D

The following rules apply to the first quasi-judicial public hearing (07-VAR-02)

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.

· 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.

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. Variance 07-VAR-02, Parkside Town Commons
(All speakers must be administered an oath prior to speaking)
The applicant, Mr. Robert Teer, has requested approval of a variance for Parkside Town Commons, a parcel in the Alston Activity Center Concept Plan (AACCP), from the riparian buffer requirements of the Town of Cary Land Development Ordinance (LDO). The project is located at the northeast quadrant of the NC 55 and I-540 Interchange. The Town of Cary recognizes that there are instances where the riparian buffer will create undue hardship on the applicants, and in those cases Chapter 7.3.7 allows variances to be granted. This variance shall be based on documentation of practical difficulties or unnecessary hardship and documentation of the impacts on water quality cause by development within the buffers based on criteria set forth in 7.3.7 of the LDO. Council may take action. (Mr. Tom Horstman)

Parkside Town Commons Variance Request (EN08-055)
Consideration of a request for a Variance/Modification to the riparian buffer for Parkside Town Commons
Speaker: Mr. Thomas L. Horstman

From: Tim Bailey, P.E., Engineering Director
Prepared by: Thomas L Horstman, Stormwater Field Services Administrator
Approved by: William B. Coleman, Jr., Town Manager
Approved by: Benjamin T. Shivar, Assistant Town Manager

REVIEW: Parkside Town Commons, located at the northeast quadrant of NC55 and the I-540 Interchange, is asking for a Variance/Modification from the Town of Cary riparian buffer ordinance, Chapter 7.3.7 of the Land Development Ordinance (LDO). This project was submitted prior to the adoption of the Urban Transition Buffer Regulations (7.2.14). Parkside Town Commons is located in the Cape Fear river basin where the Town of Cary regulates all zones of the riparian buffer. This request for a variance is related to 50 foot sections (Zone 1-30 feet and Zone 2-20 feet) and a 100 foot section (Zone 1-30 feet and Zone 2-20 feet and zone 3-50 feet) of riparian buffer.

The applicant seeks approval to impact 2.73 acres and eliminate all zones of the Town of Cary Riparian buffer in certain areas of the Parkside Town Commons Plan. The project went through the Alston Activity Center Concept Plan (AACCP) process and the applicant was aware that the riparian buffers would be required to be preserved with the development plan or a variance would need to be approved for impacts to the buffer.

The applicant states that the variance is being requested in order to meet the desired higher density development for the Alston Center Neighborhood as called for in the AACCP, and to meet the additional required design criteria of the Town of Cary. The applicant also states that without the variance the project cannot achieve the character, general purpose, and intent of the zoning for the Alston Regional Activity Center Concept Plan.

A PDF of the applicant's application is attached to and incorporated in these minutes as Exhibit. Page 1, Page 2 and Page 3 of the sketch plan are attached to and incorporated in these minutes as Exhibit.

The Town of Cary recognizes that there are instances where the riparian buffer will create practical difficulties or undue hardship on applicants and in those cases Chapter 7.3.7 of the previous riparian buffer ordinance allows Variance/Modifications to be granted. This Variance/Modification shall be based on documentation of the practical difficulty or unnecessary hardship that would be created if the ordinance were not varied and documentation of the effects on water quality caused by the encroachment into the buffers based on criteria set forth in 7.3.7.

This Variance/Modification shall be based partly on the following criteria the explanation in support of which has been supplied by the applicant.

(1) The basic project purpose cannot be practically accomplished in a manner that would better minimize disturbance and protect water quality;

Response: Currently a ridge extends through the site parallel to NC Hwy 55 and the CXS railroad; the elevation differs by as much as 30 feet from the valley floor at NC Hwy 55 to the top of the ridge. Site grading for building pads, parking facilities, driveways, roadway alignments, earthwork balance and financial feasibility of the construction create limited opportunities for avoidance and minimization measures. A retaining wall will be constructed along the south side of O’Kelly Chapel Road at the NC55 intersection to reduce impacts to the existing intermittent stream. Another retaining wall will be constructed along the north side of O’Kelly Chapel Road by the CSX intersection in order to reduce impacts to the existing perennial stream. The project will build an approximately 0.85 mile long section of O’Kelly Chapel Road which will be a portion of the connection between two existing roads tie-in points. Because of the review process for an individual permit action, avoidance and minimization measure incorporated into the previously built projects establish the location of impacts from the new O’Kelly Road extension to be built as part of the Parkside Town Commons project.

