HomeMy Public PortalAbout11-23-2009 Workshop Meeting1. Open the Workshop
MINUTES
Board of Commissioners Monthly Workshop
Monday, November 23, 2009 — 7:00 p.m.
Town Barn
2. Agenda Changes & Agenda Approval
3. Committee Updates and Reports
November 23, 2009 Monthly Workshop
Approved: January 11, 2010
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PRESENT: Mayor Tom Stevens, Commissioners Evelyn Lloyd, Mike Gering, L. Eric Hallman,
Frances Dancy, and Brian Lowen
STAFF PRESENT: Town Manager Eric Peterson, Assistant Town Manager /Public Works
Director Nicole Ard, Planning Director Margaret Hauth, Town Engineer /Utilities Director Kenny
Keel, Police Chief Clarence Birkhead, and Town Attorney Bob Hornik.
Mayor Stevens opened the Workshop at 7:01 p.m. He did not read the public charge but noted it
would be followed.
7:01:43 PM Upon a motion by Commissioner Dancy, seconded by Commissioner Lloyd, the
Board moved to approve the Agenda as submitted by a vote of 5 -0. The motion was declared
passed.
7:02:22 PM Commissioner Gering stated that the Rail Station Task Force had met and
considered the first conceptual design for the Town's portion of the Collins property, including
the platform, the ball fields, and some accessory buildings. He said with a few modifications he
believed they would be able to put something on paper and have it ready for the first public input
session sometime in February.
Commissioner Lloyd asked had space been set aside for a possible fire department.
Commissioner Gering responded that the Task Force had received information that the fire
department was uninterested in that. Commissioner Lloyd said that was incorrect information.
Town Manager Eric Peterson said he was stunned to hear that, and would talk with Senior
Planner Tom King about it.
Commissioner Gering stated the Task Force had been told that the fire department was more
interested in locating north of Town or in Waterstone and not on the Collins property. Mr.
Peterson said he had talked with Chief Wagner and Jerry Cabe and it was their opinion that
having a station north of Town or in Waterstone made the most sense economically because they
could cover a much larger area, but they did not want to close off any options including the
Collins property. He said at this point it would be their preference to locate somewhere else, but
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if they were not able to acquire property in the other locations then the Collins property would be
an option.
Commissioner Gering suggested they clear that up with Mr. King and they could then decide
how they might accommodate a fire station. Mr. Peterson reiterated that he was "flabbergasted"
that that information had been passed to the Task Force without his knowledge. He said he had
not known that the entire plan had omitted a public safety station, which would serve both a fire
and a police station.
7:05:39 PM Commissioner Gering said the Task Force had not interpreted "public safety
station" as a fire station, noting at the Task Force's last meeting they had decided that the initial
plan should include the platform station and a train station with a police substation as a combined
use. He said that combined use would not be appropriate for a fire station. Planning Director
Margaret Hauth stated there was ample room on the site to accommodate all of those uses, so it
was not a size issue but a misunderstanding of what the preferences were. Commissioner Gering
agreed.
Mr. Peterson said they had talked at length with Mr. King regarding the size, square footage, and
parking needs of a fire station. Ms. Hauth remarked that the issue could easily be addressed.
Commissioner Gering said the Task Force at its December meeting would like to have a fairly
firm conceptual plan, so it would be good if Mr. King could work with Tom Campanella, who
was doing the conceptual plan, to deal with the placement of a possible fire station before that
December meeting.
7:07:32 PM Mayor Stevens noted that they had held an update meeting with Secretary of
Transportation Conti regarding Elizabeth Brady Road, and ask Mr. Peterson to comment on that.
Mr. Peterson said that Senator Eleanor Kinnaird had organized the meeting, and he, the Mayor,
and Orange County Commissioner Alice Gordon had attended as well as a number of DOT staff
and a few citizens who lived in the path of Elizabeth Brady Road. He said they had talked about
how to relieve traffic on Churton Street; that there were issues with how that might be addressed
by Elizabeth Brady Road and the fact that there were other alternatives; they had talked about the
process in terms of funding; and, they had gotten a definitive "no" that funds could not be
reallocated. Mr. Peterson said they had indicated that they were willing to work with the Town
in finding other sources of funding, but even if Elizabeth Brady Road were to go forward now
they were still looking at five to six years before any kind of movement would take place.
