Loading...
HomeMy WebLinkAboutPlanning Board agenda 040319ORANGE COUNTY PLANNING DEPARTMENT 131 W. MARGARET LANE, SUITE 201 HILLSBOROUGH,NORTH CAROLINA 27278 AGENDA ORANGE COUNTY PLANNING BOARD NOTE MEETING LOCATION!! WHITTED BUILDING 300 WEST TRYON STREET,2ND FLOOR HILLSBOROUGH,NORTH CAROLINA 27278 Wednesday, April 3, 2019 Regular Meeting – 7:00 pm No.Page(s)Agenda Item 1. CALL TO ORDER ELECTION OF VICE-CHAIR FOR REMAINDER OF 2019 2. 3–4 INFORMATIONAL ITEMS a.Planning Calendar for April and May 3. 5-14 15-24 APPROVAL OF MINUTES March 6, 2019 Regular Meeting March 20, 2019 Special Meeting 4. CONSIDERATION OF ADDITIONS TO AGENDA 5. 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 residents 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 its respect to all present. The Board asks those attending this meeting to conduct themselves in a respectful, courteous manner toward each other, County staff, and Board members. At any time should a member of the Board or the public fail to observe this charge, the Chair will take steps to restore order and decorum. Should it become impossible to restore order and continue the meeting, the Chair will recess the No.Page(s)Agenda Item meeting until such time that a genuine commitment to this public charge is observed. The Planning Board asks that all electronic devices such as cell phones, pagers, and computers should please be turned off or set to silent/vibrate. Please be kind to everyone. 6. CHAIR COMMENTS 7. 25-119 MAJOR SUBDIVISION CONCEPT PLAN REVIEW -To review and take action on a Concept Plan application for a Major Subdivision called Fairway Hills. The proposal is for a 20 lot single-family Flexible Development subdivision on 41.97 acres (PINs 9884-32-3275 and 9884-31-9874) located in Eno Township on the north side of US Highway 70 across from the Occoneechee Golf Club. Presenter:Patrick Mallett, Planner II 8. ADJOURNMENT IF AN EMERGENCY OCCURS,OR IF YOU ARE RUNNING LATE FOR THE MEETING,PLEASE LEAVE A VOICE MAIL FOR PERDITA HOLTZ (919-245-2578). April 2019 Sunday Monday Tuesday Wednesday Thursday Friday Saturday 1 2 3 4 5 6 Regular BOCC Meeting 7:00 pm Whitted Building Planning Board 7:00 pm* Whitted Building BOCC Work Session 7:00 pm Whitted Building 7 8 9 10 11 12 13 BOCC Budget Work Session 7:00 pm Whitted Building 14 15 16 17 18 19 20 Regular BOCC Meeting 7:00 pm Southern Human Services Center OUTBoard 6:30 pm Whitted Building Holiday/Offices Closed 21 22 23 24 25 26 27 BOCC Work Session 7:00 pm Whitted Building 28 29 30 Notes: * Planning Board Member Attendance Required WCOB = West Campus Office Building (131 W. Margaret Lane, Hillsborough) 3 <April May 2019 June> Sunday Monday Tuesday Wednesday Thursday Friday Saturday 1 2 3 4 Notes: * Planning Board Member Attendance Required or Encouraged WCOB = West Campus Office Building (131 W. Margaret Lane, Hillsborough) Whitted = Richard Whitted Building (300 W. Tyron St., Hillsborough) Planning Board Meeting 7:00 pm* WCOB 204 Regular BOCC Meeting 7:00 pm Whitted Building 5 6 7 8 9 10 11 12 13 14 15 16 17 18 BOCC Budget Public Hearing 7:00 pm Whitted OUTBoard meeting @ 6:30 pm WCOB 204 BOCC Budget Public Hearing 7:00 pm Southern Human Services 19 20 21 22 23 24 25 Regular BOCC Meeting 7:00 pm Southern Human Services BOCC Budget Work Session 7:00 pm Whitted 26 27 28 29 30 31 MEMORIAL DAY HOLIDAY BOCC Budget Work Session 7:00 pm Southern Human Services 4 D R A F T MEETING MINUTES1 ORANGE COUNTY PLANNING BOARD2 MARCH 6,20193 REGULAR MEETING4 5 MEMBERS PRESENT: Lydia Wegman (Chair), At-Large Chapel Hill Township Representative; Alexander Gregory (Vice-6 Chair), Chapel Hill Township Representative; Adam Beeman, Cedar Grove Township Representative; Carrie Fletcher, 7 Bingham Township Representative; Laura Nicholson, Eno Township Representative; Patricia Roberts, Cheeks 8 Township Representative; Paul Guthrie, At-Large Chapel Hill Township; Randy Marshall, Bingham Township 9 Representative; 10 11 MEMBERS ABSENT: Hunter Spitzer, At-Large; David Blankfard, Hillsborough Township Representative; Buddy Hartley, 12 Little River Township Representative; Kim Piracci, At-Large; 13 14 STAFF PRESENT: Craig Benedict, Planning & Inspections Director; Michael Harvey, Current Planning Supervisor; 15 Tina Love, Administrative Assistant III16 17 AGENDA ITEM 1: CALL TO ORDER AND ROLL CALL18 Chair Lydia Wegman called the meeting to order. 19 20 AGENDA ITEM 2: INFORMATIONAL ITEMS21 a. Recognition of Members Rotating Off the Board this Month 22 b. Planning Calendar for March and April 201923 24 AGENDA ITEM 3: APPROVAL OF MINUTES25 February 6, 2019 Regular Meeting26 February 6, 2019 Ordinance Review Committee Notes27 28 MOTION by Laura Nicholson to approve the February 6, 2019 Regular Meeting Minutes and the February 6, 2019 29 Ordinance Review Committee Notes. Seconded by Carrie Fletcher. 30 VOTE: Unanimous31 32 AGENDA ITEM 4: CONSIDERATION OF ADDITIONS TO AGENDA 33 34 AGENDA ITEM 5: PUBLIC CHARGE35 Chair Lydia Wegman waived the reading of the Public Charge36 37 AGENDA ITEM 6: CHAIR COMMENTS38 No Comments39 40 AGENDA ITEM 7: UNIFIED DEVELOPMENT ORDINANCE (UDO)TEXT AMENDMENTS –REORGANIZATION OF TABLES OF 41 PERMITTED USES –To make a recommendation to the BOCC on proposed amendments to the UDO that would 42 reorganize the Tables of Permitted Uses in response to the Byrd v. Franklin County judicial decision and modify other 43 sections to ensure consistency within the ordinance. These amendments are scheduled for BOCC public hearing on 44 April 2, 2019.45 46 PRESENTER:Michael Harvey, Current Planning Supervisor47 48 Michael Harvey directed the board to a packet of replacement pages which he mentioned he would review. He 49 advised the board that all motions recommending approval should be considered consistent with the Ordinance 50 Amendment package as modified by the staff. Mr. Harvey quickly reviewed the history behind the amendments which 51 were also mentioned were included in the abstract. He explained that the revised Table of Permitted Uses is intended 52 to give laypeople a way to easily understand what they are able to do with their property. In August of 2017, during a 53 work session with elected officials, the Planning Director, and the County Attorney, staff was advised to abandon the 54 comprehensive listing of every allowable land use and to instead condense land use categories as much as possible in 55 5 D R A F T creating the new table. Mr. Harvey stated the staff had created a fact sheet outlining the changes, pages, and reasons56 why amendments were made to aid the Board in their review.57 58 Mr. Harvey addressed replacement page 25 (A) and explained that the County Attorney’s office had asked staff to 59 include a provision in the Unified Development Ordinance (UDO) for reasonable accommodations for individuals with 60 handicaps. Mr. Harvey explained it was common place to have a provision in the ordinance providing handicapped 61 individuals with opportunities to seek variances from development criteria that could impact their ability to use their 62 property. It had been advised by the County Attorney’s office that Section 2.25, a reasonable accommodation rule, be63 adopted. In reviewing changes, the County Attorney identified a concern relating to not only the granting of variances 64 for reasonable accommodations but also variances, interpretations and Special Use Permits in general. Although 65 there had been sufficient language within the UDO addressing burden of proof, Mr. Harvey informed the board that the 66 Attorney’s office had requested to add specific language which he referred to on page 25 (A) in the variance section.67 Mr. Harvey explained that the recommended language stated the applicant shall have the burden of establishing by 68 competent material and substantial evidence in the form of testimony, exhibits, documents, models, plans and other 69 materials that the application meets the requirements for approval of a variance and furthermore, the applicant shall 70 have the burden of persuasion on those issues justifying the approval of a request. 71 72 Lydia Wegman asked Mr. Harvey to clarify the meaning and he responded that the applicant now has the responsibility 73 of persuading the board that they are correct and that the request should be granted. 74 75 Michael Harvey explained that the language was referenced within applicable State statutes and was beginning to 76 appear in other local government ordinances to help applicants understand what their obligations under the variance, 77 interpretation, and special use permit review processes were. He said applicants have to prove their case to the board 78 and hold persuade members the competent material evidence and testimony offered justified the approval of the 79 request. Mr. Harvey advised that the attorney had an interest in adding the language “burden of persuasion” to Section 80 2.11; Section 2.11.13, dealing with interpretations; and in Section 5.3.2. 