SUMMARY MINUTES OF A BUSINESS MEETING
OF THE CHAPEL HILL TOWN COUNCIL
MONDAY, MARCH 3, 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, Fire Chief Dan Jones, Police Chief Gregg Jarvies, Traffic Engineer Kumar Neppalli, Planning Director Roger Waldon, Principal Planner Gene Poveromo, Police Legal Advisor Terrie Gale, Housing Director Tina Vaughn, and Town Clerk Joyce Smith.
Item 1 - Ceremonies: None.
Item 2 - Public Hearings
Potential Legislative Requests
Mr. Horton explained that the Town Attorney would make a presentation and then Fire Chief Dan Jones would recommend steps for ensuring safety in bars and clubs.
Town Attorney Ralph Karpinos stated that the Council had listed the following topics for discussion as part of its Legislative Program for 2003:
· Seek a Bill to Establish a Utility Tax District.
· Request Increased State Staffing for Sedimentation and Erosion Control Enforcement.
In addition, Mr. Karpinos said, the Council had considered pursuing the following legislative interests if opportunities become available:
· Common Funding Source for Transportation Infrastructure Needs.
· Equity of funding for Orange County within Highway Division 7.
· Protection of Town Revenues.
· Tax on Tickets to University Athletic Events.
· Increase in the Beer and Wine Tax.
· Real Estate Transfer Tax.
· Mandatory Program for Recycling of Bottles and Cans.
· Vehicle License Requirement for University Students.
· Investment Tax Credits for Developers Who Build Affordable Housing.
Mr. Karpinos explained that the proposal before the Council included an opportunity for a "blank bill." He mentioned a report coming back to the Council on March 24, 2003, might recommend legislation that would allow the Town to provide campaign finance assistance to candidates for Town office. Mr. Karpinos added that the blank bill would give the Council an opportunity to consider asking for that legislation, if the March 24 report recommends it. He pointed out that the blank bill would also provide an opportunity to make a proposal along the lines that Chief Jones would suggest.
Mr. Horton explained that the Council's normal practice would be to hold a public hearing if they wish to pursue Chief Jones' recommendations.
Chief Jones proposed requiring sprinkler systems in public assembly occupancies, such as bars, clubs, and restaurants. He explained that this would apply in any public assembly occupancy rated for 50 or more people that sells alcohol as part of its services. Buildings would be retrofitted with sprinkler systems over a five year period or so, Chief Jones said. He also suggested expanding the definition to include dance halls, pool and billiard parlors, and music clubs. Chief Jones described the proposal as the single most effective way to prevent a tragedy such as the recent fire in a Rhode Island nightclub.
Council Member Kleinschmidt inquired about the distinction between places that sell alcohol and those that do not. Chief Jones pointed out that even a low amount of alcohol affects a person's ability to react appropriately in an emergency, even for something as simple as proper and quick exiting.
Council Member Bateman asked how frequently the Fire Department checks clubs for fire code violations. Chief Jones replied that they do an annual inspection as well as periodic sweeps. These are done in association with special events, such as big ball games, and in conjunction with the Police Department and Alcohol Law Enforcement, he said. Chief Jones added that the inspections focus on issues such as overcrowding and blocked exits. Council Member Bateman confirmed that inspection results were available to the public at the Fire Department.
Council Member Harrison asked if other governments across the State had passed such ordinances. Chief Jones replied that he was not aware of any. Council Member Harrison inquired about other states, and Chief Jones noted similar ordinances in Arizona, California and Florida.
Council Member Ward pointed out that the Rhode Island nightclub had used highly flammable materials for soundproofing. He determined from Chief Jones that the Chapel Hill Fire Department looks for such things during inspections. Council Member Ward noted, however, that facilities change their interiors and that the Fire Department would not necessarily know that unless they receive a tip. He requested information when the item comes back on establishments that cater to groups larger than 50.
Mayor pro tem Evans asked if buildings being renovated and/or expanded were required to install sprinkler systems. Chief Jones said they are if the building is greater than 5,000 square feet and the renovation exceeded 50% of the property's value. Mayor pro tem Evans commented that the Town could lower that threshold.
Council Member Wiggins asked if there was only space for one issue on the blank bill. Mr. Karpinos replied that a blank bill would allow the Town to make more than one proposal after the deadline.
COUNCIL MEMBER WIGGINS MOVED, SECONDED BY COUNCIL MEMBER VERKERK, TO ADD THE FIRE DEPARTMENT ISSUE TO THE LEGISLATIVE AGENDA.
Mayor Foy inquired about holding a pubic hearing. Mr. Horton recommended including that in the motion on March 24, 2003.
Council Member Wiggins agreed to include it, adding that doing so was what she had intended.
THE MOTION WAS ADOPTED UNANIMOUSLY (9-0).
COUNCIL MEMBER WARD MOVED, SECONDED BY COUNCIL MEMBER STROM, TO ADOPT R-1A. THE MOTION WAS ADOPTED UNANIMOUSLY (9-0).
A RESOLUTION ESTABLISHING THE TOWN OF CHAPEL HILL’S LEGISLATIVE PROGRAM FOR THE UPCOMING SESSION OF THE NORTH CAROLINA GENERAL ASSEMBLY (2003-03-03/R-1a)
WHEREAS, the Council of the Town of Chapel Hill that the Council held a public hearing on March 3, 2003, at 7 p.m. in the Council Chambers of Town Hall on proposed items for inclusion in the Town’s legislative program for the 2003 Long Session of the North Carolina General Assembly; and
WHEREAS, the Council conducted a meeting with the Orange County Legislative Delegation on February 24, 2003, to discuss potential legislative issues of interest to the Town;
NOW, THEREFORE, BE IT RESOLVED by the Council of the Town of Chapel Hill that the Council hereby transmits the following as its Legislative Program for consideration by the General Assembly in the upcoming Long Session:
· Bill to Establish a Utility Tax District to fund the burial of electric utility lines
BE IT FURTHER RESOLVED that the Council endorses pursuing other Legislative interests, subject to the opportunities that become available:
· Common Funding Source for Transportation Infrastructure Needs
· Equity of Funding for Orange County within Highway Division 7
BE IT FURTHER RESOLVED that the Council requests that the Orange County Legislative Delegation consider submittal of a “blank bill” in order to afford an opportunity to address other issues of local interest that may be identified during this legislative session.
This the 3rd day of March, 2003.
COUNCIL MEMBER STROM MOVED, SECONDED BY COUNCIL MEMBER WARD, TO ADOPT R-1B. THE MOTION WAS ADOPTED UNANIMOUSLY (9-0).
A RESOLUTION REQUESTING INCREASED STATE STAFFING FOR SEDIMENTATION AND EROSION CONTROL ENFORCEMENT (2003-03-03/R-1b)
WHEREAS, the N.C. Sedimentation Control Commission has established rules and regulations to protect the environment from sedimentation and soil erosion; and
WHEREAS, the State staff available to inspect and enforce the sedimentation and erosion control laws is limited; and
WHEREAS, additional staffing will be necessary because of the volume of University development during the next decade;
NOW, THEREFORE, BE IT RESOLVED by the Council of the Town of Chapel Hill that the Council hereby requests increased State staffing for sedimentation and erosion control enforcement.
