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

Absent: Council Member 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 (Ms. Dorrel)

Ms. Dorrel provided the ceremonial opening.

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3.   Adoption of agenda (Town Council)

The council is requested to add the following as consent agenda item B.1.c.:

Consideration of designating Council Member Julie Robison as Cary's voting delegate at the N.C. League of Municipalities Annual Business Meeting that will be conducted on Tuesday, October 16, 2007.

ACTION: Mayor Pro Tem Smith moved to adopt the agenda with the change noted above. Mr. Portman provided the second, and council granted unanimous approval.

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B.   CONSENT AGENDA (click on this link for the full text minutes of the entire consent agenda)

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 September 27, 2007, the minutes of the work session with Chatham County officials held on September 18, 2007, and the minutes of the work session on the mixed use overlay district designation held on October 2, 2007. (Approved)

b.   Consideration of reappointing Bob Hinshaw as Cary’s representative to the Triangle Transit Authority (TTA) for a four-year term ending on November 30, 2011, and receipt of a report from TTA. (Approved)

c.   Consideration of designating Council Member Julie Robison as Cary's voting delegate at the N.C. League of Municipalities Annual Business Meeting that will be conducted on Tuesday, October 16, 2007. (Approved)

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.   Comprehensive Plan Amendment 07-CPA-07, Davis Drive
Location: 3399 Davis Drive; southwest corner of Davis Drive and Morrisville Parkway
Current Comprehensive Plan: Office/Institutional (OFC/INS)
Proposed Comprehensive Plan: Medium Density Residential (MDR)
Acreage: 6.49 ±
Speaker: Mrs. Anna Readling
Planning and Zoning Board Recommendation: unanimous to approve
Recommended Council Action: Council may take final action (Approved)

b.   REZONING 07-REZ-16, Davis Grove Office Park
Location: Davis Grove Circle at Davis Drive
Current zoning: Office/Research and Development Conditional Use (ORD-CU)
Requested zoning: Office and Institutional Conditional Use (OI-CU) to permit personal services uses
Acreage: 4.95 ±
Speaker: Mrs. Debra Grannan
Comprehensive Plan Consistency: 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.
Planning and Zoning Board Recommendation: unanimous to approve
Recommended Council Action: Council may take final action (Approved)

3.   Operations Committee, October 4, 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) (Ms. Dorrel)

a.   Smoking Prohibited in Town Buildings and C-Tran Vehicles (AD08-003)
Committee unanimously recommended amending Chapter 14 of the Town of Cary Code of Ordinances to prohibit smoking in Town Facilities, including all buildings and C-Tran vehicles, and deleting Policy Statement 92 providing for smoking areas. (Approved)

b.   Funding Request for Modifications to the Gatehouse Drive/Oalry Drive Culvert Replacement Project (EN08-027)
Committee unanimously recommended that an additional $120,000 in general fund fund balance be appropriated to the GG1068 Storm Drainage – Town Properties project to fully address the culvert replacement needs at Gatehouse Drive and Oalry Drive, bringing the total project budget to $1,757,858 and the available funds for the Gatehouse Drive and Oalry Drive work to $490,214. (Approved)

c.   Utility Service to the Highcroft Village PUD  (EN08-036)
Committee unanimously recommended entering into a reimbursement contract with Impact Properties Group for an off-site sewer line to serve the Highcroft Village PUD. (Approved)

d.   FY07 Developer Agreement Update and Annual Reimbursements (EN08-037)
Committee unanimously recommended that  reimbursements by the Town, in accordance with the Transportation Development Fee Ordinance and current developer agreements, be approved and distributed from the Transportation Development Fee account. (Approved)

e.   Contract Award – Survey of Sanitary Sewer Manholes in Morrisville Flood Zones (EN08-039)
Committee unanimously recommended that Stewart Engineering be awarded a contract to survey the sanitary sewer manholes in Morrisville’s flood zones. (Approved)

f.    FY07 Water and Sewer Reimbursement Contracts Update and Annual Reimbursements (EN08-040)
Committee unanimously recommended that reimbursements by the Town, in accordance with the Water and Sewer System Extension Policy and current Water and Sewer Reimbursement Contracts, be approved and distributed from the Sewer Development Fee account. (Approved)

g.   Revisions to Standard Procedure 75 and the Finance Policy (FN08-003)
Committee unanimously recommended approval of Standard Procedure 75: Selection of Architectural, Engineering, Surveying and Construction Management at Risk Services and corresponding revisions to Section VI of the Finance Policy. (Approved)

h.   Evans Road Widening Project: Revised Condemnation Resolution (EN08-042)
Committee unanimously recommended adoption of a revised condemnation resolution related to the Evans Road Widening Project. (Approved)

i.   Amendments to Schedules (PD08-007)
Committee unanimously recommended adoption of an ordinance amendment to the Town Code Sec. 34-329. (Approved)

