Cary

Cary Town Council Minutes

Thursday, October 26, 2006

6:30 PM

Council Chambers

316 N. Academy Street, Cary, N.C.

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

A. COMMENCEMENT

1. Call to Order (Mayor McAlister)

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

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2. Ceremonial Opening (Mr. Roseland)

Mr. Roseland provided the ceremonial opening.

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3. Adoption of agenda (Town Council)

ACTION: Mayor Pro Tem Smith moved to adopt the agenda as prepared; Mrs. Robinson provided the second. Council granted unanimous approval.

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B. CONSENT AGENDA

The council pulled consent agenda item B.1.d. (school bond resolution) for discussion (see old/new business portion for comments and action).

1. Regular Consent Agenda (any regular consent agenda item pulled for discussion will be discussed at the end of the old/new business portion of the agenda, which is item G on this agenda)

a. Consideration of approval of the minutes of the regular town council meeting held on October 12, 2006; the minutes of the work session regarding the Brown and Caldwell report held on October 10, 2006; and the minutes of the work session regarding aquatics held on October 12, 2006. (Town Council)

ACTION: Mrs. Robinson moved to approve the consent agenda (except item B.1.d.); Mayor Pro Tem Smith provided the second; council granted unanimous approval.

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b. Consideration of adoption of a certificate of sufficiency and resolution calling for public hearing on citizen-initiated annexation 06-A-28. The property is located at 1404 Holt Road and contains 0.85 acre. There is no associated development plan. (Mr. Ricky Barker)

TOWN OF CARY, NORTH CAROLINA
REQUEST FOR ANNEXATION

Annexation Petition Number:   06-A-28
Property Address:   1404 Holt Road
Wake County Parcel Number: 0743247279
Real ID Number:   0072378
Petition Date:   7/7/2006
Proposed Effective Date:   11/14/2006

OWNERS:
E. Warren & Patricia Napowsa
1404 Holt Road
Cary, NC 27519

LOCATION: Holt Road - 810' east of Jenks Carpenter Road

ZONING & PROPOSED USE:
Current Zoning:   Residential-40 Wake (R-40W)
Acreage:   0.85 plus 0.00 adjacent right of way = 0.85 total acres
% Contiguity:   77.24%
Contiguous to Corporate Limits:   Yes
Proposed Use:   Residential
Associated Rezoning Case:    None
Associated Development Plan:   None
Request: Town of Cary Public Utilities(sewer only)

UTILITIES:
Water:    On Site
Sewer:   8" PVC 110' north

DISTRICTS & TAX VALUE:
Fire District:   Hipex
Voting District: A
Tax Value:    $69,593

MEETINGS:
Town Council – Certificate of Sufficiency and Resolution Ordering Public Hearing: 10/26/2006
Staff Recommendation: Forward to public hearing on 11/14/2006

06-A-28 (E. Warren & Patricia Napowsa)

CERTIFICATE OF SUFFICIENCY OF ANNEXATION PETITION

I, the undersigned Town Clerk of the Town of Cary, do hereby certify that I have investigated the sufficiency of Annexation Petition of

E. Warren & Patricia Napowsa;
Wake County Parcel Identification #0743247279;
0.85 acres plus 0.00± acres of adjacent right-of-way;

as directed by the Town Council by resolution, and that my investigation reveals the following:

1. The signers of the Petition are the owners of the real property within the area proposed for annexation.

2. The area is contiguous to the municipal boundaries of the Town of Cary as defined by G.S. 160A-31, or is appropriate for annexation as a noncontiguous area as defined by 160A-58.

This 10/26/2006.

06-A-28 (E. Warren & Patricia Napowsa)

RESOLUTION ORDERING PUBLICATION OF A NOTICE OF PUBLIC HEARING ON THE QUESTION OF ANNEXATION PURSUANT TO G.S. 160A-58

WHEREAS, the Town Council of the Town of Cary has received an annexation petition of

E. Warren & Patricia Napowsa;
Wake County Parcel Identification #0743247279;
0.85 acres plus 0.00± acres of adjacent right-of-way;

requesting the annexation of certain lands contiguous to the municipal boundaries of the Town of Cary; and

WHEREAS, the Town Clerk has certified to the Town Council the sufficiency of said Petition as required by law;

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

Section I. A public hearing on the question of annexation of the area described herein will be held in the Council Chamber of the Town of Cary, 316 N. Academy Street, Cary, NC at 6:30 p.m. on 11/14/2006.

Section 2. The area proposed for annexation is described as follows:

METES AND BOUNDS DESCRIPTION
Wake County Parcel Identification #0743247279

Section 3. Notice of the public hearing shall be published in the Cary News, a newspaper having general circulation in the Town of Cary, at least ten (10) days prior to the date of the public hearing.

ADOPTED 10/26/2006.

ACTION: Mrs. Robinson moved to approve the consent agenda (except item B.1.d.); Mayor Pro Tem Smith provided the second; council granted unanimous approval.

(Resolution 06-152 is also on file in the town clerk’s office

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c. Consideration of approval of the October 2006 tax report. (Mr. Bill Coleman)

October 17, 2006

The Wake County Board of Commissioners, in regular session on October 2, 2006, approved and accepted the enclosed tax report for the Town of Cary.

It is hereby submitted for your approval.

Refunds of taxes, interest and penalties	$6,097.99
Relief of late list penalty	1
Relief of late filed application	1
Non-cash rebates	352

ACTION: Mrs. Robinson moved to approve the consent agenda (except item B.1.d.); Mayor Pro Tem Smith provided the second; council granted unanimous approval.

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d. Consideration of adoption of a resolution supporting the November 7, 2006, Wake County school bond referendum. (Mayor McAlister)

This item was removed from the consent agenda for discussion. Refer to the old/new business portion of these minutes.

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2. Land Development Consent Agenda (any land development consent agenda item pulled for discussion will be discussed at the end of the land development discussion portion of the agenda, which is item F on this agenda)

a. Citizen Initiated Annexation 06-A-24
Consideration of adoption of an ordinance to annex land. The property is located on Serene Forest Drive south of Optimist Farm Road and contains 4.55 acres. The associated rezoning is 06-REZ-20, Park at Westlake, Phase 5 (see below). (Mr. Ricky Barker)

TOWN OF CARY, NORTH CAROLINA
REQUEST FOR ANNEXATION

Annexation Petition Number: 06-A-24

Property Addresses: 5324, 5328, 5332, 5340, 5408, 5412, 5413, 5416, 5420, 5424, 5425 Serene Forest Drive

Wake County Parcel Numbers: 0669950190, 0669950149, 0669950219, 0669951031, 0669859694, 0669859731, 0669857730, 0669859800, 0669858990, 0669856899, 0669857952

Real ID Numbers: 0334049, 0334048, 0334047, 0334050, 0334057, 0334056, 0334051, 0334055, 0334054, 0334052, 0334053

Petition Date: 4/12/2006

Proposed Effective Date: Concurrent with associated rezoning case approval

OWNERS:
Winslow Properties Development Company
740 Lock Highlands Drive
Raleigh, NC 27606

Adam & Deanna Hunt
5340 Serene Forest Drive
Apex, NC 27539

Justin P. Sullivan
5408 Serene Forest Drive
Apex, NC 27539

Scott & Dara Emery
5324 Serenity Forest Drive
Apex, NC 27539

Carlos & Jodi Martinez
5332 Serene Forest Drive
Apex, NC 27539

Vincent Harrison & Kelli Ranck
5416 Serene Forest Drive
Apex, NC 27539

Barry & Katharine Boles
5328 Serene Forest Drive
Apex, NC 27539

Christopher & Laura Flythe
5420 Serene Forest Drive
Apex, NC 27539

Robert & Bernadette Schroder
5412 Serene Forest Drive
Apex, NC 27539

LOCATION: Serene Forest Drive (cul de sac) @ Optimist Farm Road

ZONING & PROPOSED USE:
Current Zoning:   Residential-30 (Wake)(R-30 Wake)
Acreage:   4.11 plus 0.44 adjacent right of way = 4.55 total acres
% Contiguity:   27.00%
Contiguous to Corporate Limits:   Yes
Existing Use:   Residential subdivision
Associated Rezoning Case:    Park @ Westlake Phase 5 (06-REZ-20)
Associated Development Plan:   None

UTILITIES:
Water:    On Site
Sewer:   On Site

DISTRICTS & TAX VALUE:
Fire District:   Fairview
Voting District: C
Tax Value:    $1,319,792

MEETINGS:
Town Council – Certificate of Sufficiency and Resolution Ordering Public Hearing:   7/27/2006
Staff Recommendation:      Forward to public hearing on 8/24/2006
Action:      Forwarded to public hearing on 8/24/2006

Town Council – Public Hearing:   8/24/2006
Staff Recommendation:    Adoption concurrent with associated rezoning case approval
Action:      Conducted Public Hearing; Final action will occur simultaneously with the final action on 06-REZ-20 (currently scheduled for public hearing on 10/26/2006 )

Town Council – Public Hearing for Ordinance Adoption: 10/26/2006
Staff Recommendation: Adoption with an effective date of 10/26/2006

ACTION: Mrs. Robinson moved to approve the consent agenda (except item B.1.d.); Mayor Pro Tem Smith provided the second; council granted unanimous approval.

(Resolution 06-084 is also on file in the town clerk’s office.)

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b. Rezoning 06-REZ-20, Park at Westlake, Phase 5
Consideration of adoption of an ordinance to rezone land. The property is located on Serene Forest Drive south of Optimist Farm Road and contains 4.55 acres. The current zoning is Residential-30 (Wake County); the proposed initial Town of Cary zoning is Residential-12. This is a Town-initiated request. The Planning and Zoning Board unanimously recommended approval. In accordance with N.C.G.S. 160A-383, and based upon the recommendations and detailed information developed by staff and/or the Planning & Zoning Board contained in the case report, approval of this case by the Cary Town Council will officially adopt the individual rezoning report as evidence that consistency with the Comprehensive Plan has been thoroughly evaluated and that this is a reasonable action to further the community’s public interest in carrying out the Comprehensive Plan. (Ms. Jennifer Currin)

06-REZ-20 Park at Westlake (Phase 5) Rezoning Staff Report to Town Council

Background Information

Current Zoning: Residential-30 Wake (R-30 Wake)

Initial Zoning: Residential-12 (R-12)

Conformity with Land Use Plan Designation: The Land Use Plan designation is Very Low Density Residential (VLDR) or Low Density Residential (LDR) Cluster. The property was developed in Wake County under their cluster option, and is therefore consistent with the Land Use Plan.

Acreage: 4.55

LOCATION: Serene Forest Drive south of Optimist Farm Road

Applicant:

Town of Cary

316 N Academy Street, Cary, NC 27513

Town of Cary Case Manager:

Jennifer Currin, Planner II

316 N Academy Street, Cary, NC 27513

(919) 469-4342

jennifer.currin@townofcary.org

Summary of Requested Rezoning

The Town is proposing initial zoning for this property, which is associated with a citizen-initiated annexation request. The reason for this proposed initial zoning is that the property is currently under a Wake County zoning district (Residential-30). Upon annexation into the Town, the zoning of the property must be changed to a Cary zoning district (Residential-12). Because this property is already developed and/or within an existing subdivision approved by Wake County, the proposed R-12 zoning district is the most comparable to the existing use of the property (single family lots with a minimum lot size of 12,000 square feet).

In 2002, the Council approved the development of the 353 acre parent parcel with Town utilities without annexation and allowed subdivision approval through the Wake County Residential 30 zoning district cluster option. In 2002, due to State law requirements, the Town was unable to accept a citizen-initiated annexation petition because the property was closer to Holly Spring's corporate limits. In 2003, a Holly Springs/Cary Utility Service Agreement was adopted which does allow this property to be annexed and be zoned to a compatible Cary zoning district. The developer of this Wake County subdivision had agreed to annex based on subdivision plat boundaries.

A. Transportation
Existing Roadway Section: 2-lane, 70’ right of way (ROW) – Optimist Farm

Future Roadway Section: 4-lane median divided – Optimist Farm

Schedule: Existing development/not scheduled

Sidewalk Requirements: Required on both sides

Bicycle Requirements: Wide outside lanes

Transit Requirements: N/A

B. Traffic Impact Analysis: This property is part of a subdivision that was developed under Wake County’s zoning requirements and therefore a traffic impact analysis was not required by the Town of Cary.

C. Parks & Greenways: The Parks, Recreation and Cultural Resources Facilities Master Plan include a proposed greenway along the western edge of this development.

Reference Information

Meeting Schedule:

Town Council Public Hearing

Date: August 24, 2006

Action: Forwarded to the September 18, 2006 Planning and Zoning Board meeting.

Planning & Zoning Board:

Date: September 18, 2006

Action: P&Z Board recommended approval 9-0.

Town Council Action:

Date: October 26, 2006

Property Addresses: 5328, 5332, 5340, 5324, 5408, 5412, 5413, 5416, 5420, 5424, 5425 Serene Forest Drive

Wake County Parcel Numbers: 0669950190, 0669950149, 0669950219, 0669951031, 0669859694, 0669859731, 0669857730, 0669859800, 0669858990, 0669856899, 0669857952

Real ID Numbers: 0334049, 0334048, 0334047, 0334050, 0334057, 0334056, 0334051, 0334055, 0334054, 0334052, 0334053

Owners:

Winslow Properties Development Company

740 Lock Highlands Drive

Raleigh, NC 27606

Starcraft Builders

728 Piney Grove Wilbon Road

Holly Springs, NC 27540

Justin P. Sullivan

5408 Serene Forest Drive

Apex, NC 27539

Scott & Dara Emery

5324 Serenity Forest Drive

Apex, NC 27539

Carlos & Jodi Martinez

5332 Serene Forest

Apex, NC 27539

Vincent Harrison and Kelli Ranck

5416 Serene Forest

Apex, NC 27539

Barry & Katharine Boles

5328 Serene Forest Drive

Apex, NC 27539

Christopher & Laura Flythe

5420 Serene Forest Drive

Apex, NC 27539

Robert & Bernadette Schroder

5412 Serene Forest Drive

Apex, NC 27539

Changes since the Town Council Public Hearing: None

Staff recommendation on the Rezoning: Staff recommends approval of the rezoning request.

Planning and Zoning Board Recommendation September 18, 2006:

The Planning and Zoning Board voted 9-0 to recommend that Council adopt an ordinance allowing this request for the rezoning and subsequent map amendment; it is consistent with the current Town of Cary Comprehensive Plan and any other officially adopted plans that are applicable. The Board determined this action to be reasonable and in the public interest.

Changes since the Planning and Zoning Board meeting: None

AN ORDINANCE TO AMEND THE OFFICIAL ZONING MAP OF THE TOWN OF CARY TO CHANGE THE ZONING OF APPROXIMATELY 4.55 ACRES LOCATED oN SERENE FOREST DRIVE SOUTH OF OPTIMIST FARM ROAD.

BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF CARY:

Section 1: The Official Zoning Map is hereby amended by rezoning from Residential-30 Wake (R-30 Wake) to Residential-12 (R-12) the area described as follows:

Property Addresses: 5328, 5332, 5340, 5324, 5408, 5412, 5413, 5416, 5420, 5424, 5425 Serene Forest Drive

Wake County Parcel Numbers: 0669950190, 0669950149, 0669950219, 0669951031, 0669859694, 0669859731, 0669857730, 0669859800, 0669858990, 0669856899, 0669857952

Real ID Numbers: 0334049, 0334048, 0334047, 0334050, 0334057, 0334056, 0334051, 0334055, 0334054, 0334052, 0334053

Owners:

Winslow Properties Development Company

740 Lock Highlands Drive

Raleigh, NC 27606

Starcraft Builders

728 Piney Grove Wilbon Road

Holly Springs, NC 27540

Justin P. Sullivan

5408 Serene Forest Drive

Apex, NC 27539

Scott & Dara Emery

5324 Serenity Forest Drive

Apex, NC 27539

Carlos & Jodi Martinez

5332 Serene Forest

Apex, NC 27539

Vincent Harrison and Kelli Ranck

5416 Serene Forest

Apex, NC 27539

Barry & Katharine Boles

5328 Serene Forest Drive

Apex, NC 27539

Christopher & Laura Flythe

5420 Serene Forest Drive

Apex, NC 27539

Robert & Bernadette Schroder

5412 Serene Forest Drive

Apex, NC 27539

Section 2: That the rezoning from Residential-30 Wake (R-30 Wake) to Residential-12 (R-12) is hereby authorized subject to all the requirements of the Cary Land Development Ordinance (LDO) and other applicable standards, policies and guidelines.

Section 3: This property will be perpetually bound to the uses authorized and subject to such zoning, unless subsequently changed or amended as provided for in the Cary Land Development Ordinance.

Section 4: Any violations or failure to accept and abide by the requirements of the Land Development Ordinance shall be subject to the remedies provided in the Cary LDO

Section 5: This ordinance shall be effective on the date of adoption.

ACTION: Mrs. Robinson moved to approve the consent agenda (except item B.1.d.); Mayor Pro Tem Smith provided the second; council granted unanimous approval.

(Ordinance O-2006-24 is also on file in the town clerk’s office.)

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C. RECOGNITIONS, REPORTS, AND PRESENTATIONS

1. Presentation of a Proclamation Celebrating Cary Band Day. (Mayor McAlister)

RECOGNIZING NOVEMBER 4, 2006 AS

THE 48^TH ANNUAL CARY BAND DAY

WHEREAS, the Cary High School Band has proven its musical and marching abilities throughout the years by its continuing achievements of both national and regional recognition for its accomplishments; and

WHEREAS, members of the Cary High School Band have brought much honor to the Town of Cary and its citizens while also maintaining high scholastic aptitudes; and

WHEREAS, music plays an increasingly important role in our world today and is one of the most sublime of human pursuits and is subscribed to by all races and creeds; and

WHEREAS, music is the language of all peoples and one of the greatest forces in creating peace and harmony; and

WHEREAS, the citizens of Cary are proud of the Cary High School Band for its many accomplishments throughout the years, which recently includes being named Bands of America regional finalists in 2001, 2003, 2004, and 2005; and

WHEREAS, 2006 has been a year of great accomplishments for the Cary High School Band. They performed at the Lincoln Center for the Performing Arts in New York City; they were named 2006 Dixie Classic Grand Champion at the 29^th Annual Dixie Classic in Danville, VA ; they placed in the Prelims and Finals at the Bands of America Regional Championships at Middle Tennessee State University in Murfreesboro, TN; they were named the Grand Champion at the Heart of Carolina Marching Band Invitational at Wakefield High School in Raleigh, NC; and they placed 4^th in the Prelims and 4^th in the Finals at Bands of America Regional Championships in St. Petersburg, FL.