This the 3rd day of March, 2003.
Item 3 - Petitions by Citizens and Announcements by Council Members
3a. Petitions by citizens on items not on the agenda.
1. Lorraine Hoyt, for Women’s International League for Peace and Freedom, regarding a request for exemption from Franklin Street Use Permit policy.
League Co-Chair Rocie Graver said the League understood the requirement to apply for a vigil permit 48 hours prior to the event, but if President Bush declares war on Iraq, people will want a place to come together to express their sadness and outrage. Ms. Graver asked Council members to suspend the 48-hour requirement since there would not be much notice given regarding a declaration of war. She asked for a permit for a non-specified date that would allow people to gather if war is declared.
Mayor Foy asked Mr. Horton for guidance on the request to suspend the Town's normal rules. He suggested that the Council might refer this to the Manager and give him authority to act. Mr. Horton pointed out that the Council had declared the area under discussion as a place of public forum for all citizens without regard to the interest they wish to espouse or protest. He cautioned Council members that agreeing to this request could lead to uncomplementary groups trying to occupy the space at the same time. Mr. Horton recommended that he and the Town Attorney come back to the Council with recommendations.
Mayor pro tem Evans moved to receive and refer, and Council Member Wiggins seconded.
Council Member Kleinschmidt pointed out that throughout the country protests are being organized to begin at specific times if war begins. Police in some areas had agreed to cooperate with those demonstrations, he said. Council Member Kleinschmidt verified that this was what the petitioners were requesting. He recommended developing a policy tonight that would provide a peaceful opportunity for demonstration.
Mayor Foy pointed out that the Town had to be neutral in its policies and must also accommodate those who might want to demonstrate in favor of the war. He suggested the Manager make a "content neutral" decision. Mr. Horton remarked that the Town might also identify an alternate location that he might designate if the Town Attorney saw it as feasible under the law.
Council Member Bateman suggested bringing the reply back at the March 5, 2003 Council meeting. Mr. Horton and Mr. Karpinos agreed to bring suggestions back at that time.
Council Member Strom offered Council Member Bateman's suggestion as a friendly amendment.
Mayor pro tem Evans accepted the amendment and asked the speakers if they had approached the University about using McCorkle Place. Ms. Hoyt replied that they had not, noting that the Women's League had been holding vigils at the Post Office for more than 20 years. She agreed, however, to keep McCorkle Place under advisement.
Mayor pro tem Evans expressed concern that waving rules might set a precedent that would cause the Council to have to make judgments in the future that they would not be comfortable with. She said that she had considered asking the petitioners not to put the Council in this position. Mayor pro tem Evans pointed out that the Women's League might even need a larger spot.
Council Member Kleinschmidt stated that he had not meant to suggest that the Town ally itself with any one side, anymore than it already had.
Mayor pro tem Evans clarified that she accepted the amendment as long as the Town also encourages the petitioners to seek alternative sites.
Council Member Ward verified that the Manager would bring back a recommendation that would be applicable to other groups on other occasions. Mr. Horton replied that the staff would do the best it could with only 24 hours to work on the issue.
MAYOR PRO TEM EVANS MOVED, SECONDED BY COUNCIL MEMBER WIGGINS, TO RECEIVE AND REFER THE PETITION, AS AMENDED FOR A REPORT BACK ON MARCH 5, 2003, AND THAT THE PETITIONER BE ENCOURAGED TO SEEK ALTERNATIVE SITES. THE MOTION WAS ADOPTED UNANIMOUSLY (9-0).
2. Coalter Lathrop for the Transportation Board regarding the Bicycle Facilities Construction Policy.
Mr. Lathrop read from his written memo to the Council explaining the rationale on which the Transportation Board bases its petition for a change to the existing bicycle facilities construction policy in Chapel Hill.
Mayor Foy noted that there already were several staff memos on this item, as the petition had pointed out. He recommended referring it to the Manager. Mayor Foy said the Council probably could revisit the issue with the memoranda that the Manager had provided in the past, and Mr. Horton agreed.
Council Member Ward recommended employing the expertise of the University's Highway and Safety Research Center to make sure that the Town has current information on this evolving issue. Mr. Horton agreed to solicit those comments.
Council Member Harrison suggested getting feedback from the North Carolina Department of Transportation (NCDOT) Division of Bicycle and Pedestrian Facilities.
Council Member Wiggins clarified that individuals assigned to the Transportation Board were different from those on the Bicycle and Pedestrian Advisory Board. She described this as another example of how the Council gets conflicting opinions from its boards. Council Member Wiggins asked that an attempt be made to get consensus before this comes back. Mr. Horton replied that he would be happy to attempt that again.
COUNCIL MEMBER BATEMAN MOVED, SECONDED BY MAYOR PRO TEM EVANS, TO RECEIVE AND REFER THE PETITION, AS AMENDED BY COUNCIL MEMBER WARD TO SEEK ADVICE FROM THE UNIVERSITY’S HIGHWAY SAFETY RESEARCH CENTER, BY COUNCIL MEMBER HARRISON TO ASCERTAIN THE VIEWPOINT OF NCDOT DIVISION OF BICYCLE AND PEDESTRIAN FACILITIES, AND BY COUNCIL MEMBER WIGGINS TO ATTEMPT TO HAVE THE TOWN'S TRANSPORTATION BOARD AND BICYCLE AND PEDESTRIAN ADVISORY BOARD REACH CONSENSUS. THE MOTION WAS ADOPTED UNANIMOUSLY (9-0).
Nick Lurie presented data related to the above petition to the Town Manager.
3. Michael O'Connell regarding variance from ordinance requiring burying of power lines.
Brookside Drive resident Michael O'Connell asked for a variance from the ordinance because burying lines by his house would threaten two mature trees. Mr. O'Connell explained that the short stretch of power lines was visible to only two neighbors and those neighbors agree with his suggestion to leave them as they are.
COUNCIL MEMBER STROM MOVED, SECONDED BY MAYOR PRO TEM EVANS, TO RECEIVE AND REFER THE PETITION. THE MOTION WAS ADOPTED UNANIMOUSLY (9-0).
3b. Announcements by Council members.
Council Member Harrison announced the Transportation Board's annual public forum would be at Town Hall on April 8, 2003, at 7:00 p.m. He encouraged citizens and Council members to attend.
Regarding the Legislative Agenda, Eleanor Howe explained that she was the citizen who had inquired about fire regulations at clubs. She commended the Council for considering this issue. Ms. Howe pointed out that many go to clubs when bands are in Town, not just during large ball games.
Item 4 - Consent Agenda
Regarding Item 4b, Mayor Foy recommended that Council Member Harrison present his recommendation regarding the Stormwater Utility Policy Review Committee prior to the Council's consideration of the Consent Agenda.
Council Member Harrison pointed out that all twelve applicants to the Committee live in only one of the Town's three watersheds although the Council’s resolution specified representation from “the Town’s three major watersheds. He suggested taking more time to solicit applications from the other watershed areas. Council members agreed to nominate the twelve at this meeting but to hold their final vote until March 24, 2003. Council Member Harrison thanked Stormwater Engineer Fred Royal for his recruiting efforts. He noted, though, that the Town also needs applicants from Morgan Creek and the Dry Creek/New Hope Creek areas.
