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HomeMy Public PortalAbout08-27-2012 Regular Meeting August 27, 2012 Town Board Monthly Workshop Approved: October 8, 2012 Page 1 of 12 MINUTES Board of Commissioners Monthly Workshop Monday, August 27, 2012 – 7:00 p.m. Town Barn PRESENT: Mayor Tom Stevens, Commissioners Frances Dancy, Mike Gering, L. Eric Hallman, and Evelyn Lloyd. EXCUSED ABSENCE: Commissioner Brian Lowen STAFF PRESENT: Town Manager Eric Peterson, Town Clerk/Director of Administration and Human Resources Donna Armbrister, Planning Director Margaret Hauth, Police Chief Duane Hampton, and Town Attorney Bob Hornik. Open Meeting 1. 7:00:43 PM Mayor Tom Stevens called the meeting to order at 7:00 p.m. 2. Agenda Changes & Agenda Approval 7:01:06 PM Town Manager Eric Peterson added an update on Waterstone Special Assessment District and possibly requesting Stratford to come address the Board. Mayor Stevens added this item as 4.A. 7:01:25 PM Town Attorney Bob Hornik said the County acquired the Eno River parking deck recently and the Town owns a blue public parking sign on it. The County was either going to give them a formal easement for it or the Town can convey the light and maintenance responsibility to the County. He proposed they add a resolution authorizing the Town to convey personal property to Orange County. Mayor Stevens added this item to Other. 7:02:23 PM Commissioner Frances Dancy moved to approve the additions to the agenda. Commissioner Mike Gering seconded the motion. Upon a unanimous vote of 3-0, the motion was carried. August 27, 2012 Town Board Monthly Workshop Approved: October 8, 2012 Page 2 of 12 3.Committee Updates and Reports 7:02:56 PM There were none. 4.Consideration of Proposed Special Use Permit Modifications for the Waterstone Single Family and Townhome Pods 7:03:09 PM Margaret Hauth said they needed to update the notary page on the actual document. She added that as Stratford came forward and let them know that they were preparing to sell both the single family and townhome parcels, they looked at the SUPs which had been recorded and realized they would have a challenge moving forward the way they were recorded. There were a number of conditions in them assigned to the holder of the permit that had timelines which had all expired. Ms. Hauth stated it was in everyone’s best interest to have a document which would update those documents, assign responsibility properly, and have good deadlines in them. The proposed documents were presented to the Board. There was no change to any of the development requirements. It regarded who was responsible for building the roads and some of the other infrastructure, the time frame they have to do it, and how they’re going to move forward. Ms. Hauth pointed out the layout is the same although she expects some minor changes when they are done with construction drawings. 7:04:05 PM Commissioner Lloyd arrived at the meeting. 7:04:56 PM Mayor Stevens asked if he was correct in that this was totally worked out with Stratford and they have an agreement. Ms. Hauth said as far as she knows, Stratford, the buyers, their attorneys, and the Town Staff are satisfied. 7:05:10 PM Mr. Hornik told the Board their packets contained a resolution he prepared. They also had two current working drafts, subject to correcting the signature page, of the SUPs for Pods 1 and 2 which are the single family residential pods. Pod 3 is the townhome pod. Conditions 8, 9, 10, and 11 in both SUPs are the most significant conditions. Mr. Hornik explained that in those conditions, if Stratford conveys the pods to Ashton Woods, as they are in the contract to do and they expect that they will, then Stratford, or Waterstone as referred to in the conditions and SUPs, will retain the obligation to complete the Cates Creek Parkway and the community park. They will have to start work by July 1, 2013 and complete work by December 31, 2014. Out of the proceeds of the sale of the property from Waterstone to Ashton Woods, sufficient cash will be put into an escrow account to pay for the cost of those improvements. They have an escrow agreement in final form in which they’ve all agreed to the material terms. Those terms state Investors Title would hold the escrow funds and they would draw down on it as work goes along so the money will be there to pay for the road. Mr. Hornik stated conditions 8-11 address those specific requirements. Mr. Hornik stated when Waterstone was approved approximately eight years ago, it was anticipated that Pods 1, 2, and 3, and the road, would be in the first phase of the development. The rooftops were to come first with retail to follow. It did not work out that way so the August 27, 2012 Town Board Monthly Workshop Approved: October 8, 2012 Page 3 of 12 deadlines in the master plan were long past. This is an opportunity to update that and make sure they have fresh doable deadlines that coincide with the residential development of pods which they wanted to make sure are available. Mr. Hornik said Tom Johnson, their attorney, was present, as well as the Stratford representative. They all met and worked out all those details and everyone is in agreement on the terms. 