Mr. Peterson said one thing that had been noted was that the DOT staffer present had indicated
he was unaware that the Town had a Strategic Growth Plan and Land Use pattern that was
suggesting development south of Town, and the staffer had indicated that invalidated their model
and they would need to look at that again. Ms. Hauth said they had been in constant contact with
DOT and they had been given all the data. Mr. Peterson said there was some confusion as far as
timing of when the Town would release the Strategic Growth Plan and Land Use Plan and
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DOT' s study. He said the staffer had indicated that if those two plans could be brought to the
public hearing, it would be helpful. Ms. Hauth responded she would bring multiple copies.
7:10:27 PM Mayor Stevens said in summary, the money could not be reallocated, it would be
at least five years before anything happened, and they were willing to look at alternatives for
funding. He said they had been encouraged to bring the alternatives to the public hearing, and if
they followed up during the comment period after the public hearing with a resolution from this
Board as to what its desire was then that would carry some weight. Mayor Stevens said with that
information, having a meeting prior to that public hearing would be worthwhile and would
provide the opportunity for the Board to agree on a resolution that conveyed a strong sense of
what the Board's preference was.
Commissioner Lloyd asked had DOT indicated when the environmental impact study would be
released to the Town. Mr. Peterson said they had received that, but it did not give them the
information they had expected. Commissioner Lloyd asked had DOT given any indication of
what alternative they preferred. Mr. Peterson said they had been told that would likely come
forward at their February 10 design meeting.
Ms. Hauth said DOT had released the draft document and they would now collect all the public
comment and evaluate it. She said when that environmental document was finalized it would
indicate a recommended route.
7:13:41 PM Commissioner Gering said that the EIS document could be downloaded from the
Eno River Association Website. Ms. Hauth said she had scanned what she believed were the
relevant portions of that document and had provided that to the Board, but there were no
finalized recommendations.
Mr. Peterson stated he had sent out an email regarding the PARTF grant, and wondered if the
Board wanted to wait and talk about that at the December meeting. He said that staff could
pursue a PARTF grant for February or follow the staff recommendation to wait until next
February.
Commissioner Dancy said she believed they should wait a year before pursuing the next grant,
noting that would allow staff the opportunity to devote quality time to a grant application.
Commissioner Lowen agreed, noting the climate may not be favorable now since the Town had
jointly sponsored the Fairview grant application with the County.
Commissioners Gering and Lloyd also agreed.
7:16:06 PM Mayor Stevens said that he had spoken at Central Elementary during their 2nd
grade class elections, and the students had sent in a number of letters about his visit and the
election process, with one student asking if he was really the Mayor. He said other questions
were did he decide if someone broke the law and what kind of decisions he made for the Town.
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Mayor Stevens said based on his visit, he could say that there was many future Commissioners
ready and willing to take their places and the Town's future looked good.
Commissioner Lowen said it was amazing how many people did not know about the role of the
Commissioners and the Mayor, and was impressed that there was a second grade teacher who
had believed it was important to teach students about local government.
Commissioner Dancy commented about an article written by Lauri Paolicelli with the Orange
County Tourism Board. Ms. Hauth stated Ms. Paolicelli had crafted a really detailed article for
the Triangle Business Journal spotlighting Hillsborough, not so much from a tourism perspective
but from the perspective of how one small town was going through the economic downturn and
noting the number of new businesses that had opened, the government expansions, and a variety
of other things going on in the Town. She said the article was well- written and hoped the
Journal would run it.
4. Receive and Discuss Diagnosis and Annotated Outline of New Unified Development
Ordinance
7:19:51 PM Commissioner Dancy pointed out a typo on page 29 of the document. Ms. Hauth
indicated she would get that corrected.
Roger Waldon, the Town's consultant with Clarion Associates, provided the Board with an
update on the Annotated Outline of the new Unified Development Ordinance (UDO). He stated
that they saw their mission as twofold, one to help the Town modernize its regulations and the
other that as they were doing that that they identify problems or issues in the existing ordinance
and resolve them. Mr. Waldon said to that end the Town had sponsored a public forum and
gathered lots of good input, and had also met with smaller focus groups who had some common
interests, to get feedback on what they believed was working well and what needed attention.
Mr. Waldon said they had summarized the main ideas they had gathered from the Board, from
staff, and from citizens and focus groups and put that together in an annotated outline that
showed how the new regulatory array might look. He said tonight the main issue for discussion
was how they would propose to write the UDO and what its skeleton might look like. Mr.