Regarding Item 4a, Mayor Foy stated that the Regional Transit Consolidation Study would address ways to consolidate the bus system. The Council would be more deeply involved in this discussion later in the spring, he said. Mayor Foy noted that the Town was not going forward with any kind of consolidation at this point.
MAYOR PRO TEM EVANS MOVED, SECONDED BY COUNCIL MEMBER STROM, TO ADOPT R-2. THE MOTION WAS ADOPTED UNANIMOUSLY (9-0).
A RESOLUTION ADOPTING VARIOUS RESOLUTIONS AND ORDINANCES (2003-03-03/R-2)
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:
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a. |
Regional Transit Consolidation Study (R-3). |
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b. |
Nominations Stormwater Utility Policy Review Committee(R-3.1).
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This the 3rd day of March, 2003.
Item 5 - Information Items
Information reports were received by consensus.
Item 6 - Marriott Residence Inn Hotel – Application for a
Special Use Permit for Planned Development-Mixed Use
Planning Director Roger Waldon explained that this proposed mixed-use development had last come before the Council five days before the new Land Use Management Ordinance (LUMO) was enacted. He reminded Council members of the issues affecting this application, which include the Resource Conservation District (RCD), traffic, and impervious surface. Mr. Waldon pointed out that the Council had asked for specific comparative information, which the applicant had provided. He called Council members' attention to the summary of recommendations from advisory boards on page 15 of the staff memo. The staff was continuing to recommend denial of the application (R-4a), Mr. Waldon said. He argued that the application was not consistent with the Town's Comprehensive Plan, specifically with regard to the land use plan for this location. If the Council chooses to approve the application, then R-4b includes conditions of approval, he said.
Scott Radway, representing the applicant, pointed out that they had changed the site plan in response to the new LUMO, which had increased the RCD from 75 to 150 feet. He pointed out that three of the Town's advisory boards had recommended approval, but the Planning Board had voted (4-3) against the request for the same reason as the staff. Mr. Radway reviewed a comparison of impervious surface under different scenarios and showed slides demonstrating that comparison. He noted that mixed use would create 18% impervious surface, compared to 23% for apartments, 28% for town homes, and 29% for subdivisions. It is often the case that lower densities are not less impervious even though it seems counterintuitive, Mr. Radway said.
Mr. Radway indicated where sewer lines would go on four different plans and argued that only the proposed mixed use would allow them without having to use an easement on Summerfield Crossing. He pointed out that the Summerfield Homeowners Association had supported this plan. Mr. Radway summarized information from NCDOT's traffic analysis, and he emphasized that road improvements associated with the project would improve the traffic situation. He read the following statement by the Town's traffic consultant: "In conclusion, the additional traffic generated by the proposed Residence Inn is expected to have a minimal impact to the surrounding roadway network with the improvements that are planned under the superstreet design, the Dobbins Drive/Erwin Road project, and the improvements that are deemed necessary regardless of whether the site is built out." Mr. Radway added that the consultant had also said that increased traffic at peak hours would be less than one car per minute and not noticeable in the general traffic flow.
Mr. Radway said the issue seemed to be whether residential or mixed use is appropriate on this piece of property, in this corridor, and with the current neighbors. He asked Council members to imagine whether it would be more appropriate to build a low density residential development with four dwelling units per acre or a non-residential use which would provide the following: less impact on the site and its neighbors, the same traffic impact as residential, substantially more tax benefits, more diversity, and more employment opportunities. Mr. Radway said the project would provide a service that people now find in hotels in Durham. He argued that all indices, except the designation on the map, indicate that the application should be approved. Mr. Radway asked Council members to approve R-4b as it stands, and he thanked the Manager for including the 15 or so items that the applicant had voluntarily offered before but which had not previously been in the resolution.
Sally Greene, Vice Chair for the Planning Board, said that Mr. Radway, who is the Planning Board's Chair as well as the applicant’s representative, had acted with integrity and had never approached the Board in an inappropriate way about this project. She said the Board had voted (4-3) against the recommendation because of concern about staying true to the Comprehensive Plan and because many neighbors had asked that this area remain residential. Ms. Greene said some Board members had also expressed concerns about the process. Those who had voted against the application felt that it had fundamentally changed, she said, adding they felt that there had been a breach of agreement with the neighbors and the Town regarding what the original zoning was intended for. Ms. Greene explained that some Board members felt it would have been more straightforward if the applicant had simply asked to put a hotel there. Some were concerned about the scale of the building, she said, and some believed that commercial uses should stay on the other side of US 15-501.
Ms. Greene noted the suggestion in the staff memorandum to wait until the superstreet is built. She explained that the Board had not considered that because they had not been concerned about the traffic issue based on the data. Ms. Greene explained that those who had voted in favor of the application felt that zoning in the area should allow some commercial use. Also, she said, they felt the suggested use made sense as it was a condensed plan with only 18% impervious surface and a 100-foot buffer, and some thought the traffic impact would be less or comparable to residential development. Ms. Greene added that some Board members had pointed out that there would be no internal road system as there would be with residential use. Those in favor of the application had also mentioned diversity of the tax base and no increase in the number of schoolchildren, she said.
Windhover resident Mac Clarke reviewed the history of the zoning and the Town's reports on the area. Referring to an NCDOT report, he noted the prediction that traffic in the area in 2005 would be no better than it is today even with the superstreet. Mr. Clarke stated that a density on this site comparable to Windhover would allow only 36 units, not 52 or 72 as stated by the applicant. He said lower density would reduce traffic by about 30%. Mr. Clarke mentioned that the Council was scheduled to consider a concept plan for the nearby Wilson Assemblage on March 17, 2003. That plan will propose 375 parking spaces, which added to the Marriott's 126 spaces, will come to a total of 501, he said.
Windhover resident Paul Bernasconi opposed the project because of the noise pollution he believed it would generate during parties, conventions, weddings, and so forth. He supported his argument with comments by former Marriott guests on the Marriott website. Mr. Bernasconi suggested that the Residence Inn be located in a commercial park where it would not disrupt a neighborhood.
Harvey Krasny explained that four people (Howard Ross, Jim Constantino, Louis Gonzalez, and Agnes Bernasconi) had donated their time to him. He opposed the development, he said, but would like to make certain requests if it is approved. Dr. Krasny expressed concern for the potential for runoff from the parking lot into a nearby creek. He noted that the garbage facility for the entire hotel would be located at the back of the parking lot near his home, and asked that it be moved.
Regarding tree protection and fencing, Dr. Krasny requested 15 additional feet in front of the buffer because of the potential damage that large equipment could do to tree roots. He asked the Marriott to install the quietest heating and air conditioning units available, and suggested a particular brand. Dr. Krasny spoke against the Parks and Recreation Department's suggestion for connector paths through the site to the buffer, describing that as counterproductive.
Dr. Krasny explained that he was opposed to the development because the Town should not add more mixed use to this area, and should not allow commercial use of this property. Dr. Krasny asked to keep the area low density, arguing that the entire surrounding neighborhood was low density and that the Town need not build high density there just because it has an opportunity to do so. He asked Council members to consider that a hotel with 108 units plus condos really yields 8.6 units per acre.
