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DRAFT (Contact the town clerk at 919-469-4011 for official minutes)
Cary Town Council Minutes
These minutes are divided into sections because of the length of the document. Click on the links herein for full text minutes of each section. Graphics, images and exhibits are not included in these draft minutes, but they are included in the official minutes in the town clerk's office.
Present: Mayor Ernie McAlister, Mayor Pro Tem Jack Smith, Council Members Marla Dorrel, Julie Robison and Nels Roseland; Council Members Ervin Portman and Jennifer Robinson arrived late, and their arrival times are noted in the minutes.
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)
Mayor McAlister announced that the applicant requests that council remove item B.2.a., Center for Caring (Hospice of Wake County) Request for Waiver of Thoroughfare Improvements (EN08-024), from this agenda and reschedule it for the September 11, 2007 council meeting.
ACTION: Mrs. Robison moved to adopt the amended agenda (includes removing and rescheduling item B.2.a., Hospice); Mayor Pro Tem Smith provided the second; council granted unanimous approval. (Council Members Portman and Robinson were absent for this vote.)
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B. CONSENT AGENDA (click on this link for the full text minutes of the consent agenda items)
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 H on this agenda)
a. Consideration of approval of the minutes of the regular town council meeting held on August 9, 2007, and the minutes of the council work session held on August 7, 2007. (Approved)
b. Consideration of approval of suggested improvements to the reclaimed water system standard specifications and details. (Approved)
c. Consideration of approval of the August 2007 tax report. (Approved)
d. Consideration of adoption of certificates of sufficiency and resolutions calling for public hearings on the following citizen initiated annexation.
a.
ANNEXATION PETITION 07-A-22
(Approved)
b.
ANNEXATION PETITION 07-A-24
(Approved)
c.
ANNEXATION PETITION 07-A-11
(Approved) 2. Planning and Development Committee, August 16, 2007 (any committee consent agenda item pulled for discussion will be discussed at the end of the committee discussion portion of the agenda, which is item G on this agenda) (Mrs. Robison)
b.
Establishing a Train Horn
Quiet Zone
(PL08-001)
c.
Steering
Committee Appointment for NCDDA
Downtown Technical Assistance Team visit
(PL08‑008)
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Council Member Jennifer Robinson arrived at 6:34 p.m.
Council Member Ervin Portman arrived at 6:37 p.m.
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C. RECOGNITIONS, REPORTS, AND PRESENTATIONS (this actually occurred after agenda item D.1.; the entire council was present)
1. Recognition of visitors from Cary's sister city in County Meath, Ireland. (Recognized)
Mayor Pro Tem Smith recognized the visitors from Ireland, who presented a County Meath flag to the Town of Cary.
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D. PUBLIC HEARINGS (click on this link for the full text minutes of the public hearing items) 1. Silverton/Brier Ridge Development
a.
REZONING 07-REZ-13, Silverton Planned Development District Amendment
b.
MIXED USE SKETCH PLAN 07-MU-004, Silverton/Brier Ridge
2.
REZONING 07-REZ-16, Davis Grove Office Park
3.
LAND USE PLAN AMENDMENT 07-CPA-08, Koppers Road Development
4.
REZONING 07-REZ-17, Koppers Road Development
5.
MIXED USE SKETCH PLAN 07-MU-03, Harrison Avenue Apartments
6.
Land Development Ordinance Amendments
Speaker: Ms. Jennifer Currin Proposed Council action: Refer to September 17, 2007 Planning and Zoning Board meeting (Referred to 9/17/07 P&Z meeting)
7.
ANNEXATION PETITION 07-A-23 E. PUBLIC SPEAKS OUT (see official minutes)
Mr. Basavana Goud stated he sent a long e-mail to council on July 17, 2007 with comments about the Crosland traffic study. He urged the council to take some time to read this e-mail. He thinks the study is inaccurate in that he does not believe the traffic will be improved after the development. He would like Engineering Director Tim Bailey to provide him with additional information about this traffic study.
Mr. Joe Ciulla stated residential development in Cary has skyrocketed since 2003. He asked why the council is just now considering land-banking for schools. He stated land-banking will not even make a dent in the county-wide school capacity shortage. He stated land-banking will be just a very small start to whatever needs to be done to correct the problem. He stated a school adequate public facilities was repealed in 2004; he stated if it was a bad idea in 2004, then people will want to know why it is a good idea in 2007. He questioned if new development will pay for itself without additional existing taxpayer support. He stated other municipal elected officials in Wake County have been very active in supporting their citizens on school issues, but Cary has not done this. He wants to know why. He finds it interesting that the land-banking issue is coming up six weeks before the election.
Mr. Ed Rinker stated there is a registered sex offender in his neighborhood, and just three days after committing a sex crime against his granddaughter he transferred his property ownership from joint to sole ownership in his wife’s name. He stated this offender pled guilty to the crime just days before the governor signed into law Bill 1896, which prohibits sex offenders from living within 1000 feet of a school. He stated this man is grandfathered, which allows him to live in proximity to the greenway, a bus stop, an in-home daycare center, two schools, and a park. He stated a study has shown that homes within 1/10 of a mile of a sex offender drop about 17% in value. He stated another study shows these same homes to be worthless. He stated a recent home sale in his neighborhood was dropped by $35,000 because of the nearby sex offender. He stated the only person in his neighborhood who can sell their home at full value is the registered sex offender. He stated the mayor of Marlboro, Massachusetts drafted legislation and signed it into law, which he believes is the toughest sex offender legislation in the country.
Mr. Brent Miller cited a recent instance that the dynamic message signs were not utilized, and he was told by staff that there were no signs in the vicinity of the accident. He stated when council approved these signs it was noted that they were set up in gateways into Town to warn motorists of accidents or congested areas. He stated one of the primary goals of the system was to provide timely, regional information to motorists. He stated the Town spent ½ million dollars on these signs and doesn’t use them. He thinks that with an election in the near future that the council members do not want to use the signs to draw attention to traffic problems and to the signs that are not useful. He urged the Town to either use the signs or do away with them.
Ms. Lauri Rinker requested that council establish a task force to study how to strengthen sex offender laws.
Ms. Stephanie Mood stated the registered sex offender in her neighborhood lives within 1000 feet of two schools, an in-home childcare center, three town park facilities, and a community playground; in addition, she stated the greenway runs through his back yard. She stated she is a mother of three young boys, and she is gravely concerned with this situation. She asked the council to form a task force to study how they can aid Cary citizens.
Mr. Al Cohen concurred with Mr. Portman that council needs the authority to stop a zoning action without it going through the full process. He thinks there is an opportunity for process improvement.
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F. LAND DEVELOPMENT DISCUSSION ITEMS (any item pulled from the land development consent agenda for discussion [item B.2. on this agenda] will be discussed during this portion of the agenda)
1.
REZONING 07-REZ-01, Evans Estates Phase 2 Request
The applicant is requesting Council approve an Ordinance to amend the official zoning map of the Town of Cary to change the zoning of approximately 17.87± acres located at 110, 120, and 160 Anita Way from Residential 40 (R40) to Residential 12 (R12)
The purpose of a rezoning is to evaluate the appropriateness of a proposed land use for the subject parcel(s) of land. Specific development requirements related to the technical aspects of land development, such as access, stormwater management, road improvements, utility line placement, road connectivity and landscape plantings, are not considered during the rezoning process. However, all of these development issues must be addressed for compliance with existing requirements specified in the Land Development Ordinance (LDO) when the site or subdivision plan is submitted.
Background Information
*Cases with a valid protest petition, or if not recommended by the Planning and Zoning Board unanimously for approval, will be presented at the second Council Meeting.
Property Notification On February 20, 2007, 65 property owners within 400’ of the subject property were notified by mail of the rezoning request. The case was advertised in the Cary News on February 21 and 28, 2007 and the property was posted in compliance with Cary’s Land Development Ordinance requirements.
Changes since the Public Hearing
One protest petition has been withdrawn, yet the overall protest remains valid.
School data was updated to reflect the most current enrollment statistics from Wake County. The Comprehensive Land Use Plan was amended on June 28, 2008 to change the Land Use designation from Medium Density Residential to Low Density Residential.
Feedback at Public Hearing Staff presented the request and reported that there is a valid protest petition and approval of the rezoning request will require a super majority vote by Town Council.
The applicant, David Ward, explained that the goal of the owners of the subject property was to allow larger lots as part of this phase of Evans Estates. Several citizens spoke in support of the request. Mr. Bruce Brown, president of the Evans Estates HOA reported that out of 52 homeowners, 22 responded to a survey regarding the proposed rezoning. Of the 22 who responded, 20 were in favor of the request and 2 were opposed. Mr. Brown also noted that many residents who supported the rezoning also expressed concerned about construction traffic impacts.
Two citizens citied concerns about traffic and inquired about applying off-site road improvement conditions to this case.
Two Council Members also inquired about adding zoning conditions and Staff explained that the request was not a conditional use case. Council also expressed a desire to see a recreation opportunity, such as a tot-lot incorporated into this development. .
The Engineering Staff reported on the status of ongoing road improvement plans for Evans Road, and targeted an approximate completion time frame of two years.
Feedback by the Planning and Zoning Board
Several Planning and Zoning Board members confirmed with Staff that conditions regarding connectivity could not be attached to a straight rezoning case. Staff reminded the Board that connectivity is an ordinance requirement and that this would be evaluated at the time of site plan review.
Planning and Zoning Board Recommendation: At their meeting on July 16, 2007, the Planning and Zoning Board voted 6-0 to forward this case to the Town Council with a recommendation of approval because the proposed rezoning is consistent with the Comprehensive Plan, and is reasonable and in the public interest as indicated in the staff report.
Changes since the Planning and Zoning Board: None
summary
Staff has reviewed the application and information provided. The request proposes a use that is less intense than the existing uses to the south, east and north of the subject property and identical to the uses to the west. Although zoning conditions are not associated with this request, Cary’s Land Development Ordinance creates the opportunity to hold future development plans to high standards. For example, single family lots may not be platted in stream buffers, our Engineering Staff will evaluate the feasibility of road connectivity, and the applicant will be obligated to make a recreation payment for each new lot the amount being equal to the fair market value of 1/35 of an acre for this land.
The request for R12 Zoning will add to the pattern of integrated uses established in this general vicinity and provide for a low impact transition to existing neighborhoods.
Staff finds that the request is consistent with the goals and objectives of the Comprehensive Plan and the Land Development Ordinance and is reasonable and in the public interest.
Consistency with the Comprehensive Plan
A. Land Use Plan: This rezoning request conforms to the adopted Land Use Plan which designates this area as Low Density Residential. This designation was amended from Medium Density Residential by Town Council under case 07-CPA-01 on June 28, 2007.
B. Transportation Future Section: 2-lane residential, 50’ ROW Road Improvements: None scheduled Sidewalks Requirements: on at least one side of all streets Bicycle Requirements: N/A Transit Requirements: None required Traffic Analysis: A Traffic Impact Study is not required since the density is less than 2.175 per acre.
C. Parks & Greenways: A recreation payment-in-lieu will be required for any subdivided residential lots in accordance with the Town’s Land Development Ordinance. 6’ wide private, paved spur trail(s) will be required to provide connection(s) to the Black Creek Greenway. Number (depending on site layout) and exact location of private trail(s) will be determined at plan review.
D. Environmental: According to the Town of Cary GIS maps, there is a stream buffer on a portion of this site. The project will be required to comply with all buffer requirements of the Land Development Ordinance during the site plan approval process.
E. Buffers: According to Chapter 7 of the Land Development Ordinance, the applicant will be required to provide a 20’ wide landscaping area planted to Type “B” Buffer standards between this use and the adjacent Class 2 uses. This may be located within the platted portion of a lot.
F. Streetscape: N/A; Not located along a thoroughfare or major collector roadway.
Consistency with the Land Development Ordinance
The proposed project is in the rezoning stage and therefore preliminary engineering of the site has not been done. Prior to Site Plan or Subdivision Plan approval, the application will be required to demonstrate consistency with the Land Development Ordinance with respect to specific development requirements, such as access, stormwater management, road improvements, utility line placement, road connectivity and landscape plantings.
Existing and Requested Zoning District Comparison:
* This number does not take in to consideration land area that must be reserved for public right of way, or buffers.
Town Council Criteria for Consideration in Reviewing Rezonings:
Section 3.4.1(E) of the Land Development Ordinance sets forth the following criteria that Council should consider in reviewing rezonings:
Other Reference Information
Schools
The school information is being provided for your
review; however, the Wake County
* Current Enrollment and Building Capacity is based on the 20th day of the school year for 2006-2007 as supplied by the Wake County Public School System. School assignment will be determined at the time of development.
* The Projected Number of Additional Students is only a rough approximation. The actual number of students will vary depending on several variables, such as dwelling unit type, number of bedrooms, dwelling size, and other factors. For example a site with 64 three bedroom dwellings could yield 27 additional students, while 64 homes with four or more bedrooms could yield 49 students. The basis for making this calculation is based on multipliers provide from Wake County Schools Office of Student Assignment. At Rezoning, student yield can not be accurately determined due to unknown variables.
Ordinance for Consideration 07-REZ-01 Evans Estates Phase 2 (General Use District) AN ORDINANCE TO AMEND THE OFFICIAL ZONING MAP OF THE TOWN OF CARY TO CHANGE THE ZONING OF APPROXIMATELY 17.87 ACRES LOCATED along 110, 120 and 160 Anita Way owned by Ray Joseph Bailey, Carolyn Bailey Haith and Constance Bailey Colby FROM Residentail 40 (R40) TO Residential 12 (R12) . BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF CARY: Section 1: The Official Zoning Map is hereby amended by rezoning the area described as follows:
Section 2: That this Property is rezoned from Residential 40 to Residential 12 subject to all the requirements of the Cary Land Development Ordinance (LDO) and other applicable laws, standards, polices and guidelines. Section 3. This ordinance shall be effective on the date of adoption. Adopted and effective: August 23, 2007
Staff’s powerpoint presentation is attached to and incorporated in these minutes as Exhibit. There is a valid protest petition filed on this case.
