HomeMy Public PortalAbout06-12-2019 Minutes BOA Regular MeetingMinutes
Board of Adjustment
7 p.m. June 12, 2019
Town Hall Annex Board Meeting Room, 105 E. Corbin St.
Present: Chair Randy Herman, Bill Harris, Vice Chair David Remington and Dustin Williams
Staff: Senior Planner Tom King and Public Information Specialist Cheryl Sadgrove
Guests: Patrick Cummings and Randy Hall
1. Call to order and confirmation of quorum
Chair Randy Herman called the meeting to order at 7 p.m. and confirmed a quorum with four members present.
2. Agenda changes and approval
There were no changes.
3. Minutes review and approval
Approved minutes from the regular meeting on April 10, 2019, to be reconsidered for approval
Motion: Member David Remington moved approval of the April 10, 2019 minutes as submitted. Member Dustin
Williams seconded.
Vote: Unanimous
4. Public hearings
A. Case #BA -04-2019: Conditional Use Permit Modification regarding 320, 340 and 360 Executive Court.
Herman opened the public hearing and asked board members whether there was any ex parte communication to report
regarding this item. There was none.
Herman asked for any conflicts of interest. There were none.
Randy Hall with Summit Design and Engineering and Senior Planner Tom King were sworn in.
King submitted the staff report into the hearing record and reviewed a synopsis of the project and why it was before the
board.
King stated the Board of Adjustment approved the project in 2010 under a former Town Zoning Ordinance. The project
involved four buildings to be used for "flexible office, storage and warehousing." Staff at that time determined 103 off-
street parking spaces were required to serve the project based on the proposed building uses. At the time, the parking
standards applied were:
Office = 1 space per employee plus 1 space per 300 square feet of gross floor area
Storage and Warehousing = 1 space per employee and 2 customer spaces.
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The project was approved with 133 parking spaces.
King stated that multiple permit expiration and vested rights extensions were subsequently granted over the next nine
years. The Town adopted a UDO (Unified Development Ordinance) in early 2011 replacing the Zoning Ordinance under
which the project was approved. The project's permit approval remained vested during this time.
Project construction drawings were approved in 2018. The project layout changed slightly from the 2010 approval in
that only three of the four buildings were to be constructed. No change in building uses was proposed. Staff at that time
determined that, based on only three buildings and using the parking standard used for the 2010 permit submittal, the
required parking could be reduced from 103 to 100 spaces with a maximum of 120 spaces allowed. The construction
drawings were approved with 119 spaces. Project construction began in late 2018 and is still under construction, with
the first of the three buildings being mostly complete as of the date of the board meeting.
Staff confirmed in early 2019 that two of the three proposed buildings' uses were to change to office space for the
applicant's business, Summit Design and Engineering Services. Staff determined this change in use necessitated an
increase in the number of required parking spaces for the project which, in turn, affected required parking lot
landscaping and layout requirements.
King continued stating that the applicant, in their permit modification request, used internal floor area as a basis to
calculate the required number of parking spaces. This method produces 158 required spaces with 152 spaces to be
provided. Additional spaces are provided using compact car spaces and striping of additional spaces behind Building A.
King stated the applicant's parking calculation methodology doesn't meet UDO requirements. The UDO specifies using
gross floor area (which includes the outside walls of buildings) when calculating many of the required parking ratios.
King stated staff was presenting two scenarios for the board to consider relative to the application of required parking
standards:
one based on the applicant's currently stated proposed uses (flex space and office) and the current parking
standards for each use as found in the UDO, and
2. a hybrid approach using current UDO parking standards for the two buildings whose uses are changing, and the
former parking standard found in the previous Zoning Ordinance for the building whose use isn't changing.
King stated the first scenario results in a need for 168 parking spaces. The second results in a need for 152 spaces; noting
that 152 spaces is the exact number applicant proposes in their modified site plan.
King stated that, in reviewing the case, the Board must:
a. determine which of the two staff -supplied parking standards apply to the project; and
b. if it is determined the number of parking spaces proposed by the applicant is not insubstantial compliance with
the UDO, consider a waiver from the parking standards found in UDO; and
c. consider granting of four waivers relative to parking lot landscaping and layout.
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Herman asked if Mr. Hall wished to speak to the matter.
Hall said Building A would be strictly used for Summit's offices. The smaller building, Building C, would serve as a base
office for surveyors, who typically work in the field, and a geotechnical lab.
King reiterated that he had determined this change was a significant change in use from that which was approved in
2010, flexible office, storage and warehousing, which would affect the parking requirements.
