HomeMy WebLinkAboutAgenda - 08-18-2009 - 5aORANGE COUNTY
BOARD OF COUNTY COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: August 18, 2009
Action Agenda
Item No. ~_
SUBJECT: Zoning Ordinance Text Amendment Relating to the Required Commencement
of Construction Activities for Planned Developments
DEPARTMENT: Planning and Inspections PUBLIC HEARING: (Y/N) Yes
ATTACHMENT(S):
1. Ordinance Amendment Resolution
2. Minutes -June 3, 2009 Planning Board
3. Draft Minutes -May 18, 2009 Quarterly
Public Hearing
4. Copy of Session Law 2009-406 - An Act
to Extend Certain Government
Approvals Affecting the Development of
Real Property
INFORMATION CONTACT:
Craig Benedict, Director 245-2592
Michael D. Harvey, Planner 245-2607
PURPOSE: To receive the Planning Board recommendation and consider taking action on a
staff initiated Zoning Ordinance Text Amendment to Section 7.2.8 Time Limit on Start of
Construction of Planned Development of the Zoning Ordinance (hereafter `the Ordinance') to
modify existing regulations concerning the required timeline on the commencement of
construction activities for planned development projects.
BACKGROUND: This item was presented at the May 18, 2009 Quarterly Public Hearing. As
staff stated during the hearing, the purpose of the proposed amendment is to establish clear
standards relating to the evaluation of extension requests and provide some flexibility for the
County to take into account the necessary process to obtain permits from local, State, and
Federal agencies to allow for the commencement of construction activities.
During the hearing, the following general comments were made relating to the proposed
amendment:
1. Board members felt that the proposed forty-eight (48) month extension timeline for large
projects would be acceptable if the proposed new Ordinance language was made
clearer,
2. Provide a definition of `single-use' and `multi-use' projects to further clarify the proposal,
3. Add language indicating the total number of months that a given project has to
commence construction, both with and without an extension,
4. Add language indicating that the extension was at the discretion of the County and would
not necessarily be the maximum as detailed within the Ordinance,
5. Add language detailing the annual reporting submittal requirements, and
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6. Continue to require all extension requests be reviewed and approved by the County
Board of Commissioners,
PLANNING BOARD REVIEW: The Planning Board reviewed this item at its June 3, 2009
regular meeting.
Planning Board members discussed the item at length and recommended approving the
proposed amendment subject to the incorporation of all comments/recommendations made by
the County Board of Commissioners during the Quarterly Public Hearing. The vote to approve
the amendment was unanimous.
STAFF COMMENT: Staff has incorporated all comments/suggestions made during the public
hearing.
Additionally, staff would like to take this opportunity to inform the BOCC that on August 5, 2009
the State enacted Session Law 2009-406 that essentially extends any and all development
approvals for certain projects until December 31, 2010.
In reviewing the law there are projects within the County that would be subject to this provision.
Please refer to Attachment Four (4) for a copy of the aforementioned session law.
FINANCIAL IMPACT: This request .has been reviewed by various County departments who
have determined the approval of the request will not create the need for additional funding for
the provision of County services.
ADMINISTRATION RECOMMENDATION: The Administration recommends the BOCC take
the following actions:
1. Receive the Planning Board recommendation,
2. If necessary, deliberate further on the proposed amendment,
3. Close the public hearing, and
4. Adopt the Ordinance amendment as detailed within Attachment One (1).
dR b- x009 - Oa q Attachment 1
AN ORDINANCE AMENDING
THE ORANGE COUNTY ZONING ORDINANCE
WHEREAS, there has been heightened scrutiny over existing regulations relating
to the review, processing and approval of extensions on the commencement of
construction activities for approved Planned Development projects, and
WHEREAS, for large scale Planned Development projects there is a potential
problem in adhering to the existing twelve (12) month construction commencement
requirement relating to the need to secure any and all local, State, and Federal permits
to allow development to commence, and
WHEREAS, the current regulations do not take into account the timeline
necessary to secure these necessary permits to allow for construction to commence,
and
WHEREAS, the Ordinance currently does not contain any standard outlining how
a decision can be made relating to the approval or denial of an extension request, and
WHEREAS, the process necessary to review extension requests is not clear and
is open for interpretation, and
WHEREAS, the proposed amendment establishes a definable standard relating
to the submission, review, and disposition of extension requests eliminating existing
ambiguity.
BE IT ORDAINED BY THE BOARD OF COMMISSIONERS OF ORANGE
COUNTY, NORTH CAROLINA, hereby amends the Orange County Zoning Ordinance
by adding (indicated by double underlined language) and deleting (indicated by stricken
through language) as follows:
PART I: That Section 7.2.8 be amended as follows:
A. With respect to the commencement of construction for an
approved Planned Development, the following standards shall
apply:
1. Single-use Development:
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a. Commencement of Construction: In instances where an
applicant is proposing the development of a single land use on
a specific parcel of property, construction shall commence and
proceed at a reasonable rate within twelve (12) months from
the date the permit is approved by the County Board of
Commissioners.
