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HomeMy Public PortalAbout12-21-2017 Minutes PB Regular meetingPB Minutes 12/21/17 Page 1 of 9 Minutes Hillsborough Planning Board 7 p.m. Dec. 21, 2017 Town Barn, 101 E. Orange St. Present: Dan Barker, Toby Vandemark, James Czar, Lisa Frazier, Chris Johnston, Alyse Polly, Jeff Scott, Jenn Sykes and Chris Wehrman Staff: Assistant Town Manager/Planning Director Margaret Hauth and town attorneys Bob Hornik and Kevin Hornik ITEM #1: Call to order and confirmation of a quorum Mr. Dan Barker called the meeting to order at 7:01 p.m. Ms. Hauth confirmed the presence of a quorum. ITEM #2: Consideration of additions or changes to the agenda A guest in the audience, Nathan Robinson, requested an additional agenda item, which the board decided to call Item 3b. ITEM #3: Approval of minutes from the Oct. 19, 2017, public hearing and Nov. 16, 2017, regular meeting MOTION: Ms. Vandemark moved approval of the minutes. Ms. Frazier seconded. VOTE: Unanimous ITEM #3B: Added item — Nathan Robinson Mr. Robinson said he has recently acquired the former rest home at the corner of Union and Churton Streets. The building is a little more than 4,000 square feet. He proposes to divide it into three townhouses that would be sold separately. Mr. Robinson said offering one-story living in a walkable area seemed like a good idea. He said in a preliminary conversation with Ms. Hauth, the two had discussed possible paths forward and she had suggested he come before this board for direction. Ms. Hauth said the owner could pursue a rezoning to Neighborhood Business Special Use in order to have attached housing as an option. She noted that pursuing non-residential zoning for a residential purpose might seem odd, but that was the path available. She added that the board could process text amendments to create a different path for this property and that was the reason she suggested he talk with the board before filing. Ms. Sykes said she likes the idea of zoning for commercial use. Mr. Barker asked about the possibility of using adaptive reuse. Ms. Hauth answered that is for nonresidential development or allows for residential in large nonresidential buildings, like old mills or old shopping centers. PB Minutes 12/21/17 Page 2 of 9 Mr. Barker asked whether any form of a special use permit would work for this project. Ms. Hauth answered that the board could craft one. She said we could lower the standard of residential special use to allow for this smaller lot. We could create a special use permit within the Residential-20 district, which it is already zoned. Mr. Barker asked Mr. Robinson for his timeline because this would likely take five months. Mr. Robinson said that’s fine and said Ms. Hauth had told him to plan on six months. Mr. Robinson said he wanted to be sure he could create townhomes before putting it under contract. Mr. Czar asked for confirmation that the available path was to rezone the property for commercial use. Ms. Hauth said that could create buffers and nonconformities and a long list of waivers. Ms. Hauth suggested the board could alternately craft a special use permit that would open the door a little but not too far for this building to be changed. Bob Hornik said that would take an amendment to the Unified Development Ordinance. Mr. Czar said he thinks it would create more future problems to reintroduce the special use permit into R20. Ms. Sykes agreed and said the rezoning to commercial would be weird and would raise questions from the neighbors and the Historic District Commission, but the explanation that the intention is for townhomes can be given. Mr. Barker asked for consensus. Ms. Hauth said she was hearing consensus around encouraging Mr. Robinson to follow the existing rezoning option. Ms. Hauth said most likely the rezoning request would be heard at the April public hearing. ITEM #4: Discussion about land use designation to apply to 85 acres added to the urban service boundary. This item requires a vote to send to the January public hearing. Ms. Hauth introduced Orange County Planning Supervisor/Planner III Tom Altieri. She noted that she had provided better maps and that the area being discussed is shaded gray. In coordinating with county staff, since the jurisdictions need to have matching land use designations in this area, they think the better option is to designate all the area in gray “suburban office.” Sometimes there is a hard urban edge when there is a utility service boundary and sometimes softer, Ms. Hauth continued. The elected board does not want residential development south of I-40, and it looks like this will be a hard urban edge. Ms. Polly said she thought neighborhood mixed use would be more interesting, have more character and be more exciting, especially coming off the freeway. Ms. Hauth said neighborhood mixed use is not really about residential but small-scale retail. She further explained if neighborhood mixed use is extended along the frontage, it opens more doors for fast food and convenience stores, the types of things you see right at an interstate interchange. Some of the parcels are quite deep. That designation does not lend itself to efficient development. Ms. Polly said she thought employment and another use would open up more fast food opportunities. She checked that neighborhood mixed use would also create that strip mall off the interstate. Ms. Hauth said county and town staff could interpret the uses differently. Ms. Hauth explained the county offers conditional zoning, which means someone can come in to ask for PB Minutes 12/21/17 Page 3 of 9 almost anything and write