NOW, THEREFORE, I, Ernest F. McAlister, Mayor of the Town of Cary, North Carolina, do hereby proclaim Saturday, November 4, 2006, as the 48th ANNUAL CARY BAND DAY and urge all citizens of Cary and the surrounding areas to join together in honoring and supporting this longstanding Cary tradition.

PROCLAIMED this 26^th day of October 2006.

Proclamation 06-082 is also on file in the town clerk’s office.

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D. PUBLIC HEARINGS

The following rules apply to the first two special use public hearing (06-SU-006 and 06-SU-007).

This quasi-judicial hearing considers an application for a variance or a special use permit. It requires an evidentiary hearing on the application, which will be heard by Council acting as a quasi-judicial board. The purpose of the hearing is to enable Council to gather legally acceptable evidence in order to establish sufficient facts to apply the applicable ordinance. No ex parte contact of Council is permitted. 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. All persons wishing to speak on this matter must be sworn in. Applicants may elect to be represented by legal counsel. All persons wishing to speak 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. All documents provided to Council to consider as evidence should be numbered and copies must be provided to the Clerk and to the other party. Inflammatory, irrelevant or repetitious testimony is not permitted.

The applicant has the burden of producing sufficient substantial, competent and material evidence for the Council to conclude that the standards of the applicable ordinance(s) have been met.

PROCEDURE FOR THE HEARING

The procedure for hearing this case is as follows:

· A staff representative presents a preliminary statement.

· The applicant is called on to present the argument in support of the application, followed by others who wish to speak in support of the application.

· Persons opposed to the application are invited to speak.

· Both sides are permitted to question the other side.

· Both sides are permitted to present rebuttals.

· The hearing is closed.

The Council deliberates in order to reach a decision. In the course of the deliberation, the Council may ask questions of the staff, the applicant or others who have testified, but beyond that, additional comments from the floor will be admitted only at the discretion of the Mayor.

1. Special Use 06-SU-006 (1741 Walnut Street)
All speakers must be administered an oath by the town clerk prior to speaking.
Consideration of a request to locate a fitness center in the former Lowe’s Food tenant space at the Devonshire Place shopping center at 1741 Walnut Street. Council may take action. (Mr. Kevin Hales)

STAFF REPORT

Town Council, October 26, 2006

Lifestyle Fitness (PL07-011)
Consideration of approval of a Special Use Permit to locate an indoor fitness center in the former Lowe’s Food tenant space at the Devonshire Place shopping center
Speaker: Kevin Hales

From: Jeffery G. Ulma, AICP, Director, Planning Department
Prepared by: Kevin A. Hales, Planner II, Planning Department
Approved by: William B. Coleman, Jr., Town Manager
Approved by: Benjamin T. Shivar, Assistant Town Manager

Special Uses are generally compatible with other land uses permitted in the zoning district, but because of their unique characteristics or potential impacts on the surrounding neighborhood and the Town, they require consideration as to location, design, configuration, and operation at the particular location proposed {LDO Sec. 3.8.1(A)}. If a site plan were to be necessary, then it would be reviewed in coordination with the Special Use Permit application. When deciding Special Use Permits, Council must follow quasi-judicial procedures.

Requested Town Council Action

The applicant, Lifestyle Family Fitness, has requested a Special Use Permit to operate a commercial indoor recreation facility at 1741 Walnut Street (Devonshire Place). The property is zoned General Commercial (GC). According to Table 5.1-1 of the Land Development Ordinance (LDO), a commercial indoor recreation facility is permitted in the General Commercial (GC) zoning district only through the granting of a Special Use Permit by the Town Council.

Proposal

The applicant, Lifestyle Family Fitness, has requested a Special Use Permit in order to operate a commercial indoor recreation facility. The property is 10.11 acres and contains an existing shopping center with a total of 105,400 square feet of building floor area, of which the proposed use will occupy 35,647 square-feet. There are 554 parking spaces provided on the existing site. This met the requirement of the shopping center as full retail. Under the LDO, the proposed use requires more parking than the previous retail tenant, bringing the total required for the shopping center to 581. The Land Development Ordinance allows a 10% reduction in parking at an administrative level, which this reduction (5%) would be consistent with. The building will require no exterior alterations to allow the change in use from retail establishment to commercial indoor recreation facility, so a site plan is provided for exhibit purposes only.

Neighborhood Concerns

Notices were sent out to the surrounding property owners. No inquiries were received at the time this staff report was completed.