j.    Amendments to Schedules (PD08-008)
Committee unanimously recommended adoption of an ordinance amendment to the Town Code Sec. 34-324. (Approved)

k.    Amendments to Schedules (PD08-009)
Committee unanimously recommended adoption of an ordinance amendment to the Town Code Sec. 34-334. (Approved)

l.   FY 2008 Sidewalk Priority List (PL08-012)
Committee unanimously recommended that projects 1 through 11 of the FY 2008 Sidewalk Priority List be designed and constructed with the $1,000,000 budgeted for FY 2008.  Committee also recommended waiving the standard five-foot utility strip requirement for projects 10 and 11, where necessary due to existing site constraints, to accommodate the sidewalk on the back of curb. (Approved)

m.  Incorporation of 2007 Session Laws and Adoption of a Resolution (TC08-001)
Committee unanimously recommended incorporating Session Laws 2007-22, 2007-66 and 2007-321 into the Town of Cary Charter and adoption of a resolution to implement Session Law 2007-22 pertaining to closing-out sales. (Approved)

n.  Koka Booth Amphitheatre at Regency Park – Management Plan and Budget (PR08-008)
Committee unanimously recommended approval of the management plan and budget for the 2008 season as prepared by SMG to manage Booth Amphitheatre as follows. (Approved)

·     Approve of SMG’s Management Plan and Budget for the 2008 season;

·     Reject of SMG’s request to increase the decibel limit at the Amphitheatre;

·     Approve of reducing the Amphitheatre special revenue fund budget at October 31, 2007 for the first four months of the Town’s fiscal year 2007 to equal expenses for the same time period and returning the remaining cash flow balance to the Amphitheatre Fund fund balance which is currently expected to be $523,065;

·     Appropriate the $523,065 from the Amphitheatre Fund fund balance and the remaining amount of $453,527 from General Fund fund balance, a total of $976,592, to the respective Amphitheatre Fund accounts necessary to execute the 2008 season, with the understanding that these respective amounts may be adjusted to correspond with the actual amounts remaining at the end of October 2007;

·     Recognize a reimbursement of $221,862 from the Amphitheatre Fund to the General Fund’s Facilities Management division for the 2008 season support ($190,862 support + $31,000 special projects); and,

·     Appropriate $400,000 from General Capital Reserve unrestricted Fund Balance for the use of Crescent Kitchen Improvements.  For expenditure purposes, these funds should be budgeted within the equipment account of a newly created Crescent Kitchen capital project.

o.   NC Legislative Agenda Update (AD08-004)
Committee unanimously directed staff to proceed toward a program of reducing or rebating building permit fees for buildings which are certified as using sustainable building techniques. (Approved)

C.   RECOGNITIONS, REPORTS, AND PRESENTATIONS

There were no recognitions, reports and presentations on this agenda.

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D.   PUBLIC HEARINGS 

1.   REZONING 07-REZ-19, Old Apex Rezoning
Location: 1517 and 1521 Old Apex Road
Current zoning: Office, Research and Development Conditional Use (ORD-CU)
Requested zoning: Industrial Conditional Use (I-CU) to permit certain industrial uses
Acreage: 2.87 ±
Speaker: Ms. Jennifer Currin
Recommended council action: Refer to the December 17, 2007 Planning and Zoning Board meeting (Referred to 12/17/07 P&Z meeting)

Request

The applicant is requesting Council approve an Ordinance to amend the official zoning map of the Town of Cary for approximately 2.87 acres located at 1517 and 1521 Old Apex Road from Office, from Research and Development Conditional Use (ORD CU) to Industrial Conditional Use (I CU).

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

*The date of this meeting will be determined after the P&Z Board recommendation.  If a unanimous recommendation is made, it will go to the first meeting of the month on consent; if not on consent, it will go to the second meeting. Furthermore, if the case has a valid protest petition, it will go to the second meeting of the month as a discussion item, even if there is a unanimous recommendation for approval.

The applicant has submitted the following proposed zoning conditions:

Consistency with the Comprehensive Plan

A. Land Use Plan:  This rezoning request conforms to the adopted Land Use Plan which calls for Industrial or Office zoning for these parcels.

B.  Growth Management Plan: 
The Growth Management Plan includes the following three Guiding Principles which are relevant to this case: 

1.   R1 Guiding Principle: Ensure that adequate infrastructure and services are available concurrently with new development.

2.   L1 Guiding Principle: Concentrate growth near existing and planned employment centers and available and planned infrastructure to minimize costly service-area extensions.

3.   A2 Guiding Principle: Ensure that the overall amount of development in Cary is consistent with the Town’s growth management goals.

