Regular Meeting of the Cary Town Council

MINUTES

Thursday, June 24, 2004

6:30 PM

Temporary Council Chambers

Herb Young Community Center

101 Wilkinson Avenue , Cary , N.C.

PRESENT: Mayor Ernie McAlister, Mayor Pro Tem Jack Smith, and Council Members Marla Dorrel, Mike Joyce, Jennifer Robinson and Julie Robison; Council Member Roseland arrived late, and his arrival time is noted in the minutes.

A.   COMMENCEMENT

1.    Call to Order

Mayor McAlister called the meeting to order at 6:30 p.m.

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2.    Ceremonial Opening

Council Member Joyce provided the invocation and led the Pledge of Allegiance.

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B.   CONSENT AGENDA

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C.   RECOGNITIONS, REPORTS, AND PRESENTATIONS

Mayor McAlister announced that the Raleigh Public Relations Society awarded the Town of Cary 's Quality of Real Life economic development video the gold medal in the audio-video category.  This was a statewide competition that was judged by communication professionals in California .  This video was done in-house in cooperation with the Cary Chamber and with editing assistance from SAS.

He congratulated Town of Cary Public Information Officer Susan Moran and her videographer staff – Dave Wolk and Peyote Perryman – for their great work.

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Mayor McAlister requested, and council concurred, to address agenda item H.1.b. at this time.

2503 Ten Ten Road – Request Waiver of Thoroughfare Improvements and Right-of-way Dedication (EN04-086)
Committee unanimously recommended forwarding this item to Council for discussion at the June 24, 2004 Council meeting. Former Governor Jim Holshouser was present to address his client’s request to waive thoroughfare improvements and right-of-way dedication associated with anticipated site plan submission for car wash addition to the site.

The Upchurch Farms development, located at the intersection of Jenks Carpenter Road and Collins Road , was originally approved as a sketch plan in March 1999.  The plan specified that the project was to be built in five phases consisting of approximately 132 single family units and 237 multi-family units.  One of the approval conditions associated with the development plan was “Only construction of Phase One (100 units) may occur until the completion of the High House Road improvements as proposed in the FY2000 budget request.”  Because the High House Road improvements was at least two years from being completed (estimated completion was Fall 2004), the developer’s request was approved to allow construction of 90 additional units September 19, 2002 .  The developer is requesting that the condition be modified to allow construction of 136 additional units.  The attached letter from Mercury Development includes more information and history on the project.

Based on Town Council minutes from the February 11, 1999 meeting, staff anticipated that the High House Road widening and bridge improvements would be completed in 2002.  Funding for the project was delayed one year and design of the project was delayed due to coordination with the North Carolina Department of Transportation.  Right-of-way and easement acquisition should end this fall, with the final plans being approved by the state and construction beginning in summer 2004.  The project will last approximately one and one-half years, with an estimated completion of fall 2005.

Staff has analyzed the impact of allowing 136 additional units to be constructed, and the findings are as follows:

Upchurch Farms received Sketch Plan Approval April 13, 1999 . This approval was based on a Traffic Impact Analysis by Kimley-Horn Associates dated May 1998.  This traffic analysis was based on 369 dwelling units (132 single family, 237 apartments).

The traffic impact study for Sears Farm PUD, estimates existing level of service (LOS) for 2001.

The traffic impact study for Carramore PUD –July 2003 indicates:

“ High House Road and Jenks Carpenter Road / Carpenter Upchurch Road

An interim improvement for the High House/Jenks Carpenter intersection is a recently installed traffic signal that controls the Carpenter Upchurch Road intersection and, because of its extremely close proximity, indirectly controls the operations of the Jenks Carpenter Road intersection.  This improvement has aided operations in this area to some extent, but field observations still note lengthy delays for the minor street approaches and significant congestion along High House Road in this vicinity.  The Town ultimately plans to realign the two approaches of Carpenter Upchurch and Jenks Carpenter into one four-legged intersection after the High House Road widening project is complete.  Per conversations with Town staff, it is assumed that this realignment will be complete by the 2008 Carramore PUD build out.”

Jenks Carpenter Road & High House Road ( 6/3/03 )           C/F

Trip Generation based on ITE land use # 210(Single Family) & #230(Condo/Townhome)

The development of 136 dwelling units will increase traffic less than two percent on High House Road or Davis Drive . The traffic volume increase on Jenks Carpenter Road is 14%. The increase in traffic volume on Leonard Christian Road is 5%.

Staff would like to point out that the original plan was approved prior to the current APF ordinance.  Staff feels that the original 100 unit limit was fairly arbitrary.  Based on this and the delayed High House Road project, staff feels that it can support allowing an additional 136 units to be constructed in FY2005 or after.  This would allow the developer to get certificates of occupancy on a total of 326 units prior to the High House Road widening and bridge improvements being completed.