With regard to returning the zoning to R-2, Dr. Krasny predicted that the neighborhood would be "up the creek" without Conditional Use zoning. He referred to Attachment 7, a memo from Mr. Dunlop at the NCDOT, which says that the Weaver Dairy Road Extension land use projection will not adversely affect the life of the project. Dr. Krasny noted that the memo did not say what the life of the project was, and he emphasized that Mr. Dunlop had said that service at that intersection would be at Level E.
Dr. Krasny argued that the neighborhood could not cope with high density development. The area was already built out, he said, and it suffers from what might prove to be an unfixable traffic situation. Dr. Krasny implored Council members not to add to the problem no matter what benefits might be associated with the application. Regarding the tax base, he reported that hotel occupancy in the area was down to 50%. So it really will amount to a redistribution of revenue among hotels rather than adding to the bottom line, he said.
Dick McCreight described this application as a departure from traditional Marriott construction and an attempt to take advantage of irregularities in regulations in order to plant a business on property intended for residential use. Approval would set a dangerous precedent, he said, adding that a strip mall was possibly being considered for land next to the Marriott. Mr. McCreight asked Council members to reject this plan so that homeowners would not have to live in fear of their next door neighbor being a motel or a strip mall.
Windover resident Dave Berglund noted that everyone else had covered issues of traffic, noise, and taxes. He showed slides of traffic on Erwin Road and asked the Council to repair the road.
David McFarling said everything he wanted to say had already been covered. He added, though, that everyone who had spoken in support of the project was being paid by it, but that no one in the neighborhood supported it. Mr. McFarling vowed to come back in two weeks when Wilson Assemblage would come before the Council for consideration.
Frank DiMauro, president of the Windhover Property Homeowners Association, said the applicant had described the project as "the lesser of two evils" because it has less impervious surface than other options. He noted that it would also bring an increase in traffic, and the adjacent property was already being considered for strip mall development.
Council Member Bateman inquired about the maximum that could be built without a rezoning. Mr. Waldon explained that constraints regulating what can go on a site include floor area ratio and a dwelling unit cap. The proposed 79,000+ floor area is very close to the maximum possible on this site, he said, noting that the maximum was about 80,000 square feet. Mr. Waldon explained that the density cap for R-3 is 70 units per acre. One of those constraints usually ends up being the controlling one, he said, adding that he deemed floor area to be the controlling factor with this application.
Council Member Bateman asked what the zoning would be if the rezoning were turned down. Mr. Waldon explained that there was no rezoning on the table. The current zoning is R-3 Conditional Use, he said, which means that any development that is proposed on this property can only be pursuant to a Special Use Permit (SUP). Council Member Bateman stated that leaving this property undeveloped probably was not an option for the owners, given that they had purchased the land.
Mayor pro tem Evans inquired about the aforementioned strip mall, remarking that there were no strip malls in Chapel Hill. She could not imagine the Town ever considering that, she said. Mr. Waldon agreed.
Council Member Strom referred to the site maps and the impervious surface configurations the applicant had provided. He commented that someone else might draw different conclusions from the same information. Mr. Waldon agreed that there were many different ways to design projects. Impervious surface is one of the variables that moves around, depending on other factors, he said.
Council Member Strom asked Mr. Waldon to comment regarding the mixed use nature of the project and why that was part of this application. Mr. Waldon explained that a commercial development by itself would not meet the current zoning for this property. The LUMO includes something called "planned development," he said, which includes mixed use, but not retail planned development, as a permitted use. Mr. Waldon explained that residential, office and commercial uses together constitute mixed use.
Council Member Strom noted that there were no specific percentages in the LUMO. He asked if the Council's task was to decide whether this was acceptable mixed use for this area. Mr. Waldon agreed that the LUMO requires those components but does not specify percentages. It is clear that this application has those three components, he said. Town Attorney Ralph Karpinos agreed, but Mr. Horton pointed out that the key test for approval is whether or not the proposed application meets the four findings.
Council Member Harrison commented that strip malls have not been well defined but that there were ten or twelve in Chapel Hill. He gave Eastgate as a "much-loved" example, adding that they can be nice places and are being improved all the time. Council Member Harrison suggested that the speakers' comments regarding strip malls were too theoretical to enter into the Council's discussion.
Council Member Harrison read an email from the NCDOT design engineer for the superstreet project: "After talking with Roger Thomas of Radway Design, here is the best estimate for the schedule of the U4008 intersection improvement project at US 15-501and Erwin Road/Europa Drive. The right-of-way date is being changed from May to September 2003 due to protected plans surveys being conducted during the 2003 window. This means that the project most likely will be let in November 2004. It is possible that construction may not actually begin until late winter/early spring 2004. Construction should be complete by fall 2006." Council Member Harrison pointed out that this was a year later than the last time this had come to hearing. He had brought it out to show that all of the traffic analysis depended on the superstreet being there, he said.
Mayor pro tem Evans asked Mr. Waldon if the project was still being called an extended stay hotel. Mr. Waldon replied they had discussed lodging units.
Mayor pro tem Evans asked if it was accurate to say that there would not be convention facilities and food service. Mr. Waldon said this was what he had heard as well. Mayor pro tem Evans stated that there probably would be no weddings because there would be no reception space. Mr. Waldon stated that was a logical conclusion.
Mayor pro tem Evans asked if the Dobbins Drive realignment was independent of the superstreet. Mr. Waldon explained that the two were separate projects that were being pursued independently at different times.
Mayor pro tem Evans inquired about a date for the Dobbins Drive realignment. Traffic Engineer Kumar Neppalli replied that construction should start in the summer.
Regarding an earlier question, Mr. Horton explained that stipulation 2a in R-4b on page 18 of the staff report defines the basic use that would be permitted. Nothing limits it to a limited stay hotel, he said, adding that the Town could not require that as a matter of law. Mr. Horton noted, however, that Council members could add it in as a stipulation.
Mayor pro tem Evans verified that the project would include limited food service facilities and that the Town had the applicant's description of that.
Council Member Ward requested more background on the Comprehensive Plan and the various zonings on properties in Town. Mr. Waldon explained that the approach to revising the Comprehensive Plan had been to examine how the Town had grown and changed and to decide where designations should change. He said no commercial uses show on this side of US 15-501 and the land use designation had been some combination of low to medium density residential uses. Mr. Waldon explained that the Town tries to have zoning and land use categories match. During the 2000 Comprehensive Plan revision, however, they changed land use designations in cases of rezonings where land no longer was congruent with the land use plan.
Council Member Ward commented that the Council is sometimes inclined to leave zonings where they are, typically on the low side. That puts applicants in a position to ask for a rezoning, which gives the Town an opportunity to put the approval process through a SUP, he said. Council Member Ward noted that this gives the Town a greater opportunity to fine tune a project. He noted the conflict in saying this project does not fit the zoning while, as a tool to mold projects to better fit the community, the Town knows of zonings where it could envision an applicant coming in with something of greater density.
Mr. Waldon stated that land zoned for underlying use is residential, absent some action by the Council. Where the land use plan contemplates a higher intensity of use, he said, the Council has historically chosen not to increase the zoning intensity but to signal that some additional intensity might be considered acceptable at some point in the future. Mr. Waldon pointed out that this opens the door for a property owner to request a rezoning.
