SUMMARY MINUTES

SUMMARY MINUTES OF A PUBLIC HEARING

OF THE CHAPEL HILL TOWN COUNCIL

MONDAY, NOVEMBER 15, 2004, AT 7:00 P.M.

Mayor Kevin Foy called the meeting to order at 7:15 p.m.

Council members present were Sally Greene, Ed Harrison, Cam Hill, Mark Kleinschmidt, Bill Strom, Dorothy Verkerk, Jim Ward, and Edith Wiggins.

Staff members present were Town Manager Cal Horton, Deputy Town Manager Florentine Miller, Assistant Town Manager Bruce Heflin, Town Attorney Ralph Karpinos, Town Information Officer Catherine Lazorko, Senior Planner Than Austin, Planning Director Roger Waldon, Traffic Engineer Kumar Neppalli, Senior Development Coordinator J. B. Culpepper, and Acting Town Clerk Sandy Cook.

Item 1- Public Hearing: Wilson Assemblage, Application for Special Use Permit

Senior Planner Than Austin introduced the Special Use Permit (SUP) request for this Planned Development - Mixed Use project, which was currently zoned R-4. The applicant was proposing to construct 149 dwelling units, 50,000 square feet of office/retail space, and 402 parking spaces at the northeast of the intersection of US 15-501 and Erwin Road, he said.

Mr. Austin noted key issues that Council members had identified when this proposal first came before them as a concept plan in March 2003. These included: affordable housing, the US Highway 15-501 viewshed corridor, the McGregor Drive Connection, and alternatives for access from the development to Sage Road.

With regard to affordable housing, Mr. Austin pointed out that the current application did not call for a rezoning and that the applicant was not proposing to provide any affordable housing. He commented, however, that the staff had encouraged the applicant to do so.

With regard to the viewshed corridor, Mr. Austin explained that the applicant had offered ownership of the white farmhouse to the Town. The staff would investigate this offer further if the Council wished them to do so, he said.

Mr. Austin explained that the staff was recommending a full vehicular connection, with sidewalk, from the new street by the Wilson Assemblage to McGregor Drive. This would be rather than an eight-foot wide greenway path that would provide no vehicular connection, he said. Mr. Austin noted that the staff had also included alternative language for providing ballards for emergency access at that connection.

Town Traffic Engineer Kumar Neppalli discussed the Sage Road intersection alternatives. The staff had concluded that the safest alternative would be to align the Wilson Assemblage site entrance on Sage Road with the existing Lowe's entrance, he said. Mr. Neppalli recommended that the intersection be signalized to provide an acceptable level of service and safe turning movements. He explained that Sage Road traffic backs up during peak hours because of the heavy volume going in and out of Lowe's. But coordinating traffic signals in the area could alleviate the problem, he said, adding that a traffic signal was warranted there.

Mr. Neppalli discussed the pros and cons of a proposed alternative that would restrict turning movements at the Sage Road intersection to right-in and right-out by constructing a median on Sage Road. This would still allow a left turn into Lowe's driveway, he said, but noted it would cause the Dobbins Drive/Erwin Road intersection to reach a Service Level F. There were no plans to install a traffic signal there, he said, but stated that doing so would improve the operation.

Mr. Neppalli noted that installing the median on Sage Road was the alternative that the Town's independent consultant had recommended. Town staff disagreed with that recommendation, he said, stating again that they preferred realigning the proposed site driveway with the existing Lowe's driveway. Mr. Neppalli pointed out, however, that realignment would mean placing two traffic signals within 450 feet of each other, which is closer than the Town generally prefers. Finally, he reminded Council members that the Town still had a payment in lieu from Lowe's for a traffic signal at that intersection.

Mr. Neppalli noted that construction of the "superstreet" project at the intersection of Highway 15-501 and Europa Drive was expected to start soon and be completed before August 2006. Mr. Austin then concluded the staff's presentation by recommending adoption of Resolution A with conditions.

Council Member Strom expressed surprise that the applicant's generous affordable housing component (32 of 144 units would be affordable to people at or below 50% of the median income) had "evaporated" since the concept plan review. He had not commented on some aspects of the concept plan, he recalled, because he had been so pleased by the affordable housing offer. Council Member Strom asked Town Attorney Ralph Karpinos if it would be possible to return to the concept plan stage given the dramatic and systemic change in this application. If not, he said, there was a flaw in the Land Use Management Ordinance (LUMO) that had prevented the Council from having a clear opportunity to express its desires to the applicant at the concept stage.

Mr. Karpinos replied that the concept plan review was a new procedure that had been added along with the LUMO. The intent was for applicants to come in and have an exchange with the Council regarding their ideas for property and to receive feedback from the Council before deciding what type of application to submit or whether to submit an application at all, he said. Mr. Karpinos explained that there was no provision in the ordinance to require another concept plan if the application is substantially different than what was presented at the concept plan review. There was no standard in the LUMO that states the application should be consistent with the concept plan, he said, adding that this might be something that the Council would wish to clarify.

Council Member Greene commented that she had not been on the Council when this application had come in as a concept plan. But she had watched the videotape of that Council meeting, she said, and had seen much criticism of the plan by Council members. Council Member Greene suggested that the Council might require a new concept plan when one does not seem viable. She pointed out that a new piece of land had been added to this configuration, and she asked Mr. Karpinos if that would affect the process. Mr. Karpinos replied that he had not been aware of the different land configuration. The applicant might want to address that, he said. Council Member Kleinschmidt pointed out that there was more than a three-acre difference.

