Land Development Ordinance, Round 8 Work Session
Mayor
McAlister called the meeting to order at
Present:
Mayor Ernie McAlister, Mayor Pro Tem Jack Smith, Council Members Jennifer
Robinson and Nels Roseland.
Council
Members Marla Dorrel and Julie Robison arrived late and their arrival is noted
in the minutes.
Planning
Director Jeff Ulma stated that council requested at the December 14 meeting that
a work session be held to discuss the Land Development Ordinance round 8
amendments before continuing with the process.
(Staff’s PowerPoint Presentation is attached to and incorporated herein
as Exhibit A; a copy of the proposed
LDO amendments is attached to and incorporated herein as Exhibit B.)
Minor
Amendments
Jennifer Currin of the Planning
Department provided a summary of minor amendments which include rezoning process
changes, mixed use sketch plan requirements.
Mrs. Robinson stated that she
met with developer focus group representatives who had concerns about the LDO
changes. (A copy of the
Mayor McAlister stated that he
is comfortable with staff’s proposal and he asked other council members for
their comments.
Mr. Roseland said that the
staff recommendation in the report gives the impression that staff is advocating
for the party bringing the item forward. He
questioned whether there is a differentiation in the staff recommendation about
administrative versus policy findings. He
said there are also legal issues involved if council denies something where
staff said it complies with the plan. Mr.
Ulma said that the comprehensive plan is a policy document adopted by council.
He said every rezoning case would be evaluated from that broad general
policy perspective, and the compliance statement would be whether staff believes
that it complies with the adopted policies.
He said there’s always the possibility that council may not agree with
staff’s perspective.
Mr. Roseland said that council
sets policy and staff should not make policy findings.
Mayor Pro Tem Smith said that he likes having the statement from staff.
He wants staff to state whether it complies with policy and then council
can make the judgment of whether it fits. Mr.
Roseland said that he is okay with technical findings and analyses, but he wants
to ensure that there is a balance between technical and policy advice.
Council members agreed to move forward with staff’s recommended
changes.
Ms. Currin reviewed the mixed
use sketch plan requirements clarifications, grammatical and reference
corrections.
Mrs. Robinson said that the
developer focus group thought that the changes made in the mixed use sketch plan
in round 7 were the right level of scrutiny and they would like to see the round
7 requirements used and applied before amending it further with round 8.
She said the problem is that oftentimes the person who owns the land and
takes it through the rezoning process is different from the person or company
taking it through the site plan level. They
felt that the level of scrutiny proposed pigeon holes the property.
The group’s request is pull this item from the round 8 amendment and
evaluate it further with the developer focus group in tandem with the council.
Mrs. Robinson said that as the
stakeholders directly affected by the amendments, the developer focus group
would like to be acknowledged as an advisory board and ensure that what’s
being done doesn’t have unintended consequences.
Mayor McAlister suggested that the role of the developer focus group be
set aside for a later discussion.
Mr. Ulma said that the
ordinance spells out items that council would like to see illustrated with a
mixed use sketch plan. The items in the table are a check list of submittal
requirements to help identify how one meets the key parts of the mixed use
sketch plan.
Mrs. Robinson said that the
focus group felt like that the check list required them to speculate and commit
to things they could not do at the mixed use sketch plan level.
Mr. Matthys responded that the items went from 8 to 44 and those are the
things you would expect to find on a plan. He
said that the level of detail only applies to the portion of land under their
direct control, the rest of it is conceptual.
Staff also amended some language about protest petitions being on the
portion of land under the applicant’s direct control.
Mr. Ulma added that the purpose of the sketch plan is an illustration of
how the land is to be developed.
Mrs. Robinson said it would be
helpful for staff and the focus group to meet, talk about the check list in more
detail, flush out their concerns, and follow up with council on the outcome of
the conversations.
Mayor McAlister asked if the
recommendations in round 8 clarify what is already in round 7.
Mr. Ulma responded yes; the check list provides pieces of
information for staff so that they can evaluate whether the ordinance
requirements are being met. The
checklist is not in the ordinance.
Mr. Roseland said a detailed
checklist is needed for dense apartment proposals, but for true mixed use
proposals he would encourage more flexibility.
Mr. Matthys said the checklist isn’t part of the LDO language.
