REGULAR MEETING OF THE CARY TOWN COUNCIL

Thursday, October 28, 2004

6:30 PM

Temporary Council Chambers

Herb Young Community Center

101 Wilkinson Avenue , Cary , N.C.

Web Site:  www.townofcary.org

Present: Mayor Ernie McAlister, Mayor Pro Tem Jack Smith, Council Members Mike Joyce, Jennifer Robinson, Julie Robison and Nels Roseland

Absent: Council Member Marla Dorrel

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

Mrs. Robison provided the ceremonial opening.

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B.   CONSENT AGENDA

C.   RECOGNITIONS, REPORTS, AND PRESENTATIONS

There were no recognitions, reports or presentations.

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D.   PUBLIC HEARINGS

1.   Rezoning 04-REZ-18 / Land Plan Amendment 04-LPA-14 (Stonewater Planned Development amendment)
The property is comprised of 56.68 acres located on Green Level to Durham Road north of O’Kelly Chapel Road. The request proposes to amend the existing conditions of the Planned Development. A land plan amendment is required to delete two collector roads. This public hearing is continued from the October 14, 2004 council meeting.

Refer to the October 14, 2004 council meeting minutes for information presented at that meeting and for the datasheet prepared by staff.

The power point presentation is attached to and incorporated in these minutes as Exhibit A.

Mr. Jerry Turner, representing the applicant, stated is available to answer questions.

Mrs. Laurie Miller is opposed to the request to remove the school adequate public facility condition. She stated the Town’s repeal of the schools adequate public facility ordinance should not void existing agreements. She stated this request was not a part of the public hearing advertised. Mrs. Miller’s verbatim comments are attached to and incorporated in these minutes as Exhibit B.

No one else came forward to speak, and Mayor McAlister closed the public hearing.

Mr. Joyce voiced opposition at maintaining the school adequate public facility condition as part of this zoning, because it results in higher home costs since the fee is rolled into the housing cost.

Mayor Pro Tem Smith voiced his opposition at deleting the schools adequate public facility requirement. He stated there is a developer agreement in place that heavily influenced the approval of the zoning.

Mr. Henderson, Town Attorney, stated it was anticipated and included in the ordinance when the school adequate public facility ordinance was repealed that the council would review all existing agreements on a case by case basis.

Mr. Roseland stated some developments have developer agreements that include payments for schools totaling $11.1 million (Amberly, Stonewater, Huggins Glen, Village at the Park). He stated this information was a part of the 2003 Council/Staff retreat (refer to those minutes for additional detail). Mr. Roseland stated if this funding goes away, the council should point to another strategy to help address the school needs. He suggested that one possibility may be to designate the park sites and park/school sites.

Mr. Roseland stated when Stonewater was first approved in 2002, the nitrogen demand related to development on the site was captured in a table that exceeded the Town’s existing requirements. He does not see that table captured in this request, and instead it says they will comply with today’s requirements. He asked if today’s requirements are less stringent than 2002. Mr. Bailey of the engineering staff stated Cary was under interim rules in 2002, and has since adopted current ordinances, which are more restrictive than 2002. He stated this development will meet current standards, which should improve water quality.

ACTION: Referred to the November 15, 2004 Planning and Zoning Board meeting

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2.   Rezoning 04-REZ-19 / Land Plan Amendment 04-LPA-15 ( Regency Park Planned Development amendment)
The property is comprised of 168.32 acres located on Regency Parkway and Ederlee Drive within the Regency Park Planned Development. The request proposes to amend the existing conditions of the Planned Development. A land plan amendment is required to permit a mix of residential, office and institutional, and commercial uses. This public hearing is continued from the October 14, 2004 council meeting.  

Refer to the October 14, 2004 council meeting minutes for information presented at that meeting and for the datasheet prepared by staff.

Staff’s power point presentation is attached to and incorporated in these minutes as Exhibit C.

Mr. Jerry Turner, on behalf of the property owner, stated they met last week with surrounding homeowners and will continue to work with all parties to try to resolve outstanding issues, some of which include: small retail office parcel at Regency Parkway and Ederlee Drive, range of uses and densities permitted in Tracts 7, 8 and 9, the connection of Glade Park Drive from Wyndfall to Regency Parkway, traffic and timing of traffic, phasing of the construction of Regency Parkway, Amphitheatre noise, desire to make no changes to the approved plan, and storm water management and flooding.

Mr. Bill Black, a Cambridge Subdivision resident, stated he attended the developer’s meeting last week. Has two concerns: (1) the plan is clear for about 327 units on Tracts 1 through 6, but there is no plan for Tracts 7, 8 and 9; (2) the Glade Park connection.