Jack Smyre, a planning consultant for Crosland Properties, Inc., stated that a parcel had been added in response to the Council's direction to find a path to Sage Road. The only way to do that was to add on that parcel, he said. With regard to the affordable housing component, he said that providing it had anticipated subsidies that the applicant would receive as a result rezoning. But the Council had asked them not to rezone it, he said, and, without that, the project could not support affordable housing. Mr. Smyre stressed that the houses in the proposed development would cost less than the average housing in Chapel Hill.

Mayor Foy confirmed that a northeast parcel, which included an office with limited retail and associated parking, had not been part of the original concept plan. Mr. Smyre replied that it was not, but noted that the applicant had taken that back to the Community Design Commission for a courtesy review. Mayor Foy inquired about the legal effect of this change, and Mr. Karpinos pointed out that tonight was the first time he had known about the additional land. He suggested that the Council proceed with tonight's hearing, and he offered to study the issue further. Mr. Karpinos said that he would determine before this comes back whether there is a provision that would allow the Town to require the applicant to go back to the concept plan review.

Council Member Strom, referring to summary minutes of the concept plan review meeting, noted that Mr. Smyre had stated that Crosland Properties already had applied for the tax credit. He repeated his earlier comment that his decisions that evening had been based on such information and that this was a material change. Mr. Smyre replied that the applicant had applied but that the request for funding and actual zoning approval by Council must both occur in the same calendar year.

Council Member Strom stated that the information Mr. Smyre had given them at the concept plan review had changed since then. Mr. Smyre replied that the Council had changed the parameters when it stated that the applicant must use R-4 rather than R-5C. When the applicant lost 50,000 square feet they lost the ability to subsidize, he said.

Council Member Strom pointed out that there was essentially the same number of dwelling units. And, under the SUP, the applicant could have asked for the square footage if the affordable housing was as important to them as they represented it was at the concept plan stage, he said. Mr. Smyre replied that he was not aware of any means to go beyond the zoning district, with the exception of rezoning.

Mayor Foy suggested that the Council hear the applicant's presentation.

Mr. Smyre displayed a map showing site photographs from various views. His presentation included a diagram of surrounding developments and photos of the 1930s farmhouse. Mr. Smyre noted site constraints, including a sewer easement and overhead power lines. He described the topography and slopes as "benign," noting that the entire site was either prime or secondary buildable land.

Mr. Smyre said that significant trees would be preserved. He reviewed the approval process thus far and discussed key issues from the concept plan review. Mr. Smyre also mentioned a July 2003 courtesy review by the Community Design Commission (CDC) as well as feedback that the applicant had received from neighbors regarding building types, spacing, tree preservation, and buffers. The applicant had addressed all of those concerns in the SUP that was before the Council tonight, he said. Mr. Smyre noted that the plan now included 20,000 square feet of non-residential space.

Council Member Harrison verified that the 402 parking spaces were for the entire development complex, including the non-residential portion. Mr. Smyre pointed out that 402 was exactly the minimum required. He then discussed issues related to the McGregor Drive Connection, the Sage Road connection, Erwin Road improvements, the US 15-501 watershed, and the NCDOT "superstreet" project. Mr. Smyre stated that the applicant was not proposing a vehicular connection to McGregor Drive, as the Town staff had recommended. Rather, they were proposing an eight-foot wide greenway connection through a water and sewer easement, he said.

With regard to that McGregor Drive connection, Mr. Smyre argued that there were not sufficient benefits to outweigh the resulting undesirable impacts on the neighborhood. Also, the applicant had made a commitment to the neighbors that they would not seek a vehicular connection, he said. Mr. Smyre stated that the Town's Comprehensive Plan supported that view. The staff's alternative proposal for a 12-foot, paved emergency vehicle driveway with ballards would also be acceptable to the developer, he said.

Mr. Smyre proposed extending the existing right-of-way corridor out to Sage Road. This would limit traffic to right-in/right-out circulation by constructing a raised median on Sage Road, he said, adding that there would be cut-throughs for bicycles. Mr. Smyre noted that the staff had not recommended this option. But the Town's traffic consultant had agreed that it would provide the least impact on the Lowe's property and the proposed development while providing an adequate level of operation for ingress and egress site traffic, he said.

Mr. Smyre told Council members that the staff had recommended that the developer construct half of a 37-foot cross-section along the site's footage to help promote pedestrian circulation. He noted that the project does not have frontage along Erwin Road and that the applicant had proposed no vehicular connection to Erwin Road from the site. Also, there was no current NCDOT plan to widen that road, Mr. Smyre said. He proposed instead that the applicant install a sidewalk north and south to facilitate pedestrian movement along Erwin Road.

Mr. Smyre discussed the 1930s farmhouse and told Council members that the "superstreet" would cut off much of the land in front of it. He also discussed the Schools Adequate Public Facility Ordinance (SAPFO) and suggested that language be added to stipulation 40 that would allow the applicant to adjust the project's start and finish dates if there were a delay in receiving a SAPFO certificate. Mr. Smyre said that the proposal did meet the four findings of fact required for a SUP.

Thatcher Freund stated that the Planning Board had noted the same concerns about the process that Council members were expressing at tonight's meeting. He described the site plan itself as "less than ideal." It could be more pedestrian friendly, said Mr. Freund, stating that the plan looked like a typical suburban apartment complex. Mr. Freund commented that a number of buildings could be fronted on the street with parking behind them. And the mixed use component is not truly mixed in the way that LUMO had intended, he said.