(2) The use cannot practically be reduced in size or density or redesigned to minimize disturbance and protect water quality;

Response: The Alston ACCP requires a” Main Street” design on a portion of the site which requires building placement at the street edge and parking in the rear. The site has been designed with 2400 linear feet of “Main Street” to the north of O’Kelly Chapel Road to meet this requirement. To minimize the developed footprint in this area retaining walls have been incorporated as well as a parking garage. The retaining walls are 4500 feet in length and range up to 35 feet in height. Further increases to the wall will not decrease the development footprint and allow for the Main Street requirement.

The south side of O’Kelly Chapel Road does not have a “Main Street”, but does pose additional challenges. A destination retailer is needed to ensure the stability of the project. The destination retailer location has been proposed for this area due in part to allow for the “Main Street” design on the north end. Due to design requirements of the “Main Street”, the destination retailer cannot feasibly be located north of O’Kelly Chapel Road. Retaining walls have been used to reduce the developed footprint as much as possible, which allowed for much of the buffers to remain intact at the SW corner and the SE corner of the site. The design of the overall site has gone through several iterations in addition to using retaining walls which has helped minimize the development footprint as much as possible while keeping the character of the Alston ACCP. A subsequent design shows an attempt to move the destination retailer to the eastern corner of the site, south of O’Kelly Chapel Road and relocate an office complex to the southwest section of the project site. It was physically impossible to arrange the site in this manner and still be able to get the required parking without having structured parking on the southern side of the project. In addition, the grading required to develop the site in this manner generated excess earthwork quantities which would be required to be transported off site at a significant financial burden to the developer. Based on Town of Cary requirements for parking spaces per square foot of building space, real estate lease requirements for parking to square footage ratios, and a reduction in the total leasable square footage on site, this scenario was not feasible. A second parking garage is not economically feasible in the southern portion of the site and would not be acceptable by the retailer.

(3) BMP’s will be used if necessary to minimize disturbance and protect water quality;

(4) Impact to the riparian buffer must be minimized to the maximum extent practical;

Response: Impacts to the riparian buffers have been minimized to the maximum extent practical while the development attempts to maintain the Alston Regional Activity Center Concept Plans dictated character and density. This has been achieved by the numerous revisions to the layout of the site and by incorporating significant retaining walls into the design along the existing buffers in order to reduce the impacts as described in Section 1 above.

(5) Compensatory mitigation must be done on at least a 1:1 ratio on a square foot basis for any impacts to the Zone 3 riparian buffer. Mitigation ratios will be determined on a case-by-case basis. Additional mitigation may be required based upon the severity of impacts. Suggested mitigation ratios are listed below:

(a) 1:1 for restoration of a degraded buffer or protection of ephemeral or underground streams contiguous to protected streams;

Response: The proposed Parkside Town Commons project will impact 2.73 acres of the Town’s required riparian buffers within the Cape Fear River Basin. To mitigate these impacts, the developer has identified an area of undisturbed land tributary to Panther Creek to protect. This area totals 9.71 acres which are composed of 1.18 acres of 1:1 credit, 6.45 acres of 3:1 credit and 2.09 acres of 10:1 credit which equates to 3.54 mitigation credits. This exceeds the Town’s mitigation requirement for the impacted 2.76 acres by approximately 28%. This area will be protected against future development.

(6) The applicant must receive written approval from the Stormwater Services Manager acknowledging that these conditions have been met before any impacts to the riparian buffer shall occur;

This proposal is the second largest single impact of riparian buffers ever submitted to Town Council (2.73 acres).

As of the writing of this staff report the applicant has not received the Corp of Engineers 404 permit however the applicant has documentation, in the form of an e‑mail, which indicated this permit will be approved on October 25.

The applicant proposes to place impervious surface equal to 2.76 acres out of 7.4 acres of riparian buffer on the site. This is a 37% proposed impact of the riparian buffers on the site.

The applicant states that strict application of Chapter 7 Section 7.3.7 would conflict with the variance granted by the Division of Water Quality (DWQ) on September 17, 2007 and confirmed by the US Army Corps of Engineers (CORP) on October 4, 2007. The applicant was not granted a Variance from DWQ or the Corp. DWQ issued a 401 permit and the Corp will hopefully issue a 404 permit.

The impervious surface area of the project is 70% which is the maximum that is allowed in the Jordan Lake watershed. This will leave no room for any possible expansions and it will be up to the Town of Cary to ensure that State Watershed rules are followed.

There are 47 Best Management Practices (BMP’s) proposed for this project. With the imperviousness of the project at 70%, nitrogen production is very high. The proposed BMP’s have brought the nitrogen production to 4.73 LB/AC/YR and the Town of Cary target of 3.6 LB/AC/YR is still not being met for the project. 23 of the 47 BMP’s are proprietary, or experimental, which means that should they fail, nitrogen production would be even higher.

None of the BMP’s proposed for the site are being added to offset buffer impacts which is one of the criteria to be considered on this variance request.