Staff Recommendation

CASE 06-SU-006

1741 Walnut Street

Lifestyle Family Fitness

CARY TOWN COUNCIL

WORKSHEET AND SUGGESTED MOTIONS

SPECIAL USE

Section 3.8.3 of the Town of Cary Land Development Ordinance requires that the following seven (7) general standards must be met in order for the Town Council to grant a Special Use.

(A) The proposed use or development of the land will generally conform with the Comprehensive Plan, other official plans and manuals or documents adopted by the Town;

Staff Comments: The Town’s Comprehensive Plan designates this parcel for Commercial (COM) uses. A commercial indoor recreation facility would therefore conform to the Comprehensive Plan.

TEST SATISFIED? __ YES __ NO

(B) The proposed use or development of the land will not materially endanger the public health or safety;

Staff Comments: The proposed commercial indoor recreational facility will be located entirely within the existing structure and will pose no danger to public health or safety.

TEST SATISFIED? __ YES __ NO

(C) The proposed use is reasonably necessary for the public health or general welfare, such as by enhancing the successful operation of the surrounding area in its basic community functions or by providing an essential service to the community;

Staff Comments: The proposed commercial indoor recreation facility will serve the needs of the surrounding community by providing health club services in the area. The proposed use will be located in an existing tenant space, keeping the shopping center fully occupied.

TEST SATISFIED? __ YES __ NO

(D) The proposed use or development of the land will not substantially injure the value of adjoining or abutting property;

Staff Comments: The proposed commercial indoor recreation facility is not significantly different in character from the former use of the space as a grocery store and will not harm adjoining property values.

TEST SATISFIED? __ YES __ NO

(E) The proposed use or development of the land will be in harmony with the scale, bulk, coverage, density, and character of the area or neighborhood in which it is located;

Staff Comments: The proposed commercial indoor recreation facility will not change the exterior of the existing building or the site; therefore, the use will have not adversely impact on the scale, bulk, coverage, density, or character of the area.

TEST SATISFIED? __ YES __ NO

(F) The proposed use is appropriately located with respect to transportation facilities, water supply, fire and police protection, waste disposal, and similar facilities;

Staff Comments: The proposed commercial indoor recreation facility will be adequately served by the existing utilities and urban services.

TEST SATISFIED? __ YES __ NO

(G) The proposed use will not cause undue traffic congestion or create a traffic hazard or unsafe pedestrian pathway.

Staff Comments: While requiring more parking spaces, the proposed commercial indoor recreation facility will actually generate less daily peak-hour trips than the previous grocery store tenant; therefore, the new use will not contribute unduly to traffic or pedestrian problems.

TEST SATISFIED? __ YES __ NO

CASE 06-SU-006

1741 Walnut Street

Lifestyle Family Fitness

MOTION TO GRANT THE APPLICATION WITHOUT CONDITIONS

I HEREBY MAKE A MOTION THAT THE STAFF COMMENTS BE ADOPTED AS FINDINGS OF FACT AND THAT APPLICATION NUMBER 06-SU-006 HAS SUCCESSFULLY MET THE RQUIREMENTS OF SECTION 3.8.3 OF THE CARY LAND DEVELOPMENT ORDINANCE AND IS HEREBY GRANTED WITHOUT CONDITIONS.

MOTION TO GRANT THE APPLICATION WITH CONDITIONS

I HEREBY MAKE A MOTION THAT THE STAFF COMMENTS BE ADOPTED AS FINDINGS OF FACT AND THAT APPLICATION NUMBER 06-SU-006 HAS SUCCESSFULLY MET THE REQUIREMENTS OF SECTION 3.8.3 OF THE CARY LAND DEVELOPMENT ORDINANCE AND IS HEREBY GRANTED SUBJECT TO THE FOLLOWING CONDITIONS:

MOTION TO DENY THE APPLICATION

I HEREBY MAKE A MOTION THAT APPLICATION NUMBER 06-SU-006 HAS FAILED TO MEET THE REQUIREMENTS OF SECTION 3.8.3 OF THE CARY LAND DEVELOPMENT ORDINACE AND THE APPLICATION IS DENIED DUE TO THE FOLLOWING FINDINGS:

q Does not conform to the Comprehensive Plan or other adopted plans because ____________;

q Endangers the public health and safety because ______________;

q Does not enhance the successful operation of the surrounding area in its community functions or provide an essential service to the community because ____________;

q Substantially injures the value of adjoining or abutting property owners because ________________;

q Is not harmonious with the scale, bulk, coverage, density, or character of the area because _______________;

q Is not appropriately located with respect to transportation facilities, water supply, fire or police protection, waste disposal or similar facilities because __________________;

q Will cause undue traffic congestion or will create a traffic hazard or unsafe pedestrian pathway because ________________.

