The
council pulled item B.3.a.(1),
1.
Regular Consent Agenda (any
regular consent agenda item pulled for discussion will be discussed at the
beginning of the old/new business portion of the agenda, which is item H on this
agenda)
a.
Consideration of approval of the
minutes of the regular town council meeting held on
ACTION:
Mayor Pro Tem Smith moved to approve the consent agenda, with the exception of
item B.3.a.(1),
_________________________
b.
Consideration
of adoption of sewer use ordinance hearing procedures.
(Mr. Rob Bonne)
Chapter 36 (formerly Chapter
19) of the Town of Cary Code of Ordinances (Utilities), provides that applicants
and users who are subject to certain actions taken under the town’s sewer use
ordinance may appeal such actions in a hearing before an unbiased hearing
officer. If the applicant or user
desires, the decision of the hearing officer may be appealed to the town
council. A sewer user has appealed
the decision of Assistant Town Manager Ben Shiver to the town council.
The Code provides that the
hearing before council shall be conducted in accordance with town council
administrative hearing procedures. The
Town has hearing procedures for quasi-judicial hearing under the Town’s Land
Development Ordinance. We have
prepared Hearing Procedures for Sewer Use Ordinance appeals based upon these
administrative hearing procedures. The
proposed procedures designate the Operations Committee as the hearing panel for
appeals under the sewer use ordinance and describe town hearing procedures.
Staff
Recommendation:
Staff recommends that the Hearing Procedures be adopted.
ADMINISTRATIVE
HEARING PROCEDURES
For
FINAL
APPEAL HEARINGS
Under
Section 36-175 (b)(8)b, Code of Ordinances, Town of
(“Sewer
Use Appeal Procedures’)
I.
PURPOSE: Pursuant
to Sec. 36-175 (b)(8) b. (previously Sec. 19-93 (b) (8) b.), Code of Ordinances,
Town of Cary, any decision of a hearing officer made as a result of an initial
hearing under Sec. 36-175 (b) (8) a (previously 19-93 (b) 8 a.) may be appealed
to the town council. The hearing by council is to be held in accordance with
town council administrative hearing procedures.
Hearing procedures for Town Council are set forth in Section 3.1.7 of the
Town’s Land Development Ordinance (“LDO”).
The purpose of this Sewer Use Appeal Procedure is to describe how the LDO
procedures apply when an appeal is made under 36-175(b)(8)b.
II.
THE COUNCIL PANEL:
The Town Council hereby designates the three (3) members of the Cary Town
Council who are serving on the Operations Committee of the Town Council at the
time an appeal is heard as the council members who will hear the appeal under
Section 36-175 (“Council Panel”). The
Council Panel is authorized to conduct the hearing and render a final decision
under Section 36-175.
III.
ISSUES ON APPEAL:
The issue(s) to be heard and determined by the Council Panel are those
set forth in the “notice of appeal of hearing officer’s decision (“Notice
of Appeal”).
IV.
PARTIES: The
parties to the proceeding are:
(1)
the Aggrieved Applicant or User (“User”), who filed the appeal; and
(2)
the Town, through its Utility Director or designee.
V.
HEARING: The
hearing is a quasi-judicial hearing. No ex parte
contact of Council is appropriate. This means that Council should not
discuss or receive information about the merits of the case from the parties, or
members of the public before the hearing. All testimony before Council must be
"sworn" testimony. Evidence
may be presented in the form of testimony given under oath by witnesses present
at the proceeding, duly notarized affidavits of statements, and documentary
evidence. Evidence to be considered
in the appeal should be presented during the course of the proceeding.
No evidence presented outside the course of the proceeding should be
considered. All evidence presented
must be relevant to the specific issue(s) on appeal; evidence determined by the
Council Panel to be not relevant may be excluded by the Panel.
Any
party may be represented by legal counsel. All persons wishing to testify will
be given a reasonable time in which to be heard; however, groups are encouraged
to select a spokesperson to speak for the group in order to avoid repetitious
testimony. Each person who testifies shall identify themselves by name and
address. All documents provided as
evidence should be identified by the party who offered the document(s) and
numbered and copies must be provided to the Operations Committee Clerk and to
the other party. Inflammatory, irrelevant or repetitious testimony is not
permitted.
The hearing will be conducted
in the following manner:
·
The chair of the
Panel shall give an explanation of these procedures.
At this time, parties may pose questions as to procedural matters.
·
The parties should identify all witnesses who plan to give sworn
testimony during the course of the proceeding.
A notary designated by the chair shall administer the oath to all
witnesses.
·
Each party may present
a brief preliminary statement.
·
The User presents testimony and evidence in support of their
appeal. All evidence and witness testimony shall be relevant to the facts and
issues of the specific issue(s) appealed as identified in the Notice of Appeal.
·
The Utility Director
presents testimony and evidence. All
evidence and witness testimony shall be relevant to the issues.
·
Both sides are permitted to cross examine those who testify on the
other side, and to present rebuttals.
·
The User may present
concluding remarks. The Utility
Director may present concluding remarks.
·
The hearing is closed.
VI.
Determination by Panel – At the conclusion of the hearing the Panel
shall deliberate and render a final decision.
In the course of deliberation, the Panel may ask questions of the
parties. All Panel deliberations,
including the announcement of the Panel’s decision, must be conducted in open
session. The Panel’s decision
shall thereafter be reduced to a writing and served on the User by personal
delivery or registered or certified mail, return receipt requested, or by any
method of service set forth in Rule 4 of the N.C. Rules of Civil Procedure.
The town shall thereafter prepare an official record of the case as
required by Sec. 36-175 (b) (8) c.
ACTION:
Mayor Pro Tem Smith moved to approve the consent agenda, with the exception of
item B.3.a.(1),
_________________________
c.
Consideration of adoption of a resolution approving a contract with the
North Carolina Department of Transportation (NCDOT) to use matching grant funds
for development of a Comprehensive Pedestrian Plan. (Ms.
Juliet Andes)
The
Town of
The
Town’s match has been programmed in the FY 2006 Capital Improvement Budget
Staff
Recommendation:
Staff recommends approval of the attached resolution.
COPY
OF A RESOLUTION PASSED BY THE CITY/TOWN COUNCIL
OF
THE Town of
A motion was made by ________________________ and seconded by
________________________ for the adoption of the following Resolution, and upon
being put to a vote was duly adopted:
WITNESSETH:
WHEREAS,
according to G.S. 136-66.2, Section 1, the General Assembly requires each
municipality, with the cooperation of the Department of Transportation (the
“Department”) to develop a comprehensive transportation plan that will serve
present and anticipated travel demand, and,
WHEREAS,
the Department may provide financial assistance in the preparation of such
plans, and,
WHEREAS,
the Department is initiating a new program to encourage the development of
comprehensive municipal bicycle plans and pedestrian plans, and,
WHEREAS,
to encourage the development of comprehensive local bicycle plans and pedestrian
plans, the Department’s Division of Bicycle and Pedestrian Transportation (DBPT)
and the Transportation Planning Branch (TPB) have created a matching grant
program to fund plan development, and,
WHEREAS,
the Department and the Municipality have agreed that a comprehensive plan is
needed to evaluate and identify critical municipal needs for planning and/or
implementation of Pedestrian improvements,
and,
WHEREAS,
the Department and the Municipality have agreed to participate in the cost of
this comprehensive plan with the Municipality agreeing to coordinate and oversee
the study in accordance with the provisions hereinafter set forth, and,
WHEREAS,
the Town of
WHEREAS,
the Department shall reimburse the Municipality's actual costs of the Study in
an amount not to exceed $20,000 in accordance with the amount requested in the
Municipality's submitted 2005 Comprehensive Bicycle and Pedestrian Planning
Grant Initiative application, and,
NOW,
THEREFORE, BE IT RESOLVED that this Study is hereby formally approved by the
City/Town Council of the Town of
ACTION:
Mayor Pro Tem Smith moved to approve the consent agenda, with the exception of
item B.3.a.(1),
(Resolution
is also on file in the town clerk’s office.)
_________________________
2.
Land Development Consent Agenda
(any land development consent agenda item
pulled for discussion will be discussed at the beginning of the land development
discussion portion of the agenda, which is item F on this agenda)
a.
Site Plan 05-SP-020 (
The site is located at
APPLICANT
Cline
Design Associates, PA
OWNER
The
Tetra Companies
TOWN
OF
Bob
Benfield , Senior Planner
Phone:
469-4045
Email: Bob.Benfield@TownofCary.org
Location:
The site is located south of
PROPOSED
SCHEDULE OF MEETINGS
Town
Council:
STAFF
RECOMMENDATION
Staff
recommends approval of the plan. The
recommendation includes allowing a 23% reduction in the number of required
parking spaces. The staff recommended approval of the plan, because the plan
complies with
The
Town Center Review Commission unanimously recommended approval of the plan.
The recommendation included allowing a 23% reduction in the required
amount of parking as recommended by the staff.
Concerns
Discussed:
Although
up to a 50% reduction in parking may be requested, the plans proposed a 23%
reduction in parking. Staff
explained that compensation for the reduction is parking was provided by
utilization of the existing adjoining parking lot.
Staff also noted that in future year’s on-street parking along
Staff
provided clarification at the meeting on the storm water run-off/impoundment
design and explained its basic function. The Commission was encouraged to
contact
A
Commission member observed that an open well was located in the southwest corner
of the property. The applicant
advised that the well would be closed and/or removed prior to any building
activity on the property.
The
applicant advised that this area could possibly be used for storage and would be
gated. The gate would be of a design
appropriate for the development and would prohibit the collection of litter.
Reasons
for Majority Vote:
PROJECT
DESCRIPTION
The plans propose a four-story
predominately brick building containing 9,549 square feet of commercial
development on the first floor and 24 dwelling units on the second, third, and
fourth floors. A three-story
secondary building containing six dwelling units would be located south of the
primary commercial/ residential building. The
maximum density allowed is 50 units per acre, and the proposed density is 30
units per acre. At-grade parking is
proposed behind the commercial/residential building within the first floor area
of the secondary residential building and within one-story garages facing
Considering the unique
nature of the downtown area, certain development requirements are not applicable
within the
The required number of parking spaces may be reduced up to 50 percent,
provided there is adequate on-street parking available.
The plans propose 48 parking spaces; however, 62 parking spaces are
required, resulting in a proposed 23% reduction in the number of required
parking spaces. Parking would also
be available in the adjoining western parking lot, which is not fully utilized
daily.
The streetscape and buffer widths normally required are not applicable in
the Town Center District. Street tree plantings and screening from adjoining
properties, however, must be consistent with Downtown Design Guidelines.
This plan would comply with these provisions.
The plans will comply with all
applicable Town Center Design Guidelines, which provide:
That buildings be located close to the street right-of-way and sidewalk,
with parking located behind the buildings;
That architectural form, facades, materials, and colors complement
adjoining properties and eliminate blank walls;
That parking be placed to the side or rear of buildings;
That on-street parking be encouraged; and
That required landscaping consists of streetscape, of appropriate
screening from adjoining properties, of screened parking areas, of foundation
plantings, and of accent plantings.
During the review and
approval of the ballroom addition to the Mathew’s House, which is located west
of the proposed Cary Mixed Use site, staff and the Town Center Review Commission
(TCRC) recommended the brick wall north and east of the Mathew’s House be
extended west along
The plans propose to
screen the adjoining western parking lot from Chatham Street by utilizing a 4’
high picket fence located between 2’ X 2’ X 7’ high brick columns at set
intervals. The columns would match
the columns surrounding the Mathews House. Ornamental
plantings and benches would be installed along the
|
PARCEL
INFORMATION |
||
|
Parcel
# |
Realid
# |
Area
|
|
0764314213
|
0.987
acres |
|
ZONING
AND LAND USE PLAN COMPLIANCE
Current
Zoning:
Sub District:
High Intensity Mixed Use (HMXD)
Town
Limits: The property is inside
Land
Use Compliance: The Land Use
Plan allows for high density mixed use development.
A mixture of commercial, office, and residential is allowed.
|
LOCAL
WAKE COUNTY SCHOOL ESTIMATES AND CAPACITY IMPACTS |
||||
Current
20th Day Enrollment at the schools for which this parcel is
currently zoned:
|
Building
Capacity |
Percent occupied
|
Projected
Number of Students |
|
|
|
606
|
517
|
117%
|
5
|
|
Reedy
Creek Middle |
850
|
737
|
87%
|
3
|
|
|
2,410
|
2,446
|
99%
|
4
|
|
Total
for all Zoned Schools |
3,866
|
3,700
|
|
12
|
Current
Enrollment and Permanent Seat Capacity
are based on data for the school year 2004-2005, as supplied by the Wake County
Public School System. Actual school
assignment will be determined at the time of development.
LANDSCAPE
The plan would be required to
comply with all landscape requirements. The
plans provide street trees, foundation plantings, shade trees within the parking
area, screening of the parking area behind the retail/residential building, and
landscape screening from adjoining properties.
|
BUILDING ELEVATION Building Height: 55’
(maximum height) Building Size: Approximately
38,000 square feet (9,549 sq. ft. of retail space on the first floor, 24
dwelling units on the second, third and fourth floors) Building Materials and Colors: Red-brown
brick; cream stucco; cream, tan and blue-green hardi siding; white hardi
trim; clear anodized aluminum storefront; charcoal cloth awnings and
canopies; black asphalt shingles; and galvalume standing seam metal. |
The development of 9,500 square
feet of retail development combined with 30 dwelling units would not require a
traffic impact study, because the development would not generate more that 100
peak hour trips as defined by the Adequate Public Facilities Ordinance.
The Town’s Comprehensive
Transportation Plan requires an ultimate 43’ back-to-back cross section for
this segment of
This development has access to
The project will be required to
comply with all Town of
Adjoining property owners were
notified during staff's initial review of this plan.
Staff has received no inquiries objecting to the request regarding this
proposed development.
ACTION:
Mayor Pro Tem Smith moved to approve the consent agenda, with the exception of
item B.3.a.(1),
_________________________
3.
Planning and Development
Committee, June 16, 2005 (any
committee consent agenda item pulled for discussion will be discussed at the
beginning of the committee discussion portion of the agenda, which is item G on
this agenda) (Mr. Roseland)
a.
Consent Agenda
(1)
Committee unanimously recommended approval of a waiver
to the APF Roads Ordinance for
This
item was pulled from the consent agenda for discussion. See item G.1.a.
_________________________
(2)
Donation of Paintings by
Committee unanimously recommending accepting a
donation of two paintings from Cary Visual Art.
In
keeping with Cary Visual Art’s (CVA) purchase award program in conjunction
with the Fine Arts League of Cary’s (FALC) Annual Spring Show, CVA has
purchased two selected works of art and proposes to donate both to the Town of
Cary. The selected paintings are acrylic paintings entitled “Still Groovin”
by Susan Hecht and “Oakwood Afternoon” by Larry T. Dean.
This
is the fifth year CVA has donated artwork to the Town from the FALC Annual
Spring Show. Past works donated are
on display at
The
Public Art Advisory Board reviewed the proposed donations at its May meeting and
unanimously recommended that Council accept the donation of both works of art.
Staff will assess Town facilities to find the most appropriate place for
displaying the art work. The paintings will be available for review at the
Planning and Development Committee meeting.