The applicant will attenuate the 100-year storm on three of the proposed wet ponds and on one of the proposed constructed wetlands. This means that 43% of the site will be attenuated for the 100 year storm.

The applicant meets and exceeds the requirements for land banking for the proposed riparian buffer impacts

The variance/modification process “…is intended to provide limited relief from the [LDO] in those cases where strict application of a particular requirement will create a practical difficulty or unnecessary hardship prohibiting the use of land in a manner otherwise allowed” under the LDO. It is not intended that variances/modification be granted merely to remove inconveniences or financial burdens that the requirements of the LDO may impose on property owners in general. Rather, it is intended to provide relief where the requirements of the LDO render land difficult or impossible to use because of some unique physical attribute of the property itself or some other factor unique to the property for which the variance/modification is requested. Neither state nor federal requirements may be varied by the Town.

Standards for issuing a buffer variance are set forth in Sec 7.3.7(A) variances by Town Council.

All requests for relief from the requirements of this Section, only as they apply to zone 3 of a riparian buffer with in the Neuse River Basin or any riparian buffer Zone within the Cape Fear River Basin shall be decided by the Town Council. Banking land within the same watershed may be required. The land to be banked shall have significant water quality value, such as being contiguous to an existing flood plain, wetland, or riparian area. The land to be banked shall be preserved in a permanent conservation easement or other legal instrument whose provisions prohibit both farming and unapproved logging. This modification shall be based on documentation of practical difficulties or unnecessary hardships and documentation of the effects on water quality caused by development within the buffers as related to the following criteria. This documentation must include but not be limited to concept plan for the use of the site and data showing the impact on water quality.

Approval Criteria. The Council may approve the variance/modification only if it finds that all of the criteria below have been met

(1) The basic project purpose cannot be practically accomplished in a manner that would better

(2) The use cannot practically be reduced in size or density or redesigned to minimize

(3) BMP’s will be used if necessary to minimize disturbance and protect water quality;

(4) Impact to the riparian buffer must be minimized to the maximum extent practical;

(5) Compensatory mitigation must be done on at least a 1:1 ratio on a square foot basis for any

impacts to the Zone 3 riparian buffer. Mitigation ratios will be determined on a case-by-case

basis. Additional mitigation may be required based upon the severity of impacts. Suggested

(a) 1:1 for restoration of a degraded buffer or protection of ephemeral or underground

(6) The applicant must receive written approval from the Stormwater Services Manager

acknowledging that these conditions have been met before any impacts to the riparian buffer

1. 123.36 acres of the property is owned by Teer Associates which is requesting the variance.

3. The base zoning of the property is ORD with some IND. The property has a zoning overlay of Regional Center (RC)

After conducting a duly advertised pubic hearing and considering the application materials, testimony and evidence and the approval criteria of Section 7.3.7, I move that we DENY the buffer variance request because the applicant has not met its burden to document practical difficulty and undue hardship and has not met the approval criteria set forth in former Section 7.3.7, based on the following findings,

We find the undisputed facts # 1-8 and that applicant has not established practical difficulty or undue hardship and has failed to meet the approval criteria, specifically the applicant has not shown that:

· The basic project purpose cannot be practically accomplished in a manner that will minimize disturbance and protect water quality; AND/OR

□ The applicant proposes to develop with approximately 70% impervious surface area. Seventy percent is the maximum that can be achieved under the state’s watershed rules and the Town’s Land Development Ordinance (LDO).

□ To develop with approximately 70% impervious area, applicant proposes to encroach upon 2.73 acres of buffer and eliminate all zones of the buffer in certain locations. Encroaching upon buffer to be able to develop at this impervious surface area, or to include a ‘destination retailer, or to simply place parking is not evidence that the project cannot be accomplished in the manner required.

□ Although the applicant describes the ridge that extends through the site and differing elevations, the applicant states that issues such as grading, roadway alignments, earthwork balance and ‘financial feasibility’ of construction create limited opportunities to avoid encroachment. ‘Financial feasibility’ in the manner described is not an element that is relevant to the criteria for a variance.

□ The applicant has presented evidence that it has obtained federal or state permits to impact streams, however the permits do not address the concerns protected by the Town LDO

□ The applicant has not established that the desired higher density necessitates encroachment, nor has applicant established that the design criteria for the Alston ACCP require the level of buffer encroachment sought. No specific density is required in the Alston ACCP;

□ The applicant proposes to develop at approximately 70% impervious surface area. Under the state of North Carolina watershed rules and under Town of Cary nitrogen regulations, the applicant must install BMPs to develop at this impervious level. The number of BMPs proposed (47) are the number that are necessary to meet the watershed and nitrogen rules But they are not sufficient to satisfy the Town’s nitrogen requirements. Nitrogen will be reduced to 4.73 LB/AC/YR not the 3.6 LB/AC/YR target set by the Town. The applicant is not proposing any BMPs that are designed to minimize disturbance and protect water quality related to the buffer encroachment.