For the purposes of this section, aSingle-Use Development
shall mean a project proposing a single, specific, use of a given
parcel of property or a project involving the development of
multiple structures with a similar use such as a residential
subdivision or anon-residential office park approved through
the submission of a site-specific development plan in
accordance with the provisions of this Article.
b. Extension: The applicant may receive a six (6) month
extension, extending the timeline for the commencement of
construction activities in accordance with the provisions of this
Section.
If an extension is granted, the total timeline allotted for the
commencement of construction for aSingle-use Development
shall be eighteen (18) months from the date of approval of the
project by the County.
c. Limits on Extensions: Only one (1) six (6) month extension
shall be granted for any Single-use Development Project.
2. Master Planned Development:
a. Commencement of Construction: In instances where an
applicant is proposing a project with multiple, individual, land
uses on a given parcel of property through the review and
approval of a Master Plan application, as detailed within this
Article, construction shall commence and proceed at a
reasonable rate within twelve (12) months from the date the
permit is approved by the County Board of Commissioners.
b. Extension: The applicant may receive a maximum forty-eight
(48) month extension, extending the timeline for the
commencement of construction activities in accordance with
the provisions of this Section.
With respect to Master Planned Development projects, the total
allowable extension granted by the County shall be the
minimum amount of time necessary to obtain any and all
identified permits, as determined by the applicant and staff, and
may not necessarily be the maximum forty-eight (48) month
timeline.
O
The total extension allotted to a Master Planned Development
shall be handled on a case-by-case basis but under no
circumstances shall it exceed forty-eight (48) months.
c. Limits on Extensions: Only one (1) extension shall be granted
for any Master Planned Development Project.
1. B. Submittal Requirements: In applying for an extension, an
applicant shall submit the following documentation for
review:Completion of the application form requesting an
extension,
2. A detailed narrative outlining what permits have been applied for
with documentation demonstrating submission of said permits to
local, State, or Federal Agencies,
3. Documentation from any and all agencies indicating that permits
cannot be issued within required timelines,
4. Documentation indicating when the permits are expected to be
issued, and
5. An explanation from the applicant on how this situation is beyond
their control.
C. Review Process: All extension requests shall be submitted to the
Zoning Officer for review and assessment at least three (3) months
prior to the expiration of the permit for the project. The Zoning
Officer shall review the request and make a recommendation on its
approval for review and comment by the Board of County
Commissioners. The Board shall hold a public hearing to review
and take action on the request. The applicant shall be required to
attend this meeting and offer any additional evidence justifying the
request.
The review of an extension request shall cause the permit to
continue to be valid in the event the deadline for the
commencement of construction activity expires during the review
process.
D. Approval -Update Requirement: In the event an extension is
granted to a Master Planned Development, the applicant shall be
required to submit updates on the progress for obtaining any and
all necessary permits authorizing construction activities to
commence. This information shall be in letter form providing
timelines for permit review, any and all necessary revisions, and
formal documentation indicating when the permit is expected to be
issued by the appropriate local, State, or Federal agency. This
information shall be submitted every six (6) months from the date
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the extension is granted until construction activities are
commenced.
E. Alteration of Condition(s) Prohibited: An extension request
shall not be granted if such action represents a violation of a
previously imposed condition on the project.
Upon motion of Commissioner
Commissioner
seconded by
the foregoing Zoning
Ordinance amendments were adopted this the day of
2009 and shall become effective upon adoption.
Donna Baker, Clerk, Orange County Commissioners
Attachment 2
Approved 7/1/09
1 Minutes
2 ORANGE COUNTY PLANNING BOARD
3 JUNE 3, 2009
4 REGULAR MEETING
5
6 MEMBERS PRESENT: Brian Crawford, Eno Township At-Large (Chair); Mary Bobbitt-Cooke, Cheek Township Representative;
7 Peter Hallenbeck, Cheeks Township At-Large; Mark Marcoplos, Bingham Township At-Large; Earl McKee, Little River Township
8 Representative; Jeffrey Schmitt, Cedar Grove Township; Judith Wegner, Bingham Township; Larry Wright, Cedar Grove
9 Township At-Large; Rachel Phelps Hawkins, Hillsborough Representative; Tommy McNeill, Eno Township Representative
10
11 MEMBERS ABSENT: Samantha Cabe, Chapel Hill Township At-Large; Vacant, At-Large
12
13 STAFF PRESENT: Craig Benedict, Planning Director; Perdita Holtz, Planning Systems Coordinator; Robert Davis, Planner III;
14 Michael Harvey, Zoning Enforcement Officer; Eddie Kirk, Planner II; Tina Love, Administrative Assistant II;
15
16 OTHERS PRESENT: Kimberly Lewis; Margaret Lewis; Alvon Lewis; Lucy Fearrington; Joseph Fearrington; Noah Harris; Ola Harris;
17 Kirstin Frescoln; Louis Kingsland; Vicky Hendel; Walter Whitlock; David Holdaway; Kent Wiles; Tom Holt; Andrew Nobel; Lee
18 Lambert; Steve Prakken; Sheyko & Nichole Sergey; Ann Waller; Greg Forest; Jay Harris; Derek Harris; Jon, Cheryl, Katlyn &