their own zoning ordinance to apply to the property. Ms. Hauth said she doesn’t want to give a false sense of security about the possibilities. Ms. Polly, Mr. Czar, and Ms. Sykes discussed a variety of uses that might be acceptable in the area, noting comments received by the county during their public hearing and circulating on Nextdoor.Mr. Czar said neighborhood mixed use would allow multifamily residential. Ms. Hauth said yes and the town is unlikely to provide water and sewer services to a residential project. Ms. Polly said it makes sense to stay away from employment because of the light industrial component. Mr. Barker asked the board what members want to see there. Mr. Czar said he has a strong preference for suburban office complex. Mr. Barker asked if people want to see apartments. They said no. Ms. Sykes said suburban office complex in the economic development district has enough leeway to include uses like an artisanal bakery. Mr. Barker asked if a small business with a dock for shipping would be OK with members. Several members said yes. Mr. Barker asked whether members want to see fast food in that general area. Ms. Sykes answered no, but we want the tax revenue from it. Mr. Barker asked whether members want gas stations, knowing if a gas station is in town it can only have four pumps. Ms. Hauth said those types of uses would be more likely to be on the parcels shaded pink on the map. Entranceway special use would allow that. Mr. Barker asked members if they want to allow car repair there. Ms. Sykes answered no. Mr. Barker asked Mr. Altieri to speak. Mr. Altieri said he does land use planning and transportation planning. He said presently the county has no intentions to rezone this area to match any change in the land use plan. The county would amend the comprehensive plan and extend the economic development district to this area. The zoning there now, which is rural residential, R-1, would stay in place. There are no plans to extend water and sewer at this time. At one point, this area was part of the Settlers Point proposal, but it has been taken down. Mr. Barker said the town has extended water and sewer service to Davis Road effectively and has the potential to get there. Mr. Altieri said long term, there is potential to develop this land. Mr. Altieri reported the county’s planning board met on Monday and reviewed a revised traffic impact analysis and buffer requirements around the interstate. That board will meet again Jan. 10. The plan is the proposed Settlers Point development would go back to the Orange County Board of Commissioners Jan. 23. The public hearing will be closed that evening for some board discussion, and Mr. Altieri anticipated that the commissioners will wait on a decision until the first meeting in February. Mr. Scott asked whether there is a long-range plan to develop as a corridor the area between that parcel and the Waterstone development and where N.C. 86 comes into Chapel Hill. He doesn’t know what the uses are there — between Old N.C. 86 and new N.C. 86 where it comes into Chapel Hill. Mr. Barker answered that the county has established a rural buffer in that area, so generally corridor development would be discouraged at this time. Ms. Hauth said there won’t be expansions. Chapel Hill and Carrboro wanted an urban edge. Mr. Altieri said there is a hard line. PB Minutes 12/21/17 Page 4 of 9 Mr. Chris Johnston asked if there is an option to say no. Ms. Hauth answered the town already agreed to extending the utility boundary but needs to designate land use. If we send it to public hearing but do not agree on the land use, the land will sit there and not be operationalized. Mr. Czar said he’d recommend suburban office complex go to public hearing. MOTION: Mr. Czar moved to send the proposed zoning of suburban office complex to public hearing. Ms. Vandemark seconded. VOTE: Unanimous ITEM #5: Discussion of request from Pinewoods Montessori School to assist with its expansion plan. Ms. Hauth noted there was an email regarding this item in the agenda packet. Originally, the town created the use called “low-impact school” to facilitate Pinewoods Montessori School locating on Millstone Drive. A low-impact school was defined as having fewer than 100 students. Ms. Hauth said time has passed, staff has changed, and staff and the board of the school were unaware that there was a cap at 100 students. The board for the school approached her about the school’s expansion plans, and she informed them of the enrollment cap. Ms. Hauth continued that there are different ways to approach this issue. She is asking which direction the Planning Board would prefer. The two easy options are to amend the definition of low-impact school or to amend the permitted use table to include schools (elementary, middle and high schools) as a permitted use in the economic development district, which would be more flexible for Pinewoods. She explained that the reason schools were excluded in the economic development district is schools tend to claim large, undeveloped tracts of land and pay no taxes. Now most of the economic development district is built out, and it is unlikely that the Orange County Board of Education would find large tracts of land within that zoning district for locating a school. The risk is less now. Ms. Hauth said she doesn’t feel strongly about either option. Enrollment caps are difficult to enforce and keep in place over time. Mr. Foy said Pinewoods Montessori School has been a great part of the community. New families moving to Hillsborough are looking for this type of education. The school has been working on expansion plans