Mayor Foy clarified that Mr. Waldon was not saying that this project does not fit the zoning, but that it does not fit the Comprehensive Plan. He said he had expected, when the Town conditionally rezoned this property from R-2, that if the SUP was not used in time for the special use that the rezoning was granted for, then the zoning would revert to back R-2. Mayor Foy pointed out that this had not been the case. Mr. Waldon commented that the Mayor was not alone in his assumption that R-3 would revert back to R-2 when assisted living was eliminated. A number of people had thought that, he said, and had asked why it did not revert back.
Council Member Bateman clarified that not approving the application would leave it at R-3 with a possible density of seven units per acre. This would be higher than some of the adjacent properties, she said, but not higher than others. Council Member Bateman said that during her five years on the Council, several development requests had come through that did not exactly conform to the Comprehensive Plan, but this was the first one the staff had recommended denying. She asked Mr. Waldon for a clear explanation of why the staff was recommending denial of this request. Council Member Bateman remarked that the site is considered residential if viewed as part of Erwin Road but not residential if seen as part of US 15-501.
Mr. Waldon replied that the fundamental basis of the recommendation to deny the application was the map. The Comprehensive Plan is often part of SUP discussions, he said, and the argument usually centers around which of several conflicting Comprehensive Plan goals should take precedence. Mr. Waldon said the difference in this case is that it is not just words because the map calls for residential use. So even though one could argue that this promotes the economic development objectives of the Comprehensive Plan and other objectives, Mr. Waldon said, the most specific factor is what the map says, which is low-density residential use. He added that this was why the staff believes that they cannot recommend approval because of the land use plan.
COUNCIL MEMBER STROM MOVED, SECONDED BY COUNCIL MEMBER WIGGINS, TO CLOSE THE PUBLIC HEARING. THE MOTION WAS ADOPTED UNANIMOUSLY (9-0).
Council Member Strom said it was clear that the applicant had diligently tried to meet community concerns, but the map and the land use plan were adequate justification for denial. Council Member Strom explained that he had serious concerns about traffic in the area, and as hearings have progressed, he had become convinced by neighbors' arguments that they had counted on this residential area to be protected.
Mr. Horton pointed out that it was the custom for the Town Attorney to draft a resolution for denial that incorporates all reasons. He advised Council members to do so in this case.
Mayor Foy verified that the Council's discussion would be incorporated into the resolution, if passed. Mr. Karpinos asked that the resolution come back to the Council on March 24, 2003, for confirmation and adoption. He suggested that the Council refer the item to the Manager and Attorney for a resolution of denial. Council Members Strom and Kleinschmidt agreed with that.
Council Member Harrison expressed ambivalence about the application, but said that opposition from neighbors had influenced him, particularly with regard to traffic. He did not think road improvements would be completed by the time that the project begins, he said. Council Member Harrison explained that he would like to see a Residence Inn in Chapel Hill sometime soon, but the time was not right for this one at this location.
Council Member Kleinschmidt suggested applauding the applicant but denying the application because the area should provide a better transition between residential and commercial uses. Not voting for the application did not mean that he would vote for some of the alternative residential developments, he said, adding that many of them have some of the same problems. Council Member Kleinschmidt remarked that the area screams for some transitional development. This would be too much like the other side of US 15-501, he said, adding that it would be intolerable for the residential side. Council Member Kleinschmidt described the application as a great idea that just misses the mark.
Mayor pro tem Evans stated that many aspects of the project meet the goals of the Comprehensive Plan, and reminded Council members that some neighbors had been in support of the project. She noted that the recommendation for denial was based on a policy determination and that Council members may reach different conclusions. Mayor pro tem Evans noted that all of the advisory boards, except the Planning Board, had reached a conclusion different from the staff. She remarked that neighbors might not be happy with a residential project there either, because it would require no buffer. Mayor pro tem Evans described this as a good transitional project that meets the goals and objectives of the Comprehensive Plan.
Council Member Bateman stated that she would support R-4b with the following provisions: that it be an extended stay hotel; that permission to occupy not be given until completion of the superstreet; and that it incorporate Dr. Krasny's concerns regarding the changes that were made after the RCD was changed.
Mayor Foy expressed support for R-4a, on the basis that doing so would protect the surrounding neighborhoods. The Town has to decide what is acceptable in a transition area, he said, and the proposal does not sufficiently attend to the neighbors or to the traffic impacts.
Council Member Ward described the application as having a number of positive attributes, such as the positive tax base, the low impact on schools, and the amount of impervious surface. It is an appropriate transition to the neighborhood, he said, noting the buffer and the fact that it would have essentially the same traffic impacts as other projects would at this location.
Council Member Wiggins stated that she would not support R-4a for the same reasons that others had given. This was one of the largest buffers that the Council had acted on since she had been on the Council, she said. Council Member Wiggins explained that she had also been persuaded by the project's low impact on schools and pointed out that this would be a project with some residential component that would not impact the schools. If the Council does not pass R-4a and moves to R-4b, she said, she hoped that Council Member Bateman would include Dr. Krasny's stipulations.
COUNCIL MEMBER STROM MOVED, SECONDED BY COUNCIL MEMBER KLEINSCHMIDT, TO ADOPT RESOLUTION 4A FOR DENIAL. THE MOTION FAILED (3-6) WITH COUNCIL MEMBERS STROM, KLEINSCHMIDT AND FOY VOTING AYE, AND COUNCIL MEMBERS BATEMAN, EVANS, HARRISON, VERKERK, WARD AND WIGGINS VOTING NAY.
Council Member Bateman began to summarize her motion, but Mayor Foy asked for clarification from the staff on whether the Council could require an extended stay hotel. Mr. Horton said the attorney would have to research that. His own opinion, he said, was that it was unlikely that the Council could require it if the applicant objected. Mayor Foy suggested that the applicant come forward and that Council Member Bateman elaborate on her motion.
Applicant Gene Singleton said the Residence Inn would operate under a licensing agreement with the Marriott Hotels. The purpose of a Residence Inn, he said, is extended stay lodging. Mr. Singleton explained that it would be built and marketed specifically for stays of five days or more, adding that half of stays average seven or more days and that 20% are for 30 days.
Mayor Foy asked Mr. Singleton if he would accept a stipulation defining extended stay as a certain period of time. Mr. Singleton replied that extended stay has a specific definition in the industry.
Mr. Horton asked if the applicant would agree that 50% of stays would be more than seven days. Mr. Singleton replied that although that was the average stay he could not exactly predict it.
Council Member Bateman commented that she had merely wanted to ensure for the record that this was an extended stay hotel. Mr. Horton noted that it was not labeled that way in R-4b, but the Town could insert those words. He added that he was not sure it would measure conformance with that requirement, though, unless the Town attached some further definition.
Council Member Wiggins pointed out that extended stay facilities are constructed for those who want to stay longer periods of time. Mr. Singleton explained that every room would be a suite with a full kitchen, including a dishwasher, pots and pans, and extra closet space. It is designed and marketed for extended stays, he said, but that does not mean that someone could not stay for three days.
Mayor pro tem Evans suggested requiring that it be marketed as an extended stay hotel, since that would distinguish it from others.