He said staff did meet with the developer focus group and scaled back the
list because of the group’s concerns. He said that staff would be happy to
meet with them again if that is the council’s direction.
Mayor McAlister said that staff should spend some more time with the
developer focus group to alleviate the confusion.
Mrs. Robison arrived at this
point in the meeting at
Mr. Matthys asked if
council’s direction is for staff to completely pull the mixed use sketch plan
check list or work with the developer focus group as the item moves on to the
Planning and Zoning Board. Mrs.
Robinson stated that staff should keep working with the focus group and move the
item forward to P&Z, but if staff finds that it has unintended consequences
bring the information back to council so that they can make an informed decision
at that time. Mayor McAlister added
that it should be left as an open issue and staff should be prepared to provide
information on the outcome of meetings with the focus group when it comes back
to council for approval. Mr. Matthys
confirmed that council agrees to move the item forward to P&Z and that staff
will continue to work with the developer focus group on their concerns.
Stormwater
Management
(Urban Transition Buffers--section
7.2.14, Illegal Discharge--section 7.3.8, Flood Damage Prevention--section 7.5)
Tom Horstman of the Engineering
Department reviewed the urban transition buffers.
He said that for all practical purposes the uses of the buffers are the
same. The big change is in the
concern with the process and who hears variances. Since
it falls under the zoning code ordinance staff followed the process in the
ordinance.
Mrs. Robinson asked if a
variance exceeding 15 percent goes to the Zoning Board of Adjustment.
Mr. Horstman responded yes. He
said that anything between 10-15 percent would go to council for a modification.
Mrs. Robison asked about the
rationale for the percentages. Town
Attorney Christine Simpson said they are arbitrary numbers.
Staffed looked at the history of granting variances to see the norm and
that’s how they reached the 15 percent number.
Mrs. Simpson said that riparian buffers were always under the Town’s
zoning authority. The recommended
change is an attempt at clarification because the court of appeals misunderstood
the authority and thought that it was done under the state’s water quality
authority instead of the Town’s authority.
Mrs. Robison asked about the
decision making process under the current rules.
Mrs. Simpson said that any modification to the buffer rules would go to
the full council. Mrs. Robison asked
about the impetus for the change and the option for administrative approval.
Mrs. Simpson said the intent is to be more consistent with other zoning
decisions where modifications are granted to other provisions in the LDO at a
staff level. She said they are also
quasi-judicial decisions which have a burden on council for following procedural
rules. The purpose of the change is
to minimize the burden.
Mrs. Robison asked if any
request for a variance over 15 percent would be a quasi-judicial hearing.
Mrs. Simpson said yes; council would have to make findings.
Mr. Roseland, Mrs. Robison and
Mrs. Robinson stated that they liked the current appeals process.
Mayor McAlister said that he is hearing from council members that there
isn’t overwhelming support for a change in the process; there isn’t a
concern that it’s broken. Mayor
McAlister suggested moving the item forward with a notation that the council
questions the need for it. Mrs.
Robinson, Mr. Roseland and Mrs. Robison agreed that they have a problem with the
proposed appeal process, not the transition with the zoning categories.
For clarification purposes and
after hearing no dissent from council members, Mayor McAlister stated that
council’s recommendation is to make the zoning change and revamp the
recommended appeals process (keeping it the same) to mirror the current appeals
process.
Terry Warren of the Engineering
Department reviewed the illegal discharge processes, stating that as part of the
permit process the Town is required to have an ordinance. The
changes are proposed to bring the Town into compliance with the regulations.
Mayor McAlister asked if council had any questions or concerns; after
hearing no dissent from council members he instructed staff to move forward with
the changes.
Mr. Warren reviewed the flood
damage prevention ordinance amendments. He
said that the only counties in the state that have future conditions flood
hazard areas identified on their flood maps are Wake and
Mr. Roseland asked about the
annual impact to the Town. Mr.
Warren said that unless the development community applies for a permit in the
flood plain there isn’t any impact.
Mrs. Robinson asked who
pays out the $30,000 grant. She also asked how a structure is brought into
compliance. Mr. Warren
responded FEMA pays out the grant. He said that there are three options for
compliance: elevate the building,
flood proof it, or tear it down.