19 Kegan Edwards; Clementine Self; Johanne Gisledth
20
21 .*.,****.*,**,*****.,**,.****~*„**,,,*,x.*,,,~*„*,**,
22
23 AGENDA ITEM 8: ZONING ORDINANCE AMENDMENT: Article Seven (7) Planned Development Section 7.2.8 Time Limit of
24 Start of Construction of Planned Development.
25 To consider a recommendation to the BOCC regarding this item heard at the May 18, 2009 Quarterly
26 Public Hearing.
27 Presenter: Michael Harvey
28
29 Michael Harvey: Good evening. The next item on your agenda is the review of the Zoning Ordinance text amendment relating to
30 a proposed amendment to Article Seven, Section 7.2.8 Time Limit on Start of Construction of Planned Development modifying
31 existing regulations concerning the required time limit of commencement of construction activities. This was presented at the
32 May 18, 2009 Quarterly Public Hearing. The impetus for this amendment was based on the recent review on a planned
33 development project where there was discussion on the existing regulations governing the commencement of construction
34 activities and what timelines relating to the commencement of construction activities that planned development projects were
35 required to meet. In reviewing these requirements, both during the review of this project and after, staff determined that there
36 are potential issues with the existing ordinance language, specifically that the existing regulatory standards don't factor in the
37 permitting process and review time necessary for planned development projects that are large in scope and have to obtain
38 numerous local, state and federal permits in order to legally begin construction activities. This could include but are not limited to
39 necessarily Army Corp of Engineers 404 Wetland Permits, Federal and North Carolina Department of Transportation permits if
40 interstate work has to be done, signalization, recalibration that may be required and the like. The existing ordinance does not
41 contain any standard outlining how the decision is made as it relates to the approval or denial of an extension request and finally
42 existing process are ambiguous and open to some severe interpretation. What staff has proposed to do is essentially create a
43 procedure where a developer could ask for additional time to commence construction activities for an approved planned
44 development project and establish a process that will not only govern how that proposal is reviewed but how it could either be
45 approved or denied by the County. At the Quarterly Public Hearing, I'm on page 66 of your packet, there were six essential
46 comments made on this item, which I'll review them briefly. The County Board of Commissioner members felt the proposed 48
47 month extension for large projects was acceptable but that they didn't feel the proposed language was clear enough to explain
48 exactly what was meant by that extension. The Board agreed that single-use projects would be allowed to continue to make use
49 of the six month extension request currently detailed within the Ordinance. They wanted the definition of single-use. They
50 wanted language within the proposal that would specifically spell out the total number of months you had to commence
51 construction activities. They requested that language be added detailing the annual reporting submittal requirements and they
52 wanted to continue to require that all extension request reviewed be approved by the County Board of County Commissioners.
53 As you might recall at the Quarterly Public Hearing, we had suggested staff could provide that function and the County
54 Commissioners didn't want that to occur so we put that language back in our proposal. What you are being asked to do tonight
55 is begin deliberating on this petition and make a recommendation to the County Board of Commissioners. The proposed
56 ordinance begins on page 67 and continues to page 70. Very briefly what I would like to do is walk you through it. On page 67,
57 attachment one, single-use development would have to commence construction activities within twelve months of the permit
58 being issued in order for the special use permit and the rezoning approval to still be considered valid. On page 68, we have
59 included the definition of single-use development meaning a project proposing a single specific use of a given parcel of property
Approved 7/1/09
60 or a project involving the development of multiple structures with a similar use such as a residential subdivision or a non-
61 residential office park approved through the submission of asite-specific development plan in accordance with the provisions of
62 this Article. A single family residential subdivision plan development proposing two or three hundred single family residential
63 dwelling units would be considered asingle-use development. With asingle-use development project, the applicant can request
64 one six month extension that is covered in subsection b and c on page 68. We have complied with County Commissioners'
65 request that we provide the exact deadline if the extension is granted, the total timeline allotted for the commencement of
66 construction for asingle-use development shall be eighteen months for the date of approval of the approval, meaning the year
67 that you got it from, until the time period you get the six month extension and you only get one. Subsection 2 begins the master
68 planned development where you can get up to a maximum 48 month extension but you'll note we address the County
69 Commissioners concern in subsection b essentially indicating that you will only be allotted the time necessary to secure the
70 permits to commence construction and you are going to have to submit documentation proving that when that is going to be.