Mr. Jeff York is opposed to the Glade Park connection (refer to his comments in the October 14, 2004 minutes). He stated Glade Park is just less than 2/10 of a mile, which is right at 1,000 feet in length. He stated they are circulating a petition opposing the connection. He stated the LDO allows for not making road connections if the connection is impractical; he stated the Glade Park Road connection is impractical due to topography and the presence of a natural feature.

Mr. Mark Cullen, board member of Cambridge and Wyndfall homeowners’ association, stated they are concerned with the density on Tracts 6 through 9. He stated the residential community was planned around the commercially planned area. He stated the current infrastructure is not compatible with 650 more homes. He stated he is personally concerned with Cary giving up on commercial development in this area. He noted there are many noise issues with the amphitheatre, and he stated the council should not put homes even closer to the amphitheatre. He is opposed to the Glade Park extension, and he feels that connectivity should be evaluated on a case by case basis.

Mr. Mike Campbell, a Wyndfall resident, stated the Glade Park connection is the only hope to alleviate the existing traffic on Bridewell unless the council will install speed humps on Bridewell without them meeting petition requirements.

Mr. Michael Dean Chadwick, a resident of Kensington at Regency, stated Creedmoor Partners is one of the premier developers in the area. He is excited about the proposed development.

Mr. Steve Warner, a resident in Regency Park Estates, now supports residential development. He has three concerns: density, phasing of building the extension of Regency Parkway, and the location of the retail. He suggested the best location for the retail is near the lake.

No one else came forward to speak, and Mayor McAlister closed the public hearing.

Mr. Joyce stated he had the impression that the non-residential uses would be geared more towards the residents of the area instead of people outside the area. Mr. Turner responded that they have limited retail to 18,000 square feet of building. They are working with staff on what can and can’t be allowed in this area. He stated it will be basically coffee shops, professional offices, etc., which will architecturally mimic the style of the overall community. Mr. Joyce asked about there being no plan for Tracts 7 through 9. Mr. Turner stated they have a broad list of options and are trying to leave options open. He stated they do not yet know what is going on those tracts. He clarified that typically planned unit developments just specify a list of uses without the specific detail. He will continue discussions with staff to come up with something more definitive.

Mr. Joyce asked for an explanation of the benefits of residential vs. commercial development based on county sales tax dispersion. Mr. Coleman stated a balance between commercial and residential development is the best mix for the community. He stated the more Cary ’s population increases as compared to other Wake County municipalities, then the greater Cary ’s proportion of revenue will be from this source. He stated residential development has an impact on schools in addition to other infrastructure, but commercial development does not impact schools. He stated revenue growth is directly related to population growth.

Mayor Pro Tem Smith thanked the developer for conducting several community meetings since the last council meeting. He encouraged the community and the developer to continue working toward solutions on the outstanding issues. He stated he has requested that staff consider the environmental downstream run-off issue as part of this plan.

Mrs. Robinson asked for a comparison of the original plan vs. the proposed plan. Mrs. Lewis gave the following originally approved uses:

·         Site C-7 (approximately 100 acres) was approved at 108 acres for office and institutional and commercial use

·         Outside portions adjacent to C-7 (approximately 60 additonal acres) was office and institutional and planned employment center (now known as office, research and development)

Mrs. Robinson stated the Glade Park stub was intentionally stubbed instead of cul-de-saced for a reason. She stated many people move into communities with a stub and do not realize that the stub means a future connection to undeveloped adjacent land. She stated about a year ago the council asked staff to erect signs at each stub so citizens will know that stubs will be connected. She stated citizens must take some personal responsibility to find out why a street is stubbed instead of cul-de-saced. She stated most people who live on streets where stubs have been connected enjoy living on streets that provide additional egress from their community. Mr. Roseland concurred with Mrs. Robinson’s comments.

Mr. Roseland suggested that staff include a summary of connectivity studies on the Town’s Web site. He urged the developer to be creative with the connection to reduce cut-through traffic.

Mayor Pro Tem Smith stated everyone must consider that that the use of the development is being considered for change. He stated the question to answer is whether the logic of the connectivity applies to the proposed change.

ACTION: Referred to the December 20, 2004 Planning and Zoning Board meeting

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3.   Annexation 04-A-21 (6828 Turner Creek Road)
Consideration of approval of Annexation 04-A-21, which is comprised of 4.60 acres plus 0.31 acre of right-of-way and is located at 6828 Turner Creek Road.