□ In proposing to totally eliminate the buffer in certain locations and to encroach upon 2.73 acres out of a total of 7.4 acres of buffer (which is about a 37 % impact of total buffer), applicant is not minimizing the impacts to the buffer to the maximum extent practical;

□ The requested variance is not consistent with the spirit, purpose and intent of the LDO because it does not protect riparian buffers, an important resource to Cary. Further, it will not promote an appropriate balance between the built environment and the preservation of open space and natural environmental resources; nor will it protect the high quality appearance, identity, and character of Cary.

□ The requested variance is not consistent with the design guidelines. The applicant was involved in the ACCP approval process, and was aware of the buffer requirements.

□ The adopted ACCP shows significant buffer preservation and an alternative illustrative diagram shows considerable preservation of buffer taking into account the road connections.

After conducting a duly advertised pubic hearing and considering the application materials, testimony and evidence and the approval criteria of former Section 7.3.7, I move that we GRANT the buffer variance request because the applicant has met its burden to document practical difficulty and unnecessary hardship and has met the approval criteria set forth in Section 7.3.7, based on the following findings,

We find the undisputed facts, and that applicant has established practical difficulty or undue hardship and has met the approval criteria, specifically the applicant has shown that: [ALL OF THE FOLLOWING CRITERIA MUST BE ADDRESSED]

√ The basic project purpose cannot be practically accomplished in a manner that will better minimize disturbance and protect water quality; AND

√ The proposed use cannot practically be reduced in size or density or redesigned to minimize disturbance and protect water quality; AND

√ BMPs will be used if necessary to minimize disturbance and protect water quality; AND

√ Compensatory mitigation will be done on the ratios required for any impacts to the Zone 3 riparian buffer

We find that the reasons set forth in the Application and the proposed motion in the worksheet are sufficient to justify granting this variance.

· The applicant must obtain all necessary federal and state permits and take the necessary steps to receive written approval from the Stormwater Services Manager acknowledging that these conditions have been met before any impacts to the riparian buffer shall occur;

The clerk administered oaths to the following individuals, which are attached to and incorporated in these minutes as Exhibit: Jose Martinez, Meredith Chandler, Tim Bailey, Larry Ballas, David George, Mauricio Castro, Victor Buchholz, Robert D. Teer, Jr., Tom Horstman, Kristi Miller, Doug Pedersem and Joy Skidmore.

ACTION: Mrs. Robison moved to recognize non-attorney testaments at the quasi-judicial hearing; Mr. Portman provided the second, and council granted unanimous approval.

Mr. Horstman of the engineering department outlined the staff report (herein). His powerpoint presentation is attached to and incorporated in these minutes as Exhibit.

Mr. Rob Teer introduced his team. He stated in 2005 his group and the Town’s planning staff embarked on a long range plan for the intersection of I-540 and NC 55. He stated the planning staff envisioned this to be a major commercial, residential and retail node. He stated a planning charette occurred and lasted 13 months, and it resulted in the Alston Regional Activity Center. He stated Teer has developed over three million square feet of space in this area since 1969. He also spoke to the qualifications of Kite Realty Group. He stated Parkside Town Commons is 125 acres located in the northeast quadrant of the Alston Regional Activity Center, which is adjacent to Research Triangle Park (RTP). He stated this will be a large scale mixed use development, and it meets the intent of the Alston Regional Activity Center Plan and conforms with all the design guidelines. He stated they will invest over 100 million dollars and provide employment for about 2500 people. He stated it will become a major service center for the RTP employees and the residents of Cary. He stated a central theme of the proposal is the main street. He stated they are requesting a variance of stream buffer impacts, and to compensate for the buffer encroachment they are buying an additional 9.7 acres of land off-site for conservation and preservation within the Town of Cary. He stated they have received the necessary permits from the NC Department of Water Quality. He stated according to his records, the Army Corps of Engineers has granted the 404 permit by default, and he has an e-mail that states this (refer to Exhibit).

Mr. Victor Buchholz, an architect working on the proposal, stated they design this type of town center all over the east coast and southeastern United States.