Refer to Exhibit A attached to and incorporated in these minutes for a letter from Greg Ferguson.

Mr. Bailey stated the request is for waiver of road improvements and right-of-way dedication requirements with the normal site plan improvements. He stated there is an existing convenience store at the intersection of Ten-Ten and Penny Roads, and the purchaser of this property wants to add a carwash to the site. He added that the carwash triggers site plan, and the site plan triggers road improvement requirements. He stated staff supports waiving the road widening; however, staff recommends that right-of-way dedication be required because there may be future planned road improvements in the future. He stated a concern of the applicant is the possibility that the sale will not occur if right-of-way dedication is required. Mr. Bailey stated staff recommends right-of-way dedication at this time.

Mr. Joyce asked about the property on the other side of the shared drive. Mr. Holshouser said the middle of the driveway is the property line and the property is owned by a different property owner. He thinks the driveway will have to be jointly closed to meet setback requirements for the carwash, and he thinks there is an agreement with both property owners to close it.

Mr. Holshouser stated the staff made an effort to reach a reasonable compromise. He stated his client wants to sell the property, but the person will not buy the property if they must dedicate right-of-way. He stated either way leaves the Town without the right-of-way. He stated if they lose the sale it will cost them a lot of money.

Mrs. Robison stated Penny Road will be widened eventually. She stated allowing right-of-way requirements to be waived at this time, while knowing that it could be a decade before Penny Road is widened, puts the property owner and the Town in a position where it would cause duress to the property owner if the Town decides to widen Penny Road . In addition, she stated the acquisition of right-of-way would be much more expensive. She stated it does not seem prudent to allow this difficult situation to occur.

Mr. Holshouser stated the purchaser is not interested in buying the land unless it includes the carwash. He added that this is not the same area where additional right-of-way would be required. He stated the potential buyer is not a native of the USA and does not fully understand the government processes. He suggested that that another opportunity may arise to obtain the right-of-way before construction begins.

Mr. Bailey stated the Town has no intention of removing the current improvements to the area at this time, as this would be done with any future road widening project. Mrs. Robison stated in that event the new owner could build into that area, which could require him to tear down a building in the future with a road widening project.

Mr. Coleman stated the Town has been in this position in the past (i.e., the Sears home with the extension of High House Road and Davis Drive ). He added if the Town must take the business in the future for a road widening project, then the Town must pay the value of the business.

Mr. Bailey stated the carwash is not going in the right-of-way. He stated the issue is that the ordinance requires right-of-way dedication, the transportation development fee ordinance requires compensation for trips generated, and the Town would have to buy the property in the future for any road widening project. He stated this is a critical area for the right-of-way dedication.

Mrs. Robison asked if there is a waiting period for the applicant if the council supports the staff recommendation. Mr. Bailey stated council has the ability to waive any requirements.

ACTION: Mrs. Robison made a motion to approve the staff recommendation and to waive any waiting requirement that may be associated with a follow-up request on this particular site. Mrs. Robinson provided the second, and council granted unanimous approval. (Mr. Roseland was absent for this vote.)

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Mayor McAlister requested, and the council concurred to move immediately to item I.3. on this agenda.

Consideration of adoption of a resolution relinquishing extraterritorial jurisdiction over property to be included as part of the Copperleaf Subdivision.

The proposed Copperleaf subdivision is located in the western portion of the Town’s planning jurisdiction south of Green Level Church Road .  The majority of the property is under Wake County ’s jurisdiction, with a portion subject to the Cary extraterritorial zoning jurisdiction (ETJ).

The residential subdivision plan for Copperleaf is now being reviewed by Wake County .  This project is being designed to accommodate Town utilities and will be annexed into the Town of Cary under an arrangement previously approved by Town Council on April 15, 2004 (see staff report PL04-055, which is included in the April 15, 2004 minutes).

Request

Considering that the land is under the planning and zoning authority of two units of government, Mr. Lacy Reaves, with the law firm of Kennedy Covington, representing the developers of this project, has asked Council to consider relinquishing the Town’s extraterritorial zoning jurisdiction (ETJ) that applies to three separate properties that are in the Cary ETJ.   This will enable the entire site to be reviewed by Wake County .  Parcels 1 and 2 are owned by Rosabelle Johnson & Ernest L. Johnson while Parcel 3 is owned by J. Michael Edwards & Lelon Calvin Alexander.

Procedure

While state statutes provide for the method to establish ETJ, the law does not specify the process to remove territory.  Thus, the Town’s legal staff and the Wake County Attorney’s office have researched this issue and agree that a resolution by the Council to remove this property is the proper approach.  The Wake County Commissioners would then have to take action to recognize removal of the land from the ETJ so that they may place the property under County zoning, subdivision, and building inspections requirements.  Hence, Council is requested to adopt the attached resolution to effectuate this request.