C.  Comprehensive Transportation Plan: 
Existing Section:  Approx. 70’ Right-of-Way, 2-lane road

Future Section:  91’ Right-of-way, 4-lane road with paved median

Road Improvements:  None scheduled

Sidewalks Requirements: Sidewalk required on both sides

Bicycle Requirements: 14’ Wide outside lanes

Transit Requirements:  None

Traffic Analysis:  Current zoning - ORD for 24,000 square feet (sf) building using Land Use code 710 - the site would generate 35.76 trips in the pm peak hour. Original proposed zoning - Industrial for 24,000 sf building using Land Use code 110 - the site would generate 23.53 trips in the pm peak hour. Revised proposed zoning - Industrial for 12,000 sf of building and Personal Service for 12,000 sf of building using Land Use code 110 for 12,000 sf and 814 for 12,000 sf, the site would generate 44.28 trips in the pm peak hour.

Therefore, based on the analysis, the revised proposed zoning would not require a TIA because it does not generate an additional 20 peak hour trips over the current zoning.

D.  Open Space and Historic Resources Plan: 
Based on the Open Space and Historic Resources Plan (OSHRP) this site was not designated as priority open space.

E.  Parks & Greenways Master Plan: 
According to the approved Parks, Recreation and Cultural Resources Facilities Master Plan there are no issues related to this site. 

F.  Environmental:  
According to the Town of Cary GIS maps, there is no impact to these parcels from stream buffers.  Should a field determination identify a stream buffer, the project will be required to comply with all buffer requirements of the Land Development Ordinance during the site plan approval process.

G.  Buffers: 
On the site plan approved on November 20, 2006 for the subject request, a 10’ Type “C” buffer was required along the western property line, a 20’ Type “B” buffer was provided along the southern property line of this subject request, except where the sewer easement is located, and a 20’ Type “B” buffer was provided along the eastern property line of the subject request.

H.  Streetscape: 
According to Chapter 7 (LDO), the applicant will be required to provide a minimum 30’ streetscape along thoroughfares and major collectors designated on the Cary Comprehensive Transportation Plan. Old Apex Road is classified on the Comprehensive Transportation Plan as a thoroughfare.

Consistency with the Land Development Ordinance

The proposed project is in the rezoning stage and therefore preliminary engineering of the site has not been provided to Staff for review.  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:

 

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:

1.      The proposed rezoning corrects an error or meets the challenge of some changing condition, trend or fact;

2.      The proposed rezoning is consistent with the Comprehensive Plan set forth in Section 1.3 (LDO);

3.      The Town and other service providers will be able to provide sufficient public safety, educational, recreational, transportation and utility facilities and services to the subject property while maintaining sufficient levels of service to existing development;

4.      The proposed rezoning is unlikely to have significant adverse impacts on the natural environment, including air, water, noise, stormwater management, wildlife and vegetation;

5.      The proposed rezoning will not have significant adverse impacts on property in the vicinity of the subject tract; 

6.      The proposed zoning classification is suitable for the subject property.

Applicant’s Justification Statement Submitted (August 30, 2007)

The following statements are provided by the applicant in response to the criteria established in the application and does not necessarily represent the views or opinions of the Town of Cary.  Any statements as to the type, quality or physical features are at the direction of the applicant and may be formulated into a condition):

1.  Any issues with the size of the tract? None.

 

2.  How is the request compatible with the comprehensive plan (i.e. Land Use, Transportation, Open Space and Historic Resources)? The Town of Cary Land Use Plan calls for office/industrial on the site, and the rezoning would not conflict with the Transportation Plan, Open Space, or Historical Resources.

 

3.  What are the benefits and detriments to the owner, neighbors and the community? The request will add personal service use to the building, which will provide viable services to local residents, i.e. drop-off drycleaners, tailors, hair stylist, dance and martial arts studios.

 

4.  How are all the allowable uses with the proposed rezoning compatible with, or how do they relate to, the uses currently present on adjacent tracts? Personal service is the only type of use that will be added to the site, while seventeen uses will no longer be available (e.g. day care center, farm market, nursing home etc.). The southern adjacent property is zoned General Commercial which allows personal service, and the northern adjacent property is zoned Office and Institutional. In conclusion, we feel the additional use will be complimentary to the surrounding properties.

5.  PDD/new or amended:  What reductions/amendments and/or modifications to the development standards of the LDO are being requested and how are they justified?  Applicants must list these items and/or clearly highlight them within the Planned Development document.

Ordinance for Consideration

07-REZ-19 Old Apex Rezoning

AN ORDINANCE TO AMEND THE OFFICIAL ZONING MAP OF THE TOWN OF CARY TO CHANGE THE ZONING OF APPROXIMATELY 2.87 ACRES LOCATED AT 1517 AND 1521 OLD APEX ROAD  OWNED BY CRESTVIEW ASSOC. OF NC, LLC FROM  OFFICE, RESEARCH AND DEVELOPMENT CONDITIONAL USE (ORD CU) TO  INDUSTRIAL CONDITIONAL USE (I CU).