Mr. Freund suggested reducing the minimum parking limit so that cars would not be the focus of this and other developments. He proposed that the Council consider requiring raised crosswalks on the public roads surrounding the development. The Planning Board had disagreed with the Town staff's recommendation to move the intersection to across from the Lowe's intersection, Mr. Freund said. He reported that the Board believed the best alternative would be right in/right only with the Sage Road median.

With regard to the various Sage Road intersection alternatives, Mr. Freund said that a number of Board members felt they did not have sufficient information about the potential impact on Erwin Road. The Comprehensive Plan does ask for a balance between Neighborhood Preservation and connectivity, he said, and the Board had been narrowly in favor of the connection to McGregor Drive. Mr. Freund noted, however, that they had reached that conclusion with the thought that ballards could be put up later if the connection did not provide the desired effect. Mr. Freund described Board members as feeling "very, very upset" that affordable housing no longer was a component of this plan.

Summerfield Crossing resident Harvey Krasny, speaking for Sara Tomlinson and Pitt Tomlinson as well, stated that they did not welcome this development in their neighborhood because of its size and the impact on traffic. He listed several nearby developments and argued that it was wrong to "keep packing this area like sardines." Dr. Krasny reminded Council members that NCDOT had told them the "superstreet" probably would reach an unacceptable level of service four years after it is built. Under any scenario, he said, the proposed development would increase traffic congestion on Erwin and Sage Roads. And there already were problems with empty stores in Town, he pointed out. Dr. Krasny predicted that people would drive rather than walk to the offices and retail establishments because they would be located away from the living area. He asked what tax advantage this project would bring if the Town had to widen roads and improve the road system and enlarge the schools to manage it. Town Council members "have to say no sometime," Dr. Krasny pointed out, arguing that it was not fair to continue infilling in this neighborhood.

Rich Harris, speaking on behalf of the Erwin Village Homeowners Association, expressed appreciation to the developer for being so receptive during neighborhood meetings. He expressed opposition to the proposed Wilson Assemblage and "extreme opposition" to the possible Sage Road to Erwin Road traffic. Mr. Harris outlined safety issues, and stated his objections to allowing development at one of the few scenic areas still found upon entering Chapel Hill from Durham. He emphasized the current over-capacity on surrounding roads and commented on the already overburdened and inadequate transportation system.

Mr. Harris objected to the removal of significant trees, the potential increase in traffic, potential noise pollution, and the over-saturation of multi-family apartments in the area. He mentioned the existence of other nearby construction projects and the lack of adequate school facilities. Mr. Harris emphasized that traffic and safety were his main concerns, however, particularly on Erwin Road and Sage Road. He showed slides depicting traffic congestion and stated that connecting Sage Road to Erwin Road via McGregor Drive would diminish the scenic beauty and lead to a great increase in traffic.

McGregor Drive resident Jada Bowens, a member of the Erwin Village Homeowners Association, pointed out that the neighborhood had submitted a petition to the Town. She stated that placing a through street on McGregor Drive would reduce security and safety, the value of homes, and the quality of life. It would have a negative impact on the character of Erwin Village, Ms. Bowens said, and she asked the Council to consider the neighborhood's security, safety, and serenity.

Peggy Redman, a Dobbins Drive landowner whose property was included in the Wilson Assemblage, remarked that changes in intersections had made it easier to get out on Dobbins Drive now than it had been ten years ago. Traffic would increase as people continue to migrate to this area she said. Ms. Redman explained that she had lived on Dobbins Drive for 25 years and had witnessed development rise up around her. Her property had been involved in at least three plans for development, she said, and she described Crosland Properties' proposal as the best by far. Ms. Redman said that sufficient roadways, comprehensive road planning and improvement, and efficient traffic-control measures would resolve traffic problems.

Carlyle Wilson, who described himself as the last of the Wilsons, said that it was hard for him to take care of his land now and he wanted to sell it to Crosland Properties. Mr. Wilson noted that one confronts traffic wherever one goes these days. "You hurry and wait," he said, adding that 400 more cars would not make a difference.

Lee Zachary, whose land was part of the Wilson Assemblage, said that there was much traffic at peak times on Erwin Road back when he and his brother had lived there many years ago. He had a house there at one point, he said, but the house had burned down. Mr. Zachary stated that his land would not be worth anything, due to Town zoning, unless some project is approved for that location. He told the Council that this was the fourth time he had gone through this. Crosland Properties was asking for a use as zoned and density that is within the criteria, he said. Mr. Zachary asked the Council to approve the plan.

Real Estate Broker Neil Alderman read a letter from Delores Wilson Tomlinson, who is an heir to the Wilson property. Ms. Tomlinson expressed full support for Crosland's plan, adding that she and her siblings wanted to sell their land and had patiently waited and complied with Town requests for the past ten years. Ms. Tomlinson wrote that their ancestors would be honored by the Wilson Assemblage proposal. In her letter, Ms. Tomlinson encouraged the Council to approve the Crosland Properties plan.

David Ravin, representing Crosland Properties, Inc., addressed Council Member Strom's comments. He attempted to clarify what he described as "confusion" regarding the issue. Crosland had originally wanted to build a Phase II Dobbins Hill on the site, he said, but they had thought that the Council had directed them at the concept plan hearing to not request the rezoning. "What we thought we heard very clearly was 'do not ask for more square footage than what is allowed,' and that is why we changed the program," he said.