Waldon said before they began doing that they wanted to make sure that they were in sync with
the Town Board.
7:24:17 PM Mr. Waldon provided the Board with a copy of the PowerPoint slides he would be
presenting, as well as a copy of the table of contents from the existing Zoning Ordinance marked
in red with chapter numbers for the new ordinance, a copy of the table of contents from the
existing Subdivision Ordinance also marked in red with new chapter numbers, and a copy of the
outline for the new UDO. He then gave the PowerPoint presentation, highlighted as follows:
• Five key themes that had been identified and would provide guidance as they put the new
ordinance together: 1) make the Code more customer friendly; 2) streamline the
development review process; 3) modernize the language for regulation procedures and
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definitions; 4) improve development standards and quality; and 5) achieve development
and redevelopment that promote community goals.
• The proposed structure for the UDO contained nine chapters, or articles, that they found
to be a useful organization:
♦ Article 1 was the General Provisions, with references to State statutes, a
description of what the Ordinance was and how it related to other documents, the
purposes and intent and the legal authority for doing the ordinance, references to
the Zoning Map, and transitional provisions which said as the new ordinance was
put in place what would happen to applications already in some state of review
with a related discussion of vested rights.
• Article II was Administration, with all procedures and processes included in that
one Article.
♦ Article III was Definitions of the zoning districts which was mostly organizational,
but also was an attempt to correct things that appeared to be broken in the current
regulations.
• Article IV was Use Regulations, or what was permitted under the different uses
and what kind of permit the uses required.
♦ Article V was Development Standards, which was where they would be making
some recommended changes to the current standards to reflect feedback gathered
as well as current plans of the Town
♦ Article VI would be Subdivision of Land.
♦ Article VII would deal with Nonconformities.
♦ Article VIII would detail Enforcement.
♦ Article IX would be all the Definitions of words used in the UDO that need to be
defined.
• The layout would be more user friendly, using flow charts for the different procedures and
the sequence of review and approval.
• They were suggesting a uniform and user friendly outline structure, where there would be
headers throughout. Also suggested would be the use of photographs rather than
drawings although there would likely be some illustrations.
7:31:20 PM Mr. Waldon then described in more detail the individual Articles:
• Article I, General Provisions, would refer to the legislative authority for what they were
doing; it would include a statement of intent; it would describe the relationship of the
UDO to other plans and laws and how they fit together; it would make reference to the
official Zoning Map incorporated as a part of the UDO; and, as they were moving from
the old regulations to the new, at what point in the process did a consideration of vested
rights come into play insofar as whether a particular application was governed by the old
rules or the new rules.
7:32:39 PM Commissioner Gering said they had talked about the need to deal with the
consequences of the court case the Town had just lost, referring to the Webb Grove issue. He
said that case had pointed out that the Board of Adjustment was using unfairly references to the
Comprehensive Plan. Mr. Hornik stated that he and Mr. Waldon had begun talks about how to
deal with that issue as far as incorporated standards.
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7:33:28 PM Mr. Waldon continued his description of the individual Articles:
• Article II, Administration, would contain all the Town's procedures and would define all
the decision - making bodies, including the Town Manager and staff, and the governing
roles of each. Mr. Waldon said it would also include all review procedures and criteria
for approval and would make use of flow charts. He said this chapter would include the
phrase "beneficial use determination" which would be used in cases where there was
potential for litigation and where there was some legislative case law backing for a
provision that would allow or require one more step before someone could go to court
regarding a decision made by the Town. Mr. Waldon said also in this chapter would be
reference to an administrative manual, which they strongly suggested be created. He said
there were many things in the current ordinance that should not be there or did not have
to be there, for instance what the staff did and how they administered the ordinance,
which could be pulled out and placed in an administrative manual.
Article III, Definitions of the Zoning Districts, would describe in detail the zoning
districts. Mr. Waldon said they were proposing to carry forward all of the currently
existing zoning districts and possibly create one or more new ones that would be
available for people to request rezoning to if they wanted it. He said they may
recommend some adjustments within some of the zoning districts, but those now existing
would stay in place. Mr. Waldon said they were suggesting that every zoning district
have a page that contained the content of the district, its purpose, what the dimensional
standards were, and any additional standards. He said they may also find that that section
would be a good place for illustrations of the kind of development expected in a
particular zoning district.