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 Office, Research and Development Conditional Use (ORD CU) to Industrial Conditional Use (I CU) subject to the individualized development conditions set forth herein, and all the requirements of the Cary Land Development Ordinance (LDO) and other applicable laws, standards, polices and guidelines.

Section 3:  The conditions mutually approved by the Town and the applicant for promoting public health, safety and the general welfare are:  Airport/landing strips, car washes, commercial outdoor recreational facilities, farming, general, general industrial services, heavy equipment sales/rentals, heliports, manufacturing, heavy, motor vehicle raceways, outdoor amphitheaters, commercial, outdoor amphitheaters, public, outdoor storage, railroad stations and yards, recycling and salvage operations, resource extractions, trade schools, and vehicle filling stations shall be prohibited uses.  These conditions address conformance of the development and use of the Property to ordinances and officially adopted plans and address impacts reasonably expected to be generated by the development and use of the Property.

Section 4:  This ordinance shall be effective on the date of adoption.

Adopted and effective:  October 10 or 24, 2008*

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

Mr. J.W. Shearin of ETd, on behalf of the applicant, stated the ORD district does not allow personal service uses that support the neighborhood, but the Industrial district allows these types of uses (such as those listed in the Land Development Ordinance: dry cleaners, tanning salons, mail drop pick-up sites, dance studios, and such uses that support communities). The only way they could achieve the addition of personal service uses was to request the rezoning to Industrial use and eliminate all the heavy uses that would be allowed in the Industrial district. He stated they want to maintain all the use rights that they currently have in the ORD district and only add personal service uses. He stated they seek this flexibility to have a good mix of tenants.

No one spoke, and the mayor closed the public hearing.

Mrs. Robinson asked the uses that are allowed within the Industrial zoning district that the applicant is not eliminating. Ms. Currin stated allowable uses in the ORD and Industrial district that are not excluded include: caretakers residence, government office, public safety station, public utility facility, athletic field-public, community garden, public park, public neighborhood recreation center, religious assembly, college, major utility facility (with special use in ORD and Industrial), transportation facility, minor utility substation, indoor kennel only, indoor/outdoor kennel, vet hospital/office with indoor kennel, club, lodge or hall, bank with drive through, bank without drive through, office, business or professional office, radio or TV broadcasting studio, athletic field-private (requires a special use in ORD and Industrial), golf driving range (requires a special use in ORD and Industrial), postal center-private, personal service establishment, trade school, parking lot, vehicle repair-heavy, vehicle service-light, research laboratory, prototype process and production plant (requires a special use), antenna and co-location on existing tower, concealed antenna or tower, other building mounted antenna and towers, other free-standing towers (some require special use in ORD and Industrial), mini-storage (requires special use in ORD), warehousing and distribution, and wholesale establishment.

Ms. Dorrel asked if sexually oriented businesses would be prohibited in the proposal. Ms. Currin stated this use is not permitted in the Industrial district.

Mrs. Robison is concerned about the potential for antenna towers.

Mr. Shearin stated it is their intent to only carry over existing uses today that are allowed in the ORD district to the Industrial district with the addition of personal services. He stated he will be happy to look at eliminating any uses for which the council is concerned. Mr. Shearin stated they will limit any potential personal service user to 12,000 square feet, because they want to maintain the appropriate parking mix and buffers without requesting any variances.

ACTION: Referred to the December 17, 2007 Planning and Zoning Board meeting

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2.   REZONING 07-REZ-21, Weldon Ridge Planned Development District (PDD) Amendment
Location: Southwest of the New Hope Church and Yates Store Roads intersection in Chatham County
Request: to remove a portion of the school site and add single-family units
Acreage: 47.7 ±
Speaker: Ms. Jennifer Currin
Recommended council action: Refer to the December 17, 2007 Planning and Zoning Board meeting (Referred to 12/17/07 P&Z meeting)

Request

The applicant is requesting Council approve an Ordinance to amend the official zoning map of the Town of Cary for approximately 47.7 acres located southwest of the New Hope Church Road and Yates Store Road intersection, in Chatham County, from Weldon Ridge Planned Development District (PDD) to Weldon Ridge PDD Amendment to permit the conversion of a portion of the approved school/church site to single-family residential.

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

*The date of this meeting will be determined after the P&Z Board recommendation.  If a unanimous recommendation is made, it will go to the first meeting of the month on consent; if not on consent, it will go to the second meeting. Furthermore, if the case has a valid protest petition, it will go to the second meeting of the month as a discussion item, even if there is a unanimous recommendation for approval.

The applicant has submitted the following proposed zoning conditions: The applicant is not proposing any conditions outside the existing PDD document.