Mrs. Robison asked about the
practical output of the ordinance amendment.
Mr. Warren said it keeps the Town in good graces with FEMA.
The Town doesn’t have a flood insurance program—it’s with FEMA—and
in order for citizens to participate in the flood insurance program the Town has
to adopt minimum regulations.
Conservation
Residential Overlay
(Net vs. Gross Acreage for Calculating Density--(section 4.4.3, Curb &
Gutter--section 4.4.3, Sidewalks and Multi-Use Trails--section 4.4.3)
Ms. Currin reviewed the
recommended changes to the conservation residential overlay district.
Mrs. Robison asked if there are
specific areas where the changes would apply.
Ms. Currin responded in the southwest area.
Mrs. Robison asked how much
land would be impacted, about the savings in open space, and what happens with
the higher density. Ms. Currin said
that the intent of the ordinance is to protect the open space along the
collectors and thoroughfares so that they retain the rural character and view
shed. She said it gives the
appearance on the outside of remaining rural while achieving a higher density
internally.
Mrs. Robinson said that the net
density verses the gross density matter is the primary concern of the developer
focus group with the LDO amendments. She
stated that an impetus for the change was council’s concern about the net
density on the developable land versus the gross density for the entire project.
She said the change from net to
gross density actually further penalizes land parcels that already have a
significant portion of the site consumed by unusable land.
She said that the focus group felt it doesn’t meet the intent of what
council is trying to achieve—that development respects the rural area.
Mrs. Robinson recommended that staff, council, and the developers get
together to talk about what council is trying to achieve and how to go about
doing it. She said it may require
that council seek authority that they don’t already have, in which case it
needs to be a public/private effort to get that authority.
Her recommendation is to pull the item out of the round 8 amendments and
study it further.
Mrs. Robison asked what
legislative authority may be needed. Mrs.
Robinson responded some grading authority because council doesn’t have the
ability to restrict clear cutting; she’s not sure of the authority for mass
grading. She said they are trying to
encourage preservation of more land along the corridor.
Mayor McAlister asked what
needs to be done to address the issue before round 9.
Mrs. Robinson said that the stakeholders can help council achieve
what they want to achieve and provide direction on how do it.
She said the developer focus group needs to be stepped up to be more of
an advisory group.
Ms. Dorrel arrived at this
point in the meeting at
Mayor McAlister asked if Mrs.
Robinson was suggesting a more intense developer focus group on this specific
item. Mrs. Robison said it should be
a collaborative effort with the council and she suggested another work session
or focused discussion. Mrs. Robinson
said they need to select council members to work with the stakeholders and staff
on this issue.
Mrs. Robison and Mayor Pro Tem
Smith questioned what happens in the interim.
Mr. Roseland said one option would be to hold the amendment until the
groups sort out a preferred option; another option would be to move forward,
have staff provide a safety valve, and make sure there are provisions to come
back to council to ask for variances, etc. He
suggested they move forward but said there needs to be an opportunity for
appeals.
Mr. Ulma said that staff
considered sending all subdivision plans exercising that option to council as an
interim measure. Mrs. Robinson said
that would be beneficial. She said
it would help familiarize council with the issues in the southwest area.
Mrs. Robison suggested another
tour of the area. Mrs. Robinson said
they also need to be open to density bonus incentives.
Mr. Ulma said when the southwest plan was done many of the developers and
the focus group worked with staff to test sites and parcels that had no
encumbrances with flood areas or riparian buffers.
They tried to test the approach on real parcels, real numbers, and real
development opportunities.
Mrs. Robison, Mr. Roseland and
Mrs. Robinson suggested moving the item forward as an interim measure until
better solutions can be found. Mr.
Ulma said that staff already has the capability to send any development plan to
council for review. He said it can
be handled using the authority currently in the LDO.
For clarification purposes,
Mayor McAlister stated that this item is not to be included in round 8,
everything comes through council. Mrs.
Robison, Mr. Roseland and Mrs. Robinson agreed.
Ms. Dorrel asked what the
decision-making will be based on during the interim phase.
Mr. Ulma said the southwest plan and the existing ordinance.
Mr. Roseland said they are
looking at Town zoning based incentives to preserve open space and he’d like
to look at financial tax credit incentives—a program to provide some type of
tax break.
