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HomeMy Public PortalAbout04-14-2008 Regular Meeting April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 1 of 46 MINUTES HILLSBOROUGH TOWN BOARD April 14, 2008 7:00 PM, Town Barn PRESENT: Mayor Tom Stevens, Commissioners Mike Gering, L. Eric Hallman, Frances Dancy, Brian Lowen, and Evelyn Lloyd. STAFF PRESENT: Town Manager Eric Peterson, Assistant Town Manager Nicole Ard, Town Clerk Donna Armbrister, Planning Director Margaret Hauth, Town Engineer/Utilities Director Kenny Keel, Finance Director Greg Siler, Police Chief Clarence Birkhead, and Town Attorney Bob Hornik. Mayor Tom Stevens called the meeting to order at 7:02 p.m. 1. PUBLIC CHARGE 7:01:56 PM Mayor Stevens did not read the Public Charge, but noted it would be abided by. INTERVIEWS Interview volunteer candidate for the Water/Sewer Advisory Board 7:02:26 PM The Board interviewed Stephen Beck. Mr. Beck provided the Board with information regarding his background and interests, noting he wanted to be active and involved with the Town. 7:04:49 PM Mayor Stevens moved Item 7.G to be heard at this time. There was no objection from the Board. Item 7.G - Consider Authorizing an Eagle Scout project in Kings Highway Park to improve former road bed for limited off-street parking 7:05:08 PM Jacob Barber, Eagle Scout, said he had been working to determine if limited parking could possibly be added on the site of the former road bed at Kings Highway Park. He said after some study, they had determined that 5 parking spots could be located there, which would remove cars currently parking on the side of the highway. Mr. Barber said those parking areas would allow for safer use of the area, particularly for parents of small children. 7:06:39 PM Commissioner Hallman said he was impressed by Mr. Barber?s project work book and proposal, noting it was well put together. He asked when he had to have the project completed. Mr. Barber said his deadline was May 31. He stated the area had already been cleared, and the only thing left to do was add stops for cars, noting that two of the spaces would 1 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 2 of 46 be reserved for compact vehicles due to the limited space. Mr. Barber added that he had received approval from NCDOT several days ago for the driveway. Mayor Stephens suggested leaving the resolution on the Consent Agenda for action at that time. 2. AUDIENCE COMMENTS REGARDING MATTERS NOT ON THE PRINTED AGENDA 7:08:38 PMKatie Thompson, the Fairview Community Coordinator with Habitat for Humanity, said they had 12 completed homes on Tulip Tree with 6 more scheduled for completion by the end of June. She said because they wanted to continue their successful relationship with the Town during the next fiscal year, they were requesting a meeting with the Board on May 1 at 7:00 p.m. to talk more about their plans and to bring the Board up to date on all of Habitat?s work. 7:10:28 PMJim Boericke stated he and a number of concerned citizens wanted to raise the issue of the parking deck lighting. He said although it would have been more sensible to address the issue before construction and to do it through the HDC, as adjacent property owners they had attended all of the public meetings they were informed of but had never actually seen a lighting plan or heard one discussed. Mr. Boericke said given that it was not discussed, they had assumed they would be protected by the ordinances that addressed lighting. Mr. Boericke read particular sections of that ordinance and pointed out where they believed violations had occurred. Mr. Boericke stated he had met with the builder and with Planning Director Margaret Hauth to see the lights at night and had discussed alternatives. He said at the time of the meeting the outer rows of lights on the three decks were turned off for maintenance, so the true glare was not able to be seen. Mr. Boericke stated at that time the builder mentioned the County had leased the very top and the very bottom floors, and they were badge-entry only. He said the upper lights could be turned off by computer if no cars were present. Mr. Boericke said in fact they were off last night and it did offer some light abatement when looking at it from one of the backyards. As to the deck lights, he said they were now all on full force, and they were high intensity unshielded lights. Mr. Boericke stated the builder had installed plantings, but it would take 20 to 30 years before they were large enough to provide any protection from the lights. Mr. Boericke said they were asking the Board to direct the staff not to grant a Certificate of Occupancy until the lighting issues had been addressed. 7:14:13 PM Commissioner Lloyd asked if he was referring to the law office when he referred to a back yard. Mr. Boericke said yes, that if you stood in that back yard you looked right up at the high intensity lights, with no shielding. 7:14:41 PM Mayor Stevens said he appreciated that the neighbors had been working with the builder. Mr. Boericke said negotiations were ongoing, but they did not yet know where that would end up. He said they wanted to make sure that the CO was not issued until the lighting was addressed to everyone?s satisfaction. 2 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 3 of 46 7:15:12 PM Elizabeth Woodman said she supported the parking deck and continued to do so, noting it was a good application of land use and parking space was needed. She said her issue was with the aesthetics, and the HDC had taken great pains to try to prevent the deck from looking like a large, ugly parking deck. Ms. Woodman said they had been partially successful, but there was a lot of dissatisfaction with the way it looked and the way it impacts the gateway into Town. She said it was not nearly as attractive as it could be. Ms. Woodman said they would like to see more screening, not with short holly trees but with more mature plantings that would alleviate some of the starkness of the structure. She said the builder had agreed to do that and hoped that the Town would encourage him to continue to go in that direction. Ms. Woodman said there were a few other suggestions they wanted to convey to the builder, but did not know how to best do that. She suggested that perhaps it could be done through the Town or the Planning Department, or even a scheduled meeting where they could discuss ways that the building could blend in better and be less stark. Ms. Woodman said it had occurred to her that such developments were on a scale that the Town had not seen before, and when there was a certain size of development it would help if the Town had a lot more control, and she was not sure the current ordinances provided that kind of control. She said an Architectural Review Committee may be a good thing for the Town Board to consider implementing before another large scale development was proposed that could severely impact the Town. 7:18:20 PM Tommy Burel stated he lived next to Mr. Boericke, and after the deck had been constructed he had walked out into his backyard one evening and the deck, to him, looked ?awe- inspiring, like The Titanic.? He said there were about 15-20 people in the area who were concerned about the lights, and believed some of the problem would be addressed by using louvers to direct the light downward rather than outward. Mr. Burel said he had lived in his home 36 years, and believed they deserved some consideration from the glare that was just too dramatic. 7:20:09 PM Commissioner Hallman asked was that topic something appropriate for tonight?s agenda. Mayor Stevens stated the next item for consideration was approval of the agenda, so the Board could consider it then. 3. AGENDA CHANGES & AGENDA APPROVAL 7:20:54 PMCommissioner Hallman believed the issue of the parking deck lighting deserved more discussion.By consensus, the Board added a discussion of the Parking Deck as Item 3.5 7:21:12 PM Commissioner Gering added an item to the Closed Session regarding a property acquisition discussion. Town Attorney Bob Hornik indicated that could be covered under Item 9A already on the agenda. 3 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 4 of 46 7:21:55 PM Mr. Hornik added to the agenda consideration of a Resolution in support of the de-annexation of the several areas near Waterstone: the northern access road no longer used; and a couple of remnant strips along the access from new NC 86 into Waterstone Drive that due to surveying errors were included in the annexation area but should not have been. He said in order to have the local bill in time for the Legislature?s Short Session to de-annex those areas, they would need to have a Board resolution supporting the de-annexation. Mr. Hornik stated if it did not merit discussion, it could be placed on the Consent Agenda; if discussion was merited, then it could be placed on the regular agenda. The Board agreed by consensus to include that resolution on the Consent Agenda as Item 7H. 7:23:03 PM Upon a motion by Commissioner Gering, seconded by Commissioner Hallman, the Board moved to approve the Agenda as amended by a vote of 5-0. The motion was declared passed. ADDED ITEM 3.5 Parking Deck Discussion - 7:23:18 PM Town Manager Eric Peterson suggested that the discussion begin with an update from Planning Director Margaret Hauth so that everyone would have the same understanding of where they were today in regards to the parking deck. 7:24:45 PM Ms. Hauth stated in late March she had met out on the property with the developer and several neighbors at night to observe the status of the lighting in advance of issuing a CO for the parking deck. She said she agreed that the Dillard Richardson property was impacted to a standard that did not meet the Zoning Ordinance, and there was also an issue with the height of the poles on the top of the parking deck. Ms. Hauth stated those light fixtures were not shown on the plan that was submitted and approved, so she did not know the height of the poles but had requested that information so that it could be corrected. Ms. Hauth said the landscaping had gone in shortly after that time, and she had granted a conditional and temporary CO for the parking deck because the issues that were outstanding would take some iterative time and visits to the site to correct, and the fact that the building was otherwise safe for occupancy. She said the owner understood that the temporary CO could be revoked at any time. Ms. Hauth said she had met with the developer?s engineers to discuss lighting and options to maintain the required level of safe lighting inside the parking deck but not create the glare on neighboring property owners. She said they wanted to be sure they knew the impact of any changes before they suggested some change, so that the current situation was not exacerbated. Ms. Hauth said she had requested lighting information be produced via models rather than just implementing changes. She said they were moving forward and the applicant was very willing to continue to met and discuss the situations. Ms. Hauth said the lighting plans were included in the plans submitted to the BOA and HDC, but she could not say that it received a lot of discussion during the course of the review. But, she said, they had that information and it had been included in the agenda packet. 