for two years. The 10-year lease was due for renewal in August. The board has been looking at taking over the building or buying another building and decided to expand throughout the entire building. The board signed a lease to take over the school and hired an architect. He said when he spoke with Ms. Hauth about those plans, he found out about the enrollment cap. He said the proposed expanded school meets the parking standards and buffer requirements. He doesn’t think the school needs any other waivers from the Unified Development Ordinance. The school controls 111 Millstone Drive as well, so the school could create a secondary egress if it needed to do so. Currently, that location is an activity field, and the school wants to keep it as such. Mr. Barker asked whether a second school would be allowed to locate in that structure currently. Ms. Hauth said yes. Mr. Barker said, so the school could move forward with its plans. Mr. Foy said the board discussed that it could split the school into two corporations, which gets past the law but not the spirit of the law. Mr. Barker said if they want to game the system, they could do this on their own. Ms. Hauth answered yes. PB Minutes 12/21/17 Page 5 of 9 Mr. Barker asked where else the consequences of removing the cap could apply. Ms. Hauth answered low-impact schools were only permitted in the economic development district. She believes this is the only one because it could be created only in the economic development district. Ms. Hauth said the risk removing the language allowing low-impact schools in the economic development district and instead allowing any kind of school in the economic development district is that it could lead to Orange County Schools choosing to place its next public school in an economic development district. Ms. Hauth added a county school requires 12 acres. Ms. Sykes said she likes Option 1, removing the cap. Ms. Hauth asked how low-impact schools would be different than others schools, without an enrollment cap. Mr. Johnston asked Mr. Foy to explain staggered pickup and drop-off, which he had mentioned earlier. Mr. Foy explained pickup and drop-off times are different for toddler, primary and elementary students. Ms. Polly asked how big Pinewoods would become. Mr. Foy said the current building size would support 250. We don’t have plans to be larger than that, he said. The board considered purchasing the Orange Charter School building in Meadowlands and decided not to be that large. Also, there is a building next to us that is another office, possibly making a separate toddler daycare space, he said. It’s not in the 10-year plan. Ms. Polly asked how many students are at Grady Brown Elementary School, for comparison. No one could answer that. Mr. Czar asked whether the question before the board was taking one of the two options and sending it to public hearing. Ms. Hauth answered affirmatively. Mr. Czar asked if Ms. Hauth’s preference is to amend the Unified Development Ordinance. Ms. Hauth said the risk to the town is very small to amend the use in the economic development district rather than putting the cap at 250 students. It would also delete low-impact schools from the ordinance. When asked, Mr. Foy said the changes to the building are all internal construction. The members discussed the options at length, with members supporting the cap, but realizing the cap didn’t stop multiple schools from locating in proximity to each other and generating significant traffic. A suggestion was made to insert a spacing requirement so that two low-impact schools can’t locate within 1,000 feet of each other. Mr. Barker said that may be a better route in this case. Ms. Vandemark said allow school in the economic development district with the 1,000-foot spacing requirement. Take out low-impact school. Ms. Polly said there is an issue of traffic even if more than 1,000 feet away. Mr. Barker said our economic development district is not that big. Mr. Barker asked about another building on Millstone Drive that may be used for a daycare or school. Ms. Hauth said the definition of a school is whether it is regulated by the Department of Public Instruction. Mr. Barker suggested a space requirement between schools of 2,000 feet. Ms. Hauth asked Bob Hornik, if the text amendment is advertised with a 2,000-foot separation and then the board decides on 1,000, is that OK because it’s less restrictive? Bob Hornik agreed. PB Minutes 12/21/17 Page 6 of 9 Motion: Ms. Vandemark moved that a text amendment be sent to public hearing that would eliminate the low-impact school designation and allow schools in the economic development district with a minimum of 2,000 square feet between schools. Mr. Czar seconded. Vote: Unanimous ITEM #6: Discussion of potential text amendment to align the sandwich board sign requirements with town code requirements for pedestrian accessibility. Ms. Hauth said in September the Hillsborough Board of Commissioners adopted some new language about sidewalk dining. This highlighted and crossed-out section in the ordinance, included in the agenda packet for board review, is in conflict with that new language. There is now a clear, pedestrian zone, so the town does not want sandwich board signs located there. She is asking the board to strike that language and add the part in italics to make the reference to the town code. Motion: Ms. Sykes moved to send it to public hearing. Ms. Polly seconded. Vote: Unanimous ITEM #7: Training session with town attorney on board procedures and quasi-judicial processes. Kevin Hornik reviewed that the Planning Board is involved in a quasi-judicial