Oaths were administered to the following people, and they are attached to and incorporated in these minutes as Exhibit A: Mr. Kevin Hales and Mr. Jim Dalka. Staff’s power point presentation is attached to and incorporated in these minutes as Exhibit B.

Mr. Jim Dalka, representing Lifestyle Family Fitness, stated they currently operate about 35 facilities in Florida and Ohio, and they are expanding into North Carolina. He stated they are a full-service health club that typically utilizes a 35,000 to 40,000 square foot facility, and they offer free weights, cardio, and personal training. He encouraged the council to approve this request.

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

Mrs. Robison asked about the concerns expressed by adjacent neighbors about potential crime. Mr. Dalka stated they are a wholesome business and provide a daycare for families who are using the facility. He stated they’ve never had problems with crime issues at their other facilities.

Mrs. Robison asked the hours of operation. Mr. Dalka replied that the facility hours will be approximately 6 a.m. to 10 p.m. Mrs. Robison asked how this compares with the existing hours in this shopping center. Mr. Dalka is unsure but he doesn’t think it will add hours to the shopping center.

ACTION: Mrs. Robinson moved that the staff comments be adopted as findings of fact and the application 06-SU-006 has successfully met the requirements of Section 3.8.3 of the Cary Land Development Ordinance and is hereby granted without conditions. Mr. Roseland provided the second, and council granted unanimous approval.

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2. Special Use 06-SU-007 (222 East Chatham Street)
All speakers must be administered an oath by the town clerk prior to speaking.
Consideration of a request to use a tenant space in the Avalon Square office building at 223 East Chatham Street for religious assembly. Council may take action. (Mr. Kevin Hales)

STAFF REPORT

Town Council, October 26, 2006

Glory Life International Ministries (PL07-012)
Consideration of approval of a Special Use Permit 06-SU-007 to allow religious assembly in an office building located in Town Center
Speaker: Kevin Hales

From: Jeffery G. Ulma, AICP, Director, Planning Department

Prepared by: Kevin A. Hales, Planner II, Planning Department

Approved by: William B. Coleman, Jr., Town Manager

Approved by: Benjamin T. Shivar, Assistant Town Manager

Requested Town Council Action

The applicant, Deborah Studer, and property owner, Avalon Partners, LLC, have requested a Special Use Permit to operate a religious assembly use at 223 East Chatham Street (Avalon Square). The property is zoned Town Center – High Intensity Mixed Use (HMXD). According to Table 5.1-2 of the Land Development Ordinance (LDO), a Religious Assembly Use is permitted in the HMXD zoning subdistrict only through the granting of a Special Use Permit by the Town Council.

Proposal

The applicant, Deborah Studer, has requested a Special Use Permit in order to operate a Religious Assembly Use. The property is 0.64 acre and contains an existing office building. There are 28 parking spaces on site; therefore, the required 39 parking spaces are not provided on-site. Parking regulations in the Land Development Ordinance allow a reduction of up to 50% for property located within Town Center where other options are available (on-street parking is available along Cedar Street within 500’ of the building entrance). This request represents a 28% reduction in required parking. The building will require no exterior alterations to change its use from retail establishment to Religious Assembly, so a site plan accompanies this request for exhibit purposes only.

Neighborhood Concerns

Notices were sent out to the surrounding property owners. One call was received from a downtown merchant, expressing concern about allowing a non-profit, institutional use to occupy existing retail/office space.

Staff Recommendation

Staff believes that the request meets the required seven special use standards of Section 3.8.3 of the LDO necessary for approval of the Special Use Permit. Staff recommends approval of the Special Use Permit with the condition that occupancy of the meeting room be capped at 84 persons (the max supported by on-site parking).

CASE 06-SU-007

223 East Chatham Street

Glory Life Ministries

CARY TOWN COUNCIL

WORKSHEET AND SUGGESTED MOTIONS

SPECIAL USE

Section 3.8.3 of the Town of Cary Land Development Ordinance requires that the proposed use meets the following seven (7) general standards, based on the evidence and testimony received at the public hearing or otherwise appearing in the record of the case.

(A) The proposed use or development of the land will generally conform with the Comprehensive Plan, other official plans and manuals or documents adopted by the Town;

Staff Comments: The Comprehensive Plan calls for High-Intensity Mixed Use on this parcel. The proposed Religious Assembly use would add an Institutional component to what has been a predominantly retail space. This additional mix of uses would comply with the Comprehensive Plan.

TEST SATISFIED? __ YES __ NO

(B) The proposed use or development of the land will not materially endanger the public health or safety;

Staff Comments: The proposed Religious Assembly use will be located entirely within the existing office building and no changes to the exterior of the building or the site have been proposed. The use will therefore not pose any danger to public health or safety.

