to properly access to Airport Road. He noted that Northfield Road was a public road that had been used as a private one by the Mercedes Benz facility. To create Chapel Ridge Apartments without its own access road is to eviscerate Brookstone Apartments and leave it without a reason to exist, he said. Mr. Slapo explained that people had been moving out of Brookstone Apartments because of the traffic that they expect to get from Chapel Ridge.

Brookstone resident Nancy Jeannechild listed her neighborhood's concerns: safety, traffic flow, noise from traffic, and the likelihood of loud music coming from students' cars. She described Brookstone Apartments as a very diverse community and asked for the Council's help in protecting it. Even though they rent their homes, she said, they care about their neighborhood. Ms. Jeannechild suggested that the Town compromise by leaving both roads open to see what will happen before making a permanent decision.

Blair Pollock expressed concern about increased traffic. He agreed that the Town should look at creating a "signalized/normalized" intersection between Critz Drive and Taylor Street when and if that property comes available. He requested that the Town continue to keep Northfield Road closed. If it becomes untenable then revisit it in a year or so, Mr. Pollock suggested.

John McCormick stated that Council members were well aware of the problems on Airport Road. He pointed out that Brookstone Drive had intentionally been left open as a public street to provide access to the tract being developed as Chapel Ridge. Mr. McCormick argued that nothing had changed in terms of balancing the safety factors that the Town had already decided on three times. He urged Council members to stick to what they have said, which is that access between Northfield Drive and Chapel Ridge would be limited to emergency access until the Town Council approves measures to address the safety of turning movements along Airport Road. Mr. McCormick urged Council members to hold their position until the situation has been improved.

Dave Stockman, speaking on behalf of the applicant, asked for closure on the road, noting that affordable units could be rented out soon. He pointed out that the staff had provided estimates on traffic and pedestrian signals, and that he had provided a check for the light at Northfield Drive. Mr. Stockman asked that the Town take action and move forward so that he can complete the Chapel Ridge project.

Council Member Verkerk recommended taking no action on Northfield Drive and continuing to work with Active Living by Design on the Airport Road study. She asked, however, for a stipulation that the developer provide a payment-in-lieu for the speed hump on Northfield Drive. Mr. Stockman disagreed with the suggestion, and Council Member Verkerk agreed that continuing discussions with the Manager regarding traffic calming would be sufficient.

Council Member Ward agreed with Council Member Verkerk’s suggestion to take no further action.

Mayor pro tem Evans read a section of a letter from the NCDOT, which said that they would study Airport Road again if development continues and the situation changes. She noted that opening Northfield Road might cause them to study it. Mayor pro tem Evans remarked that the language of the Chapel Ridge SUP gives the Council authority to approve a Northfield Drive entrance to Chapel Ridge. She argued that it was unfair to put all of the traffic through a rental community that tends to be underrepresented. Mayor pro tem Evans recommended that the Council allow Northfield Drive to open, have a true evaluation by Active Living by Design, and maybe even get a recommendation from NCDOT as to what they can do to meet the demand that will exist.

Council Member Bateman argued that if the Council had acted in the past in the way that Mayor pro tem Evans was suggesting they do now then none of the lanes and signals would exist at Meadowmont. "You don't have to have the cars on the road before NCDOT does something," she said, emphasizing that Airport Road was hazardous. Council Member Bateman stressed that Airport Road needed another traffic signal and median. Until the traffic study has been completed, she said, she intended to stick with her decision to take no further action.

Council Member Strom called the question. Council Member Harrison said that he was not ready to stop discussing the issue.

COUNCIL MEMBERS AGREED BY CONSENSUS (6-3) TO CLOSE THE DEBATE, WITH COUNCIL MEMBERS BATEMAN, FOY, KLEINSCHMIDT, STROM, VERKERK, AND WIGGINS VOTING AYE, AND COUNCIL MEMBERS HARRISON, WARD AND EVANS VOTING NAY.

COUNCIL MEMBER VERKERK MOVED, SECONDED BY COUNCIL MEMBER WARD, TO TAKE NO ACTION. THE MOTION WAS ADOPTED (7-2), WITH COUNCIL MEMBERS HARRISON AND EVANS VOTING NAY.

MAYOR PRO TEM EVANS MOVED, SECONDED BY COUNCIL MEMBER WIGGINS, TO ADJOURN THE MEETING, DUE TO THE LATE HOUR. THE MOTION WAS ADOPTED (6-3), WITH COUNCIL MEMBERS HARRISON, WARD AND STROM VOTING NAY.

The meeting adjourned at 11:25 p.m.

This the 24th day of March, 2003.

This the 24^th day of March, 2003.