4 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 5 of 46 7:27:28 PM Mayor Stevens asked would it make sense to withhold the permanent CO until the issue with the lighting was resolved. Ms. Hauth stated the current CO was both temporary and conditional, conditional on resolving the lighting issue and with a 90-day time limit. She said the Ordinance in this regard was interpretive, and there may need to be discussion about what was a zoning violation and what was not a zoning violation. 7:28:27 PM Commissioner Gering asked if the process of identifying options with the developer included the neighbors or the public. Ms. Hauth stated it would have to, because they would need to be in the neighbors? backyards to access what was and was not a violation. She said anyone impacted would be included to the extent practicable. Ms. Hauth said there had to be an understanding that this was not necessarily a situation where everything asked for would be satisfied, but was a matter of resolving any ordinance violation. 7:29:15 PM Commissioner Gering commented that even if they could determine whether it was a zoning violation at certain lighting levels, he believed the Town had a deeper obligation to the neighborhood to make corrections to the extent possible. He said this was a big impact to the downtown, and they had learned some lessons with more to learn about such projects. Ms. Hauth stated she would need guidance on how to go about that, because there was a lot of room for interpretation in the ordinance. She said if they were going to go beyond whatever her interpretation was of a zoning violation, then she needed someone else to be the final authority. 7:30:22 PM Mr. Hornik said that ultimately, the Board of Adjustment may be the final authority, because if they could not arrive at some solution, the Town Board did not have the authority to instruct Ms. Hauth not to issue the CO. But, he said, Ms. Hauth may end up making a determination that either the property owner appealed to the BOA or the neighbors appealed to the BOA as to whether or not the property complied with the Zoning Ordinance. Mr. Hornik said he hoped they could avoid that if reasonable minds could come to an appropriate solution. 7:31:06 PM Commissioner Hallman said what he was hearing was that a potential zoning violation trumped the site plan approval. Mr. Hornik said the applicant had to comply with the Zoning Ordinance, and that included any lighting regulations. He said the Town did have some leverage to get an improvement to the situation. 7:31:43 PM Commissioner Gering said even though the Town Board could not decide the issue, he believed they should remain a participant to the extent that the Town could facilitate a solution in one manner or another. He said he believed they had an obligation to do that. 7:32:32 PM Commissioner Lloyd said she had participated on the Committee that was considering the Courthouse facility expansion, and had attended the HDC meeting when the issue was considered. She said the biggest issue was how it would appear from the street and when coming over the bridge. Commissioner Lloyd said unfortunately the lighting issue was not fully considered, and when coming over the bridge she agreed with Mr. Burel that the deck stood out like The Titanic. Commissioner Lloyd stated that the area being affected was historic and deserved to be protected, as did anyone?s neighborhood being affected in that manner. 5 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 6 of 46 7:34:57 PM Mayor Stevens said certainly the neighbors were the most impacted, but there were other concerns as well. He said he would like to see to every degree possible that efforts be put forward to finding the best solution that would be right for the neighbors, be right for the entranceway into Town, and that the developer could accept. Mayor Stevens said he would like to move forward in the spirit of identifying solutions that would work for everyone, which would mean more time and the inclusion of more people to find a solution or solutions. 7:36:14 PM Commissioner Dancy said she would like to hear from the developer as far as exactly what he intended to do. 7:36:29 PM Commissioner Gering suggested adding an item on the agenda for next month to receive an update. A short discussion ensued as to which meeting agenda that issue could be added. Mayor Stevens commented that this process may need to include a community meeting or a Town Hall meeting. Mr. Hornik said currently there was no need for a public hearing as defined in the statutes. But, he said, there may come a time in the process that some kind of public informational meeting might be warranted. 7:38:00 PM Mr. Peterson asked Ms. Hauth if she had gotten a timeframe from the developer?s engineers as to when the lighting modeling would be available. Ms. Hauth said not at this time, noting that each model they ran had a dollar figure attached to it. Mr. Peterson said he asked because he did not know if two weeks was too short a timeframe to get this scheduled on the workshop agenda. Ms. Hauth stated there was some interest in getting the modeling done before the leaves were fully out, because otherwise it would drag out until next fall when the leaves fell again. 7:38:46 PM Commissioner Lowen said it was important to remember that if there were concerns about lighting now, there were two more buildings going up very soon and there would be exterior and interior lighting that would be left on at night that would have impacts as well. He said that perhaps that should be addressed before the process began. 7:39:08 PM Commissioner Gering said if the modeling was ready in two weeks, then it could be presented. He asked when the temporary CO expired. Ms. Hauth said it had a 90-day expiration, which should give them time to agree on a solution and implement that solution to make sure it was sufficient. 7:40:04 PM Tommy Burel stated from a common sense standpoint, he did not understand why the lighting that was affecting their property was turned off the night of the inspection of the lighting. He said that seemed to be a convenient time for the maintenance to take place. Mr. Burel said trees were leafing out now, and that would block out what was being experienced in the winter when the leaves were not there. He said if an inspection was done now or in the next 10 days, the leaves would screen the light and it would appear there was no problem. Mr. Burel said he could attest that the light was truly bad, and if you waited to do another inspection, it would be just like when the previous inspection was done when the lights were turned off. 6 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 7 of 46 7:41:20 PM Mayor Stevens stated he believed the Board was in agreement to find a solution as quickly as possible, and he would contact the County Parks and Recreation Board as well as the County Board with an update to keep them in the loop of information. 4. APPOINTMENTS A.Consider appointment of Stephen Beck to a first term on the Water/Sewer Advisory Committee 7:41:57 PM Upon a motion by Commissioner Gering, seconded by Commissioner Hallman, the Board moved to appoint Stephen Beck to a first term on the Water/Sewer Advisory Committee by a vote of 5-0. The motion was declared passed. B.Adopt a Resolution to Orange County recommending reappointment of Neil Jones to Planning Board 7:42:23 PM Upon a motion by Commissioner Lowen, seconded by Commissioner Lloyd, the Board moved to approve a resolution recommending to Orange County the reappointment of Neil Jones to the Planning Board by a vote of 5-0. The motion was declared passed. C.Consider appointment of a Town Board Member to replace Sabrina Farrar as the Town?s Representative on the Orange County Housing and Land Trust Board 7:43:31 PM Ms. Hauth said the other jurisdictions in the County had an elected official on this Board; this Board had always appointed a citizen. She said the tradition was for it to be an elected official. 7:43:59 PM Commissioner Lowen asked when this group held its meetings. Ms. Hauth stated they met on the second Wednesdays at 6 or 6:30 p.m. either in their Carrboro office or at the Southern Human Services Center in Chapel Hill. 7:44:36 PM Commissioner Hallman offered to serve as an Alternate, because he would be in Carrboro at 7:30 p.m. on those Wednesdays to attend another meeting. Ms. Hauth stated she believed the meetings would conclude by 7:30 p.m. simply because the elected officials likely had other meetings to attend. 7:44:57 PM Commissioner Lowen stated he would take the appointment since Commissioner Hallman had offered to be an Alternate. Commission Hallman offered to split the meetings. 7:45:06 PM Upon a motion by Commissioner Gering, seconded by Commissioner Lloyd, the Board moved to appoint Commissioner Lowen as the Town?s representative on the Orange County Housing and Land Trust Board, with Commissioner Hallman as the alternate, by a vote of 5-0. The motion was declared passed. 7 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 8 of 46 D.Consider Removal of a Margaret Lane Cemetery Committee Member due to Insufficient Attendance 7:45:46 PM Mayor Stevens stated he believed the reason Nan Dameron had not been able to attend recent meetings was due to an extended illness. Commissioner Lowen said then the motion would be to remove Ms. Dameron and they would then recruit for a replacement. He asked were there any current applicants for vacancies. Assistant Town Manager Nicole Ard stated they had in the past had difficulty obtaining a quorum, and about a month ago had advertised for applicants and got good response. She said the Committee was now conducting interviews, so there were interested applicants who could be appointed fairly quickly. 7:47:18 PM Upon a motion by Commissioner Gering, seconded by Commissioner Hallman, the Board moved to declare a vacancy on the Margaret Lane Cemetery Committee due to insufficient attendance by a current member by a vote of 5-0. The motion was declared passed. 4.1 COMMITTEE REPORTS (Critical) 7:47:46 PM No Committee Reports were forthcoming. 5. REPORT FROM THE TOWN MANAGER 7:48:20 PM Mr. Peterson updated the Board on the budget process, stating that all departments had submitted updated balance scorecard information as well as all budget requests. He said this would be the first year of the 10-year financial plan that would be integrated, so they did not yet have a bottom line idea of what the starting deficits were for the General Fund and the Water/Sewer Fund. Mr. Peterson stated he should have that in a few days, and he would then start the work of crafting a budget that was financially responsible and addressed the goals of the Town. He said they were planning to have everything to the Board by early to mid-May. 6. DEPARTMENTAL REPORTS 7:50:19 PM Finance Director Greg Siler provided some information regarding the Town?s utility bill bad debt collection efforts. He said in 2004 the Town enrolled in a collection effort provided by the State to collect bad water and sewer debt, and submitted the first group of bad accounts to the State in 2005. Mr. Siler said to date, they had sent $410,000 worth of bad debt to the State to be made good by garnishing State tax refund checks; to date they had collected $83,000 dollars. He said prior to this program, the Town had no method to collect bad debts for water and sewer. Mr. Siler reported that currently they had $495,000 in bad debt still owed to the Town, and letters were being sent on a regular basis to attempt collection. He said for those who ignore the letter, then garnishment of State tax refunds would occur. Mr. Siler said some progress was being made, with an average of $20,000 of bad debt collected each year. 8 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 9 of 46 7:53:18 PM Commissioner Hallman asked how long had it taken to accumulate the $495,000. Mr. Siler said he could only speculate, but it was greater than the 5 years he had been with the Town. He said his best guess was between 8 and 10 years. Mr. Siler said they could write off that debt, but he had chosen to leave it in the system and attempt to collect it. 7:53:50 PM Commissioner Gering asked how that debt appeared in the budget. Mr. Siler said it did not appear in the budget, but was reported in the annual financial report as to how much was charged off per year as bad debt. He said they had collected over $11,000 on a business account that they had not expected to collect, noting it was for water usage by a hotel in the area that had closed down and left town owing several months of water debt. Mr. Siler said he had not expected to collect anything on that account, so the Town had been lucky. 