HomeMy WebLinkAboutAgenda - 02-15-2011 - 6aORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: February 15, 2011
Action Agenda
Item No. CO - Q
SUBJECT: Unified Development Ordinance (UDO) -Report on Planning Board
Recommendation
DEPARTMENT: Planning and Inspections PUBLIC HEARING: (Y/N) Yes
ATTACHMENT(S):
1. BOCC-Approved UDO Review Schedule
(Under Separate Cover)
2. Planning Board Meeting Minutes -
January 5 and 19, 2011 meetings
INFORMATION CONTACT:
Craig Benedict, Director, 245-2592
Perdita Holtz, Planner III, 245-2578
Shannon Berry, Planner II, 245-2589
Tom Altieri, Planner III, 245-2579
Michael D. Harvey, Planner III, 245-2597
PURPOSE: To receive a report on the Planning Board's recommendation regarding adoption of
the entire Unified Development Ordinance (UDO).
BACKGROUND: At the conclusion of the November 22, 2010 joint quarterly public hearing on
the UDO, the BOCC directed the Planning Board to recommend a revised UDO schedule which
would allow for more review time but would complete this phase of the UDO process before
May 2011. The Planning Board recommended a schedule at its December 1, 2010 meeting
and forwarded it to the BOCC for consideration. The agreed upon focus related to two issues:
conditional districts and stream buffers. The BOCC approved the schedule at its December 14,
2010 meeting (see Attachment 1 for schedule).
The Planning Board has further reviewed the draft UDO in accordance with the B000-
approved schedule. At the Planning Board's January 5, 2011 regular meeting, the Board
discussed the conditional districts (Conditional Use and Conditional Zoning) contained in the
draft UDO. At the successful conclusion of the January 5 meeting, the Planning Board decided
to devote its January 19 special meeting to the topic of stream buffers as the vast majority of
the Planning Board seemed satisfied with the conditional districts discussion. Specific changes
requested by the Board regarding conditional districts were:
• Add a definition for "conditional districts" Article 10 (Definitions),
• Provide a clearer explanation regarding the Exclusions listed in Section 5.1.4, and
• Modify the Table of Permitted Uses in some way to more clearly differentiate the
Conditional Zoning Districts.
The Planning Board extensively discussed the stream buffer provisions contained in the UDO at
its special meeting on January 19. As a result of that meeting, some revisions to the stream
buffer provisions were recommended and the Planning Board determined that these
clarifications would address concerns.
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As reflected in the meeting minutes, the Planning Board by clear consensus thought that the
January meetings adequately addressed their prior concerns. Staff responded to the Planning
Board's requests/recommendations and the proposed changes along with some staff-
recommended clarifying language and updated graphics were presented to the Planning Board
at its February 2 meeting.
Planning Board Recommendation
At its February 2, 2011 regular meeting, the Planning Board reviewed the packet of proposed
changes to the November 2010 Draft UDO and extensively discussed the topics. The Planning
Board took three separate votes summarized as follows:
1. The Planning Board is satisfied with the provisions contained in the draft UDO
regarding conditional districts.
Actual motion: to affirm that the conditional zoning section of the UDO as
discussed is at a reasonable level of perfection in phase one and the Board is
comfortable with the state of that section of the UDO.
Vote: 6-2 to approve.
(Note: one member who voted against the motion was dissatisfied with the wording
of the motion rather than the provisions regarding conditional districts, as the person
understands the provisions).
2. The Planning Board is satisfied with the provisions contained in the draft UDO
regarding stream buffers.
Actual motion: the Planning Board accepts the language on the stream buffers in
the UDO as they apply to phase one given the time that we have had to review all
the information.
Vote: 7-1 to approve.
3. Culminating motion: to approve the UDO with all the changes presented to the
Planning Board through tonight's meeting as is to be presented to the Board of
County Commissioners as an official approval from the Planning Board.
Vote: 7-1 to approve.
(Note: The discussion surrounding the motion makes it clear that the motion is to
recommend approval of the UDO in its entirety along with all revisions contained in
the full packet of revisions presented to the Planning Board. The full packet of
revisions will be included as an attachment to the quarterly public hearing materials).
Planning staff concurs with the revisions recommended to date by the Planning Board.
The Planning Board made its recommendation in advance of the February 28 public hearing so
that the Planning Board could focus on any new information resulting from the public hearing
and any BOCC directives at the Planning Board's March 2 regular meeting. The Planning
Board also discussed holding a special meeting in early March if it is necessary to complete its
work in time for the April 5, 2011 BOCC meeting.
Additional Public Outreach
As listed on the BOCC-approved schedule in Attachment 1, the County Manager sent a letter in
December to the municipal managers inviting requests for presentations on the UDO at
municipal meetings. Only the Town of Carrboro requested a presentation and Planning staff
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made a presentation to the Town on January 18. Written comments from municipalities were
requested by 5:00 p.m. on February 2, 2011. To date, no written comments have been
received.
A public outreach meeting was held on January 27, 2011 in the Lower Level Conference Room
of the Orange County West Campus Office Building. The meeting began at approximately 6:30
p.m. and, although it was scheduled to end at 8:00 p.m., the meeting wrapped up closer to 8:30
p.m. Approximately 30 people attended the meeting, including Commissioners Steve Yuhasz
and Earl McKee. Staff explained various aspects of the UDO, the process that has been
followed, current zoning and development processes, and the conditional districts which are
included in the draft UDO as a replacement to the existing Planned Development provisions in
the current Zoning Ordinance.
Continued Public Hearing
The public hearing on the UDO has been continued to February 28, 2011 at 7:00 p.m. The
continued public hearing will be held at the Department of Social Services meeting room (113
Mayo Street in Hillsborough). Agenda packets for the February 28 public hearing will be
available on February 18, 2011.
FINANCIAL IMPACT: There is no financial impact in receiving the report. Regarding the overall
project, the BOCC provided $32,600 in the 2009-2010 budget, Departmental Contract Services
Account, to complete this BOCC priority. The costs of consulting services, as outlined in the
executed contract, are not to exceed $30,000. The additional $2,600 was budgeted for
advertising, copying and printing expenses. Monies were not carried forward from the previous
budget, so staff is working with Financial Services to accommodate this multi-year BOCC
priority. Advertising, copying and printing expenses have exceeded $2,600 but in the interim
have been paid using general Planning Department budgeted funds for these types of activities.
Additionally, Planning staff time on the project has been significant.
RECOMMENDATION(S): The Manager recommends the Board receive the report.
Attachment 1 4
BOCC-Approved (12/14/10) UDO Review/Approval Schedule
Nov 22" BOCC/PB Joint Quarterly Public Hearing
(Remains o en until Februa 28, 2011
Dec 14 Revised UDO schedule approved by BOCC.
Dec 15 Manager sends out letter to municipalities with UDO info and asks what
form of UDO presentation is necessa -and what dates are su ested.
Jan (Month of) If requested by municipality, Planning Staff to present UDO to municipalities
(up to 4). NOTE: UDO does not directly apply to municipalities or their
ETJ.
Jan 5 PB meeting - PB to review Conditional Use District and Conditional Zoning
Districts
Jan 19 Special PB meeting - PB to continue and complete review of Conditional
Use District and Conditional Zonin Districts
Jan 27 Public Outreach Meetin
Feb 2" by
5:00 .m. Deadline for any written comments from municipalities and advisory boards
other than Plannin Board .
Feb 2" PB meeting - PB to review stream buffers and make recommendation to
BOCC re ardin entire UDO adoption.
Feb 15 BOCC meetin - PB recommendation re orted to BOCC.
Feb 28 Continuation of November 22 public hearing*. Public comments will be on
the November 2010 UDO draft and any further revisions recommended by
the Plannin Board would be resented.
Mar 2" PB meeting -recommendations about next steps based on continued
public hearin ;recommendations re ardin Phase II of UDO process.
April 5th BOCC meeting - BOCC receives PB recommendation on UDO adoption
and Phase II process/priorities, closes public hearing, and considers
ado tion of UDO.
- rupnc notitication will be via a-mail distribution lists, County website, press release,
posted bulletin, and letter to municipalities.
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MINUTES
ORANGE COUNTY PLANNING BOARD
JANUARY 5, 2011
REGULAR MEETING
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MEMBERS PRESENT. Judith Wegner (Vice-Chair), Bingham Township Representative; Larry Wright, At-Large, Cedar Grove
Township; Tommy McNeill, Eno Township Representative; Peter Hallenbeck, Cheeks Township Representative; Samantha Cabe,
Chapel Hill Township Representative; Alan Campbell, Cedar Grove Township Representative; May Becker, At-Large Chapel Hill
Township; Mark Marcoplos, At-Large, Bingham Township; Rachel Hawkins, Hillsborough Township Representative; Andrea
Rohrbacher Rohrbacher, At-Large Chapel Hill Township
MEMBERS ABSENT: Brian Crawford (Chair), At-Large, Eno Township; Vacant- Little River Township Representative;
STAFF PRESENT. Craig Benedict, Planning Director; Tom Altieri, Comprehensive Planning Supervisor, Perdita Holtz, Planning
Systems Coordinator, Michael Harvey, Current Planning Supervisor, Shannon Beny, Special Projects Planner; Tina Love,
Administrative Assistant 11
OTHERS PRESENT: Dolly Hunter
(Documents handed out: 2011 Planning Board, Board ofAdjustment, and Quarterly Public Hearing Schedules)
AGENDA ITEM 1: CALL TO ORDER AND ROLL CALL
Judith Wegner: Thank you to the staff for your hard work. Is everybody ready?
AGENDA ITEM 2: SELECTION OF CHAIRNICE-CHAIR FOR 2011
Judith Wegner. We have to decide on a Chair and Vice-Chair. I will entertain nominations or volunteers.
Mark Marcoplos: What has happened in the past?
Judith Wegner. What's happened in the past, the last couple of years Brian agreed to serve again. I agreed to serve again. I
think the tradition, as best I know, is two to three years for the Chair and then some rotation depending on what is going on in the
Board. I didn't ask Brian if he'd serve again, I think he probably would, I'd be happy to release ~ce-Chair and defer to somebody
else who'd like to do that so we'd have some continuity as well as some shift in change.
Lany Wright: Hasn't he been Chair for two sessions?
Judith Wegner: Two years, right and I've been Vice-Chair for two years. As best I know there isn't a limit. Is there anyone would
consider serving as Chair?
Larry Wright: I'd serve as Chair.
Judith Wegner: Anybody else want to be considered as Chair or nominate Brian to serve again?
Mark Marcoplos: Do you know if Brian will serve again.
Judith Wegner: No, but he hasn't indicated that he didn't want to serve again. My sense is that he would be willing. If you want
to we can have a closed ballot to have everybody have paper and fill in their choice and we can do something similar for Vice-
Chair so if say Brian was elected Chair, Larry if you'd consider serving as Uce-Chair.
Craig Benedict: Brian has said he'd be willing to serve.
Judith Wegner: The Chair does meet with staff every month to set the agenda and works with the County Commissioners and
Chair when we have a public hearing. Ok are there other candidates beside Brian and Lany that would like to volunteer? Ok, is
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62 there a motion to close nominations?
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64 Mark Marcoplos: I move to close nominations. Seconded by Samantha Cabe.
65 VOTE: Unanimous
66 (eoani wrote choice on blank ballots)
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68 Judith Wegner: Tina will count and then we'll do ice-Chair.
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70 Tina Love: The Chair is Brian Crawford by majority of votes.
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72 Judith Wegner: How about Vice-Chair.
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74 Samantha Cabe: I nominate Larry Wright if he is willing to serve. I nominate you too (Judith Wegner).
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76 Judith Wegner: Motion to close nominations for ice-Chair?
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78 Mark Marcoplos: Move to close ice-Chair nominations. Seconded by Rachel Hawkins.
79 VOTE: Unanimous
80 (Board wrote choice on blank ballots)
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82 Tina Love: The Vice-Chair is Larry Wright by majority of votes.
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84 Judith Wegner. Congratulations to Lany. Thank you all very much, thank you Larry for agreeing to serve.
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86 AGENDA ITEM 3: INFORMATIONAL ITEMS
87 a) Special Planning Board Meeting scheduled for January 19, 2011
88 b) Next Regular Planning Board Meeting scheduled for Wednesday, February 2, 2011
89 c) Planning Calendar for January and February 2011
90
91 Judith Wegner. Craig do you want to give us an update?
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93 Craig Benedict: We have included the schedule on page 19 in your packet. That is the timeline as we move forward. There will
94 be a continuation of the November 22 Public Hearing in February for additional public comments. The January 19 meeting is a
95 special meeting determined by this Board. The timeline noted on page 19 still has all the Planning Board recommendations
96 wrapped up by March 2 and the Commissioners would bring up the item for a decision or action by their April 5 meeting which
97 would give them time to review the material. They do want us to have an outreach meeting in January and specifically invite
98 those people that had comments by email to answer their questions directly and meet with local govemments. We sent a letter
99 on December 20 inviting all local govemments.
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101 Judith Wegner: In Chapel Hill, is there a firm date for that?
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103 Craig Benedict: Not yet. We sent material regarding conditional use and zoning. There is not a specific presentation date
104 scheduled.
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106 Larry Wright: If I remember correctly, there was a gentleman that represented Durham in the Eno Economic Development
107 District, were they solicited in any fashion?
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109 Craig Benedict: Aaron Cain was the person who was with Durham and I don't know if we sent a letter to them but they have
110 been forwarded copies during the process in April and August of last year as we went through the process. We have been
111 explaining to the Durham-Chapel Hill-Orange County work group and we have giving progress reports to that work group.
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113 Alan Campbell: The outreach meetings, would it be useful for some of us to be there so we could brief them?
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115 Craig Benedict: At this phase where you came into the process, any meeting would be good for a briefing because we ear going
116 to give an overview, broader than what we are focusing on tonight or February. We will start at these outreach meetings almost
117 from square one.
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119 Alan Campbell:. The prior meetings, you had one that was not well attended but I am assuming this one will be because of the
120 requests we got and the attendance at the public hearing.
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Craig Benedict: That is correct and we will also invite the people who sent emails. There were nine or ten people who spoke at
the meeting and they were looking at our process positively, it was the emails that we spent more time on.
Alan Campbell: That is the 27~"?
Craig Benedict: Yes.
Alan Campbell: Is there an indication where that will be?
Perdita Holtz: In this room, 6:30 to 8:00.
Andrea Rohrbacher. Chapel Hill Town Council has been in recess since December 6 and their next meeting is Monday night so
expect you will hear ftom them this next week.
AGENDA ITEM 4: APPROVAL OF MINUTES
MorloN made by Rachel Hawkins to approve the December 1, 2010 minutes. Seconded by Alan Campbell.
VOTE: Unanimous
AGENDA ITEM 5: CONSIDERATION OF ADDITIONS TO AGENDA
AGENDA ITEM 6: PUBLIC CHARGE
Introduction to the Public Charge
The Board of County Commissioners, under the authority of North Carolina General Statute, appoints
the Orange County Planning Board (OCPB) to uphold the written land development laws of the County.
The general purpose of OCPB is to guide and accomplish coordinated and harmonious development.
OCPB shall do so in a manner which considers the present and future needs of its citizens and
businesses through efficient and responsive process that contributes to and promotes the health, safety,
and welfare of the overall County. The OCPB will make every effort to uphold a vision of responsive
governance and quality public services during our deliberations, decisions, and recommendations.
PUBLIC CHARGE
The Planning Board pledges to the citizens of Orange County its respect. The Board asks its citizens to
conduct themselves in a respectful, courteous manner, both with the Board and with fellow citizens. At
any time, should any member of the Board or any citizen fail to observe this public charge, the Chair will
ask the offending member to leave the meeting until that individual regains personal control. Should
decorum fail to be restored, the Chair will recess the meeting until such time that a genuine commitment
to this public charge is observed.
AGENDA ITEM 7: CHAIR COMMENTS
Judith Wegner: We are all committed to working hard to get questions resolved about the UDO. We met with staff a couple of
weeks before Christmas and the staff will present tonight but I would like to know if there are any particular questions that any
Board member would like to have addressed. Let's go around the table.
Samantha Cabe: It might be helpful to give a short and broad overview of the different venues a developer can take in order to
do a project. For example, the applications Special Use Permit process versus the current process versus the new process. An
overview of the choices they have if the property is zoned for what they want or not because I think we get tunnel vision as this is
the only way something can be done.
Pete Hallenbeck: I am fairly comfortable with this the way it is. There is some clean up we can do. Way back in this process, we
made this a manual and not a UDO for dummies and I think that decision has bit us a little bit in this area of floating zones.
Alan Campbell: Specifically on the issue of mixed use, the master plan developments and how we now take them into a
structure where a special use permit is not required and therefore the decision is entirely legislative by the Board of County
Commissioners. Was an that intentional decision or did this just happen as a result of how this was reorganized?
Larry Wright: I do have some questions regarding the terminology. Also, there is confusion I would like clarified with conditional
uses. If you look at Section 5.1.4 Conditional Uses on page 53 of our current draft and look at exclusions, there is a reference to
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182 4.18, Uses Excluded for Consideration of Conditional Use District. Then you go to Permitted Uses and there are the same items.
183
184 May Becker: I have some questions. You mentioned targeted areas and the idea of using some pre conditional use districts for
185 targeted areas. Could staff specifically talk about why we need or what the motivation is for adding these conditional use
186 districts. In other words which targeted areas would benefit from it? How would that change development? Also how
187 agricultural and farming may be affected by these areas. How it would change the land use.
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189 Judith Wegner: Are there questions about Conditional Use Districts or Conditional Zoning Districts to let the staff know before we
190 get into that if there is something particular you would like to ask. I would say I think that some of the terminology is very
191 confusing. The way the statutes read, there are uses that are as a right that if you are in a particular district that you are entitled
192 to any of the uses within that general district or there may be permitted uses within that general use district that are subject to the
193 Special Use Permit. Another fundamental point is that we have been using planned development strategies to work with different
194 kinds of mixed uses but that terminology doesn't have a root in the way the statutes read so I think part of what the staff has
195 recommended is to use these other provisions about conditional use districts and conditional zoning districts to try to read what is
196 in the ordinances more directly into the statutes and if staff wanted to explain it to us, it would take 10 to 15 minutes and take
197 another round of questions.
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199 Craig Benedict: I think there were two things that were said that were valuable to us. One is an overview of how zoning is done
200 now and that puts everyone on a level playing field because we are talking about some of the complexities which are not often
201 used in even the old zoning book which was called planned development and in the UDO it is called conditional use. We never
202 used planned development so it is hard to get a context of it without knowing what it is like now and is there a change for the
203 future. The second part is what is rooted in state statutes and what is not and we have to link or match up as close as possible
204 to state statutes because that gives both flexibility and authority to plan as well as we can.
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206 Judith Wegner: I really appreciate the hard work staff has put into this especially over the holidays.
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2O9 AGENDA ITEM 8: UNIFIED DEVELOPMENT ORDINANCE (UDO) -REVIEW OF CONDRIONAL USE DISTRICTSICONDITIONALZONlNG
210 DISTRICTS:
211 To review and discuss the Conditional Use District and Conditional Zoning Districts contained in the
212 proposed UDO.
213 Presenter. Planning Staff
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215 Craig Benedict: We have talked about terminology a lot. We hope to break it into two main categories of zoning. One is what we
216 have used over the years and something more regularly is something we call General Use Districts where someone has a limited
217 commercial one or neighborhood commercial two. That is what people have used since zoning has started. Those have a list of
218 standards and gives a permitted use table of about 200 uses and maybe 50 of them can go into that LC1 category (limited
219 commercial one).
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221 Judith Wegner: What about agricultural?
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223 Craig Benedict: In Agricultural Residential AR, conventional zoning district, gives a list of uses which say residential uses are
224 okay and some mobile homes are okay. Once you get into a category, you look at a list. Let's talk about Agricultural Residential.
225 If there is a star in this, such as a single family, it is permitted by right, which means we can't say no. If there is no star, it is
226 prohibited.
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228 Judith Wegner: This is in part 5.
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230 Craig Benedict: On 5-6 and 5-7. This is an idea of how to read the table. For any general use category, you see what uses are
231 allowed there. The star means permitted by right. If there is a B, it is a different process, it is still permitted but you have to go
232 through a Special Use Permit Class B which involves the Board of Adjustment. There is special criteria whether it can be allowed
233 or not. There may be expert testimony.
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235 Judith Wegner. The general concept is that it is possible the ordinance says it is possible that this type of use could be
236 appropriate but you have to make factual.findings.
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238 Craig Benedict: If residents show up at a Board of Adjustment meeting and say I don't like it and don't think it is appropriate, that
239 is not a standard. They would need to bring their expert to show proof or findings of fact.
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241 Samantha Cabe: If you have to go through that process and there is a letter in the box, that means if you meet a specific set of
242 standards, you must be allowed to do it.
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244 Tommy McNeill: The point I would make is now that you would have someone on the staff for those who may not be literate to
245 walk through this process, we provide that kind of service to help them understand the complexity.
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247 Craig Benedict: Yes. We have tried to make this as user friendly as possible but this is not what we will give our customers. We
248 do have to take them through the process with Michael Harvey's department. He is working on a brochure to narrow down the
249 places to look in the document.
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251 Tommy McNeill: The reason I ask that is that I don't think we are looking for anything that would impede growth, I think we are
252 trying to move forward an area that is simplistic. Someone walks in and gets assistance to open a small business and follow the
253 guidelines and work with Michael Harvey's office and get assistance with the ordinance to make sure it is in compliance.
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255 Judith Wegner: It is pretty complicated?
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257 Tommy McNeill: Listening to it, yes. We speak with very simplistic terms but if you look at the county, there are a lot of
258 individuals in the County that may not be as smart as Craig and they may need assistance in getting through this process and we
259 want to ensure the playing field is level.
260
261 May Becker. I have a question about what happens if the Special Use Permit is granted and the property is sold and such, is the
262 use still designated as special use?
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264 Craig Benedict: Yes, in the case of a Special Use Permit, that special use permit does not mean they are rezoning the property,
265 it is using their base zoning. It is either approved or denied. If it is denied, they can't have it in that area or they schedule
266 another meeting of the Board of Adjustment to try to change the application to meet the standard. There are some very specific
267 standards within special use permits and there are general standards. They are not as specific and that means the project meets
268 the health, safety and welfare of the general neighborhood or it may enhance the property value. There is a generality there.
269 You can't be over subjective but there are a few general standards that are a part of that process but if they are meeting the
270 specific standards then you also answer the general standards.
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272 Michael Harvey: One more important thing to remember is that once it is issued the applicant by ordinance and by conditions
273 imposed by the approving body, a permit has to be recorded at the Register of Deeds office. This approval runs with the land so
274 if I get approval to operate a child care facility that means it is a legal use of that property. I can sell it to someone else but it will
275 be a daycare facility. If it is used for something else there may be a need to come back before the Board to seek re approval of
276 that use.
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278 Craig Benedict: Could you start out with a bed and breakfast and tum it into a country inn. You can see there is a description of
279 the bed and breakfast there are a certain number of beds but if they increase it in size, that is not allowed. There is a limitation
280 and they would need to come back for a Class A Permit.
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282 Judith Wegner: The general concept is that the more substantial possible impact, it ramps up to the elected board rather than to
283 an appointed board.
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285 Tommy McNeill: What type of enforcement do you have?
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287 Craig Benedict: We monitor that closely. We know where all the special use permits are and we monitor on at least an annual
288 basis. This is more limited to a certain area.
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290 Larry Wright: We have had cases before the Board of Adjustment where we would have really liked to have granted something
291 to an applicant but we are not the Board of Commissioners so we must go by the ordinances.
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293 Tommy McNeill: When it is a close call, what is the process for the applicant?
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295 Larry Wright: We vote on it, has the case been made by the applicant and those who oppose the application, and then we must
296 weigh those. Since I have been on the Board, you don't really get a strong opposition on some of these.
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298 Judith Wegner. Kennels have been a real issue for people because the way kennels are defined, there is not an intermediate
299 modest kennel. Is everyone comfortable with this? You can get a general district that you can do a whole range of things or you
300 have an existing district and then come in for a permit for a particular use.
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302 Craig Benedict: I will go over a few different avenues for different options. The ones across the top are general use districts that
303 have a list of permitted uses, a list of SUP's in there, the special processes. If someone wants to open a dance studio in AR, it is
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304 blank and they cannot unless they get rezoned. They are not going to rezone in AR because it is not allowed. They may go to a
305 Limited Commercial 1 category, they may ask for a rezoning. If they just ask for an LC1 it is called a general use rezoning and
306 they want to place an LC1 on the map, we have other criteria that says is an LC1 appropriate in that area. A lot of the transition
307 areas in the county that are activity nodes. When they ask for that LC1 in White Cross, they only have to ask for an AR to LC1
308 rezoning. They do not have to bring forward a site plan. We have very few of these rezoned in the county because when you
309 give an LC1, you give them the list of all the LC1s that are on these 200. When you ask for a general use rezoning, you don't get
310 the site plan and a very important thing is that you cannot set conditions. That is why the general use rezoning process is
311 somewhat limited in what you can ask for. The State has another category which is called Conditional Districts which are more
312 general. You can rezone and set conditions in both cases so when that process of rezoning, which is legislative, which does not
313 have to have those iron clad standards. It is a policy decision of the Commissioners with recommendations used from the
314 Planning Board. It is a lot easier to deny because it is a legislative process.
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316 Larry Wright: It would be nice if section 10 had a definition of Conditional Districts and it was in terms of Conditional Use and
317 Conditional Zoning.
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319 Judith Wegner. I have written about this stuff because I teach about property and things and for a long time, Conditional Use
320 was thought of as potentially Contract Zoning where the local government would agree that if you come in with a particular
321 proposal and give us goodies to go with it, we will approve it but we won't necessarily limit it to particular types of uses so at
322 some point, the legislature decided to approve Conditional Districts that would allow you to set up a mechanism that would limit
323 out of its whole range of 50 possible uses in that district limited to only a few in keeping with what you were proposing to do. It
324 gets more complicated because Conditional Zoning Districts were added as a further amendment to the statutes later and that
325 terminology is confounding to people because it sounds very much the same but the point here is to do with whatever is going to
326 be an SUP in question so it gets to be technically confusing to people.
327
328 Craig Benedict: We are going to try to lock in about three different types here today. We have the General Use. I think you have
329 abetter idea that when someone asks for a General Use, you cannot set conditions, you do not get. a site plan because that is
330 done later After somebody gets the LC1 then is a permitted use in LC1 then they bring their site plan to staff and it gets
331 approved.
332
333 Samantha Cabe: Larry, there is a definition that is just Conditional Use District on page 10-7.
334
335 Craig Benedict: When we talked with Brian and Judith when were explaining something, we were using General, Specific or
336 Conditional. I think that needs to be separated into two areas. One is that you cannot set conditions in this one and the one
337 where you can set conditions is called Conditional Districts.
338
339 Samantha Cabe: Is it Conditional District or Conditional Use District?
340
341 Craig Benedict: This is the main heading and there are two categories under that. This is the way the statute says there is
342 Conditional Districts and there is the Conditional Use slot or the Conditional Zoning Districts. Both are considered Conditional
343. Districts. This was the original construct and having the rezoning to say we will approve your rezoning with a list of bigger
344 buffers, different access, etc.
345
346 Judith Wegner: A subset of what otherwise would be permissible in the General Use District.
347
348 Craig Benedict: The Conditional Use has some similarities to the Special Use Process. In the SUP process under General Use,
349 you are seeing the specific site plan and set conditions because the general use is in place already.
350
351 Judith Wegner: If you were the elected Board making the decision, you would have the possibility of someone coming in to say
352 let us have any 50 uses by redistrict or rezoning this to the LC1 or else you were the proponent of that, you would talk to staff
353 and they said that is such a wide spread you will have harder time convincing people that is a good idea if you decide you only
354 want a subset of everything in the LC1 option and you only as for a dance studio to be a subset slice of that with a permit that
355 gives you even further constraint that is much more likely to be acceptable to the elected Board and to the neighborhood
356 because it will constrain you more.
357
358 Samantha Cabe: It is important for the public to understand that all these things that have an A or B in different uses on the table
359 don't have to go through that new process. If you live in an AR and you want to have a child daycare facility nothing changes for
360 you, nothing changes for you. A majority of businesses that come up in these areas, there are still a lot of As and Bs there so
361 nothing changes for the majority of people.
362
363 Craig Benedict: We have not changed our role in this. Part of the Phase 1 UDO was to take all the General Use zoning districts
364 and all the Class As and Bs and leave them the same as they are.