81 82 Lydia Wegman questioned the meaning of the phrase and asked what the County Attorney’s interpretation of the 83 phrase was as well. Mr. Harvey explained he only had the ability to explain his interpretation of the phrase, reiterate 84 what had been discussed, and commented that the felt the language was clear in that applicants always had the 85 burden to persuade review board’s they should receive approval for their requests. The amendment merely seeks to 86 add the phrase to the UDO.87 88 Lydia Wegman read from the packet, establishing by competent material and substantial evidence, and stated she felt 89 this covers what is required. She expressed disapproval for the language and found it to be vague and uncommon. 90 91 Craig Benedict stated that applicants only had to explain what they are trying to prove along with items they are 92 submitting. He commented that he didn’t believe an applicant had to go too far in adding an explanation of how the 93 standard is being achieved.94 95 Michael Harvey reminded the board that variance interpretation and Special Use Permits are carried on in a different 96 format than a typical legislative hearing. He explained that the language is designed to ensure there is proper and 97 adequate dissemination of what is expected from applicants with the applicant bearing the burden of proof and with 98 having to persuade to the board that they are correct thereby justifying approval of the request. 99 100 Randy Marshall remarked that decisions should be made based on agreed upon facts, and he disapproved of 101 language found in the packet. He felt the applicant would not have any recourse for not being able to persuade the 102 board on their case and remarked the language would render verdicts based on opinions. Carrie Fletcher agreed with103 Mr. Marshall. 104 105 Michael Harvey expressed that he did not desire to lead the board in any one direction and remarked that it was 106 perfectly acceptable for the board to ask the County Attorney to provide something in writing before acting on any 107 Ordinance Amendment they felt uncomfortable with. 108 109 Lydia Wegman found the remark an intelligent suggestion.110 111 6 D R A F T Carrie Fletcher asked whether the language was leading to applicants having to retain legal guidance. Mr. Harvey 112 informed the board that state law does not mandate an applicant have an attorney nor does the ordinance but stated it 113 to be advisable for applicants entering a quasi-judicial hearing or a hearing requesting a variance observing a fair trial 114 standard to have the advice, counsel, or representation of an attorney.115 116 Carrie Fletcher remarked that from a layperson’s perspective, she felt the language was pushing civilians to have legal 117 representation.118 119 Paul Guthrie commented that it could go both ways and stated it would be difficult situation if a person wanted to 120 litigate and had the means to do so.121 122 Michael Harvey requested for Mr. Guthrie to elaborate on his comment so he could respond adequately and asked 123 whether Mr. Guthrie’s concern was based on appeals or whether it would more difficult to deny projects. Mr. Guthrie 124 responded that he felt there would be a lot of litigation if the County Commissioners don’t state in similar language 125 reason behind an applicant’s denial. 126 127 Michael Harvey reminded the board that both the Board of Adjustments and the County Commissioners is represented 128 by the attorney’s office. He explained the attorney representatives work with their boards to craft decisions consistent 129 with the evidence in the record. Mr. Harvey informed the board that once a public hearing is closed on any Special 130 Use Permit, variance application, or interpretation, the staff can no longer engage with the board and only the County’s 131 appointed legal counsel can engage with them in crafting the appropriate decision based on the Board’s interpretation 132 of the evidence and testimony in the record.133 134 Paul Guthrie commented that it was quite conceivable for a court on appeal to find issue with the persuasion language.135 He stated he found he language to be vulnerable to judicial attack. 136 137 Michael Harvey sought clarification on the boards’ concerns, outlining them follows: 138 1. The board does not understand the rational for including the phrase “ the applicant shall have the burden of 139 persuasion on those issues”. 140 2. The board did not understand the plain meaning or impact of the term persuasion in this context; 141 3. The board wondered if there needed to be a standard specifically outlining what the applicant had to do to 142 persuade the Board of Adjusting or the BOCC an application should be approved;143 4. The BOCC’s review; the implications of appeals during litigation;144 5. The implications of the phrase on the County’s land use planning program; and 145 6. The boards’ concerns regarding the findings of fact in denying or approving an action. 146 147 Lydia Wegman asked to add in, and why it is necessary. She further explained that even though the planning board 148 comes in earlier, a recommendation is still needed on the Special Use Permits and this becomes difficult for the 149 planning board.150 151 Paul Guthrie stated he would feel a little bit better if there was another sentence added to indicate that if the boards 152 feel they have not been persuaded that they would meticulously document which items there were not persuaded on. 153 154 Michael Harvey clarified that he thought something of that nature was already in the ordinance. He acknowledged that 155 the language was not sitting well with the board and stated he was well aware that the board did not understand the 156 ramifications of the language and acknowledged that the board was not comfortable without the attorney providing in 157 person or writing some reason as to why it had to be added. Various members on the board agreed with Michael’s 158 statements. Ms. Fletcher remarked that she was not comfortable with the phrase. Ms. Wegman requested clarification 159 other than other jurisdictions have included this language. 160 161 Paul Guthrie question how burden is measured in litigation. Mr. Harvey acknowledged that this was another area of 162 concern for the board. 163 164 Adam Beeman commented that if all required items were checked off and an applicant had sound evidence, that the 165 boards could still deny their request if they decided they didn’t like the project. He stated there needs to be a goal to 166 7 D R A F T reach for and explained that an applicant should be able to reach for XYZ to get a variance. It should not be based on 167 the ability to convince someone to pass the applicant’s problem.168 169 Randy Marshall added the applicant needs to understand what the boards were not persuaded on to give them a basis 170 for appeal. Adam Beeman stated that he understood Randy Marshall’s comment. 171 172 Michael Harvey reminded the board that every decision by either the County Commissioners or the Board of 173 Adjustment on Special Use Permits, variances, or appeals are automatically appealable within 30 days to the Orange 174 County Superior Court. 175 176 Randy Marshall expressed his desire to have the boards give reason for not being persuaded on an applicant’s case. 177 He stated there should be a responsibility on the basis of the board members who don’t agree to give a reason why. 178 179 Adam Beeman agreed. He expressed that this could pose an undue burden on the average homeowner. He 180 remarked that it would be a burden on an applicant to have to take the case to the Supreme Court of the County and 181 appeal because it didn’t pass.182 183 Alexander Gregory stated he was okay as it was originally written but expressed that there was some confusion with 184 the language upon hearing the concerns of the other board members. He explained that when he originally read the 185 language he understood it to mean that a person could have all their pieces together but that would not mean someone 186 on the board would agree with that person, and so they would have to take it a step further to explain and to try to 187 convince somebody who would be voting on it. 188 189 Adam Beeman questioned what the reason would be for denying an applicant. Alexander Gregory stated that 190 someone could have their own personal reasons for denying the applicant. He again stated that he understood it to 191 mean that they should be prepared even if they have everything in order. 