71 The maximum you can get is 48 months total. The Board is going to determine what extension is warranted based on your
72 peculiar and particular situation and you only get one. With respect to submittal requirements the Ordinance currently does not
73 have anything detailing what a developer would have to submit in order to request an extension. What staff has come up with is
74 5 requirements including the completion of an application, the submission of a detailed narrative, documentation from all the
75 agencies the applicant is required to obtain permits from in order to commence construction activities and an explanation of how
76 long its going to take to review any and all permit requests along with an explanation on how the delay and how is not related to
77 any inaction on the applicants part. With respect to the review process, we are requiring any extension request to be submitted
78 at least 3 months prior to the expiration of permit for it to be considered valid. The zoning officer, which by the ordinance is the
79 Planning Director, Mr. Benedict, will review the item and make a recommendation and the Board of County Commissioners who
80 will make the final determination of the viability of the request. As you will note within Subsection D of the proposed ordinance
81 staff is requiring the developer to submit every six months to the zoning officer progress reports detailing where they are in
82 process of obtaining the required permits. If the developer is not actively pursuing the permits then the requirement allowing for
83 the extension is invalidated thereby technically voiding the permit. Within Subsection E of the proposed ordinance, there was a
84 question at the Quarterly Public Hearing, and I want to explain why staff is recommending keeping it, if the Board imposes a
85 condition setting up a specific chain of events that has to happen with a planned development, we don't want them to be able to
86 go through this process to amend that condition. Conditions are amended through a very specific and spelled out process
87 requiring it to go back through the public hearing process. They have to go back and make a new application, go back to the
88 County Commissioners, go before the Planning Board, just like the original planning development process to begin with. If the
89 Board, if the County in its infinite imposes timelines for construction or imposes specific benchmarks that have to happen with
90 any project this process cannot alter those conditions. That is essentially why we are recommending this step. Mr. Chairman
91 that's all I have, I will answer any questions at this time.
92
93 Larry Wright: You were here through the Buckhorn Village process and Craufurd Goodwin often referred to Waterstone and how
94 the development has just been sitting idle much to the frustration of the Town of Hillsborough. Reflecting on that and given your
95 summary, how does this protect against that. Would this stop the Waterstone stalling?
96
97 Michael Harvey: We are attempting to do is build flexibility in the ordinance on the off chance there are numerous federal, state
98 and local permits that have to be obtained in order to permit construction. If you, as a developer, can't show us proof that you
99 can't meet your 12 month obligation to commence construction then you don't get an extension and your permit dies. If you can
100 show us proof that you need 24 or 28 months to get your permits, and that the need for an extension is not fault of your own, the
101 County Board of Commissioners has the capability to grant such an extension. Further, a developer shall be required to provide
102 updates on their progress in obtaining the necessary permits every six months in order to keep the extension alive. If a
103 developer can't get it within that timeline, the permit dies. So in staffs opinion, this amendment still addresses the issue of the
104 County wanting to avoid having something sitting dormant for several years without any activity. The concern that was
105 expressed in some of the Buckhorn meetings was that Churton Grove sat dormant for 10 years. There were specific conditions
106 they had to meet which allowed them to remain dormant during that amount of time. That is why this ordinance was originally
107 drafted in the late 80s or early 90s to allow fora 12 month extension.
108
109 Craig Benedict: To answer the Waterstone questions, some of the issues were more marketing and we will not be legislating
110 telling people they have to sell their property in a certain timeframe. They did put water and sewer and roadways in the
111 timeframe Hillsborough stated but Hillsborough was concerned that, were they marketing as well as they could and that is
112 something local governments cannot get into.
113
114 Larry Wright: Aren't the timelines set up to keep this process moving so the land doesn't lie fallow?
115
116 Craig Benedict: Yes. For the roads and infrastructure and preservation of open space and all those requirements, they will
117 come online in accordance with the schedule that is set by this review process. We hope that development continues at a pace
118 but we can't legislate that.
2
Approved 7/1/09
119
120 Brian Crawford: They can put the whole master plan in and ready to be built but at that point, our job, as the County, is done. It
121 is up to them to start selling. It is possible; they may not sell it for 10 or 15 years and there is really nothing we can do about it.
122
123 Michael Harvey: That is one of the requirements for having the six months, not only reporting requirements but also saying you
124 only get the extension necessary to meet your minimum permitting needs.
125
126 Earl McKee: I can understand, on a basic level, why you would want a project to move forward, i.e. being approved under
127 regulations that no longer exists, I understand that. Is there any other driving force on this?
128
129 Michael Harvey: As the board knows, the County makes certain assumptions regarding the develop-ability of areas of the
130 County and within the individual economic development districts specifically. If you start looking at the available of infrastructure,
131 i.e. water sewer, you don't want one project that could eat up x amount of capacity. One of the reasons you want a
132 commencement requirement is to ensure that other projects are not held up because of requirements for improvements.