Herman asked King what the definition of flex space was under the former zoning ordinance that was in effect when this
project was approved. King said he did not have the former zoning ordinance with him, but he recalled that the
definition did not change when the Unified Development Ordinance was adopted.
King stated the current definition of flex space reads "building designed and marketed as suitable for offices but
including areas suitable to accommodate bulk storage, showroom (including retail sales as an accessory, but not
predominant use), manufacturing, assembly, or similar operations. Generally, flex space has storefront type windows in
the office area of the space."
The board then discussed the types of buildings on the site. Board members said Building A seemed to be strictly office
and Building C is flex space/office.
Hall said he thinks there was room for a fourth building when the plan was approved because there was no bioretention
area. He said the bioretention area makes the parking spaces tight. He said Summit tried to figure out how to
accommodate parallel parking spaces but could not fit them in because of the need to accommodate truck traffic to the
dumpsters.
The board discussed whether it would determine that there was a substantial change in use from the 2010 approved
plans.
Herman said if the board determines that there is no change in use, then the applicant cannot build more than 133
parking spaces. He asked Hall whether Summit would be OK with that. Hall did not immediately answer.
King said if the board determines there is no change in use, then Summit could only build 120 parking spaces — the 119
approved in 2018 plus one additional space, as shown on the approved construction drawings.
Member Bill Harris said he agrees with Herman but wants to know what signifies a substantial change to the proposal.
King answered that Page 9 of the electronic agenda packet defines significant and substantial. He read the specific
language:
"The Planning Director shall use the following criteria in determining whether a proposed action is a minor change or a
modification. For the purposes of this section "significant" shall imply a change this is important to character or
appearance of the project and generally refers to items not easily quantifiable; "substantial" shall imply quantities, size,
or impact....
(c) Each of the following shall constitute a modification:
L A substantial change in use.
ii. An expansion of building square footage of 20% or greater.
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iii. A change in any quantifiable standard in this ordinance of ten percent or more. This includes but is not limited
to increasing the number of dwellings, increasing or decreasing the amount of parking, increasing the removal
of canopy trees, increasing the building height."
Herman stated that the word "substantial" is often used in legal terminology but is not always clearly defined.
Williams said he thinks it is important to consider other uses for these buildings in case Summit one day does not occupy
them. Hall said Building A is being constructed in such a way that it can be returned to flex space.
King said if all three buildings changed back to flex space, then the parking requirement would be 149 spaces under the
current ordinance. There was discussion and clarification that if Buildings A and C were considered strictly office, then
152 parking spaces would be required under the current ordinance. If all three buildings were considered offices, then
179 parking spaces would be required.
There was discussion that if one of the buildings was to be used for something different in the future such as for a
doctor's office, then the new use would likely be subject to only a site plan review. King said he had consulted with the
town attorney about the dissolution of the Conditional Use Permit and he did not yet have an answer on when it
dissolves.
Hall was asked whether Summit would be OK with fewer than 152 parking spaces. Hall said Summit is expecting 50
employees in the office in Building A. The owner's intent was to add diagonal spaces to have the employees park closer
to the building so that employees would not have to park on the far side of the stormwater controls, he added.
Board members asked King whether the additional parking spaces would be allowed. King said if there was no change in
use, then only 120 spaces could be allowed.
Harris said if the applicant thinks that 152 parking spaces are needed, then the only solution is the hybrid approach by
which the buildings were determined to have different uses. Harris asked if there is precedent for taking a project and
identifying one third as having a different use. There was no immediate answer.
Hall said that Summit could redesign the parking lot so that the compact parking spaces become regular ones and also
build the diagonal or angled spaces closer to the building.
Herman explained if all the buildings were considered to have a flex use, then there is no change in use and Summit
would be stuck with the parking that was approved in 2010.
King said if Summit wants the diagonal spaces, then it will require a waiver from the three-foot wide landscape strip that
was required in 2010. This landscaped area would need to be between the building and parking area. There is no way
they can accomplish this because the fire code requires a 20 -foot wide travel way. If the three-foot wide strip is provided
behind Building A, it will interfere with the fire access road drive aisle width.
Herman suggested that if the board determined that there was no change in use, then King could evaluate what waivers
would be needed and bring that information to the July meeting.
Herman suggested the board vote on that question before considering other aspects.
The board discussed whether members thought that flexible office, storage and warehousing usages could be spread
among the buildings in whatever way the user wanted. Remington said he did not think the proposed usages was a
significant change but rather a redistribution of usages.