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365
366 Samantha Cabe: One example of positive change would be if someone wanted a barber shop or beauty shop in their home, the
367 way it currently is that would not be possible without a complete rezoning but if their area is also zoned as one of these
368 Conditional Zoning districts, it may be possible?
369
370 Craig Benedict: Let's not answer that question. We need to let it evolve into that discussion. We have a better grasp on the
371 General Use. In that General Use, there are some permitted by right and there are some that go through a Special Use Permit,
372 Class B which goes to the Board of Adjustment and some are Class A SUP. That requires a public hearing also standards, it
373 goes to the Planning Board and to the Commissioners. The Board of Adjustment might be a three or four month time period and
374 Class A would be six to nine months or more.
375
376 Tommy McNeill: What is the result of those applications? Are they successful or unsuccessful?
377
378 Craig. Benedict: The Class B have been successful. They thought that was a business they wanted to have. Usually Class B or
379 A may not be completely compatible unless they follow these standards. There have been individuals asking for that use. There
380 has been success with that but less success with Class A SUPs. Gravelly Hill Middle School had to go through a Class A permit
381 even though it was in an Economic Development Zone. We had it noted in the Economic Development Zone as needing a Class
382 ASUP.
383
384 Judith Wegner: Conditional Districts are more constrained, more controlled than General Use Districts?
385
386 Craig Benedict: That is correct.
387
388 Judith Wegner: Do we have any Conditional District type methodology already in our ordinance?
389
390 Craig Benedict: That is what is in your agenda package. The Conditional Use and Conditional Zoning Districts track our planned
391 development standards which are in our existing zoning code, on page 21, that shows what we have presently within our booklet
392 and I will accent some the aspects of this.
393
394 Judith Wegner: What does planned development mean?
395
396 Craig Benedict: A zoning tool that someone can use to ask for a unique use that might be in the table of the conventional zoning
397 district. You might be in an R1 area. Someone could ask for a planned development residential project. A planned development
398 can be both residential, mixed use or non-residential. Planned Development can set their own standards or can match a
399 combination of these General Use Districts. For example, Churton Grove is an example of a planned development.
400
401 Judith Wegner. If you had 20 acres, you would have to othervrise seek a separate rezoning for four acres and three acres and
402 fifteen acres to make it add up.
403
404 Craig Benedict: The Planned Development is described well in the old code and the new one is to have a larger project to have
405 it planned all together to know how the roads will service those multiple uses, how the stream buffers will be preserved through
406 that larger project, how to get water and sewer there, etc. Away of looking at the entire project. In Churton Grove, there were
407 about 50 conditions set with that planned development from 1988 and we are still monitoring those conditions. Also, in a planned
408 development, you have the standards of your Conditional Zoning districts. Why are we going from PD to Conditional Use? We
409 will match item for item but the only difference is that State law talks about Conditional Districts as a big heading and talks about
410 specifically about Conditional Uses and Conditional Zoning Districts as subheadings. Before we proceeded with reviewing the
411 Buckhorn Planned Development, we made amendments to our zoning code to make our planned development look like a
412 Conditional Use Districts that is authorized by State law. That was the item we had on the agenda before because the way the
413 PD was written was weak without the statutory oomph behind it. We tried to make amendments to the PD and said we need get
414 rid of the PD and tum it in to what is more closely reflected by State statutes.
415
416 Judith Wegner: What is the ultimate difference? There is more control?
417
418 Craig Benedict: There is more control in both Planned Development and Conditional Use Districts than in general. As you will
419 see here, you will set the uses you want in there and you can set conditions during that rezoning process. Those conditions
420 should be reasonable and they have to be mutually agreed upon and cannot be imposed conditions. That is where State law
421 stepped in to say that a local government cannot have unreasonable conditions but mutually agreed upon and reasonable.
422
423 Judith Wegner: The other thing is about the site planning requirement?
424
425 Craig Benedict: Yes. There are two nuances and that is a question Alan had and one they had. Why does one have a site plan
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426 and one you don't. Let me go through Planned Development and Conditional Use Districts and page 22. This is in the existing
427 zoning code and I think there has been anxiety about this being something completely new.
428
429 Samantha Cabe: One thing that make is seem new is that looking at the Table of Permitted Uses, you don't see a planned
430 development but there is the new Conditional Use zones.
431
432 Shannon Bevy: The last three columns are CZDs not Conditional Use Districts, they are~Conditional Zoning Districts.
433
434 Samantha Cabe: How does in a Conditional Use District, someone would apply for that like they would apply now for a planned
435 development?
436
437 Craig Benedict: Correct.
438
439 Samantha Cabe: Regardless of what their current property is zoned, it could be anything on that list? It is really not different at
440 all.
441
442 Craig Benedict: It is not different at all. You can ask for PDs throughout the county. It is a legislative process that the
443 Commissioners can say it makes sense or not. We have been doing planning studies like the Efland Buckhom Mebane, the Eno
444 Economic Development District, in the Orange County Speedway area that says these areas may be more appropriate for more
445 intense growth and might be more opportunity for this creative flexible development.
446
447 Lany Wright: I understand the Permitted Uses as they are on the table but I don't understand what is on page 5-4, Exclusions.
448
449 Shannon Beny: If you would disregard the last three columns on the table when you talk about exclusions. The exclusions are
450 what you cannot ask for as far as Conditional Use District.
451
452 Samantha Cabe: If I own a big tract of land zoned Rural Residential and I wanted to do a Southem Ullage, I would go through
453 the Conditional Use process and I could not ask for any of these things to include in my project?
454
455 Shannon Berry: Yes. If you want a Conditional Use District but on the scale of Southem Ullage, you would probably go for the
456 MPD-CZ zoning district and rezone to that with the master plan concept because you would be phasing it.
457
458 Samantha Cabe: I would do a mini Southem Village. That is why the master plan wasn't used very often because it was either
459 rezoned or not.
460
461 Craig Benedict: If you have a specific project, you know what you are doing, you will be doing a CU. You are coming in with a
462 specific use or dance studio or karate studio. You can come in and ask for it and set your own standards, get it approved and a
463 site plan comes with it.
464
465 Samantha Cabe: That would be like a strip mall.
466
467 Shannon Berry: As far as the exclusions, on the list, they seem to be more intensive uses. The idea being that while you want to
468 have flexibility, these more intensive uses, you probably don't want someone to come in areas because they are very specific.
469 This give a little more leeway and approval work.
470
471 Larry Wright: In terms of the next person who comes through there, we might want to think about putting something with the
472 exclusions listed.
473
474 Shannon Berry: The footnote.
475
476 Lany Wright: It is ambiguous forme.
477
478 Shannon Berry: Excluded for a CU district. One difficulty is that the words are so similar. In the footnotes, it states CU district
479 but these are excluded from that old Planned Development stuff but not the new conditional use zoning. Anyone applying for this
480 will not do it alone.
481
482 Larry Wright: If you think about these exclusions and somehow how to wrap it around and help the reader a little more. That
483. would be helpful
484
485 May Becker: What is the standard for the planned development? Can the County Commissioners say they don't think it is a
486 good idea?
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487
488 Craig Benedict: They can say it is not a good idea. It is legislative and the standards for denial of a legislative decision are not
489 as finite.
490
491 Judith Wegner: Conditional Use rezoning of any type.
492
493 Alan Campbell: Are you talking about a Planned Development?
494
495 Craig Benedict: First rezoning and then meshed with an SUP.
496
497 Alan Campbell: Is the big picture that planned development still requires, at some level, Conditional?
498
499 Craig Benedict: Certain kinds of planned development. It is called your basic, smaller scale planned development that might ask
500 for some unique setbacks, etc. That will come in with an SUP and specific site plan.
501
502 Tommy McNeill: Can you give an example on the ground?
503
504 Craig Benedict: The only on the ground example I know is the Piedmont Electric Tower. They have their offices there. It was a
505 multiple use project with a telecommunications tower, their offices, a storage yard. They knew everything they wanted to do.
506 They brought in what the towers would look like and we went through a planned development process with the site plan and that
507 was the more smaller scale PD. That is when you have the site plan and an SUP that comes with the rezoning process.
508
509 May Becker: Could you summarize which cases don't need a site plan?
510
511 Craig Benedict: The third category is Conditional Zoning Districts. You still have the rezoning with conditions. People still ask for
512 a MPD, a conditional zoning district but I want to have a Churton Grove type of arrangement. I don't know what the store is going
513 to look like but this is where it will be, here is the road plan, the stream plan,. the drainage. They approve the rezoning with some
514 conditions. At that time there was a Master Concept Plan, not the final site plan. This is where the Master Plan differs from an
515 SUP that has a specific site plan.
516
517 Larry Wright: Do you have elevation?
518
519 Craig Benedict: It can be a conceptual elevation. How much of the land will be preserved as open space? This is more of a
520 Southern Vllage type of plan. That master concept plan is part of their rezoning petition so it becomes a guideline. They cannot
521 waiver from that Master Concept Plan.
522
523 Samantha Cabe: The 33% can be rearranged?
524
525 Craig Benedict: A little. There are two types of PDs. One you know what it is and one you don't. The second is more
526 speculative and that is what I think we would expect more of a Master Concept Plan with some of our Economic Development
527 Districts. It is not likely that someone will come in with a 20 acre Economic Development proposal and know the exact building
528 shape. The Master Concept says in pod A you can put 100,000 square foot, in pod B 50,000 square feet, and in pod C 25,000.
529 You can set all those parameters and you can max the entire project to 200,000 square feet of a certain use because you can
530 link that to how much traffic comes ftom office or retail, etc. After that Master Concept Plan comes, you do not have that specific
531 site plan. It comes through later and approved by staff looking at the standards that were created in the Master Concept Plan.
532 This is what is in our present code under the Mixed Use Planned Development. They can set all conditions and parameters to
533 make sure it is a good project. That is the difference and what we would expect is that even though Churton Grove did have a
534 SUP process with it, it actually used a Master Concept Plan that gave the latitude to not know exactly what the house looked like,
535 it didn't set the amount of square foot of the house but enough parameters that we could guide the developer.
536
537 Judith Wegner: Both gives more flexibility and also more control.
538
539 Larry Wright: Is there any time restriction between the concept plan and the site plan?
540
541 Craig Benedict: Yes it is in here. ff they know they want to break ground on the infrastructure in one year, then they say they
542 want break ground in one year, etc. You can set all the reasonable conditions on the timing and the phasing within the rezoning
543 process.
544
545 Larry Wright: Is there wiggle room if Hillsborough doesn't get the water in?
546
547 Craig Benedict: In the case of Scottswood, they were waiting to get the new reservoir going.
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548
549 Larry Wright: There is wiggle room in case conditions do?
550
551 Craig Benedict: Yes.
552
553 Samantha Cabe: These Conditional Zoning Districts are necessary because no one knows on day one what things will build out
554 to but our current structure, you have to wink and nod about adjusting things are you go because once you get a special use
555 permit, technically you should have everything planned but that is impossible so it left everyone in limbo.
556
557 Craig Benedict: When we had an attorney opinion during the Buckhom Vllage Project about having a specific site plan or not
558 and our attomey said if you are in Economic Development Zones and you do not have the ability to provide all these specificity of
559 the site plan, then you work on the Master Concept Plan. That Bubble Plan gets wrapped into it as one of the conditions of
560 rezoning. It becomes law.
561
562 Judith Wegner: Could you comment more on that? How would that be different?
563
564 Craig Benedict: Someone would ask for a Conditional Zoning District because they do not know every foot print of the building
565 when they come in. Buckhom Village would be known as the Buckhom Vllage Master Plan Development - CZD. They would
566. ask for that rezoning and proceed with the conditions of how much traffic, what are the buffers, they would do a master signage
567 plan. That could be a condition. Buckhom would more than likely be in this Conditional Zoning District program because we do
568 not know all the site plan. If they want to bring in the Phase One site plan to get clarity with that.
569
570 Judith Wegner: If they didn't, what would be the subsequent?
571
572 Craig Benedict: This Master Concept Plan would say pod A has 100,000 square feet with retailed allowed. The next phase
573 would be adopted by the Commissioners. A site plan would come into staff. The staff would review it with every department in
574 the County, DOT, any water/sewer provider to review that site plan and make sure it meets the standards and any conditions of
575 the Buckhom Village Master Plan Development -Conditional Zoning District. We then sign off and we attest that the 56
576 conditions put on Buckhom Village are being met by the site plan. That is submitted to the manager which is forwarded to the
577 Commissioners. We inform this Board that the site plan has come in for Phase 1 or Pod A of this Master Plan Development and
578 we would report on how this administrative site plan meets those conditions.
579
580 Pete Hallenbeck: Of the two columns under Conditional Districts, is it generally correct that the Conditional Use path is less time
581 than the Conditional Zoning Districts path?
582
583 Craig Benedict: I would say yes because you know exactly what the building is like and someone could go pretty fast from
584 getting this approved to working on final building plans and moving forward. This will probably take six to nine months. When
585 this Board reviews this as a rezoning and when the Commissioners review it as a rezoning, it probably moves a little faster
586 because it is finite and in front of you and you see the final site plan.
587
588 Pete Hallenbeck: If you took that chart and you flipped where those two columns, and then take those three different types of
589 zoning, General, Conditional Use and Conditional Zoning Districts, you would be going from a more general, lots of time, hard to
590 get, to a middle of the road, to a more specific least amount of time.
591
592 Craig Benedict: You could say that. This would take a little longer because you are setting parameters for some unknowns.
593
594 Pete Hallenbeck: My goal in saying this was to try to read the chart to have flow to it. The other is I am thinking of how to
595 explain this to people. With the middle of the road and Conditional Zoning, we have a rough idea but not too specific. The last
596 one is very specific.
597
598 Craig Benedict: We already said this takes a little longer but afterwards, those site plans, when the developer says that pod A
599 has a sign for it, you can put 100,000 square foot retail. If somebody comes into this site plan at that time, they can bring the site
600 plan within a four or five week period. A developer invests in a larger site, gets all this out of the way and then can market a
601 planned site. Then it happens faster and time is upfront.
602
603 Alan Campbell: Is there any real difference in the current planned development, as far as timing?
604
605 Craig Benedict: I think it is about the same. We weren't charged with changing process time frames.
606
607 Alan Campbell: That might be something for Phase 2.
608
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609 Craig Benedict: That has been mentioned as for EDD, in those zones, someone wants to come in and it takes nine months but
610 having this in the new code lets people do some preliminary work and they respond faster to the actual business.
611
612 Andrea Rohrbacher: I like the Conditional Zoning Districts especially what has happened with the economy. It gives developers
613 latitude to pursue an idea knowing they have time and flexibility with economic changes that may give them the opportunity to
614 move ahead at a certain. point or to delay.
615
616 Craig Benedict: That is an excellent point. Larry had asked about time frames. With Conditional Use, you have to do some sort
617 of development activity within one year. In the Conditional Zoning District, you can set your phasing plan. The State recognized
618 that the Conditional Use construct that was authorized by state law put a pinch on a lot of people in this economy so they had
619 two or three local bills to allow for a one year extension. In December, we did not opt out which meant we authorized another
620 one year to 2011 to allow those projects that would have expired to allow them to continue because of the economy.
621
622 Samantha Cabe: Thinking about the emails we received on the eve of the public hearing, I wonder if what scared people was
623 they saw a new zone with all the stars and permitted uses with the MPD-CZ and thinking they are going to allow someone to put
624 this there.
625
626 Judith Wegner: Hearing what we have heard tonight, if we are advising staff about what the high points were and what they
627 should say to the public in the informational session and how them might change their presentation to the Commissioners and
628 develop another two pager to hand out to people, what would we say are the most notable things we have observed about this
629 move to Conditional Use/Conditional Districts. My question would be to go around the room and say if you could say one thing
630 that would be the best way to explain this or make things clearer, what would that be?
631
632 May Becker: I have a question regarding the email the email you sent out and the Conditional Use Districts and floating districts.
633 You are scraping conditional districts?
634
635 Judith Wegner: I had thought that there may be way to do it using different terminology would be helpful to people. If you say
636 floating zones, they would understand these are not formally on the map until you apply for them however; I understand the
637 staffs desire to track the statutory language but the statutory language came in a couple different stages so I am grateful the
638 staff divided this into general then conditional. Also, as to Conditional Zoning Districts, I am very eager to get to the agricultural
639 enterprise it supported because it is initiative that I think has been around fora couple of years and that will be advanced by
640 some of these options. I don't know if there is anything beneficial in your charts. I urge staff to think about pictures as opposed
641 to small words. Anything that will help people absorb conception of what is going on and not get drowned. Having examples
642 has been helpful.
643
644 Marc Marcoplos: Is this the presentation you will give to the elected officials?
645
646 Craig Benedict: No. This was something to try to dig in.
647
648 Marc Marcoplos: I think it would be great to give the elected officials. It would answer a lot of questions.
649
650 Judith Wegner: One of the issues is this is a major change compared to something else that helped people. This makes clear
651 that this dramatic change it is helpful in some simple ways.
652
653 Larry Wright: I think the floating districts, I can see how they apply now and the way it was so ambiguous.
654
655 Marc Marcoplos: I think most of the elected officials are looking at it the same way Samantha was saying the public would look
656 at it and seeing new lingo and all these uses. It is no more complicated than that.
657
658 Judith Wegner: That was a concern and that someone would be landed upon with an airport and I think for some of the Chapel
659 Hill officials some of it had to do with the rural buffer questions. Say, in effect the rural buffer is not subject to some of these to
660 keep it from being at risk of further development. The main thing is that we have to give staff this meeting, if we have the second
661 one in February, which I would be included to do to bring up your questions about the water issues. The sooner we can clear
662 this, the sooner we can give applause that we understand it. That was one of the things Brian tried to say at the last meeting
663 because this seemed to be more enormous that we had fully absorbed. My sense tonight is that everyone is pretty comfortable
664 with this.
665
666 May Becker: I am still questioning some of the things you mentioned in your email. The differences between the Conditional
667 Use and Conditional Zoning District in terms of you need a Special Use Permit for the Conditional Use and for the Conditional
668 Zoning Districts and it is more open.
669
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670 Judith Wegner. You don't need a permit. The gist of it was, in some ways, having a permit was redundant with very closely
671 commissioned zoning requirements. I found that some of the very difficult stuff that trying to figure out what goes in zoning forms
672 and what goes in permits. I think the staff would say they like Conditional Zoning Districts because you don't have this
673 redundancy of the permits if you do it all closely with Conditional Use Districts, why is it you are having a permit in addition and it
674 would clarify for the decision makers what they are dealing with. My view was let's have both because it gives both the
675 legislative side and the fact finding side and protects you from challenges but there has not been much litigation about this stuff
676 and it may well be if you've got an elected board that is confused about which piece goes where you may walk into more
677 litigation.
678
679 Craig Benedict: The conditions that are here, these SUP conditions are no more elaborate than the conditions that with
680 rezoning. These are redundant where those are. We are not losing anything out of all those specific standards and conditions
681 that need to be met are noted here. All you lose is seeing where the tree goes in the parking lot but you have the same amount
682 of trees.
683
684 Samantha Cabe: I favor a little less control than most people. I am supporting the Conditional Zoning Districts because I think it
685 is needed. I would like to point out that I think, if in the Conditional Use, the way we have it where the BOCC approves a
686 rezoning with conditions and then it is up to the Special Use Permitting process whether they are met. It is more of an objective
687 determination whereas in the new plan, determining whether those conditions are met is purely legislative so if there is a big
688 uproar about it there is more description on the part of the BOCC to ax the plan. That can be a good thing or bad thing but that is
689 a major difference because in the Special Use Permitting process you are more likely to run into litigation.
690
691 Marc Marcoplos: You are basing that on what has been the typical makeup of the BOCC that they may be more inclined to ax a
692 project. The legislative process also allows them the flexibility gives them ability to approve a project. What if a university
693 wanted to build a research facility to study diseases and they were going to have microbes, etc. How does a facility like that ever
694 get sited in your county and what conditions are met?
695
696 Judith Wegner: Let's do one more round of any other things we would like to say about tonight's topics but I wonder could we
697 deal with the stream buffer issues in two weeks? Is that pushing it?
698
699 Samantha Cabe: Going back to the issue of freaking the public out and the new zone that is listed along with the other general
700 use districts. In my reading of the emails, they were looking at this as the County can let anything happen on expanding the
701 uses. It would be helpful coming out of the gate saying that these new zoning districts are not designated without the application
702 and approval processes. Indicate these are not mapped until someone applies and the BOCC approves it.
703
704 Judith Wegner: A lot of things about how things can help or hinder the standing. If you could do some shading to make it clear.
705
706 Shannon Berry: It is already on my notes to differentiate the new districts.
707
708 Samantha Cabe: Even though the two new definitions you have, just a conditional district definition that says it is not mapped
709 until that location pops up. We need to lead our discussion saying this is not going to be a zoned district that can be widely
710 assigned. Each individual project has to ask for the zoning and it has to go through this process.
711
712 Craig Benedict: That will be helpful.
713
714 Pete Hallenbeck: I'd reorganize that diagram and go from most general to most specific so when people look at it and it is
715 explained, then they make more sense. With regard to Conditional Districts, the concern was voiced by the citizens that you can
716 put anything anywhere. I think you should point out in the document that this is a BOCC approval event, it has to be consistent
717 with the Comprehensive Plan, it has to fit in with the area and many of these types of zoning and uses are explicitly excluded in
718 the rural buffer and residential areas. Regarding the Conditional Zoning Districts, I think it is important to point out that it is
719 faster for business. Regarding Conditional use, it is a specific site plan that is more suited for an entrepreneur effort. The MP
720 zoning flexibility if you have something come up that just can't be planned. Regarding the stream data, I would love it if you
721 could come up with information before the meeting.
722
723 Judith Wegner: When I thought I couldn't be here tonight, I sent some information in advance.
724
725 Pete Hallenbeck: I would love to see May write something up.
726
727 Judith Wegner: It would help the staff to be prepared.
728
729 Andrea Rohrbacher: I would like to see a clear explanation of the exclusions and how the conditional districts address these
730 exclusions because some of the speakers mentioned airports, that was scary. If we could present as to how this new process is
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731 protective against these scary uses rather than the new processes would be more permissive.
732
733 Rachel Hawkins: I think as Pete said if we show that it can be faster than it has been it would be an advantage because we have
734 a reputation in the state that we are the hardest people to get along with and we've got to make that........they say the same
735 thing in Chapel Hill but still I think we haven't said explicitly, like we have here tonight, it's not something hard.
736
737 Larry Wright: I agree with Pete and Andrea. I would like to emphasize in this exclusion list, it looks like in those permitted tables,
738 it is too much is being given away which is not the case at all. It is very difficult to read through that. Use chart Craig created.
739
740 May Becker. I am thinking from the discussion tonight, what we're talking about there, what I've been considering there also is
741 Samantha's original question about the person who wants to have a barber shop in his or her house and how that fits in mixed
742 use development and these types of zoning. How that might relate to sprawl versus being able to maintain a historic center,
743 walkable ....
744
745 Samantha Cabe: After the discussion I realize I should have not asked that question because it is not relevant.
746
747 May Becker. I think it's interesting too down the line if you create it where you do have people walking and people being able to
748 have the opportunity to have a business in their own home, how does that fit into the type of zoning.
749
750 Judith Wegner: Two weeks is agreeable from now.
751
752 Tommy McNeill: What is fascinating is staffs knowledge. I think we are all more educated because of the process tonight.
753
754 Marc Marcoplos: I thought you and Michael would talk briefly about did they speed up the process and you said they didn't
755 necessarily speed up the process.
756
757 Craig Benedict: That was the UDO Phase 2 to talk about what uses are in our EDD Conventional zones and how long does it
758 take to get through that.
759
760 Marc Marcoplos: A couple people said we should tell the public that it speeds it up. I would be careful.
761
762
763 AGENDA ITEM 9: COMMITTEEIADVISORYGOARD REPORTS
764 a) Board of Adjustment
765 No Meeting.
766 b) Orange Unified Transportation
767 No Report
768 c) Efland-Mebane Small Area Plan Implementation Focus Group
769 No Meeting
770
771
772 AGENDA ITEM 10: ADJOURNMENT
773
774 MOTION: Alan Campbell made a motion to adjourn. Seconded by Larry Wright.
775 VOTE: Unanimous
776
777
778
Brian Crawford, Chair
17
13
Approved 2/2/11
THE PAGES FOLLOWING WERE DIRECTED TO BE ADDED TO THE APPROVED MINUTES OF THE
JANUARY 5, 2011 PLANNING BOARD MEETING BY THE PLANNING BOARD AT THEIR FEBRUARY 2,
2011 PLANNING BOARD MEETING
18
2
NOTE: Chart used during staff presentation at meeting
GENEF~AL
USE
DISTRICTS
CGNDITfoNAL
DISTRICTS
(More
General)
REZONING
without
Conditions
r . r r. r ~~ r
Time
~ months
I. ~ ... ~ r r~ r r. r
(More Specific)
CONDITIONAL CONDITIONAL
USE ZONING
DISTRICTS
Rezoning with Rezoning with
Conditions Conditions
SUP Master
Conte t Plan
._ -. - -- .- - - --r
Admin. Time
Site Plan 7 months
Single Use or Time '
Mixed Use 8-9 months ~
~ w ^~ r .....~ r rr. r raw
19
20
NOTE: E-mail from Judith Wegner and all files attached to the e-mail
From: Wegner, Judith Welch [mailto:judith_wegner@unc.edu]
Sent: Saturday, December 04, 2010 3:09 PM
To: Wright Larry; Brian Crawford L.; Perdita Holtz; Alan Campbell; arohrbacher@earthlink.net; Earl
McKee; Mark Marcoplos; May Becker; Pete Hallenbeck; Samantha Cabe; Tommy McNeill; Craig Benedict;
Michael Harvey
Cc: Wegner, Judith Welch
Subject: RE: Conditional Districts discussion at QPH: More From Wegner
Importance: High
Hi, folks. I'm hoping not to kill your inboxes by sending you too much information, but did want to offer
some thoughts in response to Larry's mails.
1. First, as to *conditional use districts and spot zoning.* As Larry knows, I've tried to explain this
previously because I've written on this subject and understand why it can be confusing. I'm going to
give it another go here:
a. Traditional districts. Traditionally, areas within a city or county are "mapped" in accordance
with a standard set of district definitions, characteristics, and eligible uses. Thus, in simple terms
(forgive me if this is overly simple... just trying to lay it out straightforwardly), an area might be
"mapped" as R-1 residential (meaning that residential uses with certain lot sizes, setbacks, heights, etc.)
are permitted as of right; or C-1 commercial (meaning that certain commercial uses are permitted with
related lot sizes, characteristics, setbacks, etc.) as of right. In addition, most districts have associated
"conditional uses" meaning that such uses are permissible after an elected board or board of
adjustment hearing with particular factual findings that say that the proposed uses are not problematic
in the particular context (for example, day care centers might be allowed as a conditionally permitted
use in a residential or commercial area if transportation considerations are met; gas stations might be
permitted as a conditional use in certain commercial contexts but not if there were traffic problems
associated with them).
b. Rezoning (changing district designation as to given property). When proposals are made to
rezoning a given locale from one district designation to another, that process is seen as a "legislative
process" so that there is a good deal of discretion in the hands of the elected board that has to make the
decision whether to grant the rezoning request (or not). In addition, rezoning proposals may require
"super majority" votes of the elected board if there are petitions filed by those owning adjacent
property in some circumstances.
c. "Spot zoning:' The term "spot zoning" has used by courts when they are suspicious about an
elected board's decision to rezoning (because in effect, the area being rezoning is a "spot" that is out of
character with surrounding district designations). The courts therefore *apply more intensive inquiry in
such contexts,* but *that does not mean that rezoning a "spot" to a different designation is per se
illegal (only that the decision must be looked at more closely). The particular concern sometimes
focuses on a snazzy proposal presented from a given developer for a particular type of development in a
given district (for example, a proposal to rezone in order to allow commercial use in a previously
residential local in order to build a modest office building). The developer shows great plans and makes
great promises. The problem is, once a rezoning is approved from one district to the next, *all* the uses
allowed as of right for the new district designation would be available. The developer could sell off to
someone else, and something entirely different could then be built based on the approval that had
assumed the initial facts from the first proponent would continue to apply. There are related concepts
21
that have historically been flagged as problematic, including "contract zoning' (in which a developer
may offer inducements as part of a proposal for rezoning... great park land or something of that sort) in
order to seduce the elected board to accept the proposal. That approach, too, has been found to be
problematic if the elected board has not looked at all the possibilities and reasons for/against the
project and how the rezoning would square with the comprehensive plan. I've attached a separate
excerpt from Dave Owens at the UNC School of Government relating to spot zoning for your
information.
d. *Conditional Use Districts* (NOT YET "Conditional Districts"). Conditional use zoning
districts have been expressly authorized by the state legislature as a means of avoiding the perils that
might arise from these kinds of dynamics. In effect, *conditional use districts* (we'll get to "conditional
districts" later, so stay with me here)... *Conditional use districts*are generally set up as a kind of
"parallel universe" to standard zoning districts. That is, for example, if there's a standard industrial
district (call it the *Standard Industrial 1-One District*) it might allow as of right a whole variety of
uses... lumber yards, quarries, warehouses, printing plants, breweries. Imagine in the parallel universe a
*Conditional Use Industrial 1-One District* that a developer might also consider, but in that instance,
the developer would only seek rezoning to permit *one* of the listed uses (maybe a *warehouse* but
*not a printing plant, quarry, or brewery*). The developer then could either (a) seek rezoning of a
particular local to *Conditional Use Industrial I-One District* designation, and, if approved, could only
use the site for a warehouse. Alternatively (bj the developer could seek redevelopment to the
*Standard Industrial I-One District* in which the full range of uses would be allowed as of right. In most
cases, having these two options available is better public policy because it allows more tailored
authorization of only particularized uses not a broader range of uses. In addition, the "Conditional Use
District" approach typically includes an opportunity to combine a *conditional use permit* along with
the targeted *conditional use district* (the one that would only allow the warehouse). As a result,
there's a double layer of very targeted and nuanced requirements. First, the elected board has
considerable discretion to say "yes" or "no" to the rezoning to conditional use district (seen as a
legislative determination and difficult to overturn on appeal if the elected board says no to the
rezoning); in addition, the elected board gets to impose detailed requirements on the project (such as
buffers, site plans, planting requirements, etc.) to be sure that surrounding properties are protected.