process specifically when considering special subdivisions and in a broader sense when the board is using discretion and applying Unified Development Ordinance standards to a specific set of facts. Most of the time, that occurs at a joint public hearing with the Board of Commissioners. He reviewed that when it is a quasi-judicial matter, members have to come the public hearing without an opinion and make a decision based on sworn testimony. The decision about the quasi- judicial matter has to be made in public with reasons outlined. Mr. Czar asked for Kevin Hornik to explain what is meant by competent material and expertise. Kevin Hornik answered it is evidence that makes what they are trying to prove more or less likely to be true. There are certain circumstances under which you really do have to have competent evidence specifically outlined in the general statute, he added. Mr. Barker said if someone stands up and says my home value will go down and if that person is not in the real estate trade, it is not competent. Hillsborough Board of Adjustment Member Randy Herman, who also is an attorney, said the people providing evidence also have to have a reason why the property value would increase or decrease if they are in the trade. Kevin Hornik said a Zillow report with some kind of data may be considered competent evidence, but it is not expert testimony. If something requires expert testimony — like testimony that property values will be impacted or traffic will be increased and that will lead to safety problems — that requires an expert with credentials in the field. Bob Hornik added that the expert has to be able to be subject to cross-examination. That’s why the board is not to consider something in writing if the author is not present. Mr. Johnston asked about accepting the evidence of the character of the area. Bob Hornik said you might have an architect or historian provide evidence. The people who live in a PB Minutes 12/21/17 Page 7 of 9 neighborhood are competent to talk about the character of their neighborhood regarding the trees or how far back the houses are set. Kevin Hornik said the character of the neighborhood might not be within the scope of what requires expert testimony. He added there are certain topics like property values and traffic that must be decided on expert testimony. Bob Hornik said neighbors may be competent to testify about the current traffic volume and character but not to say if this is built, it will change the level of service on this road from an A to a C. Bob Hornik added substantial evidence is enough that a reasonable mind can reach a conclusion about a fact. Kevin Hornik reviewed that discussion of cases outside of the public hearing cannot happen. Any discussion needs to be on the record. Ms. Hauth added evidence about the character of a neighborhood provided by neighborhood residents comes into play on something like character where residents are saying houses in this neighborhood don’t have children or have so many trees. They are giving you evidence to compare with what is being proposed. Mr. Johnston asked, what if a competent witness and expert witness give countering testimony? Kevin Hornik answered it is up to this board to determine which evidence is correct, except the expert testimony is needed regarding traffic safety or property values. If the example is the character of neighborhood, you can have an architect testify about the character and a neighbor testify and this board can decide who has presented more compelling evidence on the character of the neighborhood. Kevin Hornik reviewed members should come into a public hearing without an opinion. Bob Hornik said only for quasi-judicial matters is there a need for testimony under oath. Kevin Hornik reviewed that for quasi-judicial testimony, time limits are not allowed, but the board can limit repetitive testimony as long as the limitation is applied even-handedly. Mr. Barker asked what form cross-examination can take. Kevin Hornik said really this board and the town board could come up with your own practices of how you intend to handle things. Mr. Barker said whoever is proposing the matter makes their presentation and then we hear from the masses. Is that appropriate cross-examination? Bob Hornik answered it is informal here. In Durham and Raleigh, it is conducted much more like a courtroom. Ms. Hauth said we encourage questions be asked of the board, and then the board can ask the other party — for instance, inviting the traffic engineer to come back up and explain something. This keeps some level of control so that conversations do not start happening across the audience. Ms. Sykes said one thing we do that we might consider modifying is perhaps not have a laundry list of rebuttals at the end by the applicant instead of answering one by one. Mr. Barker asked the board, do we want to go back and forth with rebuttals after every speaker? Ms. Sykes suggested the joint boards could pause after 15 speakers to give the applicant a chance to respond, but that pause might annoy the public. Bob Hornik said as a practical matter, he thinks Ms. Sykes is right that allowing the public to vent is an important part of the process. About 75 percent of what the PB Minutes 12/21/17 Page 8 of 9 public says is not material, competent, substantial evidence. Yet, it is important for people to be able to say in a public setting that they don’t like what’s proposed. Ms. Sykes requested that Kevin Hornik’s digital presentation or the information from it be available for the public on the website. Ms. Hauth agreed, explaining the information has been requested and now