133
134 Earl McKee: At the public hearing, I heard a lot, on this master plan development, some of the Board of County Commissioners
135 were mentioning long range, in year, five, and seven or nine years, did I hear something that did not exist?
136
137 Michael Harvey: The ordinance amendment, as originally proposed, was apparently confusing and the Board did not understand
138 the number of extensions that would be allowed for given projects. The goal is to grant the minimum time necessary for this
139 permit. The goal is not to allow a project to sit dormant for 10 or 20 years because of multiple approvals. The ordnance was
140 unclear last time. We have attempted to clarify that.
141
142 Earl McKee: It's written here under master plan that with all the possible extensions, are we talking five years?
143
144 Michael Harvey: Yes.
145
146 Mary Bobbitt-Cooke: I can understand the Board of County Commissioner's point of view. I wonder what a developer would
147 say.
148
149 Earl McKee: From a development aspect, you don't want extensions. If it sits too long, the marketability drops. You do not want
150 these extensions. It helps if you run into a problem with DOT or in this case, crossing the wetlands.
151
152 Mary Bobbitt-Cooke: If the developer did not want one or need one, this would be helpful.
153
154 Mark Marcoplos: It makes total sense, the flexibility is great, and I think it is a no brainer. The Board of County Commissioners
155 heard it at the public hearing and they got it and made a few changes and I think we should send it on with our blessing.
156
157 Judith Wegner: On page 68, under b, the date of approval of the project by the County, do we stamp 'approved' on document or
158 something like that.?
159
160 Michael Harvey: You have a special use permit that has to be recorded that states approved on x date. For Buckhom Village for
161 example, there is a section that says as approved on x day by the Orange County Board of Commissioners.
162
163 Judith Wegner: And that is the case if it staff approved or Board of Adjustment or anybody.?
164
165 Michael Harvey: This would only impact planned developments.
166
167 Judith Wegner: What if someone asked for 18 months but they actually get it in 12, will they still get the 18?
168
169 Michael Harvey: Under a single use, that is correct.
170
171 Judith Wegner: On page 69 e, we put faces on that project to say that we thought it should go on a stage basis to say that the
172 first phase would need to be done by a certain time or it was not going to continue to be approved. That is still possible?
173
174 Michael Harvey: Yes. We don't want to limit the Board's ability. We don't want the process to be utilized by a developer to
175 usurp the ....
176
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Approved 7/ 1 /09
177 Judith Wegner: When it says a previously imposed condition on the project including phase requirements would it be worth
178 putting it in?
179
180 Michael Harvey: My only concern is that it may not be referred to as phases so I kept it ambiguous because you may have a
181 condition that specifically states by x date you will do this.
182
183 Brian Crawford: Master plan, the developer comes to you and says I need a 24 month extension to do it and 24 months comes
184 and x isn't done. Only one extension is granted so he is SOL.
185
186 Michael Harvey: Yes. If it is not your fault the permit has not been issued, .then the County would need to take that under
187 consideration.
188
189 Lany Wright: If this did happen, you said the County would work a variance sort of situation that would permit this for this
190 developer to; you understand what I am saying?
191
192 Brian Crawford: Suppose it was not his fault but on the record, we only grant a 24 months extension but we allowed him to go 30
193 months and we have not done anything official to say this is why we have allowed him to do it. I can see how that would corrupt
194 the process.
195
196 Michael Harvey: I would like to think that if we are told to take a 24 month review time to review and issue the permit that staff
197 would recommend 27 or so months to allow the permit to actually be issued. In terms of a variance, I would say no because a
198 variance has a very specific meaning. Maybe a waiver.
199
200 Larry Wright: There is a mechanism for a waiver?
201
202 Michael Harvey: An exemption, potentially.
203
204 Craig Benedict: It states one extension, if someone says 24 months and they screw up, I don't see that we can change. There
205 is no such thing as a variance or waiver but it makes sense what you are saying. We don't have a mechanism to be reasonable.
206
207 Brian Crawford: That is where the problem would come in.
208
209 Larry Wright: These people deal with them all the time. On the other hand, it could be like a school teacher who says you have
210 to draw the line somewhere.
211
212 MorioN made by Mary Bobbitt-Cooke to approve the recommendation for the Zoning Ordinance Text amendment to Section
213 7.2.8 time limit on start of construction of planned development as presented by the Planning Board staff.. Seconded by Larry
214 Wright.
215 Vore: Unanimous
216
217 Brian Crawford: We understand your mother is seriously ill and we are sorry to hear that. We appreciate your dedication for
218 coming here and doing this and having that weight on you. I hope she gets better.