7. ITEMS FOR DECISION ? CONSENT AGENDA A.Consider Approval of the Minutes of the February 2, 2008 FY2009 Budgetary and Strategic Planning Retreat; the February 18, 2008 State of the Town Address; the February 25, 2008 Monthly Workshop; the March 10, 2008 Regular Meeting; the March 10, 2008 Closed Session; and the March 24, 2008 Monthly Workshop B.Consider Adoption of an Ordinance to amend Chapter 14, Section 8 of the Town Code which addresses Water/Sewer Deposit Requirements C.Consider Approval of various Budget Amendments D.Consider Approval of Change in the Town of Hillsborough Mileage Rate Reimbursement E.Consider acceptance of water and sewer facilities for Durham Tech project and begin one- year warranty period F.Consider Adoption of a Proclamation proclaiming May 10-18 as National Tourism Week G.Consider Authorizing an Eagle Scout project in Kings Highway Park to improve former (considered earlier in the meeting) road bed for limited off-street parking ADDED ITEM: H.Consideration of a Resolution to De-Annex Certain Lands near the Waterstone Development Upon a motion by Commissioner Hallman, seconded by Commissioner Dancy, the Board moved to approve the Consent Agenda as amended by a vote of 5-0. The motion was declared passed. 8. ITEMS FOR DECISION ? REGULAR AGENDA A.Consider approval of Addendum #1 to CCD Corp?s Water Sewer Extension Contract 7:55:52 PM Town Engineer/Utilities Director Kenny Keel said that representatives of the developer were present this evening to add comments and answer questions. He said the contract with the developer to extend water lines for the Wilkerson development expired in July of this year, so the developer was requesting an extension since they were not prepared to meet the July deadline. Mr. Keel said there were two parts to the addendum: to extend the time period for two additional years; and, as a part of the Water/Sewer Extension Contract for this development, the developer was to pay $59,850 to the Town once they began construction of water and sewer extension up to their property. He said that sum was to pay the Town back for a portion of the Thalle Sewer Outfall. Mr. Keel said the Town had contributed $120,000 to that project and 9 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 10 of 46 Wilkerson development was to pay roughly $60,000 in reimbursement to pay for the part of the project that benefited their development. Mr. Keel said the original contract would have had them paying that when they began development of the property, but he was proposing that the Town require that payment by this June 30, 2008, because the Town had already spent those funds to install the gravity line. He stated at this point that payment was the major point of contention. Mr. Keel recommended that the Board adopt the addendum as presented, although the Board could choose to amend it. 7:58:57 PM Kim Calleyman, representing the CCD Corporation, provided some history of the sewer easement and the Wilkerson development project. After some explanation of how they had gotten to this point, she said they would like to participate in paying the 19% they had been told was their fair share based on the $180,000 bill the Town was being charged for the sewer. Ms. Calleyman said if the Board believed that the higher payment of $60,000 was justified, she asked for an extension to contribute those funds when they developed the project, not at June 30, 2008. She said that would allow them time to get the project going or to get the property sold. Ms. Calleyman said in summary, they were asking the Town to hold to the original sewer easement agreement, or to consider the 19% on the $180,000 bill to the Town, or to ask for an extension of payment of the $60,000. 8:03:40 PM Mr. Peterson said his initial reaction to hearing this would be to say to the Board that they not take action on these items until they saw something in writing. He said it was important that all details be understood before any decision was rendered. 8:04:42 PM Commissioner Gering stated he would like to resurrect the methodology that was used to arrive at the $60,000 which was intended to be a ratio of the overall cost of the project that was attributable to the CCD Corporation. He agreed the Board could not make a decision tonight, but asked to have that information provided with all other details. B.Consider ending Stage 1 Voluntary Water Restrictions 8:05:44 PM Mr. Keel stated that in light of the recent rains and significant increases in reservoir level over the last six weeks, the Water Sewer Advisory Committee recommended that the Stage 1 Voluntary Water Restrictions be lifted. He said based on current usage they now had over a year?s supply remaining. Mr. Keel said if their usage increased to what was average, around 1.3 million, then that supply would drop to about 315 days which was still significantly more than the Town?s normal threshold for voluntary water restrictions. 8:07:12 PM Commissioner Hallman commented that he understood any hesitation to drop the restrictions, but if they dropped it now and then had to reinstate them, it would make people more aware that water continued to be an issue. He said another variable was that everyone else?s reservoirs appeared to be full, so the refill rate was a variable they needed to consider. Mr. Keel said it appeared that Cane Creek was the slowest to fill, which was still 7 feet down. He said an interesting statistic was that the area contributing to Cane Creek got about 3½ inches less rain on average than Carrboro and Chapel Hill. Mr. Keel said Lake Orange was full, but it held a 10 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 11 of 46 significantly less amount of water than the West Fork did, yet the drainage basins were virtually identical in size. Mr. Keel said his hesitancy in removing the restrictions was that in this time of year under normal conditions they should be full, but he believed they were close enough now that he did not oppose lifting the restrictions. He said the restrictions could always be reinstated if necessary. 8:09:22 PM Commissioner Gering said he was all for conservation, but one of the effects he was not looking forward to seeing was the impact on revenues. He said he believed they could afford to lift the restrictions and hopefully the Town?s customers would react accordingly. Mr. Keel said they were in their second week now of distributing less than 1 million gallons per day on average. He said they were at .972 mgd for the last two weeks. 8:10:13 PM Commissioner Hallman stated he would trust the Water Sewer Advisory Committee to let the Board know if and when restrictions should be reinstated. 8:10:22 PM Upon a motion by Commissioner Gering, seconded by Commissioner Lloyd, the Board moved to end Stage 1 Voluntary Water Restrictions by a vote of 5-0. The motion was declared passed. C.Consider Approval of a Resolution advising the Governor of NC on Proposed Drought Regulations 8:10:38 PM Mr. Keel said that a member of the Water Sewer Advisory Committee was present this evening, and would speak on the Committee?s recommendation. 8:11:18 PM Ron Butler presented the Board a resolution for its consideration and approval to the Governor of North Carolina concerning proposals for control of public water supplies during drought conditions. He commented that he had attended the Water Forum at Duke University several weeks ago with the gubernatorial candidates, and one of the major issues was the issue of water in the State. Mr. Butler said Lt. Governor Purdue supported having a regional interconnected system, to allow towns all over the State to draw on each other?s waters in times of drought. He said for Hillsborough that was a big issue. Mr. Butler said in regards to Durham, having attended the Assembly of Government meeting, 75% of the 2½ hour meeting was spent on the issue of water, that told him that in this area alone that sharing was a major issue. He said unless they had some kind of proactive planning and strategy, some of the small towns like Hillsborough would lose out. Mr. Butler said he was also shocked to discover in the gubernatorial forum that in 2001/2002 during the last drought, someone in the Governor?s Office had failed to promote discussions of where the State would go as far as water strategies. He said he believed Hillsborough should take the first step in promoting that dialogue, and perhaps with the upcoming election the issue of water could be made a central focus. 8:13:28 PM Commissioner Gering suggested that possibly the Water Sewer Advisory Committee could take the initiative to invite a delegation of candidates to have a regional discussion. He said he knew that Senator Ellie Kinnaird had made reference to an interest she had 11 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 12 of 46 in regionalization, but was not aware that she had had any real discussions with local suppliers. Commissioner Gering said legislators would have to deal with the issue, so they should make sure the Town?s legislators were in tune with Hillsborough?s interests. Mr. Butler agreed, noting that for the Governor?s powers to be increased it would take State legislation, and they needed to be in touch with their State senators and representatives. 8:14:45 PM Commissioner Dancy congratulated the Committee for its consistent efforts and good work. 8:14:47 PM Commissioner Lowen added his thanks, and said on behalf of the Board that it was not that long ago that Mr. Butler had been appointed to the Committee and he had ?hit the ground running ? and was doing a wonderful job as were many of the Town?s volunteers. Mr. Butler stated he was interested in the legislative process, noting something that had struck him in the gubernatorial forum was that Lt. Governor Purdue had made the statement that if you took the present population of South Carolina and completely dumped it into North Carolina, then that was where the State would be in 2030. He said that meant they were not only talking about the present, but also about the future of the State, and it was not looking that good. 8:16:20 PM Mayor Stevens said the resolution before the Board was a resolution opposing the increase of the Governor?s control of public water supplies during drought conditions, noting towns that had conserved did not want to be put in the position of subsidizing those towns that may have been less conservative in their management efforts. 8:17:04 PM Upon a motion by Commissioner Hallman, seconded by Commissioner Lowen, the Board moved to approve the resolution advising the Governor of North Carolina on proposed drought restrictions. 