• Article IV, Use Regulations, would explain what uses were permitted in each zoning
district, the classification of the different types of uses, such as accessory uses and
temporary uses.
7:40:07 PM Commissioner Hallman asked would there be a different approach than what was
used in the past, noting that he was thinking back to the formerly proposed asphalt plant where
they had permitted uses but there was a gray area that allowed the application for the asphalt
plant. He wondered if there was a better approach than what had been used. Mr. Waldon said
there was, but he was not prepared to go into that at the present time. He said that was fixable
and the new ordinance would deal with that. He said that the Use Table, which was similar to
what was in the current ordinance, would show the districts, the permitted uses, the special uses,
accessory uses, temporary uses, and what would not be considered an appropriate use. Mr.
Waldon said their plan was to make the Use Table more visually appealing and easier to use.
Mayor Stevens said Mr. Waldon was describing some major ways of changing the UDO in the
future, but not now, and asked was that correct. Mr. Waldon responded it would be set up in that
way so that it could be changed if it became necessary, but they were not proposing to change
the basic structure of the zoning at this time. He said once the UDO was in place, the Town may
decide at some point to make a major shift in how it zoned property, and the structure of the
UDO would allow for that.
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Mr. Hornik said they were not talking about changing the Zoning Map, which was the key, but
there may be some changes to uses that were allowed in some districts, and ultimately that was
something that would be discussed as a part of the process. He said making such changes may
be a part of the evolution of the UDO once it was in place, in that there may be some areas the
Board might want to change or a new conditional use district they might want to consider
creating. Mr. Hornik said that might be a way to handle an application such as the asphalt plant,
where it was not on the use table. He said that would give the Board the power to say yes or no
as part of the legislative act, and that may be one way to address issues such as that.
7:43:10 PM Mr. Waldon said one area that needed more attention was how to deal with
accessory and temporary uses, and they wanted to break those out and provide some specificity.
He said an accessory use would be something that was customary or incidental to the primary
permitted use, with examples being a home occupation of some kind, in some cases a second
dwelling unit, or something that was clearly related to the primary use but of a lesser nature.
Ms. Hauth said it would also include such things as storage buildings, fences, and garages for
single - family districts but it might include commercial uses, such as a day care at a church or an
athletic field at a school. She said it would also include, for instance, events for a bed and
breakfast or a gallery, which were some of the uses the current ordinance did not adequately
address.
Mr. Hornik said the general rule had typically been that accessory uses were permitted in the
district, but the problem had always been defining what an accessory use was. He said that was
where he believed they could get better at defining what the highest level of an accessory use
might be.
Mayor Stevens asked for more details regarding what was considered temporary uses as well as
special events, and how they were different. Mr. Waldon responded that he considered special
events to be a type of temporary use.
7:46:20 PM Mr. Waldon continued his presentation:
• Article V, Development Standards, said all of the current standards would be carried over
and compiled into the new UDO, which would be challenging because they were now
spread throughout both the Zoning Ordinance and the Subdivision Ordinance. He said
putting them all into one chapter and making them consistent would be one of the most
important tasks to perform and would need to be considered carefully. Mr. Waldon said
they were suggesting that after the UDO was completed that the Town put together two
non - ordinance documents. He said one was the Administrative Manual already discussed,
and the second was a collection of design standards that spelled out what the Town's
expectations were. Mr. Waldon said those did not need to be codified in the UDO, but
needed to be descriptive and spelled out for staff. He said it was a document that could
be handed to developers to tell them what the Town's expectation was unless they could
convince the Town that there was a good reason to do it otherwise. Mr. Waldon said it
would allow a little flexibility, but also set forth expectations.
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7:47:45 PM Commissioner Gering asked if that was where the objective to have form based
designing provisions would come in. Mr. Waldon replied what they would be preparing was not
formed based zoning although it would have some of the components. He said the design
standards and much of the development standards that would be in Article V were closely related
to the concepts of form based zoning, but the departure to form based zoning was not a good idea
because the Town remained very interested in what the uses where and not just how something
was designed or what its form was. Mr. Waldon said that was important particularly in a place
as historic as Hillsborough, and he did not believe they would want to get too far away from
regulating the uses in addition to the form.
Commissioner Gering said he had not believed they were mutually exclusive. Mr. Waldon said
that a form based code would go very far in the direction of indicating what the form needed to
be, that it was very prescriptive, and it was also very resource intensive to develop.