Mr. Ravin stated that Crosland thought downsizing units was an "affordable type option." He said that the state wants to know that a plan is approved when the developer applies for tax credit housing. Mr. Ravin told the Council that Crosland Properties had asked the Mayor for expedited review, but had not received that. He recommended that the Town find a way to expedite review of such applications so that it can fit with the timing of state requirements.

Council Member Verkerk expressed concern about the change in street configuration since the concept plan. The way it currently was seemed dangerous, she said, noting that children would have no safe way to get to playing fields from some areas. They would have to cross between parked cars since there are no crosswalks provided, she said. Council Member Verkerk noted that running between parked cars is one of the most frequent causes of death of children under the age of ten. This proposal was a formula for that, she remarked.

Council Member Strom stated that this application felt like a "bait and switch" to him. He said that he had not seen anything in the minutes to indicate that the Council had dissuaded them from rezoning. On the contrary, Council members had said that rezoning was a fair tradeoff for the amount of housing that the applicant would be putting into the community, he said. Council Member Strom described this as a problem in interpretation and procedure. He requested that Mr. Karpinos bring back options for beginning again at the concept plan stage.

Council Member Greene said that the applicant's interpretation of the discussion at the concept plan hearing was not the same as hers had been after watching the videotape. The Council had heard the proposal, which had exceeded the expectations for affordable housing, she said, and then that seemed settled and the conversation turned to other issues. Council Member Greene pointed out that the Town Council had a strong history of requiring affordable housing and had not, to her knowledge, accepted low-dollar, market-rate housing as an alternative.

Council Member Greene expressed some doubt that this application would meet the Planned Development-Mixed Use requirements. Transportation was inadequate, she said, and questioned whether it would meet the "proximity to major transportation" requirement. Council Member Greene said that she had not read nor heard a word about energy conservation, another LUMO requirement. She agreed with the Planning Board's conclusion that this looked like a suburban plan with two commercial buildings rather than a mixed-use development. She recalled that the applicant had said during the concept plan review that the development would be targeted to couples where one works in Chapel Hill and the other works in Durham. These people would be driving to work, she pointed out, and she described the plan as too oriented toward cars and with too much asphalt.

Council Member Kleinschmidt agreed with other Council members' comments that this did not look like the type of mixed-use development that had been contemplated under the Town's guidelines. And this developer was acutely aware that the Council did not prefer the low dollar substitute for affordable housing. The developer knew that this is why the Council had changed the ordinance to include other forms of affordable housing requirements and why they had made discussing how to handle affordable housing a priority for Council discussion in the spring, he said. "I know, in fact, that this developer is aware of that," Council Member Kleinschmidt said.

Council Member Kleinschmidt expressed reservations about automatically extending the SAPFO requirement if, for some reason, this project did go forward. He noted that one reason why the SAPFO requirement expires is to allowing the Council time to determine if land use plans had changed and whether the development should exist there at all. So, a development expires if it is not built, he said. Council Member Kleinschmidt stated that he could not see any reason to move away from the existing processes by granting automatic and indefinite SUP extensions just because the SAPFO certificate does not issue in time. He noted, however, that this might be a good reason at the time to grant an extension.

Mayor pro tem Wiggins explained how important the concept plan review process had become to the Council. She recalled that seven or eight years ago, when the Council had to decide on proposals in the context of a public hearing, there had been a level of contentiousness. Mayor pro tem Wiggins explained that the Council had moved to the concept plan review process in order to look at what developers had in mind in detail and to provide feedback in an informal way. The process had been much smoother and less contentious as a result, she said. Mayor pro tem Wiggins stated that this application had caused her feel as though the Council had gone back in time. And that was unfortunate after the Council had made such an effort to avoid such a situation, she remarked.

Council Member Hill agreed with other Council members that this did not look like a mixed-use development. Rather, it looked like two office buildings with an apartment complex behind them, he said. Council Member Hill stated that the problem with replacing affordable housing with below market housing was that the latter does not have long-term affordability. He wondered why Crosland Properties had concluded that the Council thought rezoning was a bad idea.

Council Member Hill asked if there was any way to treat this as a concept plan rejection and to redo it with everyone making a commitment to complete it within the next calendar year with potential approval before the end of 2005. Mayor Foy replied that the Council could ask the applicant to confer with the staff about that. The staff could bring an answer when this comes back, he said.

Council Member Ward described dropping the affordable housing component as a "shocking change." Mayor pro tem Wiggins had conveyed his sense that the Council was seeing this project for the first time rather than a second time after the concept plan review, he said. Because of the major changes that had been made since the concept plan review, Council Member Ward said, he was feeling the same frustrations he had felt when the Council never saw a project until the end. Having to make last minute changes had been very difficult for both the Council and applicant, he pointed out.

Council Member Ward agreed with others that there was no long-term affordability in this proposal. And it looked like the very early mixed use developments in which the uses themselves were not integrated, he said. Council Member Ward predicted that most of the traffic generated by the commercial uses would come from off-site and would not add to the synergy of the project's uses.

Council Member Harrison verified with Rynal Stephenson, a traffic consultant with Ramey Kemp and Associates, that he had concluded that placing the Sage Road connection where the applicant wanted it would not meet the warrants for a traffic signal but that warrants would be met if it were placed at the Lowe's intersection. He asked if this was because one can factor in the existing turning movements at Lowe's. Mr. Stephenson replied that the most critical factor in warranting a traffic signal is left turning traffic from a side street. The Lowe's driveway has quite a bit of left-turning traffic from that driveway, he said, and the developer's proposed driveway, with the median, would have no left-turning traffic.