8:17:18 PM Commissioner Gering offered a friendly amendment that the resolution be forwarded to their local legislative delegation as well. The friendly amendment was accepted. The vote was 5-0. The motion was declared passed. D.Receive request from Sandra Wood and Brian Phelps to close a portion of Hayes Street 8:18:15 PM Ms. Hauth stated this request had first come before the Board in 2001. She said the family owned a house on Hayes and Sunset Circle, and they were under the impression many years ago that when Hayes Street was constructed on its current alignment that the old portion of Hayes Street was closed, but they had been unable to find any record of that. Ms. Hauth said there was some disagreement amongst the neighbors of how the right-of-way would be distributed back and this Board chose to take no action at that time because of that disagreement. Ms. Hauth said some of the property owners in the area had changed, so the Woods-Phelps were back again asking to have the street closed. She said that would require the Board to call a public hearing, although they were not under any obligation to take action on this request other than to receive it. Ms. Hauth said it was up to the Board to start the process or not, adding that if a public 12 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 13 of 46 hearing were called then an ad would have to run for four consecutive weeks. She said the earliest this could be scheduled would be at the May workshop which was already set aside for budget, or the June regular meeting or anytime after that. 8:19:56 PM Commissioner Lloyd asked was it correct that the County had nothing to do with this. Ms. Hauth stated that was correct; counties in this State did not own or control streets. Commissioner Lloyd stated the Board had not acted on this in 2001. Ms. Hauth said that was correct, but the property owner who was not in agreement in 2001 had left the area, so it was possible there would not be an issue of right-of-way this time around. 8:20:35 PM Mayor Stevens asked had the issue of the right-of-way been resolved with the other neighbors. Ms. Hauth said she did not know, and they would likely not know until letters were sent out. 8:21:10 PM Commissioner Gering asked did the Hayes street right-of-way serve any conceivable public purpose for the Town. Ms. Hauth said no, that it appeared that it just served the driveways for the adjoining houses and the yard of this house. She said they did need to make sure that the existing 8-foot public access that was shown adjacent was properly recorded as public right-of-way of at least 18 feet. 8:22:26 PM Mayor Stevens stated he saw no reason to just move forward using the standard process. Ms. Hauth stated the Board would need to adopt the resolution to begin the process and to set the date of the public hearing. 8:22:47 PM Commissioner Lloyd stated she was concerned that they would begin this process and the same issues would come up. Mr. Hornik said the issue was that when you abandon right- of-way then that right-of-way was returned to adjacent property owners equally. He said in 2001 the property owners could not agree on that, with one not even agreeing to close it in the first place. Mr. Hornik said at present there was a fence and a shed in the middle of that right-of-way. Ms. Hauth said it was the Wood-Phelps fence and shed. Mr. Hornik said the law said the abandoned right-of-way would be equally divided unless the property owners all agreed on a different arrangement. He said they would not know if there were any disagreements until the public hearing. Ms. Hauth said those affected by the right-of-way could be asked to produce letters prior to the public hearing stating their agreement or disagreement with the Wood-Phelps? proposal. She said that would reduce the possibility or a more elaborate, debated process. 8:24:40 PM Commissioner Hallman suggested instead that they ask the Wood-Phelps? for more information prior to setting a public hearing, and request those letter from the affected property owners to be provided for a future meeting so that the Board would have some idea of whether or not the right-of-way closure would be controversial. Ms. Hauth said that would be appropriate. 13 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 14 of 46 8:25:13 PM Mayor Stevens stated if the Wood-Phelps? could get agreement from their neighbors in letter form, then the Board could then set a public hearing. He said if they could not get agreement, they would still have the right to bring that back before the Board. Mr. Hornik said that was correct, and the Board could still decide if they wanted to go forward with the process. E.Receive request from Orange Rural Fire Department to close a portion of the alley connecting Margaret Lane and Nash and Kollock Streets 8:26:06 PM Ms. Hauth stated the portion in question was only the portion where there were two adjoining properties aligned, which was approximately 25 feet in length along the alley. She said closing that portion of the alley would allow access from the Fire Station itself out to the north and allow access from the back parking lot out from the realigned alley. Ms. Hauth said this would not impact the Prysock building or the ENT Land Survey building; they would retain their portion of the alley that got them out to Nash and Kollock Streets via the relocated alley at the Gateway Center. 8:27:53 PM Commissioner Hallman said he did not understand why the Town would want to give up that right-of-way. Commissioner Lloyd said it would be helpful to the Fire Department. Commissioner Hallman asked in what way. Ms. Hauth said it would create one parcel of land of which all had public road frontage as opposed to two parcels with one that had no public road frontage. She said that would mean that if that property were ever to be sold, the property in the back could not be sold individually. 8:28:22 PM Mr. Peterson stated he had met with John Forrest, Jeff Cabe, and Alois Callemyn. He said originally they had wanted to close the entire alley, and after some discussion the suggestion was made to close only the aligned portion, which he concurred with, and doing so would make the property much more valuable for Orange Rural. He reminded the Board that the Town owned the building and the footprint around the building, and Orange Rural owned everything else. He said if the Board believed the Fire Department would be there in perpetuity for hundreds of years, then this likely would make no difference. But, Mr. Peterson said, if the Board thought there was a possibility that the Town and the Fire Department may at some time partner up and decide there was a better use for that property, this property could be sold together. He said that would mean a larger gain financially. Mr. Peterson said from the staff perspective no one would loose any access, so he saw no reason not to do it. He said it was in the Town?s best interest and in Orange Rural?s best interests. 8:30:00 PM Commissioner Hallman asked could the Town retain some kind of easement. Mr. Peterson asked why they would need one. Commissioner Hallman said it seemed like a connector that might in the future serve someone else, should that property not be the fire department in the future. Mr. Peterson said the property was devalued significantly by not being joined. He said if the Town and Fire Department decided to build another fire station elsewhere, then the property would be significantly more valuable by closing that portion of the alley and connecting the two parcels. 14 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 15 of 46 8:31:34 PM Commissioner Lowen moved to schedule a public hearing on the closing of a portion of the alley connecting Margaret Lane and Nash and Kollock Streets for July 14, 2008. Commissioner Dancy noted a correction in the resolution, stating that in the second paragraph ?Town Bard? should be ?Town Barn.? Ms. Hauth noted the correction. 8:31:58 PM Commissioner Lloyd seconded the motion and the motion was adopted by a vote of 5-0. The motion was declared passed. F.Consider Awarding Gold Park construction contract to Mainline Construction of Durham for $1,448,520.54 8:33:22 PM Ms. Hauth stated that they were ready to move forward with the construction of Gold Park, noting a pre-construction meeting was scheduled for next week. 8:34:05 PM Upon a motion by Commissioner Dancy, seconded by Commissioner Hallman, the Board moved to award the Construction Contract for Gold Park to Mainline Construction of Durham in the amount of $1,448,520.54 by a vote of 5-0. The motion was declared passed. Ms. Hauth noted the construction period was 180 days, weather permitting. G.Consideration of a Preliminary Subdivision Plan for Tryon Investment to create 3 lots from 5.3 acres and extend Executive Court in the Meadowlands 8:34:47 PM Ms. Hauth stated that the Planning Board and the Parks and Recreation Board both reviewed the subdivision, and because it was non-residentially zoned under the Town?s ordinance there was no such thing as a minor subdivision for non-residentially zoned parcels. She said this was the lot across Executive Court from the Steele site. Ms. Hauth said it was 5.3 acres and the request was to create 3 lots and extend Executive Court into the parcel. She said they had provided the sidewalks as required by ordinance, but the Parks and Recreation Board recommended accepting a payment of fees in lieu of recreation dedication rather than accepting the land offered by the applicant. Ms. Hauth said the Planning Board recommended approval of the proposal with either option. 8:36:16 PM Commissioner Hallman said he believed the Planning Board had discussed the road conditions, particularly around the turns with 18 wheelers. He said those were the Town?s roads which seemed to be adversely impacted by heavy truck traffic, especially at the entryway off of US 70. Commissioner Hallman asked did the other intersection receive more impact. Ms. Hauth said until they saw what type of uses would go on each of those sites, it was hard to predict exactly what impact would be caused by the subdivision. She said she would defer to Mr. Hornik as to whether it was a condition that the Board could take up at the intersection of Executive Court. Ms. Hauth said another thing that contributed to the problems along Meadowlands Drive was the doctor?s office had closed another location and more of their customers were now coming to this site, exacerbated the parking issue. She said those issues should be resolved when the new buildings were completed, because much of that parking would be shared with the doctor?s office. 15 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 16 of 46 8:37:50 PM Commissioner Hallman said if the Board waited, would there be a possibility of any off-site road improvements, or would it fall on the individual site. Mr. Hornik stated it would be difficult to require an individual developer to make that kind of improvement. He said if the Board wanted to make it a requirement, then the time to do that was now. 8:38:23 PM Commissioner Gering said he had the same kind of concern looking at the Planning Board minutes. He said those minutes indicated that Mr. Parker had said he would make sure that the turning radius met the standards for WD50 trucks, which were essentially 18 wheelers. Commissioner Gering asked did that mean that the current road was sufficient, or that they would make improvements to accommodate 18 wheelers. Ms. Hauth said she believed that meant that they could double-check that the road as it currently existed met standards, which they believed it did, but if it somehow it did not then they would make the improvements. 