7:08:30 PM Commissioner Lloyd said she appreciated what was done to conditions 8 and 9 as she believes it ties it all in. Mr. Hornik said Stratford volunteered the contribution of the deposit from the sale into the escrow account at least so they don’t have to deal with a letter of credit or surety bond or anything like that. The money is there. Tom Johnson drafted the language but everyone worked on it together and it seems to address everyone’s concerns. 7:09:10 PM Commissioner Eric Hallman asked if there were any changes on the multi-family side. Ms. Hauth said no. It is as covered in the master plan document. They would get the approvals, deed the property to the land trust, and the land trust would be responsible for construction and make the contribution for dwelling units towards that. 7:09:34 PM Mr. Hornik stated that Robert Dowling with Community Land Trust was among those who met so they could talk about items and issues. Commissioner Hallman asked if Mr. Dowling had any comments. Mr. Dowling came forward and stated that Ashton Woods was perfectly willing to do all the things required in the SUP. He said the world has changed since 2004 and they’ve discussed possibly fewer units which is still on the table. They’re also willing to help with the infrastructure when they close to their portion of the site. Mr. Dowling added that for them to go in by themselves and be the developer for 24 townhomes would be very expensive when hiring a general contractor and they will already be out there doing 120 homes. They recognize that and are willing to work together. Mr. Dowling said it was also good that their portion of the development is towards the back end which gives them time as he doesn’t know that they can move as quickly. It will probably be 18 to 24 months before they get to the portion of the site where the townhomes are and by then they hope to have worked out how it will work and where they’ll get the subsidy if they’re going to get one. Mr. Dowling said Lee and the folks at Ashton are amenable to working with them. 7:11:46 PM Commissioner Gering moved to adopt the proposed amendment to the SUP for Waterstone. Commissioner Lloyd seconded. Upon a unanimous vote of 4-0, the motion was carried. 7:12:13 PM Town Manager Peterson then moved on to the added Item 4.A. and asked Mr. Hornik for an update on the timeline for the process. Mr. Hornik replied there’s another new appraiser. By mid-September, there is supposed to be an updated appraisal report and the updated report may somehow take into account the proposed sale to Ashton Woods. The idea is to try to get the SAD in front of the LGC in November for potential bond sale before the end of the year. Given that timeline, they thought it might be a good idea to assess or reassess where exactly they are with the SAD process. August 27, 2012 Town Board Monthly Workshop Approved: October 8, 2012 Page 4 of 12 7:13:31 PM Mr. Peterson added one of the reasons the Board ultimately decided to proceed with the SAD was that Stratford didn’t have the ability to do the Phase III infrastructure. Phase I was done, Phase II was either done and/or funds from the hospital to purchase property was escrowed, and the work that’s going on out there now is being done with those funds. It was Phase III, which was the Cates Creek Parkway and the part that wasn’t done, that everyone felt was critical to making sure the development goes forward. Mr. Peterson said the second reason was seeing the project for Stratford go into foreclosure and maybe getting bound up for a year or two and foreclosure wouldn’t be a good economic development opportunity for the folks in the area. These are the reasons the Board decided last June to proceed with the SAD and things have moved slowly for a variety of reasons although not because of the Town. With the pending sale of the single family and townhome property to Ashton Woods, and a significant amount of those funds going into an escrow account to pay for the Phase III infrastructure, Mr. Peterson said it seemed to him and Staff working on it, the primary reason for doing this no longer exists. He asked if the Town really wanted to go through all the gymnastics and own this process from the start until it completes when they don’t know the benefit to the Town. He said the only benefit left would be Stratford using all those remaining funds to pay off the Bank of America, which they talked about, and that seems to be beyond the scope of the Town’s responsibility. Mr. Peterson said if the only benefit is to keep them from going into foreclosure, that doesn’t seem to be a sufficient reason to go forward and accept the risk. With that being said, he said Stratford’s going to move on the SAD on an aggressive timeline so that at thth an upcoming meeting, either September 17 or October 8, the Staff suggests inviting Stratford representatives because he’s sure they’ll have a different opinion than he does. They’ve had multiple conversations and emails and Stratford has been told in detail what his reservations are but they need to have an opportunity to share their positions with the Board so the Board can make a well informed decision about how they feel and decide if they want more information. Mr. Peterson added, as far as more information, he feels the Town and Board said from the beginning if they were going to go through all of this, they would not go through with the SAD unless Bank of America said they would hold in abeyance any possible foreclosure procedures for two years. Otherwise, they might go through all this and the bank goes forward with foreclosure procedures the next day and takes over. They’ve heard nothing from Bank of America since that initial conversation he had with them a year or more ago. They’ve also had no indication from Stratford they’ll be able to provide a written guarantee and assurance that this would be the case. If they’re not able to do that, the wheels come off anyway. These are issues Stratford can address when they come and talk to the Board. 