B.   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 March 27, 2008; and the minutes of the financial policy work session held on March 25, 2008. (Town Council)

ACTION: Mr. Frantz moved to approve the consent agenda; Mrs. Adcock provided the second; council granted unanimous approval.

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b.   Consideration of the following appointments to the Zoning Board of Adjustment:  move current alternate Robert Evans into regular member seat for the remainder of the term; appoint Madrica Lowery as regular member; appoint Barry Shuster to fill the alternate position vacated by Mr. Evans; and appoint Charles McDarris as Chair. (Mrs. Adcock)

ACTION: Mr. Frantz moved to approve the consent agenda; Mrs. Adcock provided the second; council granted unanimous approval.

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c.   Consideration of correction and ratification of annexation ordinance 07-A-28 to correct typographical errors in the property owners’ names. (Mr. Wayne Nicholas)

Annexation Petition Number:   07-A-28

Property Addresses:   2420, 2424, 2416, 2412, 2422 Davis Drive; 1720 High House Road 

Wake County Parcel Numbers:  0744546545, 0744546069, 0744536888, 0744537617, 0744537461, 0744632895

Real ID Numbers:   0335120, 0209840, 0206403, 0335887, 0335888, 0365272

Petition Date:   11/7/2007        

Proposed Effective Date:   1/24/2008

OWNERS:

High House Davis LLC

4309 Emperor Boulevard, Suite 110

Durham, NC 27703-8046

John and Kathy Orum

1600 High House Road

Cary, NC 27513-3411

Kathy Orum Trustee ET AL (F/B/O Abby E. Orum)

1600 High House Road

Cary, NC 27513-3411

LOCATION:   Intersection of Davis Drive Road and High House Road

ZONING & PROPOSED USE:

Current Zoning:   Residential 40 (R-40) 

Acreage:   41.84 plus 3.57 adjacent right of way = 45.41 total deeded acres

Contiguous to Primary Corporate Limits:   Yes

% Contiguity:   45%                      

Existing Use:  Vacant and Residential 

Proposed Use:  Mixed Use Development in a Mixed Use Overlay District

Associated Rezoning Case:    None     

Associated Development Plan:   07-SP-114 (Park Place)            

UTILITIES:

Water:    On Site    

Sewer:   On Site    

DISTRICTS & TAX VALUE:

Fire District:   Morrisville                                              

Voting District:  A

Tax Value:    $348,696

MEETINGS:

Town Council – Certificate of Sufficiency and Resolution Ordering Public Hearing:   12/13/2007

Staff Recommendation:   Forward to public hearing on 1/24/2008   

Action:       Forwarded to public hearing on 1/24/2008

Town Council – Public Hearing:   1/24/2008

Staff Recommendation:       Adoption with an effective date of 1/24/2008

Action:       Adopted with an effective date of 1/24/2008

Town Council – Ratification and Correction of Previously Adopted Ordinance:  4/7/2008

Staff Recommendation:      Ratification of ordinance to correct typographical errors in property owners’ names

The document that Council will consider for adoption at this meeting follows:

07-A-28                                                                        

CORRECTION AND RATIFICATION OF AN ORDINANCE

ANNEXING LANDS CONTIGUOUS TO THE MUNICIPAL BOUNDARIES OF THE TOWN OF CARY

 (TO CORRECT TYPOGRAPHICAL ERRORS IN PROPERTY OWNERS NAME)

            WHEREAS, on 11/7/2007, the Town Council has been petitioned under G.S. 160A-31 to annex the area described below:

High House Davis LLC; John & Kathy Orum; Kathy Orum Trustee ET AL (F/B/O Abby E. Orum) , Wake County Parcel Identification #’s 0744546545, 0744546069, 0744536888, 0744537617, 0744537461, 0744632895; including 41.84 acres, plus 3.57 acres of adjacent right-of-way; and

            WHEREAS, the above described are is contiguous to existing Town limits; and

            WHEREAS, on 12/13/2007, the Town Clerk of the Town of Cary certified the sufficiency of said Petition, the same being duly made after investigation; and

            WHEREAS, on 12/13/2007, the Town Council of the Town of Cary ordered a public hearing on the question of said annexation and Notice of a Public Hearing was published in the newspaper of general circulation as required by law; and

            WHEREAS, the matter came for public hearing before the Town Council of the Town of Cary on 1/24/2008, at which time all persons opposed and all persons in favor of said annexation were allowed to be heard; and

            WHEREAS, the Petition above mentioned meets all the requirements of G.S. 160A-31.