Mr. Mauricio Castro distributed a concept plan to council. Refer to Exhibit, which is attached to and incorporated in these minutes. He stated their design process included a series of charettes for an eight month period. He stated they thought it was important to give the town center a presence at the intersection of I-540 and NC 55, and to do so, they opened the center of the space to the corner. They sought a series of elements to have the opportunity for activities throughout. He stated the main entry houses a square, which is a good location to introduce art along with different landscape features, and buildings will front the street to create that first impression. He stated they fronted main street with buildings, and the buildings are different types. He stated the design guidelines require them to have 2400 linear feet of street, and they thought it was important to have an intersection in the middle of the street for the main activity. He stated to the north is a mixed use building, and to the south there is a series of other buildings (commercial, office, etc.) that lead to the surface parking. He stated northward to the main street terminus they have created a space that compliments the entry space (i.e., public art, landscaping, etc.), and this will also serve as another point of entry.

Mr. Buchholz stated the heart and soul of the plan is the mixed use element. He stated they are putting office over the retail, and they have a two-story scale on the south side, and across the street they propose retail with residential on top, which is four-stories. He stated they are able to achieve this density with the community parking access and the parking garage. He stated the parking garage is wrapped with residential units, so from the street no one sees a garage.

Mr. David George, a civil engineer with Kite Realty Group, stated his responsibility is to manage the engineering and architectural efforts of the project. He stated along the back of the site they show a retaining wall approximately 30 to 35 feet the entire length. He stated there is a grade change of about 50 feet in some areas, and there is a ridge along the main street. He outlined the impacts:

Mr. George stated some of the BMPs were chosen because of slope, drainage areas, site constraints, etc., and they selected the BMPs that they needed that would fit on the site. He stated the pond is designed for the 100-year storm. He stated they also have an off-site proposal, which exceeds the Town’s requirements. He stated they will offer this as part of their package. He stated they have worked hard to minimize the environmental impacts while adhering to the main street, which has a multi-use element. They have added parking structures and retaining walls where possible, and they have relocated buffers where possible. He stated they have an off-site mitigation package and have designed for the 100-year storm to minimize the impact.

Mr. Teer requested approval of the variance request. He stated they are and continue to be stewards of the environment, and they have minimized the impact of this development.

Dr. Larry Ballas is concerned with the runoff into Jordan Lake. He doesn’t understand why it is not possible to build without variances. He asked if they can make guarantees that they will not seek future variances. He asked if this request might set a precedent for development in this area. He stated this is the second largest requested variance in Cary’s history.

Mr. George replied to Dr. Ballas’ questions. He stated they have worked hard to make the site environmentally and economically viable. He guaranteed that nothing will be built on the mitigation land. He stated they have 47 BMPs on the site.

Mr. Portman asked if the planning charette resulted in a different layout or whether it showed diminished buffers at that time. Mrs. Chandler stated a master plan was created during the charette, and an alternative illustrative diagram was done to show what might happen with more rigid buffers.

Mr. Portman asked if this alternative illustrative design respects or impacts buffers. Mrs. Chandler stated it respects additional buffers, although she pointed out that the illustrative diagram and the alternative illustrative diagram are part of the appendix of the Alston plan and are meant to be two examples out of multiple examples of how the design standards could be achieved.

Mr. Portman asked if we encroach the buffer in one location but mitigate elsewhere if it results in a neutral impact on the lake. Mr. Horstman stated the ability to replace riparian buffer with land-banking and BMPs is the second best option; the best option is to leave the riparian buffer untouched.

Mr. Portman stated there are 47 BMPs on this site but nowhere close to the nitrogen targets. Mr. Horstman stated it is due to the amount of impervious area on the project.

Mrs. Robinson asked about the total impervious surface. Mr. Horstman stated based on the information presented to Town staff in the report, the impervious surface area is 70%, which is the maximum allowed.

Mrs. Robinson stated there seem to be two issues: (1) the encroachment and resulting impact on water quality of the buffers, and (2) the amount of pervious and impervious surface on the site. Mr. Horstman concurred. Mrs. Robinson would have liked to see the applicant request a variance on parking instead of buffers, because she would prefer to maintain the buffers and reduce parking. She stated parking at large box projects seems to be designed for the peak day (i.e., Christmas Eve). She stated she has rarely, if ever, been to a shopping center where all parking was taken.

Ms. Dorrel asked if all the parking presented is required by the Town. Mrs. Chandler stated it is over parked by one to three percent. She stated this would equate to between 33 to 66 extra spaces over what is required.

Ms. Dorrel expected to hear less about the plan and more about why this is the only plan.

Mr. Roseland stated there are two illustrative diagrams for the Alston plan. He asked if either proposes zero impacts to buffers. Mrs. Chandler replied no. Mr. Roseland is unclear about the ownership of mitigated land-banked property. Mr. Horstman stated a document has been created by Town legal staff, and protective covenants are recorded on the property and are filed at the courthouse. Mr. Roseland asked if the developer can donate the property to the Town. Mr. Horstman stated the document will ensure protection of the land.