TEST SATISFIED? __ YES __ NO

Staff Comments: The proposed Religious Assembly would enhance the surrounding area by serving the spiritual needs of members of the surrounding community.

TEST SATISFIED? __ YES __ NO

(D) The proposed use or development of the land will not substantially injure the value of adjoining or abutting property;

Staff Comments: The proposed Religious Assembly would make no changes to the exterior of the building or site and, therefore, not injure any adjoining property values.

TEST SATISFIED? __ YES __ NO

(E) The proposed use or development of the land will be in harmony with the scale, bulk, coverage, density, and character of the area or neighborhood in which it is located;

Staff Comments: The proposed Religious Assembly will not change the exterior of the building or the site and will therefore not change the character of the neighborhood in regards to density, scale, or bulk.

TEST SATISFIED? __ YES __ NO

(F) The proposed use is appropriately located with respect to transportation facilities, water supply, fire and police protection, waste disposal, and similar facilities;

Staff Comments: The proposed Religious Assembly will be located in an existing building that is already connected to public utilities and is covered by the Town of Cary municipal services.

TEST SATISFIED? __ YES __ NO

(G) The proposed use will not cause undue traffic congestion or create a traffic hazard or unsafe pedestrian pathway.

Staff Comments: The proposed Religious Assembly will generate less daily peak-hour trips than the previously existing retail tenant. The hours of operation will not generally coincide with that of the other tenants, allowing the proposed church access to the entire parking lot for parking.

TEST SATISFIED? __ YES __ NO

CASE 06-SU-007

223 East Chatham Street

Glory Life Ministries

MOTION TO GRANT THE APPLICATION WITHOUT CONDITIONS

I HEREBY MAKE A MOTION THAT THE APPLICATION IS REASONABLE AND IN THE PUBLIC INTEREST AS SET FORTH IN THE STAFF COMMENTS WHICH I MOVE BE ADOPTED AS FINDINGS OF FACT AND THAT APPLICATION NUMBER 06-SU-007 HAS SUCCESSFULLY MET THE REQUIREMENTS OF SECTION 3.8.3 OF THE CARY LAND DEVELOPMENT ORDINANCE AND IS HEREBY GRANTED WITHOUT CONDITIONS.

MOTION TO GRANT THE APPLICATION WITH CONDITIONS

MOTION TO DENY THE APPLICATION

I HEREBY MAKE A MOTION THAT APPLICATION NUMBER 06-SU-007 IS/IS NOT CONSISTENT WITH THE COMPREHENSIVE PLAN AND IS/IS NOT REASONABLE AND IN THE PUBLIC INTEREST BECAUSE _____ AND HAS FAILED TO MEET THE REQUIREMENTS OF SECTION 3.8.3 OF THE CARY LAND DEVELOPMENT ORDINACE AND THE APPLICATION IS DENIED DUE TO THE FOLLOWING FINDINGS:

q Does not conform to the Comprehensive Plan or other adopted plans because ____________;

q Endangers the public health and safety because ______________;

q Does not enhance the successful operation of the surrounding area in its community functions or provide an essential service to the community because ____________;

q Substantially injures the value of adjoining or abutting property owners because ________________;

q Is not harmonious with the scale, bulk, coverage, density, or character of the area because _______________;

q Is not appropriately located with respect to transportation facilities, water supply, fire or police protection, waste disposal or similar facilities because __________________;

q Will cause undue traffic congestion or will create a traffic hazard or unsafe pedestrian pathway because ________________.

Oaths were administered to the following people and are attached to and incorporated in these minutes as Exhibit C: Mr. Kevin Hales (refer to Exhibit A for his oath that applied to both cases); Ms. Deborah Studer and Mr. Don Frantz. Staff’s power point presentation is attached to and incorporated in these minutes as Exhibit D.

Ms. Deborah Studer, a pastor with Glory Life International Ministries, stated they are a young, growing program that includes a multi-cultural based church community. She stated they are interested in numerous social aspects that will benefit the community, such as child development, leadership training, etc.

Mr. Don Frantz, on behalf of the Heart of Cary Association, stated they believe this proposal does not meet tests 1 and 2. Regarding test 1 (conformity), he stated the town center area plan should be the overriding plan for this area. As such, they believe it is critical for the town center to accommodate commercial uses in order to stimulate the town center area plan. This plan concludes that any additional church space in this area (other than the existing First Baptist Church and First Methodist Church) removes valuable property that may be utilized as commercial, residential or office, and will hinder the revitalization of downtown Cary.

Regarding test 2 (endanger public health or safety), Mr. Frantz stated they are concerned that the lack of parking does not meet the intent of this test. He stated it may result in people parking on side streets and creating a sight distance problem. He stated overflow parking may burden existing businesses in the area.

Mr. Frantz stated they are concerned with another non-profit use in downtown Cary