Summary

Staff supports the request since this property is intended to be annexed by Cary after the subdivision plan is approved by Wake County but before any individual residential lots may be recorded and sold.  One concern that staff has identified, however, is the possibility that these properties are removed from the Town’s ETJ yet the project does not gain final subdivision approval by Wake County.  This would allow these three properties to be removed from the ETJ without a way to bring them back under Town authority without going through the entire process to again establish ETJ.  To address this concern, we recommend that the effective date of this action be set as the date upon which Wake County approves the subdivision plan and accepts the territory back under County jurisdiction.

A RESOLUTION TO RELINQUISH EXTRATERRITORIAL JURISDICTION (ETJ) OVER THREE PARCELS IN THE PROPOSED COPPERLEAF SUBDIVISION

WHEREAS, North Carolina General Statutes (N.C.G.S.) Chapter 160A, Section 360 authorizes a city to exercise extraterritorial zoning, subdivision, and building inspection powers over land beyond its corporate limits; and

WHEREAS the Town of Cary exercises this authority on various properties adjacent to the Town as approved by the Wake County Commissioners; and

WHEREAS, Lanier Properties, LLC proposes to develop approximately 120 acres of property located south and east of Green Level Church Road as “Copperleaf Subdivision”; and

WHEREAS, this property is composed of five separate parcels of land; and

WHEREAS, the majority of this property is currently subject to the zoning and subdivision regulations of Wake County ; and

WHEREAS, this property is proposed to be subdivided following Wake County subdivision requirements with accommodation made for utilization of Town of Cary water and sewer service and corresponding annexation by the Town of Cary before any individual lots are recorded and sold per action taken by the Cary Town Council on April 15, 2004; and

WHEREAS, a portion of the total project, encompassing three parcels of approximately 30 acres owned by Rosabelle Johnson & Ernest L. Johnson and J. Michael Edwards & Lelon Calvin Alexander, are now subject to the extraterritorial jurisdiction of the Town of Cary and result in land use regulation by two separate units of government; and

WHEREAS, the property owners desire that Wake County requirements be applicable to the entire project area as the subdivision plan is created; and

WHEREAS, representatives of the property owners have requested that the Town of Cary relinquish extraterritorial jurisdiction to meet these objectives; and

WHEREAS, the Cary Town Council may relinquish extraterritorial jurisdiction by resolution;

NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Cary , North Carolina :

Section 1. Relinquishment of Extraterritorial Jurisdiction.  That the Town of Cary hereby agrees to relinquish extraterritorial zoning, subdivision, and building inspections authority over three tracts of land located southeast of Green Hope Church Road that are proposed to be part of the “Copperleaf Subdivision” on the effective date set forth herein.

Section 2.  Property Description.  That the subject properties include the following parcels:

Edwards/Alexander Tract

Wake County PIN #: 072404630625

BEGINNING at a lightwood knot and pointer, Johnny Lanier’s corner; runs thence with Bronnie Yates line South 85 degrees 30 minutes East 653 feet to a stake and pointers, said Lanier’s corner; thence with an old marked line South 4 degrees 45 minutes West 910 feet to a stake  and pointers, said Lanier’s corner; thence with another old marked line of Lanier North 86 degrees 42 minutes West 660 feet to a lightwood stake and iron pine and pointers, said Lanier’s corner; thence with another line for said Lanier North 5 degrees 10 minutes East 924 feet to the point of BEGINNING, containing 13.81 acres, more or less, according to survey of E.C. Smith, R.L.S., dated February 24, 1967.

Johnson Tract ( Lot 2)

Wake County PIN #: 072401458325

BEING all of Lot 2 as shown on plat entitled, “ Subdivision Plat Property of Rosabelle R. Johnson, Ernest L. Johnson, & Claude R. Johnson Heirs”, prepared by G. Scott Wilson, RLS, dated April 16, 1989 and recorded in Book of Maps 1989, Page 669, Wake County Registry.

Johnson Tract ( Lot 3)

Wake County PIN #: 072403445903

BEING all of Lot 3 as shown on plat entitled, “Subdivision Plat Property of Rosabelle R. Johnson, Ernest L. Johnson, & Claude R. Johnson Heirs”, prepared by G. Scott Wilson, RLS, dated April 16, 1989 and recorded in Book of Maps 1989, Page 669, Wake County Registry.

Section 3.  Effective Date.  That this action to relinquish extraterritorial jurisdiction shall only become effective following County approval of the final subdivision plat for this property and acceptance of this property under the zoning jurisdiction of Wake County by the Wake County Board of Commissioners.

A map of the ETJ requested to be relinquished follows: