Loading...
HomeMy WebLinkAboutORC minutes 010417Approved 2.1.17 1 SUMMARY NOTES 1 ORANGE COUNTY PLANNING BOARD 2 JANUARY 4, 2017 3 ORDINANCE REVIEW COMMITTEE 4 5 NOTE: A quorum is not required for Ordinance Review Committee meetings. 6 7 MEMBERS PRESENT: Lydia Wegman (Chair), At-Large Chapel Hill Township Representative; Tony Blake (Vice-Chair), 8 Bingham Township Representative; Maxecine Mitchell, At-Large Bingham Township; Lisa Stuckey, Chapel Hill Township 9 Representative; Andrea Rohrbacher, At-Large Chapel Hill Township; Patricia Roberts, Cheeks Township Representative; Paul 10 Guthrie, At-Large Chapel Hill Township; Buddy Hartley, Little River Township Representative; Kim Piracci, At-Large; Laura 11 Nicholson, Eno Township Representative; 12 13 14 STAFF PRESENT: Craig Benedict, Planning Director; Michael Harvey, Current Planning Supervisor; Meredith Kern, 15 Administrative Assistant II. 16 17 18 AGENDA ITEM 1: CALL TO ORDER AND ROLL CALL 19 20 Lydia Wegman called meeting to order. 21 22 23 AGENDA ITEM 2: UNIFIED DEVELOPMENT ORDINANCE (UDO) TEXT AMENDMENTS – REORGANIZATION OF TABLES OF 24 PERMITTED USES 25 To review and discuss proposed amendments to the UDO that would reorganize the Tables of 26 Permitted Uses in response to the Byrd v. Franklin County judicial decision. As work progresses on this 27 item, which is expected for the September 2017 quarterly public hearing, the ORC will have additional 28 opportunities for review and comment. 29 Presenter: Michael Harvey, Current Planning Supervisor 30 31 Michael Harvey reviewed the abstract. 32 33 Paul Guthrie: Can I ask one question? More give me a better idea of the framework within. You mentioned nuclear power 34 plant, which I realize was to make an example. Nuclear power plant can only be built if it’s permitted by the federal 35 government. Federal government rules total charge of that particular industry. Would this thing you’re working on have any 36 ability to stymie the federal government? 37 38 Michael Harvey: No. Just like the County cannot deny or allow it’s Boards to deny a telecommunication tower based on 39 concerns over RF radiation or RF radiation poisoning. When the federal government has essentially said, “You local 40 governments don’t have jurisdiction over this. We have found there to be no problem”. 41 42 Paul Guthrie: The second thing was just a general broad comment that I think I’m fair in saying the two largest military bases 43 in the state were created by the federal government without regard to either state law or local jurisdiction and Camp Lejeune 44 and Fort Bragg. So I think somehow we need to make very clear that this is what is available under state and County 45 regulation and law, but anything occurring at the federal level will certainly supersede it. 46 47 Michael Harvey: Well it goes without saying Federal law preempts state and local regulatory authority. Just like state law 48 preempts us. State can essentially do what it would like to do with its property without any local involvement whatsoever. Now, 49 we have been fortunate at times for the State to actually want to encourage and promote cooperative relationships on the 50 local government level and want to work with local government officials in addressing state development. That doesn’t always 51 have to be the case and I can point to a couple of examples in Chapel Hill and even Raleigh, involved with the Universities 52 where that level of cooperation probably was not as heartfelt. 53 Approved 2.1.17 2 54 Paul Guthrie: So I guess my only comment is that I think that this is an even more difficult task than just going through this 55 stupendous process to get through the tables that make the existing Planning function. 56 57 Michael Harvey: Well I’ll do you one better Paul. I think that one a certain level you don’t have to worry about the Federal or 58 even the State preemption because it exists. You can sit there and say, “We’re not going to allow nuclear power plants”, which 59 means that you as a member of a utility company looking to break into an area as a profit based initiative have no opportunity 60 to develop that particular land use. Whereas Federal and State governments through their utility commission authority can 61 say, “No. Duke or Piedmont or whoever, we’re giving you a license to develop this type of facility and Orange County or 62 whoever, you’re preempted from stopping us from moving forward”. Now, it still has to go through their various processes and 63 there are various processes they have to go through where you can still have a denial of a permit. Our authority comes from 64 153(a)340. And the state giveth and the state can taketh away. And the asphalt plant, I know, is a bad example but it’s 65 designed to kind of spell out that the State has defined that we can do X, Y, and Z. But they have the right under the 66 provisions of the State Law to tweak how we get to do X, Y, and Z. Our goal here is to ensure that we are not creating a 67 loophole where by somebody gets to do something because we either weren’t as detailed oriented as needed be to ensure 68 compliance with Byrd V. Franklin. Or that we didn’t think of a particular land use category and said, “Oh, well we think it’s this”. 69 And then it becomes and interpretive nightmare and a potential court proceeding where we’re told, “No, you didn’t list it so by 70 definition it’s allowed”. 71 72 Tony Blake: What does this decision actually say? 73 74 Michael Harvey: Well the decision actually says… 75 76 Tony Blake: Because I had two questions regarding that inside this… 77 78 Michael Harvey: The Court stated as I’ve pulled out of the abstract, the law factors uninhibited free use of private property over 79 government restrictions. So you have to spell out what is and is not allowed so that you know. 80 81 Tony Blake: So if it’s not stated it’s permitted? 82 83 Craig Benedict: Right. 84 85 Michael Harvey: If it’s not stated it’s permitted or if you don’t define it to a point where you say, for example sexual oriented 86 businesses because this is a conversation we’re currently having with the Attorney’s Office. We’ve defined sexually oriented 87 businesses as including a plethora of activity. So the question that James and I are wrestling with is do we need to list out 88 these 50 uses we have in definitions or is it reasonable to have them in definitions? Right now he’s edging his bets and saying 89 I think the definitions will work because we’ve defined this is what they are, oh and by the way here are the 50 individual 90 definitions for each use. 91 92 Tony Blake: So then let me just follow my train of thought here because when I read that and how I interpreted it and that was 93 what I thought… I came up with two things reading this. For one thing, banks and financial institutions are listed in two 94 different categories. One in commercial and one in financial, I think. Why? Is one an ATM and the other a full-blown walk in 95 bank bridge or? That’s the kind of use that I’m… The way somebody using something has a big bearing on this. Above ground 96 water tanks is another example where if you’re using them for the purposes of fire suppression to prime a sprinkler system or 97 something like that it’s different than something there to wash out a garbage truck. What I’m saying is the intent of the use is 98 more open in this sort of a… 99 100 Michael Harvey: Well I would actually do you one better. A water tank in this context, when you’re looking at it from this point 101 of view is typically looked at as a primary or principal use. Which doesn’t mean that your business, already listed and 102 developed, can’t have a water tank as an accessory. Either to prime a required sprinkler or do other things you need to do. So 103 part of the thing you have to keep in mind is we’re looking at defining what allowed uses are per district. There may be 104 ancillary uses that every use is allowed to develop as a customary accessory use that may not necessarily have to be listed 105 this table either. The other example I’ll give you is: Single family residence you want to build a playground, a swing set for your 106 Approved 2.1.17 3 children. A swing set’s not going to be listed in here as an example. We don’t have to get to that granular level. But it is 107 covered under the vernacular of accessory land uses, which and again I’m taking your one example to a little bit of an extreme 108 but it’s designed to try to give you an answer that you’re comfortable with. The other thing I want to remind everybody here is 109 that we basically have only two categories of land uses in this County. And those are the general land uses that get further 110 broken down and permitted by right, meaning staff review and approval or Special Use. Meaning they go to Board of 111 Adjustment or County Commissioners for Class A SUP. Then you have the conditional. Conditional districts know, as you 112 might recall from when we did Hearts Mill, list out their own individual uses as part of that development proposal, that 113 development application. There are activities shown in table 5.2.3., which we have in attachment 2 but primarily you also as 114 an applicant can negotiate with the County Commissioners about what those activities could be in certain circumstances. 115 Now, Rita… Everybody remember Rita of the rural economic development activity area, on the 57? That has a list of specific 116 uses. You rezone to Rita, you have to pick one of those uses. Master plan is a global conditioning-zoning district where you’re 117 picking and choosing and proposing to this Board to make a recommendation and the elected officials ultimately approved. 118 That was Hearts Mill, just to give you an example. So part of this is to ensure that when we’re talking about the general use 119 districts you all know and love, such as rural buffer, neighborhood commercial, general commercial, I’m not going to list them 120 all but you get the gist. And then the economic development districts, Buckhorn, Eno, and Hillsborough. You’re going to have 121 consistency in how each land use category is referenced, defined. Within the County you may have a difference in where 122 they’re allowed. For example, you may only allow an asphalt processing batch plant, and again this is just example, in the 123 heavy industrial, which is I-3 and the Hillsborough Economic Development district 5, and nowhere else. But those are the two 124 places where that land use category is going to be permitted. Is everybody with me so far? 125 126 Lisa Stuckey: Does this have to be so precise that you include indoor ski resorts and tesla reproduction manufacturing plants? 127 128 Michael Harvey: The direction I’m getting from the County Attorney’s Office is I have to be as explicit as humanly possible. 129 Now do I have to spell out a Nissan manufacturing plant or Tesla? It’s a good question. Do I have to spell that out implicitly? 130 No. I have to say automotive manufacturing and that can cover the gambit. 131 132 Tony Blake: But there may be a distinction between a gasoline powered manufacturing plan and an electric powered 133 manufacturing plant. 134 135 Michael Harvey: Well it’s still a car. 136 137 Tony Blake: Right but they have different materials and processes and hazards. 138 139 Michael Harvey: Well you may want to have a distinction from the standpoint of what district you allow them in but you don’t 140 necessarily point out and spell out unless you want to. If you want to get to that granular level you could conceivably do that 141 with this. We didn’t take it that way for this example, I think we have actually in there automotive manufacturer. And that’s the 142 category. So the other part of this and this goes back to Lisa’s question earlier, the NAICS code. We are using NAICS 143 because it is an exhaustive list. 144 145 Lisa Stuckey: Well, why reinvent the wheel? 146 147 Michael Harvey: Well that’s part of it. The other part of it is the Staff is still trying to determine if we want to keep references to 148 sector numbers and our initial response here is we’re probably not going to because it’s just going to confuse the issue. 149 150 Tony Blake: Well how do you enforce that granular area? 151 152 Michael Harvey: Well you define uses in your own UDO. And because you also can’t, and James Bryan would disagree with 153 me, I have a hard time saying that we’re going to reference an external document or an external table in terms of defining 154 what this is. It needs to be in our code. So this is the level of complexity we’re about to begin. 155 156 Craig Benedict: It helps with Economic Development. When I would say light manufacturing is allowed in economic 157 development Buckhorn they would say, “Are you sure? You just have it all under light manufacturing. I’d like to see that food 158 processing is allowed”. And under the NAICS code there is something, you know candy production is listed as a sub-category. 159 Approved 2.1.17 4 Also a device that we’re going to use to move through these things as fast as possible, as Michael said the general 160 categories, the RV’s, and the commercials, and the residential, and the economic development and conditional zoning, we’ll 161 put up a use somewhere and we’ll try to populate it as much as we can based on what’s in there. And then we’re going to say, 162 “do you have trouble with rubber hose manufacturing?” and we’re going to have some little voting clickers and if everybody 163 kind of gets a straw vote that it’s ok then we move to the next one, because there’s going to be a lot of questions. The 164 Commissioners have, just when we went through the Hillsborough Economic Development Zone we asked them to weigh in in 165 those districts and there were five separate districts in Hillsborough and they had questions. Not the majority, but some did 166 have questions. And then the question was what does that exactly mean and the NAICS code does have definitions of those 167 specific areas, so we threw that their way. So it is a long task but it is going to add to some specificity for really everybody 168 concerned, instead of Craig or Michael saying, “Oh that seems like light manufacturing to us”. We’ll have a little more 169 coverage if it’s listed or not. 170 171 Tony Blake: This reminds me of the old IBM thing in the park right when IBM moved into the park and everybody was 172 complaining and they said, “this is a research park, we don’t allow manufacturing” and IBM attorney’s came back and said, 173 “Well we don’t manufacture, we assemble”. So back to my water tower example, doesn’t the way they’re going to use that 174 matter? 175 176 Michael Harvey: On one level, no. On another level, stand-alone water towers… are you concerned we’re not going to allow a 177 utility to have a water tower? 178 179 Tony Blake: No, I’m just… When I look at it it’s not a use. It’s a thing that can be used in a myriad of different ways. 180 181 Michael Harvey: I can actually point to two water towers in Orange County that are stand alone uses that serve a utility 182 function for the utility provider that has it there. I can also tell you water towers in certain volunteer fire departments to serve as 183 prime pumps to drain and put into an engine as emergency water preserve. But in that instance I would call it a customary 184 accessory use to the volunteer fire department versus a stand-alone use. It’s connected to the principal activity… And it’s a 185 broad example. 186 187 Tony Blake: Again, I get back to what happens when this thing is listed in two different categories, like banks and financial 188 institutions. 189 190 Craig Benedict: We’re going to get them all into one. 191 192 Tony Blake: Ok. So the intent is to remove them from the commercial use and put them in the financial? 193 194 Michael Harvey: Well I think as we have the footnote we have it listed as it currently is and we said we’re going to have to 195 broaden and move it. Just like retail. 196 197 Tony Blake: I guess I’m over it. I was left with this… when I look down this column called “Use type” there are things in there 198 that don’t strike me as uses so much as they are… 199 200 Michael Harvey: Well there are examples all throughout. One big example I’ll throw out as Tony’s looking for his example is 201 somewhere in here, and we included it because it’s listed in the NAICS table, we’ve actually foot noted it and said this is just to 202 kind of give you an illustration for discussion purposes, land subdivision. I’m on page 43. And the footnote we have, this is 203 listed in NAICS, and our goal is to try to pull in as much of NAICS as possible to kind of show you what we’re dealing with. 204 Land subdivision is not a land use. We included for reference and discussion purposes. This actually goes to Tony’s point. 205 There’s stuff in here that we’re not going to be keeping but we have to have it in here because we’re trying to give you what 206 the NAICS table says because at some point, I know if I were you, I’d be wondering, “Well I went and looked at the NAICS 207 code and you skipped two uses; was that on purpose?”. 208 209 Tony Blake: So special events were another one that that’s something that is an activity somewhere else. There isn’t really a 210 special event? 211 212 Approved 2.1.17 5 Michael Harvey: Well that’s a current land use. 213 214 Craig Benedict: The NAICS code almost went beyond just a use type. It listed an activity, like construction. I think it does give 215 a very exhaustive list and we can weed through some of those things. 216 217 Tony Blake: And they apparently do make the distinction in here between manufacturing and assembling. 218 219 Lydia Wegman: So you’ve given us an example of the NAICS code here. 220 221 Michael Harvey: And we’re going to get into some of the specifics in a few minutes. 222 223 Lydia Wegman: Ok, that’s fine. Paul has a question I think. 224 225 Paul Guthrie: I just happened to read something on this particular page that you were talking about and that is streets, 226 highways, and bridge construction, and then your explanation is obviously there. Many of the secondary roads in this State 227 and in this County have never had formal right of way acquisition. In the 1930’s when the State took over the right of way 228 system they just did it by Fiat and I know for a fact, at least 15 years ago when my parents were selling their property, there 229 was no record of the State right of way across the property; how are you going to handle that in this rigid schedule of 230 definitions. 231 232 Michael Harvey: I’m not. That’s a State problem. And I’m going to let it be a State problem. 233 234 Paul Guthrie: But it’s also a land owner’s problem. 235 236 Michael Harvey: Unfortunately, the County since we have no jurisdiction over the Department of Transportation there’s no 237 reason, from my stand point at least, for us to get into the fight. We will regulate private road development through the 238 subdivision process still and I would suggest… The subdivision road construction is going to be consistent with the ordinance, 239 which means you need to show us your right of way. If you, as a developer on a private road, want to take it to the center line 240 and deal with some of the ramifications of that then that’s your prerogative, we don’t recommend it. We have private roads out 241 of there where the right of way is just that, it’s a right of way. And it’s been plated independently to A: Avoid impervious surface 242 issues for the adjoining property owners and B: to get a clear title for the Home Owners Association about what they are 243 maintaining. That is, unfortunately, the exception to the rule. In most modern subdivisions where a public road is proposed we 244 look for dedication of the right of way. DOT, as you’ve pointed out, just has to establish a right of way, say it’s for X purpose 245 and go through the condemnation process prescribed by State law, but doesn’t have to take end fee title to that land but it is a 246 right of way that is defined for state purpose and state use. While clumsy, if that’s the way the State chooses to do business, 247 God bless you. I don’t want the liability of having to get in that because we’ll lose every time and for the exact reasons that 248 you’ve already brought up. That your parents went through some frustrations with their house. 249 250 Tony Blake: So an elevated water storage tank, in order to use that to charge or keep pressure in your sprinkler system in 251 your building you would have to classify that as a utility? 252 253 Craig Benedict: Not if it’s an accessory use. 254 255 Tony Blake: Ok so that’s what Michael was trying to say? And I probably wasn’t hearing exactly that. 256 257 Lydia Wegman: So I’m wondering at this point, unless there are any other questions, it’d be helpful for Michael to go through 258 some examples with us. 259 260 Michael Harvey continued reviewing abstract. 261 262 Craig Benedict: Let me just make one comment about the Economic Development District. There are two in Buckhorn, two in 263 Eno, and five in Hillsborough. If by chance when we come up with the uses that are allowed in those nine districts in what we 264 have in there now, if it happens that Economic Development Buckhorn one is the same as Economic Development Eno one is 265 Approved 2.1.17 6 the same then we may suggest as a second step, “Let’s come up with ED-1 and get rid of the B and the E and all that stuff. 266 But we’re going to have to go through this iteration because those zoning categories are on the ground and we’ll have to 267 actually go through a zoning process to rename them the different areas. So just like you might remember some of those 268 general or conventional districts we came up with. That new office-manufacturing district, that was a really good mix of uses. 269 We can’t use that in our Economic Development zones right now. We’d love to use that in the other categories so we might 270 come up with some as we’re looking at this and say, “Oh that would be good somewhere else”, and have to go though some 271 extra steps to collapse it even further to use more of a general Economic Development zone. We know there’s uniqueness 272 between those three zones. They’re kind of a part of three separate agreements with the local municipalities that they annex 273 them. So they’re probably going to retain some of their uniqueness, but if there’s a chance we can collapse, we may. 274 275 Tony Blake: That’s why I asked that question this afternoon about Chapel Hill’s new light industrial and the thing that we just 276 approved outside of Hillsborough sounds like they should be similar, if not the same. 277 278 Lydia Wegman: Ok, so that’s not what you’re doing? 279 280 Michael Harvey: Right. We may be making recommendations but this is not going to collapse anything. I think it’s fair to say 281 we would get lost in the minutia of the collapse versus getting the table permitted uses fixed. This is, again, already going to 282 an endeavor. This is already going to be involved. There’s not reason to overcomplicate this ay more than it’s going to have to 283 be. But I think it would be valuable to hear your comments along those lines as we move forward. Why do we have it broken 284 up this way? Why can’t we look at collapsing it? County Commissioners, maybe a future project is X, that is something that 285 you need to keep in mind and that is something that could be beneficial as we go through the process. 286 287 Tony Blake: So just for the sake to make it easier to parse the information is it possible to get this in an XL spreadsheet? 288 289 Michael Harvey: Anything’s possible. 290 291 Tony Blake: Yeah I’m just… being able to write a formula to say, “give me all the ones that have this use, or all of the 292 categories of zoning districts that have this use” because I expect that the paper is going to be longer even than it is wider. It’s 293 going to be huge. And just being able to sort in a spreadsheet would be, I think, easier. And then later, as a Word product if it’s 294 in a common separated format it’s easier to computerize or put in a place where it can be accessed electronically as opposed 295 to by paper. That’s all. I’m making that suggestion, not necessarily… 296 297 Michael Harvey: It’s not a bad idea. The question is how many iterations are we going to be producing? 298 299 Tony Blake: Right, you want one controlled copy. 300 301 Michael Harvey: Yeah, and I think that’s probably where most of my concern is. I think that it’s important that we’re providing 302 you this information in a format and a mechanism that you all can make best use of it and if that’s the best way to do this then 303 we’re going to have to investigate it. Obviously, it’s going to have to be in a table when we get to the final iteration of this so 304 that it’s going to be able to be put into the UDO formatting. 305 306 Paul Guthrie: Can I ask one quick question just to help me get a reference on how we deal with this? What was the decision 307 and on what subject of the Byrd case? 308 309 Michael Harvey: Well the Byrd case involves somebody being denied. There were elements of references to a shooting range 310 but if there was another land use and somebody wanted to develop and somebody made the distinction that, “Well the land 311 use in and of itself is not permitted” We think it falls into this category however which is not permitted in your zoning district. 312 And the suit was, “No, you have to give me a comprehensive list telling me what I can and cannot do with my property. 313 Because if you’re not then you’re denying me fair and impartial use of it because you’re not telling me you can do this and this 314 and this. If it’s all based on your supposition of what this term means and this term means then I don’t have a clear, easily 315 understandable, definable path to determine whether I can do something with my property”. And the Court basically said, 316 “That’s accurate. The responsibility is on the government to provide that data so that you as a property owner can make that 317 Approved 2.1.17 7 choice without necessarily either A: Having to have a degree in Planning or B: At the whim of a Craig or a Michael to decide 318 how to define the term”. 319 320 Paul Guthrie: And then once you do that then it can be litigated. 321 322 Tony Blake: Or it can change over time. 323 324 Paul Guthrie: So the question is do you make a list that is as encompassing as possible in definition of functions or do you 325 make a list that is as complicated as it will be to things you can’t do? 326 327 Michael Harvey: Well Paul, I guess beauty’s in the eye of the beholder. Because I think it’s going to be both ways. I think there 328 are some people that are going to see this as, “Wow, you just listed 50 things I can’t do” but, “Yeah, we’ve listed also 20 things 329 you can do”. “But I want to do this”, “Sorry, you can’t. It’s not permitted. You’re choices are amend the ordinance or do 330 something else”. We are however giving you that level of detail and that definitive detail so that you don’t necessarily have to 331 rely on an interpretive call that could change either because Craig leaves and you get somebody else in that seat that has a 332 totally different view of how to interpret a certain land use category. That’s what this is an attempt to start memorializing. Now, 333 as I indicated at the onset of this meeting, this is not going to be the all-encompassing list. It’s going to be as close as we can 334 get it. Land use is a fluid, ever-changing monster. And Craig and I have said this is many meetings, we know you’ve heard it, 335 the UDO is a living, breathing document that is designed to change over time, albeit sometimes slowly, to address the current 336 needs of the community, and to address the changing aspects of the community. There are land uses that some Board 337 members may now say, “We want to allow this here but we don’t want to allow this here anymore because it makes more 338 sense”. That’s perfectly reasonable and that’s what some of this is going to, I think, pull out. 339 340 Craig Benedict: This version of the NAICS code is 2012 and there might be a 2018 and we might have to see what the 341 differences are and find if it’s a ruling to say that we now need to list those new uses and decide whether they’re ok or not. 342 343 Tony Blake: So it strikes me there’s two activities here. One is the list of use types, however we pair it up or down and then 344 two, filling in all the little boxes along the appropriate NAICS codes. 345 346 Michael Harvey: Well remember, that’s also a point of contention we need to talk about. We have provided the NAICS code as 347 the example because that’s what we started out with for the Hillsborough district. We’re not married in the fact that the County 348 Attorney’s Office vacillates depending on when you talk to them on whether or not we should get whole heartedly embrace the 349 NAICS code or just list uses and not rely on the sectors. One example is, both Perdita had brought to James’ attention our 350 concerns of, “If there are changes to the NAICS code what does that do to us?” and his initial reaction and it still is to some 351 extent now is that it doesn’t matter. You’re referencing a certain NAICS code, a 2012 NAICS code; so what if there’s an 352 update? If you don’t choose to update your code, you’ve at least made reference to the appropriate code you’re using, or don’t 353 use the NAICS code at all for the stand point of referencing sectors, list the uses and make sure you’re properly defining them 354 if you need to; article 10 in this case. And the NAICS is just a guide in terms of a comprehensive list of uses. So again, there’s 355 a lot of ways this is going to have to be discussed to potentially pan out. 356 357 Tony Blake: What are other jurisdictions doing? 358 359 Michael Harvey: I don’t think it’s fair to say that there is any one jurisdiction that has the same opinion about this as the other. 360 In talking to some of my brethren from other Counties some are hiding under rocks and quite bluntly some are saying our 361 Attorneys say this isn’t as big of a deal as it seems to be, and we’re just going to wait until we’re sued. And I don’t mean that 362 meanly, but they’re attitude is, “We believe we have defined our land use tables sufficiently that we don’t need to worry about 363 Byrd v. Franklin”. We need to worry about Byrd v. Franklin for a couple different reasons. One because we have terms like 364 “light industrial” that provide a grotesque synopsis that relies on a determination to be made by a staff person. We have an 365 overall definition of office and personal service class 1, 2, 3 where your difference in class 1, class 2, class 3 is either a traffic 366 impact assessment or something else. We have health services, that all-encompassing title that says 10,000 square feet and 367 under. What’s a health service? Does that include this, does that include that? And then that goes back to some of the 368 discussion I think you were having, not to kind of mince the issues here but it will hit the point home I hope; what’s the 369 difference in the Hillsborough Economic Development district with a 1.9 acre parcel doing something but a 2.1 acre parcel 370 Approved 2.1.17 8 having to go through an SUP if it’s the same use? Because just with the size of property. And it’s the same problem here. Just 371 because of the size of the structure or anticipated traffic impacts with a nebulous term of what it means that relies on a staff 372 determination you’re either going to be allowed to doing something or not do something. I think where James’ concerned gets 373 legitimized is the notion that our current process as others surrounding us relies too much on a staff interpretation of the 374 terminology, if we’re having a good day. And they want to avoid conflicts with whomever. Michael gives one answer, Craig 375 gives a second answer, and Patrick gives a fourth answer, because Rachael gave a third answer already. So that’s what the 376 Attorneys Office is hoping to avoid with a more detailed, encompassing list. 377 378 Tony Blake: So then does it make sense to approach this by, I don’t want call it low fruit but the areas of concern first? 379 380 Michael Harvey: I think… Why don’t we go through the tables and start looking at what we’ve done and start trying to answer 381 some of those questions and I think some of them will become self answerable. We’re obviously going to get through as much 382 of this as we can tonight because I think some of your direction is going to give me answers to questions on how I’m doing 383 some other things. 384 385 Michael Harvey continued reviewing abstract. 386 387 Lisa Stuckey: Is there going to be a difference to our land owner whether they’re going to be permitted to do tobacco farming 388 or cotton farming in a particular area? 389 390 Michael Harvey: Well again, you’ve kind of hit the nail on the head. 391 392 Lisa Stuckey: Well I think in reality if there’s going to be a difference then it should be broken down as small as it is here so 393 people know what they can do. If there’s no difference then get rid of some of the sub category. Is that what you’re asking? 394 395 Michael Harvey: No. Well, we’re going to be asking that on several categories. In this one specific example as articulated on 396 page 34 on footnote 3 we’re providing this list but we believe we’re going to be preempted by the State law saying you don’t 397 define farming, that this is going to be coming out. I’ve put this in here to ask your opinions, if you’re comfortable if we take this 398 tact with the Attorneys Office on Thursday that listing these uses out is moot. 399 400 Lydia Wegman: So you would leave the current uses? 401 402 Michael Harvey: Yeah, I’m going to leave the current uses alone. Current uses we’re not changing except it’s going to be on a 403 bigger table. 404 405 Paul Guthrie: And Byrd had nothing to do with agriculture. 406 407 Tony Blake: But if you’re in an AR zone and you want to keep bees or chickens, there is nothing that’s going to stop you from 408 doing it, right? 409 410 Michael Harvey: Correct. We do not regulate you keeping bees or you keeping chickens. In fact, remember when we were 411 doing the UDO there were several questions about kennels and the definition of kennels because we do regulate how many 412 dogs you can keep. Language of the definitions of kennels Class 1, Class2 stipulates that includes all animals with the 413 exception of domesticated livestock. So Tony has 21 chickens on his property, doesn’t mean he has to get a Class 2 kennel 414 because he’s got 21 animals because that’s one of the thresholds. A chicken is a domesticated farm animal so it’s exempt 415 from having to do that provision. 416 417 Michael Harvey: And what I’ll point out to you is that the NAICS code takes several of these activities and puts them into totally 418 separate land use categories and use types. What we’re trying to do here is just kind of provide you our thought on what some 419 of the existing categories would become morphing into. So for example, school; it’s not just dance and art, it’s karate, martial 420 arts, gym, sports training. 