that it is all written, it should go on the web. Kevin Hornik said for quasi-judicial proceedings, you don’t have to meet the lofty threshold for rules of evidence like what is required in a true courtroom setting. It is up this board to decide what is competent, material, substantial evidence. Bob Hornik qualified that advice by saying he would never want the board to base decision solely on hearsay evidence or a letter or report where someone is not present to be cross-examined. It’s not important that they are cross- examined but that they are available to be. Kevin Hornik advised that boards should keep in mind that what members say on public record can form the basis of an appeal. He also advised that a member should not take special trips to the site to take a look before a public hearing. You should disclose if you walk your dog past it every day. Bob Hornik said disclose conversations. Members asked what the purpose is of not visiting the site. Kevin Hornik said members are supposed to hear testimony at the public hearing with a blank slate. Bob Hornik said the safe thing to do is to disclose and say it’s down the street from my house or I pass it on my way to work. Mr. Barker asked members to remind him to ask for disclosure at the next public hearing if he forgets to ask for it. Kevin Hornik said it’s not that you cannot go to these sites, but you must disclose why you are there and what you did. You are not supposed to be examining the sites. Mr. Barker asked if checking out sites on Google Maps is in the same category. Bob Hornik said he thinks so. He added that some boards organize site visits as part of their process and announce a quorum will be gathering. Ms. Hauth said if you want to do that and there’s any chance at all that there’s going to be a quorum, then she needs to publish a meeting notice. Mr. Wehrman asked about confirming what is said. Can we go to the site to verify what was presented at the public hearing, he asked. Bob Hornik said you need to disclose during your deliberations that you went and what your findings were. But best practice is not to visit the site. Kevin Hornik said that at the close of the first hearing, you could say members may visit the site in the interim to discern what they’ve heard. Then at the beginning of the next meeting, disclose that you went. Bob Hornik said it’s the procedural stuff that will screw up a decision. If both sides present substantial, competent evidence, then you can decide between the two. If you mess up on procedure, the board’s decision will be reversed in an appeal. Kevin Hornik said a good rule of thumb is if you have any question individually about something you’ve done outside the scope of the public hearing, state it on the record at the beginning of the hearing and the board can decide whether you should recuse yourself from this particular vote. Bob Hornik said you should be able to say it does not affect your ability to make a decision. Ms. Vandemark said for the recent public hearing for the proposed development in West Hillsborough, so many testified against the plans, but that couldn’t be weighed because how PB Minutes 12/21/17 Page 9 of 9 many people testify opposition to it is not substantial, competent evidence. Bob Hornik said if you have 100 people who stand up to say, “I just don’t like it,” and the other side has one person to testify with substantial, competent evidence, you almost have to approve the decision. Ms. Hauth said it was different for West End Heights because there was a rezoning request. The board could have recommended denial of the rezoning because that portion was a legislative hearing. Then the vote on the special use permit becomes moot. Most special use permits are tied to a rezoning. Kevin Hornik reviewed quasi-judicial decisions should be based on factual evidence. Board discussions should be about whether the evidence presented by the applicant meets the standard set forth in the Unified Development Ordinance. Decisions have to be based on facts. Certain decisions, such as use of property impacting value and traffic impacting public safety, require expert testimony. Keep an eye on those, he advised. Mr. Barker asked, is there a way we can let the public know how to check the box of competent evidence? Ms. Hauth said that can be accomplished by condensing Kevin Hornik’s Powerpoint presentation for the town website. Kevin Hornik reviewed that conflicts of interest have to be disclosed and that very likely you need to recuse yourself from voting. Bob Hornik said the members who feels he or she has a conflict needs to ask to be excused from participating. Or if you know other members have a conflict of interest, you need to ask the board to excuse that member from participating. Ms. Hauth reminded the members that they are here to vote, so don’t stretch appearance of conflict of interest. Basically, the person or a close family member would need to gain monetarily to have a legal reason to recuse oneself, she said. Kevin Hornik reviewed that in creating a record of a hearing, there doesn’t have to be a verbatim transcript; but for quasi-judicial public hearings, the minutes need to be much more detailed than the action minutes some boards keep. Quasi-judicial minutes do not necessarily need to be a verbatim transcript. Often there is at least an audio recording. Kevin Hornik reviewed that nearly anything can be appealed. Everything will form the basis of the record before Superior Court. ITEM #8: Adjourn MOTION: Ms. Sykes moved to adjourn at 9:13 p.m. Ms. Vandemark seconded. VOTE: Unanimous Respectfully submitted, Margaret A. Hauth Secretary