Mr. Roseland stated the most significant impact seems to be O’Kelly Chapel Road, which is buffer encroachment #3. He asked if it is feasible to design the road alignment without significant encroachment. Mr. Bailey stated road alignment is set at each end. He stated the Department of Transportation (DOT) recently relocated this road to this location, and there is very little that can be done to realign it.

Ms. Dorrel stated area 1 seems to have the most parking spaces, and she asked how many are included in that buffer area. Mrs. Robinson also asked how many parking spaces are in area 4. (The applicant responded later in the meeting.)

Mrs. Robison stated headwaters are impacted, but the mitigation land proposed doesn’t include the headwater. She asked the effectiveness of the mitigation. Mr. Horstman stated they exceed the mitigation requirements. He stated preserving riparian buffers is better than replacing them with BMPs and land-banking, but there are instances where this can’t be done. He stated the council decides if this is a fair trade.

Mrs. Robison stated she assumes that the retaining wall backs up to the CSX railroad. Mr. Horstman confirmed this statement. Mr. Teer confirmed that this wall will back up to the railroad, and they are not encroaching on CSX property.

Mrs. Robison stated O’Kelly Chapel Road requires a rail crossing, and the approval would impact the viability of this road. Mr. Teer stated he is still working with the Town and the rail division. He stated a staff report will probably be taken to the December Planning and Development Committee to address this issue.

Mr. George stated they have worked through the process as much as possible and are waiting on the sketch plan to move forward. They will then bring back a developer agreement, and this is a trigger vote for this to occur.

Mrs. Robison is surprised to see how some of the proposed buildings in A1 impact the buffers. Mr. George stated they are relocating the #6 buffer on-site, and it will not be impacted. Mrs. Robison asked how the applicant will channel the water, and she asked if #6 is the only stream bed to be relocated. Mr. George stated they have decreased as much as possible to make it viable.

Mr. George stated they have undergone several cycles at the DWQ phase pertaining to wetlands on the site to create this plan. Mrs. Robison asked the severity of the impact for #6 on scale of 1 to 10. Mr. Horstman stated if the riparian buffer is destroyed, then it is destroyed and it can’t be measured on a scale of 1 to 10. Mrs. Robison stated she’d prefer that they do something different with #6.

Mayor Pro Tem Smith wants to understand what they can do to address nitrogen issues and not just learn about the site plan.

Mr. George addressed the earlier question about parking spaces in area 1 and stated there are 400 to 450 spaces. Mr. Roseland clarified that council is asking how many parking spaces could be eliminated without the buffer reductions. Mr. George replied later in the meeting.

Mr. Portman asked what percentage of riparian buffer is requested to be waived or eliminated. Mr. Horstman stated 37% of all the buffers on-site will be impacted by impervious area. Mr. Portman asked if the DWQ permit has been issued. Mr. Horstman stated the 401 permit has been issued; the 404 permit has not been issued, but the applicant has an e-mail from the Corps of Engineers that indicates that the Corps believed the permit would be either approved or approved through default on October 23, 2007. He stated he has not received anything from the applicant.

Mr. Portman asked what public good is received by allowing this buffer encroachment. Mr. Teer stated this proposal will result in 2500 jobs or more and an investment of over $100 million in tax base to the Town. He stated they have tried to respect as many buffers as possible, but the main street requirement and the O’Kelly Chapel Road alignment pose difficulties for them.

Mr. Martinez, senior project manager, stated they have received the 401 permit, and they have been granted the 404 permit by default. (NOTE: this e-mail is included in the application that is an exhibit to these minutes.) Mr. Tim Bailey of the engineering staff stated this happens with the Town on Town projects as well (the default issue). He stated the Corp will review these types of applications, and if they are comfortable with them they will often let the time expire. He stated if they are concerned with the project they will request more information.

Mr. George spoke to the earlier question about the parking spaces that would be eliminated without the buffer encroachments. He stated about 175 spaces would be eliminated in area 1 , and about 50 spaces would be eliminated in area 4 after re-routing the road. He stated the center must have an anchor if it is going to be viable. For center to be viable must have anchor. He stated it allows them to create a main street, and they must have the parking associated with an anchor.

Mr. Roseland stated there are 2.7 acres of overall encroachment, and approximately ½ acre of that is related to O’Kelly Chapel Road, and staff has shared with council that on the Town’s early illustrative plans that some encroachment was anticipated for that road. He stated the applicant has met the 100-year storm standard, and they have proposed 47 BMPs. He stated their recommended mitigation exceeds Town requirements by 28%. He stated they have received state permits. He understands the concerns and he still has concerns, but he is comfortable moving this forward with the conditions that they must obtain the federal permits, and in areas 1 and 4 they must reduce the overall parking on-site by 225 spaces and provide discretion to the planning staff and applicant as a potential solution to keep this moving forward.