Commissioner Gering said he believed they wanted to accommodate some form based zoning
principles but not to the level of being purely a form based code.
7:49:48 PM Mr. Waldon continued his presentation:
• Article VI, Subdivision of Land, would be fairly short and he did not believe there would
be much new information included. He said it would be more procedural in nature and
would discuss major versus minor subdivisions and what the procedures were for
preliminary plats, final plats, what was expected and required in terms of easements,
access and egress, performance guarantees, and the like. Mr. Waldon said that article
would contain language that was highly legal in nature, and would track the General
Statutes regarding how land was carved up and what had to happen when that took place.
• Article VII, Nonconformities, would carry over much of the information now present in
the current regulations. He said it would include to what extent you wanted
nonconformities to go away or to be allowed to continue, and he believed the answer
would vary depending on what they were talking about. Mr. Waldon said for an historic
area like Hillsborough, he believed you would really want to make it possible for those
nonconforming structures to remain in place and to be improved and repaired. He said
that was consistent with what the Planning Board had said at its meeting last week. But,
he added, on the other hand there were some nonconforming uses that you might not
want and would like for them to go away because they don't meet any of the current
regulations and an aggressive approach to those uses going away was the right thing to
do.
7:52:52 PM Mr. Hornik said this was an area where many times the public did not recognize
the difference between the use and the structure, noting that you could have a nonconforming use
in a nonconforming structure on the same piece of property. He said the use may be
objectionable, but the structure may be desirable. Mr. Hornik said the goal was to structure the
ordinance so that they could encourage the use to go away, or at least not encourage it to stay,
and do whatever they could to make sure the structure remained and hopefully recycled into a
more desirable use.
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7:54:29 PM Mr. Waldon said an example was one from Chapel Hill and was a good example
of how nonconforming rules could be used and meet a town goal. He said there was a concern
about cars parking in front yards, particularly in areas around the University. Mr. Waldon said a
rule was put in place that prohibited the parking of cars in front yards, and along with that a
nonconforming feature that said that within six months of notification of the nonconforming use
that front yard parking had to go away. He said the ordinance was put in place and property
owners were given notice that they had a nonconforming feature that had to be removed. Mr.
Waldon said that was an example of how nonconforming rules could be used to accomplish an
obj ective.
Mr. Hornik said you would amortize the nonconforming feature that you wanted to go away, for
instance, in six months or one year or whatever. He said the challenge would be designing the
timeframe in such a way that it would not be susceptible to a legal challenge.
Mr. Waldon concluded his presentation:
• Article VIII, Enforcement, would carry over information already in existence, with
purposes and intents, enforcements generally, remedies and penalties, and cumulative
penalties. Mr. Waldon said if there were any issues with enforcement as it worked at
present then this would provide an opportunity to address those issues.
• Article IX, Definitions, would consolidate all definitions, with some adjustments to some
and adding some that were needed. Mr. Waldon said there were also some that did not
need to be included and would be removed. He said the key point was that definitions
should not be regulations. Mr. Waldon said an example would be that signs were defined
as something conveying a message visible from the public right -of -way, or something of
that nature, and not that a sign could be no taller than "x" and no wider than "z."
7:58:38 PM Mr. Hornik said one of the problems now was that too much regulation was
included in definitions. He said in cases where a variance might be in order, the Board of
Adjustment could not grant a variance based on a definition.
Mr. Waldon said the next step would be to hear the Board's comments tonight and then begin
drafting the UDO based on the outline he had provided. He said their hope was to begin working
closely with staff and going over the draft document page by page, and have it ready for some
meetings in February and March. Mr. Waldon said they planned to take it before the Historic
District Commission, the Board of Adjustment, and the Planning Board, along with some public
information meetings prior to the public hearing. He said their goal was to have a document that
was public hearing ready by April.