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

            Section 1.  The area described in the petition and depicted on the attached map, is hereby annexed to and made a part of the Town of Cary, effective on 1/24/2008 with a condition that the property owner connect to the Town of Cary sewer/water line based upon the Town’s policy(ies) in place on the effective date of this ordinance.  A map and description of the annexed area are on file in the Planning Department, Cary Town Hall.

LEGAL DESCRIPTION

Wake County Parcel Identification #’s 0744546545, 0744546069, 0744536888, 0744537617, 0744537461, 0744632895

            Section 2.  That from and after the effective date of this ordinance, the territory and its citizens and property shall be subject to all debts, laws, ordinances and regulations in force in the Town of Cary, and shall be entitled to the same privileges and benefits as other parts of the municipality. Said annexed territory shall be subjected to municipal taxes according to G.S. 160A-58.10.

            Section 3.  The Mayor of the Town of Cary shall cause an accurate map of the newly annexed territory together with a copy of this ordinance, duly certified, to be recorded in the Office of the Register of Deeds of Wake County and in the Office of the Secretary of State of North Carolina.

            Section 4.  Pursuant of G.S. 160A-22, the Town Clerk is directed to update the Official Town Map by drawing in the territory annexed, or setting out the boundaries in a written description, or showing the current Town boundaries by a combination of these techniques.  Such a map shall also be delivered to the Wake County Board of Elections as required by G.S. 163-288.1.

            Section 5.  Pursuant of G.S. 160A-23, the boundaries of Electoral District A are hereby revised to account for and include the territory annexed, and the Official Town Map of Electoral Wards is hereby amended to include the annexed territory in the said Electoral District.

Corrected and Ratified on 4/7/2008 .

ACTION: Mr. Frantz moved to approve the consent agenda; Mrs. Adcock provided the second; council granted unanimous approval.

(Ordinance is also on file in the town clerk’s office.)

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

a.   REZONING 07-REZ-34, Evans Estate Phase II

      Location: 160 feet north of the intersection of Anita Way and Evans Estates Drive
Current zoning: Residential 40 (R-40)

      Requested zoning: Residential 12 Conditional Use (R-12-CU) to allow a maximum of 40 lots and specify minimum lot size

      Acreage: 14.90 ±

      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: unanimously recommended approval

      Speaker: Mrs. Debra Grannan

      Suggested council action: council may take action

Request

The applicant is requesting Town Council approve an Ordinance to amend the official zoning map of the Town of Cary to change the zoning of approximately 14.90 acres, located at 110 Anita Way, from Residential 40 (R40) to Residential 12 Conditional Use (R12 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

Notification:

On December 21, 2007, notices were mailed to property owners within 400 feet of the subject property. In addition, notification consistent with General Statutes was present in the Cary News on December 26, 2007 and January 2, 2008.

Feedback at the Public Hearing:

Staff presented the case and noted the differences between this request the proposed rezoning case that had been rejected for the property in an earlier request.  The earlier request did not have zoning conditions and involved a larger land area.  Staff reported that there were no protest petitions.

The applicant has submitted the following proposed zoning conditions:

1.  Development shall be limited to 40 single family lots.

2.  Lots bordering the southern property line shall be a minimum of 14,000 square feet.

3.  A minimum 20' Type "B" undisturbed buffer, with disturbances only as provided for in the Land Development Ordinance, shall be maintained along the southern property line.

Changes since the Town Council Public Hearing:

None

Feedback from the Planning and Zoning Board

The Board verified with staff that road connectivity would be addressed during site plan review.