Town Attorney Chris Simpson suggested that the motion be clear about the buffer encroachments and not give staff discretion. Mr. Horstman asked for clarification on whether council is looking to save riparian buffer with the elimination of the parking spaces or would council allow the riparian buffer to be impacted but move the parking elsewhere to save the pervious area. Mr. Roseland wants to save the areas recommended for parking, and he is open to hearing if they can offset that with other areas.

Mr. George stated they need an anchor and main street on the north end with buildings next to it and parking behind it. He offered to eliminate area 4 from consideration and build around that, but they need to stand by their application for area 1.

Mr. Portman asked how many acres of riparian buffer it removes from the variance request if they eliminate area 4. Mr. George replied that he does not have that information.

ACTION: Mr. Portman moved to deny the variance based on evidence heard. After conducting a duly advertised public hearing and considering the application materials, testimony and evidence of the approval criteria in Section 7.3.7, he moved to deny the buffer variance request because the applicant has not met the burden to document practical difficulty and undue hardship and has not met the legal criteria set forth in former Section 7.3.7 based upon the following findings.

Findings: We find the undisputed facts numbers 1-8 and that the applicant has not established practical difficulty or undue hardship and has failed to meet the approval criteria. Specifically, the applicant has not shown that to develop with approximately 70% impervious area the applicant proposes to encroach on 2.73 acres of buffer and will eliminate all zones of buffer in certain locations. Encroaching upon buffer to be able to develop at this impervious surface area or to include a destination retailer or to centrally place parking is not evidence that the project cannot be accomplished in the manner required. Although the applicant describes the bridge that extends through the site at differing elevations, the applicant states that the issues, such as grading, roadway alignments, earthwork balance, and financial feasibility of construction create limited opportunity to avoid encroachment. Financial feasibility in the manner described is not an element that is relevant to a criteria for a variance. The applicant has not established that the desired higher density necessitates encroachment or that the design criteria for the Alston ACCCP required the level of buffer encroachment sought. No specific density is required in the Alston ACCCP. The applicant proposed to develop approximately 70% impervious surface area under the State of North Carolina watershed rules and Town of Cary nitrogen regulations. The applicant must install BMPs to develop at this impervious level. The number of BMPs proposed – 47 – are the number that are necessary to meet the watershed and nitrogen rules, but they are not sufficient to satisfy the Town’s nitrogen requirements. Nitrogen will be reduced to 4.73 pounds per acre per year, not the 3.6 pounds per acre per year target set by the Town. The applicant is not proposing any BMPs that are designed to minimize disturbance and protect water quality related to buffer encroachment. The requested variance is not consistent with the spirit, purpose and intent of the LDO because it does not protect riparian buffers, an important resource in Cary; further, it will not promote an appropriate balance between the built environment and the preservation of open space and natural environmental resources, nor will it protect the high quality appearance, identity and character of Cary. The adopted ACC plan shows significant buffer preservation and an alternative illustrative diagram, which shows considerable preservation of buffer, taking into account the road connections. The requested variance is not consistent with the design guidelines. The applicant was involved in the ACCP approval process and was aware of the buffer requirements.

Mr. Portman isn’t happy about this motion, and he thinks there are aspects of the plan that are very good. He thinks the tradeoff is wrong.

Ms. Dorrel asked for clarification of one of the three options the motion should include. Mr. Portman clarified that the applicant has not shown that the basic project purpose cannot be practically accomplished in a manner that will minimize disturbance and protect water quality.

Mrs. Robison stated design guidelines were established with a vision. She understands that sometimes a plan needs to be changed based on reality of parameters. She knows that the 2400 streetscape frontage was difficult for the applicant to achieve. She stated perhaps the council should have allowed flexibility options, and she suggested that the council may choose to look at this again. She stated she agrees with alternate parking approaches. She would like to see a plan that does not compromise the nitrogen requirements. She stated these requirements will continue to get more strict over time.

Mrs. Robinson stated the buffers encroached upon for roadways do not concern her; rather, she is concerned about the buffer encroachments to accommodate parking. She stated if this comes back to council she hopes that buffers 3, 4 and 6 will be protected and that buffer area 1 will be encroached upon significantly less than it is in the current proposal. She understands if a small buffer encroachment is needed to accommodate the building footprint in area 1.

Mr. Roseland believes there was good faith effort to provide mitigation to exceed the Town’s requirements, and he believes there was willingness to reduce the amount of parking related encroachments. He stated it is unfortunate that council couldn’t consider an alternate approach.

Mr. Teer asked the council to allow them to withdraw this request and resubmit it to include the suggested changes proposed by council.

ACTION: Mr. Portman withdrew his motion, and Mrs. Robison withdrew her second.

ACTION: Mr. Portman moved to table this request; Mrs. Robinson provided the second; council granted unanimous approval.