Council Member Harrison determined from Mr. Stephenson that there was a potential for drivers to make a U-turn around the Sage Road median. Mr. Stephenson recommended that a "No U-Turn" sign be placed there. Council Member Harrison asked how a driver would ever go north from that intersection. Mr. Stephenson replied that about 3% of the exiting traffic would want to go north. He said that one could leave the development via Dobbins Drive and come back around via Erwin Road. Drivers could also go up Sage Road, down to Highway 15-501, and take a left, he said. Council Member Harrison verified that making a right turn onto Sage Road, a right turn onto Dobbins Drive, and a right turn onto Erwin Road would also be a possibility. He verified that the consultant's recommendation was to allow the right-in/right-out driveway without aligning it with the Lowe's driveway.

Council Member Harrison commented that the application now has a mix of uses that were not mixed. They do not meet the goal of mixed use, which is to have uses adjacent to each other so that people can easily get to them on foot, he said. Council Member Harrison stated that he was less offended than most Council members were about "what was a bait and switch." Based on the floor area, he said, the units probably would sell for what the applicant intends to ask for them. He agreed with Council Member Hill, however, that there was no sign the applicant was willing to stipulate to that price range. Council Member Harrison stressed that long term affordability was a basic concern of the Council and that the Council must have SUP stipulations that it can believe.

Mayor Foy stated concerns about public safety, especially with respect to how the parking lots front the street. He noted that one requirement for a planned development mixed use is that the use be arranged to protect residential uses and maximize pedestrian and bicycle convenience. Mayor Foy stated that this project was not designed to promote pedestrian usage and would create a problem for pedestrians.

Mayor Foy said that the way in which traffic would be generated would impact safety as well as the value of surrounding properties. He described those as serious problems that would have to be addressed. Mayor Foy stated that he did not understand the problem with aligning the street so that it would come out opposite Lowe’s. The property could be designed in a myriad of ways that would accommodate that street going through there, he remarked.

Mayor Foy agreed with comments by others that this was not a true mixed use development. That was obvious when you look at the site plan, he said, describing it as a couple of buildings that had been tacked onto the end of the project. Mayor Foy added that he, too, had looked at the minutes and had not found that the Council had given an indication that this should not be a rezoning. He suggested recessing the hearing to January 10, 2005.

COUNCIL MEMBER VERKERK MOVED, SECONDED BY COUNCIL MEMBER STROM, TO RECESS THE PUBLIC HEARING UNTIL JANUARY 10, 2005. THE MOTION WAS ADOPTED UNANIMOUSLY (9-0).

Item 2 - Public Hearing: UNC Faculty-Staff Recreation

Association Application for Special Use Permit

Senior Development Coordinator J. B. Culpepper stated that this hearing had been called to consider a SUP application for a project commonly known as The Farm. The facility, located off Barbee Chapel Road, had been annexed into the Town limits in the year 2000, she said, and she displayed a map showing the location. Ms. Culpepper explained the proposal was to demolish an old farmhouse and construct a new clubhouse. She said that the lease between the state and The Farm indicated that the facility would pay ad valorem taxes. The staff recommended approval of Resolution A with a stipulation that would require The Farm to honor the terms of the lease and to pay taxes that it had owned to the Town since annexation and to do so annually, Ms. Culpepper said.

Architect Ellen Weinstein gave a brief overview of the project, showing slides of views, trees, roads, and the old farmhouse. She outlined the structural reasons for demolishing the building. Ms. Weinstein then displayed the new site plan and discussed the tree protection and bioretention plans. The siting and the building would extend the rural character of The Farm while providing much needed new space, she said.

Building Committee Chair Steve Resnick told Council members that the Board had submitted a request for a zoning compliance permit about 14 months ago. They had then received the "shocking news" that they would have to go through the SUP process, he said. Mr. Resnick stated that the process had worked out well despite the unanticipated time and expense. However, he described The Farm as "a little mystified" by the property tax issue, noting that they had been operating for 37 years without having to paying those taxes.

Mr. Resnick noted that The Farm owns only the contents of the building and that the State owns the building itself. He assured Council members that The Farm did not intend to break the law and wanted to work with the Town. But he implored the Council not to delay the SUP while The Farm's attorney confers with the Town's attorney in an attempt to resolve this issue.

Mr. Karpinos clarified that he had received a telephone call from The Farm's attorney, but that he had not actually met with him yet.

Mayor Foy commented that although the two attorneys might differ on interpretations of the language, the spirit of the law seemed clear to him. He read the following: "The lessee hearby expressly waives any defense to payment of the taxes because the title to the property remains in the State of North Carolina." Mayor Foy said that he understood the argument about The Farm having been in existence for 37 years and not having paid taxes. But it had been in Chapel Hill for only four years, he said, and it seemed fair to solidify the agreement.

COUNCIL MEMBER VERKERK MOVED, SECONDED BY COUNCIL MEMBER STROM, TO REFER THE MATTER BACK TO THE MANAGER AND ATTORNEY AND TO RESET THE PUBLIC HEARING TO DECEMBER 6, 2005. THE MOTION WAS ADOPTED UNANIMOUSLY (9-0).

