Call for Public Hearing

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Mayor Harold Weinbrecht
December 13, 2012

As many of you know, in 1998 the Town of Cary adopted our Adequate Public Facilities Ordinance for Roads to work along with the Town’s local transportation development fee authority to help reduce traffic congestion, provide roads, and maintain Cary’s level of service.

I for one have and continue to whole-heartedly endorse our ordinance and believe it has served our town and citizens well. I know many of you share this opinion.

So, I am very sorry to say that it appears that we may now be forced by the courts to repeal our Roads APF. This would require a public hearing, which is the purpose of my bringing this report to the Council tonight.

Here’s the background as I understand it. Ms. Simpson, please feel free to jump in if I get something wrong.

Late this past summer, the NC Supreme Court ruled on a case called Lanvale v. Cabarrus County involving a Cabarrus County adequate public facilities ordinance for schools. It appears that, with its ruling, the Supreme Court has changed the legal foundation for the way that state law authorizing zoning and development ordinances must be read and interpreted. For a long time, zoning and development statutes have stated that two of the purposes for Town zoning laws are facilitating adequate roads and schools. In Lanvale, the Supreme Court held that a county ordinance facilitating schools was not authorized even though counties have funding responsibilities for school facilities. So, while Lanvale didn’t directly involve Cary’s Roads APF, based on what we’ve learned from our legal staff, it looks like there may now be an issue as to whether any local government in the state can lessen congestion and facilitate adequate roads with an APF ordinance, even though that’s exactly what State law directs us to do through local zoning laws.

Now, let me be clear that I along with the Council members I’ve spoken with strongly believe that the Council sitting here back in 1998 had the authority to adopt the Roads APF, and that the ordinance is not unauthorized today.

But, because of this recent North Carolina Supreme Court ruling and the courts’ evolving reading of local government’s ability to adopt zoning and development laws, and given that this Council has a duty to serve as caretaker of public dollars, we need to reevaluate the way our authority is implemented, and develop an approach that’s consistent with our understanding of the Supreme Court’s ruling. And while we do this reevaluation, we’ll likely need to repeal the Town’s Adequate Public Facilities for Roads ordinance.

The court ruling and our potentially repealing our Roads APF is extremely disappointing to me and many of you. But I want you to know that I believe this Council is strongly committed to using all the tools we do still have available to deal with traffic concerns, especially those that could impact the safety of our citizens. And, if we work hard to take this all in stride and see this as an opportunity, I think we’ll be able to find ways to make some things even better.

For example, everyone knows that the Council has been talking for years about wanting a simpler approach under the LDO to address transportation issues. Also, we’re starting our Town-wide, grassroots community plan, a big part of which will look at transportation. And it’s a good time to review and possibly update our transportation development fee ordinances.

So, for all of these reasons, I’d like to ask the Council if anyone would be willing to put forth a motion to direct staff to bring us proposed LDO amendments, including repealing all or portions of Sec 3.23 and ensuring traffic studies are required with rezonings, and calling a public hearing on these LDO changes for the Council’s first meeting in January. After we vote on that item, then I have additional requests for a follow-up, separate motion specifically about additional interim steps for us to take.


For me, simply calling for a public hearing to consider repealing the Roads APF should not be the end of our action tonight, especially since, if we repeal the ordinance, state law is not going to let us put an effective moratorium on development while we work through things. There are several interim steps I’d like to also see us take in a follow-up motion.

Number One: I’d like staff to provide information and guidance to the Planning and Zoning Board on the evolution in the law and how it affects the consideration of transportation impacts of proposed rezonings and zoning map amendments; and,

Number Two: I’d like staff to provide transportation impact information and data for rezonings to enable the Planning and Zoning Board and Council to carefully consider and evaluate the transportation impacts of proposed rezonings.

Number Three: I’d like staff to bring to Council with its report in January, or as soon as reasonably possible thereafter, proposed approaches we can take to amend the LDO or Town policies to provide that the goal of assuring adequate roads is achieved.

I want to share my ideas with everyone now, especially the public, so that as we approach the public hearing, you and our citizens will have an idea of how I, as one Council member, am thinking in case folks want to address my ideas at the public hearing. So, I’d like staff to look at:

Item A: An interim transportation development fee (‘TDF’) increase;

Item B: TDF ordinance revisions and a TDF fee increase with our next budget;

Item C: Other tools council can use in reviewing zoning map changes; and,

Item D: Other tools and amendments that may be desirable and consistent with our understanding of how the Supreme Court is evolving the law.

And finally, Number Four: So that staff can proceed with considering the TDF fee increase, I’d like council to authorize staff to retain a consultant to conduct a fee study. To do this, council needs to appropriate $300,000 from General Fund Fund Balance to the engineering department contracted services account for the study.

That pretty much covers my thinking at this point, and I’ll open it up to other Council members to share their thoughts as well.