The reference that Larry made to the Dave Owens (School of Government) publication may be unclear
because it only says that the judicial standards relating to spot zoning need to be applied if a given small
area is rezoned (whether to a new general district or to a new conditional use district). That's not
unreasonable. The fact is that the *conditional use district* approach allows governing boards to use a
scalpel in deciding whether to permit a different use (rather than a whole band of new uses including
some that might not fit).
e. *Conditional use districts in Orange County: Wegner views.* I, for one, think we need
conditional use zoning districts but in more focused arenas that have currently been proposed. I'm
attaching comments I sent to staff earlier this week on that point. I'm also attaching the speedway small
area plan and an earlier presentation on agriculture support enterprises (both important initiatives that
are currently stalled and which had anticipated using conditional use districting structures in order to
achieve important objectives). I just wanted to go on the record assaying that the Planning Board has
historically encouraged staff to move forward with conditional use districts as a means of implementing
these and other projects. I think that this point (as I said in the note to staff this week, attached) that
we would do well to develop conditional use districts in targeted arenas (rather than employing them
everywhere in the county) because we could then more clearly explain their function and importance to
achieve substantive objectives. Let me provide some examples. First as to the *Speedway Small Area
22
Plan* (background attached here): the ideas proposed by the working group included targeted,
selected, careful rezoning in ways that would tailor added, environmentally sensitive uses that would
nonetheless serve economic development objectives (again, by rezoning to a new *conditional use
district* with a narrowed band of permitted use and a conditional use permit (unlike the parallel
general district), it would be possible to make suitable accommodations between existing and proposed
new uses. The same is true as to *agricultural support enterprises* (actively discussed in 2007 as
indicated in attached background, but also discussed again in late 2009 by the BOCC regarding
agricultural initiatives in the county... the file is 6 MG plus so I don't want to attach here but can send
separately and probably will later via "you send it"). The idea here has been that the County should
encourage the ability of farmers to introduce targeted companion uses in agricultural districts without
having wholesale rezoning to permit industrial uses in general. Thus, back to my earlier industrial
example. A particular farm might want to become a distribution center for "community supported
agriculture" (that is, a pick-up point for weekly vegetables that have been paid for by individuals in
advance)... or it might want to create a microbrewery on site. You can see that there might be a need
for a tailored approval for things of that sort... are there going to be more traffic impacts in the first
instance? Are there issues about adequacy of space, smells, water supplies in the second? If there were
some sort of special Agricultural Development *conditional use district" created, it might be possible to
allow such uses on a targeted basis, without allowing any and all throughout the district. I think it's
important that we get going in this arena before we lose our farms. A conditional use district approach
would be very suitable for that purpose. It would also be helpful in other areas where we have not yet
done small area plans... for example along NC 54 where proposals for certain business development by
UNC or the county or others might have been addressed through general district controls... much better
to have more tailored options. In some ways, I hope I've shown that overall conditional use districts
may be helpful on a fairly wide-ranging basis. On the other hand, if people don't fully understand them,
and if we want to get the kinks out, maybe we should go stow and start with authorizing them in only
specific areas. That's my suggestion for a compromise at this point.
2. Second, as to *conditional districts.*
a. *Generaily on "conditional districts" (better to be ca{led "floating zones").* I think the
terminology used in the new UDO is very confusing when used at the same time that the term
"conditional use district" is being introduced. The classic term for this kind of thing is indeed *floating
zones* (better, perhaps, "floating districts' so we don't think that we're moving into the Bermuda
Triangle). The term "floating zone" has been used for 50 years or more so it shouldn't be that scary).
That doesn't mean that the aliens are landing and taking us away. Instead it means that there are
certain kinds of uses (framed as districts) that should be defined in advanced, but not put on the map
until a rezoning request is made by a property owner and the governing board does an appropriate
review and approves. I think this shouldn't be a worrisome concept... it's really well-established
standard practice here and elsewhere. it's just that we've had a confusing name change proposed and
we should instead return to standard terminology in the first instance.
b. *When and how to use the floating district concept.* One such use is the classic "planned
development" (often with mixed uses). Another is a "shopping center" which may be of a scale that
needs extra review and which shouldn't be put on the map so as to favor one particular property owner
in advance. Yet another might be a "mobile home park" or an "airport." Indeed, I have suggested that
airport use be treated as a floating zone so that the governing board has the maximum authority to
decide whether to authorize such use at all (rather than treating an airport as a type of use as of right or
with a special use permit in any existing district). The reason I feel that way is that there are many,
23
many questions about the impact of a possible airport (as those of us who fought against the proposed
UNC airport location are well aware)... environmental, traffic, safety, poliutian, effect on nearby lands,
and more. I'm not sure that I'm yet at peace with the proposed types of floating districts in the UDO.
Mobile home park makes sense. It may 6e that for the other proposals (airport, public interest and
master planned), I think we need something more: floating zone with permit also required so
something along to the lines of a "conditional use district" but for certain uses that have not "general
zoning district counterpart." If the Planning Board agrees with that proposition, I think it could help us
move ahead by (a) focusing on whether some "floating districts' should be authorized in concept but
only if combined redistricting and permit approval are incorporated, and {b) if so, which uses should be
treated in that way.
c. *Larry's point about limiting the use of floating districts.*
i. *Barring rezoning?* I also wanted to respond to Larry's particular question
about whether "floating zones" could be foreclosed in AR or RB designated zones. I have two
thoughts here. First, "floating districts" involve rezoning from an existing zone to one of the
new "floating zones." Thus, I think it's problematic to say that some areas of the county could
never 6e rezoned {which would be the result if that tack were taken).
ii. *Crafting particular district requirements.* On the other hand, I think that it
would be very possible to frame the details of any given floating district to say more about when
it should be used, what compatibilities are required to satisfy the comprehensive plan, etc. So,
for example, an "airport floating district" might be described as one requiring a minimum parcel
of xxx size; a distance from environmentally sensitive, water bodies, residential uses, school
uses, of xxx; proximity to certain transport corridors [if fuel is being brought in and out] of xxx;
compliance with FAA requirements re flight paths, meteorology, etc.; necessity based on public
necessity [not just private preferencesj)... (have old files from the time of fighting against the
airport that 1 could pull out if needed on this point.
ii. *Rural buffers and watershed.* As to rezoning in the rural buffer or protected
watersheds: Since these are areas of mutual concern to the municipalities as well as the county,
it might be that we could propose to the BOCC that they enter into some kind of mutual
agreements with the affected municipalities that rezoning in such areas requires a higher level
of approval (the statutes provide for supermajority approval of rezonings if there are protest
petitions from specified neighbors... I think [but haven't researched] that there might be a
possibility to do something of this sort pursuant to legislation that related to joint planning or to
provisions relating to intergovernmental cooperation but someone would need to research
that. It seems to me that this is a broader question than just "floating districts" (since rezoning
to districts other than floating districts has implications for shared commitments/obligations as
well). Maybe we could request further legal counsel on this point.
*Process, timing and next steps.*
a. *2/28 Public Hearing.* Perdita kindly shared the draft of our resolution and a proposed
schedule with Brian and me on Thursday. I'm attaching my response and my suggestions on the
schedule. In particular, I responded that I thought we anticipated that the BOCC would want to hold a
hearing on the UDO and anything else we've been able to propose for revisions at the date set for public
hearing in late February. I don't think treating that meeting as a work session is functional because the
24
thrust of the feedback we received was that people hadn't had a time to digest the document and
wanted a chance to be heard at a later date. If we treated the fate February date as a "work session" we
should thereafter hold another public hearing and that would set the timing back significantly. If I was
unclear on that point at the meeting, I wanted to say I'm sorry but to clearly communicate to all that
what I'm saying here was how I thought things would proceed. I ran into Alice Gordon at the grocery
store and she said that was what she thought as well.
b. *Alice Cordon's helpful framing.* I also asked Alice to share by email the careful comments
and framing of questions that she had offered at the hearing (and am attaching those here for those
who were not able to attend the 11/22 BOCC/PB public hearing). I hope that these comments will help
everyone in their reading of the UDO.
c. *January 5 Planning Board meeting.* I regret that I have to be at a meeting in San Francisco
1/5 but will try to attend by conference call if I can. In the meantime, I wanted to try to help everyone's
understanding and efforts to decipher the details of the UDO by writing at some length here. I also think
that it's crucial that we do our best to share our thoughts and get them to staff as well as soon as
possible because we're coming up on the holidays and we need to give them time to digest and think
about our views.
d. *Lawyers and our limitations*. I want to note that I do not wish or intend to play an
overweening role in the Planning Board deliberations or to ask anyone to put too much weight on my
legal background (we're lucky to have several lawyers, including Brian, Samantha, and Alan in our
midst... but I'm sure that all of them would join me in saying that we don't claim wisdom that would
exceed anyone else since all members of the board have long had very interesting, diverse, and wide-
ranging backgrounds that contribute substantially to the collective deliberations... the law is just one
lens that sometimes helps and sometimes obfuscates... I've written at length here in part because I've
taught land use law and really thought a lot about these issues ... and also feel bad to miss the 1/5
meeting... so have tried to put some of my thinking in writing for your consideration in advance).
I guess that's more than enough for one afternoon. Enjoy the snow! Best--Judith
25
UDO Comments from Judith Wegner to Staff I2/1/2010
Hi, folks. Thanks for sharing the statement ofthe motion adopted by the Planning Board last
night and the proposed schedule to accompany the resolution.
I think that the statement of the motion (below) is accurate. I think that the initial proposed UDO
schedule that you attached misses some important nuances and have accordingly attached both
the initial draft from Perdita and a revision that I think more accurately reflects the Planning
Board discussion last night.
I particular, I think that the UDO schedule should anticipate an opportunity during the 2/28/2011
joint BOCC/Planning Board meeting for public comment on the November version of the UDO
as well as any proposed changes identified from the Planning Board that were submitted to the
BOCC by that date. I really don't think that the Planning Board viewed this occasion as a `work
session"... but rather as an opportunity for public commentary. I've also included other
revisions in the prosed UDO schedule to bring the summary more closely into conformity with
my understanding of last night's discussion.
I also wanted to some observations about how to proceed with the conditional use
districts/conditional use districts discussion moving forward. As it happens, I ran into Alice
Gordon and her husband at the grocery store late this afternoon on my way home and talked
about some of these ideas.
1. I think that the use of the terms "conditional districts" and "conditional use
districts" makes things very confusing for the public. I think that "conditional districts" might
better be termed "floating zones." At the same time, in retrospect, I admit that I'm confounded
by the decision to identify only three "conditional districts" as ones involving mobile home
districts, "master planned" districts" and "public interest districts." I honestly don't recall
discussion by the Planning Board as to use of the term "conditional district" or a limited focus on
these three types of "conditional districts" (in effect floating zones). There are other traditionally
recognized "floating zones" and I think that the Planning Board should discuss (a) whether this
terminology ("conditional districts") is advisable or unduly confusing (I think it's confusing,
particularly in the context of referencing "conditional use districts" as well). I also don't
understand why these three types of "conditional districts" are the only ones identified and am
bemused about the categories and why they have been selected rather than others. I think that
this topic deserves considered attention on its own footing and would be happy to meet with any
of you during December to share these concerns and help shape the conversation for the PB in
January. Absent such a meeting, I plan to write about this topic to the PB and BOCC (since I'll
have to miss the 1/5 PB meeting).
2. As to "conditional use districts": I think that this concept is not clear to lay people,
and that the wide-spread application of this concept to all districts is ultimately inadvisable at
this juncture. I'd suggest that the planning staff, Planning Board, and BOCC consider targeting
26
certain districts (not all districts) as suitable for the establishment of companion "conditional use
districts" parallel to general districts with a wide range of uses that would be permitted as of
right. In talked with Alice Gordon about this topic at the grocery story, I think there may be
common ground if everyone focused on the areas in which "conditional use districts" have an
obvious benefit: possibly agricultural districts (where a narrower band of uses might be suitable
and would limit wide-ranging rights of use, so as to make the narrower band of uses available
under a conditional use district conceptually desirable); likewise certain economic development
districts; likewise a certain narrow range of commercial-type districts. I think that trying to
establish the need for parallel conditional use districts for every type of existing district is a
harder case to make and is confusing to lay people who haven't worked with the details. As I
recall, I think Planning Board (or at least I) thought that it was desirable to incorporate a
conditional use district concept to respond to proposals relating to some of the "small area
planning" initiatives that had been articulated over the last several years. I understand that the
planning staff may think that conditional use districts are generally desirable for the purpose of
flexibility... but on the other hand, I think that introducing this concept to the BOCC and the
public would be better advanced by focusing on creating specific conditional use districts that
parallel only some (not all) of the general districts (so that people can begin to see the benefit and
the methods that such districts employ). I appreciate the planning staff's possible preference to
incorporate a conditional use district protocol across the board, but I really think we'd get further
if we focused on some specific areas in which conditional use districts are potentially most
viable and most important rather than trying to incorporate parallel conditional use districts
across the board.
3. I don't think the debate is necessarily well advanced by trying to incorporate
conditional use districts across the board. I also think that there are textual issues here (as Alice
Gordon indicated). That's one of the issues that I hope to look at closely in the coming days.
Just thought I should note these observations as early as possible to allow the planning staff to
offer their own thoughts on these points.
Best wishes--Judith
MOTION made by Judith Wegner to:
Number 1 that the Planning Board expresses its intent and desire and commitment to
work in detail with Conditional District and Conditional Use District by having two
meeting in January and to address stream buffer issues in a meeting early in February.
Number 2 that the Planning Board recommends that the staff meet with any of the
interested other municipalities in the County during the month of January to provide them
with information and to solicit their input.
Number 3 that the Planning Board commits itself to submit to the Board of County
Commissioners substantive recommendations by the middle of February so that the
Board of Commissioners can determine whether they would like to calendar a further
discussion of those matters for the end of February scheduled public hearing.
Number 4 that the Planning Board recommends that the planning staff hold an additional
outreach meeting by the end of January to inform the public more fully about issues,
particularly Conditional Districts and Conditional Use Districts.
2
27
Number 5 that the Planning Board further commits itself to develop a proposal for the
priorities among the continuing issues to be considered in part two of this process and
will advise the Board of County Commissioners about its recommendation by mid March
on that point.
Seconded by Larry Wright
VOTE: 9 -1 (Cabe opposed)
28
httn://www. so ~.unc. edu/oraanizations/p lannins/keyis sues/spot.htm
Key Legal Issues
Spot Zoning
David W. Owens, Professor, Institute of Government, The University of North Carolina at
Chapel Hill, CB# 3330, Knapp Building, UNC-CH, Chapel Hill, N.C. 27599-3330
May 1998
Spot zoning occurs when a relatively small tract of land is zoned differently from the
surrounding area. In North Carolina, spot zoning is not illegal in and of itself, as it is in many
states.[1] However, it must be clearly supported by a reasonable basis to be upheld.
The precise legal basis for invalidating certain spot zonings has not been explicitly set forth by
the North Carolina courts, but invalidation could be based on the state constitutional prohibitions
against the granting of exclusive privileges,[2] the creation of monopolies,[3] or the violation of
due processor equal protection of the law.[4] The admonition in the zoning enabling acts that
zoning be in accordance with a comprehensive plan is another ground for invalidation.[5]
Although flexibility is granted to have relatively small zoning districts, the court is sensitive to
ensuring that there is a legitimate public interest in having a small district and will invalidate
rezonings in which one owner benefts or is relieved from zoning burdens at the expense of his
or her neighbors and the community at large.
The table below summarizes the eighteen reported North Carolina appellate decisions on spot
zoning.
Overview of Spot Zoning Cases
Case Court Date Parcel Size
(acres) Zoning Change
Invalidated
Allred Sup.Ct. 1971 9.26 To higher density residential
Blades Sup.Ct. 1972 5 To higher density residential
Stuffs Ct. App. 1976 4 To mobile home park
Lathan Ct. App. 1980 11.4 Residential to light industry
Godfrey Ct. App. 1983 17.45 Residential to heavy industry
Alderman Ct. App. 1988 14.2 Agricultural to mobile home park
Mahaffey Ct. App. 1990 0.57 Residential to commercial
Covington Ct. App. 1992 1 lot Office to conditional use business
Budd Ct. App. 1994 17.5 Residential-agricultural to special use industrial
Upheld
Walker Sup.Ct. 1960 3.5 Residential to neighborhood business
Zopfi Sup.Ct. 1968 27, 12, 20 ComxnerciaUresidential to commerciaUmulti-family residential
Heath Sup.Ct. 1971 15 Residential to mobile home park
Allgood Sup.Ct. 1972 25 Residential to commercial
29
Graham Ct. App. 1982 30.3 Residential to office/conservation
Nelson Ct. App. 1986 1 lot Residential to business
Chrismon Sup.Ct. 1988 5, 3 Agricultural to conditional use industrial
Dale Ct. App. 1991 4.99 Residential to highway commercial
Purser Ct. App. 1997 14.9 Residential to conditional use commercial
Definition
Rezonings that will be subjected to more intensive review as spot zoning were simply and
concisely defined in North Carolina's first case on the subject, Walker v. Town of Elkin, as
zoning "changes limited to small areas."[6] In 1968 in Zopfi v. City of Wilmington,[7] a case
that upheld rezoning of a 60-acre parcel into three zoning districts, the court ruled that illegal
spot zoning arose "where a small area, usually a single lot or a few lots, surrounded by other
property of similar nature, [was] placed arbitrarily in a different use zone from that to which the
surrounding property [was] made subject."[8] Four years later in Blades v. City of Raleigh,[9] a
case that invalidated a 5-acre rezoning, spot zoning was more completely defined thus:
A zoning ordinance, or amendment, which singles out and reclassifies a relatively small tract
owned by a single person and surrounded by a much larger area uniformly zoned, so as to
impose upon the smaller tract greater restrictions than those imposed upon the larger area, or so
as to relieve the small tract from restrictions to which the rest of the area is subjected, is called
"spot zoning: ' [ 10]
There are several notable aspects to this definition. First, spot zoning can be an issue with initial
zoning as well as with subsequent rezonings. Second, no specific nninimum or maximum size of
area constitutes spot zoning. The size of the tract must be considered relative to the surrounding
area. A 20-acre rezoning in a rural setting where that tract and thousands of adjacent acres have
previously been zoned the same way may be spot zoning, whereas a 1-acre rezoning in a dense
urban setting with numerous zoning districts may not be spot zoning. In the North Carolina cases
that have resulted in invalidation of rezonings as illegal spot zoning, the size of tracts involved
has ranged from 0.57 to 17.45 acres. Third, there is an emphasis on a very limited number of
property owners being involved, "usually triggered by efforts to secure special benefits for
particular property owners, without regard for the rights of adjacent landowners."[11] A large
number of affected parties is more likely to bring the rezoning to broader public scrutiny. Fourth,
spot zoning can be involved when the proposed new zoning requirements for the small area are
either more or less strict than those for the surrounding area. The key element is that the
proposed zoning is different from the other zoning, "thus projecting an inharmonious land use
pattern."[12] In sum, the heightened scrutiny of spot zoning applies when there is the appearance
of possible discriminatory treatment (either favorable or negative) for a few, rather than a
decision based on the larger public interest.
Factors in Validity
A local government adopting a "spot" zone has an affirmative obligation to establish that there is
a reasonable public policy basis for doing so.[13] Thus the public hearing record should reflect
consideration of legitimate factors for differential zoning treatment of the property involved.
Does the property have different physical characteristics that make it especially suitable for the
proposed zoning, such as peculiar topography or unique access to roads or utilities? Are there
30
land uses on or in close proximity to the site that are different from most of the surrounding
property? Would the proposed range of newly permissible development be in harmony with the
legitimate expectations of the neighbors?
In Chrismon the court set out in detail four factors that are considered particularly important by
the courts in determining whether there is a reasonable basis for spot zoning:
At the outset, we note that a judicial determination as to the existence or nonexistence of a
sufficient reasonable basis in the context of spot zoning is, and must be, the "product of a
complex of factors." The possible "factors" are numerous and flexible, and they exist to provide
guidelines for a judicial balancing of interests. Among the factors relevant to this judicial
balancing are the size of the tract in question; the compatibility of the disputed zoning action
with an existing comprehensive zoning plan; the benefits and detriments resulting from the
zoning action for the owner of the newly zoned property, his neighbors, and the surrounding
community; and the relationship between the uses envisioned under the new zoning and the uses
currently present in adjacent tracts. Once again, the criteria are flexible, and the specific analysis
used depends on the facts and circumstances of a particular case..[ 14]
A review of North Carolina litigation illustrates the application of these factors to spot zoning
challenges of rezonings.
Size of Tract
The first factor to be considered in determining whether spot zoning is reasonable is the size of
the tract. The general rule is that the smaller the tract, the more likely the rezoning will be held
invalid. However, it is very important to consider the size of the tract in context: a 1-acre parcel
may be considered large in an urban area developed in the 1920s, but very small in the midst of
an undeveloped rural area.
The rezoning of an individual lot from asingle-family and multifamily residential district to a
business district was upheld in Nelson v. City of Burlington.[15] In this instance the majority of
property directly across the street was already zoned for business use, and the court concluded
that given the prevalence of business zoning in the immediate vicinity of this lot, there was
"some plausible basis" for the rezoning.[16] However, a rezoning of 17.6 acres from residential
agricultural to industrial was held to be spot zoning in Budd v. Davie County.[17] was ruled
impermissible spot zoning (the site was some four to five miles from the. nearest industrial zone,
with all of the intervening property being in residential districts). A 17.45-acre rezoning was
ruled to be impermissible spot zoning in Godfrey v. Union County Board of Commissioners.[18)
This case involved a rural tract that was zoned for single-family residential use, as was all of the
surrounding property, and the rezoning was to an industrial district. Similarly in Alderman v.
Chatham County,[19] the rezoning of a 14.2-acre tract from a residential district to a mobile
home park, when the surrounding 500 acres were residentially zoned, was ruled to be spot
zoning.
The fact that other small areas nearby have similar zoning to that proposed in a rezoning will not
avoid a spot zoning label. The tract to be rezoned is considered in relation "to the vast majority
of the land immediately around it."[20]
31
Compatibility with Plan
The second factor in a spot zoning analysis is compatibility with the existing comprehensive
zoning plan. This involves an inquiry into whether the rezoning fts into a larger context
involving rational planning for the community. Whether set forth in a formal comprehensive
land-use plan or reflected in an overall zoning scheme, zoning regulations must be based on an
analysis of the suitability of the land for development (e.g., topography, soil types, wetland
locations, and flood areas), the availability of needed services (e.g., water, sewers, roads, and rail
lines), and existing and needed land uses. To the extent that asmall-area rezoning fits into a
logical preexisting plan that is clearly based on this type of analysis, it is much more likely to be
upheld.
An example of a zoning scheme involving relatively small parcels that was judged acceptable
because it fit the context of the land and the surrounding uses is found in the Zopfi case. The
court upheld the rezoning of a 60-acre triangle formed by two major highways, into three zoning
districts with decreasing density moving away from the point of the highway intersection. A
27.5-acre parcel at the point of the intersection was zoned commercial, the next 12 acres were
zoned for multifamily residential use, and the remainder were zoned for single-family residential
use. Similarly in the Nelson case the rezoning of a lot from single-family and multifamily
residential use to business use was upheld on the basis that the majority of the property directly
across the street was already zoned for business use. .
A contrast is provided by situations in which there is no discernible reason to single out a small
tract for differential zoning treatment. Several North Carolina cases illustrate this point.
In Stuffs v. Swaim[21 ]the town of Randleman had in 1967 zoned virtually all of its entire half-
mile extraterritorial zoning jurisdiction (some 500 acres) for one- and two-family residences. An
attempt in 1968 to rezone a 4-acre tract to a mobile-home zoning district, when there were no
special characteristics present on that site, was ruled invalid spot zoning.
A similar situation was presented in Lathan v. Union County Board of Commissioners.[22] In
this 1980 case an 11.4-acre rezoning from residential to industrial use was ruled to be invalid
spot zoning. A sawmill on the site was being operated as a nonconforming use, and the rezoning
was necessary to accommodate the facility's expansion. The site had no access to major
highways, rail lines, or public utilities, and the planning director concluded that industrial
development would be incompatible with the surrounding residential community. Nevertheless
the planning board recommended that the tract be rezoned as requested.[23] The Union County
commissioners agreed with the planning board's recommendation and adapted the rezoning. The
adjacent landowner then sued and won in court. The court of appeals ruled that no special
features on the tract made it any more suitable for industrial use than the surrounding property
was. The rezoning was invalid spot zoning because there was no clear showing of a reasonable
basis for the rezoning.
In Godfrey v. Union County Board of Commissioners,[24] another Union County rezoning was
successfully challenged on similar grounds. The comprehensive plan designated the area as a
low-density residential district, and the nearest industrial uses were approximately a half mile
away. The owner sought rezoning to heavy industrial use because he wanted to relocate a grain-
32
bin operation to the site. The planning director recommended approval of the rezoning from
residential to industrial use based on the site's accessibility to a major highway, a railroad, and
public water. The planning board approved the recommendation, and it was narrowly adopted by
the county commissioners. The court invalidated the rezoning, fording that the `whole intent and
purpose ...was to accommodate his plans to relocate his grain bins, not to promote the most
appropriate use of the land throughout the community."[25] The court acknowledged the
availability of some services that would make this tract suitable for industrial development, but
concluded that the same was true ofthe surrounding property and because this tract was
"essentially similar," there was no reasonable basis for zoning it differently.
Mahaffey v. Forsyth County[26] illustrates the growing importance of a formal comprehensive
plan and the recommendations of the planning board in spot zoning analysis. In this 1990 case a
0.57-acre tract was rezoned from a residential and highway-business district to a general-
business district (both the prior highway-business district and the new general-business district
were special use districts). The comprehensive plan designated the area as "predominantly rural
with some subdivisions adjacent to farms." The planning staff and the planning board
recommended against the rezoning, but it was adopted by the board of commissioners. In ruling
the action to be illegal spot zoning, the court pointedly noted, "[T]he County Planning Board and
Planning Board Staff, made up of professionals who are entrusted with the development of and
adherence to the comprehensive plan, recommended denial of the petition." [27]
A similar result was reached in Covington v. Town of Apex,[28] in which the rezoning of a
single lot from office and institutional use to conditional-use business was held to be
impermissible spot zoning. The court concluded that the rezoning contradicted the town's
policies on Location of industrial uses, as set forth in the comprehensive plan. The court also
found minimal benefit to the public and substantial detriment to neighbors.
In Budd v. Davie County[29] the rezoning of a fourteen-acre site along the Yadkin River, along
with ahalf--mile long, sixty feet wide accessway, from residential-agricultural to industrial to
accommodate a sand mining operation was invalidated in part because it directly contradicted the
previously adopted policies for the area. The zoning ordinance's stated intent for the Rural-
AgriculturalDistrict was to .maintain a "rural development pattern" with an aim "clearly to
exclude commercial and industrial uses."[30] Based on such considerations, the planning board
twice recommended denial of the rezoning petition. The court held the rezoning was in direct
contravention of the stated purpose of the comprehensive zoning scheme and this factored into
invalidation ofthe rezoning.[31]
On the other hand, consistency with a comprehensive plan can justify differential zoning for a
small tract. In Graham v. City of Raleigh,[32] a 1981 case, the rezoning of a 19.3-acre tract from
a residential to an office district was upheld in part based on the need to rezone the property in
accordance with the nodal concept of development of Raleigh's comprehensive plan.[33]
It should be noted that formal amendment of an inconsistent comprehensive plan is not
necessarily required to avoid a fording of illegal spot zoning, though a reasonable basis for the
deviation must be established. In Purser v. Mecklenburg County[34J the court upheld a rezoning
of a 14.9 acre tract from residential to a business conditional use district to allow construction of
33
a neighborhood convenience center. The county's small area plan for the site indicated a nearby,
but different site, was suitable for such a center. However, testimony at the public hearing
indicated the suitability of the other site was dependent upon construction of as yet un-built roads
and that shifting a center to the site in question would be consistent with the policies in the
county's general development plan.
Benefits and Detriments
The third factor in spot zoning analysis is who benefits and who is harmed by the rezoning and
what the relative magnitude of each consequence is. If the rezoning is granted, will it greatly
beneft the owner? Will he or she be seriously harmed if it is denied? The same questions must
be asked for the neighbors and the community at large, and then the effects on all three must be
balanced. In a spot zoning challenge the courts, rather than the governing board alone, review
and weigh the balance of harm and benefit created by the rezoning.