Staff Recommendation:
Acceptance of the donation of the two paintings by Cary Visual Art, Inc.
(Visual images of paintings are on file in the town clerk's office with the official minutes.)
ACTION:
Mayor Pro Tem Smith moved to approve the consent agenda, with the exception of
item B.3.a.(1),
_________________________
(3)
Committee unanimously recommended approval of a noise
easement associated with the
On
Summary:
This
document will ensure that each potential purchaser will be made aware of the
potential substantial noise that may be generated by the amphitheatre.
It provides that “Creedmoor Partners hereby grants a perpetual,
nonexclusive easement to the Town for the benefit of the Amphitheatre Property
for so long as the Amphitheatre Property is used as a recreation and
entertainment venue (which designation includes but is not limited to, a venue
for concerts, performances, festivals, celebrations and movie showings) for all
scheduled activities conducted at the Amphitheater Property, which activities
include the setting off of pyrotechnics (“fireworks”), which may affect the
residential development and use of the Regency Property. ”
It provides for disclosure of the potential effects of the amphitheatre
on the purchasers, and provides for the construction techniques that will help
reduce the level of interior noise generated by activities at the amphitheatre.
Additionally, noise disclosures will be added to each of the subdivision plats
that will transfer to individual surveys, and deed disclosures and protective
covenants will address noise generated by the amphitheatre.
Staff
Recommendation: Staff
recommends approval of the
Prepared
by and Return to: Alison R. Cayton of Manning, Fulton & Skinner P.A. (
STATE OF
NOISE
EASEMENT AGREEMENT
THIS
NOISE EASEMENT AGREEMENT (the “Agreement”) is made and entered into on this
___ day of ___________, 2005, by and between Creedmoor Partners, L.L.C., a North
Carolina limited liability company (herein “Creedmoor Partners”), and The
Town of Cary, a North Carolina municipal corporation (herein the “Town”).
WHEREAS,
Creedmoor Partners is the owner of that certain approximately ___ acre tract
shown as ________________________ on that map recorded at Book of Maps ________,
Page ______, Wake County Registry (herein “Regency Property”); and
WHEREAS,
the Town is the owner of that certain property described on Exhibit
A attached hereto and incorporated herein by reference, on which is located
the Koka Booth Amphitheatre at Regency Park (herein “Amphitheatre
Property”); and
WHEREAS,
Creedmoor Partners desires to develop the Regency Property into a residential
neighborhood in accordance with plans therefore to be approved by the Town; and
WHEREAS,
the Town desires to obtain from Creedmoor Partners an easement for the scheduled
activities conducted on the Amphitheatre Property
pursuant to the requirements of the Town of Cary rezoning case 04-REZ-19,
Regency PDD Amendment; and
WHEREAS,
Creedmoor Partners acknowledges that the activities conducted at the
Amphitheater Property ordinarily and necessarily produce noise, vehicular and
pedestrian traffic and other conditions that may conflict with or impact the
development and use of the Regency Property for residential purposes;
Creedmoor Partners hereby grants a perpetual, nonexclusive easement to the Town
for the benefit of the Amphitheatre Property for so long as the Amphitheatre
Property is used as a recreation and entertainment venue (which designation
includes but is not limited to, a venue for concerts, performances, festivals,
celebrations and movie showings) for all scheduled activities conducted at the
Amphitheater Property, which activities include the setting off of pyrotechnics
(“fireworks”), which may affect the residential development and use of the
Regency Property. The permitted
activities at the Amphitheater Property and the resulting effects may include
average noise levels that substantially exceed typical ground-based, or
background noise and additional pedestrian and vehicular traffic generated by
concertgoers. Creedmoor Partners, and its successors in title to the Regency
Property, hereby waive any right to object to all scheduled activities conducted
on the Amphitheatre Property which may conflict with or impact the development
and use of the Regency Property for residential purposes.
