HomeMy Public PortalAbout12-21-2017 Minutes PB Regular meetingPB Minutes
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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.
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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
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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.
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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.
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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.
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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
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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
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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
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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