219
220 Michael Harvey: Thank you.
~D
4
Excerpt of Draft Minutes Attachment 3
tl
1 DRAFT
2
3 MINUTES
4 ORANGE COUNTY BOARD OF COMMISSIONERS
5 ORANGE COUNTY PLANNING BOARD
6 QUARTERLY PUBLIC HEARING
7 May 18, 2009
8 7:00
9 p.m.
10 The Orange County Board of Commissioners and the Orange County Planning Board
11 met for a Quarterly Public Hearing continuation meeting on Monday, May 18, 2009 at 7:00 p.m.
12 at the Central Orange Senior Center in Hillsborough, NC.
13
14 COUNTY COMMISSIONERS PRESENT: Chair Valerie P. Foushee, and Commissioners
15 Alice M. Gordon, Barry Jacobs, Pam Hemminger, Bernadette Pelissier, and Steve Yuhasz
16 COUNTY COMMISSIONERS ABSENT: Mike Nelson
17 COUNTY ATTORNEY PRESENT: John Roberts
18 COUNTY STAFF PRESENT: Assistant County Manager Willie Best and Deputy Clerk to
19 the Board David Hunt (All other staff members will be identified appropriately below)
20 PLANNING BOARD MEMBERS PRESENT: Chair Brian L. Crawford, Rachel Phelps
21 Hawkins, Mark Marcoplos, Jeffrey L. Schmitt, Tommy McNeill, Pete Hallenbeck, and Earl
22 McKee
23 PLANNING BOARD MEMBERS ABSENT: Mary Bobbitt-Cooke, Judith Wegner, Dr.
24 Larry Wright, Samantha Cabe, and Nathan Chambers
25
26 A. OPENING REMARKS FROM THE CHAIR
27 Chair Foushee called the meeting to order at 7:06 p.m. She called attention to the public
28 charge. She turned the meeting over to Brian Crawford, Planning Board Chair.
29
30 ***********************************************************
31
32
33 C. PUBLIC HEARING ITEMS
34
35
36 1. Zoning Ordinance Amendment: To receive public comment on proposed amendment(s)
37 to Article Seven (7) Planned Development Section 7.2.8 Time Limit of Start of Construction
38 of Planned Development of the Orange County Ordinance clarifying existing regulations
39 governing the commencement of construction activities.
40 Planner Michael Harvey made this presentation.
41
42 AGENDA ITEM: C1
43 PUBLIC HEARING
44
45 Proposal to amend
46 Article Seven (7) Planned Development -Section 7.2.8 of the Zoning Ordinance
47 Regarding PD/SUP construction activities
48 Section 7.2.8
49
50 CURRENT ORDINANCE
Excerpt of Graft Minutes is
1 Planned Development (PD)/
2 Special Use Permit (SUP) Approval
3 •Start construction within (12) months,
4 •If construction is not within the stated time frame permit becomes null and void,
5 •Request possible for a single six-month extension from the Board of County Commissioners,
6 •Time extension approval; Based on evidence
7 Permits have been pursued in a timely manner,
8 Factors beyond the control of the applicant
9
10 STAFF ANALYSIS:
11 •Large scale `master planned' and multi-phased projects will have problems adhering to the
12 twelve (12) month requirement
13 •Local, State, and Federal permits.
14 -Infrastructure, Roads, Utilities, Environmental processes are more lengthy.
15 •North Carolina Department of Transportation and Interstate Federal government permits
16 •Water and Sewer; Design, Permitting and Easements.
17 •NO standards; extension approval or denial decision.
18 •NO processes review extension requests
19 •NO clear definition on what constitutes construction
20
21 PROPOSAL:
22 Staff is proposing to amend Section 7.2.8 as follows
23 •Differentiate single-use and multi-use planned development projects,
24 •Maintain single-use site specific projects to twelve (12) month construction,
25 •Start multi-use projects approved under a master plan with a master plan within forty-eight (48)
26 months pursuant to a Infrastructure /Construction Progress Plan
27 •Secure permits from multiple local, State, and Federal agencies
28 •Demonstrate progress with report, annual basis
29 •Detail Standards to be utilized to determine the approvability of an extension request for
30 single use Special Use Permits
31 •Continue to allow for a six (6) month extension for single-use site planned projects
32 Staff Recommendations:
33 •Receive the staff initiated zoning text amendment proposal including staffs report and
34 presentation materials,
35 •Conduct the Public Hearing and accept comments from all interested parties,
36 •Refer the matter to the Planning Board for a recommendation to be returned in time for the
37 August 18, 2009 BOCC meeting,
38 •Adjourn the Public Hearing until August 18, 2009 in order to receive the Planning Board's
39 recommendation.
40
41
42 Commissioner Hemminger asked how 48 months was selected and it was answered that
43 permits would have to be obtained from NCDOT and easements would also have to be
44 obtained. This is a reasonable amount of time for these things.
Excerpt of [3raft Minutes 13
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Commissioner Yuhasz asked for clarity on whether major projects would have to come back
every 12 months to show that they were proceeding.