192 193 Michael Harvey resumed his explanation of the amendments. He explained that 25 (B-F), articulated in the table, is a 194 renumbering of sections to make them now compliant with the flow. The next change on page 25 (G) is the same 195 burden of proof language in interpretations. He then moved to Page 29 and explained it was included for consistency.196 He explained that he made a change on page 30 in an attempt to keep the flow of pages correct. Page 29 updates a 197 reference to the provision of the UDO. He explained as pages are added and deleted, citations change so instead of198 5.1.4, it’s now 5.1.3. He stated that the language on Page 30 has been there since the beginning, but he had shown it 199 as existing text, meaning it had not been highlighted in any way shape or form. It is new text and has to be identified 200 as new text, that’s the change and that’s the reason for footnotes. The note will also appear in the master table 201 provided to the board. 202 203 Michael Harvey mentioned that there were other changes to be discussed and continued to Page 56, under recreation, 204 Land Use, camp retreat. He explained that because of changes having to be made to the Assembly Land Use, retreat 205 centers would be split from recreation into assembly. Mr. Harvey explained that retreat had to come out of recreation 206 because of the character and the scope of the use and guided the board to this on page 56. He further explained that 207 they were also seeing the deletion of sweepstakes, cafe and parlor and stated that state law prohibits them. The 208 attorney has decided that if it’s prohibited by state law, to let state law tell people it’s prohibited and illegal. When and if209 state law is ever changes this, an ordinance amendment will have to be done, but there will be a legal basis for 210 establishing a regulatory standard for that land use at that time. He explained that theaters were also being moved as211 it is considered an assembly use. He explained that the board would also notice a renumbering as pages are deleted 212 or moved around. 213 Craig Benedict questioned what a camp was by itself without retreat center. Mr. Harvey responded that a camp is 214 basically like a boy scout or summer camp. Mr. Benedict sought reassurance that it was not an assembly. Mr. Harvey 215 replied, no, and remarked it was a recreation activity.216 217 Randy Marshall inquired if it was similar to Camp New Hope. Mr. Harvey replied that Camp New Hope would be 218 considered a retreat center. Mr. Harvey explained that Camp New Hope was established before the requirement for a 219 Special Use Permit. Per the ordinance, Mr. Harvey said, they have what is deemed to be a de facto Special Use 220 Permit. He explained that the camp is considered to be conforming and further explained that changes don’t impact 221 anybody who had a Class B Special Use Permit for a retreat center in the county. He stated it does not undermine any 222 8 D R A F T of the existing regulatory requirements that would grant the ability for someone to be considered conforming that did a 223 permit in the 60s or 70s.224 225 Randy Marshall asked if conforming meant they would they have to change to be the New Hope Retreat Center. Mr. 226 Harvey replied, no.227 228 Michael Harvey continued to the next change and guided the board to page 57. He spoke on the references to 229 dormitories, fraternities, and sororities and explained that those reference were being deleted because they are either 230 a rooming house or a multi-family land use. He stated they were already covered under the code so there would be no 231 reason to repeat it. Additionally, he explained that dormitories, fraternities, and sororities are also connected to 232 university operations which are required to get Special Use Permits under the code. He stated that there are none in 233 Orange County, so it was being deleted. Mr. Harvey informed that board that he had met with a few commissioners 234 the in the previous week and brought the concerns of airports to their attention. He mentioned that the commissioners 235 liked the notion of deleting the airports from the residential districts but did not find it appropriate to move them into an 236 industrial as recommended. He stated they liked the idea of doing further study to find better ways to handle airports 237 than what’s currently in the code. He brought an additional concern the board and asked them to consider what to do 238 with someone who has a heliport or an airfield as an accessary use on their property. 239 240 Craig Benedict commented that these airports are allowed as accessory use to residential if it is for a private party.241 242 Michael Harvey remarked, yes, and stated that the commissioners he had met with addressed that there needs to be 243 some thought about adopting some minimal standards for those types of activities. 244 245 Michael Harvey moved to page 61 and reminded the board that this was a topic they had touched on. He explained 246 that there used to be two categories wholesale trade durable and wholesale trade nondurable goods which were both 247 permitted in the same zoning districts and added that they are now being combined into one group, wholesale trade. 248 249 Michael Harvey explained the changes to assembly uses and stated that the recommendation is to eliminate the 250 overall category and splitting it out per use. He defined assembly use as a gathering of people for a purpose and then 251 explained the differences between various assemblies, such as places of worship, clubs, lodges, community centers, 252 theaters and retreat centers. Mr. Harvey informed the board that the changes were made to clarify the distinction 253 between the various types of assemblies. He stated that the changes addressed some of the loop hole issues, but it 254 was decided that they needed to rid of the over-arching category and splitting it per use. He addressed the changes to 255 special events as defined in the ordinance and asked the board to note the definition on the table that had been 256 provided. Mr. Harvey pointed out a regulatory standard which had been added into the definition of a special event 257 and informed everyone it had been moved to the appropriate section in the UDO. 258 259 Randy Marshall voiced his concern that anyone could say they were gathering to worship. Mr. Harvey asked him to 260 remember that determinations would be performed on a case-by-case basis, and he then reiterated the definition of a 261 place of worship. He explained that if a person is proposing a land use, the first task would be to determine whether or 262 not that person meets the requirements for what constitutes a place of worship. 263 264 Randy Marshall stated that he could argue that the categories that were just listed are exclusionary as opposed to 265 inclusive. He voiced that the felt this was a loophole being left open. 266 267 Michael Harvey asserted that it would be the totality of all the definitions, standards and framework that would establish 268 the County with the authority to say they are a place of worship and reiterated it would have to be done on a case-by-269 case basis.270 271 Randy Marshall asked whether the Rams club would be considered a place of worship. Mr. Harvey stated that for 272 some people, yes, but it would be considered a club with respect to the construction of the UDO. Randy stated that 273 that was his pointed and commented that it was in the mind of the beholder. Mr. Harvey replied that he understood but 274 stated that it would be a club based on the current definition.275 276 Alexander Gregory remarked that he thought there to enough logic there in the case-by- case basis. 277 278 9 D R A F T Michael Harvey commented that Randy had a valid point but stated there would be larger issues involved if everything279 remained in one central category. He explained it would be difficult to handle and try to make exclusions instead of just 280 splitting it out. 281 282 Craig Benedict commented that he felt as though there was something missing in regard to someone wanting to put an 283 assembly facility for retreat uses in a commercial area. He stated that this type of situation would have previously been 284 captured by the general category. 285 286 Michael Harvey remarked that if the board wanted to add retreat center as a permitted use in any commercial district, 287 they could do so and then staff could incorporate. Mr. Harvey recommended that since the board was already going to 288 ask the County Attorney for direction prior to voting, that they might want to add for the staff to consider allowing retreat 289 centers in commercial zoning districts as well. Mr. Benedict mentioned that they sort of had that and stated he couldn’t 290 think of anything else to call it in the table.291 292 Michael Harvey spoke on special events and mentioned that it was split out. He explained there was now a distinction 293 between rural special events and special events and stated that rural special events by definition have to happen on a 294 farm. He continued to page 69 (A) through 73 and stated there were only formatting changes. He then reminded 295 everyone of the provision he spoke of earlier regarding the burden of persuasion in section 5.3.2. He then moved to296 page 74 which eliminates all the regulatory standards for governing how we approve dorms, fraternity, and sororities.297 He stated 74 (A) had changes in formatting. He briefly spoke of the change performed on page 79 dealing with Class 298 2 kennels and explained any changes that occurred. 