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Remington said you could apportion flexible office, storage and warehousing any way you want. He does not feel that it
is that big of a change.
Herman asked whether anyone else wanted to be heard on this matter.
Harris asked the board if this sets a precedent the board can live with. Herman said it is unique that the Conditional Use
Permit was approved 9 years ago and happened to continue to get reapproved several times and meanwhile the
governing ordinance changed. Remington said the board has run into this issue with parcels located on Meadowlands
Drive and Millstone Drives. Herman said each case is evaluated on its own merits. He added that the board wants to be
consistent, but there is no binding precedent to make the same decision as made in a similar case.
Remington said he asked himself whether this was a case of trying to cram too much on one parcel but, given that this
was originally going to be four buildings and there is now a large riparian buffer with stormwater control features, it is
not a matter of cramming.
Williams thinks the board should consider whether it would arrive at the same decision if the proposed change in usage
was to all manufacturing or retail. Office seems like a gentle use, he added, which the board may more readily agree to
than manufacturing or retail.
Herman said the proposed uses are basically the uses approved in 2010. The owner has shifted buildings a little on the
site, he said, but there is no substantial change and it does not trigger new requirements.
Williams said that he would agree that there is not a substantial change to the site as a whole, but he thinks there is a
substantial change to the use of Building A. He said that he is unsure of which unit to consider.
The board reviewed the original proposed units for the buildings. Remington then thought it may be a substantial
change.
King said he thought it was a substantial change and would need to follow today's parking standards.
Herman said the permit is for the entire site. He did not think the board could look at individual buildings to determine
substantial change.
Williams said that it was originally 10% office and now it is proposed to be just under 50% office. However, he said, he
was not sure that change in percentage of office use was a substantial change for this site.
Herman said the 2010 plan was approved as flexible space with variable amounts within. Remington said the numbers in
the table were not approved, but it was a suggestion. King said the table shown on the plans were what was approved
by the board in 2010. Remington said the numbers were interpreted. King said there was no parking standard for flex
space in 2010 so, yes, in 2010 he had to use the parking standards for office and storage and warehousing and make an
interpretation relative to the required number of required parking spaces.
Harris said 10 years ago Summit proposed a speculative project and now the company has firmed up the percentages of
each type of use.
Herman said office is one of the uses included with that.
Hall said 10 years ago flex space was popular and now there is not much demand.
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When asked about how far along the project is, King said only one building is complete.
Herman called for a vote.
Motion: Remington moved that the change in use and associated parking demands do not represent a
substantial change in use and, therefore, there is no need to modify the Conditional Use Permit and no
change is needed in the number of parking spaces permitted. Member Bill Harris seconded.
Vote: Unanimous
Hall asked if Summit could build angled parking spaces close to the building as long as it did not build more than 120
spaces. The board said that was permissible as long as Summit followed the ordinance in effect in 2010, which included
a three-foot wide landscaping strip between the building and parking area.
Hall said making a few changes to the recently proposed parking could increase the number of spaces to 120.
There was discussion about the possibility of Summit needing a waiver for omitting the three-foot wide landscaping
strip. Hall mentioned the possibility of creating a landscaped island instead.
Herman said that the applicant should submit a new plan showing no more than 120 parking spaces. Staff could then
evaluate that plan under the 2010 ordinance. If there is a need for waivers, then the applicant could request the waivers
at the July meeting of the Board of Adjustment.
King said under the former zoning ordinance, there was no provision for waivers.
Harris said that the applicant could figure out options and determine whether adding the 17 angled parking spaces
would be worth the required steps.
Herman called for a motion to continue this item.
Motion: Remington moved to continue this item to July 10, 2019, to give the applicant time to reevaluate plans
for parking. Harris seconded.
Vote: Unanimous
S. Other business
None.
6. Committee and staff reports
King reported that the Hillsborough Board of Commissioners had voted to annex Sheetz and an adjacent parcel. He also
noted that some text amendments to the Unified Development Ordinance had been adopted and more would be under
consideration at the July public hearing.
King introduced Patrick Cummings, who is interested in serving on the Board of Adjustment. King noted that Brian
Perkins does not wish to serve a second term and that Williams wished to be reappointed by the Orange County Board
of Commissioners to serve for another year.
7. Adjournment
Motion: Harris moved to adjourn at 8:27 p.m.
Vote: Unanimous
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Approved:
Tom King, AICP, CZO
Senior Planner
Secretary to the Board of Adjustment
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