Ms. Dorrel asked if it is the
council’s consensus that the proposal doesn’t serve the purpose they are
trying to achieve. Mayor McAlister
responded he wouldn’t say it’s a consensus. He said that council’s concern
is that it doesn’t get them there and some of them are not ready at this point
to move forward. He said they would like to work with it for a while before
having it implemented.
Ms. Dorrel asked how that
would be done. Mrs. Robison said
that Mrs. Robinson would convene a focus discussion with council, the developer
stakeholders, and staff to better understand the implications, how it plays out
and some of the bottlenecks. She
said it could include a small group of interested council members.
Ms. Dorrel said it sounds like that needs to be done because they
haven’t identified what it is they want. Mayor
McAlister and Mrs. Robison agreed.
Mrs. Robinson said it would
also be beneficial for council to tour the area.
Mr. Ulma will work with council members to arrange the tour.
Mrs. Robinson asked about the
curb, gutter, sidewalks and multiuse trails and about staff’s recommendation.
Mr. Ulma said that they are internal to the subdivision and will be part
of the discussion on the overlay district.
Mrs. Robinson asked if it was
also going to be pulled. Mr. Matthys
said it is staff’s understanding that they are to pull all of the conservation
overlay items and work on all them as a packet.
Alternate
Development: Clustering
Ricky Barker of the Planning
Department reviewed cluster options. He
said based on feedback from the development community staff is suggesting an
incentive approach to gain additional open space. Mr.
Ulma said that the cluster is already available Town-wide other than in the
conservation area.
Mrs. Robison asked if the
percentage is a qualifier to get the benefit and if it included riparian buffers
that would ordinarily be protected. Mr.
Matthys said it would have to be 20 percent of usable open space, active
recreation, etc. Mr. Barker added
that in order to get 20 percent more lots you have to get 10 percent more open
space.
Mrs. Robinson asked why it is
based on the amount of open space rather than a percentage of the entire parcel.
Mr. Ulma responded that if based on the overall parcel it would be
counted twice. He said the language
could be changed to state additional open space on the net developable that is
left.
Mayor Pro Tem Smith said that
the density is becoming quite onerous because the land is so valuable. He would
like to see another option. Mr.
Barker said that staff can discuss with the developer focus group to see if
there is an incentive that would allow more open space without more density.
Ms. Dorrel said that she
doesn’t agree that higher densities are undesirable.
She likes the cluster option because it helps to balance out the
densities and still have open space. She
said it needs to be discussed further because council doesn’t have a
collective vision solidified. Mayor
Pro Tem Smith responded that he didn’t disagree.
He said that the issue with high density is that the standards applied
are the same that are applied to single family. He said they standards need to
be raised, if that’s not done then they need less density.
Mayor McAlister said he is not
hearing resistance from council to the proposal and that it should be left on
the amendments and pursued as an option. However,
he said there is clearly more discussion council needs to have to make sure that
it’s an option that doesn’t become the default mechanism.
Mrs. Robinson said she would
like to see the amount calculated off of net usable land rather than the amount
already required for open space. She
would rather require the person having the lesser amount of open space set aside
dedicate more open space. Mr. Barker
suggested that the percentage increase not be greater than the open space
already on the site.
Mrs. Robison asked what
communities are using that formula. Mr.
Ulma said lots of communities have cluster ordinances using various approaches
to calculate the amount of open space for return on additional lots.
Mr. Ulma asked for council
direction on this item. He asked if
it should be kept with the conservation or moved forward separately.
Ms. Dorrel said to keep it with the conservation overlay; council members
concurred. Mr. Ulma responded that
staff will park both pieces to the side for further review, and that staff, the
focus group, and the council group will work together on those two items.
Mr. Matthys summarized
council’s direction stating that staff is being directed to move most of the
items forward with the exception of the conservation residential overlay items
and the cluster housing items. He
said that as they move the mixed use sketch plan checklist portion forward they
will work with the developer focus group to address their concerns.
Ms. Currin asked for direction
on dates to move forward. Mayor
McAlister said that dates were fine to move forward on all of the things on
which council agrees. Council
members agreed.
Mayor McAlister adjourned the
meeting at