299 300 Michael Harvey then guided the board to pages 79 through 83 regarding short term rentals. He said they had lumped 301 everything into term short-term rentals and explained that they had eliminated all the discretionary standards of 302 evaluation per the attorney’s requirements. Additionally, Mr. Harvey mentioned they had eliminated some of the 303 language listed for short term rental large referencing that it had to demonstrate a compliance with parking which was 304 already mandated by the ordinance. 305 306 Lydia Wegman, asked Mr. Harvey if he meant for rentals. Mr. Harvey replied, yes and explained that a site plan would 307 have to be submitted and it would have to demonstrate compliance with the code. 308 309 Michael Harvey stated there has been questions raised about how this impacts Airbnb. Mr. Harvey stated that the 310 current ordinance does not allow for nonhost occupied structures in the residential zoning districts. He stated, if you 311 want to go through a Special Use Permit, you can technically have a non-host occupied structure, but you can’t have 312 an Airbnb. Furthermore, if you don’t have a host then it’s not a short-term rental and therefore is not permitted. In 313 fact, Mr. Harvey stated, it would be a nonhost occupied short-term rental which is not permitted in residential districts314 and that is consistent with the current code. This does not impact the rental of a house for use as a single-family315 residence. 316 317 Randy Marshall, does this knock down the arboretums desire to use that house as an Airbnb 318 319 Michael Harvey conveyed that there would still be existing impacts on the Keith Arboretum from the current code. Mr. 320 Harvey said that it didn’t add any heightened level of complexity to their ability to do that and questioned whether or not 321 the lease allows it to happen in the first place. 322 323 Randy Marshall sought clarification on whether they were proposing that would be an Airbnb without a host.324 325 Michael Harvey confirmed and stated that this knocks that down but commented that he would argue it already 326 knocked down under the current code. 327 328 Patricia Roberts questioned the time difference between renting a single-family home versus being an Airbnb. Mr. 329 Harvey responded that both short term rental small and large talk about rental by the week. He stated they were not 330 likely to get into the policing business to find out how long occupants have rented if onsite and further stated the 331 problem usually arises when the occupant is not home.332 333 Paul Guthrie asked about faculty renting out when they go on a sabbatical somewhere. 334 10 D R A F T 335 Michael Harvey responded this would be the rental of a house as a single-family residence. He then mentioned the 336 facts table provided in the packet. He commented that the goal was not to prevent the rental of housing for use as 337 housing. The goal would be to prevent the conversion of a residence into a mini hotel in an established neighborhood.338 339 Michael Harvey continued on the amendments and guided the board to pages 83, 84, 99 and explained those to be340 just formatting updates. He stated page 100 to be the move of retreat center standards to eliminating retreat as a 341 camp and explained that page 104 deals with theater as it gets moved to assembly. Mr. Harvey stated that page 145 342 describes the assembly uses; the general use standard, setback standards, the size limitations. Then, he moved to 343 page 153 to touch on the retreat center standards in terms of submittal and SUP requirements and explained that the 344 new section 5.18.4. concerning rural special events was not changed. The term theater had now been added, since it 345 was moved from recreation. 346 347 Lydia Wegman asked Mr. Harvey if retreat center remained the same. Mr. Harvey replied, yes, but stated with one 348 notable exception; the deletion of camp sites. In the standards of evaluation for both, he stated there was a standard 349 of evaluation involving a site plan requirement which is why it was moved to submittal requirements for both camp and 350 retreat. Mr. Harvey also conveyed that the subdivision provisions for special use permits and telecommunications 351 regulations would probably be gutted as they are redundant. 352 353 Lydia Wegman sought clarification on why Mr. Harvey thought they were superfluous and asked if they were covered 354 elsewhere. Mr. Harvey confirmed they were in three different sections. 355 356 Michael Harvey guided the board to page 174 and informed them that he definition of assembly use had been altered. 357 He explained that since assembly has been split out and retreat center has been moved to assembly land uses, it 358 would no longer be needed. 359 360 Craig Benedict questioned where wedding fits into assembly uses. Mr. Harvey replied, retreat center. 361 362 Craig Benedict commented that if weddings are retreat centers, then they needed to be in more commercial area 363 locations so people can have a wedding in some sort of hall. Michael Harvey remarked that the board could make 364 that recommendation. He responded to Mr. Benedict and stated he had never heard this comment from him before.365 Craig replied that it had been covered by the whole assembly uses except as listed below and stated it was permitted 366 in multiple areas. 367 368 Lydia Wegman questioned whether there was anything specific about wedding venues anymore. Michael Harvey,369 replied, no, and said it was all covered under the retreat center concept. 370 371 Michael Harvey said that club or lodge, was amended as relayed earlier, as was community center. He moved to page372 182 involving family care facilities and read the recommended definition. He stated that upon further consideration, the 373 County Attorney decided the language should say as defined as under state statute. 374 375 Lydia Wegman questioned if that was the definition. Mr. Harvey replied, yes, and informed them that the new 376 definition would now read as a facility which meets the definition of a family care home and North Carolina General 377 Statute 168. Ms. Wegman inquired if state law already says this, whereas Mr. Harvey agreed. 378 379 Michael Harvey informed the board that they had already seen the definitions for group care and group facility/group 380 home. He continued on to page 197 and 198 which he pointed out was the area where the place of worship definition381 that had been added. On page 199, Mr. Harvey explained a typo in the term recreation vehicle. He then spoke on the 382 modifications listed on page 202 involving retreat centers and then moved to the rooming house definition previously 383 discussed. On page 204, Mr. Harvey mentioned the modifications to the reference of the North Carolina Department of 384 Public Instruction formerly the North Carolina Department of Education. He then proceeded to the short term rental385 and explained his reasoning for deleting the umbrella definition he had previous created. Mr. Harvey then guided the 386 board to the topic of vet clinic on page 210. 387 388 Patricia Roberts asked why it would matter if the dog or cat stayed overnight. Michael Harvey answered that it would 389 depend on where it is permitted in terms of what could be the ancillary impacts to adjacent property owners. 390 11 D R A F T 391 Patricia Roberts commented that she couldn’t imagine having a veterinary clinic that didn’t have overnight 392 accommodations in situations where surgery didn’t go well. 393 394 Lydia Wegman read the definition of a retreat center and asked Mr. Harvey to clarify that was the entire definition. Mr. 395 Harvey remarked, yes. 396 397 Lydia Wegman asked for where information on assembly land use was located. Mr. Harvey explained that assembly 398 land use would be defined in the code and proceeded to read the definition. He stated the definition was modified to 399 eliminate references to wedding venues and referenced the packet. 400 401 Randy Marshall asked if wedding venues would actually appear in the ordinance. Mr. Harvey replied, no, and specified 402 that the reason was because it was not just wedding venues. While some in the community want wedding venues 403 specifically listed so we can regulate them, the impact of a wedding verses a graduation party verses a bat mitzvah is 404 the same. They are all described as a gathering of people for “X” purpose. He explained that instead of regulating 405 wedding facilities, they would regulate the totality of the activity which is the reason for the change in the retreat center 406 definition. 