Mr. Leon Herndon, the property owner requesting annexation, stated they request voluntary annexation. He stated the primary motivation for the annexation is to receive Town water and sewer. He stated some of his relatives are interested in development, and he stated the tracts will not be any smaller than the adjacent development.

No one else came forward to speak, and Mayor McAlister closed the public hearing.

ACTION: Mr. Roseland made a motion to approve the annexation; Mrs. Robinson provided the second; council granted unanimous approval.

(Resolution is on file in the town clerk’s office and is incorporated in these minutes by reference.)

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E.   PUBLIC SPEAKS OUT (one hour time limit)

No one came forward to speak during this portion of the meeting.

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F.   PLANNING AND ZONING BOARD REPORT (discussion items)

1.   Ordinance Amendment
Consideration of an ordinance amendment to allow illuminated signs in the Town Center .

BACKGROUND:  At the Town Council meeting on July 22, 2004 , Council directed staff to provide further information and examples of a neon sign type that could be considered for the Town Center and present this information for public hearing.

Depictions herein include: 1) a visual definition of a neon sign, 2) an example of a two square foot “open” sign, 3) a cabinet-style, illuminated window sign: (not being considered as part of this proposed amendment), and 4) an example of text variations possible with neon tubing.

Many illuminated signs use neon elements inside an enclosure.  The “neon” signs in question are constructed of exposed glass neon tubing.  (exhibits 1, 2 and 4)  Signs  two square feet or less are considered incidental and would not require a sign permit and would not be counted toward the sign allocation on a site.  Any electrical signs, however, must be inspected for safety and require an electrical permit.

Staff has prepared the following proposed ordinance amendment that would allow neon signs, not to exceed two square feet, in the Town Center District:

Proposed Language:

9.6 SIGNS IN TOWN CENTER

9.6.1 Applicability

9.6.4 Signs Not Included in Total Area Allowance

(J) Exceptions to (I.) Prohibited Signs and Devices

(4) Illuminated window signs;

One (1) illuminated window sign may be permitted for each business in the Town Center based upon the following:

(a)    the sign shall be illuminated only during business hours;

(b)    the sign shall be located on the interior side of the window;

(c)    the sign shall meet safety requirements by having a backing and self contained transformers.  All components shall be UL approved.

(d)    text, logos and color are not restricted. 

A public hearing took place at the September 23, 2004 Town Council Meeting.  There was no one present from the community to speak for or against the amendment. Council Member Dorrel verified that text would not be restricted to “open” signs.  Council agreed to forward the recommendation to the October 18, 2004 Planning and Zoning Board Meeting.

Although there are concerns about the cumulative effect if multiple businesses use neon, staff supports the amendment to allow neon signs in the Town Center District.  Limiting such signs to downtown takes into consideration the fact that these establishments often do not have the opportunity for ground signs nor do they have the type of building elevations that would allow the use of large illuminated wall signs.  Furthermore, the carefully-regulated use of neon proposed in this amendment can help to create a stronger sense of place and character for the Town Center .

Planning & Zoning Board Recommendation:

Staff presented this proposed ordinance amendment at the October 18, 2004 Planning and Zoning Board Meeting.  The board voted unanimously 8-0 to recommend adoption by Town Council at its meeting on October 28, 2004 .

Exhibit 1.

Exhibit 2.

Exhibit 3.

Exhibit 4.

(Mrs. Robison left the room without being excused.)

Staff’s power point presentation is attached to and incorporated in these minutes as Exhibit D.

ACTION: Mr. Joyce made a motion to approve the ordinance amendment. Mr. Roseland provided the second. Mayor Pro Tem Smith voted “no;” all others voted “aye.” The motion carried by majority vote. (Since Mrs. Robison was not excused from this vote, she is counted as voting “aye” even though she was not in the room during the vote.)

(Ordinance is also on file in the town clerk’s office.)

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(Mrs. Robison returned to the room at this time.)

2.   Ordinance Amendment
Consideration of an ordinance amendment to allow off-premises real estate signs.

BACKGROUND:  Over the last couple of months, staff has met with the Raleigh Regional Association of Realtors to develop a proposal for a pilot “open house” sign program. The sign program proposes:

·         two open house signs per event

·         only on weekends

·         2 square feet and 24 inches high

·         burgundy and white color

·         2 events a year per home

·         located only in residential areas

·         to contain a realtor’s license number or homeowner’s phone number and the property address

·         effective period January 1, 2005 to December 31, 2005

This program is timed to allow a trial period to begin the 2005 calendar year. Staff will also work with the realtor’s association to develop information for distribution/training on the open house regulations for all realtors working in Cary .  We would begin training in November for the upcoming 2005 year.