Although the court may be sympathetic to a situation in which there is considerable benefit to the
owner and only modest harm to others, even a substantial benefit for the owner will not offset
substantial harm to others. An example is found in the rezoning ruled invalid in Blades. This case
involved rezoning a 5-acre tract in the midst of a large single-family zoning district to a
multifamily district in order to allow twenty townhouses to be built. The court found that no
reason was offered to treat this property differently and that considerable harm to the character of
the existing neighborhood might result. [35]
The Chrismon case illustrates the other side of this analysis. The court noted:
[W]hile spot zoning which creates a great benefit for the owner of the rezoned property with only
an accompanying detriment and no accompanying benefit to the community or to the public
interest may well be illegal, spot zoning which provides a service needed in the community in
addition to benefiting the landowner may be proper.[36]
In Chrismon the rezoning of a 3-acre and a 5-acre tract from an agricultural district to a
conditional-use industrial district in order to allow an agricultural chemical use was upheld. The
court weighed the benefit to the owner, the harm to the immediately adjacent neighbor, the broad
community support for the rezoning, and the need for these services within the surrounding
agricultural community, and concluded that there were "quite substantial benefits created for the
surrounding community by the rezoning."[37]
The benefits to the community must, however, be real and substantial, not merely convenient.
For example, in the Mahaffey case it was argued that rezoning a 0.57-acre tract to allow
establishment of an auto parts store would be beneficial to a rural community in which virtually
everyone depended on automobiles. The court rejected this argument, noting, "[A]uto parts are a
common and easily obtainable product and, if such a retail establishment were said to be
'beneficial to a rural community,' then virtually any type of business could be similarly
classified."[38] Likewise, in Budd the court ruled generalized benefits from increased business
activity related to operation of a sand mine did not offset harm to neighbors that would have
been generated by substantial heavy truck traffic in a rural residential area.[39]
34
Relationship of Uses
The fourth factor in spot zoning analysis is the relationship between the proposed uses and the
current uses of adjacent properties. The greater the disparity, the more likely the rezoning is to be
held illegal.
This was a consideration in the court's invalidating the rezonings in the Lathan, Godfrey, and
Budd cases, even though all three situations involved relatively large acreage (11.4 acres, 17.45
acres, and 17.6 acres respectively). In these cases the rezoning was from low density residential
to industrial use. Given the magnitude of this change, the court looked closely for a supporting
rationale and found none.[40] Likewise in the Allred and Blades cases, proposals to locate high-
density multifamily projects in single-family residential neighborhoods were invalidated.
On the other hand, in the Chrismon case there was only a modest change in the allowed uses: the
landowner could carry on the storage and the sale of grain under the original zoning; the
rezoning allowed the storage and the sale of agricultural chemicals. Further, the site was in the
midst of an agricultural area that needed such services. Thus the court could conclude:
... [T]his is simply not a situation ... in which a radically different land use, by virtue of a
zoning action, appears in the midst of a uniform and drastically distinct area. No parcel has been
"wrenched" out of the Guilford County landscape and rezoned in a manner that "disturbs the
tenor of the neighborhood."... In our view, the use of the newly rezoned tracts ... is simply not
the sort of drastic change from possible surrounding uses which constitutes illegal spot
zoning. [41 ]
Another factor is that limitations on the proposed uses included within the zoning approval can
be an important factor in minimizing adverse impacts on neighboring properties. For example, a
conditional use district rezoning to allow a neighborhood convenience center was upheld in
Purser in part because "the development of the Center was governed by a conditional use site
plan that was designed to integrate the Center into the neighborhood and insure that it would be
in harmony with the existing and proposed residential uses on the surrounding property."[42]
A change in the conditions is not required to justify a rezoning in North Carolina, but it can be an
important factor in establishing that a proposed new zoning classification is compatible with
surrounding land uses. For example, in Allgood v. Town of Tarboro,[43] a rezoning of a 25-acre
tract from residential to commercial use was upheld in part on the basis that in the eight years
between the initial adoption of zoning and the challenged rezoning, the surrounding area had
substantially changed because of the expansion of an adjoining road, the extension of water and
sewer lines, the construction of a school and an apartment complex nearby, and the annexation of
the site by the city.
1. For an overview of national spot zoning cases, see 1 KENNETH H. YOUNG, ANDERSON' S
AMERICAN LAW OF ZONING §§ 5.12 to 5.22 (4th ed. 1996); 3 EDWARD H. ZIEGLER, JR.,
RATHKOPF'S THE LAW OF ZONING AND PLANNING §§ 28.01 to 28.05 (4th ed. 1998).
2. N.C. CONST. art. I, § 32.
35
3. N.C. CONST. art. I, § 34.
4. N.C. CONST. art. I, § 19. The "law of the land" provision of section 19 is the equivalent of
the due process clause of the Fourteenth Amendment of the U.S. Constitution. See Chapter 8 for
a discussion of constitutional issues.
5. G.S. 153A-341, 160A-383.
6. 254 N.C. 85, 89, 118 S.E.2d 1, 4 (1961).
7.273 N.C. 430, 160 S.E.2d 235 (1968).
8. Id. at 437, 160 S.E.2d at 332.
9.280 N.C. 531, 187 S.E.2d 35 (1972).
10. Id, at 549, 187 S.E.2d at 45.
11.2 E. C. YOKLEY, ZONING LAW AND PRACTICE § 13-3 at 207 (4th ed. 1978), quoted
with approval in Chrismon v. Guilford County, 322 N.C. 611, 626, 370 S.E.2d 579, 588 (1988).
12. Id. See also Dale v. Town of Columbus, 101 N.C. App. 335, 399 S.E.2d 350 (1991).
13. Professor Phil Green summarized this point as follows: "I would like to suggest that at root
'spot zoning' is nothing but giving special treatment to one or a few property owners, without
adequate justification.... If there is a reasonable basis for treating particular property differently
from nearby or similar property, that should be enough to support the validity of the zoning."
Philip P. Green, JR., Questions I'm Most Often Asked: What Is "Spot Zoning"?, 51 POPULAR
GOVT 50, 50 (Summer 1985)..
14. 322 N.C. at 628, 370 S.E.2d at 589 (citations omitted).
15. 80 N.C. App. 285, 341 S.E.2d 739 (1986).
16. Id, at 288, 341 S.E.2d at 741.
17. 116 N.C. App. 168, 447 S.E.2d 438 (1994), rev. denied, 338 N.C. 524, 453 S.E.2d 179
(1995).
18. 61 N.C. App. 100, 300 S.E.2d 273 (1983). Cf. Rose v. Guilford County, 60 N.C. App. 170,
298 S.E.2d 200 (1982), in which the court held that summary judgment was inappropriate when
the rezoning of a 100-acre tract from an agricultural to a residential district that allowed mobile
homes was challenged as arbitrary and capricious on spot and contract zoning grounds.
36
19. 89 N.C. App. 610, 366 S.E.2d 885, rev. denied, 323 N.C. 171, 373 S.E.2d 103 (1988). The
fact that an adjacent 16-acre tract owned by the same person had been rezoned to a mobile home
park some eleven years earlier did not change the court's conclusion that this was spot zoning.
20. Mahaffey v. Forsyth County, 99 N.C. App. 676, 682, 394 S.E.2d 203 (1990), rev. denied,
327 N.C. 636, 399 S.E.2d 327 (1991). But see Orange County v. Heath, 278 N.C. 688, 180
S.E.2d 810 (1971), in which the court held that rezoning a 15-acre tract from a residential district
to a mobile home park was not spot zoning because it adjoined a 5-acre tract already in legal use
as a mobile home park.
21.30 N.C. App. 611, 228 S.E.2d 750, rev. denied, 291 N.C. 178, 229 S.E.2d 692 (1976). There
were two preexisting mobile home parks in the extraterritorial zoning area, both of which were
zoned for mobile home use. One was three-fourths of a mile from this tract, the other two-and-
one-half miles. The litigation was initiated some five-and-a-half years after the contested
rezoning. The court applied a traditional laches analysis and allowed the litigation. G.S. 160A-
364.1, which establishes anine-month statute of limitations for challenging rezonings, was
subsequently adopted.
22.47 N.C. App. 357, 267 S.E.2d 30, rev. denied, 301 N.C. 92, 273 S.E.2d 298 (1980). 23. The
planning board's reasons for a favorable recommendation were "(1) Because of how long it has
been there. (2) You can't tell a man that he can't grow and will have to go up U.S. 74 to expand.
(3) How long they have had the land." Id. at 359, 267 S.E.2d at 32.
24. 61 N.C. App. 100, 300 S.E.2d 273 (1983).
25. Id. at 104, 300 S.E.2d at 275. The court concluded that the rezoning constituted improper
contract zoning as well as improper spot zoning.
26. 99 N.C. App. 676, 394 S.E.2d 203 (1990), rev. denied, 327 N.C. 636, 399 S.E.2d 327 (1991).
27. Id. at 683, 394 S.E.2d at 207.
28. 108 N.C. App. 231, 423 S.E.2d 537 (1992).
29. 116 N.C. App. 168, 447 S.E.2d 438 (1994), rev. denied, 338 N.C. 524, 453 S.E.2d 179
(1995).
30. Id. at 175.
31. However, the governing board's attempted rezoning would have made this policy, which
applied to all land zoned R-A, inapplicable to this site. An argument can be made then that the
rezoning is not inconsistent with the policies in the zoning ordinance. This re-emphasizes the
importance of being able to point to a comprehensive plan or other planning studies, reports, and
policies extrinsic to the zoning ordinance itself.
32. 55 N.C. App. 107, 284 S.E.2d 742 (1981), rev, denied, 305 N.C. 299, 290 S.E.2d 702 (1982).
37
33. The character of the surrounding neighborhood was also a factor in Finch v. City of Durham,
325 N.C. 352, 384 S.E.2d 8 (1989), though the spot zoning issue was not explicitly addressed in
this taking challenge. The rezoning from commercial to residential use, which was upheld in a
taking challenge, was supported by policies of protecting an adjacent residential neighborhood
and limiting commercial development to the opposite side of the adjacent interstate highway.
34. 127 N.C. App. 63, 488 S.E.2d 277 (1997).
35. See also Covington v. Town of Apex, 108 N.C. App. 231, 423 S.E.2d 537 (1992), rev.
denied, 333 N.C. 462 (1993) (invalidating rezoning of former post office site adjacent to a
residential neighborhood to an industrial district to accommodate an electronic assembly
operation).
36. 322 N.C. 611, 629, 370 S.E.2d 579, 590 (1988).
37. Id. at 633, 370 S.E.2d at 592.
38. 99 N.C. App. 676, 683, 394 S.E.2d 203, 208, rev. denied, 327 N.C. 636, 399 S.E.2d 327
(1991).
39. 116 N.C. App. 168, 175-77, 447 S.E.2d 438, _ (1994), rev. denied, 338 N.C. 524, 453
S.E.2d 179 (1995}.
40. See also Mahaffey v. Forsyth County, 99 N.C. App. 685, 394 S.E.2d 203 (1990), rev. denied,
327 N.C. 636, 399 S.E.2d 327 (1991) (holding that auto parts store allowed by rezoning was
significantly different from existing surrounding use as rural residential neighborhood).
41. 322 N.C. at 632, 370 S.E.2d at 591-592.
42. 127 N.C. App. 63, 70-71, 488 S.E.2d 277, 282 (1997).
43. 281 N.C. 430, 189 S.E.2d 255 (1972).
38
Proposed UDO Review/Approval Schedule
(in accordance with Planning Board approved motion of December 1, 2010)
Nov 22" BOCC/PB Joint Quarterly Public Hearing
Remains o en for new timetable to be set on December 14, 2010.
Dec 1S Planning Board (PB) meeting -process/timetable recommendation was
made.
Dec 14 BOCC meeting to receive PB recommendation on revised UDO
process/timetable and set new date for closure of public hearing -
su ested new date is March 15.
Dec 15 Manager sends out letter to municipalities with UDO info and asks what
form of UDO resentation is necessa and what dates are su ested.
Jan (Month of) If requested by municipality, Planning Staff to present UDO to municipalities
u to 4 . NOTE: UDO does not a I to munici alities or their ETJ.
Jan 5 PB meeting - PB to review Conditional Use District and Conditional Zoning
Districts arran a for conference call participation
Jan 19th Special PB meeting - PB to continue and complete review of Conditional
Use District and Conditional Zonin Districts
Jan 27 Public Outreach Meeting
(persons who e-mailed comments will be contacted via a-mail to be notified
of meeting, a press release will be written, and the UDO website will contain
meeting information) ;Planning staff to consider other supplemental
strategies (publications, etc.) for advising public about UDO
Feb 2" by Deadline for any written comments from ~e-pa~i~; municipalities,
5:00 p.m. advisory boards (other than Planning Boardj, or other source. Invite
public comments at continuation of public hearing on 2/28/2011??
Feb 2" PB meeting - PB to review stream buffers and make recommendation to
BOCC re ardin entire UDO ado tion.
Feb 15 BOCC meeting - PB recommendation reported to BOCC. BOCC to
determine i#-a R/l/'`I'` .ui+rL ~~~~:.,., :~ .,e.,.Je.J ~.., Cehr..~r~i 752
how February 28 public hearing should be advertised and structured
to invite further public comment on UDO draft (11/2010 version and
any proposed revisions).
Feb 28
weeded:--Continuation of November Public Hearing to receive
comments from the public on the November UDO draft and to share
possible further revisions as recommended by Planning Board by 2/15
Mar 2" PB meeting -approval of February PB meeting minutes (necessary to send
to BOCC); recommendations about next steps based on public
hearing; recommendations regarding phase 2 of UDO process
March 15 BOCC meeting - BOCC receives PB recommendation, regarding phase 2
priorities, closes public hearing, and considers adoption of e~ti~e UDO
based on recommendation from Plannin Board's 312 meetin
39
NOTE: The Planning Board's approved motion at its December 1 meeting included
developing a proposal for the priorities among the issues to be considered for Phase II
of the UDO project and advising the BOCC of its recommendation by mid-March. This
item is anticipated for either a special Planning Board meeting in February or for the
March 2 regular meeting. It is not specifically included in the schedule above as it does
not directly affect the schedule for Phase I of the UDO.
40
Comments from Commissioner Alice Gordon distributed at BOCC/PB public hearing
11 /22/2010
CONSIDERATION OF THE UNIFIED DEVELOPMENT ORDINANCE (UDO)
A. CONDITIONAL DISTRICTS
Conditional Districts (floating zoning districts) can have a significant effect on
development in Orange County. Therefore it is important that citizens are not only
aware that this new type of zoning district is being proposed, but that they also have
time to understand the implications of the two new conditional districts.
1. Conditional Use District (CUD). Except for certain exclusions, it appears that for a
Conditional Use District, any use permitted in the Table of Permitted Uses can
potentially go almost anywhere in Orange County's planning jurisdiction. Whether that
is true or not needs to clarified, and the ambiguity eliminated. If it is true, here is a list of
some of the uses that could be permitted almost anywhere:
Banks & financial institutions; kennels; laundry & dry cleaning services; massage
(business); night clubs, bars, pubs; offices & personal services; restaurants; retail;
storage or warehousing; assembly & packaging operations; anima! hospitals,
veterinarians; health services (under 10,000 square feet); rehabilitative care facility;
rooming house; motor vehicle sales & rental; motor vehicle services stations; parking as
a principal use (surface or structure); assembly facility (i.e. place for people to meet?);
research lands and installations; special events.
2. Conditional Zoning Districts (CZDs). It appears that these floating zoning districts
can be placed in any of the general zoning districts, as long as the regulations
associated with each specific district are followed. Also, in contrast to the current
zoning ordinance (for Planned Developments), no Special Use Permit (SUP) is required
for CZDs. Thus the Board of County Commissioners (BOCC) has more discretion over
whether to approve a rezoning request for a CZD than it would in approving a SUP
which requires making aquasi-judicial decision that must be based on competent,
substantial evidence presented at a public hearing.
B. UDO CHANGES
There have been many changes between the Unified Development Ordinance (UDO)
discussed earlier this fall and the final document brought to the November 22 Quarterly
Public Hearing. In addition, this document was not available to the public until less than
two weeks before the hearing. Furthermore, the Chapel Hill Town Council and Carrboro
Board of Aldermen need a chance to review the UDO to ascertain how it applies to the
areas covered by the Joint Planning Agreement.
C. ADDITIONAL TIME FOR REVIEW
Because of the proposed addition of floating zoning districts (Conditional Districts)
which is a significant change to Orange County's current zoning ordinance, and the
number of changes that were incorporated into the extremely large UDO document.
41
brought to this public hearing, the Commissioners should allow more time for the public,
the towns, the Planning Board, and the BOCC itself to assess how the changes will
impact all of us. AMG 11/22/2010
42
(distributed by Commissioner Alice Gordon at 11/22/2010 BOCC/PB Hearing)
UNIFIED DEVELOPMENT ORDINANCE -KEY ARTICLES AND SECTIONS
The Planning Board should review all articles in the UDO, and then vote on whether or
not they recommend approval.
KEY ARTICLES
The following articles should be reviewed with special care.
Articles 2, 3, 4, 5, 6, 7 and related definitions in Article 10.
II. KEY SECTIONS
In addition, there are some key sections to be reviewed. They include, but are not
necessarily limited to, the following sections.
A. CONDITIONAL DISTRICTS
Here are the sections (that I have identified so far) that cover Conditional Districts.
There are also definitions in Article 10.
Conditional Districts, Sec 2.9, pp. 2-38 through 2-46
Conditional Districts, Sec. 3.7, pp. 3-62 through 3-72
Conditional Uses, Sec. 5.1.4, pp. 5-3 through 5-5
Table of Permitted Uses, Sec. 5.2, beginning on p. 5-6
Additional Standards for MPD-CZD, Sec. 6.7. pp. 6-54 through 6-63
B. RURAL BUFFER AND JOINT PLANNING AGREEMENT
Here are the sections (that I have identified so far) that are related to the Rural Buffer
and Joint Planning Agreement. Also related are the sections listed above for
Conditional Districts.
Applications for Amendment -Joint Planning Area -Sec. 2.8.4 - pp.
2-35 and 2-36
Residential Districts, Rural Buffer, pp. 3-2 and 3-3
Conditional Uses, Sec. 5.1.4, pp. 5-3 through 5-5
43
Table of Permitted Uses, Sec. 5.2, beginning on p. 5-6
Additional Standards for MPD-CZD, Sec. 6.7. pp. 6-54 through 6-63
Cluster Developments, Application Criteria for the Rural Buffer Zoning
District, Sec. 7.12, pp. 7-48 and 7-49
C. OTHER COMMENTS
Here are other sections that need review. Note that there is some overlap with sections
described above.
Review all sections shown in green type. Also, all sections that are new, and not simply
related to consolidation of the county's ordinances, should be reviewed.
Review all sections and definitions related to Site Plan, Site Specific Development Plan,
and Plot Plan. (For example, look at Sec. 2.4.1, 2.4.2, 2.4.3, pp. 2-10 through 2-12).
Also note that there is no definition of "Plot Plan" in Article 10.
Review the changes related to Special Use Permits. For example, look at Sec. 2.7,
starting on p. 2-24.
Review the requirements for public hearings. For example, Sec. 2.8.6, p. 3-36 deletes
the dates for the quarterly public hearings (February, May, August, November). These
dates were specified so the public would be able to keep track of when these important
hearings were to be held.
Clarify where "institutional uses" and "professional services" can be found in the Table
of Permitted Uses. It appears that there are no categories (e.g. "commercial uses")
corresponding to these uses.
Review the significance of the requirements and changes related to "wastewater
treatment facility." For example, see page 3-3, bullet 6. Also note that in this bullet
"Conditional Use (CU) District" is not in red type, even though these words are new.
Review the significance of the requirements related to "minimum usable area for lots
that utilize ground absorption wastewater systems." For example, see page 3-7, bullet
5.
There are surely other sections that need further review, but these are the ones I have
identified so far.
AMG 11/22/2010
44
ORANGE COUNTY
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM ABSTRACT
Meeting Date: June 12, 2007
Action Agenda
Item No. ~- ~ i i
SUBJECT• Agricultural Support Enterprises (ASE)
DEPARTMENT: Economic Development
Planning & Inspections
ATTACHMENT(S):
1) Matrix
2) Schedule
3) Draft Rural Buffer Memo
PUBLIC HEARING: (YIN) No
INFORMATION CONTACT:
Tina Moon, 210-2595
Noah Ranells, 245-2330
Michael Harvey, 245-2607
PURPOSE: The purpose of this item is to: 1) respond to questions and comments from the May
21, 2007 Joint BOCC/Planning Board Work Session on the Agricultural Support Enterprises
project, 2) request the Board's endorsement of those concepts, or elements, which staff believe
are key to the success of the project, and 3) receive authorization to complete the project in
accordance with the schedule provided as Attachment 2.
BACKGROUND: At the May 2007 Joint BOCC/Planning Board Work Session, staff presented
the Board with an update of an on-going project (currently called Agricultural Support
Enterprises) to provide more business opportunities for local farmers and requested the Board's
endorsement of three underlining concepts. At previous meetings on this topic, staff presented
the Board with colored "matrices" and "color progression charts" showing how new agricultura(
uses could fit within the framework of the County's existing land uses. These materials were
intended to provide the Board with illustrative examples, a general sense of the types of uses
that staff hoped to add to the ordinance, and the type of permitting process that staff believed
would be appropriate for each use.
Staff shared the most recent matrix with the Board during a February 28, 2005 Work Session, at
which time the project was referred to as "Rural Enterprises." While there were specific
comments regarding the matrix, the focus of questions at that meeting shifted to broader issues.
What were the economic ramifications ofthese uses? How would staff enforce them? How
could these uses compatibly occur within suburbanizing areas? Could rural enterprises dovetail
with a TDR program? Staff noted changes that Board members requested for specific entries
within the matrix, particularly the request to divide the intensive uses into two categories (shown
in italics). This change would aAow the Board ample opportunity to review and consider
applications for the most intensive uses. Staff presented updates on the project to the Board on
May 23, 2005 and May 22, 2006.
45
2
Staff also presented a detailed summary of the Agricultural Support Enterprises proposal in July
of 2006 to give new members of the Planning Board a history of the initiative and additional time
for questions. Staff referenced the two-tier intensity level at the July meeting.
At the May 2007 meeting, staff recommended the creation of a new Agricultural Support
Enterprises Manual to make the program more user-friendly. Staff hopes to begin meeting with
focal farm agency boards (Soil and Water Conservation District, Agricultural Preservation Board,
and others) during the summer to ask for input on the contents and format of the Manual. Staff
found farmer and farm agency staff input invaluable during the initial stages of the project and
would like to offer them the opportunity to provide meaningful input into this important project. A
version of the use matrix would be included in the proposed Manual, so there will be additional
opportunities for the Board to review and discuss specifics, should the need arise,~during the
final approval process for the initiative. This approach would allow the Board to consider staff's
~ original material along with comments from the farming community, Planning Board and
. Economic Development Commission.
This initiative remains an important part of the County's effort to preserve farmland and farming
as a viable economic pursuit. The economic development aspect of farming has become so
important to the survival of local farms that the county has hired an Agricultural Economic
Development Coordinator and has included the farm economy as a critical component of the
Economic Development Element of the Comprehensive Plan.
FINANCIAL IMPACT: There is no direct fiscal impact associated with this discussion.
RECOMMENDATION(S): The Manager recommends that the Board authorize the key
elements of the Agricultura! Support Enterprises proposal in accordance with the schedule
provided as Attachment 2:
1) Amend the Zoning Ordinance to allow conditional district zoning and develop minor
revisions to the Land Use Element, only where required to establish support and/or
consistency;
2) Prepare clear performance standards; and
3) Create the ASE Manual.
By approving this recommendation, the BOCC is NOT approving specific uses that may
have been provided for the purposes of discussion.
DRAFT 2-2005 Protnlosed Land Use Schedule for Rural Enterrfrises
Changes to Services/Processing &. M P
Industrial Uses, based on intensity (Matrix)
i
l
S Zonin District
Farm Intensity
Permitting
Land Use Zoning
Use pec
a
z
Standards Rural Activi
tY
Node!
New or
Process ~
Status Other requirements such as Building Residential
Commercial Revised
a
Code and Health permits may apply, or Industrial District
~~":~~~,~~,~''~'°~"fi!~it ~~fa~
~~ 1 A uaculture
r ~ ,~
M~.ti ~~ ~~
vr~4~~~~„
2
Aviary
,'ir .
;4 u ~
~~ 3 Community Supported
`
~ A riculture CSA
"~~~
~„ ~;~~~}, : ' Exempt
4~
Forest
~
~
'
~~~
~ 'M
No Process 5 Greenhouse Q Q
,
),~;~- ~tir,Y ,{~,~; , ~ ;~ 6 Horticulture ~ v c,~.
r,~e,`E~fi1BOna'fld@' ~;
t ,4~P~ xtr ~h -
~ 7 Horse Farmin a a ~ W z
~,T74~1
,, #~FarI11S
la ~i ' ~"~" ' `
4; (per North
C
li
St
t g Or epic Farmin
g ~- c- a }
r
$ ~;. F
~ aro
na
a
e
St
t
t
Traditional Farming Q Q
~~
m. t_~
t u
es -
a Z Z
~~~~ 'a Exemption for 9 (row crops, dairy, beef cattle,
Counties) goats, sheep, hay, Z Z
r` "; a riculturai research, etc.
.~ ti 10 Vine and
~l ° `~ 11 Other, as identified by local
asp r~, , `"`+ Fr ~ ~ '~ = farm a enc ersonnel •
`This column identifies zoning uses as existing--uses that are currently listed in the Orange County Zoning Ordinance as permitted and have not changed; rev d-uses that are
currently listed in the Zoning Ordinance but have been modified in some way as part of this project and; proposed-uses that were not previously included in the zoning ordinance
and therefore not allowed, but are recommended as suitable new uses as part of this effort.
2 This column speaks to some of the criteria that will likely be linked to a particular land use. It does not replace the specific and detailed performance standards that will be included
in any ordinance amendments to clarify what may or may not be permitted. !n addition, watershed regulations limit/prohibit commercial uses in some protective watersheds.
s The matrix lists new types of enterprises that would be allowed in the rural parts of the county as part of this proposal. The revised Permitted Use Table (Section 4.3 in the Zoning
Ordinance) shows how the new Rural Enterprises would be integrated into the existing use table and includes all zoning uses in all zoning districts.
a One of the key components in this proposal is to revise the existing.Agricultural Services floating zoning district to allow for a conditional district rezoning process. Using
conditional district rezoning, the BOCC would be able to review applications to rezone rural property for a specific use in accordance with specific standards and conditions to the
project proposed. O
s The bona fide farm section (uses 1-11) is not intended to be an exhaustive list of all bona fide farms, but rather an illustrative list of the types of farms that are currently in operation
in Orange County. As local farming activities continue to evolve to stay viable, planning staff will work with farm agency staff to determine what new uses constitute a "bona fide" .p
farm. Staff can provide the BOCC with periodic reports outlining changing trends in our local farm economy and/or requests for new bona fide farm uses that are either particularly a~
innovative or simply unanticipated.
DRAFT 2-loos pro osed Land Use Schedule for Rural Enter rises
Changes to Services/Processing & P P
Industrial Uses, based on intensity (Matrix)
Zonin District
Farm Intensity
Permitting
~
Land Use Zoning
Use
Special Rural Activit
y
de/
N
New or
process
Status Standards Residential o
Commercial Revised
or Industrial District
s 12 Farm Employee Housing. ~ None
~~'
13 Farm Building Rental-Horse
None
goardin Stable.
~ L ~ Operation must support the
agricultural use. May process
incidental off-site timber as
14 Saw Mill accessory and supplemental
income.
See also Use 54 for saw mill, not
'' incon'unction with farm.
~,: ^ Must be linked to specific farm. .
~ - ^ Retail sales must be related to ~.
;:
r ~' Direct Marketing: the farm operation. Any retail
ACtl~tttes ^ On-site retail sales of raw w sales of products not produced
.,
relating or Verify boria
15 products grown or raised on
f
f
it
t
bl m on the farm must be incidental.
^ O
i
l
d
b
. pr fide farm arm (
ru
s, vege
a
es, v perat
on may
ocate
on
e
?~nctdenta! to ` ,
status 8 herbs, nursery & ~ rural commercial property ,~ rn
prepare file greenhouse crops, etc.) o. owned by farmer. a ~ Z
,.;
Bona•fide information ^ Individual Farm Stand. ~-
a ^ Adequate off-road parking is
,,,,
„~, ~~~~
F
rms
for records
Z encoura ed to revent
9 p
'
a p otentiai hazards.
- Z Adequate off-road parking is
~::!
16
Pick-Your-Own.
encouraged to prevent potential
hazards.
^ Operation must be linked to
specific farm.
^ Retail sales of products grown,
Small-Scale Processing of raised, produced, processed,
~~ 17 products grown or raised on or manufactured on the farm
~A the farm. may be allowed as accessory.
~_
.