407 408 Laura Nicholson asked Mr. Harvey if it would be possible to separate all the other changes. Mr. Harvey replied that he 409 would not be comfortable advising the board to recommend moving this forward with the items eliminated as the 410 County Attorney specifically asked for them to be included. Mr. Harvey furthermore reiterated that based on the 411 boards’ comments, he understood that the board would not be interested in approving it without further explanation. 412 He then asked the board if they we’re in agreement whereby there was an agreed consensus by several board 413 members. 414 415 Lydia Wegman questioned whether the board should postpone voting until next month or if it was something that could 416 be addressed with the County Attorney and then to the board through mail. Mr. Harvey conveyed an urgency in 417 completing the project, but stated he was sensing the board to be unhappy and unlikely to act without further 418 explanation. 419 420 Lydia Wegman replied that that is certainly how she felt about the burden of persuasion language. 421 422 Carrie Fletcher I would have an issue finalizing this unless I’m clear on that particular item. I think that’s a strong 423 enough decision maker that I would like clarification on that. 424 425 Michael Harvey remarked the litany of concerns would be recorded in the minutes. 426 427 Carrie Fletcher asked if conversations and approval could be done by email so there was no time lost. Mr. Harvey 428 stated he didn’t see a way to get an approval via email. Mr. Harvey voiced a concern that everyone might not come to 429 a consensus causing there to be a holdup.430 431 Carrie Fletcher asked the members of the board if everyone would be okay with it if the sentence was struck. Ms. 432 Wegman replied that she would want to know why the attorney was comfortable striking it having felt strongly about 433 putting it in. 434 435 Michael Harvey reminded the board that they could recommend approval as amended and then further amend that the 436 term burden of persuasion get removed. He mentioned to them that he thinks the County Attorney may show up that 437 public hearing and say the language has to be added back in. 438 439 Carrie Fletcher questioned whether the burden of persuasion language could be made clearer. She even suggested 440 possibly listing it out. 441 442 Michael Harvey replied that he didn’t disagree but pointed out that it could possibly be referred right back to them to 443 modify language. Mr. Harvey addressed their unease and reiterated no one was happy with the burden of persuasion 444 based on it’s not understood, they don’t like it, they don’t feel it’s been adequately explained, and they want the 445 attorney to give more understanding as to why it’s needed. 446 12 D R A F T 447 Alexander Gregory commented that the likes the point that it makes. 448 449 Randy Marshall asked whether there was pressure to complete this. Mr. Harvey stated, yes. 450 451 Alexander Gregory stated his faith in the attorney’s judgement but questioned if they attorney would make the final call 452 or if it would make a full circle.453 454 Michael Harvey provided the option that they could technically adjourn the meeting to a day time certain reconvene in 455 two weeks in order to get the attorney’s comments.456 457 Adam Beeman asked whether they would have a chance to discuss their concerns with the attorney or just receive 458 comments. Mr. Beeman voiced his desire to have a discussion with the County Attorney. Michael Harvey replied that 459 they could request the attorney be present and reiterated the option of reconvening to March 20 th.460 461 Paul Guthrie spoke on burden and stated it could only be valued by the vote of the commissioners. Mr. Harvey replied 462 that Mr. Guthrie was correct. Mr. Guthrie described it as a self-serving definition. Mr. Harvey stated it certainly would 463 be up to the Board of Adjustment members and Board of County Commissioners to determine if that burden had been 464 met. 465 466 Paul Guthrie question why it was not said that way instead of the other way around. Mr. Harvey, acknowledged that it 467 was a good question but stated he did not have an answer.468 469 Michael Harvey asked if everyone would be available in two weeks and asked for confirmation that he was hearing that 470 it was the board’s interest to adjourn the meeting to March 20th at 7:00 p.m. in order to ask the attorney to be present 471 to answer questions or if absent, to provide sufficient documentation articulating why burden of persuasion is 472 necessary. 473 474 Lydia Wegman clarified that they not only wanted a statement, but an addition to the ordinance clarifying the meaning 475 and why he felt compelled to add it.476 477 Michael Harvey asked whether he was also hearing that the board is interested in modifying the UDO to expand retreat 478 center activities in commercial districts. 479 480 Adam Beeman remarked he would motion that. 481 482 Lydia Wegman stated she would agree to that. 483 484 Carrie Fletcher stated she felt more strongly about the first than the second. 485 486 Michael Harvey questioned whether that was the interest of the board members.487 488 Lydia Wegman stated she would support that.489 490 Alexander Gregory stated he agreed.491 492 Michael Harvey asked it there was a motion.493 494 Adam Beeman stated that he motioned that they be allowed in the commercial districts.495 496 Michael Harvey gathered clarification on the motion from the group and noted that the board’s desire to: 497 498 1) Adjourn till March 20 th at 7:00 p.m. meeting in the Planning Conference Room room 204 to have the County 499 Attorney present and discuss why and potential changes to address the concern of what the term burden of 500 persuasion means. 501 502 13 D R A F T 2) To have staff include additional opportunities for retreat centers in commercial districts. 503 504 Lydia Wegman stated she would second.505 506 Carrie Fletcher asked if that would finalize everything Mr. Harvey needed. Mr. Harvey agreed, but then responded that 507 it would depend on the board’s comfort with the attorney’s response.508 509 Lydia Wegman commented that they trusted Mr. Harvey would express to the attorney their discomfort with the 510 language as it is. 511 512 Michael Harvey said he understood both the attorney’s rationale and the boards’ concerns. He stated he felt he had 513 provided the best explanation he could offer but understands that they would like to have a discussion with the person 514 recommending the language. 515 516 Lydia Wegman expressed that if the attorney feels persuaded that the language is necessary that he gives some 517 further thought to expressing it more clearly so that the standard is clearer to applicants, the BOCC, and Board of 518 Adjustment 519 520 Carrie Fletcher commented that that is the reason we have a citizen board, so citizens are represented, not just 521 attorneys. 522 523 Alexander Gregory asked if either Mr. Harvey or Mr. Benedict foresaw any issues that could arise with the burden of 524 proof or if they had heard of any issues arising from the other jurisdictions currently using the language. Mr. Harvey525 replied, no, and reassured them that if he couldn’t dissuade their concerns he would provide them with an opportunity 526 to have their concerns addressed. 527 528 Craig Benedict provided an example for the use of burden of persuasion to the board. 529 530 Adam Beeman expressed his disapproval with the language and found it to be unfair. He expressed that the situation 531 should be binary and not at the whim of person listening to the story, nor should a person have to pay more money to 532 fight their cause when they may not be financially able to do so.533 534 Lydia Wegman asked Mr. Harvey if there needed to be a motion and a vote.535 536 MOTION by Adam Beeman to adjourn this meeting until the attorney can come back and talk to us on March 20 th at 537 7:00 p.m. in this room on the 2nd floor of the Planning Department and to add the wedding retreat status to the 538 commercial districts. 539 540 Lydia Wegman requested to add that the board would like an explanation from the attorney related to the burden of 541 persuasion language and we would prefer to see additional language explaining what is meant if he is persuaded that 542 that language is necessary. Seconded by Randy Marshall. 543 VOTE:UNANIMOUS544 545 Tina Love asked Mr. Beeman if he accepted the addition, whereas Mr. Beeman accepted.546 547 AGENDA ITEM 8: ADJOURNMENT548 The meeting was adjourned by consensus. 