Item 3 - Public Hearing: Land Use Management Ordinance Text Amendment,

Adjusting Affordable Housing Calculations

Planning Director Roger Waldon noted that the Council had included language in its affordable housing policy that allowed developers to "round down" fractions. But the Council and staff had come to agree that rounding up would make more sense and be more consistent with how the Town addresses other issues in the ordinance, he said. Mr. Waldon recommended that the Council delete the phrase about dropping the fraction.

Thatcher Freund asserted the Planning Board's strong belief that affordable housing fractions should be rounded up. In addition, he said, the Board had recommended that the Council look again at the affordable housing issue and consider inclusionary zoning and density bonuses as well. In summary, the Planning Board would like to see more affordable housing, Mr. Freund said.

Virginia Knapp, Associated Director of the Chapel Hill-Carrboro Chamber of Commerce, stated that the Chamber was very interested in working with the Council to provide incentives to developers to provide affordable housing. But, some Chamber members had expressed concern about the proposed LUMO revision, she said, because of the harmful effect that rounding up would have on small developments (5-12 lots). These members had requested that the Chamber propose a density bonus that would allow one more lot for the additional affordable house for small subdivisions, Ms. Knapp said. She pointed out that this would enable market rate housing that would support the affordable housing requirement. It might even encourage more affordable housing units rather than payments in lieu, Ms. Knapp pointed out.

Orange Community Housing and Land Trust Director Robert Dowling expressed concern that the proposal, as written, would be an incentive to developers to build size-restricted units. He pointed out that rounding up would mean that two affordable units out of seven, eight or nine units might not work out financially for small developers. These developers would then opt for size-restricted rather than affordable units, he said. Mr. Dowling proposed rounding down and converting fractions to a payments in lieu. This would require a change in the payment in lieu formula, he pointed out. Mr. Dowling said that the formula would have to be changed to one determined by what the non-profit sector needed to subsidize the house rather than what it would take to make a house affordable in a particular development.

Council Member Harrison described Mr. Dowling's proposal as a hybrid. Mr. Dowling replied that it would be a hybrid where the formula of the payment in lieu would have to be changed. Council Member Harrison asked if Mr. Dowling thought the Chamber's proposal would discourage developers because of the high percentage. Mr. Dowling replied that he did not know the finances of private sector developers. But, from what they tell him, the difference between the price of new houses in Town and the price of affordable houses would make it difficult for the smaller ones. Mr. Dowling emphasized that the Town would not get a payment, as he was suggesting, unless the formula were changed.

Mayor pro tem Wiggins described both proposals as interesting and appealing. She suggested that a Council committee be formed to analyze them and bring back a recommendation.

Mayor Foy stated that the Town did not want to create a situation where it gets more small houses and fewer affordable ones. He noted that the Council had witnessed a big hole in the Town's ordinance tonight, whereby 50 units might be allowed without any affordable housing. Mayor Foy verified that the staff was in the process of researching inclusionary zoning. He said he was willing to approve the staff's recommendation as a stopgap measure. Maybe this LUMO change will not accomplish what the Council wants, said Mayor Foy, and he suggested trying to fine-tune it if possible.

Council Member Hill asked if the payment in lieu formula was based on the normal selling price of a house minus the price of the affordable house. Mr. Waldon explained that current provisions were designed to accomplish an affordable unit within the development being proposed and not in some other location. So, the Council had inserted language that said a payment in lieu of an actual house should be based on the price of the actual housing, he said. Mr. Waldon stated that the payment in lieu would be the difference between the price of an affordable house and whatever it costs to build a house in that development.

Council Member Hill described that as a "penalty." The formula would have to change to make rounding down even remotely attractive, he said. Mr. Waldon replied that he totally agreed with Mr. Dowling's assessment that the current formula did not provide an incentive to make a payment in lieu. Council Member Hill noted that the purpose was to have houses rather than payments.

Council Member Strom expressed a clear preference for having houses rather than payments in lieu. He suggested making the rounding change that the staff had recommended. Council Member Strom also expressed interest in the Chamber's proposal. He proposed discussing providing a density bonus incentive to make rounding up workable and to get permanently affordable houses into the Land Trust. The Council had made a conscious decision regarding payment in lieu because they prefer that developers build houses, said Council Member Strom.

Mr. Waldon reminded Council members that the staff had scheduled work on revisiting the Town's affordable housing approach in general. They would bring that before the Council in the spring, he said. Mr. Waldon also mentioned that the Council had approved that but had wanted the issue of rounding down addressed now. So that was why this very limited item had been brought before the Council tonight, he said.

Council Member Ward asked if the item would remain limited if the Council were to tweak it a bit by adopting, for example, the Chamber’s recommendation that fractions of .5 or greater be rounded up but fractions less than .5 be dropped. Mr. Horton stated that such simple arithmetic could be addressed. Mr. Waldon noted that the difficulty would arise if the Council wanted an impact analysis of that. Mr. Horton remarked, though, that the staff really could not evaluate the effect that either option would have. Mayor Foy and Mr. Horton agreed that the staff should bring back both options and let the Council decide.

Council Member Strom requested that Mr. Dowling's proposal also be brought back as a third option. Mr. Horton pointed out that this would create a different kind of complexity. Mr. Karpinos said that it might go beyond what the Town had advertised. Council Member Greene described it as reasonable to request that as an option for the Council to think about.

Mayor Foy asked the staff if it would be possible to bring a response to Council Member Strom's request at the December 6, 2004 meeting. Mr. Horton asked for clarification of Mr. Dowling's proposal. Mayor Foy read, "continue to round down but request a payment in lieu for the fraction." Mr. Horton noted that Mr. Dowling had also written "perhaps," and "however, this won't work" in the same letter. Council Member Greene pointed out that Mr. Dowling had also written that he would be happy to work with the Town to work it out.