7:17:29 PM Mr. Hornik said they had a phone conference two weeks ago and in that conversation, and through emails, they told Stratford representatives that it was still Mr. Peterson’s opinion that this is not a great idea. They were told Mr. Peterson would mention this to the Board again and be sure they had an opportunity to talk to the Board and provide a counterpoint regarding whether it’s still a good idea to proceed with the SAD. Given the aggressive schedules they’re talking about, a lot has to happen between now and the end of August 27, 2012 Town Board Monthly Workshop Approved: October 8, 2012 Page 5 of 12 November so the sooner they can talk to them about it and the Board can decide if it’s still worth pursuing, the better. 7:18:02 PM Commissioner Frances Dancy asked when in November they would do that. Mr. Hornik said the LGC meets on the first Tuesday but it may be moved to Wednesday due to Election Day. The LGC approximate approval date, or at least consideration of the SAD thth process, would be November 6 or 7. There are agreements, reports, appraisals, and so forth that all have to happen by early to mid-October in order to make that November date possible. Commissioner Dancy asked what the schedule looked like for the September workshop. Mr. Peterson was not aware of anything for the workshop yet but Mayor Stevens said they were busy for September. Commissioner Gering stated they’d discussed having the Tourism Board that night. He and the Mayor had gotten with Mark Bell about the need to have a joint meeting with the Tourism Board and the Alliance because there are related issues they needed to discuss. They’d mentioned doing that at the September workshop. The Board discussed the lengths of time for these items to be covered. 7:20:37 PM Mayor Stevens agreed they meet with Stratford at the workshop unless they can fit it in the September meeting. He added if they’re not going to move forward, he feels they need to make a clear position. Their commitment, although they’ve never been very comfortable with it or enthusiastic about it, is they said make a decision to go forward and the big question is whether things have changed significantly enough that they need to revisit that. They don’t need to redo the same thing they’ve been doing that they’re not particularly comfortable with but they need to evaluate the degree to which things have changed. 7:22:02 PM Commissioner Hallman asked if it would be helpful for them to send in specific questions in advance. Mr. Peterson said yes and asked them to send their questions to Mr. Hornik and he would relay them to Stratford. 7:22:29 PM Commissioner Dancy asked if it would be helpful for Stratford to provide the Board with their reasoning more so than the Board provide questions. She said they all know they don’t particularly care for it and being that things got changed, they could share what counter decisions they’ve made that would help the Board or to justify why the Board should do this. 7:22:57 PM Mr. Peterson said once they establish the Board’s direction to ask them to come there, they can do exactly that, and when they contact Stratford, they will let them know this is the topic of discussion and their opportunity to provide in advance preferably, and in person, their justification for why they should continue. Mr. Hornik said they’d already told the representatives the suggestion would probably be for them to be prepared to explain to the Board why the SAD is still a good idea or the only way for them to be able to proceed. 7:23:42 PM Commissioner Dancy said that would help her more than her providing a question for them. She needs to know why they still need this. Commissioner Lloyd agreed and said she didn’t believe she had any more questions to ask. August 27, 2012 Town Board Monthly Workshop Approved: October 8, 2012 Page 6 of 12 7:24:07 PM Mayor Stevens confirmed this was enough guidance to proceed accordingly. 5.Consideration of a resolution ratifying the use of a warranted evidentiary search of 525 North Nash Street conducted August 10, 2012 to serve for minimum housing purposes and authorizing the Police Department to do these types of searches in the future 7:25:19 PM Ms. Hauth said in the course of the continuing saga at 525 North Nash Street, and continuing to watch that property for compliance, the Police Department had an occasion to be in the property. They observed a lot of things that they had not seen yet. After seeing the results, she asked Mr. Hornik if it was possible for the results of that investigation to be used as the inspection that is required under the minimum housing code. This resolution is presented tonight to allow them to use the evidence they collected as part of their search to allow them to move forward with a minimum housing code hearing and move this process along. 