549 550 551 552 Lydia N. Wegman, Chair553 14 D R A F T MEETING MINUTES1 ORANGE COUNTY PLANNING BOARD2 MARCH 20,20193 SPECIAL MEETING4 5 MEMBERS PRESENT: Lydia Wegman (Chair), At-Large Chapel Hill Township Representative; Kim Piracci, At-Large; 6 Adam Beeman, Cedar Grove Township Representative; Carrie Fletcher, Bingham Township Representative; Patricia 7 Roberts, Cheeks Township Representative; Paul Guthrie, At-Large Chapel Hill Township; Randy Marshall, Bingham 8 Township Representative; Hunter Spitzer, At-Large; David Blankfard, Hillsborough Township Representative; 9 10 MEMBERS ABSENT: Buddy Hartley, Little River Township Representative; Laura Nicholson, Eno Township Representative; 11 12 STAFF PRESENT: Craig Benedict, Planning & Inspections Director; James Bryan, Staff Attorney; Michael Harvey, Current 13 Planning Supervisor; Tina Love, Administrative Assistant III14 15 AGENDA ITEM 1: CALL TO ORDER 16 Chair Lydia Wegman called the meeting to order. 17 18 AGENDA ITEM 2: PUBLIC CHARGE19 Chair Lydia Wegman waived the reading of the Public Charge20 21 AGENDA ITEM 3: CHAIR COMMENTS22 23 AGENDA ITEM 4: UNIFIED DEVELOPMENT ORDINANCE (UDO)TEXT AMENDMENTS –REORGANIZATION OF TABLES OF 24 PERMITTED USES –To continue review of and make a recommendation to the BOCC on proposed amendments to the 25 UDO that would reorganize the Tables of Permitted Uses in response to the Byrd v. Franklin County judicial decision and 26 modify other sections to ensure consistency within the ordinance. These amendments are scheduled for BOCC public 27 hearing on April 16, 2019.28 29 PRESENTER:Michael Harvey, Current Planning Supervisor30 31 Michael Harvey: I’m going to make a very brief summary. So obviously, you have an abstract outlining why we are here 32 this evening. There are tweaks that have been made to the packet and I want to review them very quickly. You also have 33 a revised attachment one that spells out the changes that have occurred within the proposed table. At your last meeting 34 there were concerns over the term burden of persuasion and what it meant. There were questions asked which I 35 forwarded to the attorney’s office. I’ll let Mr. Bryan speak to those in a moment. There was also a request to allow retreat 36 centers in additional non-residential zoning districts as permitted use, so you’ll note from the abstract we’ve allowed them 37 within the neighborhood commercial, community commercial, general commercial, Economic Development Buckhorn low 38 intensity, Economic Development Eno low intensity, Economic Development Hillsborough office retail districts at the 39 request of the Planning Director. There are tweaks to Section 2.10.3 and this is where we start getting into the discussion 40 on modifications adding language associated with an applicant’s burden of proof. As pointed out at the last meeting the 41 sentence reads as follows, ‘applicants shall have the burden of establishing by competent material and substantial 42 evidence in the form of testimony, exhibits, documents, models, plans and other materials, that the application meetings 43 the requirements for approval of a Variance it’s application meets’. So that is in Section 2.10.3 and 2.11.3 what I would 44 like the Board to do before we get into the discussion of burden of persuasion, because regardless of whatever happens 45 with burden of persuasion, I’d like there to be a motion to accept the amendment to Section 2.10.3 and Section 2.11.3 46 replacing meetings with meets. 47 48 Randy Marshall: So moved49 50 MOTION by Randy Marshall to accept the amendment to Section 2.10.3 and Section 2.11.3 replacing meetings with meets. 51 Seconded by Carrie Fletcher. 52 VOTE:Unanimous53 54 Michael Harvey: I would also like there to be a motion acknowledging and accepting the changes to the Table of55 Permitted Uses that you saw last month to include Retreat Centers in the districts I named.56 15 D R A F T 57 Randy Marshall: So moved58 59 MOTION by Randy Marshall to acknowledging and accepting the changes to the Table of Permitted Uses to include Retreat 60 Centers in neighborhood commercial, community commercial, general commercial, Economic Development Buckhorn low 61 intensity, Economic Development Eno low intensity, Economic Development Hillsborough office retail districts. Seconded 62 by Hunter Spitzer63 VOTE:Unanimous. 64 65 Michael Harvey: Let me introduce Mr. James Bryan of the county attorney’s office to discuss burden of persuasion.66 67 James Bryan: I’m a staff attorney here in Orange County. Michael mentioned to me that there were some particular 68 concerns you have been wrestling with regarding the Table of Permitted Uses. I drafted a memo. The last two pages are 69 the actual questions that Michael forwarded to me with the answers, but I thought it would be easier to just work from the 70 beginning. Let’s start at the beginning of why staff came up with changes to the Table of Permitted Uses. There was a 71 court case in 2015, Franklin vs. Byrd, in which the state said all the local governments along with the state have been 72 doing this wrong for a long time. Zoning is a derogation of property rights and anything ridding of somebody’s property 73 rights is a higher standard than normal stuff, so you have to be clear when you do that. Our current UDO is written 74 similarly to many jurisdictions in the state where the state says we’re going to tell you what you can and can’t do. The 75 Byrd court said, no, you don’t tell people what they can do, it’s assumed they can do whatever they want, and you have to 76 tell them what they can’t do. You have to very clear and when there’s ambiguity it will go in favor of the property owner. 77 You can think of the Table of Permitted Uses as things you can and can’t do. There is also a middle ground that says 78 these are the different categories and we’re going to bump you in to whatever is closest to it. If you want to prohibit 79 something, you have to be clear about it. An example of how the UDO was constructed for that is with the definition of80 large daycare homes which provides daycare for more than 5 but fewer than 16 children within a residence. The idea was 81 it was regulating within the definition; 17 children wouldn’t be captured by that definition since it’s 5 to 16. Under the 82 current UDO if you have 17 children in the home, we were presuming that you weren’t allowed because you didn’t fall 83 under the definition. Byrd flips that and says if you’re not a large daycare home, which you are not with 17 kids, then 84 you’re not regulated and not listed in the Table of Permitted Uses so it’s assumed that you can go about your business. 85 Group homes have always been a difficult subset of Land Use Categories because there’s state and federal laws about 86 group homes like halfway homes and addiction centers. Both the state and federal have particular regulations for group 87 homes through the ADA, Americans with Disabilities Act and through fair housing. The problem is they overlap. Under the 88 old system where you said, I’ll tell you what you can do, it’s okay to regulate them like that. With this one, it’s going to be89 tough to have a very explicit set of uses for that. A lot of other jurisdictions have added something to their development 90 ordinance which you can call reasonable accommodation which the law requires for ADA and fair housing. It’s a great 91 time to address that because it also addresses the idea that we want broad categories, so they are regulated. The federal92 and the states are saying you can’t be so broad with these protected classes, so we’re being broad but also giving them an 93 escape of reasonable accommodations. Durham and Ashville have adopted this, and now staff is proposing this. There94 are different ways to approach this. You could have very precise definitions of land use categories to meet state and 95 federal guidelines, or you could develop your own reasonable accommodation section. It is both common and useful to 96 steal from other jurisdictions as Durham has already adopted this so go ahead and steal from them. This helps serve two 97 purposes; the first is saving staff time and the other is when something is complex and can lead to litigation, you look to 98 the court to see whether it is applicable to you. Durham and Ashville has been untested so it’s more of a prospective use. 99 Having it match as closely as possible influences the reliance on it. Durham’s reasonable accommodation has a section 100 on burden of proof which includes burden of persuasion. When first reviewed with Michael, he had eliminated that section,101 and I told him if there’s any change that’s going to impact how it’s relied upon later, maybe it makes a difference, I don’t 102 know? Michael stated he would put it back in, but by putting it back in, it doesn’t line up with the rest of our UDO as the 103 rest of the UDO has different processes for Special Use Permits, Appeals, Interpretations, and others. It talks about what 104 is basically burden of proof, but it doesn’t use the same words in the same way that Durham did for theirs. When reading 105 our UDO, it has different words for the same process. There’s construction, the way the courts are going to read this when 106 reviewing it which says words have