8:00:58 PM Commissioner Gering asked if the Planning Board reviewed the annotated outline
last week. Mr. Waldon responded yes. Commissioner Gering asked if they expressed any
special concerns. Ms. Hauth said there were a handful of things that had struck her as she went
through it, and she would go over those and then go over the Planning Board's comments. She
said on page 16 in the table where it talked about proposed development review structure, it was
being proposed that preliminary subdivision plats go to the Technical Review Committee and not
come before an advisory board. Ms. Hauth said as an example, the Planning Board had spent
8:05:32 PM Ms. Hauth said on page 20 it talked about simultaneous processing, and that was
something that had been problematic for any project within the historic district. She said there
was constantly the tension of what board went first, whether it was the Board of Adjustment, the
Historic District Commission, or the Town Board. Ms. Hauth said it routinely put one board in
the position of possibly trumping another board, and they needed to look at that carefully and set
out the processes very clearly so that they did not set up that circumstance. She said that was not
how they wanted to conduct their business and it was not how they wanted to treat their
volunteers, so they wanted to make sure that the process was clear and the final decision rested
where it ought to.
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nearly two hours on a preliminary plat for a subdivision last week, and during the discussion on
the UDO she had brought up the language on page 16. She said that had caused some concern,
but wanted to emphasize that it was common in other jurisdictions for subdivisions of a
reasonably small size of perhaps 8 or 10 lots to become conditional use or special use permits.
Ms. Hauth said she had wanted to bring that to the Board's attention because the table on page
16 did not yet talk about numbers of lots, but after having spent so much time on a subdivision
proposal the Planning Board was very concerned that subdivisions would be reviewed and
approved by staff. She said she believed that was being recommended by Mr. Waldon because
subdivision law was very prescriptive in that if you met the standards you would be approved,
and it was difficult for a board to have an impact on that. Ms. Hauth said they would be looking
for a way to craft that threshold at the right level so that there was still that opportunity for
review and approval by the advisory boards in a public way rather than something being done by
staff.
8:03:15 PM Mr. Hornik said it was not unusual at all for municipalities to have minor
subdivisions up to a certain number of lots where no new road was created to be staff level
approval. He said if the zoning was appropriate, the lot size was appropriate, and the lot
otherwise met the requirements of the Zoning Ordinance, then there was no need to go through a
more extensive process. Mr. Hornik said when that threshold was exceeded or a new road was
proposed, then it would go through that more extensive process because you were likely to have
more impacts whether it was traffic, impervious surface, or something else. He said the issue
would be how to establish the threshold.
Ms. Hauth said right now the threshold was at 4 lots and the Board never saw those. She said the
ones the Board had seen were those that had private roads, and how private roads were dealt with
was another issue that would need to be addressed during this process.
Ms. Hauth said on page 19 was a section on public notification, and she had made a note to
include the most current allowances under State notification to hopefully be able to take
advantage of electronic options as much as possible to help meet the requirements and send
paper copies only when necessary. She said they also wanted to limit their use of Certified Mail
so that it was used only when absolutely necessary as the Certified Mail fees continued to
skyrocket.
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8:06:22 PM Ms. Hauth said on page 21, Conditional Rezoning, it was a little different than the
process now used of combining the zoning process with the permitting process. She said that
Mr. Waldon and Mr. Hornik would work together to sort out what the different processes meant
and what was the best solution for Hillsborough.
Mr. Hornik said an upcoming trend appeared to be conditional zoning where it was purely a
legislative act, which was good for the Town Board but the question was whether it was a
process that the Town was comfortable enough with doing. He said Charlotte was the first
municipality to do it, got sued and then received legislative authorization to do it, and it was now
the way they conducted business in that they did conditional zoning and not conditional use.
Mayor Stevens asked if someone wanted a mixed use or an Entranceway Special Use, did that
mean that it would be conditional in that if their vested rights went away that the zoning would
go back to what it had been. Mr. Hornik responded he believed that once the zoning was put in
place then that was what it would stay, and the owner would need to come to the Board and ask
for a rezoning if they wanted it changed.
Ms. Hauth said they had gone through a process to create the Entranceway Special Use district to
try and create a way for Waterstone to happen. She said if they had not done that but Waterstone
had come in with their master plan and said here is what they wanted to do and here is how we
want to do it with the range of uses, setbacks and other details included, the Town could have
adopted that just for Waterstone and that would have been conditional rezoning and wholly
legislative. Ms. Hauth said there could or could not have been the special use permits that come
later, and then there would not be an issue of vested rights. But, she said, what that meant was
that that was Waterstone's zoning ordinance which was different than everyone else's zoning
ordinance, so if you had 20 of those come in you could have 20 different ordinances applied to
those 20 different plots of land. Ms. Hauth said that was when it could begin to get confusing.