Commissioner Jacobs asked Michael Harvey to check and see how Chapel Hill and
Carrboro do extensions and for the Board of County Commissioners and the Planning Board to
see. He thinks that when there is an extension, then the applicant could stipulate how many
months the extension should be. He thinks that the staff should monitor progress.
Commissioner Jacobs made reference to the first page and that the applicant can only
request an extension from the Board of County Commissioners upon the favorable
recommendation of the Planning Board. He thinks that this is wrong, and he would like to
change this. He respects the Planning Board, but there might be other interests of the Board of
County Commissioners that would make it important to have an extension.
Commissioner Jacobs made reference to the statement, "It should be noted that no
extension request shall be approved if such request represents an alteration." He asked for a
definition of an alteration. Michael Harvey pointed this definition out in the article.
There was no public comment.
A motion was made by Commissioner Jacobs, seconded by Commissioner Pelissier to refer
the matter to the Planning Board for a recommendation to be returned in time for the August 18,
2009 BOCC meeting.
VOTE: UNANIMOUS
14
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2009
SESSION LAW 2009-406
SENATE BILL 831
AN ACT TO EXTEND CERTAIN GOVERNMENT APPROVALS AFFECTING THE
DEVELOPMENT OF REAL PROPERTY WITHIN THE STATE.
The General As sembly of North Carolina enacts:
SECTION 1. This act shall be known and may be cited as the "Permit Extension
Act of 2009."
SEC TION 2. The General Assembly makes the following findings:
(1) There exists a state of economic emergency in the State of North Carolina
and the nation, which has drastically affected various segments of the North
Carolina economy, but none as severely as the State's banking, real estate,
and construction sectors.
(2) The real estate finance sector of the economy is in severe decline due to the
creation, bundling, and widespread selling of leveraged securities, such as
credit default swaps, and due to excessive defaults on sub-prime mortgages
and the resultant foreclosures on a vast scale, thereby widening the mortgage
finance crisis. The extreme tightening of lending standards for home buyers
and other real estate borrowers has reduced access to the capital markets.
(3) As a result of the crisis in the real estate finance sector of the economy, real
estate developers and redevelopers, including home builders, and
commercial, office, and industrial developers, have experienced an
industry-wide decline, including reduced demand, cancelled orders,
declining sales and rentals, price reductions, increased inventory, fewer
buyers who qualify to purchase homes, layoffs, and scaled back growth
plans.
(4) The process of obtaining planning board and zoning board of adjustment
approvals for subdivisions, site plans, and variances can be difficult, time
consuming, and expensive, both for private applicants and government
bodies.
(5) The process of obtaining the myriad of other government approvals, such as
wetlands permits, treatment works approvals, on-site wastewater disposal
permits, stream encroachment permits, flood hazard area permits, highway
access permits, and numerous waivers and variances, can be difficult and
expensive; further, changes in the law can render these approvals, if expired
or lapsed, difficult to renew or reobtain.
(6) County and municipal governments, including local sewer and water
authorities, obtain permits and approvals from State government agencies,
particularly the Department of Environment and Natural Resources, which
permits and approvals may expire or lapse due to the state of the economy
and the inability of both the public sector and the private sector to proceed
with projects authorized by the permit or approval.
(7) County and municipal governments also obtain determinations of master
plan consistency, conformance, or endorsement with State or regional plans,
from State and regional government entities that may expire or lapse without
implementation due to the state of the economy.
(8) The current national recession has severely weakened the building industry,
and many landowners and developers are seeing their life's work destroyed
by the lack of credit and dearth of buyers and tenants due to the crisis in real
estate financing and the building industry, uncertainty over the state of the
I~~161IIIluII~IIHIIII~~ IIIIIII~~
* S 8 3 7- V- 6
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economy, and increasing levels of unemployment in the construction
industry.
(9) The construction industry and related trades are sustaining severe economic
losses, and the lapsing of government development approvals would
exacerbate, if not addressed, those losses.
(10) Financial institutions that lent money to property owners, builders, and
developers are experiencing erosion of collateral and depreciation of their
assets as permits and approvals expire, and the extension of these permits
and approvals is necessary to maintain the value of the collateral and the
solvency of financial institutions throughout the State.
(11) Due to the current inability of builders and their purchasers to obtain
financing under existing economic conditions, more and more
once-approved permits are expiring or lapsing, and, as these approvals lapse,
lenders must reappraise and thereafter substantially lower real estate
valuations established in conjunction with approved projects, thereby
requiring the reclassification of numerous loans, which, in turn, affects the
stability of the banking system and reduces the funds available for future
lending, thus creating more severe restrictions on credit and leading to a
vicious cycle of default.
(12) As a result of the continued downturn of the economy and the continued
expiration of approvals that were granted by State and local governments, it
is possible that thousands of government actions will be undone by the
passage of time.