8:39:26 PM Allan Pritchard, representing Summit Engineering, stated Ms. Hauth?s interpretation was correct. He said the way the road was designed, it exceeded NCDOT standard, but if it needed to be at a larger radius then they would do that. 8:39:38 PM Commissioner Gering said he had noticed that there were large rocks embedded in the soil at the corner, which looked to be a temporary remedy for trucks that were rolling off the edges. Mr. Pritchard stated that was around the entrance to Executive Drive, and that would not be the case in this cul-de-sac. Ms. Hauth said she did not believe those rocks were mean as a temporary solution, rather they were meant as a quasi-permanent solution to the turning radii. 8:40:39 PM Commissioner Gering stated it appeared this was a problem that would be exacerbated, and that might not be a good solution. Mr. Pritchard stated the situation would be looked at, and it was possible that perhaps wider pavement could be placed at the entrance to Executive Park rather than the rocks. He added that when they had spoken to the Planning Board and the Parks and Recreation Board, they had asked if the applicant would make a payment-in-lieu rather than the recreational area, and the applicant had agreed to do that. 8:41:31 PM Commissioner Hallman stated he would like to see a condition of approval that the intersection of Meadowlands and Executive Drive be improved to handle potential truck traffic. Ms. Hauth said she did not know what the turning radii was for a particular type of truck and whether that would actually result in changes on the ground, so she was not sure a condition could be crafted now that was based on current standards. 8:42:15 PM Commissioner Gering said in that case he would like to defer this, noting it was inconsistent for the Board to say there was not a problem when they did not know if the intersection met the standards or that the problems would be addressed. Mayor Stevens said even if it did meet the standards, there was still a problem that needed to be addressed. Mr. Hornik said the Board had control over the roads, so if there was a problem now was the time to make sure it was addressed, adding that did not have to be decided tonight. 16 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 17 of 46 8:43:14 PM Commissioner Hallman agreed with Commissioner Gering that the item should be deferred until a solution was offered. Commissioner Lloyd agreed, as did Commissioner Dancy. Ms. Hauth said then the Board was asking for a statement one way or the other in terms of whether the current intersection meet the standard for the type of trucks mentioned by the Planning Board, and that if it did meet the standard, what else would the applicant do. She said if it did meet the standards, what did that design look like and would it solve the problem. Commissioner Gering said that was exactly what he wanted. Mr. Hornik said he would like to request that the developer put in writing its offer to make a payment-in-lieu rather than providing the recreation area. Mr. Pritchard stated he could provide the letter regarding the payment-in-lieu. He said he believed the developer would like to see what the Board would recommend to solve the problem at the intersection, and believed that same problem existed on every corner in the Meadowlands. 8:45:47 PM Mayor Stevens said there may be several solutions, and it was incumbent on them to find some way to addressed that. Mr. Pritchard asked did the Town believe that would be above and beyond NCDOT standards. Mayor Stevens responded they did not know at this point, because they did not know what the standard was and if the intersection met that standard. H.Consideration of a resolution amending the Special Use Permit for Corbinton Commons to convert to a CCRC model for 274 units with 47 single family houses 8:46:32 PM Ms. Hauth said in the agenda packet was the draft Planning Board minutes following the March 20 public hearing where it listed out the 19 conditions being recommended. She said she had also inserted those conditions at the end of the proposed resolution that would amend the current resolution. Ms. Hauth said because the CCRC was offered as an option, she had attempted to craft wording into the resolution that said if they constructed a MAHS these conditions applied, but if they constructed a CCRC then these other conditions apply. Ms. Hauth said the consensus of staff was that there was still the outstanding issue of the revenue neutrality that could not be resolved with a condition that was satisfactory, so staff was bringing that issue before this Board to provide more direction on how to work with the applicant or for the Board to work with the applicant to come to a decision. 8:48:00 PM Commissioner Hallman said without having to define that, was it the Board?s intent to pass this tonight. Ms. Hauth said she did not believe it was specific enough for that. 8:48:40 PM Mr. Hornik said over the course of the last week he had had several conservations with Pete Birksteader, the attorney working with the developer, about the revenue neutrality issue. He said they had not come to any solution or conclusion. Mr. Hornik said one thing he had said was that if the property was at some point owned by a not-for-profit corporation that there be a provision of condition on the SUP that said that corporation would make a payment-in-lieu of 17 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 18 of 46 taxes equal to or based on some amount equal to the value of the property. He said that Mr. Birksteader had expressed concern about how that might affect their ability to finance the project. Mr. Hornik said he had spoken to Chapel Hill Town Attorney Ralph Karpinos since Chapel Hill had similar projects, and he had referred him to Gene Poveromo in Chapel Hill?s Planning Department who was familiar with Chapel Hill?s projects that similar conditions had been placed on. He said Mr. Poveromo had said if the project or the property was conveyed to a not-for-profit corporation then a payment-in-lieu of taxes calculated on some formula must be paid, so it was a condition that ran with the land. Mr. Hornik said he had also looked over various statutes that addressed tax exemption that these types of facilities might be entitled to, and the statutes used a sliding scale of exemption from property taxes based on a percentage of resident revenues that were essentially contributed back into the community in some way. Mr. Hornik said there was a Health Care Facilities Financing Act that had other provisions, in that if you were a qualified facility then you were entitled to a real property tax exemption. He said at this point, they had not come to any kind of solution to the issue. Mr. Hornik said he had understood that this Board was basically saying that they wanted to be revenue neutral in comparison to a 100% taxable development of this portion of the property. He said that Mr. Birksteader had expressed to him that Ellis Coleman had said that it should really be compared to the MAHS model that could be a not-for-profit type of operation. Mr. Hornik said he had believed the Board was thinking that they were comparing the revenue neutrality not to the MAHS but to assuming a fully taxable development of the eastern portion of the property. He said at the least it was important to make clear what the basis for comparison was, and once that was clear they could talk more about solutions. Mr. Hornik said he had also said to Mr. Birksteader that he did not know whether the Board was interested in guaranteeing essentially a ?dollar for dollar? revenue neutrality, or something that was more a rough equivalent revenue neutrality. So, he said, a question would be how detailed would the formula need to be. 8:53:10 PM Commissioner Gering asked what the provisions were that had been approved for the Waterstone CCRC. Mr. Hornik stated that was not fresh in his mind and could not recall, but there were provisions about capital contributions and times of various kinds of contributions, although not strictly related to the CCRC facility. Commissioner Gering said for him that would be an historic reference. 8:54:12 PM Commissioner Hallman said he was not sure what the comparison was that they needed to use, and would like to hear arguments about that. 8:54:15 PM Commissioner Lloyd said if this were left as a MAHS, would that be a non-profit. Mr. Hornik said it was possible, adding the Board had not imposed any condition regarding revenue neutrality at that point in time. He said in his discussions with Mr. Birksteader, he believed he had heard the Planning Board saying that solid waste collection was not such an issue, but the real issues were fire and police protection as well as road maintenance that were the costs the Town would be absorbing if limited tax revenues were coming from this facility. So, he said, those were the issues that needed to be addressed. 18 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 19 of 46 8:55:48 PM Mr. Peterson stated that regarding the roads, you would get allocation based on street mileage and population, so if you increased population then Powell Bill funds would be used. 8:55:58 PM Commissioner Hallman stated there would be a disproportionate impact on fire and first responder. Mr. Hornik stated the Planning Board had discussed that as well. Commissioner Gering asked if the County tax revenues would be affected in any way. Mr. Hornik said the facility would be entitled to a total exemption, including from County taxes. Commissioner Gering asked if the Town were to impose a condition, would it be only for the Town or would the County be included in that. Mr. Hornik said the Town?s conditions would be to offset the Town?s costs, not the County?s. 8:57:13 PM Commissioner Hallman said the proportion of tax they would be paying would be highly weighted towards the County, so if they were revenue neutral, in that respect it would be a huge advantage for the applicant. Mr. Hornik remarked he had located the conditions imposed on Waterstone, which said ?The developer has represented to the Town that the CCRC facility proposed for parcel 17 will be a taxable facility, i.e. it will be subject to ad valorem property taxes, but could not guarantee to the Town such facility will forever remain subject to real property taxes. Therefore, as part of the Special Use Permit process, the developer shall cause its architect to provide the Town with a certificate which sets forth the costs of construction of the facility. Each tax year thereafter, the Town shall calculate the combined value of the facility, including the cost of the construction of the fair market value of the land, hereinafter the payment-in-lieu valuation, and apply or cause to be applied to the payment-in-lieu valuation, and in the event that the CCRC may occupy any portion of parcel 16, the value of the portion of the land in parcel 16 occupied by the CCRC facility, the then current Town tax rates to calculate a voluntary payment-in-lieu of ad valorem taxes payment-in-lieu amount. This payment-in-lieu amount will be payable in each tax year as if the parcel or portion thereof remained on the tax role. The Town shall each year furnish or cause to be furnished in writing to the owner of parcel 17 the payment-in-lieu valuation, the current tax rates, and the payment-in-lieu amount, which payment-in-lieu amount shall be paid to the Town between January 1 and January 15 of each fiscal year. The payment-in-lieu valuation may change from time to time during the ordinary course of the property tax reassessments periodically undertaken for all properties in the Town.? 8:59:58 PM Commissioner Gering stated he would offer that statement as parameters that would satisfy his concern. 