Council Member Kleinschmidt inquired about possible conversions and future sales. He asked if there was a way to ensure that it would continue to be an extended stay hotel. Mr. Karpinos replied that the Town could write the permit in such a way that any conversion would require coming back to the Council to modify the SUP. Mr. Singleton added that he would have a 20-year licensing agreement and that all but 15 of the 400 extended stay Marriott hotels had remained that way.
Mr. Horton offered the following wording: "The hotel would be designed and marketed as an extended stay hotel, with suites only and with each suite including a sitting room and separate bedroom and limited kitchen facilities." Mr. Singleton replied that the suites had full kitchen facilities and that some of them have a separate walled off bedroom, but others do not have the wall even though they have the same amount of space. Mr. Horton remarked that he could not come up with a definition on the spot that would nail this down. He suggested deferring the item to the March 24, 2003 meeting. Mr. Horton asked that the Council give the staff instructions on what they would like to see in a resolution for approval. The staff could then work with the applicant to develop language that would accomplish the Council's purpose without defeating that of the applicant, Mr. Horton said.
Council Member Strom remarked that no standard language had been included in the resolution regarding sale for another purpose to a not-for-profit organization. He suggested including that in the list of discussion items to come back, adding that such a transfer would require a payment in lieu of property taxes. Mr. Singleton said he did not object to that.
Mayor Foy asked Mr. Horton about including items from Dr. Krasny's testimony. Mr. Horton replied that the staff would review that testimony, incorporate those that the applicant would accept, and bring those that the applicant might not accept back to the Council.
Council Member Harrison expressed support for Council Member Bateman's suggestion to hold the project until the superstreet is complete. Mr. Singleton stated that consultants had concluded that traffic would be better after the hotel opens, even without the superstreet, because of the improvements to Erwin Road and Dobbins Drive.
Council Member Harrison asked to hear from Traffic Engineer Kumar Neppalli regarding that, since it was not what he had understood.
Mayor Foy clarified that Council Member Harrison was agreeing with Council Member Bateman's proposal that the hotel not open until the superstreet has been completed. Mayor Foy determined that other Council members were interested in this proposal as well. He suggested hearing from Mr. Neppalli on March 24, since the Council was sending the item back for further development.
Council Member Harrison verified from Mr. Horton that Dobbins Drive was not a Town street.
Council Member Ward asked for the applicant's reaction to Dr. Krasny's request for a tree protective fencing 15 feet in front of the buffer area. Mr. Singleton and Mr. Radway agreed that this could be done. Regarding moving the dumpster, Mr. Radway explained that the question had come up at the Community Design Commission meeting and there was a way to accommodate that request and still make the dumpster fully accessible. With regard to adding parking on the uphill side of the lot, Mr. Radway said it was a voluntary condition that the applicant had already agreed to. He also said that Mr. Singleton had hired a noise consultant in response to Dr. Krasny's former comments and had determined that the HVAC system exceeds the Town standard for noise.
Mr. Karpinos pointed out that the Council would have to reopen the hearing to allow new evidence to come in. Mayor Foy determined that Council members did not want to do that. Mayor Foy stated that the resolution before them asked the Manager to work with the applicant on crafting a resolution of approval with some of the stipulations that had been added. Even if the applicant does not agree, the Council could include stipulations on its own motion, he said.
Council Member Wiggins suggested requesting a Construction Traffic Management Plan approved by the Manager.
Council Member Harrison asked that Dobbins Drive be 30’ wide rather than 26’.
COUNCIL MEMBER BATEMAN MOVED, SECONDED BY MAYOR PRO TEM EVANS, THAT R-4B BE REVISED TO INCLUDE STIPULATIONS THAT THE BUSINESS OPERATE AS AN EXTENDED STAY HOTEL AND THAT THE SUPERSTREET BE BUILT BEFORE OCCUPANCY, AS AMENDED BY COUNCIL MEMBER WIGGINS TO INCLUDE A CONSTRUCTION TRAFFIC MANAGEMENT PLAN AND BY COUNCIL MEMBER HARRISON FOR A 30-FOOT STANDARD STREET CONSTRUCTION ON DOBBINS DRIVE, TO COME BACK ON MARCH 24, 2003, WITH A MODIFIED RESOLUTION R-4B. THE MOTION WAS ADOPTED (7-2), WITH COUNCIL MEMBERS BATEMAN, EVANS, HARRISON, KLEINSCHMIDT, VERKERK, WARD AND WIGGINS VOTING AYE, AND COUNCIL MEMBERS STROM AND FOY VOTING NAY.
Council Member Harrison asked if this was still an active application. Mayor Foy determined from the Manager and Attorney that the Council was still in a quasi-judicial mode and needed to treat this as a pending SUP.
Item 7 - Proposed Amendments to the Solicitation Ordinance
Mr. Horton pointed out that the Council had asked the staff to bring back recommendations on two issues regarding panhandling.
Police Chief Gregg Jarvies explained that O-1a would prohibit solicitation along highways, roadways, shoulders and medians, and O-1b would prohibit solicitation at night only if it is a direct oral or written appeal. Chief Jarvies explained that O-1c would add the same provisions as O-1b, but in the appropriate form should O-1a be approved first. He recommended enactment of O-1a and O-1c.
Chief Jarvies explained that the Police Department had taken into account the right that people have to solicit. They had also considered the safety, and perceived safety, of motorists, pedestrians and bystanders, he said, as well as the economic and social needs of many who choose to solicit. Chief Jarvies proposed O-1a because soliciting along roadways, shoulders and medians pose a safety hazard. Restricting soliciting in these areas does not significantly limit the many other public places at which people may ask for contributions, he said. Chief Jarvies stated that limiting the manner of soliciting at night, as proposed in O-1b, would not specifically prohibit nighttime panhandling. It would only prohibit direct requests for funds, he said, adding that this would significantly reduce fear and intimidation. Chief Jarvies indicated that if O-1a and O-1c were enacted, the Department would delay enforcement until at least May 1, 2003.
Council Member Verkerk clarified that the proposal was not to prohibit standing with a sign.
Council Member Harrison determined activities such as standing and playing an instrument with a donation receptacle at one's feet would also be allowed.
Council Member Kleinschmidt inquired about the meaning of the statement, "the requirements as to conduct are clear," on page 13. Police Legal Advisor Terrie Gale replied that it meant that the requirements were not unconstitutionally vague.
Council Member Strom asked Chief Jarvies to describe what someone was able to do now compared with what they would be able to do if O-1b became law. Chief Jarvies replied that current prohibitions were against soliciting of any kind in Town at roadside or medians, if traffic is interrupted and there is a safety hazard. There are also limitations at teller machines, banks, and bus shelters, he said, and prohibitions against soliciting in an aggressive or threatening manner. What was being proposed, Chief Jarvies explained, was a ban on all solicitation at roadsides and on walking up to a person and asking for money at night.
Phillip Lyons thanked the Council for addressing this issue. He described Franklin Street as a special place that was facing more competition that it had in the past. Mr. Lyons pointed out that some nearby malls look like Downtown but that people are not afraid to go to those places because they do not get solicited. He said he had been followed into a business establishment and asked for money, and had seen young people being targeted by panhandlers. He asked the Council to enact the ordinance.