^ Operation may be located on
rural commercial property
owned b farmer.
,~} Seasonal Agricultural Adequate off-road parking is
i~
~
' 18 Tourism (Corn Mazes, Hay encouraged to prevent potential
.
~~
~. ,,, ~ {, ~ ~ Rides.
hazards.
`mil
DRAT 2-2005 Pro osed Land Use •Schedule for Rulral Enterln~lrises
Changes to 5ervices/Processing & ~ 1"
6idustrial Uses, based on 6itensity (Matrix
Zonin District
Farm Intensity
Permitting
Land Use Zoning
Use
Special Rural Activity
Node!
New or
process
Status Standards Residential
Commercial Revised
or Industrial. District
'~- =` ^ This use is not an "ag-use" but
rather an existing land use that
farmers may wish to consider
as an income producing option
19 Bed & Breakfast (3 or less
Existing for their farm.
AR, R1, RB
guest rooms) ^ Applicants follow the standard
~
~; site plan review process. Site
.
r~~;, -
`~ ~'~ plan does not have to be
_ professionally prepared for this
~~ ~ ~~
- use.
~
~
!,'
^ Must have adequate off-road
"~ ~
''~
• parking.
: ^ Must be linked to, and located
7~ on, or adjacent to the bona fide
Smaii, Scale
~
Modified farm of one of participants, or
,
Rural
r
Site Plan
Cooperative Farm Stand (2-4 commercial property owned or
~~ VentUreS'
20
farmers) w/ link to specific
proposed leased by one of the
participating farmers.
AR, R1, RB
LC1, NC2,
AS, s
CD
farm ^ Retail sales of products not EI, EC5 AS-
[RE 2j
produced on the farm must be
incidenfa/and related to, end a
subordinate component of al!
' participating farm operations in
~;~ scale and profit.
^ Ma be o en ear-round.
Cooperative.or Teaching
Farms (with communal
21 facilities such as joint proposed 'Must be linked to bona fide AR, R1, RB El, EC5 AS,
CD
S
kitchens and/or classroom farm. -
A
space) ,
RE 3
0
s Landowners may apply to have property rezoned to Agricultural Services (AS) using a conventional rezoning process whereby all of the AS uses would be permitted subject to site
plan approval. Landowners may also apply to have property rezoned to one of the AS uses through a conditional district rezoning process, in which case the new district would be .p
labeled Agricultural Services-Conditional District-the specific rural enterprise use, such as AS-CD-RE2. o0
DRAFT z-zoos Proposed Land Use Schedule for Rural Enterprises
Changes to Services/Pr-ocessi~tg &
Industrial Uses, based on intensity Matrix)
Zonin District
Farm Intensity
Permitting
Land Use Zoning
Use
Special Rura! Activity
Node/
New or
process
Status Standards Residential
Commercial Revised
or industrial District
; ~~''~, `" ^ Must have adequate off-road
~. parking.
__ ^ Must comply with all applicable
e. federal, state, and county
health regulations, which may
l
;; Year-round Agricultural include providing bathroom
Y Tourism (Tours of individual facilities.
• Must be consistent with animal
' 22 farm facilities, small areas of Proposed kenneling requirements of the AR, R1, RB
domestic animal pens for .state and other County
,~; petting, picnic area) ordinances.
[RE4] ^ May include the retail sales of
products raised on farm-sales
that are incidental, related, and
subordinate to the farm use.
,, ~ ^ May not include gift shop or
,
`' r eneral retail sales.
~~Small $C11e . ^ Must have adequate off-road
Modified parking.
Rural -~ ~' Site Plan ^ Must comply with al( applicable
s,l
c.,:,_
Ventures
federal, state, and county
ti; health regulations. '
~~ : Rural Special Events: ^ Must submit plan to EMS & AS,
23 Temporary or Seasonal Revised Fire Marshal for review and AR, R1, RB El, EC5 AS-CD
[RE5] approval.
~~' ~ ^ This is a revised version of use
S58-Special Events (Less than
150), designed for events that
pertain to agriculture or related
rural activities.
^ Must be linked to a bona fide
v farm.
, Off-Season Use of Farm • Equipment must be sheltered `
Equipment or screened from road & AS,
~' 24
(grading
landscaping
etc.) Proposed adjacent properties. AR, R1, RB AS-CD
,
,
[RE6] ^ Limited storage of materials-
dirt, gravel, plants.
^ No on-site retail sales.
,~' ~,, :~ ~ ^ Permit ma limit dell traffic.
J
ca
DRAFT 2-loos proposed Land Use Schedule for Rural Enterprises
Changes to Services/Processing &
Industr9al Uses, based on intensity Matrix)
Zonin District
Farm Intensity
Permitting
Land Use Zoning
Use
Special
~ Rural Activity
Nodel
New or
Process Status Standards Residential Commercial Revised
or Industrial District
_ No changes are proposed for
25 Botanical Gardens, ~
Existing this existing use, which is
AR, R1, RB
LC1, NC2 AS,
CD
Arboretums allowed in almost all zoning AS-
districts.
. ^ This use is not an "ag-use" but
rather an existing land use that
"~ farmers may wish to consider
as an income producing option
r for their farm.
_ ^ Applicants must follow the
26 Studio (Art) Existing standard site plan review AR, R1, RB LC1, NC2
• process for studios in
`i ~ commercial zoning districts.
z~mMedium Scale
,,,~
Rural ^
Applicants must follow the
Site Plan home occupation process for
~,
V
@11~UreS
studios in residential zoning
.
, . districts.
^ Must be in commercial zone. -
^ This is a revised version of use
S1-Garden Center (On
Premises Sales); and may
-
' contain some uses previously . LC1 NC2
' 27 Retail Garden Center Revised classified as S14 Greenhouses GC4
CC3 AS,
[RE7] (On Premises Sales). See ,
,
EC5 AS-CD
also use 42--Retail Garden
Centers outside of commercial •
zoning districts.
^ Landscaping services may be
allowed as an accesso use.
cn
~ Existing retail or agricultural service facilities may sell locally grown products such.as flowers and vegetables as an accessory use. Such products may be sold inside or at a O
separate stand or display area outside, so Fong as there is sufficient area for the structure(s) and any supplemental parking as needed to accommodate additional traffic.
DRAFT 2-2005 Proposed Land Use Schedule for Rurat Enterprises
Changes to Services/Processing &
Industrial Uses, based on intensity (Matrix)
• Zo nin District
Zoning
Special Rural Activity New or
Farm Intensity Permitting
Process Land Use Use
Status Standards Residential Node/
Commercial Revised
District
or Industrial Needed
- ^ Must be in commercial zone. .
' ^ The existing ordinance
~:~~:! provides for retail uses but
`~ ` does not speak to the general NC2,
LC1 AS,
28 Country Store Proposed all-purpose store that ,
EC5 AS-CD
[RE8] traditionally serves rural
communities. See also use
43--Country Stores in
residential zonin districts.
^ Must comply with all applicable
`; ~ federal, state, and county
health regulations.
^ Taxidermy establishments in
1 ~ 29 Taxidermy Proposed residential zoning districts AR, R1, RB LC1, NC2
ServlCeS/ i [REg] must have Home Occupation
`Processing
' permits.
,
,,
' ~ ^ Site must have sufficient on-
Site Plan site arkin .
t
;
~~ ~ ^ Must be in commercial zone.
Commercial,
~
~~ _ ^ Rental and Sales uses must
;h Zones meet additional performance
~A Farm Machinery Service, standards regarding storage LC1, NC2, AS,
' 30 Rental & Sales Revised and screening. EC5, 11, 12,
138 AS-CD
[RE10] ^ This is a revised version of use
~"
f S10-Farm Equipment & Sales.
See also use 44 for same use
'' ~~ ~ in residential zonin districts.
,, ;
^ Must be in commercial or
' ~ ~ Feed Mill,
Feed & Seed Storage w/ industrial zone.
^ This is a revised version of use
LC1, NC2,
AS,
31 Retail Sales Revised S11 Feed, Seed, Storage & EC5, EI, 11, AS-CD
Farm Supply Processing. See use 45 also. 12, 13
[RE11] ^ Landscaping services may be
allowed as an accesso use.
a Light industrial (11 ), medium industrial (12) and heavy industrial (13) are designed for use in rural industrial nodes. The Existing Industrial (EI) zoning district, similar to Existing
Commercial (EC5), was designed to accommodate existing industrial uses that were in operation in the rural parts of the county when zoning was adopted. it is intended to serve
industrial uses outside of the rural industrial nodes.
Q
DR~4FT 2-loos ~ Proposed Land Use Schedule for Rural Enterprises
Changes to ServiceslProcessing &
Industrial Uses, based on intensity (Matrix)
Zonin District
Farm Intensity
Permitting
Land iJse Zoning
Ilse
Special Rural Activit
Y
Node/ New or
Revised
process Status Standards Residential Commercial District
or Industrial Needed
;` ~ , ' ^ Must be linked to specific bona
!`
';
~
fide farm or farm cooperative
- ' ~ `
Processing Facility with venture to occur in a
residential zoning district.
,,~ `
` ~ Accessory Retail Sales.
Sales limited to goods
^ May be independent from
LC1, NC2,
AS,
32
processed at operation & Proposed specific farm(s) only if AR, R1, RB EI, 11, 12,13 AS-CD
-
subsidiary companion items. business uses primarily (75%)
'
[RE12] locally grown products for
processing operation
'' ^ Maximum size of building
facili -5000 s uare feet.
`- S@t"V~ICeSI " ; " ^ Must comply with all applicable
;~,
`<<PrOCeS
Sing
federal, state, and county
, health regulations.
Site Plan ^ All pen areas must be properly
In ~
, fenced, and screened from
.Commercial.
.`
~,~ , , , _„ , ~ adjacent properties.
~`; Distncts,~:', .;`
°., ^ Must be consistent with animal
Veterinarian Mobile-Clinic w/ kenneling requirements of the
33 1-2 animal observation
Revised state and other County
RB
R1
AR
EC5
GC4 AS,
' " shelter ordinances. ,
, , AS-CD
[RE13] ^ Permit may limifi maximum
' ~ number of days for
observation.
"" ^ This is a revised version of use
S3-Animal. Hospitals;
Veterinarians. See also use
4&-Veterinarian Hospital wifh
' ~ observation facilities.
N
DRAFT 2 Zoos Prorlosed Land Use Schedule for Rural Enter rises
Changes fo Services/Processing & M
Industrial Uses, based on intensity (Matrix)
Zonin District
Permitting Zoning
Special Rural Activit
y New or
Farm Intensity
Process Land Use Use
Standards
Residential Nodel Revised
Status Commercial District
or Industrial Needed
~~~°' ~ ~r ~;'.
~ ^ This use is not an "ag-use" but
~t
.~r,,,, r.
'
rather an existing land use that
~:~~
_~'
farmers may wish to consider
~~~;F~~,~ , ~
i
k A ~
Bed & Breakfast Inn as an income producing option
r
~
;~
~~ 34
(4-8 guest rooms) Existin
g for their farm. A licants must
PP AR, R1, RB
i
' follow the standard Class B
't~- SUP process.
`~' ^ No public restaurant facility.
;~,r
^ Minimum 5-acre tract.
{Ii,~Large Scale: ;,, Class B This use is not an designated
~r ,Yw.RurRl Special Use ag-use but rather an existing
~~`~ ~'''i
~~ <~deintures Permit land use that farmers may wish .
u,;~~~!„~~ , , 35 Camp/Retreat Center Existing to consider as an income AR, R1, RB
iVti ° '
,r
producing option for their farm.
6.
~y~
Applicant must follow the
' ' ~ standard Class B SUP rocess.
This use is not a specially an
F~;; "ag-use" but rather an existing
} Class II Kennel land use that farmers may wish
r`~ 36 Riding Stables/Academies Existing to consider as an income AR, R1, RB
producing option for their farm.
Applicant must foilow the
~,;1 ~ ~~ ~-' ~ s#andard Class B SUP rocess.
0
W
DR,4F1' 2-2005 Pro osed Land Use Schedule for Rural Enter„rises
Changes to Services/Processing & P p
Industrial Uses, based on intensity (Matrix)
- - - Zonin District
Permitting Zoning
Sp®cial Rural Actlvlty New or'
Farm Intensity
Process ::Land Use . Use
Status
Standards
Residential Nodel
Commercial Revised
~ District
or Industrial Needed
~ ^ Site must have sufficient on-
3
..
"=~ site parking, screened from
`~"' ~' adjacent properties and public
' rights-of--way.
{,~~ ^ Must comply with all applicable .
,
,~ federal, state, and county
~
~
~,~
r~,
'~r
~ tile
~
37 Rural Heritage Museum
Proposed health regulations.
AR, R1, RB
,
,,,
fir;
, [RE14] ^ May include the retail sales of
,~
~~~F~,~~, ! ' products raised on
~,; ~"~~~ demonstration farm,
`?~ ~, ~' ' ,;`' ~ neighboring farms, and
s~ ,~ ~' ti„ ,'~ companion items, but may not
~~ ~ ~;~~~ include generic gift shop or
eneral retail sales.
^ May be seasonal or year-
~' ~ round facility.
~~
¢
~ Large.Scale Community Farmers Market ^ Must comply with all
~.
~~~
~
~~ Rural ~; ~ ~
~ Class B (Principal use, general sale of applicable federal, state, and
LC1, NC2, AS
,
~
r
;, ~ ,~ ~;;,
;~
Special Use 38 local produce or Proposed county health regulations AR, R1, RB
EC5
AS-CD
,
~V
;~S ,entures~
; permit complementary items) including those related to
,
~,r ~ [RE15] sales of meat products.
~~~~~~ ^ Site must have sufficient on-
~' "' ~` ~ site arkin
'i ,r;. ^ Must comply with all
rF applicable federal, state, and
county health regulations.
tis ,, ^ Site must have sufficient area
~;
~ ~ ~ for event parking.
~
~s
~ Winery or Brewery ^ Events limited to 75 people, at
~~~~~,~ ~
;~ ~~°~'- with Minor Events one time, twelve times a year. AS,
39 (production with tours and Proposed ^ Event hours may be limited AR, R1, RB EI, 11 AS-CD
~ sales incidental) per permit.
,
~`.. [RE16) ^ Retail sales must be
,.~~
~,r uk ~
incidental, related, and
rF -
subordinate.to the primary
operation of the winery as a
production facility.
4 ~" ^ See use 51 also.
-~
DRAFT z-zoos proposed Land Use Schedule for Rural Enterprises
Changes to Services/Processing &
Indushiai Uses, based on intensity (MatrlX}
10
Zonin District
Permitting Zoning
Special Rural Activi
~' New or
Farm Intensity process Land Use Use Standards Residential Nodel Revised
Status Commercial District
or Industrial Needed
` ti ^ Must be on or adjacent to bona
` ~ fide farm tract.
~4 ~ ~ all applicable•
• Must comply with
~~ J
i Class B
S ecial Use
p
40 Smail-scale butcherin
g
o eration abattoir
p
Proposed .
federal, state and county
AR, R1, RB LC1, NCZ,
EC5 AS,
CO
AS
,
~,~a~ , ,,
~kt2, ~
t Permit ~ [RE18j regulations.
^ Limited to owner and 4 other -
a
Y; employees.
,. ,
M1Y ' ~ ', , 4 ~ ;
e S
l
r^'T
' ^ Must have on-site parking:
Larg
ca
e:
'^
Rural ~': ^ Minimum 10 acres unless
;F;r VentUre3~~ `: connected to public services
^ May contain public restaurant
,,~. a !~
' Class A ^ This use is not an "ag-use" but
is
~ ~
Special Use
41
Country Inn
Existing rather an existing land use that
farmers may wish to consider
AR, R1, RB
}' Permit as an income producing option
,:;:T
"~
for their farm. Applicants must
foAow the standard Class A
t{{~~~~'~,'~' ~ ~' SUP process.
~¢ t t ~~,
rV 'w
'Vw'
V I
DRAFT 2-loos - Pro osed Land Use Schedule for Rural Enterprises
Changes fo Services/Processi~tg & p
Indushial Uses, based on intensity ~MatriX)
11
Zoning District
Farm Intensity
Permitting
process
Land Use Zoning
Use
Special
Standards
Rural Activity
Node/
New or
Revised
Status Residential Commercial District
or Industrial Needed9
,-~r.'., ' ^ This is a revised version of
~'~~ ' '~ use S1-Garden Center (On
4=fi Premises Safes); and may
yt~ -
i contain some uses previously
'~ classified as S14
~~~ 42 Retail Garden Center Revised Greenhouses (On Premises AS,
~,; {a,
[RE7)
~
Sales).
AS-CD
r Landscaping services may be
F{
+ IT Mowed as an accessory use.
~~~, Services/';
~ ^ See also use 27 for Retail
,
,
~Processing~~ Garden Center in commercial
&~"I
dustrials ~zonin districts.
n
~,;
'~,'~ Uses '
'h~?
Rezoning
The existing ordinance provides
;
,,~x,,i . for retail uses but does not
~'~~
~ ; Outside ~~:~
(Site Plan)
43
Country Store
Proposed speak to the general all-purpose
store that traditionally served
AS,
f~~~Commercial;r`k
~
[RES]
~
rural communities. See also use AS-CD
~,i~h°~Districts ~ ~~: 28 for Country Store in
~.~.,;E
~'d~y
a ~ commercial zonin districts.
r ,
: ,,,~ ~, Machinery under repair must
~~ be in building or screened from
road.
~~ • ~ ,
~ Farm Machinery Service, • Outdoor lighting must stay on AS
'
~
~
44
Rental and Sales
Facisting
property. ,
AS-CD
~_~ [RE10] ^ Permit may limit hours of
~y
,t h~~
'y
operation
^ See use 30 for same use in
;;,~,~, ~ rural commercial districts.
e One of the key components in this proposal is to revise the existing Agricultural Services floating zoning district to allow for a conditional district rezoning process. Using
conditional district zoning, the BOCC would be able to review applications to rezone rural property for a specific use. Applicants would stil be able to apply to have their property n
.rezoned from AR to AS using the conventional rezoning process-meaning that all of the uses permitted in an AS districts would be allowed on the rezoned tract. Applicants would ~(
also be able to apply to have property rezoned .from AFt, R1, RB, EC5, or EI to a new conditional district for a rural enterprise use. Rather than request all of the AS uses, the rn
property owner would request one or perhaps two uses and submit a schematic site plan illustrating the proposed project.
DRAFT 2-2005 proposed Land Use Schedule for Rural Enterprises
Changes to Services/Processing &
Industrial Uses, based on intensity ~ (MatriX)
12
Zon in District
Permitting
Land Use
Zoning
Use
Special Rural
Activity
Rev sed
Farm Intensity process
Status Standards Residential Node/ District
Commercial
Needed
or Industrial
~;;;; ~ ^ Permit will specify hours of
h operation.
Feed Mill ^ Outdoor lighting must stay on
*3~: ~~~
Feed & Seed Stora a w/
g
property. S
A ,
45 Retail Sales Proposed ^ Landscaping services may be AS-CD
Farm Supply allowed as an accessory use.
'' ~~r„ [RE11 ]
^ See also use 31 for facilities in
commercial zonin districts.
~~a SerYlCesl ~ , ^ Must comply with all applicable
tai `~'~`~~~ H~.~M~,
~~: PrOC@SSIIl9 ~
~ federal, state, and county
8~ Industrlal`~;~,
s ~~k~, r~, ~ • „r
Rezoning health regulations.
^ All pen areas must be properly
Uses ~;~;
'
~ ~ fenced, and screened from
i If L
-
' , 11x7
Outside
"
~
(Site Plan)
Veterinary Hospital,
adjacent properties.
^ permit subject to review and
LC1, NC2,
AS,
AS-CD
~'N"~
1 -5«, '~ ~' ~ `
at
~,
ommerc
,~C 46 Clinic w/ Observation Facility Revised comments from Animal GC4, EC5
~
,
~
r
D
t
` ~
'
t [g3] Control.
rj
nC
S,;;
+
lS
a` ^~" ~ "~ nr ~~ ' 1 "~ ~ ^ This is a revised version of use
i
~~,~~,M
r
S3-Animal Hospitals;
~~~ ~ Veterinarians, designed for
r r,a '°f farm animals. See also use
' ;~1~~°j; 33-Mobile Veterinarian.
~'~
47
Composting ~
Revised ^ No grinding
^ See use 53 for composting AS,
AS-CD
~r,, ,,
~~ , [RE19] with rindin
Q
DRAFT 2-2005 pro osed Land Use Schedule for Rural Enter rises
Changes to Services/Processing ~ p p
hidustrial Uses, based on intensity (Matrix)
13
Zoninc District
Farm Intensity
Permitting
Land Use Zoning
Use ~
Special Rural
Activity
New or
process
Status Standards Residential Node/ District
• Commercial Needed .
or Industrial
~~_,, ~~x t ~ `~~" ^ Permit will specify hours of .
_
~ ,~ „i ;~~ ,~~. s, ~~ operation.
^ Must comply with ail
~;~ applicable federal, state, and
~.,
county health regulations.
Livestock Market, Exchange/ • All pen areas must be AS
48
Auction Facility
Revised
properly fenced, and ,
AS-CD
,1~ jRE22] screened from adjacent
properties.
(,I"' • Must be consistent with
'~ animal kenneling
_.:~ requirements of state and
`"~r"^~ ~' '~
' Ser
s/
. ~ other Count ordinances.
:.
.,I
,;
vice
r
"
` .
",~
~` ,
t` `'~ ~ `°~~
ProCes
?
sing ^ Must comply with a{I applicable
~
~
& Industrial
Rezoning Processing Facility: federal, state, and county
,
~'' ~+~ n ~
~~
Se (Local/Regions!) health regulations.
AS,
U
S I
(Site Plan 49 Food Packing Proposed ^ Hours of operation specified in ~ 12, 13 AS-CD
rr.
s~~ F~~~, ~
or Wholesales permit.
.
~Otats~de ~~ ~ Class A SUP (RE23] ^ Permit authority may limit daily
` 5' "'°'~
`~~Cammercial
/CUP number of tri s.
1
Distracts ~~~< ` ^ Must comply with all applicable
':4' federal, state, and county
,,, health regulations.
~ ^ All pen areas must be properly
'' fenced, and screened from
~ ~~
r
~~'~_,
~
Large-Scale Equestrian
adjacent properties.
~ Facility w/Commercial ^ Permit subject to review and AS,
r ; 50 Stables, Events, Rodeos Proposed comments from Animal AS-CD
Fti~ • jRE24J Control.
^ Events may be (imited by
°-~~ ~ permit granting authority.
a ; ^ Event hours may be limited per
permit.
, ,~ij
,
.. ^ May contain tack shop as
; ~
~;
. ;F , accesso to overall o eration.
DRAFT 2-2005 pro osed Land Use Schedule for Rural Enter~trises
Changes to Services/Processing & P p
Industrial Uses, based on intensity (MatrlX)
14
Zonin District
Farm Intensity
Permitting
Land Use Zoning .
Use
Special Rural•
Activity
New•or
process
Status Standards Residential Node/ District
Commercial Needed•
or industrial
eK ' ~~r ~ ~~"n$4{~~' ~~~ii~ ~
• Must comply with all applicable '
t•
t ; federal, state, and county
,, health regulations.
•y~.: ~'
,~_ , ^ Site must haves fficient area
u
,
,; ra
i '`
Winery or• Brewery with
for event parking.
^ N
b
d
t
f
AS
~.
51
Major- Events
Proposed um
er o
events, an
even ,
~"r,4~5 f (RE17j hours may be limited by permit AS-CD
3~5 ~ ~', granting authority.
~~~ ,,, ,
~ ^ Retail sales must be incidental,
~,; related, and subordinate to the
~, ~~~~ ~
a
• primary operation of the winery
~'~ ,. ~,
r` as a roduction facilit .
~
~S~~
`
~
~
~
~
~+
ti
~
i~j~ ~~~J~ a~x~,~~~
ri~;~ ~,~~ ,;
ices/
Ser
Cold Stora e FacNit /Frozen
g y
Must comply with all
AS,
v
~;~~,~
~~' r
' 52 Food Locker Proposed
' applicable federal, state, and AS-CD
~r,~~P~r~o,Cesstng,~ ~ (RE29] . county health regulations.
& Industrial Rezoning
a
'
r Uses
~
~
~ ^ Equipment must be sheltered
7r
-
` (Site Plan or screened from road and
or adjacent properties.
~; , Outside ;, ;'' Class A SUP ^ Grinding area must be more
~,~~~Commercial"' :~ /CUP) than 1000' away from any
~~w ~uDistricts dwellings not located on same
'r"
Composting property & 300' from property
AS,
,~
~;~ 53 with Grinding (RE20] Proposed lines. 12, 13 AS-CD
,
~~ ^ Organic materials may be
stockpiled for a limited period
,~` specifed in permit.
^•Hours of operation specified in
~:; permit.
^ See also use 52 for
~~
~ 1' com osfin without rindin .
• ^ Hours of operation specified in
!' ~! .
~
54
Saw Mill, not in conjunction
with farm ~
Existing permit.
'Permit authority may limit daily
~
AS,
AS-CD
,
;, number of trips.
,,
~ ^ See also use 14 for saw mills
"; -F~ ~ :.F ~~' linked io bona fide farms.
`6
~i
cfl
0
I?
Agricultural Support Enterprises -Schedule for Completing Project
Staff work in April-My 2007
Prepare materials for May 21, 2007 Quarterly Public Hearing
Begin performance standards
Develop outline for proposed Agricultural Support Enterprises Manual '
Review materials with County Attorney
Draft informational memorandum to Planning Partners
May 21, 2007 -QPH Work Session
• Request Board's endorsement of three key concepts: 1) amend the Zoning Ordinance to
allow conditional district zoning, 2) prepare clear performance standards, and 3) create the
ASE Manual
• Request authorization to complete the project in accordance with this schedule and
permission to sent informational memo to Joint Planning Partners
Staff work follow up from May 21, 2007 Work Session
Prepare materials for June 12, 2007 BOCC
Prepare legal advertisement for consideration at June 26, 2007 BOCC
June 12.2007 BOCC
• Request Board's endorsement of three key concepts: 1) amend the Zoning Ordinance to
allow conditional district zoning, 2) prepare clear performance standards, and 3) create the
ASE Manual
• Request authorization to complete the project in accordance with this schedule and
permission to sent informational memo to Joint Planning Partners
June 26. 2007 BOCC .
Request for legal advertisement, consideration for August Quarterly Public Hearing
Staff work in June
Complete matrix-list of uses, locations and permit requirements
Complete performance standards
Revise Conditional District Zoning amendments per BOCC comments at May 21, 2007 QPH
Finish drafts of all remaining ordinance amendments w/all linkages
Draft ASE Manual
Create additional brochures as needed
Send draft materials to County Attorney for input
June 2007
Meet w/ Planning Staff at Town of Carrboro & Town of Chapel Hili to discuss key concepts
June Advisory Board Circuit: PB, EDC, APB Meetings ,
Present key concepts
Matrix of uses, locations and permit requirements
Present Conditional District Zoning construct & process
Present draft materials on ASE Manual and brochures
Revise new article providing for conditional district zoning
Staff work in July
Revise Zoning amendments per County Attorney
Modify Manual and companion brochures per input from advisory boards
Prepare materials for August 27, 2007 Quarterly Public Hearing
Agricultural Support Enterprises -Schedule for Completing Project
continued
lf3
July or early August Advisory Board Circuit
Follow up with advisory boards, as requested, far additional discussion and opportunity for input
Mid August 2007
Begin to engage Joint Planning Partners in discussion of ASE
AuQUSt 27, 2007 -QPH
Present to BOCC
Revise per BOCC input, if necessary
Request permission to forward materials to Joint Planning staff prior to September meeting
September Advisory Board Circuit: PB, EDC, APB Meetings
Review materials presented at August 27, 2007 Quarterly Public Hearing
Resolve any remaining issues and request formal approval, if appropriate, at November QPH.
6~
19 2
DRAFT
Memorandum
To: Orange County Board of County Commissioners
Chapel Hill Town Council
Carrboro Board of Aldermen
From: Laura Blackmon, County Manager
Date: June 12, 2007
Subject: Agricultural Support Enterprises
Background
At a March 2004 Joint Planning Area Planning Public Hearing, Orange County Planning
Staff presented information on an on-going initiative hosted by the Economic
Development, Planning and Envi"ronment and. Resource Conservation departments to
provide more business opportunities for local farmers in the rural parts of the county.
The project continues to be part of the County's effort to preserve farmland and farming
as a viable economic pursuit. The purpose of this memorandum is to provide our Joint
Planning Area (JPA) partners with an update of this project and to begin a dialogue on
the future of farming in the Rural Buffer..
Agricultural Support Enterprises (ASE)
Agricultural support enterprises are becoming increasingly important to the survival of
our local farms. The focus of the agricultural support enterprises project is to add new
farm-related uses-to our zoning ordinance that would provide farmers with opportunities
to gain more revenue from their farms. These new uses would be logical extensions to
existing farm operations, such as corn mazes (agritourism), roadside stands (direct
marketing) and small-scale processing facilities to make sauces (value-added), as well
as services related to farming such as feed stores and large animal veterinary services.