9:00:12 PM Commissioner Dancy said she was still concerned about the balloons flown to indicate the proposed heights of the buildings, and was leaning towards having only 3 stories. She said she had thought about it often when driving in the area, and the development would be a huge impact that would change the entire look of the neighborhood. Commissioner Dancy said she would like the Board to consider reducing the building heights to 3 stories. 19 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 20 of 46 9:01:05 PM Commissioner Gering wondered if the Board needed to go into all of those kinds of issues before they received a complete package to consider. He said they may need to consider trade-offs between the different issues. Commissioner Lowen stated regarding the payment-in-lieu, it was a matter of looking at the total numbers and what was the Town willing to accept. 9:02:09 PM Mayor Stevens said certainly the arrangement for Waterstone quoted by the Attorney would go a long way to resolving that issue, noting it as a good arrangement from the Town?s point of view because it contributed to the costs of services. 9:02:56 PM Commissioner Lowen asked if legally the Town could set a standard valuation, if the Town wanted it to be different in order to lessen the burden. Mr. Hornik said if they were doing it as a payment-in-lieu formula, it would be whatever was agreed to, but if the Town?s position was that they did not need a dollar-for-dollar formula, then one thing they could do would be to take the payment-in-lieu valuation established each year and multiply that by the tax rate that was applicable each year, then if the Board wanted to subtract a percentage of services not provided, then some percentage, for instance 75%, of that amount would become the payment-in- lieu. 9:04:36 PM Mayor Stevens stated that appeared to be very straightforward in terms of crafting an agreement. Mr. Hornik said it had not been expressed to him that that kind of formula would jeopardize financing through the Health Care Facilities Financing Agency. Mr. Peterson stated that hypothetically under Mr. Hornik?s scenario, and in thinking about Waterstone, that Corbinton would be getting a better deal than Waterstone. He said the Town had already agreed on a lease and a Master Plan agreement with Waterstone and they had made millions of dollars in contributions to the Town, past, present, and future. Mr. Peterson said a portion of that would be coming out of the CCRC, and they would be giving a competitive edge to this project over Waterstone even though they had arguably invested more in the community. He said the question was if that was fair and if it was the right thing to do, and would the Town be better off with a MAHS or with a CCRC. Mr. Peterson said if you wanted to do a CCRC in Town, then Waterstone would be the model, as opposed to creating an uneven playing field and putting Waterstone at a disadvantage for their CCRC potentially in the future. He said it may not make a difference in that this project would be full before the other one got started, but he did not know the answers. 9:06:39 PM Commissioner Hallman reiterated that it would help to see those numbers. 9:06:43 PM Mayor Stevens asked Mr. Coleman in what way would that jeopardize funding for the project. 9:06:54 PM Commissioner Hallman said any time the Town put a condition on that it would have to be revealed to the planning source, and it really was not the Town?s problem if it was a ?go or no go? issue. 20 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 21 of 46 9:07:11 PM Ellis Coleman said that this CCRC was really the only one this development would ever get to look at, because they were already underway and they did not have time to wait for a for-profit to come forward. He said they were willing to do a pilot program at some level that would be revenue neutral to the Town from what it had today, in total. Mr. Coleman said the parties had agreed that that was a level that they would accept, because the difference between the two was not really that much. He said they would be eliminating 23 homes and eliminating the office building discussed with the Planning Board. Mr. Coleman said unlike Waterstone, whose provision said that they would basically access the whole new CCRC and make a payment-in-lieu equal to what the total tax would be, he believed that was something that would stop the process for this applicant. Mr. Coleman said the only way the applicant does not pay the tax to Orange County was to make almost a dollar-for-dollar contribution to charity. He said because Orange County was a higher tax rate than Hillsborough, they would be forced to make the charitable contributions to 5% of their income to pay that tax. Mr. Coleman said essentially what they were saying was that they would pay the same amount, in a combination of charity and tax, as if they were a for-profit. 9:10:06 PM Commissioner Gering said he believed how to allocate the 5% was at the discretion of the CCRC, for some community purpose. He said that did not necessarily imply that it would go to the County coffers. Mr. Coleman said what he was saying was that to be tax exempt at all they would have to make those contributions. Commissioner Gering said then perhaps there was some method that those contributions or a portion of those contributions could to be directed towards a community purpose that was relevant to Hillsborough, such as subsidizing water and sewer services for low income persons. Mr. Coleman stated when meeting with the applicants, he had outlined what he believed the revenue neutral statement meant, in that they were taking away 23 homes and taking away an office building, and that amounted to about $100,000 in tax. He said the MAHS facility was already non-profit, so that portion was sort of equal to the Town. But, he said, the homes that were being taken off the tax record was worth about $100,000 a year, and if they could structure a pilot program in that context then he believed this could go forward. 9:11:43 PM Commissioner Hallman said that may be an avenue for a solution, if they could somehow direct that percentage that went to non-profit work to be focused in Hillsborough rather than County-wide to compensate for the impact on the local community. 9:12:06 PM Mayor Stevens said an example would be recreation, which was an issue locally. Mr. Coleman said as long as it would qualify to move them towards tax exempt status for Orange County, then the donations could be made and that would make sense. Mr. Hornik stated that the NC Statute 105-278.6 said that a retirement facility qualified for tax exempt status if it met all the conditions listed in that section. He said the section they were most concerned with was subparagraph 6, which said it must meet either a. the facility served all residents without regard to the resident?s ability to pay, or b. at least 5% of the facility?s resident revenue for the financial reporting period was provided in charity care to its residents, in community benefits, or in both. 21 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 22 of 46 Mr. Hornik said looking at the language of the statute, if you had community benefits, which could be parks and recreation, some kind of source of revenue for a senior center, or for low income water or whatever, those benefits would fall within the community benefits category. He said that may be a way to make this work. 9:13:51 PM Commissioner Hallman stated he would still like to see some numbers so that they could have a good feel for the impact on the Town. He said until the Board saw the revenue numbers and knew what that 5% represented, they would not know how to reach that balance. Mr. Hornik said the resident revenue was defined as annual revenue paid by a resident towards goods and services and one year?s share of the initial resident fee amortized in accordance with generally accepted accounting principles. 9:14:30 PM Mr. Coleman requested that the Board authorize the Town Manager and Mr. Hornik to sit down with the applicant and try to craft something and then bring it back to the Board. He said he really believed that the Board had a point where they would say they would not approve the CCRC, and he believed that the applicant would have a point where he would say they could not do it. Mr. Coleman said he believed a small group at the table along with the respective attorneys could likely craft something that would make sense that could then be presented to the Board. He said he would like to see the process continue to move forward. 9:15:33 PM Commissioner Hallman said he believed they had now focused the problem down and now knew what the parameters they could adjust were. Mr. Coleman said that would keep them from paying double, so that was a very good idea. He said if the contributions to the Town were actually qualifying them to be tax exempt, then that was the secret to making this work. 9:16:03 PM Mayor Stevens said their interest as a Town was to cover some of the costs of providing services, and that might well be offsets that went to other areas, such as recreation. Commissioner Hallman stated they were also not opposed to taking payments-in-lieu. Mayor Stevens said they wanted to be fair, but it was in the Town?s interest to say what the fair portion was for this facility. 9:17:02 PM Commissioner Hallman said he did not want them to forget what the Town Manager had brought up about setting a precedent in regards to the Waterstone issue. Mr. Peterson said the one thing he had forgotten to say was that the applicant had the MAHS approved by right. He said if they were going to do the MAHS they would not need to come back before the Board. Mr. Hornik said that was correct. Mr. Peterson said then perhaps his questions were flawed given this one example because they could build the MAHS regardless. He said so, the comment Mr. Coleman had made about the different between the MAHS and this was valid. 9:17:48 PM Mayor Stevens said they would certainly take that into consideration, but he would agree that the small group meeting between the applicant the Manager and the attorneys to come up with some numbers and a solution would be beneficial. 