Planning and Zoning Board Recommendation

Unanimously recommended for approval

summary

Staff has reviewed the application and information provided prior to this meeting, and the analysis of Staff is that the application is consistent with the Goals and Objectives of the Comprehensive Plan, the Land Development Ordinance and is reasonable and in the public interest.

Consistency with the Comprehensive Plan

A. Land Use Plan:  The land use designation for the subject parcel is Low Density Residential (LDR).  The definition of LDR is 1 to 3 single family dwelling units per acre.  This rezoning request conforms to the adopted Land Use Plan as long as the residential unit density does not exceed 3 units per acre.

B.  Growth Management Plan: 

The Growth Management Plan includes the following two 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. L2 Guiding Principle: Ensure that future growth protects sensitive natural resources and protects open space.

C. Affordable Housing Plan:

The Goals of the Affordable Housing Plan are not applicable to this case.

D.  Comprehensive Transportation Plan: 

Existing Section:  Anita Drive is a local street

Future Section:  n/a

Road Improvements:  n/a

Sidewalks Requirements: Sidewalks on at least one side

Bicycle Requirements: n/a

Transit Requirements:  None

Traffic Analysis:  The existing zoning of R-40 on 14.9 acres would generate approximately 15 peak PM trips.  Assuming that the R12 is single family homes, the 40 homes (based on the conditional use) would generate 40.4 peak hour trips.  So, that would be a net gain of approximately 25 trips.

Under an ordinance change passed by the Town Council on December 13, 2007, a TAR would not be required since the change does not exceed 50 peak hour trips.

E.  Open Space and Historic Resources Plan: 

As per the Open Space and Historic Resources Plan, significant hardwood and conifer plant communities are identified at along Anita Way.  The significant plant communities are located in the northern half of this lot.

F.  Parks & Greenways Master Plan: 

According to the approved Parks, Recreation and Cultural Resources Facilities Master Plan, the Black Creek Greenway exists adjacent to the property’s eastern boundary line.  Private, 6’ wide paved trail connections providing access to the Black Creek Greenway will be required.  Locations of these trails will be determined during site plan review.   A payment in lieu of park land dedication will be required for residential development in accordance with the Land Development Ordinance.

CONSISTENCY WITH THE LAND DEVELOPMENT ORDINANCE

G.  Environmental:  

According to the Town of Cary GIS maps, the subject property is impacted by stream buffers along the eastern and western property lines. The project will be required to comply with all buffer requirements of the Land Development Ordinance during the site plan review process.

H.  Buffers: 

According to Chapter 7 of the Land Development Ordinance, the applicant shall be required to provide a 20’ wide landscaping area planted to Type “B” Buffer standards between this proposed use and the adjacent uses to the south and east of the subject property. Per the Ordinance, this area may be located within the platted portion of a lot.  A zoning condition, proposed by the applicant, specifies a minimum 20' Type "B" undisturbed buffer outside the platted lots, with disturbances only as provided for in the Land Development Ordinance, and which shall be maintained along the southern property line adjacent to the existing Evans Estates subdivision. This proposed condition exceeds the Ordinance requirement for a landscaping area mentioned above.  In accordance with the LDO, a 40’ Type “A” Buffer is required between the subject property and adjacent multi-family residential uses.  No buffer is required for uses adjacent to permanent open space unless needed to meet buffer requirements between uses.

I.  Streetscape: 

According to Chapter 7 of the Land Development Ordinance, a streetscape is not required along Anita Way.

The proposed project is in the rezoning stage and therefore preliminary engineering of the site has not been provided to Staff for review done.  Prior to Site Plan or Subdivision Plan approval, the application will be required to demonstrate consistency with the Land Development Ordinance with respect to specific development requirements, such as access, stormwater management, road improvements, utility line placement, road connectivity and landscape plantings.

Existing and Requested Zoning District Comparison:

*Per zoning condition proposed by applicant.

Town Council Criteria for Consideration in Reviewing Rezonings

Section 3.4.1(E) of the Land Development Ordinance sets forth the following criteria that the Town 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;

Other Reference Information

Schools

The school information is being provided for your review; however, the Wake County
Board of Education controls capital projects for school capacities.