meaning and purpose and when they are done differently in different sections that’s 107 intentional for different purposes. So, staff met in the middle and used the Durham one, I think verbatim, and then 108 changed the other sections of the UDO. It’s important to know because there’s a context of it that the words have meaning109 and has to be the same in different places. The first, is the construction in which words have their normal every day 110 meaning and unless defined will be from the dictionary. I would believe that persuasion here has to be looked at in the 111 context of that it is usually used in a board’s determination for a quasi-judicial determination. I don’t think you have a 112 16 D R A F T burden of persuasion for a staff level determination in the UDO. You are probably going to rely on the fact that in the 113 statutes the language talks about substantial evidence where you need competent, material, and substantial evidence 114 sufficient to make your proof. Material is something related to the thing at hand and competence is that which could be 115 used in a court, it’s reliable. Substantial is that which a reasonable mind would regard as being sufficient to support a 116 specific conclusion which can be found on the third page under 1, the last sentence. Substantial evidence is that which a 117 reasonable mind would regard as being sufficient to support a specific conclusion. This to me is a fairly low bar. 118 Reasonable minds can disagree, but there are some things that are just not disagreeable. It is what a reasonable mind 119 would regard as being sufficient to support a specific conclusion. The next question forwarded by Michael is, the need for 120 language in the question given; how the UDO is structured with respect to Variances, Interpretations, and SUPs. This is 121 again the idea that discrepancies can have major impact. If you say staff such as Michael and Craig Benedict in multiple 122 sections and then say staff such as Michael, this is construction and there’s an omission. Craig was left off on that last 123 one and you might say Craig hadn’t been hired when that part was drafted, but the court upon reviewing it will see it as a 124 purposeful omission, something that was meant for Michael but not Craig. This is the reason the different sections should 125 be as uniform as possible. The greater the variance between the different sections the more ambiguous and less likely it 126 is to be upheld. The third concern; Board members are concerned that requests could be denied because someone 127 decides even with expert testimony in the evidence you have not convinced me. By statute, everything has to be based 128 upon competent material and substantial evidence and local rules have to be followed. It can be tinkered with to create 129 more procedures and processes and can be exhaustive in description, but you run the risk of not doing it perfectly and 130 anything in the definitions will be upheld. If you don’t say anything, you can likely rely on the statutes and precedent. 131 132 Lydia Wegman: I don’t have a problem with the burden of proof, but what is puzzling to me is that the applicants have the 133 burden of the competent material, substantial evidence, what meets the requirements for approval of the variance. I don’t 134 understand what the burden of persuasion language adds, and it seems to confuse the issue. Although Durham has put it 135 in, it has not been legally tested, and is not persuasive to me.136 137 James Bryan: My job is to work for the Board when they’re considering this, that it is legally sufficient, and that they’re 138 aware of the risks. My concern is that you all understand this and understand the risk involved. 139 140 Lydia Wegman: I’m not understanding what the risk is of not having the sentence, further the applicant shall have the 141 burden of persuasion on those issues. 142 143 James Bryan: If you don’t have Durham’s verbatim, you can’t rely on it. 144 145 Lydia Wegman: But Durham’s has never been tested, this is their creative approach. 146 147 James Bryan: Right. 148 149 Lydia Wegman: What if ours was tested first? 150 151 Hunter Spitzer: Do you know what they have done to justify doing this? 152 153 James Bryan: No. 154 155 Carrie Fletcher: So, we are just following them just because? 156 157 James Bryan: No, I don’t believe so. One reason we are following them is because staff has been working on this for 158 years. We could come up with a whole new one but then Michael would have to come up with all new language, it would 159 have to be reviewed by me, he would have to bring to you, and it would be a longer process. This is a quick process, and 160 I’ve told Michael that what Durham does is legally sufficient. 161 162 Lydia Wegman: What would make it legally insufficient to leave out the sentence about the burden of persuasion. I 163 understand you to say that we are just going to follow what they are doing. 164 165 Hunter Spitzer: Why it is insufficient without the burden of persuasion, it is because then we can’t rely on their standard?166 167 James Bryan: It is not legally insufficient. 168 17 D R A F T 169 Lydia Wegman: It would not be legally insufficient if we deleted that sentence, is that correct?170 171 James Bryan: Yes. 172 173 Lydia Wegman: I understand why you need a statement about burden of proof and where it falls, but it’s that last sentence174 that’s hanging me up. 175 176 James Bryan: I would encourage you to allow me to explain burden of proof, burden of persuasion, and burden of 177 production. It’s one thing to think it’s legally sufficient so we can do it, but we should all have our own reason. If I had my 178 way, we would just rely on the statutory language, but that is not how our UDO is set up. Our UDO is hundreds of pages 179 reiterating and expanding upon the statutes. We talk about burden of proof, but we don’t use those words so much and 180 use the statutory language some but it’s really a modification of everything. Durham has their own modification, different 181 but fairly similar. The burden of proof is an umbrella term that is usually broken down into burden of production and 182 burden of persuasion. Production could be the tangible items,the witness or the documents, and the persuasion could be 183 the arguments that support that. It could also be in different context that the burden of production is when the burden 184 shifts. If you were in civil court in the state of North Carolina, you would file a lawsuit with the first motion of summary 185 judgement. You would have a hearing to ask the judge to throw out the case just based upon what you have because you 186 don’t need a trial. This has a different standard for it than a trial. There you have a different burden of production than you 187 would have at the trial. In that context, it has a different meaning, so you have to look at what you have here. I think what 188 Durham does is fine. It is a little wordy, not very user friendly, and has too much legalese, but I don’t believe ours to be the 189 gold standard either. There are hundreds of pages in the UDO and there are a lot of things that I don’t think are best 190 practices, but if it’s not being changed right now it has opened up a Pandora’s box to mess with everything. By peeling 191 away at the UDO, you bring up other issues and that’s how the reasonable accommodation came in. I think the staff has 192 done a good job about addressing the problems that came up and the next thing was this burden of persuasion and how to 193 get it to either to match Durham’s or to meld with ours. 194 195 David Blankfard: In our UDO is there a definition for burden of persuasion? When I looked it up, there is an article from 196 Law Cornell that says the definition for burden of persuasion. Can we have that put in as this is what this means, along 197 with the need for factuals, information, and for it to be presented?198 199 James Bryan: Yes, but I recommend against it. It makes sense to clarify, but if you have a definition of it, you are defining 200 a term used by Durham and Durham might define it differently and you therefore lose that benefit from it. If you are silent 201 then you could say, yes, that is what we meant. I think you are not at a risk when you say, yes, that is what we meant 202 because I think burden of persuasion and burden of proof is so well established in the law that is it competent, material, 203 substantial evidence for the standards found in the UDO.204 205 Hunter Spitzer: I am still confused with how burden of persuasion is distinct from burden of proof. How is adding 206 persuasion something more than just burden of proof? What does it add that we wouldn’t have without it, and what makes 207 that different than just the regular burden of proof defined in case law?208 209 James Bryan: I think what I am hearing is that you’ve added that the burden of proof is broken down into production and 210 persuasion. Production is the documents and persuasion is the arguments. In the UDO, we are explicit that the burden is 211 on the applicant to produce the documents but didn’t say anything about the arguments. It was implicit and this is making 212 it explicit. 