421 422 Approved 2.1.17 9 Tony Blake: So your example earlier of this thing where you go in and fight your way through levels and do all of this, that 423 could be entertainment or it could be training. 424 425 Michael Harvey: Yeah. I would classify it based on what I’ve read about it as an arcade, because it’s not training from the 426 standpoint of physical exertion. It’s like indoor paintball for lack of better way to put it. It is a fun activity. But that’s exactly the 427 point we’re making. So schools: elementary, secondary, public, or private. You don’t differentiate between public and private. 428 It’s a school. And we’ve had that discussion a couple different times as we looked at Carolina Friends School, Emerson 429 Waldorf, and of course and County school. My favorite one, commercial uses, which begins at the bottom of page 39. Look at 430 the footnote. We’ve made some small modifications. This is where the NAICS code provides expanded lists of a ton of 431 different activities. And Tony has hit on a couple, banks and financial institutions. This land use category will be expanded into 432 a new category titled “Finance of Insurance consistent with NAICS code” in a future draft. That’s where you get into insurance 433 brokers, you get the laundry list of activity that all makes up a financial institution besides just bank. Its stockbrokers, it’s 434 insurance. 435 436 Lydia Wegman: So you’re expecting to have that whole list in here? 437 438 Michael Harvey: Yeah. It’s going to be broken out in its own separate category. 439 440 Paul Guthrie: You can get some, probably not in Orange County, but you can get banking as some guy sitting in a room with 441 three computers. 442 443 Michael Harvey: So beauty and barbershop. Again, we’ve kind of broken down what we’ve found in the NAICS code to sort of 444 broaden that out. It’s not just a beauty and barber shop, it can also be manicure/pedicure care, massage non-therapeutic, day 445 spa, bath house, steam rooms, etcetera. This is again, the granular level of detail we’re going to have to be going for. 446 447 Paul Guthrie: I was just looking at the mining. To my knowledge there’s been no indication of coal, for instance, in Orange 448 County. Wouldn’t you eliminate that from your list? 449 450 Michael Harvey: No, because then somebody could claim it’s permitted because we didn’t list it and then not say it’s allowed. 451 452 Paul Guthrie: So you think they’d go dig in a hole for something else? 453 454 Michael Harvey: Yes. Well here’s what I don’t want Paul, this actually goes more to your point. What I don’t want is for 455 somebody to claim that you didn’t list it, therefore it’s permitted, and it’s unregulated, and we can do whatever we want, and 456 we’re going to give it a try, and then you hit something else. 457 458 Lisa Stuckey: So I have a question going back to this beauty and barbershops. Is that a heading or an individual category? I 459 see that manicure and pedicure is indented, what’s the significance of that indentation? 460 461 Michael Harvey: We were providing you a synopsis of how beauty and barbershop would have to become its own independent 462 category and then be broken down further. 463 464 Lisa Stuckey: Ok, because you guys have left out hair cutting. 465 466 Michael Harvey: Yeah, we didn’t capture everything… It gets even worse when you get to page 41 and you get to office and 467 personal services, where the NAICS code actually provides you some personal services that include grooming services. So, 468 these are issues that we’re going to have to be resolving and working with you all. 469 470 Lisa Stuckey: Right. So is it an individual category or a sub category is very important? 471 472 Tony Blake: But that’s again back to what I was trying to get to earlier… Are some of these categories meant to be accessory 473 uses? I mean why would they list them in two different places? 474 475 Approved 2.1.17 10 Michael Harvey: The best answer I’m going to give you is you don’t need to look at this from the standpoint… I think if you 476 continue to look at this in the standpoint of whether it’s a principal or accessory you’re going to get lost in the weeds. You 477 need to look at this as these are principal uses. And the weeds are going to get thick anyway. My job here tonight is I’m 478 providing you some specific examples, you’re giving me some direction, which I appreciate, and I think you’re getting the idea 479 of the complexity that this is going to be. You’re going to have these types of conundrums. And it gets worse as I point out on 480 page 41 with retail where you have 60 independent land uses that constitute retail. With restaurants you get to the same 481 problem. You’ve got 30 different uses for restaurants so a lot of these are going to become their own, new land use category 482 with a list of uses. And we’re going to be recommending where they go. Right now we just have a general colloquial term 483 building contractors. The NAICS code breaks it down even further. Residential building contractors, heavy and civil 484 engineering construction offices, this is the level of detail that we’re going to be looking to provide. 485 486 Paul Guthrie: Are the attorneys then going to make you translate that into relevant State law? Citations for instance, licensing 487 for certain types of construction and building? 488 489 Michael Harvey: I think the fairest way I’m going to answer that Paul is to say that we’re going to list a specific land use that is 490 going to be allowed or not allowed. Whatever license you have to get to legally have that land use will drive whether or not 491 you’re really going to do it. So it’s kind of a dual end sword. 492 493 Tony Blake: So I kind of see the problem with the NAICS code here because I look at this construction and I see new single 494 family housing construction except for for sale builders and then 236117 new housing for sale builders. There’s not a 495 difference as far as I can tell but if you would omit one of them then somebody’s going to claim to be that and be unrestricted. 496 I see that so the minute you say you’re using the NAICS code you immediately become subject to every little… so I’m just 497 echoing that concern. 