* Current Enrollment and Building Capacity is based on the 20^th day of the school year for 2007-2008 as supplied by the Wake County Public School System.  School assignment will be determined at the time of development.

** The Projected Number of Additional Students is only a rough approximation.  The actual number of students will vary depending on several variables, such as dwelling unit type, number of bedrooms, dwelling size, and other factors. For example: A site with 40 two-bedroom units could yield 11 additional students, while 40 three bedroom units could yield 17.  The basis for making this calculation is based on multipliers provide from Wake County Schools Office of Student Assignment.  At rezoning, student yield can not be accurately determined due to unknown variables.

Applicant’s Justification Statement Submitted (November 29, 2007)

The following statements (shown below in italics) are provided by the applicant in response to the criteria established in the application (shown below in bold) and do 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? No.

2. How is the request compatible with the comprehensive plan (i.e. Land Use, Transportations, Open Space and Historic Resources)? Zoning request is for R12 which is consistent with the existing comprehensive plan.

3. What are the benefits and detriments to the owner, neighbors and the community?  Larger lots with larger houses rather than the R8 of Evans Estates would benefit Evans Estates’ owners with greater re-sale value.

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?  The allowable uses of a Residential subdivision are consistent with R12 zoning.  All adjacent land is residential or R40 Zoning.  The rezoning will have increased value of all property adjacent to this land.

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.  Does not apply to Re-zoning request.

Ordinance for Consideration

07-REZ-34 Evans Estates Phase II

AN ORDINANCE TO AMEND THE OFFICIAL ZONING MAP OF THE TOWN OF CARY TO CHANGE THE ZONING OF APPROXIMATELY 14.90  ACRES LOCATED ALONG  ANITA WAY  OWNED BY CCR DEVELOPMENT, INC FROM  RESIDENTIAL 40 (R-40) TO  RESIDENTIAL 12  CONDITIONAL USE (R-12 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 Residential 40 (R40) to  Residential 12 Conditional Use (R12CU) 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: 

1. Development shall be limited to 40 Single Family Lots

2.  Lots bordering the southern property line shall be a minimum of 14,000square feet.

3. A minimum 20' Type "B" undisturbed buffer, with exceptions to disturbance only as provided for in the Land Development Ordinance,  will be maintained along the southern property line.

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:  April 7, 2008

ACTION: Mr. Frantz moved to approve the consent agenda; Mrs. Adcock provided the second; council granted unanimous approval.

(Ordinance is also on file in the town clerk’s office.)

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b.   REZONING 07-REZ-37, Cary Park Planned Development Amendment

Location: 3800 Cary Glen Boulevard

Request: PDD Amendment to replace residential use with park, recreation and open space uses

Acreage: 19.69 ±

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: unanimously recommended approval

Speaker: Mrs. Debra Grannan

Proposed council action: council may take action

Request

The applicant is requesting Town Council approve an Ordinance to amend the official zoning map of the Town of Cary to change the zoning of approximately 19.69 acres, located at 3800 Cary Glen Boulevard, by amending amend a portion of the previously approved Cary Park PDD by replacing certain currently approved areas for residential uses with all uses permitted within in Resource/Recreation zoning districts.

More specifically, the applicant proposes to remove the condition, as shown on Tract MR-7 of the Cary Park PDD Master Plan, which requires a minimum of 27 dwelling units and sets a maximum of 133 dwelling units.  Furthermore, uses proposed on the subject property would be limited to parks, greenway trials, conservation area and open space. The PDD Map (attached to and incorporated herein as Exhibit) has been also adjusted to more precisely reflect the current calculated acres on the subject property. 

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.  All such requirements can be found at http:vic.townofcary.org.

Background Information

Public Notification:     

On January 28, 2008 notices were mailed to property owners within 400 feet of the subject property.  In addition, notification consistent with General Statutes was present in the Cary News on January 30, and  February 6, 2008. 2008.