(13) Obtaining an extension of an approval pursuant to existing statutory or
regulatory provisions can be both costly in terms of time and financial
resources and insufficient to cope with the extent of the present financial
conditions; moreover, the costs imposed fall on the public as well as the
private sector.
(14) It is the purpose of this act to prevent the wholesale abandonment of already
approved projects and activities due to the present unfavorable economic
conditions by tolling the term of these approvals for a finite period of time as
the economy improves, thereby preventing a waste of public and private
resources.
SECTION 3. Definitions. - As used in this act, the following definitions apply:
(1) Development approval. -Any of the following approvals issued by the
State, any agency or subdivision of the State, or any unit of local
government, regardless of the form of the approval, that are for the
development of land or for the provision of water or wastewater services by
a government entity:
a. Any detailed statement by a State agency under G.S. 113A-4.
b. Any detailed statement submitted by a special purpose unit of
government or a private developer of a major development project
under G.S. 113A-8.
c. Any finding of no significant impact prepared by a State agency
under Article 1 of Chapter 113A of the General Statutes.
d. Any approval of an erosion and sedimentation control plan granted
by a local government or by the North Carolina Sedimentation
Control Commission under Article 4 of Chapter 113A of the General
Statutes.
e. Any permit for major development or minor development, as defined
in G.S. 113A-118, or any other permit issued under the Coastal Area
Management Act (CAMA), Part 4 of Article 7 of Chapter 113A of
the General Statutes.
f. Any water or wastewater perrr~it issued under Article 10 or Article 11
of Chapter 130A of the General Statutes.
g. Any building permit issued under Article 9 of Chapter 143 of the
General Statutes.
h. Any nondischarge or extension permit issued under Part 1 of Article
21 of Chapter 143 of the General Statutes.
Page 2 Session Law 2009-406 SL2009-0406
I~
i. Any stream origination certifications issued under Article 21 of
Chapter 143 of the General Statutes.
j. Any water quality certification under Article 21 of Chapter 143 of
the General Statutes.
k. Any air quality permit issued by the Environmental Management
Commission under Article 21B of Chapter 143 of the General
Statutes.
1. Any approval by a county of sketch plans, preliminary plats, plats
regarding a subdivision of land, a site specific development plan or a
phased development plan, a development permit, or a building permit
under Article 18 of Chapter 153A of the General Statutes.
m. Any approval by a city of sketch plans, preliminary plats, plats
regarding a subdivision of land, a site specific development plan or a
phased development plan, a development agreement, or a .building
permit under Article 19 of Chapter 160A of the General Statutes.
n. Any certificate of appropriateness issued by a preservation
commission of a city under Part 3C of Article 19 of Chapter 160A of
the General Statutes.
(2) Development. -The division of a parcel of land into two or more parcels,
the construction, reconstruction, conversion, structural alteration, relocation,
or enlargement of any building or other structure or facility, or any grading,
soil removal or relocation, excavation or landfill, or any use or change in the
use of any building or other structure or land or extension of the use of land.
SECTION 4. For any development approval that is current and valid at any point
during the period beginning January 1, 2008, and ending December 31, 2010, the running of
the period of the development approval and any associated vested right under G.S. 153A-344.1
or G.S. 160A-385.1 is suspended during the period beginning January 1, 2008, and ending
December 31, 2010.
SECTION 5. This act shall not be construed or implemented to:
(1) Extend any permit or approval issued by the United States or any of its
agencies or instrumentalities.
(2) Extend any permit or approval for which the term or duration of the permit
or approval is specified or determined pursuant to federal law.
(3) Shorten the duration that any development approval would have had in the
absence of this act.
(4) Prohibit the granting of such additional extensions as are provided by law.
(5) Affect any administrative consent order issued by the Department of
Environment and Natural Resources in effect or issued at any time from the
effective date of this act to December 31, 2010.
(6) Affect the ability of a government entity to revoke or modify a development
approval pursuant to law.
(7) Modify any requirement of law that is necessary to retain federal delegation
by the State of the authority to implement a federal law or program.
SECTION 6. Within 30 days after the effective date of this act, each agency or
subdivision of the State to which this act applies shall place a notice in the North Carolina
Register listing the types of development approvals that the agency or subdivision issues and
noting the extension provided in this act. This section does not apply to units of local
government.
SECTION 7. The provisions of this act shall be liberally construed to effectuate
the purposes of this act.
SL2009-0406 Session Law 2009-406 Page 3
i~
SECTION 8. This act is effective when it becomes law.
In the General Assembly read three times and ratified this the 30'~ day of July, 2009.
s/ Walter H. Dalton
President of the Senate
s/ Joe Hackney
Speaker of the House of Representatives
s/ Beverly E. Perdue
Governor
Approved 2:05 p.m. this 5~' day of August, 2009
Page 4 Session Law 2009-406 SL2009-0406