Process
Farmers would be required to go through a standard process and obtain a permit like
any other development project. (Bona fide farm purposes, which are exempt from
zoning per the North Carolina General Statutes, would remain exempt.) Staff are
reviewing the existing permit process, as part of this initiative, and are considering ways
to streamline it or, at least, to make it more user-friendly. While most of the potentiaG
changes to our zoning ordinance would only affect the rural parts of the county, it is
possible that some changes may have implications within the Rural Buffer. With that in
mind, County staff wanted to provide our JPA partners with an update on the project
prior to any formal consideration of amendments.
Rural Buffer Intent
The second component to this memorandum is to revisit the original intent of the Rural
Buffer, to begin a dialogue with our JPA partners to determine if this intent is still
valid/appropriate as it pertains to agriculture and related agricultural enterprises. When
the Joint Planning Land Use Plan was adopted in 1986, the state of local farming was
very different from what it is today. It was assumed that the area within the Rural Buffer
Agricultural Support Enterprises Page 7
~63
DRAFT
would gradually phase out of traditional farming and develop into low-density residential
uses. The pattern of development is another subject area for later discussion. The
amount of land in the Rural Buffer enrolled in the present use value program for
agriculture, forestry and horticulture, today, is approximately 28 percent.
Two things have changed during the last twenty years. One is the emergence of
organic farming as a popular alternative to traditional farming. Organic farming typically
requires less land than traditional farming and can occur as a compatible neighbor to
residential uses. Second is the trend of connecting urban residents to local farms,
which is linked to food sustainability issues, supporting local growers, buying locally
produced goods.
Agricultural Sustainability
The agricultural support enterprises proposal is designed to keep farmers farming, by
making agriculture profitable. Should this program extend into the Rural Buffer, it would
likely encourage the continuation of the existing active farms. It could encourage, new,
smaller-scale and organic farmers to consider starting operations in the Rural Buffer. It
could also encourage new farm businesses, such as farm stands and "pick-your-own"
operations.
Promoting new agricultural operations and agricultural support operations may be seen
as inconsistent with the intent of the original Joint Planning Area Land Use Plan. But as
residential development continues-to occur in Orange County and its municipalities,
many town residents are seeking a farm connection-as evidenced by the recent
Piedmont Farm Tour when approximately 6,500 individuals visited farms in Orange
County on two afternoons in late April. Residents in Chapel Hill and Carrboro seem to
enjoy not only the rural character of places like Dairyland Road but also the potential
link to the farming community. Operations such as Maple mew Farm illustrate the
potential for successful relationships between urban residents ahd local farmers, one
that provides the farmer with supplemental income and one that provides residents with
a rural experience and a locally grown product.
ASE Consistency with County Land Use Plan
The agricultural support enterprises proposal is designed to allow selected farm uses to
occur in a way that~is consistent with our overall land use plan. The proposal provides
more opportunities for advisory board input and public comment during the approval
process. In addition, staff's recommendation_ to develop a conditional district process
for rezoning property to Agricultural Services for specific agricultural support enterprises
provides a mechanism for the Board of County Commissioners (BOCC) to limit the
extent and intensity of an enterprise as part of the approval. Unlike general rezoning,
property subject to the conditional district rezoning process may only be used for a
specific land use(s), based on asite-specific development plan. Since applications are
site specific, the BOCC can consider the suitability of the proposed use based on its
location within the county. In other words, the BOCC could approve a rezoning for a
certain use in a rural area in northern Orange County and deny a rezoning request for
the same use in the Rural Buffer. The location factor will become increasingly important
as sections of the county transition from active farming ~to low-density residential.
Agricultural Support Enterprises Page 2
a~ 4
DRAFT
Rezoning JPA_Process
Rezonings are legislative decisions, reviewed by governing boards in accordance with
existing joint planning agreement procedures. Any rezoning application would be
considered through a public hearing process, neighbors would receive notice and
members of the general public would Have an opportunity to comment. If the tract in
question were located in a joint planning area, the appropriate governing board(s) would
have an opportunity to provide input on the request as well. The proposed process to
rezone to the Agricultural Services District includes opportunities for the town governing
boards to comment on any agricultural support enterprise project early in the process.
Summary
In summary, the agricultural support enterprises proposal is an agricultural economic
development program. Staffs proposal to allow farmers more value-added options
places no long-term obligations on their land. It is designed to keep farming an
economically viable business by permitting farmers to explore more innovative farm
operations.
Planning, Economic Development, and Environment and Resource Conservation staff
would like to begin a dialogue with town staff before it is further discussed by elected
officials, possibly at the fall JPA.
Agricultural Support Enterprises Page 3
65
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: August 21, 2007
Action Agenda
Item No. (~ ' q
SUBJECT: NC Highway 57 Speedway Area Small Area Plan
DEPARTMENT: Planning and Inspections PUBLlC HEARING: (Y/N) (~N~
Economic Development ~ .
ATTACHMENTS:
1. 5-21-07 DRAFT QPH Minutes
2. Draft 7-11-07 Planning Board Minutes
3. 6-14-07 Economic Development
Commission Minutes
4. Final Draft of NC Highway 57
Speedway Area Small Area Plan
(separate enclosure) .
INFORMATION CONTACT:
Craig Benedict, Planning Dir., 245-2592
Willie Best, Asst. Co. Mgr., 245-2300
Glenn Bowles, Planner II, 245-2577
PURPOSE: To review the recommendations of the Economic Development Commission and
the Planning Board for the final draft NC Highway .57 Speedway Area Small Area Plan and
consider adoption of the Small Area Plan. Proposed implementation regulations are not
part of this approval and will be addressed at a 'later date.
BACKGROUND: On June 27, 2006 the County Board of Commissioners authorized the
formation of a citizen Task Force for the purpose in working with County staff to complete a
Small Area Plan for an area of the County along NC Highway 57, near the Person and Durham
County lines, including the Orange County Speedway and the Hanson Aggregate Quarry
operation.
The purpose of the Small Area Plan was to evaluate and review the constraints and
opportunities of allowing for additional development within the area and identify opportunities for
the County and existing non-residential developments to work together to address identified
offsite impacts on surrounding property owners.
This work was originally being completed according to the planned update of the Orange County
Land Use Element. As the Land Use Element's timeline for completion has been extended,
staff believes that this project should be completed independently of the update.
The recommendations contained within the Small Area Plan attempt to address the following
questions identified by the Task Force, local citizens, and County staff:
1. What is an appropriate level of additional residential and nonresidential development
within the area?
2. Is there a desire for additional non-residential development in the area?
66
2
3. How wilt buffering and transitioning of existing, and possible future, nonresidential
development be accomplished to avoid impacts on existing, and possible future, low-
dens"qty residential development within the area?
4. How will the County address noise levels generated by the Speedway and possible future
reopening of the go-kart track?
5. What types of additional nonresidential land uses are to be considered for the area and
how will their impact be mitigated?
6. What additional traffic related issues would be generated by potentially allowing for
additional nonresidential development?
7. How will allowing for additional development within the area affect the existing
groundwater public water supply and how will existing, and future, residential
developments be protected from the increase in groundwater demand?
8. ~ What will be done to protect the environmental integrity of the Flat River and Little River
Watershed Overlay districts?
9. What ancillary impacts will be generated in Person and Durham Counties as a result of
potentially allowing for additional development in the area?
Four planning principles contained in the Task Force Report include:
1. Preservation and protection of the rural character and nature of the area;
2. Minimization of negative impacts on natural systems/environmentally sensitive areas;
3. Restrict growth and development so that it complements the rural character and
lifestyles; and '
4. Maintenance of present service levels for existing infrastructure.
Traditional rezoning and special use permit processes were not felt to afford the community and
Task Force sufficient protection and assurances of maintaining a rural lifestyle and character,
and the Task Force suggests a zoning overlay entitled Rural Economic Development Area
(REDA) be created to facilitate bringing the nonconforming activities into compliance.
The Draft Small Area Plan was presented at the May 21 Quarterly Public Hearing. Comments
were received from three speakers. Task Force members Karen Barrows and Bruce Peters
expressed concern about damage to wells from blasting, noise and traffic impacts, impacts of
additional development, rights of property owners, and increased air pollution from non-
residential uses in the area. Melvin Stanley spoke on behalf of Orange County Speedway
emphasizing they were a legal non-conforming operation. He expressed concern about
representation of speedway representatives on the committee early in the process and the
impacts of potential regulatory changes discussed by, the committee. He closed by asking if
there would be a list of potentially permissible uses. Commissioner Jacobs suggested a word
change on goal #5 on page 28. He suggested "Air quality issues shall be an integral part of any
future permit reviewed within the Study Area."
The BOCC referred the NC Highway 57 Speedway Area Small Area Plan to the Economic
Development Commission and Planning Board and for review and recommendation.
The Economic Development Commission considered the Small Area Plan at their meeting on
June 14, 2007 and voted unanimously "to recommend the Plan be forwarded for approval by the
Board of County Commissioners."
67
The Planning Board discussed the Small Area Plan on July 11. There were questions about
support for the plan by residents (staff indicated general acceptance of the Task Force Report)
and whether the speedway owner could continue in non-conforming status if he chose (he
could); also the impact of this on possible future owners of the property (they would have same
options as current owner). There was also discussion as to whether ~or not REDA was specific
to the Highway 57 area or might be applied countywide (staff indicated that the Task Force was
recommending the use of REDA for this plan; however, before it could be used anywhere it
would have to go through the normal zoning and land use text amendment process).
The Planning Board voted 7-2 to recommend approval of the plan with the understanding that
residents have agreed to it and that REDA will not be adopted countywide.
It is acknowledged that the uses in this Small Area Plan are unique and no public sewer
and water service is proposed.
FINANCIAL IMPACT: There is no financial impact at this time; existing County staff will be
utilized in the small area planning process.
RECOMMENDATION: The Administration recommends that the BOCC adopt the NC Highway
57 Speedway Area Small Area Plan.
68
DRAFT-NOT APPROVED YET
4
1 DRAFT
2 MINUTES
3 ORANGE COUNTY BOARD OF COMMISSIONERS
4 HILLSBOROUGH TOWN BOARD OF COMMISSIONERS (Item A.1)
5 AND
6 ORANGE COUNTY PLANNING BOARD
7 QUARTERLY PUBLIC HEARING
g May 21, 2007
9 7:30 p.m.
10
11 The Orange County Board of Commissioners, Hillsborough Town Board, and the
12 Orange County Planning Board met for a Quarterly Public Hearing on Monday, May 21, 2007 at
13 7:30 p.m. in the F. Gordon Battle Courtroom in Hillsborough, N.C.
14
15 COUNTY COMMISSIONERS PRESENT: Chair Moses Carey, Jr. and Commissioners
16 Valerie Foushee, Alice M. Gordon, Barry Jacobs, and Mike Nelson
17 COUNTY COMMISSIONERS ABSENT:
18 .COUNTY ATTORNEY PRESENT: Geoff Gledhill
19 COUNTY STAFF PRESENT: County Manager Laura Blackmon, and Deputy Clerk to the
20 Board David Hunt (Ali other staff members will be identified appropriately below)
21 PLANNING BOARD MEMBERS PRESENT: Chair Jay Bryan and Members Brian
22 Crawford, Craufurd Goodwin, Sam Lasris, Renee Price-Saunders, Sandra Johnson-Quinn,
23 Judith Wegner, and Jeffrey Schmitt
24 PLANNING BOARD MEMBERS ABSENT: Michelle Kempinski, Joel Knight, and
25 Bernadette Pelissier
26 HILLSBOROUGH BOARD MEMBERS PRESENT: Mayor Tom Stevens and Members
27 Evelyn Lloyd, Brian Lowen, Michael Gering, and Eric Hallman
28 HILLSBOROUGH BOARD MEMBERS ABSENT: Frances Dancy
29
30
31 NOTE: ALL DOCUMENTS REFERRED TO IN THESE MINUTES ARE IN THE PERMANENT
32 AGENDA FILE IN THE CLERK'S OFFICE
33
34
35 A. OPENING REMARKS FROM THE CHAIR
36 The meeting was called to order by Chair Carey at 7:37 pm. He noted that this is the first
37 time that a meeting has been held with these three boards in a very long time.
38 Planning Board Chair Jay Bryan welcomed everyone.
39 Mayor Tom Stevens said that he and his board were delighted to be at the table.
40
41 B. PUBLIC CHARGE
42 The Chair dispensed with the reading of the public charge.
43
44 C. PUBLIC HEARING ITEMS
45
46 2. NC Highway 57 Speedway Area Small Area Plan: A citizen task force, Durham and
47 Person County representatives, and two Orange County Commissioners have spent the
48 past 10 months addressing planning issues fora 900- acre area in the northeast corner
49 of Orange County. Issues include non-conforming, non-residentia! land uses,
50 trafficlaccess management, water quality and quantity, noise and noxious odors, and an
51 appropriate level of residential and non-residential development. The Task Force
1
Z
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
DRATT-NOT APPROVED YET
suggests a zoning overlay entitled Rural Economic Development Area (REDA) be
created to facilitate bringing non-conforming activities into compliance.
Planning Director Craig Benedict made this PowerPoint presentation.
NC HIGHWAY 5T SPEEDWAY AREA
SMALL AREA PLAN
TASK FORCE REPORT
A collaborative effort between the Economic Development Department, Planning and
Inspections Department,
and Durham County
May 21, 2007
Orange County, North Carolina
Task Force Members County Commissioners
Anita Badrock Moses Carey, Chair
Karen Barrows Barry Jacobs, Vice Chair
Moses Carey Valerie Foushee
Darrell Chandler Alice Gordon
Jonathan E. Ruppert Mike Nelson
Barry Jacobs
Debra Logner Dianne Reid, Economic Development.
Mac Miller Craig N. Benedict, Planning Director
Bruce Peters
Kevin D. Peters
James Walker
Helen Youngblood, Durham County Planning
Presentation Outline
• Background Map
• Plan Development
• Task Force Charge
• Planning Principles
Goal Statements
• Standards
• REDA (Rural Economic Development Area)
• Plan Adoption Timeline
Map:
• 38 parcels
• 930 acres
• Bisected by NC 57
• Little River Township
• AR zoning with 2 small EC-5 zones
• Flat and Little River Watershed
Staff
Glenn R. Bowles, Jr.
Michael Harvey
5
69
70
DRAFT-NOT APPROVED YET
1 Plan Development
2 Inventory and assessment,
3 Identification of issues and concerns,
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
I9
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
• Public Feedback through Task Force meetings, and
• Process to Review Plan Drafts.
Task Force Charge
• Issues, concems, and opportunities and constraints
• Focus on
/ New development
/ Safety hazards
/ Outdoor activities
/ Soils & groundwater
/ Traffic
/ Rural character
/ Nuisances
Planning Principles
^ Preservation and protection of area rural character.
^ Minimization of impacts to natural systems and environmentally sensitive areas.
^ Growth/development complement rural character and lifestyle.
^ Maintenance of present service levels.
Goal Statements
• Augment or enhance the area's rural character.
• Aesthetically enhance NC 57 entranceway.
• No adverse impact to existing groundwater supplies.
• Stormwater runoff shall be maintained on site.
• Air quality issues are intricate to any future permit.
• Non-conforming uses to be brought into compliance.
• The quarry needs SUP to renew NC permits.
• Non-residential uses held to specific criteria.
• No negative impact to existing infrastructure.
Site-Specific Design Standards for:
Stone Quarry properties
And
General Suggested Conditions for:
Orange County Speedway and
Go-Kart property
REDA (Rural Economic Development Area)
• 2-Step Process
o LU Map/Text Amendments
6
DRAFT-NOT APPROVED YET ~
1 o Rezoning Application
2 Only with approved SAP
3 Conditional Use Zoning
4 With Review Criteria
5 Public Review
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7 The Plan Adoption Timeline is incorporated by reference. The Small Area Plan could be
8 approved by the Board of County Commissioners by August 2007 and the Zoning Atlas Map
9 Amendment could be approved by the Board of County Commissioners by October 2007.
ZO Staff recommends the Board accept public comment on a Small Area Plan and then
11 forward comments to the Planning Board and the Economic Development Commission.
12 Chair Carey recognized the members of the task force.
13 Renee Price-Saunders asked for more speciftcity on the non-conforming use. Craig
14 Benedict said that presently this section of the County is agricultural-residential on the land use
15 map. Non-residential uses are not allowed in this part of the County. Since the speedway was
16 in existence at the time the zoning went into effect, it was given a legal non-conforming status.
17 In order for it to operate in a different status, the land use and zoning maps must be changed to
18 allow uses of this nature.
19 Commissioner Gordon asked about the differences between the original and
20 amended/revised document and Glen Bowles explained the differences. The changes were on
21 pages 31, 34-37. The spec city was taken out. The taskforce voted to make the changes.
22 Commissioner Gordon asked about the plan for the August public hearing. Craig Benedict
23 said that, concerning the conditional use rezoning planning device that Orange County does not
24 have, this will be brought forward for the August Quarterly Public Hearing. This can be used in a
25 lot of other cases throughout the County and not just this project.
26 Craig Benedict answered several clarifying questions of Commissioner Gordon.
27 Commissioner Gordon said that the hardest thing about economic development is to get it
28 in areas that will support it.
29 Commissioner Jacobs made reference to the very last page in the new package, page 51,
30 which was an appendix. This was pulled out by the task force. He said that these .might be the
31 kinds of requirements that anon-conforming use would have to meet when it applied for a
32 conditional use permit. He said that the specifics in the first packet became the appendix on
33 pages 51-52.
34 Jeff Schmitt said that he was present when the citizens brought their concerns to the
35 Board. He asked if this plan met the requests that some of the citizens had that would allow them
36 to proceed with the development of the small businesses.
37 Craig Benedict said that the business community has participated in every meeting, and
38 this creates a mechanism by which an expanded business or different uses can be pursued. The
39 neighborhood is concerned that some of the adverse impacts that exist now do not get worse.
40 The County is trying to strike a balance. The conditional use approval process would allow for
41 those concerns to come out through a public hearing process.
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43 Public Comment:
44 Karen Barrows thanked the County Commissioners and the Planning staff that worked
45 with the citizens. She said that there are a lot of conflicting interests in the area. A lot of the
46 neighbors are concerned about damage to their wells from the blasting of the quarry, etc. The
47 noise and increased traffic are also issues related to the quarry and the speedway. Some people
48 do not want any more development in the area. She agrees. She does understand that other
49 people have bought land with the intent to develop it, and those needs should be addressed also.
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She said that the REDA is a pretty good vehicle to strike a balance. She hopes that it will be
adopted. She said that this has to be done properly.
Bruce Peters said that he represents some neighbors. He was asked to speak to the
speedway, go-cart/motocross facilities, and the potential reopening of the asphalt plant. This is a
big concern for people that live within a quarter of a mile. He said that if these commercial
establishments are allowed to operate without any constraint, mainly noise buffers, the rural
residential area will be equivalent to a heavy industrial zone because of the excessive pollution of
the air from motors without exhaust systems and the burning of oil and other agents in the
production of asphalt There is also excessive noise pollution. He said that Durham recently
adopted a new noise ordinance, in which no construction can take place on Sunday or on
weekdays after 6:00 p.m. He said that many neighbors see no reason to change from the present
limited use if these operations do not care about giving the air relief from the overwhelming
pollution, especially noise. Lastly, the neighbors do not have a great deal of concern about some
of the County's requirements in detail (i.e., landscaping, signage, parking entrances, etc.)
because they do not affect the quality of life or the value of the property.
Melvin Stanley was representing Orange County Speedway, but as an interested party
and not as legal counsel. He said that the speedway property has been operating as a legal non-
conforming operation since 1994 when "blanket' zoning was done. He said that he understood
that the County would have a rezoning to make the properly more consistent with the existing
uses. He said that the interested parties proceeded with the understanding that this was a legal
non-conforming use and that it would not be permitted to expand, such has more seats or
expanded racetrack. He said that somewhere in this process, they fell through a crack. There
was a discussion about the committee that-was put together and two of the meetings were held
before the speedway representatives knew there was a committee. He said that an application
was made to put one member of the speedway staff on the committee, and this was not acted
upon. He said that he had proceeded expecting to see some kind of a commercial zoning that
would apply that would cover the racetrack. He said that at the last committee meeting, he
expressed some fairly strong concerns, in that the specifics that were listed would require that the
speedway give up some 70% of the land so that nothing could be done on it. It would also require
rebuilding some roads and relighting the facility. He said that this is not economically feasible for
the speedway. He asked what would happen if the speedway did not participate in this plan. He
said that they do not know what they can and cannot do. He asked for a list of what is permissible
and presumed to be permissible with reasonable conditions. He asked if they would be forced to
be a part of this plan, or if they could opt out.
Craig Benedict said that the new zoning overlay and the conditional use rezoning would be
available for someone to voluntarily ask to be included. If an entity wants to remain in its present
status with no expansion, then it can do that. He said that the County was not forcing anyone to
ask for a conditional use rezoning and be subject to the process.
Melvin Stanley asked if there would be a list of potentially permissible uses. He
specifically referred to concerts, car shows, and animal shows. He encouraged staff to bring a list
that would be sensibly usable, provided that reasonable guidelines are followed.
Commissioner Jacobs suggested a word change on goal #5 on page 28. He suggested,
"Air quality issues shall be an integral part of any future permit reviewed within the Study Area."
He said that, as far as participation in the task force meetings, no one was precluded from
speaking. He said that everyone that attended felt quite free to speak.
Melvin Stanley said that he did not mean to imply this.
A motion was made by Commissioner Nelson, seconded by Commissioner Jacobs to refer
this item to the Planning Board for a recommendation to be returned to the BOCC no sooner than
August 21, 2007.
VOTE: UNANIMOUS
~ 73
DRAFT MINUTES
ORANGE COUNTY PLANNING BOARD
JULY 11, 2007
REGULAR MEETING
MEMBERS PRESENT: Jay Bryan, Chapel Hill Representative (Chair); Brian Crawford, Eno Township At-Large;
Craufurd Goodwin, Hillsborough Representafive; Joel Knight, Little River Representative; Sam Lasris, Cedar
Grove Township At Large, Bernadette Pelissier, Bingham Township; Renee Price, Hillsborough Township At
Large (Uce-Chairj, Sandra Johnson Quinn, Eno Township; Jeffrey Schmitt, Cedar Grove Township at
Large;
MEMBERS ABSENT: Michelle Kempinski, Cedar Grove Township at Large; Brian Dobyns, Cheeks Township
Representative (Resigned); Judith Wegner, Bingham Township At-Large,
STAFF PRESENT: Craig Benedict, Planning Director, Robert Davis, Current Planning Supervisor; Tom Alfieri,
Comprehensive Planning Supervisor, Glenn Bowles, Planner II; Donna Davenport, Administrative Assistant
II, Perdita Holtz, Michael Harvey, Gene Bell, Jennifer Leaf
OTHERS: Steve Yuhasz
Agenda Item 11: QUARTERLY PUBLIC HEARING REFERRALS
MC HIGHWAY 57 SPEEDWAY AREA SMALL AREA PLAN
Presenter. Glenn Bowles, Planner II
Jeffrey Schmitt: Were the managements of the quarry, race track and go-kart tracks present?
Glenn Bowles: The go-kart management and speedway management were always there. The quarry
management was invited and came to one meeting to make a presentation. They have a copy of the draft
plan and know all the details of the Task Force's work.
Renee Price: Have the residents of the adjoining neighborhoods feel comfortable about the development?
Glenn Bowles: Are they comfortable with a go-kart track or speedway? No.
Jeffrey Schmitt: What are the issues?
Glenn Bowles: The surrounding neighbors. The go-kart track is noise, the speedway is the noise and trash
and traffic. The quarry wasn't too much of a problem, but the neighbors do feel the vibration of the blasting
and hear the sounds of the vehicles. The quarry has a wide buffer.
Renee Price: But the meetings have not caused concerns.
Glenn Bowles: Yes, we had a lot of discussion about issues.
Renee Price: Are they mellowing out?
Glenn Bowles: They are. The neighbors generally accept the task force report. They are not happy with
the uses. It was a balancing act.
~~74
Jay Bryan: Are we being asked to approve this small area plan? Does that plan include a'recommendation
for implementation? This whole proposal is not what we are voting on tonight.
Jeffrey Schmitt: What are we voting on tonight?
Jay Bryan: The small area plan on pages 79-127 up to but not including the appendices. It includes the
REDA section?
Glenn Bowles: It introduces the REDA.
Jay Bryan: Does anyone need any more information about the plan?
Jeffrey Schmitt: On page 135, how does the information listed about the speedway relate to what is in the
plan?
Glenn Bowles: Everything listed about the speedway and/or the go-kart track was derived from the listing of
issues, constraints, liabilities and opportunities that was early in the report.
Jeffrey Schmitt: The ownership of the speedway, not having a concept of this may or may not be coming
forward, has what type of comments to this list?
Glenn Bowles: He thinks it is a constraint on him. If the speedway isn't going to make it, he wants a list of
acceptable uses for that site. We are not prepared to do that.
Craufurd Goodwin: Referr+ng to planning principals; Preservation of projection of area rural, we were told
there is a lot of noise. Impacts to the natural systems, there seem to be nothing but impacts. Growth
development to compliment rural character and lifestyle, the whole thing seems to be an impact.
Glenn Bowles: If you go back to look at the planning principals, they are complimentary of the goals you are
being ask to look at.
Craufurd Goodwin: W(Il these help get a resolution of the problem?
Glenn Bowles: They organize the objectives.
Brian Crawford: I'm not sure how long the speedway has been there. It would seem that this situation is
that no matter how many environmental issues are attended with its use to come in on a retroactive basis
and im~se economic conditions which are so substantive in nature they cannot afford to do them.
Glenn Bowles: We are not imposing those on them unless they step forward to become conforming. If they
want to stay non-conforming, they can do that but if they would like to become conforming then it would also
be a negotiation. In the end, they may be stated differently or some may fall off.
Jay Bryan: They can continue to use the site in that manner.
Brian Crawford: We can't do anything unless they want a change.
Jeffrey Schmitt: I think that is a trap because I am not sure what a change is.
Glenn Bowles: If they want to expand; for example parking.
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Sandra Quinn: If we pass this, and the property is sold, will this be a change or will the new owner still be
non-conforming.
Glenn Bowles: He still has the same options.
MonoN made by Renee Price to approve the plan with the understanding that the residents have agreed to
the plan. Brian Crawford seconded.
Vole: (9 Ayes, 2 opposed (Jeffrey Schmitt, Joel Knight)
Jay Bryan: I would like to make it clear that I am not supportive of the REDA section.
Glenn Bowles: You want to remove the Section 5 in its entirety?
Jay Bryan: No. It is not something we approve with this motion.
Brian Crawford: Is Section 5 part of the SAP?
Glenn Bowles: Yes, It is. The plan goes up to but does not include the appendices.
Brian Crawford: I don't accept that.
Renee Price: My understanding is that it would not include REDA?
Glenn Bowles: REDA as the implementation tool.
Brian Crawford: What section is the Small Area Plan?
Glenn Bowles: Everything up to Section 6. The concept of the REDA, the conditional zoning with the
approval of the Small Area Plan, it introduces the concept but it does not deal specifically with how the
REDA will be worded.
Renee Price: Would the REDA have to be used?
Glenn Bowles: Planning staff is only suggesting that it be used.
Michael Harvey: You have the SAP that makes a list of recommendations. The SAP identifies the public
participation with the process a recommended course of action or recommended course of action. This
Task Force, with staffs input and assistance, has developed a process which includes a Section 5 which
they have recommended as the Rural Economic Development Area. Their recommendation to the Board of
County Commissioners is that in order to implement the standards and policies identified within this
document, you follow a Rural Economic Development Process. The Board, in accepting this document, is
not bound by that recommendation. You are recommending approval for is that you are accepting the Task
Force~SAP including the recommendation, which you will get back to take formal action on implementation
measures. This will go for the normal approval and process as usual.
Brian Crawford: What is your concem about the REDA?
Jay Bryan: I am okay with it being used for this plan but not being adopted as a broad County wide
approach. This is implied to be a County wide approach and I don't agree with that.
Michael Harvey: The task force is making a recommendation, whether~it is accepted or not, to use REDA in
this plan. By adopting this plan, it does not establish the REDA. It still has to go through the normal zoning
and land use text process amendments to bring it to fruition.
Brian Crawford: I think we want to recommend the SAP but we have reservations about REDA being
adopted County wide. I think it is fair to state that in the motion.
I~
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MOTION made by Renee Price to approve the plan with the understanding that the residents have agreed to
the plan and REDA will not be adopted County wide. Brian Crawford seconded.
