HomeMy Public PortalAbout08-27-2012 Regular Meeting
August 27, 2012
Town Board Monthly Workshop
Approved: October 8, 2012
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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.
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Town Board Monthly Workshop
Approved: October 8, 2012
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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
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Town Board Monthly Workshop
Approved: October 8, 2012
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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.
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Approved: October 8, 2012
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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
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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
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Town Board Monthly Workshop
Approved: October 8, 2012
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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
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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.
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Town Board Monthly Workshop
Approved: October 8, 2012
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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
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Town Board Monthly Workshop
Approved: October 8, 2012
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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.
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Approved: October 8, 2012
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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
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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
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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
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