498 499 Michael Harvey: Yeah, because what I’ve heard from all of you so far is it’s a neat list but I’m not hearing a lot of oohing and 500 ahhing about getting into bed with the NAICS code. And I’m certainly not going to dissuade you of that. 501 502 Lisa Stuckey: I don’t even know what the NAICS code is. 503 504 Michael Harvey: Well the NAICS code is was originally looked at as a way of trying to categorize and catalogue what activities, 505 what land uses, what business you had to make counting for the census perspective easier. We’ve got this many of this, this 506 many of this, this many of this. And there were some attempts early on to say this should just be the definitive land use code 507 for this land use category. The problem with NAICS is, as Perdita pointed out to you a lot, it only covers a certain spectrum of 508 allowable land uses. It doesn’t touch residential, for example. Like single family or some of the other activities. So what I’m 509 hearing you all say and looking at the glazed look in your eyes, because trust me I get it too going through NAICS code, is that 510 NAICS is a good guide but you’d prefer to have something in a vernacular that you have a little more connection with without 511 referencing section numbers and without getting into this level of detail of, “Do we really care for for sale builders, not for sale 512 builders?”. And if you’re asking me, “Do I want to get to that level of minutia to say that Paul, who is a Spec builder, and Tony, 513 who is a custom house builder, can’t have an office in the same zoning district?” it’s a house. And if everybody’s ok with that 514 that’s why we have the footnote there to say… 515 516 Tony Blake: And the overwhelming majority of them are probably doing both anyway. 517 518 Michael Harvey: Correct. 519 520 Paul Guthrie: Let me just point out one little subversive tool for you when you’re talking with the attorney… You get into some 521 of this kind of stuff, is the Byrd agreement taking without due process under the law? And it’s a good question to ask him 522 because some of the things we’re saying here would, in fact, be a taking. 523 524 Lydia Wegman: I don’t think it’s a due process thing. 525 526 Michael Harvey: Well I think where Paul’s headed with this, quite bluntly, is the argument that local government is not 527 providing you sufficient detail in what you can do with your property and as a result that’s an adverse impact that results in the 528 Approved 2.1.17 11 taking of rights, without compensation. And I think that the honest answer is, I don’t think that Byrd got to that level Paul. But 529 what I think Byrd came from is, you as a government entity have a legal obligation to define for you what’s permitted and if you 530 choose not to say or take a definitive stance on oil and gas pipeline and related structure construction then the person should 531 assume they could do it. 532 533 Paul Guthrie: Ok, I can understand that but I’m going back actually a little further, and that is as you redefine our processes to 534 try to comply with the attorneys view of the Byrd decision you may in fact be retroactively making a taking of someone’s 535 property. 536 537 Michael Harvey: I don’t share that concern but I understand why you’re asking the question. 538 539 Paul Guthrie: Oh I understand that, I’m just saying… 540 541 Craig Benedict: We’re putting them into a slot that might not have been as specific as it was before. So we’re trying to match 542 what they can do there now, but there’s going to be some things where we’ve never really answered that question before. 543 544 Lisa Stuckey: So then Paul’s question is relevant. 545 546 Craig Benedict: Michael, I have a question that you can pose for the attorneys. On page 43, if you had specially trained 547 contractors and this NAICS code heading 2, 3, 8 if we thought all those sub uses below were ok that we didn’t mind if they 548 were in any district or whatever, could we just use the main heading? 549 550 Michael Harvey: Yeah. But if I don’t show you and everybody else, because that’s what got us in trouble at the Cou nty 551 Commissioner level with the Hillsborough district, when certain assumptions were made that everything in this particular land 552 use category could be allowed or should be allowed… Well that’s not fair, Perdita had a couple land use categories where no 553 boxes were checked and the concern was, “Well in this land use category this land use is allowed. We don’t know what land 554 uses are allowed” and of course Perdita’s honest and straight forward answer was, “It doesn’t matter, we’re not allowing them 555 in the district” and that’s when we got into some of the problems and trouble we did. But Craig is right. If you have a land use 556 category, or a sector category for example, that lists uses that nobody cares, they’re all fine then you can just have the 557 reference, as long as you’re properly defining all that reference entails somewhere. 558 559 Lydia Wegman: So you would say specialty trade contractors NAICS 238 and all… 560 561 Michael Harvey: If we stick with NAICS code references, yeah. Or the better example, if you have beauty and barbershop as 562 the overall category and then break it down to what beauty and barbershop could entail as long as it’s the encompassing list. 563 Page 45 begins extracted uses, mining, quarry, and oil and gas extraction. This became a huge issue at the County 564 Commissioner level dealing with the Hillsborough Economic Development district because the concerns that you could have 565 manufacturing activity that may not be deemed reasonable for the area in question. So we listed everything out, obviously 566 capturing everything we currently allow on page 47. What I have listed is what I believe we currently already allow through that 567 proves but yeah, we specifically didn’t include geranium mining. 568 569 Tony Blake: Well how about sand, gravel, and ceramic. I mean if you look at the merits over at Chapel Hill Gravel, it’s by 570 definition… 571 572 Michael Harvey: Well I would actually say it was stone mining and quarrying, but I understand your point… Again, what I’m 573 hearing a lot of you say and the nods of consensus are that we need the level of detail but if we can eliminate the sector 574 references and just group them it would be a lot easier to understand. 575 576 Lydia Wegman: What do you mean by eliminate the sector references? 577 578 Michael Harvey: Well for example, I have put in here all the sector references as they live in the NAICS code. What I’m 579 hearing you all say is if you can give the land use category and then provide the uses it would be a lot easier for you to track 580 Approved 2.1.17 12 and follow without worrying about what sector X does, sector Y does. And that’s a pretty constant theme I’m hearing from you 581 all right now. 582 583 Lydia Wegman: I need an example to understand what you’re talking about. 584 585 Michael Harvey: Instead of saying metal or mining section, just have metal or mining see list below and then list them all out, 586 instead of relying on sectors. 587 588 Lydia Wegman: I see. 589 590 Lisa Stuckey: If they’re not all allowed? 591 592 Michael Harvey: Right. If we want to allow stone mining and quarrying just allow stone mining and quarrying without having to 593 break it down into its added finite. The next comment I’ll make goes to an earlier comment Paul made, go to page 49. The 594 bottom of 48 and all of 49, this is government uses and public administration. That’s a category under the NAICS code. We’re 595 getting into executive, legislative, and other general governmental support, executive offices, legislative bodies, and public 596 finance. 