7:25:50 PM Mr. Hornik said the resolution may not be strictly necessary but since the ordinance says the code enforcement officer is the inspector, and the Planning Staff has been acting as the code enforcement officer, and since there was a lot of good information gathered during the search, they felt the Board should vote to officially authorize the use of the information obtained by the Police Department in a search like that. Also, that information could be used by the Planning Staff as part of its investigation of minimum housing code violations. It would also specifically authorize or appoint the police to act as inspectors for purposes of minimum housing code enforcement in the future. If circumstances arise like this again, they’ve got the trail of the Town’s ordinances and resolutions to show the police department has authority to act as an inspector. 7:27:04 PM Mayor Stevens said this process drags out enough and if this gives them an opportunity to move forward more aggressively, he encouraged the Board to adopt the resolution. Ms. Hauth said she’s always been uncomfortable with sitting as judge and being the one who actually conducts the investigation as it’s hard to make that seem even remotely fair to all parties. Doing this, she will be able to call witnesses from the police department to tell what they found and it will be based more on evidence than something she saw and the appearance that she’d made up her mind ahead of time. She prefers this resolution and it lets them move faster in this case. 7:27:56 PM Commissioner Dancy moved to adopt the resolution. Commissioner Gering seconded. 7:28:10 PM Commissioner Gering asked if anyone could share how this works in other jurisdictions where the police are inspectors. Mr. Hornik said he was not sure but usually a police department doesn’t perform these types of inspections. In this particular case, it so happened they had a minimum housing code complaint regarding criminal activity at the property, the police got a warrant, went in and seized evidence, took photos, and prepared reports, regarding the condition of the property. It definitely had a bearing on the minimum August 27, 2012 Town Board Monthly Workshop Approved: October 8, 2012 Page 7 of 12 housing situation. Commissioner Gering said he understood the basis for it in this case but he wants to understand if they’re adopting something unique or whether there are unintended consequences of this. He asked if this would allow Ms. Hauth to ask the police to conduct an inspection. Ms. Hauth replied it would depend on the question at hand in each individual case because most of the time, the questions are about whether the building is properly wired or the plumbing is sound and so forth and the police are not qualified to inspect for those types of things. The question at the heart of this circumstance is if the building is occupied which is not the usual case. She said she did not think she would take advantage of this resolution or policy change often. Commissioner Gering asked if there was a limiting part of this that would prevent Ms. Hauth from asking the police to conduct an inspection to see if someone is occupying it. Ms. Hauth said it is probably not worded to do so but they wouldn’t be qualified in most circumstances. Mayor Stevens said the resolution specifically states this incident at this address on this day so it’s not anything going forward but is retroactive. Commissioner Gering replied that this was not true because it also says in provision one that it can act in a general way to do the same thing in other cases. Police Chief Hampton said there are precedents for this. While it’s no longer their practice, Graham used to use their law enforcement department as code enforcement. The key thing was anything they did that was strictly a code enforcement function; they had to operate completely under those rules. They can’t operate under criminal rules in any way. They can’t get a criminal search warrant to do a minimum housing code inspection. They have to seek an administrative search warrant which they have the power to do as well as the Staff does under normal circumstances. This is a case where they can document things they see when they’re out and around and give Staff the ability to use that documentation. Mr. Hornik said the idea and intent behind this was not so Ms. Hauth could call the Police Department, tell them there is a complaint, and ask someone to go inspect the property. The idea was the police had already conducted their search there. 7:32:02 PM Commissioner Gering said everyone had the best of intentions here and now but he is concerned about five years from now when few knew the history or have the same intents and try to apply whatever is written in the ordinance. Chief Hampton said it was important to remember they’re bound by the same rules the Planning Department or anyone else is. If they take an action as an agent of the government, they have to follow those rules. Whether Ms. Hauth is doing it or their staff is doing it, they can’t do anything outside of those bounds and in fact, they are probably a little more limited constitutionally in what they can do. 7:32:40 PM Commissioner Gering thanked them and said he was satisfied. 