Ruthe Kerner said the second week after she retired to Chapel Hill she had offered a hamburger to a man holding a "hungry" sign at the corner of Erwin Road and US 15-501. The man had rejected the offer and asked her for cash in an offensive manner, she said. Ms. Kerner complained that the man frequently stands in the street blocking traffic. She said she had lived in many other parts of the United States and there had always been laws against vagrancy, loitering and panhandling. Ms. Kerner asked the Council to vote for O-1a.
Joe Herzenberg encouraged Council members to enact O-1a, adding that he did not know of anyone who would oppose that, but he argued that O-1b goes too far. What is left of freedom of speech, he asked, after you exclude verbal and written appeals? Mr. Herzenberg asked Council members not to act on something as confusing as this.
Ruby Sinreich expressed disappointment over the Council's earlier vote on the Marriott project. Allowing a project to stand that had manipulated the system would lower development standards, she said.
Ms. Sinreich established that Council members had received her email regarding the panhandling matter. She characterized some of the proposed restrictions on speech as unnecessary and bordering on unconstitutional. Ms. Sinreich said she had been involved in Downtown businesses ever since childhood when her parents owned Downtown businesses. She commented that those who were not part of the Downtown Commission had received only a one day notice about the proposed ordinance, whereas the Chamber and Commission had spent time and energy on the issue. Ms. Sinreich emphasized that the Council would be least likely to hear from those most impacted by the ordinance. If they live at the Interfaith Council shelter they would be past curfew by now, she pointed out. Ms. Sinreich commented that Chapel Hill's Downtown was thriving compared to other cities, adding that much of that was because of its broad diversity.
Jim Gray applauded the Town staff for the care with which they had drafted the ordinance. He said he had been involved in many social service organizations and he did care about people in need, but that there was no dignity in begging. Allowing an individual to lean into the roadway holding a sign, he said, does not add to that citizen's self-respect, self-sufficiency, health, or well being.
Sherri Toler Murrell, a Downtown attorney, advised Council members to vote against O-1b because it makes the unreasonable assumption that a nighttime request for money is somehow intimidating, harassing, or threatening. In addition, she said, the ordinance attempts to regulate the content of a request on its face while people will still be allowed to hand out flyers with requests for donations to charitable organizations or promoting their own businesses.
Ms. Murrell described the ordinance as an attempt to silence those that the Town finds annoying, unpleasant, offensive and rude. If she were to ask for spare change for a parking meter, she said, she would not be accused of a crime because of who she is. Ms. Murrell asked the Council not to do what seems most popular but to do what is right and vote against O-1b.
Niko Paliouras, representing Downtown property owners, said that panhandling in the area had become burdensome for everyone. Merchants complain about it, he said, because customers complain to them about the constant harassment they receive walking up and down the street. Mr. Paliouras asserted that no one in the room could honestly say that the crowd gathered at the corner of Franklin and Columbia Streets was not unsightly and intimidating. He explained that he had grown up Downtown but that it was becoming increasingly difficult to sustain the feelings that he once had when he sees no cooperation on issues that impact on everyone in the community.
Mr. Paliouras argued that limiting panhandling on roadways, where there is little pedestrian traffic, while not limiting it Downtown would not make sense. He noted the enormous tax base that the Downtown provides and said it was in the Town's interest to keep that a viable area. Mr. Paliouras requested a public hearing on the issue.
Dana McMahan expressed support for the ordinances as part of a continuing process to address the issue. She told the Council about how she had been followed home by a panhandler and had been solicited every night while trying to get into her car. Ms. McMahan explained that her Downtown business primarily carries items for women and children. People had turned around and not entered her store because they would have to pass through groups of panhandlers, she said.
Vivian Olkin explained that she has an ice cream shop on Airport Road and had recently opened another on Franklin Street. She described panhandling as an issue of safety, adding that it really does not matter whether the threat is real or perceived. Ms. Olkin explained that her staff ranges in age from 16-23 and consists primarily of girls. They work late into the evening, she said, and several have said they do not feel safe leaving the Franklin Street store. Ms. Olkin recently witnessed a woman asking people for money on the street, she said, adding that the woman then went into Sutton's Drug Store and asked people sitting at the counter for change. Ms. Olkin described the ordinances as a great start.
Dean Bresciani, Interim Vice Chancellor for Student Affairs at UNC, expressed support for the Town's effort to address what has been a long-term concern for the University. He noted that increasing numbers of summer athletic camps no longer allow their campers to go Downtown because they consider it a dangerous and harassing environment. Mr. Bresciani noted that the University spends more time every year preparing students for the panhandling they will experience. He said both the University and Town staff had also been working on some socially responsible alternatives.
Mike Hoffer stated that there had been a dramatic increase in panhandling at intersections over the last several years. He asked the Town to enact R-1c and to add clear language regarding what would happen to violators. Mr. Hoffer suggested a $50 fine that would be easily enforceable by the Police Department.
Downtown business owner Julie Jennings said that panhandlers had recently intimated her and her 2-1/2 year-old daughter. She said that men had jumped out of the bushes and scared her when she was alone. Downtown is not an appropriate place for a small child after dark, she said, describing this as the sad truth.
Virginia Knapp, Director of External Affairs for the Chapel Hill-Carrboro Chamber of Commerce, said that members had complained about having to clean up their storefronts in the mornings. Some employees were afraid to walk alone to their cars at night, she said, noting that at least two businesses were leaving or had left the Downtown area. Ms. Knapp said customers were voting with their feet and spending money elsewhere, for reasons that include panhandling. She described the proposed ordinances as a good first step. Ms. Knapp suggested the Council call a public hearing on panhandling after enactment. If all work together perhaps they can address the root causes, such as poverty, homelessness, substance abuse, and mental health issues, Ms. Knapp said.
Robert Humphreys, Director of the Downtown Commission, stated that citizens were being denied the full enjoyment of Downtown Chapel Hill because of fear and intimidation. The Town must return a feeling of safety and security to its citizens, he said. Mr. Humphreys stated that the new lighting plan would help, as would security monitors and a full police force as soon as vacancies have been filled. He described enacting the ordinances as the next right step for the Council to take in response to citizens' comments and concerns.
Terri Tyson asked the Council to ban panhandling at medians. She conveyed the difficulty that she has teaching her children to be caring citizens at the same time that she does not give money to panhandlers at intersections. Ms. Tyson asked if there was something the Town could do to help those in need and to direct them to useful resources. She recommended hiring an outreach worker and explained that there were many programs at the Interfaith Council that help those in need.
Mark Dorosin, President of the local chapter of the ACLU and owner of a Downtown nightclub, argued that asking for money was protected under constitutional law. The Town does have the right to put time, place, and manner restrictions on the exercise of that speech, he said. Mr. Dorosin noted that the Town already had an anti-aggressive panhandling statute, but banning nighttime solicitation is not reasonable. He noted that the ordinance as written treats any solicitation that takes place after dusk in the same way as blocking someone's path, following them down the street, or physically forcing yourself upon them. Mr. Dorosin stated that this was not reasonable and perhaps not constitutional. The purpose behind the anti-aggressive panhandling statute was to regulate conduct, not speech, he said, and argued that the nighttime ban clearly regulates speech and does not focus on conduct. Mr. Dorosin said that characterizing this as content neutral was a farce, arguing that there is nothing more fundamentally content-based than limiting something by what the person says.