Mr. Horton reminded Council members that the staff had expressed concern that this would expand into a larger project. He stood by the staff's ability to get the complex version of this done in the spring, he said, and he offered to bring back a simple version on December 6th.

Council members agreed by consensus to accept the simple version on December 6, 2004 as a stopgap measure.

Mayor pro tem Wiggins asked why the Town needed a stopgap, and various Council members responded with comments about recent experiences with developers. Mayor pro tem Wiggins noted that this was not a new problem. She asked again why the Council would address it now when they are planning to do so again in the spring.

Mayor Foy pointed out that since this was scheduled for a public hearing it would come back to the Council one way or another. He recommended that Council members see what comes back and debate it then. Mayor Foy pointed out that it would all be part of the spring discussion on affordable housing anyway. Mayor pro tem Wiggins replied that that was her point. "How many times are we going to bring it up and discuss it?" she asked. Mr. Horton stated that the staff would bring back four options: leaving it as it is now; using the 1.5 proposal; rounding up; and making no change at this time.

Mayor pro tem Wiggins asked what information the staff would bring back that the Council did not already have that would help them choose the right option. Would one Council member choose an option and lobby for it? Or would there be a process where all could understand and participate, she asked. Mayor Foy replied that the Council would have the opportunity to discuss the options when they come back and to debate the merits of each.

COUNCIL MEMBER VERKERK MOVED, SECONDED MY MAYOR PRO TEM WIGGINS, TO RECESS THE PUBLIC HEARING TO DECEMBER 6, 2004. THE MOTION WAS ADOPTED UNANIMOUSLY (9-0).

Item 4 - Concept Plan: Southern Orange County Senior Center

Ms. Culpepper outlined the plan to build a 25,000 square-foot facility with approximately 107 parking spaces at the northeast corner of the Orange County Human Services Center campus on Homestead Road. The Human Services Center had been granted a SUP in 1984, she said, and had subsequently modified and added a family housing component to the northwest portion of the site.

Landscape Architect Dan Jewell explained that the Senior Center would move to this location from Elliott Road, which is not large enough and does not have the program space for the future needs of southern Orange County's citizens. He discussed the site's topography and stated that the new building would be an important piece of civic architecture along Homestead Road. Mr. Jewell proposed a two-story building with portions of it being only one story. Parking would be behind the building on the flattest portion of the site and not visible from the street, he said. Mr. Jewell noted handicapped spaces adjacent to the building and said that there would be a transit drop-off at the front entrance. He indicated a service area on the eastern portion of the site and said that the applicant would like to build a one-way secondary driveway along that portion.

Mayor Foy determined that the number of parking spaces might be drop to 100-103. The applicant had arrived at the number through empirical data of Senior Center use, Mr. Jewell said. He added that the figure had also been based on the square footage yield to the number of parking places. Mayor Foy asked how many spaces were available at the current Senior Center. Mr. Jewell replied that there were not that many but that visitors were currently filling up the back of the Squid's Restaurant parking lot.

Council Member Harrison commented that he rides his bike to the Senior Center and that there were others who do so as well. The new location would be accessible by bus but a difficult bike ride from many parts of Town, he pointed out. Mr. Jewell replied that he had been working with the Parks and Recreation Department regarding a future connection to the greenway system.

Council Member Greene asked if this project was part of a larger master plan for the Southern Human Services campus. Mr. Jewell pointed out that Orange County owned 20-25 acres there. An early master plan had shown as many as four facilities, he said, noting that the Senior Center would be the second one and that the others appeared to be placeholders for when the need arises for more services

Council Member Ward verified that the secondary road would be an exit only, with right turn in/right turn out and no right turn in. He also determined that it would be appropriately scaled and narrower than a two-way street. Council Member Ward asked that bicycle facilities be available. He recommended that sidewalks be installed to encourage safe walking. Council Member Ward suggested using water gardens in the parking lot for stormwater retention. He recommended trying to find a way to move the stormwater pond footprint away from the root systems of some of the large oaks.

COUNCIL MEMBERS AGREED BY CONSENSUS TO ADOPTE RESOLUTION R-1.

A RESOLUTION TRANSMITTING COUNCIL COMMENTS ON A CONCEPT PLAN FOR SOUTHERN ORANGE COUNTY SENIOR CENTER (2004-11-15/R-1)

WHEREAS, a Concept Plan has been submitted for review by the Council of the Town of Chapel Hill, for Southern Orange County Senior Center; and

WHEREAS, the Council has heard presentations for the applicant, and citizens; and

WHEREAS, the Council has discussed the proposal, with Council members offering reactions and suggestions;

NOW, THEREFORE, BE IT RESOLVED by the Council of the Town of Chapel Hill that the Council transmits comments to the applicant regarding this proposal, as expressed by Council members during discussions on November 15, 2004, and reflected in minutes of that meeting.

This the 15^th day of November, 2004.

Item 5 - Concept Plan: Beechridge Planned Development

Ms. Culpepper explained that the Beechridge Homeowners Association wanted to discuss a possible request for modification of a 1996 SUP. The modification would free them from the active recreation requirement associated with their 27-lot planned development, she said.