7:32:55 PM Upon a unanimous vote of 4-0, the motion was carried. August 27, 2012 Town Board Monthly Workshop Approved: October 8, 2012 Page 8 of 12 6.Consideration of a Letter of Support for the Durham-Orange Light Rail Transit Project Mayor Stevens said he had a request from TTA asking if he would write a letter of support following similar letters that are being written by the County Chair and other Mayors. He thanked Ms. Hauth for drafting such a letter. He said they want to have the input from the entire Board before they make a recommendation. 7:34:01 PM Ms. Hauth clarified this is the light rail line running between Duke and UNC so it’s in the southern part of the county and does not directly impact Hillsborough. She said Triangle Transit staff offered to be at the meeting but she did not feel it was necessary. Their letter is much shorter than other samples she’d seen because the benefit to Hillsborough is more tangential. It is more a matter of the spinoff effects of being in a county that has good transportation options, good transit service, and the benefits Hillsborough may get from that which are not as specific as those to Chapel Hill or Durham from having the rail run in their jurisdiction. She offered to add to the letter or edit however the Board chooses. They also th needed it to be sent to FTA by September 10 so tonight was the only option to discuss it. 7:35:01 PM Commissioner Hallman said to separate out the transit tax that’s on for November with the Board, this is just for the application for the federal funding for that light rail portion. They still have the support from the County about the rest. 7:35:44 PM Commissioner Gering said he’s in support of it and as the alternate to the advisory committee, he doesn’t get to see a lot of their activity, but he continues to be impressed with how cooperative they are with all their members, especially Hillsborough. He thinks they’ve benefited disproportionately from the actions of the other jurisdictions. This is a small thing they can do but it’s worth doing. 7:36:19 PM Commissioner Dancy said she was in support of this as well. 7:36:29 PM Mayor Stevens said the letter is well drafted and he can’t think of any changes. 7:36:46 PM Commissioner Hallman moved to authorize the Mayor to send the letter in support regarding the Durham-Orange Light Rail Transit. Commissioner Dancy seconded. Upon a unanimous vote of 4-0, the motion was carried. 7.Other 7:37:11 PM Mr. Hornik said NCGS 160A-274authorizes sales, conveyances, exchanges, etc.. between governmental units so they’re authorized to give this sign and the maintenance that goes along with it to the County. Commissioner Gering asked how they acquired it initially. Mr. Hornik said they had an arrangement with Eno River Parking Deck, LLC to put the blue public parking sign there. Ms. Hauth added because the deck doesn’t sit right on the street, and it’s conceivable someone who hadn’t been there before wouldn’t make the connection that it’s a August 27, 2012 Town Board Monthly Workshop Approved: October 8, 2012 Page 9 of 12 parking deck, they put a blue parking icon on the parking deck entrance to be sure someone who was following the blue icons from the traffic light could find it all the way to the deck and wouldn’t inadvertently park on Weaver Street. The County was more than happy to have it installed without an easement but when it transferred, they realized they probably need to approach the County about either an easement or something like that and then realized it was easier to give them the sign. Mr. Hornik said they could have gotten an easement but if the County was willing to take the sign and maintain it, it would be one less thing for the Town to do. As far as they know, everything has been authorized by the County. 7:39:11 PM Commissioner Dancy moved to convey the personal property referred to in this item to the County. Commissioner Eric Hallman seconded. Upon a unanimous vote of 4-0, the motion was carried. 7:39:55 PM Commissioner Dancy moved to go into Closed Session. Commissioner Gering seconded. Upon a unanimous vote of 4-0, the Board moved into Closed Session. 8.Closed Session (as authorized by General Statute 143-318.11(a)(3) a.To consult with town attorney regarding litigation with Frances Henry/Colonial Inn b.To consult with town attorney and discuss litigation regarding the matter of the Taylor-Hall property v. Town of Hillsborough at the intersection of Churton Street and Margaret Lane c. To consult with town attorney regarding minimum house code enforcement at 525 North Nash Street Adjourn 9. Upon returning to Open Session and upon a motion by Commissioner Dancy, seconded by Commissioner Gering, and a unanimous vote of 4-0, the meeting was adjourned. Respectfully submitted, Donna F. Armbrister, MMC Town Clerk August 27, 2012 Town Board Monthly Workshop Approved: October 8, 2012 Page 10 of 12 August 27, 2012 Town Board Monthly Workshop Approved: October 8, 2012 Page 11 of 12 August 27, 2012 Town Board Monthly Workshop Approved: October 8, 2012 Page 12 of 12