Feedback at the Town Council Public Hearing: 

Staff presented the request and noted that no protests had been filed.  Staff further reported that there had been calls of support from adjacent property owners in regard to the proposed rezoning.  No one spoke in favor of or opposition to the request.  One Council member expressed support for the request and the efforts of the Parks, Recreation and Cultural Resources Department to obtain potential sites for park land. 

Changes Since the Town Council Public Hearing:

None

summary

Staff has reviewed the application and information provided prior to this meeting, and the analysis of Staff is that the application  is consistent with the Goals and Objectives of the Comprehensive Plan, the Land Development Ordinance and is reasonable and in the public interest.

Planning and Zoning Board Recommendation

Recommended Unanimously for Approval

Consistency with the Comprehensive Plan

A. Land Use Plan:  This rezoning request conforms to the adopted Land Use Plan which designates Parks, Open Space and Greenways as an acceptable neighborhood use for Medium Density Residential (MDR) under the Northwest Cary Area Plan.

B.  Growth Management Plan: 

The Growth Management Plan includes the following five 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. L2 Guiding Principle: Ensure that future growth protects sensitive natural resources and protects open space.
3. A2 Guiding Principle: Ensure that the overall amount of development in Cary is consistent with the Town’s growth management goals.
4. C2 Guiding Principle: Ensure public investment decisions are consistent with the Town’s growth management goals.
5. Q1 Guiding Principle: Continue Cary’s leadership role in quality growth and development.

C. Affordable Housing Plan: 

The Town of Cary adopted an Affordable Housing Plan and the applicable goals to this proposal are the following:

1. Encourage the location of high density housing within walking and convenient commuting distance of employment, shopping, and other activities, or within a short walk of a bus or transit stop, through "mixed use" developments, residences created on the upper floors of nonresidential downtown buildings, and other creative strategies.
2. Assure a quality living environment and access to public amenities for all residents, present and future, of the Town of Cary, regardless of income.

D.  Comprehensive Transportation Plan:

Green Level to Durham

Existing Section:  100’ ROW, 2-lane road

Future Section:  100’ ROW, 4-lane median divided

Road Improvements: Committed Town project

Sidewalks Requirements: Required on both sides

Bicycle Requirements: 14’ wide outside lanes required

Transit Requirements:  None

Traffic Analysis:  Since this request does not generate any additional traffic, a traffic study is not required

McCrimmon Pkwy.

Existing Section:  N/A

Future Section:  100’ ROW, 4-lane median divided

Road Improvements:  Committed project (developer)

Sidewalks Requirements: required on both sides

Bicycle Requirements: 14’ wide outside lanes

Transit Requirements:  None

Traffic Analysis:  Since this request does not generate any additional traffic, a traffic study is not required

E.  Open Space and Historic Resources Plan: 

According to the Open Space and Historic Resources Plan (OSHRP), there are urban transition buffers  on site as well as mixed hardwood/conifer forests.  The urban transition buffers along Morris Branch were identified as priority open space.

F.  Parks & Greenways: 

According to the approved Parks, Recreation and Cultural Resources Facilities Master Plan, this parcel was purchased by the Town in 2006 for neighborhood park, greenway and open space purposes.  The Morris Branch Greenway will cross the parcel and a multi-use trail will be located along the east side of Green Level to Durham Road.

CONSISTENCY WITH THE LAND DEVELOPMENT ORDINANCE

G.  Environmental:  

According to the Town of Cary GIS maps, there is a stream buffer on the perimeter of this property.  The project will be required to comply with all buffer requirements of the Land Development Ordinance during the site plan approval process.

H.  Buffers: 

According to Chapter 7 of the Land Development Ordinance, uses permitted under the Park and Open Space use category, except athletic fields, amphitheaters and neighborhood recreation centers, are a Class 1 use and require a 20’ Type “B” Buffer when adjacent to residential uses.  Should the subject property be developed as an athletic field, then a 20’ Type “B” Buffer shall be required between this site and the adjacent property zoned R40  and a 30’ Type “A” Buffer shall be required adja