TO
HAVE AND TO HOLD said easement subject to the additional conditions and
restrictions set out below:
1. Nothing in this Agreement shall grant a right of ingress or egress upon or
across the Regency Property by the Town, or any of the Town’s tenants, guests,
invitees, or employees. Nothing in
this Agreement shall prohibit or otherwise restrict Creedmoor Partners from
enforcing or seeking enforcement of statutes or regulations of governmental
agencies for activities conducted at the Amphitheater Property which are not
within the scope of this Agreement.
2.
This Agreement and the easement granted herein shall be appurtenant to the
Regency Property and the Amphitheater Property, shall run with the land and
shall bind the heirs, successors, and assigns of Creedmoor Partners and the
Town. Creedmoor Partners is hereby expressly granted the right to assign
enforcement of this Agreement to an association of property owners of the
Regency Property at such time as the Regency Property is developed for
residential use and such an association is established.
3.
Creedmoor Partners, and its successors in title, shall include the following
disclosure statements in all (i) agreements pertaining to the purchase and sale
of lots or other portions of the Regency Property and (ii) any deeds conveying
lots or other portions of the Regency Property:
(a)
“The real property described herein is subject to that certain
Noise Easement Agreement dated ___________, 2005 and recorded in Book _______,
Page _______, Wake County Registry (the “Noise Easement”). As provided in
the Noise Easement, the real property may be subjected to conditions resulting
from activities conducted at the Koka Booth Amphitheatre, including noise,
vehicular and pedestrian traffic, and other conditions that may conflict with
the use of the real property for residential purposes.
The noise to which the property may be subjected
includes noise from concerts, performances, festivals, celebrations and movie
showings and the setting off of pyrotechnics (“fireworks”).
All
such conducted activities are permitted by the Noise Easement, which contains
specific provisions relating to such activities.”
(b)
“Due to the proximity of the real property described herein to
the Koka Booth Amphitheatre, the municipally approved plans for the development
of the real property require that all dwellings constructed hereon shall be
subject to noise level reduction design requirements for a minimum of NLR
25dB.”
4.
This Agreement shall be governed by and construed in accordance with the laws of
the State of
IN
WITNESS WHEREOF, Creedmoor Partners and the Town have caused this Agreement to
be duly executed on the day and year first above written.
CREEDMOOR
PARTNERS, L.L.C.,
a
North Carolina Limited Liability Company
By:
Manager
THE TOWN OF
a
By:___________________________________
Mayor
Attest:
By:__________________________________
Town Clerk
STATE
OF
I,
a Notary Public, certify that ___________________ personally came before me this
day and acknowledged the execution of the foregoing instrument, acting in his
own name and for and on behalf of CREEDMOOR PARTNERS, L.L.C., a
Witness
my hand and notarial stamp or seal, this ____ day of _______________, 2005.
My
commission expires:
______________________________________
Notary
Public
___________________,
20__
STATE
OF
I,
______________________________, a Notary Public for said County and State,
hereby certify that _____________________________ personally appeared before me
this day and acknowledged that she is the Town Clerk of the Town of Cary, a
North Carolina municipal corporation, and that by authority duly given and as
the act of the municipal corporation, the foregoing instrument was signed in its
name by its Mayor, sealed with its corporate seal and attested to her as Town
Clerk.
WITNESS
my hand and official stamp or seal, this _____ day of __________________, 2005.
_____________________________________
Notary Public
(Official Seal)
My
commission expires:
____________________
Exhibit
A – Amphitheatre Property
Amphitheatre
Property
Being
all that property of the Town identified as that 1.14 acre tract as recorded in
Book of Maps 1992 page 557 , Wake County Registry; tract P1 as recorded in Book
of Maps 1996 page 739, Wake County Registry; and tracts C6A and C6B-3 as
recorded in Book of Maps 1994 page 1552, Wake County Registry.
ACTION:
Mayor Pro Tem Smith moved to approve the consent agenda, with the exception of
item B.3.a.(1),
_________________________
b.
For Information Only (no council
action required)
For your information regarding tree replacement and
removal at