VorE: (2 opposed (Jeffrey Schmitt, Joel Knight)
MINUTES
ECONOMIC DEVELOPMENT COMMISSION
June 14, 2007
Present: Anita Badrock, Bryant Colson, Dan Coleman, Keith Cook, Mark Crowell, Jim Evans, Lilyn
Hester, Chris Hogan, Eric Hallman, Barry Jacobs, Anne Loeb, Tony McKnight, Lauri
Michel, Bob Ward
Staff: Willie Best, Yvonne Scarlett, Craig Benedict, Tom Alteri
Guest: Dianne Reid
Absent: Mike Nelson, Alois Callemyn
Hig_hway 57/Speedwav Area -Anita Badrock and Dianne Reid
Badrock briefly explained that this was a small area plan that about 968 acres in the northeastern part of
Orange County, bordered to the north by Person and to the east by Durham County. This area was picked
because right now it primarily zoned rural agricultural, but there are a number of nonconforming uses there -
Orange County Speedway, a rock quarry, and go-cart track. There has also been some interest from
property owners up there about other things that they might be able to do with their property. Two community
meetings and six meetings of the Task Force were held with good attendance with one of the goals being to
collaborate with those nonconforming uses property owners to bring them into conforming use. Another thing
was to think about whether there was ways that people could do some things on their property that were a
little more expansive than just the rural agricultural. Basically the outcome was to charge the community with
trying to reconcile some commercial aspirations with the property with neighborhood values and goals. The
Task Force recommended that the Commissioners consider an establishment of a permitted use - a
conditional use permit. Which would be specific to the property, it would go through the kind of review that
conditional use permitting has (the County currently does not have conditional use permitting) and that we
would better define and promote a rural economic development district -which would be to allow some
increased commercial use of what has been historically rural agricultural property. This Task Force Report
has now been given to the BOCC, went to Public Hearing on May 2151, and referred to this Board for
approval.
Craig Benedict -Again, this is a small area-planning document and it has embedded recommendations. If
the small area plan is approved by the Commissioners, that is a go ahead to proceed •with developing new
ordinances - what is conditional use district, consider new over-lay districts which is to be entitled rural
economic development area, so this would be the go ahead. Some people think the document makes
everything start working -this is actually (if approved) the go ahead to start preparing zoning ordnance
changes -new zoning constructs and it also would not infer rights to Raceway immediately. They would
have to petition afterwards to use these new rules to make them go from a nonconforming to a conditional
use conforming status.
A motion was made by Keith Cook and seconded by Mark Crowell to recommend the Plan be
forwarded for approval by the Board of County Commissioners. The motion was approved
unanimously.
Craig Benedict - a lot of these small area plans that are tracking through both the Planning Board and EDC
and these are the plans that have recommendations and all of a sudden coming dawn the pike you will see
the zoning amendment, you'll see a permitted use change possibly. So we're trying to put together a mid-
range plan to let you know in advance when these things will be coming your way, so in about a month, we
hope to work with EDC staff and work with Willie to plot out the course of these implementation strategies of
these plans. We'll try to get a master plan for you and whatever meetings these things hit, you'll see where
you are in the process of these five or six different small area plan processes and moving into the
implementation phase.
~3
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MINUTES
ORANGE COUNTY PLANNING BOARD
JANUARY 19,2011
SPECIAL MEETING
MEMBERS PRESENT: Brian Crawford (Chair), At-Large, Eno Township; Larry Wright (Vice-Chair), At-Large, Cedar Grove
Township; Tommy McNeill, Eno Township Representative; Peter Hallenbeck, Cheeks Township Representative; Alan Campbell,
Cedar Grove Township Representative; May Becker, At-Large Chapel Hill Township; Mark Marcoplos, At-Large, Bingham
Township;
MEMBERS ABSENT: Judith Wegner, Bingham Township Representative; Rachel Hawkins, Hillsborough Township Representative;
Andrea Rohrbacher, At-Large Chapel Hill Township; Samantha Cabe, Chapel Hill Township Representative; Vacant- Little River
Township Representative;
STAFF PRESENT: Craig Benedict, Planning Director; Tom Altieri, Comprehensive Planning Supervisor; Perdita Holtz, Planning
Systems Coordinator; Michael Harvey, Current Planning Supervisor; Shannon Berry, Special Projects Planner; Terry Hackett,
Stormwater Resource Officer, Rich Shaw, Land Conservation Manager; Tina Love, Administrative Assistant II
OTHERS PRESENT: DOlly Hunter
(Documents emailed from May Becker prior to meeting: Email from May Becker, Stream Notes-Riparian Buffers, NC DENR-
Riparian Buffer Protection Rules and Tar-Pamlico River Basins, Orange County Protected Watersheds/Critical Areas Map,
Article by May Becker and others on Hydrodynamic behavior of the Cape Fear River and estuarine system: A synthesis and
observational investigation of discharge-salinity intrusion relationships, Article by May Becker and others on Effects of intratidal
and tidal range variabil-ty on circulation and salinity structure in the Cape Fear River Estuary, North Carolina )
AGENDA ITEM 1: CALL TO ORDER AND ROLL CALL
AGENDA ITEM 2: UNIFIED DEVELOPMENT ORDINANCE (UDO) - REVIEW OF CONDITIONAL USE DISTRICTSICONDITIONAL ZONING
DISTRICTS AND STREAM BUFFERS:
To review and discuss the Stream Buffer provisions in the proposed UDO and to conduct any remaining
discussion on the Conditional Use District and Conditional Zoning Districts.
Presenter. Planning Staff
Brian Crawford: Who is taking the lead tonight?
Perdita Holtz: At the last meeting we opened it up the Planning Board to express concerns.
May Becker: We talked about the Conditional and Conditional Zoning and I am still concerned about the Conditional Zoning that
it is too open ended for the developer. I am concerned about the lack of a Special Use Permit and I would like to discuss more
restrictions on that.
Brian Crawford: What specifically?
May Becker: I think that from our discussion/presentation last time that the planned development sounds like that was available
or an option, had more restrictions and now it has been divided into Conditional Use and Conditional Zoning.
Craig Benedict: There was chart we used on Elmo last meeting that was something that majority of the Planning Board
members understood the differences between the three different types of development. Maybe that is what she wants to see
again?
May Becker. Yes. There is also the email that went around discussing the conditional use districts versus conditional use.....
79
Approved 2/2/11
61 Craig Benedict: Some of the other Board members may be able to help my recollection. This meeting we were talking about
62 stream buffers first and then if there was any time left over we would go back to conditional use. Is that how others remember it?
63 That is what I understood. I remember Judith saying, let's make sure we have a good grasp on stream buffers at this meeting
64 and then as time permits, go back to conditional use because we came to some degree of finality on conditional use and
65 conditional zoning and general use last week.
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67 Brian Crawford: Let's go to stream buffers and try to do as much as possible and then if there are lingering issues from the last
68 meeting, Planning Board members will be free to bring them back up.
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70 May Becker: My understanding was similar to that except that I felt that I voiced some concern about some of these issues and
71 wanted to follow up about them. I sent an email about particular concems and overview about stream buffers in general and
72 some research I have been doing in North Carolina and how it relates to streams in general and river basins. Then I made some
73 particular comments at the end regarding uses permitted by right. It appears there are a number of uses that were not included
74 in the ordinance. Uses permitted with mitigation and what mitigation involves and in general with respect to permitted uses by
75 right and I don't see any specific protections in there. If we have a area stream that has trees around it now, the buffer zone, and
76 then you clear cut if for some particular reason, development or putting sewer lines, I would like to look at specifically what will be
77 done to make sure there is some kind of vegetative buffer in there so that if nitrogen and phosphates and such get into it we don't
78 have problems down the line with dissolved oxygen where the fish can't breath or erosion and flooding and also all the way down
79 to the estuary and you consider what drives the estuary flow and what causes we to have health and fisheries that is all one
80 system and if you are urbanizing something in one part and changing on fresh water coming into the estuary for example that
81 changes the salinity gradient. In other words you have more fresh water pushing toward the ocean that changes the salinity
82 gradient between the ocean and fresh water infusion and that changes the potential for the salt water to come in or the strength
83 of the circulation of the salt water coming in on the bottom, saltwater coming in on the top which tends to change mixing
84 characteristics. I think there is a lot of evidence that the stream buffer, put in the handout with that, have had studies done at the
85 Neuse River Basin and the Cape Fear Basin and they have looked at results of putting stream buffers in as a result of problems
86 they had before and they have had positive results. I feel like that instead of later having to go down the line and clean up after
87 mistakes that have been made, I think we should look at it more carefully and make sure that we maintain the water quality that
88 we have. The other thing in the email was a link to an article about Falls Lake and how eventually when they have to consider
89 how to clean up the water quality they look at TMDL and consider who is going to pay the 1.5 billion dollars in clean up costs. I
90 marked in the lower Cape Fear and did some critical field study for TMDL environmental management plan. It is long process
91 and there are a lot of different issues in this state so sometimes it comes up in meetings, why do we need more regulations when
92 the state has these regulations. These processes take a long time and they have to consider natural factors that are causing the
93 circulation. Sometimes people get the impression that we are at the point in technology where we have all the answers and can
94 solve everything but as we've seen in the Gulf with the oil spill, you have a problem and then all of a sudden people ask how do
95 we solve this. I feel like we shouldn't be of the kind of illusion that somebody is going to clean it up and everything is going to be
96 ok.
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98 Tommy McNeill: Dr. Becker, I hear what you are saying and I have looked at the attachment looking at the houses and the 100
99 year flood in Orange County, the wetlands, etc. What is it that concems you?
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101 May Becker: It concems me to take trees in areas close to the river because if you have trees or other vegetation and you have
102 got urbanization, runoff, etc. that you have a filter system to keep excess nitrogen and phosphates from coming into the water
103 body. If they do come into the water body, you have green algae or different types of chlorophyll that grow and as they grow,
104 chemical process take place. For example, vegetation or algae can rot and as the algae rots it sticks to the bottom and starts to
105 consume oxygen. As it consumes oxygen, fish or the other creatures that are used to living there don't have enough oxygen to
106 breathe and you start to see fish kills. We've seen that in the Neuse River Basin, it's an area where it's largely surrounded, the
107 Outer Banks for example, serve as a barrier island to stop the Bushing of the tidal currents coming in and out so you have a
108 system that is basically temperature stratified because you don't have a lot of mixing, you tend to have problems with dissolved
109 oxygen. In the Cape Fear, in contrast, you have an estuary that is open to the ocean and you have the tides coming in and out
110 and you have more oxygenated waters that can dissolve oxygen, you will see there are different industries, they monitor these
111 areas to see how much they're discharging into the estuary. They have different ways of overseeing this. My concern is that in a
112 public area like streams here you don't have a monitoring system in place and you continue to potentially .... you go to a
113 subdivision for example, you have a lot of new residences, you have people fertilizing their lawns and you don't have some type
114 of vegetation buffer, some strict, specific area that is keeping a filter or some kind of vegetation to prevent development close to
115 the stream, then you don't know what you will have.
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117 Brian Crawford: Help us think about policies. As I understand the buffers, and they can clear cut maybe 25 feet of it and you
118 have the vegetation portion that has to stay in place. Specifically that is what the buffer is at state law and you are suggesting
119 something further to increase the absorption and a potential runoff into the streams.
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121 May Becker. I would like to go through what is there and what is not there. The way it reads to me is things that were not
122 permitted within this area are now being permitted.
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124 Tommy McNeill: Could you give an example?
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126 May Becker: Let's go to page 6-142,143, Section 6.13.6. A whole bunch of things have been added in red. The property
127 owners provide a written notification to the planning department and location of the accepted use. Property owners shall provide
128 a written statement to the planning department that the use shall be designed, constructed, and maintained to minimize soil
129 disturbance and to provide the maximum water quality protection practicable. If structures are proposed, approval of a site plan
130 and all applicable building permits shall be required prior to commencement of land disturbing activities. From my understanding,
131 these particular activities or uses are now being permitted by right according to Section C. For example number 8, driveway
132 crossing on single-family residential lots that disturb less than, or equal to, 25 linear feet or 2,500 square feet of stream buffer
133 number 12, public water and sewer lines that do not disturb over 40 linear feet, and New stormwater management ponds,
134 provided a riparian buffer that meets the requirements of this Section is established adjacent to the pond. So another concern I
135 have is ponds. We have seen in Cape Fear what these waste lagoons do when farmers have industrialized hog production
136 facilities and they put their waste into these lagoons, during storrn events they overflow into the stream and you've got fish kills
137 and you've got...essentially people don't monitor what's going on over these storm events and you have a big mess.
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139 Tommy McNeill: Regarding the lagoons, do you feel that is really typical here in Orange County? I understand the Cape Fear,
140 and certainly I understand your concern in the Cape Fear River Basin but here in Orange County do you think that would be a
141 concern of Orange County residences to worry about the quality in Orange County.
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143 May Becker. That was an analogy really.
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145 Tommy McNeill: Craig, the things that she has brought up, the things discussed, is that a red flag? How does staff feel about
146 them?
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148 Craig Benedict: Presently, our code allows for private driveway crossings, utility crossings to stream buffers and that is an
149 acceptable encroachment to the stream buffers. We are suggesting for some additional encroachments to be allowed if there is
150 mitigation in accordance with State and the Department of Natural Resources. Terry Hackett is here tonight, he is the
151 Stormwater Officer in Orange County, and can explain the technology behind these mitigation rules. The State presently allows
152 more encroachment than even our modified version. At the appropriate time tonight, I will give somewhat of an answer not now
153 but at the appropriate time, we can go through why the modification that is being suggested will exceed state requirements as we
154 always have in Orange County.
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156 Brian Crawford: Have you gone through the list and checked the ones of major concerns.
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158 May Becker: I put a couple of questions I have, what do the ordinances say now, what they do in the proposed UDO. To me
159 when you add something residences are permitted by use or permitted by right, it applies to me that previously....that these are
160 new rights. If somebody has a piece of property now an ordinance is written that says this is his or her right then I would like to
161 know how, is this something new? I have marked those that are of particular concern. I would like to see what the particular
162 rules are regarding ponds as well as the public water and sewer water lines, what kind of vegetative would be maintained? On
163 Page 6-144, I would like to discuss what the steps of mitigation are, also, letter D number 4-6.144, with regard to cumulative
164 impact. I think there were comments on temporary roads by other members.
165
166 Brian Crawford: Perdita, can you flush it out?
167
168 Perdita Holtz: I would like to explain what Orange County regulations and what the state regulations are so we can have a basis
169 to start the discussion. (Reviewed chart projected) On the left is the state requirements and on the right is Orange County
170 existing requirements and as it exists in the UDO. State requires, in the watersheds that comprise Orange County, 50 feet wide
171 on both sides of the stream, which is measured from the top of the stream bank. In Orange County, we have two methods of
172 calculating width and the required methods depends on which watershed you are in. In the UDO, it tells you which method you
173 have to use. In protected and critical watersheds, generally, a 130 foot total buffer. It is measured from the edge of the flood
174 plain for streams that have mapped floodplains, so we are measuring from the edge of the flood plain which is further out than
175 the stream bank. If you have steeper lands, there will be 160 foot total buffer. There are specific nuances for Cane Creek,
176 Upper Eno, Lower Eno that may require a larger buffer than that. In the unprotected watersheds, which is a fairly small area in
177 the county, we require a 50 foot minimum on both sides of the stream. That is a state requirement. The state requires buffers on
178 intermittent and perennial streams, lakes, ponds and estuarine waters and those are shown on the soil survey map or the USGS
179 map. They are fairly major water bodies. In Orange County, we are requiring the same as the state except we also require that
180 you buffer water features identified by field determination. Our storm water folks go out to development projects and look for
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181 drainage. We require buffers along what others might consider to be fairly insignificant streams. The state allows specific uses
182 in the stream buffer. Some are permitted outright and some are with mitigation. We currently allow some uses in the stream
183 buffer, in black, in the section May was referring to on page 142 through 143 and we are proposing to allow some additional uses
184 in the stream buffers. Some will be outright and some will be with mitigation but we are proposing allowable uses far less
185 expensive than those allowed by the state. Shannon has put together a chart showing what the state allows.
186
187 Tommy McNeill: In other words, in the final analysis, Orange County is a little more strict than the state?
188
189 Perdita Holtz: Yes. And we are recognized through the state for that.
190
191 May Becker: You are proposing to be more lenient than before and these particular numbers came from a local ... people before
192 here have considered Orange County as a local area as opposed to the state and if the state would come up with a buffer law
193 that would presumably apply to water bodies that are not as well known to people in Orange County, for example, because they
194 have the buffer for general buffer ordinance. Whereas in Orange County they presumably put some time into considering how
195 they protect the streams in Orange County and do we feel these buffer laws are what we want.
196
197 Perdita Holtz: Terry, has the list of state allowed uses expanded since our regulations were adopted?
198
199 Terry Hackett: Yes they have.
200
201 Perdita Holtz: So the state has changed and expanded their uses and we are now looking at what the state allows. Ultimately,
202 we have to be at least as restrictive as the state.
203
204 May Becker. No, I understand, I just feel that we have very limited number of water bodies and we have potentially a huge
205 amount of people who want to develop or move to Orange County and I feel that if these water bodies have laws to protect them
206 I think we should carefully consider if we are going to weaken any of those Paws, what is the impact, and is it necessary, what is
207 the reason for it.
208
209 Perdita Holtz: There are actually a large number of water bodies that are protected in Orange County. Every stream or drainage
210 is essentially in the stream buffer.
211
212 May Becker: My point is that if there is that protection, to take it away is something that I feel one really has to think about and
213 know what the affects are going to be rather than look at it and say we have this bigger government agency, the state, that has
214 something that is less restrictive so we are okay because we are still more restrictive than they are.
215
216 Perdita Holtz: So it comes down to the Planning Board deciding whether the added uses are reasonable in the Planning Boards
217 view and making recommendations about it.
218
219 Mark Marcoplos: Do we know where North Carolina is ranked nationally in terms of its standards on water quality?
220
221 Teny Hackett: I would say that North Carolina's Water Quality Protection laws are one of the better ones in the country. We
222 have a big push now to look at stormwater and the impacts of run off from development. Obviously Falls Lake and Jordan Lake
223 are in our area a big concern. The nutrient reduction strategies the state has that are now in effect for those water bodies are
224 probably the most stringent in the country. No one has ever done that. I would say that I don't know exactly how we would rank
225 but I would certainly say we are near the top with what we do.
226
227 (Tommy McNeill left meeting)
228
229 Mark Marcoplos: So the Jordan Lake plan is a relatively new instituted plan in reaction to years of failed management, right? A
230 lot of pollution has gone into Jordan Lake and that was the impetus of the Jordan Lake Plan.
231
232 Terry Hackett: It was but I would not necessarily chalk it up to failed management. Folks knew that and is very typical with our
233 impoundments which are very shallow relatively and the appropriate conditions for eutrophication.... we knew there was going to
234 be a problem and of course as things developed certain portions of the watershed without these stringent buffer rules and that is
235 probably contributing a lot to the eutrophication . I think basically that the buffer rules we have in place now and even most of the
236 rules proposed in the UDO are very reasonable and low impact and we will be able to manage those.
237
238 Pete Hallenbeck: May, there is language in this UDO that talks about determining the size of the buffer zone and what it should
239 be whether it is woods or grass. Are those generally speaking acceptable? A follow up question would be, the concerns are with
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240 the permitted use in general, in particular these new ones? !s there a problem defining what the buffer should look like or a
241 problem of all these places you can violate the buffer?
242
243 May Becker: My other concern is the places where you can violate the buffer. I don't know for sure about the specific details of
244 how, say woods versus material, went into that calculation. I am assuming that came from a method that has been developed
245 before this UDO has been presented so when I read it I moved on and said this is the method that has been used. Also, I want
246 to be clear on a few formatting things at the end followed by ... there were a couple of methods presented and later described as
247 to which method would apply to which area and I felt it wasn't ....
248
249 Pete Hallenbeck: Another reason for asking is we are at the point of merging the UDO and we said we will not change it but get
250 it all together, and then we will worry about change. I am also looking at this, are the definition of how much buffer you need
251 acceptable for this stage so we could focus solely on these new permitted uses and if that would be 80% of where we need to be
252 on water or is absolutely everything off and we have to look at both how we calculate the buffer size and the uses.
253
254 May Becker: I agree. I would like to understand better how the buffers are calculated.
255
256 Pete Hallenbeck; Are they acceptable at this stage?
257
258 May Becker. Yes. I would rather talk about new changes to understand where they are.
259
260 Brian Crawford: We are more restrictive.
261
262 Larry Wright: This would be 6.13.6 item 9, New stormwater, I would like to know what that is and if this relates to a type of pond
263 that is used to mitigate with a built in wetland and then they build a pond without providing .., so they just build a pond in back of
264 the Hams Teeter on Martin Luther King, is this really a cesspool? It seems like it is mitigation. stormwater that comes off the
265 parking lot. Is this the type of thing we are talking about on this item 13?
266
267 Teny Hackett: That is a yes and no. What you are referring to behind the Hams Teeter is a stormwater pond that was designed
268 to manage the amount of stormwater coming off those facilities. It was constructed before any of the newer stormwater
269 requirements. This is referring to, when we say stormwater management pond, is stormwater quality pond. It is a wet pond and
270 it will look like a pond but it is designed to treat the amount of stormwater in it and settle out pollutants from the runoff. Primarily
271 nitrogen and phosphorus. Those are the two we are most concerned with. The pond itself has to meet the design requirements
272 as we use the state's stormwater best management practices manual they have to meet. There are certain design guidelines
273 that a designer would have to meet. Basically, if we were to look at a development plan that proposed a stormwater management
274 pond such as this, our first suggestion is that we don't want it in a buffer at all. Unfortunately, because of site constraints, there
275 may be a reason it has to be in a buffer. This rule is saying you have to establish a riparian buffer around that pond just like if it
276 were a farm pond.
277
278 Larry Wright: So EPA has one of those? You can imagine all the guidelines but muskrats and beavers have made channels so
279 these are flowing directly into what they call the lake. What the EPA wanted to have for their holding ponds for their parking lots
280 doesn't seem to be working.
281
282 Terry Hackett: That really falls back on them because any engineered stormwater facility requires an operation maintenance
283 plan, requires to be recorded on the deed and that the owner of that pond would have to inspect that and provide a report. We
284 try to do it as we have time to go and inspect these. We don't have many in the county at this time. All that authority is in the
285 stormwater section of the UDO so there are provisions to take care of those issues. If you design something and it is not
286 maintained that is the problem because it not functioning.
287
288 May Becker. The way the ordinance reads now in terms of the new ordinance in red says this pond that we talked about is
289 permitted by right. What is it presently? What is the procedure if someone has a piece of property and said I am interested in
290 putting a storm pond close to the buffer or in the buffer zone?
291
292 Terry Hackett: I don't think we have anything in the existing rules that spells that out. Right now we have a stand alone
293 stormwater ordinance that includes the whole list of buffers that doesn't really apply because the zoning ordinance trumps that
294 but there are provisions in there. What basically with this particular use is just making clarification. Most of the time most of the
295 development we are seeing in the county, the stream buffer is just one tool we use to manage the stormwater runoff. We also
296 have impervious surface limits and open space requirements, etc. that also work together. We have very few of these types of
297 ponds out there now.
298
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299 Brian Crawford: Here is the confusion. You said initially the state has this list of permitted uses and we went through that list
300 and selected 24 and said we will do these or we are suggesting we do these. I think May is saying that it sounds like that of
301 those 100, we have none of those left and so why would we want to add these 24 when we are doing fine without them. I think
302 that is what we need help to figure out why we are making this change at this point when they UDOs purpose was to consolidate
303 and worry about change later but then we are confronted with 24 changes here.
304
305 Terry Hackett: It takes a couple of uses by right were already there in our existing ordinance. These are clarifications of those.
306
307 Craig Benedict: Orange County has been in process of acquiring land over the last 15 years and it is important that when we
308 purchase new lands, and Rich Shaw is here from Environment Resources, that we are able to enjoy those natural areas and
309 presently we cannot put a six foot pathway 30 feet away from the stream so we suggesting, for the money that Orange County
310 citizens have invested in the county to enjoy these beautiful natural areas, that we be allowed to encroach on these natural areas
311 with a six foot unpaved pathway by right. That we are allowed to have a fire truck go down next to a pond so that we have rural
312 fire control which we cannot currently do. If there is a nuisance species, like poison ivy, that we can go down there and remove
313 it. If we get money for environmental enhancement, funds, if someone gives us money for enhancements, we can't do that
314 because there is some disturbance but there is more enhancement and mitigation that comes forward. All these suggestions on
315 1 through 15 are for purposes of enjoying, restoring or enhancing that stream buffer. Trail crossings, associated bridges, docks,
316 presently we own lands that are on behalf of the public and we cannot put a dock on that pond. We have had requests from
317 citizens and our own departments to use the resources we have purchased by some access to the docks, etc.
318
319 Larry Wright: Uses permitted by right. You said these were uses that were listed for enjoyment. Can you say that phrase
320 again?
321
322 Craig Benedict: So that we can enjoy the natural areas we have purchased in the county.
323
324 Larry Wright: If this was a preamble to this section so they would understand the spirit of the section, I think a lot of this
325 confusion and discussion would be directed towards that- the recreational.
326
327 May Becker. I feel like there are two different things going on. I see Craig's point but I am also hearing that these ponds have
328 been viewed as a right in a sense. On one hand you have the ponds that potentially....depending how it is regulated....
329 additional buffers may be required that could work or they could not work. To me that is important to establish and when I read,
330 this about ponds and we all ask what is analogous to this and is this analogous to something else. I think that is what we need to
331 understand and be comfortable with if these things are permitted by right, to me that tells the owner of a piece of property. will
332 think I have a right to do this.
333
334 Brian Crawford: Does that still allow your department to inspect that?
335
336 Terry Hackett: Absolutely. The stormwater management pond would be covered under the stormwater management plans that
337 are required for development in a different section of the UDO. They were required to meet the stormwater standards.
338
339 Brian Crawford: Why does it have to be by right? Can it be mitigation or some other language that announces to the public that
340 you have the ability to do these things but you just can't do it the way you want to do it. If I am reading this as a private citizen I
341 am going to think that I can hear dimensions, I am going to cut that hole and make the dimensions but it may not necessarily be
342 to the specifications that the Erosion Control Department would require. We need to make an announcement to the public that
343 they still have to go through a stringent process to allow this permitted use to be approved.
344
345 Michael Harvey: Could I direct your attention to 6.13.6c. There is a specific standard for stormwater ponds that the UDO is
346 subject to that. If there is a specific standard dealing with dam or reservoir maintenance mentioned in the UDO it has to meet
347 that standard. Stream restoration projects, stream buffer erosion control standards has to meet those standards. I think what
348 you are looking for is there.
349
350 Craig Benedict: Single family houses are permitted by right in agricultural areas but there are still standards to meet. I like
351 Lany's idea to further this preamble and the same introductory paragraph that says you have to meet standards but we could
352 also put in there that these permitted uses are being allowed as noted below are for the general enjoyment and maintenance of
353 these natural areas. These are all on behalf of the preservation of the resource.
354
355 Larry Wright: The mountains to the sea trail will be coming through Orange County and I understand if there are problems with
356 that trail coming through and I would like to see it come through this county. If we can do something to have this trail come next
357 to a stream buffer, I for one, would like to be able to see that happen.
358
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359 Perdita Holtz: It almost sounds like in A, the General Standards, you want to make it clear that everything requires approval of
360 some sort of permit or approving document in order to do the uses permitted by right. Not just if structures are proposed but also
361 in general, you want everyone to know they need to get the approval of the planning department in order to do this.
362 '
363 Shannon Berry: Basically all activities require approval of the site plan and all applicable permits which would be Erosion
364 Control, etc.
365
366 May Becker: I guess the term "permitted by right". For example, if you want to build a house then you would say you have the
367 right to do that however, why would a pond be permitted by right.
368
369 Perdita Holtz: The use is permitted but without mitigation.
370
371 May Becker: The ponds have been added as permitted by right. So you are saying the ponds have been defacto existing
372 permitted by right or something else even though they are listed as permitted by right. I am asking if this has gone on so
373 productively for years, why does it have to be put into this document?
374
375 Shannon Berry: I think ponds permitted in a buffer, provided stormwater ordinances are permitted based on site plan approval. I
376 don't think what Terry was saying that they have allowed ponds all over the place in stream buffers.
377
378 May Becker: That is my concern. If they are going to do that now by right.
379
380 Terry Hackett: We have thousands of ponds on streams in Orange County. They are ponds not for stormwater management
381 most of them were probably created as farm ponds at one point. There is a whole permitting process they would have to go
382 through. This specific issue is stormwater ponds and they would not be allowed in the stream. That is something we would
383 never approve and the state doesn't allow or the EPA. This would be something where for space constraints, this stormwater
384 pond in order to treat the impervious surface that belongs to this property encroaches into this stream buffer, we are saying since
385 that pond encroaches in stream buffer, you have to establish a buffer around that too.
386 -
387 Craig Benedict: (Provided a picture of the example.) In the Unified Development Ordinance, we are balancing a lot of different
388 interest in the context of a bigger picture. In Orange County, all of these issues we have going on here, we are stricter than the
389 state for the Orange County watershed protection. We have some of the strictest requirements of any county in North Carolina.
390 The nutrient loads are being monitored by both the Neuse River, Jordan Lake and Falls Lake rules. We do monitor TMBL with a
391 stream monitoring process. We are still not being more liberal than the state. When you combine these things, we are doing
392 more for water quality in North Carolina than any other county.