8:09:37 PM Commissioner Gering asked wasn't that the same as spot zoning. Mr. Hornik
responded no, that you had to look at how spot zoning was defined. He said that spot zoning was
not necessarily illegal, that there were certain standards that applied to spot zoning that
determined whether it was legal or illegal.
Commissioner Hallman said if you used that process and the use was tied to the rezoning and
then the use went away, did the rezoning remain. Mr. Hornik replied that in order for another
use to go there someone had to come to the Board and request it.
Ms. Hauth said it was similar to the situation with the former steakhouse restaurant property, in
that they had an SUP for a restaurant but no one had come in to request something else for that
property. She said it was zoned Entranceway Special Use and it had an approved Special Use
Permit for a restaurant that had been gone for 5 years, so if anyone wanted to use that site for
something else other than a restaurant then they would need to seek a rezoning.
Mr. Hornik said the end result was not much different, that it was the process of how you got to
the end result that was different. He said the argument from the municipality's side was it was
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better for the municipality because it got rid of the quasi-judicial aspect and the pitfalls that were
associated with that process and turned it into a completely legislative process. Mr. Hornik said
it was a much higher bar for someone to try to leap over if they wanted to challenge the Town's
decision on it. He said it was an option that was on the table that was getting more attention
from municipalities across that the State, and that it was worth considering.
8:11:54 PM Commissioner Gering said then why was there a question of whether they would
want to do it. Mr. Hornik responded because it was so new and it was a matter of feeling
comfortable with it. He said they would need to educate themselves about it a little more during
this process.
Mayor Stevens said basically now they were making individual decisions based on a piece of
property, in that someone brought forward plans and the Town then zoned it. Mr. Hornik said
they would still want to be compatible with their future plans for development of the Town, but
they could always amend the Comprehensive Plan if needed.
Mayor Stevens said the flip side of giving the Board lots of leeway was whenever there were
changes in the Board's makeup then there could be changes in the direction that development
would go. Mr. Hornik said that was the importance of having a vision plan, such as the Strategic
Growth Plan and the Future Land Use Plan. He said having those things fairly well thought out
and laid out would address that potential.
Commissioner Gering asked would that be a replacement for all the patches they had put in place
with Special Use Permits. Mr. Hornik said it would be one way of dealing with that. He said
they may still want to have Entranceway Special Use districts, but it would be one of those
things where you would not have to create a new special use district classification every time
someone came in with a creative idea. Mr. Hornik said the new ordinance could contain
authorization for conditional use zoning.
Commissioner Hallman said then one particular rezoning approval would not set a precedent.
Mr. Hornik said that was correct.
8:13:52 PM Mayor Stevens said it did have promise along with some caveats. Mr. Waldon
said the advantages of it would be more flexibility from the developer's point of view, but it
would provide the Town flexibility as well.
Ms. Hauth said when a developer was starting out they had to determine setbacks, buffers, and
the like. But, she said, this way they would begin with a clean slate and design whatever they
wanted which they would then bring to the Town. But, she said, it would also mean they had no
framework to start from.
Mayor Stevens said that was a danger, in that essentially a developer could do anything they
could convince the Board to allow them to do.
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8:15:14 PM Ms. Hauth said on page 22 there was a paragraph about administrative
adjustment, and she hoped that that section would cover a number of quandaries they got in from
time to time. She said one would be how much flexibility if any someone had once they had
gotten their approval from a board, in that there seemed to always be a handful of tweaks every
time there was an SUP and it was not always clear which ones staff could approval and which
ones needed to come back to the Town Board. Ms. Hauth said then once the building was there
and was operating and decided an addition was needed, there was the concern that the owner
would have to go back through the entire process just to add a few thousand square feet to the
building. She said those were the kinds of second generation questions they were beginning to
encounter with existing SUPs, so detailing that section on what could and could not be allowed
by staff and what the standards were would be very helpful to staff and to the businesses in
Town.
Mr. Hornik said he believed the only question would be where they would set the thresholds at.