597 598 Lisa Stuckey: Michael, if you and the other Michael Harvey’s in the state are all doing this is this not a ridiculous and huge 599 reproduction of effort? 600 601 Michael Harvey: Well that’s the problem because the other Michael Harvey’s in the state aren’t necessarily doing it this way 602 because the other Michael Harvey’s of the state don’t answer to the County Attorneys for Orange County. Orange County’s 603 legal advice is to say you need to fix our table permitted uses to make sure we don’t find ourselves in a predicament where 604 we’re going to get sued and lose because of Byrd v. Franklin. 605 606 Lydia Wegman: But it was a State Supreme Court decision, so it applies statewide but each County is responding in its own 607 fashion. 608 609 Craig Benedict: Everybody has a different opinion of what uses they would want in their area and what would be prohibited. 610 When I worked in Florida I used a rendition of the previous NAICS called the standard industrial code classification. I used 611 major categories in there, I didn’t list it but it was just better, it was organized to talk about manufacturing and assembling and 612 distribution and warehousing. It seemed to have some organization and we listed as many prohibited uses as we could think 613 of, but things changed over time. 614 615 Tony Blake: I think the minute you include the NAICS numbers you’re opening yourself to anything you leave out. 616 617 Michael Harvey: Yeah, and I think some of the direction I’ve received is to take the NAICS numbers out. They’re here to give 618 you a reference point right now. 619 620 Craig Benedict: We may use our own numbering. 621 622 Tony Blake: Well your own numbering would be useful if it was in a separate column and it could be from a data perspective. If 623 it’s an individual index it could make data indexing faster, it could make organization faster when it’s electronic. 624 625 Lydia Wegman: Just going back to the governmental uses, there doesn’t seem to be much benefit to the NAICS code in that 626 instance. 627 628 Paul Guthrie: What is your deadline to get this done? 629 630 Michael Harvey: Well you all are going to be reviewing it in June or July for recommendation with a public hearing in 631 September. 632 633 Approved 2.1.17 13 Lydia Wegman: But you did say we might have other ORC discussions? 634 635 Michael Harvey: Well there are going to be a lot of ORC discussions. You’re cited to do a minimum of at least one more. I’m 636 probably thinking there will be one more after that so you guys are going to see this in a couple different f ormats. I’ve kept 637 manufacturing, assembly, and processing consistent with the work you’ve already done that begins on page 51. There was no 638 reason to change that. I thought the work you all did with Perdita and the work she did needed to be preserved. So that is 639 incorporated verbatim from what you’ve already seen, and done, and played with. Let me ask you a question as we get to 640 page 57. Medical uses. We currently break down medical uses really to health services over 10,000, health services under 641 10,000. I don’t see a reason to have an arbitrary square footage limit because I can actually think of several health services at 642 9,000, 8,000, 7,000 square feet that would probably be something you don’t want in several districts, and some let’s say at 643 2,000, 3,000 you may want to allow in more prevalent locations. So if you’re comfortable I’m going to abandon the square 644 footage issue and just list out what I consider health services using some of the makes, physicians’ officers and the likes. Are 645 you all ok with that for the next draft? 646 647 Unanimous approval. 648 649 Tony Blake: What about page 62? I keep hearing people float the idea of some sort of a, for lack of a better comparison, wolf 650 trap type thing around here. Smaller but it’s an outdoor performing arts summer theatre type of thing. Is that intended to be 651 covered under this? 652 653 Michael Harvey: I’m sure it will be. 654 655 Lisa Stuckey: So the fact that we allow no performing arts… 656 657 Michael Harvey: Well this is just the list, one of the reasons is I haven’t figured out what I want to do with some of this yet. But 658 to answer Tony’s question about recreation uses from that standpoint, I think part of my answer to you Tony is going to be if 659 you’re proposing and we currently haven’t defined a recreational facility that is a wolf trap-esque it would be a Class B SUP. 660 661 Michael Harvey: So utilities… One of the concerns that I am working with on utilities is trying to figure out what State law does 662 and does not let me do. Current code says that for you to have a utility distribution line over a certain wattage or pressure in 663 terms of gas, you have to get a SUP. There is some thought that State utilities commission actually trumps what we can or 664 can’t do because they’re saying PSNC, UPiedmont have an obligation to provide a service, you have to get it in. Well the SUP 665 was denied. Well who is Orange County, or Chapel Hill, or Durham to tell you that you can’t install a mandated state utility? 666 667 Tony Blake: They won’t let you… There are grid requirements that would trump you. 668 669 Paul Guthrie: That case is going to get fully aired as they build a new pipeline through Eastern North Carolina. 670 671 Michael Harvey: The regional pipeline issue going through Virginia, North Carolina I think actually bears some scrutiny 672 whereas the PSNC Pipeline that went through Orange County that provides service to County residents and handles outside 673 County, it’s part of their distribution line. I think it’s a better argument for that one to say why are you requiring this to have a 674 SUP when you have to approve it? Because what PSNC argued during their SUP hearing was, “We’re a public necessity” and 675 there was some truth. Now they still went through the process, they didn’t sue me; they went through the process… 676 677 Paul Guthrie: And then sold themselves out to Duke Power. 678 679 Michael Harvey: Yes, and then we had a really ugly public hearing. It was not pretty, but the SUP was approved. So you’re 680 going to be hearing more about utilities as we move forward from that standpoint. I wanted to at least call your attention to why 681 there may be a change. Wholesale trade, again, we’ve just provided you the breakdown to show you the level of detail. And I 682 think I have sufficient direction to get you to phase 2. 683 684 Michael Harvey: You’ll see this in March. Now what I’ll do for you to get you something in either a table or an Excel format that 685 will make it a little easier for you to search electronically, which we can do. It’ll take me some time to figure out. 686 Approved 2.1.17 14 687 688 Lydia Wegman closed the meeting. 689 690 691 692 ___________________________________ 693 Lydia Wegman, Chair 694