393
394 Mark Marcoplos: I would like to second Larry's preamble just so that it is read, they understand the goal of these things are to
395 enhance the quality of life while protecting the waters and streams so that when someone comes along and finds a loop hole, at
396 least that is there and we can go to them and say, that was not the intent. What is stream bank stabilization, is that a potential
397 loop hole?
398
399 Terry Hackett: That is basically where you have possibly a degraded stream bank from erosion, or excess flow. It allows you to
400 come in there and stabilize that bank by various means and those would have to be submitted in a plan and approved. Typically,
401 when you talk about stream bank stabilization, anything below the ordinary high water mark also has to be approved by the
402 Corps of Engineers and the State of North Carolina. It is to eliminate in stream erosion.
403
404 Mark Marcoplos: So it could be rip rap or wood?
405
406 Teny Hackett: There are various different methods, but what we would certainly prefer to see is plantings but sometimes it
407 actually it takes engineering to re-slope the bank and put in a stabilization.
408
409 Pete Hallenbeck: I would like to clarify two things. Is there currently an ordinance in Orange County that prohibits repetitive
410 fertilizers in stream buffers?
411
412 Terry Hackett: Yes. In the Neuse stormwater ordinance. It allows for fertilization once for the establishment or reestablishment
413 of vegetation.
414
415 Pete Hallenbeck: If someone says I have this wonderful lawn 20 feet from the stream, they are not allowed to fertilize that every
416 year?
417
418 Terry Hackett: That is correct.
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419
420 Pete Hallenbeck: Everything we are talking about, existing ponds will be grandfathered in, we are not proposing you go through
421 the county and find everyone with a pond and have them plant trees.
422
423 Craig Benedict: With existing ponds, we would not be retroactively pursuing conditions around existing ponds.
424
425 Pete Halienbeck: On page 6-143, under C, number 13. New stormwater management ponds. We have talked a lot about
426 stormwater management ponds. There are ordinances in the UDO regarding stormwater management ponds, are there any
427 about plain old ponds?
428
429 Teny Hackett: The way we would regulate that is if the pond is for non-agricultural use. If it disturbs enough land to trigger an
430 erosion control permit then we would have require a permit and erosion control plan, etc. There are state rules, even with
431 agricultural ponds. There is a dam safety act, the rule of thumb is from top of the dam to toe is 15 feet requires a dam safety
432 permit and actually an engineered dam. It would hold enough water back that it could cause down stream flooding. The state
433 actually does inventory ponds and sends letters on a three or five year cycle.
434
43S Pete Hallenbeck: I have heard that. I have talked to farmers and they have this awareness that if you are making a pond, don't
436 go deeper than 15 feet.
437
438 Terry Hackett: It is true. If 1 have an actual live stream and I place fill to create a dam, I may have to have a section 404 Clean
439 Water Act Permit from the Corps of Engineers which also has state review and there is a whole list of requirements that they
440 have to do to protect down stream's habitat, etc. and they would have to establish a riparian buffer around that pond.
441
442 Pete Hallenbecc: What I am reading in both of those replies is to put a pond in Orange County, one way or another, you will run
443 into a permitting process. The only possible exception would be a homeowner putting in a pond disturbing less than the amount
444 of square footage for Erosion Control change based on the critical watershed area
44S
446 May Becker. I am interested in what they are but I am also ... I am not trying to say that one homeowner is trying to have a
447 pond. My concern is the general trend. We have talked about development and zoning and such. If you have a right or you
448 could propose putting in that you have the right to put a pond into the development. For example, a developer comes and claims
449 he has the right to put a pond in the buffer zone, where is this runoff going to go and are there specific standards and what will
4S0 stop a developer essentially going too close to the river?
4S1
4S2 Pete Hallenbeck: So your concem is earlier in the process when the permits are run than the more general question which is
4S3 how we tell the people they have a right to put ponds in buffer zones.
4S4
4SS Perdita Holtz: Can I address this one thing? Terry Hackett may not have been aware of this but new ponds with riparian buffer
456 adjacent to the pond is actually a use that is in the state's list of uses and it is not in the county's proposed uses so it probably is
4S7 not allowed to just do a pond that is not for stormwater management purposed.
4S8
4S9 Pete Hallenbeck: stormwater or ag?
460
461 Perdita Holtz: Ag will fall into a whole different category because ag is not subject to the zoning ordinance. You said you want to
462 have a pretty pond with decks, the way it is written now, you would not be able to do that.
463
464 Larry Wright: What is 29?
46S
466 Perdita Holtz: This is the list ....
467
468 Larry Wright: Give me an example of what that would be.
469
470 Perdita Holtz: Anew pond like what May was just describing. You want a pond on your property that is in the stream buffer.
471
472 May Becker: I am essentially concerned about the runoff, new development and whether it would create more impervious
473 surface, you will have to have that runoff go somewhere, If it goes into the pond and that pond is too close to the stream buffer
474 than what is going to stop someone from putting it too close to the stream buffer and does that developer interpret that he has
47S the right to put on there.
476
477 Craig Benedict: The developer can locate a new stormwater pond in a stream buffer but it will not change the nutrients that
478 comes from the site no matter where it is located. The site output is still regulated so by allowing it in there, it is likely the
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479 improvement will decrease the runoff speed and the nutrient load by having it held back for a while. If it is within the stream
480 buffer, there will be an enlarged stream buffer that will be created around this new device. In any event, we will not be increasing
481 the water quality aspects of the site.
482
483 Brian Crawford: In your scenario, the contractor wants to build a new storm water management pond, even though it is a use
484 permitted by right, I think Mr. Harvey said was that you still have to go through these general standards. In the general
485 standards there is a list that says, a written notification, a written statement, you have to provide a plan to minimize soil
486 disturbance, etc. so it is still an approval process for the site plan.
487
488 May Becker. There is an approval process but it is not very specific. It does not say you have to be 50 feet from the stream
489 whereas, previously if it wasn't permitted by right, it would be more difficult for a developer to say I need to have this pond and
490 have the right to put it here.
491
492 Brian Crawford: But it still goes back to what our standards are. We still have the 80 feet that would kick in.
493
494 May Becker. They are saying it doesn't kick in if it is within the buffer zone, right?
495
496 Brian Crawford: That is not what I heard.
497
498 Craig Benedict: It is allowed in the stream buffer.
499
500 May Becker. There is no specific regulation stating that it has to be ....
501
502 Michael Harvey: As far as erosion control and state standards, they will not allow stormwater under 20 feet to the top of the bank
503 so there is going to be a required buffer.
504
505 May Becker. State standards will apply?
506
507 Michael Harvey: The only difference here is, Perdita provided this example on a chart, one of the uses that is allowed in streams
508 buffers, according to the state is airports and we don't allow that and we are not proposing to allow that. If we say you can have
509 a stormwater management pond approved through our process, then the state will say is we don't have a problem with that as
510 long as it is 20 feet from the edge of the top of the bank.
511
512 May Becker: You are proposing to have more lenient standards or no specific county standards.
513
514 Craig Benedict: If we put that under the uses permitted with mitigation ... let me think about that.
515
516 Mark Marcoplos: Is mitigation always project specific?
517
518 Craig Benedict: Yes. We will review where it is, what natural vegetafion may or may not have been removed and we will ensure
519 that under state rules that the vegetation, ground cover, trees, will more than compensate for what we have removed from the
520 buffer. We can still never go within 20 of the top of the bank. These are really enhancements.
521
522 Mark Marcoplos: Isn't mitigation under this where it says, provided or repairing buffer. So moving it to the mitigation section
523 helps a little but you still get the same outcome.
524
525 Graig Benedict: That is correct.
526
527 Brian Crawford: May's point is well taken. We don't have any readily ascertained standards as we do in new proposals. You
528 guys work with the public all the time, doesn't it seem that you may have a developer or contractor come in and say I have a
529 permitted use by right and argue with you that the way the standard is written, they get to do what they want.
530
531 Teny Hackett: Not in this case because one thing you have to remember is this is a stormwater management pond and there is
532 no developer that will install a stormwater management pond unless they have to. If someone was trying to do something
533 because they felt they had the right, they would be doing it covertly I guess. If a stormwater management pond is required it's
534 because our stormwater standards meet the nutrient loading requirements to say you have to do this to develop this property the
535 way you are proposing so during that process, there is a whole list of standards.
536
537 May Becker. Puffing permitted with mitigation, if approved by....in other words, that it is just allowed to be approved by mitigation
538 if approved by the particular......standards.
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539
540 Alan Campbell: !f you moved 13 to D and then D crosses back over in 6.13.6b requires that the erosion control supervisor
541 approve it.
542
543 May Becker: If a use is permitted, it sounds as if it is permitted if I mitigate whereas if you say permitted if, that it sounds like it is
544 unconditionally permitted. You are not unconditionally permitted to do it unless you fulfill the obligations and approval.
545
546 Alan Campbell: There is a standard that says for uses permitted with mitigation, this is the extra step you have to do. It says if
547 you are going to do anything in 6.13.6, you have to do everything in A and B.
548
549 May Becker. But it also reads that you are permitted to do it and you have to everything in A and B but ....
550
551 Michael Harvey: But we would still have to approve it.
552
553 Alan Campbell: B is the approval, you have to do everything in A which is frankly not anything special by B you have to get
554 approval.
555
556 Perdita Holiz: But A3 does require approval of a site plan if you have a structure and we had tacked about some sort of other
557 approval mechanism if there is not a structure.
558
559 Alan Campbell: I am saying for the issue of everything in here in addition to whatever else it may require, it also it has a
560 mechanism.
561
562 May Becker: To me it says, mitigation shall be provided in accordance with these standards and shall be approved kind of
563 implies that it shall be approved it is not saying it might not be approved.
564
565 Mark Marcoplos: I think we are at a point where the changes are good and it is protected. I can tell you as a builder, I have
566 made great arguments to building inspectors and I have been absolutely right some of the times and not aU those times was I
567 allowed to continue on with my right to complete that house. In the end, if they are there inspecting, they will make a judgment.
568
569 May Becker: I would feel more comfortable if it did not say it was there right.
570
571 Pete Hallenbeck: It is there no matter what. ~
572
573 Brian Crawford: Are there any others? I think we can suggest some changes and suggestions. Outside of the new stormwater
574 management clause, are there any other issues that we need to address.
575
576 May Becker: Sewer lines.
577
578 Brian Crawford: What about sewer lines?
579
580 May Becker. Again, clear cutting to get to them, maintenance of them, if they will be too close to the stream buffer, why are they
581 necessary for the stream buffer. I am not really clear again on permitted by right. What is stopping the nutrients from getting into
582 the water body if you are moving some trees to put sewer lines.
583
584 Alan Campbell: Are these the sewer lines that would be put in by eminent domain, to put them where they want to anyway?
585 This is probably a technical correction to make sure they don't create a technical violation.
586
587 Craig Benedict: That is correct. These are serving the public interest. Public water and sewer lines and streams where, in North
588 Carolina, sewer ouffalls parallel streams because they all run down hill by gravity. They don't put them in the streams, they cross
589 the streams, sometimes they are up the back. They parallel many streams, that is how a gravity public sewer system is and that
590 there is a right that people have to develop their property in designated areas of public water and sewer and we are allowing that
591 right for someone to develop public water and sewer.
592
593 Brian Crawford: That is more of a clarification than allowing because there is really nothing you can do if someone developed
594 property and you have a utility and someone comes in to put an easement within the allowable lot, I think the state will allow that.
595 I think you can clarify to say what that distance needs to be.
596
597 May Becker: Yes but we are talking about new sewer lines. If somebody already has something tagged so we are adding new
598 sewer lines to areas that ...have trees, or whatever.
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Approved 2/2/11
599
600 Craig Benedict: Public sewer lines would trump the stream buffer regulations. There is a balance of the public interest for public
601 water and sewer in certain areas and the aspects of the streams. If we thought that public water and sewer would cross stream
602 buffers or parallel up the bank, it is something that would be occurring on a regular basis within our economic development
603 zones. There are streams there too. In many cases in rural areas, we are not going to be crossing streams because the septic
604 systems are located on site and usually outside the stream buffer.
605
606 May Becker. Are you saying there is already the right for the ...
607
608 Craig Benedict: Yes, they have the right to put public utilities within stream buffers.
609
610 Alan Campbell: I read this as a technical correction. There are many laws that say this is the way things happen and somehow
611 that creates a technical problem with another wall. This is fixing that saying this does not violate something we said you can't do
612 even though we can't prohibit it anyway.
613
614 Pete Hallenbeck: Is this referring to a crossing or parallel to the stream? Or does it matter?
615
616 Craig Benedict: It says that when if crosses, it should cross as much to a 90 degree angle as possible. !t also pertains to
617 parallel streams and where the parallel could occur.
618
619 Pete Hallenbeck: One thing that is interesting about both buried utilities and sewer lines is the area of the buffers have to be
620 kept clear of trees and what is the impact here if someone comes along and the easiest way to put a cable in is to follow the
621 stream fine and say we can do that and keep that 12 foot area clear of trees. !s there anything you can do about that?
622
623 Craig Benedict: There is certain public service commission rules as you can see gas lines that they go cross country, or electric
624 lines where we have very little input. There is more input with the location of sewer lines because we are working with the utility
625 provider and have some environmental sensitivity to the location.
626
627 Pete Hallenbeck: On item 1, I am not sure why when we talk about buried utilities, it calls it electrical, telephone, cable,
628 television. If it is necessary to call those out, I would also throw in data to make sure we can do everything but run a fiber optic
629 cable.
630
631 May Becker. On sewer tines who determines how far from the stream they are.....
632
633 Craig Benedict: Terry, are there zone one exclusions for sewer lines?
634
635 Teny Hackett: Generafly, yes. If it is a sewer line public the utility will still have to get state approval so if it is a public utility, the
636 jurisdiction is usually removed from us and they generally don't want any utility line running parallel in the stream buffer if they
637 can avoid it and if it has to be it is usually in the outer 20 feet. If utility lines cross the stream buffer perpendicular, the state
63 8 buffer rules has an exempt category that says if you clear less than 40 feet to build it and maintain only 10 feet over the pipe, that
639 is exempt. Sewer lines are also approved by the Division of Water Quality that approves sewer systems. We would look at
640 these if a private developer is installing the utilities as part of their development and turning it over to public utilities.
641
642 Brian Crawford: If you build a community waste water system and for some reason turn it over....but it's possible.
643
644 Teny Hackett: But the utflities lines do have some additional review if it is the larger gas transmission lines, some of those have
645 a federal review process. There are added steps beyond what we do for a utility project.
646
647 Mark Marcoplos: From a practical standpoint, the impact of sewer lines is at ifs peak when they are being installed and you can
648 never write a policy keeping someone from driving along the stream bank and taking out extra trees when it comes down to who
649 is monitoring the process when it happens and how much integrity they have. There are ways to do it with a lot less impact and I
650 don't know if there is a policy that can really write site specific stuff.
651
652 Teny Hackett: As far as sewer ouffall and buffer easements, because a tot of the older, for instance here in the town of
653 Hillsborough, they follow right next to the stream and other communities have the same problem and they are looking at how
654 narrow can they maintain that maintenance corridor to gain access. Obviously if you have crossings or man holes that are down
655 in the flood plain, you want to be able to access them if you have an overflow. We are also having discussion with the state
656 regarding getting some shrubs back here so we could actually have a riparian buffer that has woody vegetation and still maintain
657 some integrity in the stream buffer.
658
11
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Approved 2/2/11
659 Brian Crawford: Any other discussion?
660
661 May Becker. Number 8 .....driveway crossings and single family residential lots.
662
663 Perdita Holtz: What about it specifically?
664
665 May Becker. You have developers and at this point, they don't necessarily have access to lots and make sure you have the kind
666 of ... if you have a driveway you will have more runoff. If you have something that is not developed, if you add this as a
667 permitted use by right, again, it seems it is offering developers options that are kind of open ended.
668
669 Perdita Holtz: Michael, doesn't this occur fairly frequently because there is no other option?
670
671 Michael Harvey: You are correct. This actually codifies an interpretation. Existing language says public and private streets and
672 railroad rights of way. It has been interpreted through out subdivision process that there are many instances where we don't
673 want a right a way where you have a 20 foot road, we would rather encroach with a driveway which is anywhere from 12 to 15
674 feet.
675
676 Brian Crawford: Much of that is runoff.
677
678 May Becker. But if you are saying something is permitted by right that doesn't mean they are not going to do something else?
679
680 Michael Harvey: Just because it is permitted by right does not mean that it is not reviewed and approved in accordance with
681 standards of the UDO. It still has to go through that review and approval process. Single family residences just aren't put on
682 property overnight or at the whim of a developer because they can do it'by right'. It has to go through an approval process.
683
684 Brian Crawford: If this was a single developer or a single person building a home there are minimum the lot sizes anyway.
685
686 Michael Harvey: There are minimum lot sizes. They range from district to district and conceivably by subdivision.
687
688 Larry Wright: If you want to build a kennel, and you want it at the back of the lot, we have a case where there is a problem with
689 getting emergency vehicles back there. It is only 12 feet wide driveway so there are restrictions that way. Here, you have a
690 developer that wants to take place, a kennel back in someone's yard, and the fire marshal has issues. There are other things
691 that come into play.
692
693 May Becker: I understand it is just I have gotten into talking about permitted by right as opposed to suggesting it is permitted if
694 certain approval is given. It's the language.
695
696 Brian Crawford: I think I hear folks, with the Section of number 13, that the other Planning Board members are becoming
697 convinced that there is still an approval process in this term permitted by right. I know you have issues with term but we have to
698 get to try to get you comfortable somehow that this permitted by right isn't as open ended as you are interpreting. We can keep
699 going down this list and that is what we keep coming back to. We have got to come to a point that the "permitted by right" term,
700 we have to decide to change it or we ... as in my case, I am comfortable that the language is restrictive enough. That is
701 essentially where the issue is now. 1 don't know how we make you comfortable or how you make us comfortable. I do agree on
702 13 that I think one of the suggestions were that we move that to D and I didn't think the staff had a problem with that.
703
704 May Becker: Pretty much ... I suggest we add if particular approvals are given as opposed to my interpretation that it shall be
705 given.
706
707 Brian Crawford: So you are still suggesting additional language in number 13.
708
709 May Becker: Permitted with mitigation suggests that I am permitted to do this if I do what is listed on page 6.4.2 a and b and
710 these as mitigation shall be provided in accordance with the state standards and shall be approved and inspected by the Erosion
711 Control Supervisor.
712
713 Alan Campbell: In b1 if we went to something like the landowner shall be required to provide mitigation in accordance with that
714 so it's active. Basically, this shall require approval from the Erosion Control Supervisor. Something that makes it clear that the
715 Erosion Control supervisor isn't required to give the approval, the landowner is required to get the approval.
716
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Approved 2/2/11
717 Shannon Berry: We can add language to 61 along those lines that says basically this shall be reviewed in accordance with state
718 requirements and must be approved by the Erosion Control supervisor. We can change the language so it doesn't imply that is a
719 done deal.
720
721 Alan Campbell: Make it active.
722
723 Brian Crawford: I like that. May, do you want to look at that change.
724
725 Shannon Berry: We can come up with a couple of options for that.
726
727 Brian Crawford: After tonight we will reword that and shoot it out.
728
729 Alan Campbell: That will cover everything, not just 13, everything in D.
730
731 Brian Crawford: We are back to "permitted by right".
732
733 May Becker: It is a concern. You are putting up a list of things people are allowed to do with a stream buffer and I think we
734 should know what they are.
735
736 Brian Crawford: What would your suggestion be about this permitted by right? What would you like to see?
737
738 May Becker: Something along the lines, I would take right out and say something along the lines of, permitted if special use or
739 some kind of permitting is approved.
740
741 Brian Crawford: Staff?
742
743 Perdita Holtz: I think we could change it to uses permitted without mitigation and change the sentence that's right behind that
744 says the following uses are allowed as a matter of right and then make sure when you look at A3 it says structure are approved,
745 approval of a site plan and all that but add a 4 that says if structures are not proposed that they still have to ... we need to
746 determine what the permit would be called but a type of permit shall be required to be approved prior to commencement of the
747 activity.
748
749 Shannon Berry: If you are not happy with the word "permitted or permit", the state uses the term "allowable" which is a little more
750 open ended. We could. change permitted by right to uses allowable with mitigation. We could change the topic of the whole
751 section, the whole title that says allowable in the stream buffers. Does that help?
752
753 Craig Benedict: It is more requested than permitted.
754
755 Shannon Berry: We can change all the "permitted" to "allowable".
756
757 Pete Hallenbeck: May, on item 8 is there some specific scenario you are thinking of? You have to let people go to their land, it's
758 25 feet, the streams are big, what exactly are you going to do? What's worrying you?
759
760 May Becker: What's worrying me is the developers. In places like Florida, they have very lax laws where they build shoddy
761 buildings, they pave over things.
762
763 Pete Hallenbeck: Is your concern, for example, you go down the stream and they are putting in a driveway and they are going to
764 pave it and put in ditches and let it run right into the stream? Is this gravel versus asphalt?
765
766 May Becker. My concern is just thoughts it could potentially change one particular landscape to something else. For example, if
767 you have a lot with a lot of trees or fairly rural and then you allow, you don't have a lot of rules, and a developer comes in form
768 you know where and doesn't know the community well and decides to subdivide that land into very small lots close to the stream
769 with a lot of driveways and not much vegetation is around there anymore. The other question, can people just fertilize lawns
770 without any regulations, I think the answer was not it was a one time application that was allowed but forme it's not clear.
771
772 Pete Hallenbeck: So a lot of what you're wrestling with is big picture stuff.
773
774 May Becker: It is but it also not completely unrealistic. We are welcoming development which, there are different ways to
775 approach development.
776
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Approved 2/2/11
777 Brian Crawford: You know our ordinances are restrictive for subdivisions. We have one lot per five acres. These issues will be
778 before the Board and you will see some of these issues. Concept plan, preliminary plan, you'll see some of these come before
779 you.
780
781 May Becker, I feel like this is an ordinance that is a major starting point or major step and I get the sense there is a push to get it
782 through quickly and if I don't know and if we move on and don't talk about things like driveways. It's not ok with me. Another
783 thing, I live in Chapel Hill in an older neighborhood and there is lot of talk about developers coming in and changing the
784 neighborhood and people in the neighborhood there want to keep lawns there and old houses with porches. When you read
785 stuff like this, you don't know what type of developers are coming here and what is going to happen.
786
787 Brian Crawford: I know the driveway issue is a direct response from complaints from some of our more rural homeowners that
788 did not have access. This is a direct response from an Orange County meeting. Not necessarily a developer. This is
789 homegrown.
790
791 May Becker:. If that is what is wanted, I don't see why we couldn't put in something like ... attach some type of approval to it. It is
792 something individuals wanted and something the inspections department are okay with, I would suggest we put it in here so that
793 when. people read it, or the public reads it when developers consider this that is what is being communicated. Another thing I
794 want to point out is there is a lot of development coming into Chapel Nill and they have a lot of particular restrictions, they want
795 green buildings, they want certain affordable housing, they want public area for a fountain so there is kind of a community sense.
796 If you have high quality developments with people who care about the community who are willing to revise things so it fits in the
797 community then it would be okay with ordinances that make sense whereas if you have a developer who doesn't care, I don't
798 think we want those types of developments. Quality developers aren't going fo be scared away by ordinances.
799
800 (Larry Wright left meeting)
801
802 Mark Marcoplos: One small change on the driveway crossing it's really a bridge, isn't it? A culvert which would be with a small
803 stream and a bridge with a larger stream so maybe there is a way to pinpoint that so you don't have this image of an oil leak and
804 75 Ford driving through the stream.
805
806 Alan Campbell: This is a single family so if you put the bridge just to go to your house, that would be pretty expensive.
807
808 Mark Marcoplos: It happens. If it is a significant body of water you can put a bridge over it but if it is a small body of water, a
809 culvert is a little bridge. What I am getting at is an image of a driveway crossing and you are going to drive through the stream
810 and maybe tidy up the language. I feel like right after C, those lines basically say, you will have to meet the standards. I am very
811 concerned about keeping the waters clean but I am quite comfortable with that language.
812
813 Brian Crawford: At some point we will have, taking the suggestions, we will have to come to a vote. If we come to a vote right
814 now with the existing language is okay with the exceptions of the suggestions we had, we might not reach the goal you want to
815 reach tonight. We are coming to the point where we have to figure out how to make you comfortable but not to shut you down.
816 At this point, we have discussed it pretty much in depth.
817
818 Mark Marcoplos: I have found that it is necessary to be redundant. To phrase the same thing in a different way. Maybe we can
819 insert a sentence that says, don't be mistaken, you are not going to just do this without going through the proper process so no
820 one can say I didn't understand that.
821
822 Shannon Beny: We can come up with some language that will address the concerns I hope makes it very clear that you go
823 through a process. We can beef up the front part of that section and more clearly articulate that there is a process.
824
825 Brian Crawford: May, when I got your email, I realized that you did a lot of work on this and I am relying on your expertise on
826 this. But at the same time, I think we have discussion it and I think we are convinced that there is language is there to secure the
827 suggested changes that the staff have put in. I still want you to be comfortable. I think the compromise is that we allow staff to
828 suggest some changes to hopefully end discussion on those issues.
829
830 May Becker: Yes that sounds like a plan. On those issues meaning we are going to reconvene at the next meeting and
831 continue.
832
833 Brian Crawford: I don't know about the next meeting but I want them to send out language to address the concerns we talked
834 about this evening and hopefully, that language is agreeable to you. It sounds like permitted by right gives you some concern so
835 they will attempt to make sure that doesn't confuse the general public that they can do what they want without some process that
836 we believe is in there but we will beef it up to make you more comfortable.
14
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Approved 2/2/11
837
838 Pete Hallenbeck: My main goal tonight was to take advantage of May's expertise to ensure there was not some glaring thing that
839 was omitted. This driveway thing might be a problem but it seems to be covered.
840
841 May Becker: Since you bring up driveways over streams and all that. It is all a matter of degree, in that sense we've got a
842 homeowner who happens to be close to a stream and he wants to have his pickup truck over that stream and I don't think that is
843 necessarily going to be a problem hundreds of miles downstream. On the other hand if you have a tendency to develop Orange
844 County and you are going to do it near streams and you are sitting a precedence of sorts, I think we should be aware of what that
845 potentially could do to down stream erosion, to the flooding, to the question of fisheries, there the question may come up on how
846 you know but there are things we do know. We know for example that you look at hydrograph, you look at rainfall and then there
847 is a big storm and you see this big peak. There is also a low area that is called base flow which is like ground water flow and a
84$ lot of what we rely on is being able to analyze these types of hydrographs. We don't necessarily know what is going on with the
849 ground water because we don't have the data for it and so we see more urbanization and see these peaks. You see the base
850 flow, if you don't see as much of a base flow signature in the hydrograph. Potentially it means there is more quick flow going to a
851 river. Base flow is associated with slow flow, like ground water flow or like, if you go to a river bank and it has been a dry
852 summer and then you can see the river bank water level is approximately representative of the ground water table. If you go out
853 thereafter a big storm then you are going to see the water is rushing by so if you urbanize areas then you are going to get more
854 peak flow. That means if you have more fresh water coming into the estuary then the boundary between salt and fresh water is
855 pushed more toward the ocean then you've got this density driven flow.
856
857 Pete Hallenbeck: I get the feeling that a lot of your concerns are almost more global concern up until quality of development and
858 it is hard for me to bring that into each little piece.
859
860 May Becker: My general point is here are some things that are best management practices like having buffers, open space,
861 filtering nutrients and not creating a lot of impervious surface.
862
863 Brian Crawford: I don't think any of that has gone away. We are all on the same page and comfortable with the next steps. We
864 don't need to revisit this in February. I will leave a section open for new business. I think if we could wrap this up.
865
866 Alan Campbell: The next meeting, are we going to try to approve the whole thing?
867
868 Brian Crawford: I have not seen the minutes for the first meeting, how did we resolve it in the first meeting. We got all buy in on
869 the first meeting.
870
871 May Becker. We didn't know we were still talking about conditional zoning.
872
873 Brian Crawford: Were there things not resolved?
874
875 Craig Benedict: I thought there was consensus, there was clear consensus, we went around the table, that doesn't mean that
876 100% of people would vote for conditional use.
877
878 Brian Crawford: We didn't take a vote? There are still things still outstanding but at the next meeting we will take a vote.
879
880 May Becker. I did talk about some..,.l just feel like...
881
882 Brian Crawford: Remember there is still Phase 2 and we will go through the substantive things that you were concerned about.
883 What stopped this piece was there lack of clarity on conditional use and conditional zoning and your suggestion about stream
884 buffers so I think we have gone through this and there was a general consensus. 1 don't think we can do anything but go for a
885 vote next month and yes there will be those that vote against it but we have to a vote to be consistent with the timeline we
886 suggested when we submitted to the BOCC and that has to take place in February.
887
888
889 AGENDA ITEM 3: ADJOURNMENT
890
891 MOTION: Alan Campbell made a motion to adjourn. Seconded by Mark Marcoplos
892 VOTE: Unanimous
893
Brian Crawford, Chair
15