Mrs. Robison asked what happens at site plan if there is not another connection and it’s deemed that the topography won’t allow the connection. Mrs. Grannan stated the site plan could be administratively approved if the planning and engineering directors deem it warrants approval. She stated connectivity is the standard and the goal, but she stated there are cases where it is impractical. Mrs. Robison would like more assurances that this connection could take place to Evans Road. Mrs. Grannan stated staff will need a site/subdivision plan and would need to ask the applicant to make an attempt to get approval from the Division of Water Quality (DWQ) to make the connection. If not approved by DWQ, then staff would need to see formal evidence of that.
Mr. Roseland thinks the most we can require is a stub-out where there property ends. He asked if there is an example anywhere in Cary where we required connectivity through a different property owner’s property. Mrs. Grannan stated she will have to do some research to determine an answer to this question.
Mr. Roseland asked if secondary road access to this development is a public safety issue that the council should debate during rezoning or if it is a simple site plan detail that is an administrative function that the staff reviews. He stated this is a 64 unit cul-de-sac routed through an existing neighborhood with 53 units through one single road connection. Mrs. Grannan stated 64 is the maximum number of units based on gross density and does not consider stream buffers, right of way, etc. She stated the average density would be 2.5 units per acre, and at the most it would accommodate 45 lots. Mr. Roseland stated any of these policies could change at any time (i.e., stream buffers, setbacks).
Mr. Roseland stated since the public hearing the applicant has met with people who filed the protest petition, but he has not held meetings with the entire neighborhood. He stated he has met with the neighborhood and the developer and they have discussed connectivity options (ranging from speed humps to connectivity).
Ms. Dorrel stated many of the issues raised at this time cannot be answered now, and this applicant does not have control over the stream buffer. She stated the applicant has been held hostage by circumstances beyond his control, and she does not think this is right. She stated the neighbors agree that they like the R-12 rezoning, but their concern is about the construction traffic and additional traffic that will be routed through the neighborhood. She thinks this is an issue regardless of the zoning.
Mr. Portman asked about the associated comprehensive plan amendment. Mrs. Grannan stated the comprehensive plan amendment from medium to low density residential has already taken place, and the applicant was hesitant about this because he knew if the rezoning was not approved, then he would lose the potential for a more intense development on the site.
Mr. Portman asked if there is dedicated right-of-way to develop the portion to the west of the stream buffer. Mrs. Grannan stated the right-of-way was put in place but the roads were not in place at the time of the gift lot. She stated at the time of building permit the Town would require that the development meet the emergency vehicle access requirements. Mr. Portman stated it sounds as though they will have to have approval to cross the stream or the land cannot be developed without the road. Mrs. Grannan stated there are a couple of locations in Cary that just meet the minimum standards for emergency vehicle response (i.e., gravel roads). Mr. Bailey added that they do not have the option to not develop the property, because with a subdivision plan, they must subdivide the entire tract and they cannot hold a piece for a later date. He stated the subdivision process would require access to the property.
Mr. Portman stated these issues exist with any zoning, and are not contingent on this council decision. He thinks there is the option later this evening to request staff to bring the subdivision plan to council for approval in the future. Town Attorney Simpson suggested two motions if council wishes to take this action.
ACTION: Mr. Portman moved to approve 07-REZ-01; Ms. Dorrel provided the second.
Mrs. Robison asked about tying the two issues to the rezoning. Town Attorney Simpson stated this is not a conditional use zoning, so it’s not appropriate to condition it.
Mr. Roseland stated the council can only vote down a site/subdivision plan if the applicant is asking for a variance. Mrs. Simpson stated a site/subdivision plan is administrative for staff and council and is not discretionary if it meets all ordinances.
Mr. Roseland asked about connectivity requirements if the proposal exceeds 100 houses. Mrs. Grannan stated the ordinance calls for two connections if it is 100 houses or greater. Mr. Roseland stated if the DWQ permit is granted, then the current Code cannot require a second connection if the development is less than 100 units. Mrs. Grannan stated the Town would seek the second connection in the public interest; she stated the fire department would be a part of the review process. She stated staff has some discretion to take topography into consideration if the development is less than 100 homes. She stated there are some subdivisions that do not have multiple connections.
ACTION: Vote was called for on the motion to approve. Mr. Roseland and Mrs. Robison voted “no.” All others voted “aye.” The motion failed for lack of super majority vote.
ACTION: Mr. Roseland moved to waive the one-year waiting period to allow the applicant to come back within that time period. Mrs. Robinson provided the second, and council granted unanimous approval.
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