Beechridge Homeowners Association President Franklin Lamm stated that Beechridge residents had unanimously agreed that while the recreation concept is a good idea it was not appropriate for their development. He asked that the space be maintained in a natural state, with a walking trail for access and use, rather than as a recreation area with grills and a road. Mr. Lamm explained that the area in question was heavily wooded and hat grills would place a threat to the ten houses that surround it. He pointed out that the Council had been concerned about a fire hazard in 1996 when they recommended that a gravel road be built there.

Mr. Lamm said that removing trees to build the road would create stormwater run-off problems and that having grills would affect deer and other wildlife. He told Council members that the Association had tried in 2003 to get an amendment to the SUP. The Parks and Recreation Department and the Community Design Commission had approved it and no adjacent neighbors had objected, he said. But, Mr. Lamm explained, the matter had dragged on for more than a year because of the Town's procedure. He said that the developer wanted to complete his permit obligation for a sold out development by putting in the road and grills. Mr. Lamm asked the Council to amend part of the earlier decision because it creates a fire hazard and environmental problems. He recommended that Council members approve the Homeowner Association's petition tonight and waive any fees.

Council Member Ward commented that changing this as expeditiously as possible seemed like the right thing to do.

Bayberry Drive resident Kaaren Trout, an adjacent neighbor, expressed support for the Beechridge residents' petition. She had never been in favor of the recreation area because of the steep terrain and the fire hazard, she said. Ms. Trout noted that the Southern Community Park would soon be built, making a recreation area at Beechridge even less necessary.

COUNCIL MEMBERS AGREED BY CONSENSUS TO ADOPT RESOLUTION R-2.

A RESOLUTION TRANSMITTING COUNCIL COMMENTS ON A CONCEPT PLAN FOR BEECHRIDGE PLANNED DEVELOPMENT (2004-11-15/R-2)

WHEREAS, a Concept Plan has been submitted for review by the Council of the Town of Chapel Hill, for Beechridge Planned Development; and

WHEREAS, the Council has heard presentations for the applicant, and citizens; and

WHEREAS, the Council has discussed the proposal, with Council members offering reactions and suggestions;

This the 15^th day of November, 2004.

Item 6 - Concept Plan: Franklin Grove Development

Mr. Waldon said that this proposal did not request any site changes. The issue involved the amount of floor area that had been authorized by the SUP, he said. Mr. Waldon explained that the applicant wanted to amend the SUP to allow more flexibility in the construction of the annexed storage space. He reminded the Council that Mr. Dowling had expressed support for this proposal on the grounds that increasing floor area would give him some flexibility with the affordable units that were part of this development.

Developer Eric Chupp, of Kapkov Ventures, Inc., stressed that he was not requesting modifications to the 53 townhome project but only asking to continue building it in the form in which it was approved five years ago. From the beginning, he said, Kapkov Ventures had planned to build walkup attics with staircases. This had been approved at every step of the process until it reached the Town Planning Department, he said. Mr. Chupp stated that the Planning Department had told him that the unfinished attic might have to be considered floor area.

Mr. Chupp stated that Kapkov Ventures would have omitted the staircases if they had known that they would be considered as floor area. If the definition of unfinished attics is adopted as floor area then they will have to stop construction on Franklin Grove, he said. Mr. Chupp asked Council members to consider the approvals that Kapkov already had received. He suggested that the Town's Planning staff be given latitude in adjusting the ordinance to meet this circumstance and that his firm be given an "administrative exception" in this case. Mr. Chupp also requested that Franklin Grove homeowners be given the flexibility to finish their attics.

Mayor Foy verified that the completed attics did not have water pipes running to them. Mr. Chupp said that Kapkov Ventures had made it clear to clients that the attics were not finishable space. He merely thought it would be to the advantage of the residents who live there if they could finish those attics, he said. Mayor Foy verified that Mr. Chupp had talked with Robert Dowling about the affordable housing that was part of this property.

Council Member Greene expressed support for Mr. Chupp's first request, stating that granting an administrative exception made sense to her. She said that it was more difficult for her to support the second request, however, because allowing the finished space would not benefit the Town in terms of density. It would merely allow the houses to have more square feet, said Council Member Greene. Mr. Chupp replied that most of the townhomes would have been built by the time that request would complete the process. Allowing those attics to be finished was not tremendously important to him from a financial standpoint, he said. Mr. Chupp stated that he would be willing to go through the process; however, to give homeowners the advantage of using that space, if the Council thought it was appropriate.

Council Member Strom asked the staff what the administrative exception would do for Robert Dowling. Mr. Waldon replied that tonight was the first time he had ever heard the term "administrative exception." He did not know what it was and had no confidence that one, as described, could be made for this project, he said. "This is a concept plan in preparation for submittal of a SUP," Mr. Waldon pointed out.

COUNCIL MEMBER WARD MOVED, SECONDED BY COUNCIL MEMBER VERKERK, TO ADOPT R-3. THE MOTION WAS ADOPTED UNANIMOUSLY (9-0).

A RESOLUTION TRANSMITTING COUNCIL COMMENTS ON A CONCEPT PLAN FOR FRANKLIN GROVE TOWNHOMES DEVELOPMENT (2004-11-15/R-3)

WHEREAS, a Concept Plan has been submitted for review by the Council of the Town of Chapel Hill, for Franklin Grove Townhomes Development; and

WHEREAS, the Council has heard presentations for the applicant, and citizens; and

WHEREAS, the Council has discussed the proposal, with Council members offering reactions and suggestions;

This the 15^th day of November, 2004.

The meeting adjourned at 10:45.