2. COMPREHENSIVE PLAN AMENDMENT 07-CPA-09, Davis Drive Towns
Location: 6020 Leonard Christian Road; northwest of the Davis Drive and Leonard Christian Road intersection
Current Land Use: Low Density Residential (LDR)
Proposed Land Use: Medium Density Residential (MDR)
Acreage: 16.13 ±
Speaker: Mrs. Meredith Chandler
Proposed council action: Refer to the January Planning & Zoning Board meeting

The applicant is requesting Council approve an amendment to the Land Use Plan Map of the Comprehensive Plan for the Town of Cary to change the land use designation of approximately 16.13 acres located at 6020 Leonard Christian Road from Low Density Residential (LDR) to Medium Density Residential (MDR).

The purpose of a comprehensive plan amendment is to evaluate the appropriateness of a proposed land use and/or other issue, need, or opportunity 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 comprehensive plan amendment 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.

Applicant	Pablo Reiter PS Partners, LLC 6736 Falls of Neuse Road, Suite 201 Raleigh, NC 27615 919-422-1166 pablo@terramorecommunities.com
Agent	J. Adam Ashbaugh Withers & Ravenel 111 MacKenan Drive Cary, NC 27511 919-469-3340 aashbaugh@withersravenel.com
Acreage	16.13+/-
General Location	6020 Leonard Christian Road
Hearings / Meetings	*Public Hearing* November 8, 2007	*Planning & Zoning* January 28, 2008	*Town Council* February 14 or 28, 2008
Existing Land Use Plan Designation	Low Density Residential (LDR)
Requested Land Use Plan Designation	Medium Density Residential (MDR)
P&Z Recommendation	To be provided after P&Z meeting
Town of Cary Case Manager	Meredith Chandler 919-460-4983 meredith.chandler@townofcary.org

PARCEL & OWNER INFORMATION
Property Owner(s)	County Parcel Numbers (10 digit)	Real Estate ID(s)	Area (Deeded Acres)
Lin, Juinn Jer & Fang Chih Chen 222 Lochwood Drive West Cary, NC 27518	0744-40-7159	0013110	16.13
Total Acres			16.13

A. Land Use Plan:
This case proposes to modify the existing land use designation from Low Density Residential (LDR) to Medium Density Residential (MDR). A Land Use Plan Amendment was requested in 2000 to change the land use designation from Low Density Residential (LDR) to Office/Institutional (OFC/INS), but Council denied this request on January 25, 2001.

The Town’s Transportation Plan identifies two thoroughfare or collector roadways in the vicinity of the subject parcels:

According to the approved Parks, Recreation and Cultural Resources Facilities there is an existing multi-use trail along the western side of Davis Drive.

A payment in lieu of park land dedication may be required for residential development, in accordance with the Town’s Land Development Ordinance.

D. Open Space and Historic Resources Plan: Based on the Open Space and Historic Resources Plan (OSHRP) this site was not designated as open space proposed for conservation or as a historic resources site.

E. Affordable Housing Plan: The Affordable Housing Plan includes the following four goals which are relevant to this case:

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

	Low Density Residential (LDR)	Medium Density Residential (MDR)
Definition	1 – 3 units per acre	3 – 8 units per acre
Number of Units	16 - 48	48 – 129

Provided below are the applicant’s responses to the Comprehensive Plan Amendment Justification Questions contained in the application form. (The application questions are repeated below.) Please note that the statements below are that of the applicant and does not necessarily represent the views or opinions of the Town of Cary:

How is the proposed request reasonable? In explaining how it is reasonable, please address the following, if applicable:

1. Describe how the requested amendment is warranted due to changes in conditions, forecasts, or assumptions since the original Comprehensive Plan recommendations were developed?

Response: Current land use conditions of the area surrounding the parcel include Cornerstone Activity Center to the north, LDR to the east and west, and a mix of OI and MDR to the south. Davis Drive Elementary and Middle Schools are included in the OI to the south and are within walking distance of the subject parcel. The property fronts Davis Drive, which is a four lane thoroughfare, and contains a fairly high volume of traffic. Medium Density Residential is a more appropriate land use along Davis Drive to buffer the LDR from the current volume of traffic on Davis Drive.

2. Describe how the requested amendment is warranted due to new issues, needs, or opportunities that have arisen in this geographic area since the original Comprehensive Plan recommendations were developed?

Response: While the majority of the immediately surrounding area has been built, current and future development of the Cornerstone Activity Center directly to the north forecasts higher density and higher traffic in the ar

PRESENT ZONING:		Commercial
SETBACK:
	REQUEST:	Variance/Modification to place impervious surfaces or otherwise impact riparian buffer regulated by the Town of Cary