Attorney Michelle Lewis explained that she had spent a year looking into this issue. She said that a ban on nighttime soliciting had been appealed to the federal courts and found to be constitutional. Ms. Lewis pointed out that this was not a ban on a person playing a flute with a box open or on someone standing with a sign. It is a ban on a demand for immediate money, Ms. Lewis said, adding that Smith v. City had banned panhandling on a five mile stretch of sidewalk along the beach in Fort Lauderdale, Florida. That case had been brought all the way up to the Supreme Court, she said, and the Court had refused to hear it. Ms. Lewis asked Council members not to be confused by those who describe these as unconstitutional resolutions.
Mickey Ewell expressed appreciation for what the Town was trying to do. He described the Interfaith Council's homeless shelter as one of the best on the east coast. If people really care about this issue, Mr. Ewell said, they would find better ways to help people than giving them money on the street.
Council Member Kleinschmidt explained that he would vote for O-1a because there is a real possibility that people could be injured and that safety could be compromised at intersections and medians.
COUNCIL MEMBER WIGGINS MOVED, SECONDED BY MAYOR PRO TEM EVANS, TO ENACT O-1A. THE MOTION WAS ADOPTED UNANIMOUSLY (9-0).
AN ORDINANCE AMENDING CHAPTER 11 OF THE CODE OF ORDINANCES REGARDING REGULATION OF AGGRESSIVE PANHANDLING (2003-03-03/O-1a)
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 alms or contributions.
(a) Definitions:
(1) To beg,
panhandle, or solicit alms or 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 alms or
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 alms 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 private property owner or other person in authority.
(b) No person shall beg, panhandle, or solicit alms
or 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 alms
or 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 alms
or 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 alms
or contributions while sitting or standing on a roadway or the shoulder or
median of a roadway if such action impedes the normal flow of traffic.
(f) 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 third day of March, 2003.
This the 3rd day of March, 2003.
Mayor pro tem Evans moved, seconded by Council Member Wiggins, to enact O-1c.
Council Member Harrison asked why the Council was skipping O-1b. Mr. Karpinos explained that O-1c adds to O-1a, while O-1b stands alone.
Mayor Foy added that it was a procedural matter and that there was no difference in content.
Council Member Kleinschmidt suggested offering the community an opportunity to comment on this issue. He said that deciding what kind of principles and community you want is based on more than one anecdotal experience or what it feels like to walk down Franklin Street at a specific time.
COUNCIL MEMBER KLEINSCHMIDT OFFERED A SUBSTITUTE MOTION, SECONDED BY COUNCIL MEMBER WARD, TO CALL A PUBLIC HEARING ON APRIL 28.
Council Member Ward added his view that citizens' safety concerns would not be addressed by an additional panhandling restriction. He agreed that begging does not add to a person's dignity, but proposed that much of the problem could be solved by people not handing out money. Council Member Ward noted that regulations already on the books were not being enforced, predicting that adding more would not help. He proposed that O-1c would not solve the problem and expressed support for a public forum to broaden the perspective of possible solutions.
Mayor Foy expressed support for O-1c, adding that the Town should not take actions like this lightly and should respect the protections that people have in our society. He added that people also have the right to live in a community where the local government uses its limited power to help create an atmosphere that does not tolerate the kinds of intrusions described. Mayor Foy noted that panhandling was permitted under the ordinance during the day and that it was also permitted after dark but limited as to how it could be done. He said local governments have the obligation to balance the rights of all citizens. This includes free speech, Mayor Foy stated, but it also includes having a right to go about in the absence of fear. He described the ordinance as a good attempt to balance those things, is as much at the Town can do under the constitution, adding that it was enough to do.
Council Member Verkerk observed that young women had been angrier about panhandling than older people and men. Young women are being targeted and harassed, she said, describing it as a gender issue as well as a social justice issue. Council Member Verkerk supported moving ahead with O-1c.
Council Member Kleinschmidt called the question on his substitute motion.
THE SUBSTITUTE MOTION FAILED (5-4) WITH COUNCIL MEMBERS KLEINSCHMIDT, STROM, WARD AND HARRISON VOTING AYE AND COUNCIL MEMBERS BATEMAN, EVANS, VERKERK, AND WIGGINS VOTING NAY.
The original motion remains the main motion.
Council Member Harrison referred to ideas proposed by the Interfaith Council (IFC) Director Chris Moran and suggested making a commitment to coming up with other non-regulatory solutions that address the root cause of the trouble.
Council Member Kleinschmidt predicted that the ordinance would accomplish very little of what the speakers desire. It will just create another layer of regulation that is arguably in conflict with much of what Chapel Hill is about, he said. Council Member Kleinschmidt pointed out there are real questions about whether the number of individuals soliciting had increased, adding that the same handful of people continue to do this. He explained that he had been reluctant to support the ordinance because he believed that some people's apprehensions had been based on whom they are looking at rather than how they were being asked for change. Council Member Kleinschmidt objected to subjecting people who have no money to a $50 fine and sending them to jail.
Council Member Strom described O-1c as a regulatory step that really does not address the issue in any meaningful way. He referred to Mr. Moran's suggestions and said that taking this step would handicap the conversation that Mr. Moran proposed. Council Member Strom argued that this would not accomplish the stated purpose or solve the problem. Enforcement of laws on the books should be done more effectively, he said, proposing that the correct solution would be more Downtown safety patrol and police officers to enforce them.
Council Member Ward said he did not think that O-1c would address citizens' concerns. He expressed hope that the business community and others would help to address the real issues and to develop several strategies on how to address them.
Council Member Harrison agreed that this regulation alone does not address the problem and suggested that the Town also look at some of Mr. Moran's ideas.
Council Member Bateman commented that enacting the ordinance would not preclude looking at Chris Moran's ideas. She noted that Mr. Moran and the IFC do more than anyone else in the community to curb aggressive panhandling.
Council Member Harrison asked if the Council could consider Mr. Moran's ideas tonight, but Mayor Foy suggested voting on the motion on the floor.
THE MAIN MOTION WAS ADOPTED (5-4), WITH COUNCIL MEMBER BATEMAN, VERKERK, WARD, FOY AND EVANS VOTING AYE, AND COUNCIL MEMBERS WARD HARRISON, KLEINSCHMIDT AND STROM VOTING NAY.
AN ORDINANCE AMENDING CHAPTER 11 OF THE CODE OF ORDINANCES REGARDING REGULATION OF AGGRESSIVE PANHANDLING (2003-03-03/1c)
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 third day of March, 2003.
This the 3rd day of March, 2003.
FIRST READING
Mr. Karpinos reminded the Council that because the ordinance did not receive a clear majority vote of 6-3 or better, the ordinance would have to come back at the Council's next regular business meeting for a second vote.
Council Member Harrison asked if it could come back as an item for public comment. He clarified that the public could comment then, just as they can on any item on the Council's agenda.
Council members agreed to recess the meeting to the March 5, 2003 work session, at which time they would hear items 8, 9, 10, and 3a(1).
The meeting recessed at 11:07 p.m.