During the trial year, enforcement will be by Town staff. Staff would send violators a mailed notice of violation and remove the sign for later pickup. All violation notices will be copied to the realtor’s association in order to help monitor and assist with compliance measures. A second violation at the same home would result in a $100 citation. Staff will bring a report to Town Council in mid 2005 with an assessment of the program operation.

At the public hearing there were comments from Town Council about adding a sunset clause to the ordinance. Staff has amended the text to be effective January 1, 2005 to December 31, 2005 .  If Town Council decides the open house sign program warrants permanent consideration in the Town’s Land Development Ordinance, then the Council could amend this section prior to the expiration date.  Also, as noted on the attached letter from the Raleigh Regional Association of Realtors there is concern about the enforcement of the two per year open house events. Staff has reviewed the options and agrees the enforcement will be difficult to regulate as currently drafted. Staff recommends adding the property address to the sign area in addition to the phone # or license # to help monitor the event frequency. This allows for easy determination as to the ownership of the sign and helps direct traffic to the event. 

As currently regulated by the Land Development Ordinance, temporary off site signs cannot be located in the rights of way, street medians or common areas and shall not contain any streamers or balloons. There are no proposed changes to this section. 

Staff Analysis

Over the past few years, there have been a number of concerns expressed to Town Council regarding Cary ’s off-premise sign regulations, especially for real estate. Many citizens and members of the real estate community feel that properties in the Cary market are negatively affected compared to other Wake County property owners. The ability to compete, market and sell homes in Cary is said to be directly related to the ability to place signs off site to advertise properties for sale. Staff worked with a consultant to review the Triangle Multiple Listing Service data for the last five years comparing Cary to all other residential markets in Wake County . Based upon the data provided by Birch Appraisals in the report, Cary was identified as one of the strongest markets in the county and has some of the fastest turn-around time for residential sales. Based upon these conclusions, the assertion that Cary’s regulations for real estate signs have a negative impact on home sales inside Cary does not appear to be supported by that data.

Staff has reviewed this proposal and believes the current request for off-premise site open house signs is not warranted due to the following:

• This may lead to allowing other businesses the opportunity to do the same (e.g., going out of business signs, various sales signs);
• This may lead to greater enforcement efforts to ensure that the signs are removed in a timely manner and to ensure that they are not placed in the public right of way;
• This change may be a concern for existing residents that may see off-premise real estate signs as unsightly at the entrance of their established neighborhood; and
• By allowing certain types of signs off-premise and others not, the possibility of public confusion will undermine enforcement efforts by the town. Equity issues for special interests will arise from Cary residents and businesses. 

However, if off-premise site open house signs are to be permitted, staff feels the proposed draft amendment with the conditions outlined are necessary to help enforcement staff. The sunset clause also provides a sufficient time period to evaluate any implications from this amendment.

Below is the Land Development Ordinance text for these amendments for public comment and review.

Amendment 1:

Change Table 9.3-1, Table of Permitted Signs, by inserting “Real Estate, Off-Premise” to the table:

 (Table is on file in the town clerk's office with the official minutes.)

Amendment 2:

Replace language for Section 9.3.2(R) with following wording and renumber existing Sec. 9.3.2(R) Real Estate Sign to 9.3.2(Q):

9.3.2(R) Off-premise Open House Residential Real Estate Signs shall be allowed provided that the following requirements are met:

(1)               There shall be no more than 2 total off premise signs for any  open house event.  These signs shall include a realtor’s license number or homeowner’s number and the street address where the event is taking place.

(2)               Signs can only be placed in residential areas with no more than 2 signs directing prospective buyers in the same direction at any one intersection.

(3)               Such signs may be in place only from 10 a.m. on Saturday to 6 p.m. on Sunday.

(4)               Such signs shall not exceed 2 square feet in sign area.

(5)               Such signs shall not exceed 24 inches in height.

(6)               Such signs shall only use a combination of burgundy (Color No. 491 C Pantone) and white.

(7)               No more than two open house events per year for any one home, residential project or structure.

(8)               The sign regulations for open house signs will be effective from January 1, 2005 to expire December 31, 2005 .

Amendment 3:  Sign, Off-Premise Open House Real Estate, to Chapter 12 to read as follows:

A temporary sign informing the public that property is available for examination by prospective buyers and that the owner of the property or the owner’s agent is on the premises during the time the property is available for viewing.

Planning & Zoning Board Recommendation:

Staff presented this ordinance amendment at the October 18, 2004 Planning and Zoning Board Meeting.  The Board voted 5-3 to recommend adoption by Town Council at its meeting on