22 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 23 of 46 Mr. Coleman said one other issue he wanted to address was the part about the Duke Wellness piece. He said in the plan, there were originally 69 homes on this side of the creek, and a 30-unit condo building. Mr. Coleman said when they moved to the Wellness Center in the plan, they took the condo building units out and put them across the creek. He said the Wellness Center was added and all of that street turned to single-family homes. Mr. Coleman said they would like that portion of the SUP to be modified whether or not the CCRC was approved, adding there was an opportunity to bring the Wellness Center in this year in advance of the CCRC. 9:19:53 PM Commissioner Gering said then would that be a modification to the SUP already approved, or would it be only if the CCRC was denied. Mr. Coleman responded it this was denied, they would still like to request that the Wellness Center be considered as a separate issue. He said he believed that was a worthwhile change to the current SUP, even not considering the CCRC. Ms. Hauth said to clarify, the applicant would like the conditions to read such that the plan the Board had seen for the western side of the site was the plan they would build regardless, and that the eastern part of the site was the only part that was optional. She said that would need to be added as a condition so that whether they go MAHS it would be one way, and if they went CCRC it would be another way. Ms. Hauth said that would bring back those condos and what the Wellness Center was or was not would impact the subdivision and many other issues. Mr. Coleman stated if the Board wanted to discuss any of those provisions hammered out with the Planning Board, he had a handout to assist in that discussion. He noted that they had agreed to all of those provisions. The Board took several moments to read through the handout, and Mr. Coleman responded to comments. 9:25:00 PM Mayor Stevens said they had discussed building height concerns as well as the revenue neutrality, and asked were there any concerns or issues that needed to be brought forward. No additional issues were offered from the Board. Mr. Coleman said after meeting with the Planning Board and talking with the neighbors, they had adjusted and reduced the height of all the buildings towards the neighbors to three stories, and had eliminated all of the five-story portions of the buildings. He said at the end, the Planning Board had dwelled on the overall building height limit for the Town. Mr. Hornik said what had been said was four stories, no taller than 65 feet, and three stories, no taller than 53 feet. He said the 65 foot height was decided on because it was allowed in other zoning districts. 9:27:37 PM Commissioner Lloyd asked if this was a non-profit, then would they pay nothing for the use of first responders or the fire department. Mr. Hornik said they would be treated as any other property owner in the area. Commissioner Lloyd said your taxes were suppose to cover you if you lived in Town, but if they were not paying taxes as a non-profit, did that mean they would be provided a free service by the Town. She said it bothered her that citizens had to pay for those services, but this project would not. 23 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 24 of 46 Commissioner Hallman said he believed the residents would pay the same fees as everyone else paid. Mayor Stevens stated that was a question they would bear in mind. I.Consideration of Special Use Permit modification for Oakdale Village relative to freestanding sign location and type 9:29:38 PM Ms. Hauth said in light of the recent changes to the sign ordinance and the proposed change that Oakdale Village had, she had wanted to bring this to the Board?s attention and get some direction as they moved forward. She said when Oakdale Village was approved, three signs were approved: one on the north side of the site that was to be in a landscaped wall that said ?Oakdale Village; one on the pond site that was a multi-tenant sign; and then one on the corner of Oakdale Drive on a landscaped wall that would be for that corner tenant alone. Ms. Hauth said the UNC Primary Care office was ready to open and had requested a freestanding sign identifying their site, which would replace the development only sign previously approved. She said with the recent changes to the ordinance it was not clear whether this request required Board action and she believed it was necessary to obtain direction from the Board on whether changes of that nature required its action or could be approved at the staff level. Ms. Hauth added that all of the signs met the requirements of the ordinance. 9:32:32 PM Commissioner Hallman asked if the ordinance addressed the support structure of the signs or only the height and square footage of the signs. Ms. Hauth said the ordinance stated that the calculation was for the message and not for the supporting structure. She said she interpreted that to mean the entire sign, including the support structure, was subject to the height ordinance but the square footage of the message was what they applied the sign ordinance to. 9:33:37 PM Mayor Stevens said then essentially there were still three signs only and they met the ordinance requirements, and the change was just in the message on one sign and that there would now be no sign that said ?Oakdale Village.? Ms. Hauth said that was correct. Mr. Hornik said if the Board wanted to give any recommendation to staff as to how to handle such requests in the future, he suggested couching it in terms of what the zoning ordinance was at present. He said it could be characterized that this could be considered a minor change rather than a modification of the SUP; if it were a minor change staff could approve it, but if not then the Board would have to go back through the public hearing process to make a modification to the SUP. Mr. Hornik said he did not believe the Board would want to do that. 9:34:38 PM Upon a motion by Commissioner Gering, seconded by Commissioner Lowen, the Board moved to consider that the change requested to the approved signs for Oakdale Village be considered a minor change requiring staff approval only relative to freestanding sign location and type by a vote of 5-0. The motion was declared passed. 9:35:07 PM Ms. Hauth shared information related to another SUP and the sign ordinance. She said the Ghandi convenience store was getting closer to completion, and their plan approved by the 24 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 25 of 46 Board showed a sign that was in excess of 10 feet tall and 75 square feet, in no way compliant with the new ordinance. Ms. Hauth said in meeting with them regarding sign approval, she had relayed information regarding the new sign ordinance and that they could erect the new sign, but it would likely remain for only about six years before they would be required to comply with the new ordinance. She said she had suggested they consider a sign that would meet the new ordinance now, and they were very seriously considering bringing in a sign that was 7 feet tall and 60 square feet for the gas station, convenience store and Burger King. Ms. Hauth said that sign would go up about the same time as the Oakdale Village signs, so the Town would be able to use them as examples of what such signs should look like. She said she had wanted to let the Board know that the Town had very good corporate citizens about to do business in the Town. 9:36:55 PM Mayor Stevens said the Board would like to recognize good corporate citizens, particularly when the press was in attendance, who recognized the sense of community and sense of place. He said he was delighted to hear this success story. Ms. Hauth said she was very hopeful that she would not be bringing the Board a proposal for the larger approved sign, but that the smaller sign would be approved as a minor change. RECESS 9:37:53 PM Mayor Stevens called for a short, five minute break. 9:42:20 PM Return to Open Session. J.Discussion of how to proceed with the Commercial Solid Waste Franchise 9:42:17 PM Ms. Ard said speaking of good corporate citizens, she had recently learned that the Town would be loosing General Manager Bill Davidson with Waste Industries who would be moving to Nashville. Ms. Ard stated at the last Board meeting the Board had asked that this issue be deferred, but a meeting had already been scheduled with downtown merchants to discuss recycling and solid waste services. She said they had not gotten a good response, with only 3 people attending. Ms. Ard said from that meeting they had discovered that much of the concern centered on the condition of the recycling and solid waste areas, but that was the responsibility of the users of those shared dumpsters. Ms. Ard said since that meeting, there was a resolution that appeared to have worked in terms of putting a lock on the dumpster area of the solid waste service. She said she had not received any negative feedback since that lock was installed, noting that it seemed only fair that all users who wanted to participate pay their fair share. Ms. Ard said during the public information comment period, they had received very few comments and all of those were regarding the downtown area. She said based on the response, she believed they had found a solution that would work long term. Ms. Ard said there had been some discussion in terms of if the Board choose to extend the current franchise for another year, would the downtown area possibly be a separate entity for any future franchising activities. She said that 25 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 26 of 46 may not be cost-effective for smaller businesses that did not use the service as often or used it in much smaller quantities, but that had been suggested by Mr. Davidson. Ms. Ard said one particular business owner had questioned why have a franchise at all, so there were many different perspectives. She said it was unfortunate that they did not have the perspective from some of the larger businesses outside the downtown areas, but hoped that the interim steps taken by those business owners would address that. Ms. Ard said during the comment period, a couple of business owners had noted their concern about health violations stemming from the solid waste service. She said Mr. Davidson had visited the Health Department and had accessed records regarding a dumpster that had needed replacement, and he was not able to find a record of any violation that was a direct the result of Waste Industries. 9:47:13 PM Commissioner Lloyd said since the lock had been installed, the people who came from out of Town to clean could no longer get in. Ms. Ard said if they were working for someone who had paid to use that dumpster, then they should have access. Commissioner Lloyd said her point was that those people should not have access, and that was a positive outcome. Ms. Ard said typically the Board would re-bid the franchise contract just to make sure they were getting the best responsive service possible at the lowest cost. She said the Board had the option to renew the current franchise or to re-bid it. 9:49:13 PM Mr. Peterson said he believed that Waste Management had been good to work with, noting they had worked well with the Town and had done a good job. He said the Town had received only a few complaints, which were valid and definitely should be addressed. Mr. Peterson said his question was if the Board did decide that they wanted to re-bid the franchise, was 3 to 3½ months sufficient time to do a good and thorough job. He said he would imagine that Waste Industries would be glad to extend the contract beyond that point if it did take that length of time to re-bid the franchise. Ms. Ard said the timeframe was extremely tight. 9:50:29 PM Commissioner Gering asked was staff suggesting extending the current contract. Ms. Ard said that was one option the Board had. She reminded the Board that extending the current contract would be under the original terms, so doing something different for the downtown may not be acceptable legally unless it was by mutual agreement. Mayor Stevens said they could suggest modifications to the original contract. Mr. Hornik agreed. 