Ms. Hauth said on page 25 there was a paragraph under Off - Street Parking and Loading that said
that incentives would be used to allow developers to provide fewer than the minimum number of
required parking spaces in exchange for providing public or green space, develop and preferred
development types such as vertically innovative mixed use. She said she wanted to bring that to
the Board's attention, in that it was "fewer than the minimum" which was different from what
was normally asked. Ms. Hauth said the Planning Board had looked at that, and she had
reminded them that the Town would also be looking at reducing parking requirements because it
appeared that for most uses the ordinance required more than was necessary. She said the
Planning Board had been a little more interested in allowing creative methods to meet the
minimum requirement so that a developer could use pervious pavement or structured grass to
meet parking requirements, so that if there was a circumstance where they actually did need the
parking that it would be available even though it may not be paved. Ms. Hauth said allowing
people to look at creative alternatives may be more than just allowing a reduction in the parking,
so they were taking that a little big broader than what Mr. Waldon had suggested.
8:18:15 PM Ms. Hauth said she had asked the Planning Board to spend some time thinking
about the section on page 28 about nonconformities, and Mr. Waldon had talked about that
earlier. She said a question would be if a nonconforming structure was offensive, was that
nonconforming characteristic offensive or was it the use, or was none of them offensive and the
Town just acknowledge that they did not meet the ordinance and things changed over time. Ms.
Hauth said she used the example of the skating rink behind the furniture store on US 70. She
said it was an industrial building in a residential section, and it had always been zoned residential
and they likely would not want to rezone it to something else because then a wide range of things
could go there. Ms. Hauth said it was no longer a skating rink and had been used as a furniture
storage area as well as a light industrial site, and wondered if they really wanted to say that they
did not want to allow a use of that structure so that the owner was forced to just allow it to
become dilapidated and it became an eyesore in the neighborhood. She said another example
was the rest home that was on Churton Street next to the Burwell School that was now closed.
Ms. Hauth said the owner would likely have a difficult time going through the process to reopen
because all of that parking that the previous owner had put in was in the public right -of -way and
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it was a nonconforming lot. But, she said, what else could that building really be used for, and
did they really want to be in the position of having an ordinance that said that building needed to
be demolished and something else built there. So, she said, nonconformities and how they were
handled in the ordinance really needed to be well thought out. Ms. Hauth said the Planning
Board would be discussing signs, nonconformities, and density at its December meeting.
Mr. Hauth reminded the Board and the public that the survey regarding the zoning ordinance was
available on -line, and encouraged everyone to fill one out if they had not already done so. She
said the survey would be open at least until December 11.
8:21:30 PM Commissioner Gering asked how the Historic District Guidelines fit in. Ms.
Hauth said that was a reference document and would remain in its current format. Commissioner
Gering said then the HDC's procedures would become a part of the administrative manual.
Mr. Waldon said his suggestion would be that the procedures go into Article II. Ms. Hauth said
but the Standards of Evaluation for issuing a COA would be looked at as part of the process,
because those were the standards that were in the ordinance and were the standards that
attempted to reflect back to the Secretary of Interior standards. She said it was that list that the
Design Guidelines tried to inhabit.
Commissioner Gering asked had the Board of Adjustment reviewed the outline. Ms. Hauth
responded no. Commissioner Gering asked if they should. Ms. Hauth said there was some
overlap between the two boards, but the information could be shared with them.
Mayor Stevens said they should provide them the annotated outline as a courtesy and even if
there was no time during a meeting for a meaningful discussion, individual members would be
able to provide some feedback if they so choose. Mr. Hornik said those boards may not have the
same level of review once the new UDO was put in place.
8:25:04 PM Commissioner Lowen commented that it was important that the BOA and the
HDC should have a chance to comment, noting that although their overall authority may not fall
in the realms of the outcome they should still be given the opportunity to look it over and
comment. Mr. Hornik commented that the BOA was sort of the interpretive appeal body, so
having their eyes on it might allow them to spot some procedures or language or whatever that
was being proposed that could be problematic. He said the BOA' s perspective was different than
that of the legislative body, so having them review it would be helpful.
5. Other
No other business was brought forward.
6. CLOSED SESSION
A. The purpose of the meeting is to hold a Closed Session as authorized by North
Carolina General Statute Section 143 - 318.11 (a)(6) regarding Personnel Matters.
14
Upon a motion by Commissioner Dancy, seconded by Commissioner Lloyd, the Board moved to
go into closed session to discuss personnel matters by a vote of 5 -0. The motion was declared
passed.
7. ADJOURN
Upon returning to Open Session and upon a motion by Commissioner Lloyd, seconded by
Commissioner Lowen, the Board moved to adjourn at 8:26 p.m. by a vote of 5 -0. The motion
was declared passed.
Respectfully submitted,
Donna F. Annbrister, MMC
Town Clerk
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