9:51:06 PM Commissioner Lowen said extending it would be only for the one year remaining. Ms. Ard said that was correct, noting this was the last year it could be extended. Commissioner said he believed that would make more sense that going back through the re-bid process now, noting that would provide the necessary time to go back through the bidding process next year. 9:51:28 PM Mayor Stevens asked if the Town were to request an exception to the downtown area, would Waste Industries be amenable to that. Bill Davidson, General Manager of Waste Industries, suggested that the downtown go to residential carts. He said that may not facilitate the 26 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 27 of 46 restaurants that produced the majority of the trash, but it would serve the smaller businesses. Mr. Davidson said at present they were offering 5 times a week service or the dumpster service, and they were still not generating enough revenue from the participating businesses to pay for that level of service and they and the Town had been subsiding that for some time. He said they had been looking for resolution to that by having all users pay the fee. Mr. Davidson said he believed Waste Industries would be interested in some modification to address that. 9:53:01 PM Mr. Peterson said if the cart service provision could be added on to the contract, that would be the best case scenario. Mr. Davidson said currently they could not do that unless it was lucrative, and he did not believe the businesses would want to pay the fee. Mr. Peterson said then Waste Industries would not mind another carrier picking up for the smaller businesses. Mr. Davidson said that was correct. Ms. Ard said one other issue staff had discussed in terms of the smaller bins and their location was the aesthetics of having them on the curb or in parking lots. Mr. Peterson said in the absence of having a readily available solution, he believed the default would be to extend the contract for the one year until next July, which would give them over a year to develop a solution that would address all the issues. He said he believed the solution would be to have the people downtown pay their fair share for the existing dumpster locations. Mr. Peterson said if a dumpster were placed in the area behind Bandito?s and Dual Supply he believed that would address much of the concern in that area. Mr. Peterson said they would be amenable to making the two Town spaces in that area available for cardboard recycling if the businesses in the area chose to do that. He said they had checked and no one else was willing to give up any space for a dumpster in that area, which was unfortunate since he believed that would be the ideal solution. 9:57:08 PM Upon a motion by Commissioner Gering, seconded by Commissioner Hallman, the Board moved to extend the Commercial Solid Waste Franchise Agreement with Waste Industries for one additional year by a vote of 5-0. The motion was declared passed. 9:57:35 PM Mr. Davidson said Waste Industries had said they would not increase prices this year, but there had been a Senate bill passed, SB 1492, which would go into effect on July 1 of this year. He said that bill would add a landfill tax of $2.00 on every ton at every landfill, so there would be that increase. Mr. Davidson said that would make the current fee at July 1 $49.00 rather than $47.00, and they would add that to the formula they were currently using. Mr. Peterson asked who had the highest tipping fee in the State. Mr. Davidson said he was not sure, but believed Orange County had to be close to the top. He added that the Senate bill not only added the new tax, it had also included regulations that would make it very difficult to have a new landfill in the State. K.Consideration of Waterstone Roadway Acceptances 10:01:08 PM Ms. Ard stated they had met Friday with Clarion Realty to receive a briefing of the current status of the road. She said the agenda information gave an overview, noting it was a 27 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 28 of 46 multi-phase project, and the typical warranty and bond that would be required was somewhat different, in that the Board could require up to 25%. Ms. Ard said they had a Letter of Credit from the developer, and the Board had some discretion in terms of if they would like to make that conditional acceptance or if for whatever reason they would want to delay it. She said that May 2 was the opening of Durham Tech, and they would like to facilitate that. She said if the Board wanted to wait for all documentation, then possibly action could be taken at the April 28 work session. 10:05:50 PM Commissioner Hallman said he had a concern that if there was damage, there were enough parties to produce ?finger pointing? and the Town would be left to repair the damage. He asked was there a way to prevent that. Mr. Hornik said part of that was keeping the warranty at 25% rather than the usual 10%, in that because this was a multi-phase project that additional amount of money would give the Town a larger amount to work with if a problem arose. Mr. Hornik stated that Clarion Realty had promised to work closely with the Town on policing and requiring their builders to repair any damage they caused to the road. He said looking at past experiences, when the Town moved forward in approving Master Plans or SUP?s for particular pods, a specific condition of approval should be imposing a requirement for longer maintenance periods. 10:07:48 PM Mr. Peterson stated that in the meeting Clarion had indicated it was in their best interest to make sure the roadways were in good shape and to expedite repairs since they were continuing to market the development. Mr. Hornik said eventually, for example, the developers of the residential subdivision would want the Town to accept their roads, so it was not like the Town did not have a ?card to play? later on. He said when the commercial portion was developed, they would want CO?s from the Town, so the Town was not being left powerless to make sure the roads were maintained and any damage repaired. 10:08:42 PM Mayor Stevens said then the Board was being asked to grant conditional acceptance with a 25% warranty. Mr. Hornik said that would be his recommendation, as well as receipt by staff of the engineering certifications regarding compliance with the appropriate specifications for the road. 10:09:11 PM Upon a motion by Commissioner Gering, seconded by Commissioner Dancy, the Board moved to grant conditional acceptance of the road with a 25% warranty provided, as well as receipt by staff of the engineering certifications regarding compliance with the appropriate specifications for the road by a vote of 5-0. The motion was declared passed. 10:09:48 PM Ms. Ard, referring to the second part of this issue, stated the agenda information outlined where there were stop signs in the Waterstone community on the roads that were currently built, which were Waterstone Drive, College Park Drive, and a portion of Cates Creek Parkway. She pointed out that the speeds limits were primarily 35 mph except for the traffic circles. 28 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 29 of 46 10:10:27 PM Ms. Hauth commented that the official road name was College Park Road, not College Park Drive. 10:10:50 PM Upon a motion by Commissioner Hallman, seconded by Commissioner Lowen, the Board moved to adopt the ordinance amending Chapter 6, Sections 6.a.5, 7, and 12 with the change from College Park Drive to College Park Road by a vote of 5-0. The motion was declared passed. L.Consider Adoption of an Ordinance to Amend Chapter 6, Section 23 of the Town Code to establish a No Parking Zone (parking prohibited at all hours) for one space at 121 W. Margaret Lane 10:11:18 PM Ms. Ard stated this was a request to establish a No Parking Zone for one space at the base of the steps leading to 121 West Margaret Lane. She said this was a small home as well as a photography studio, and with the construction in the area there was increased parking, making it more difficult for people to enter and exit the building due to the slope and vehicles parked in front the steps. 10:11:57 PM Mayor Stevens said given that there was a parking deck nearby, there were other places for people to park. 10:12:08 PM Commissioner Gering said the point that people were having trouble getting into and out of that business was a side effect of not having a sidewalk there. He said that was a comment for removing that parking space, and as a suggestion for a place to put a future sidewalk. Mayor Stevens said that was a strategic spot to put a sidewalk given the new library in the area. 10:12:58 PM Mr. Peterson said he had visited Loco Pops, and while there several families with children had come walking down Margaret Lane, which to him highlighted that it was not an ideal situation. He said having a sidewalk there in the future would be preferable. 10:13:33 PM Mayor Stevens said that street would only get busier, and it was a safety issue particularly for children. 10:13:44 PM Upon a motion by Commissioner Lloyd, seconded by Commissioner Lowen, the Board moved to adopt the ordinance to amend Chapter 6, Section 23 of the Town Code to establish a No Parking Zone (parking prohibited at all hours) for one space at 121 West Margaret Lane by a vote of 5-0. The motion was declared passed. th M.Discuss possible ?Hot Topics? for the April 28 Workshop 10:14:26 PM Commissioner Lowen suggested that the non-profits should be the only issue, noting it was impossible to predict how long that session would take. 10:14:38 PM Commissioner Hallman said at some point he would like to discuss participating in a Chapel Hill-Carrboro intercity visit to Ann Arbor in the fall. He said he and the Mayor had done 29 April 14, 2008 Regular Meeting Approved: May 12, 2008 Page 30 of 46 that several years ago, and they were still seeing benefits to that. Commissioner Hallman suggested that staff be included. 10:15:12 PM Mayor Stevens said perhaps a five-minute presentation could be added to a regular meeting agenda to provide additional information. Mr. Peterson asked should that be included on an April agenda. Commissioner Hallman said it should be at some point when more details were available. Mr. Peterson said as soon as he obtained the details, he would place in on the next agenda schedule. Mayor Stevens said sooner rather than later would be preferable so that people could start thinking about it. 9. CLOSED SESSION A.Closed Session as authorized by North Carolina General Statute Section 143-318.11(5) regarding Property Acquisition (1. Riverwalk, and 2. General Government Purpose) B.Closed Session as authorized by North Carolina General Statute Section 143-318.11(6) regarding a Personnel Matter C.Closed Session as authorized by North Carolina General Statute Section 143-318.11(3) to meet with the Town Attorney regarding current Litigation Web Grove D.Closed Session as authorized by North Carolina General Statute Section 143-318.11(3) to meet with the Town Attorney regarding current Litigation - Coucoulas/Knight status 10:16:29 PM Upon a motion by Commissioner Hallman, seconded by Commissioner Lloyd, the Board moved to enter into Closed Session by a vote of 5-0. The motion was declared passed. 10.ADJOURN Upon returning to Open Session and upon a motion by Commissioner Gering, seconded by Commissioner Dancy, the Board moved to adjourn at 11:00 PM by a vote of 5-0. The motion was declared passed. Respectfully submitted, Donna F. 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