213 214 Hunter Spitzer: This definition is only added in 2.10.3 and 2.11.3?215 216 Michael Harvey: No, it was added to 2.10.3, 2.11.3, 5.3.2, the sections dealing with Variances, Interpretations and 217 Special Use Permits. 218 219 Hunter Spitzer: Okay.220 221 Carrie Fletcher: Part of the comments were to keep it so the average person could do it on their own without legal 222 assistance and to keep it cost effective. You understand the terminology, but the average person may not and therefore 223 you are going to end up requiring the applicant to hire legal help.224 18 D R A F T 225 James Bryan: I understand that, and I think you are defeating the purpose if you don’t expand it. It’s 600 pages and not 226 user friendly to begin with. If you were to leave the burden of persuasion out and leave it implicit, then those wily attorneys 227 are going to be only ones able to pick that out while the average person wouldn’t look for the loopholes. This is closing the 228 loopholes and making it harder for attorneys to get around the system. 229 230 Randy Marshall: This seems to create loopholes. If there is no concrete criteria for persuasion, any attorney can 231 challenge not being persuaded when there is no criteria or definition for persuasion. It is left up to the governing board to 232 say, whatever you put out there, I am not persuaded. It provides an undue decision-making authority on the governing 233 board who rules. I would prefer to see Orange County go in it’s own direction and then if there’s a problem with that, it will 234 surface. I can’t see that someone would come and say they will take us to court because we didn’t add the phrase.235 236 James Bryan: Either John or I are at the boards and we would advise against those arguments. The enabling statutes 237 say that someone has to have substantial material and competent evidence and case law indicates that once you have 238 that you have a right to the permit. That is the burden of proof. The different parts of it about the production of documents 239 and persuasive arguments are subparts to that. 240 241 Adam Beeman: I have applied for permits in this County since 2008, and I just don’t see is as being a fair process to 242 someone who can’t afford deep pockets to get out of it. If you just scratch persuasion off, I am happy. But you are telling 243 me I have to persuade you yet don’t give me any concrete steps to hit. That is a problem for me. It seems objectified. I 244 read your paragraph that if I provide all of this stuff then I deserve it, so then scratch out persuasion because I have 245 accomplished all of that. Why do I have to persuade you? If I come in and present my evidence and testimony, I have 246 either persuaded you or not. 247 248 James Bryan: It is a problem with semantics, but I am telling you what the law says. The law says you are always 249 persuading the Board. The Board has discretion. 250 251 Adam Beeman: That is my problem. It seems like a backdoor to say no to any project regardless if I qualify or not.252 253 James Bryan: It can’t be that. 254 255 Adam Beeman: It sounds like it. I am a layperson not a legalese, and it doesn’t make sense to me. When I read it, it 256 sounds like you are discouraging me from doing it. I am at the mercy of presenting my case instead of handing you the 257 facts. 258 259 James Bryan: The facts aren’t the facts.260 261 David Blankfard: I have an example of the facts aren’t the facts. I was on the Board of Adjustment and we had an 262 applicant come in and say they wanted to have a kennel put in. They had their own realtor come in and say it’s going to 263 maintain or enhance their property, but the neighbors had another expert say, no, it is not going to. We had to pick 264 between the two on who was most persuasive. 265 266 Randy Marshall: Persuasive or factual? 267 268 David Blankfard: They were both qualified but just had different opinions.269 270 Michael Harvey: They drew different conclusions from the facts.271 272 Adam Beeman: And that is the problem with persuasion that I have. Mr. Harvey mentioned earlier that any time you go 273 for these permits, you would be advised to have a lawyer. You are setting me up right out of the gate to have to spend 274 money. 275 276 Craig Benedict: I don’t know if this is an operable solution. One suggestion was to put a definition and James said 277 probably not. Sometimes in state construction of statutes there are some unknowns and what is done later is they ask for 278 an attorney general opinion on what that really means. Could the attorney’s office put an attorney’s opinion of how we 279 operate that burden of persuasion in an argument and explain? If we could get some sort of attorney opinion outside of it 280 19 D R A F T that says this is what we mean by the argument. This is a typical argument that should go with the proof to have the 281 whole package; the production, the argument, and the overarching burden of proof. 282 283 Randy Marshall: This hasn’t been in there before. How we have suffered by not having this clause in our UDO? 284 285 James Bryan: There’s always the potential of litigation for ambiguity or not following local ordinance.286 287 Randy Marshall: But we have not had any challenge up to this point that would seem to suggest that we to have this in 288 there. 289 290 James Bryan: To my knowledge, we have not. 291 292 Randy Marshall: How do you define reasonable? 293 294 James Bryan: Up until that last clause, I think that’s spot on. Going back to David’s example regarding the kennel. David 295 and his co-members on the Board had to vote, and one of them could have said I think it’s going to decrease the value296 while four of them could have has said it would increase the value. If they give the applicant the permit and it gets297 appealed to Superior Court, the court will review the decision and ask if they had competent material and substantial 298 evidence. If the applicant did, then the court would find in their favor. It is a discretionary decision that the Board is299 allowed to make. 300 301 Randy Marshall:. If we allow the clause to stay, what prevents us from adding another clause that says whoever is not 302 persuaded has to provide us with the reasons they are not persuaded? 303 304 Michael Harvey: That already does happen. 305 306 Randy Marshall: You have to put it in there so whoever reads it has it concretely in front of them and it’s not implied that 307 they have it. If someone says they are not persuaded, after the burden of proof has been met, I think they should have an308 obligation to the applicant to delineate the reasons why they are not persuaded which provides recourse to contest the 309 decision preventing them from getting what they are seeking.310 311 Kim Piracci: Is this is one issue we have tonight? 312 313 Lydia Wegman: Yes.314 315 Kim Piracci: I’m a gemologist; and at some point, it’s not up to me to give a gemology lessons to my clients if that person 316 has hired me for my expertise. There’s a hang up on the word persuasion, and he has said several times that it is not the 317 legal standard. The legal standard is this other thing. These three professionals are kind of in agreement that these 318 wordings should be in here and said it’s an improvement over what we had. Michael has said it’s already if you are not 319 persuaded you have to say why and yet it seems to keep going back and forth. At some level, we have to trust our paid 320 professionals and that’s what I would like to do at this time. I don’t see an end to this discussion. Even though I get your 321 point, I trust him because he’s a legal expert.322 323 Adam Beeman: I don’t think we should be making it more difficult for normal people to understand and go through the 324 process. You are making it to the point where I have to hire a lawyer to do this so they can interpret the law for me. 325 326 Kim Piracci: Is it not already that way? 327 328 Hunter Spitzer: From precedent it seems like this is already the expectation. It was an implied expectation that the 329 applicant would have the burden of persuasion and now we are putting it into concrete text. If you are going for a Special 330 Use Permit or a Variance you will probably need a lawyer anyway, so I believe the process is the same, and I don’t think 331 this makes it any more difficult if you already have a lawyer.332 333 Adam Beeman: No, but it can discourage someone from doing it in the first place. We can vote, but we will obviously we 334 will not get anywhere with me.335 336 20 D R A F T Lydia Wegman: Where you say the applicant shall have the burden of persuasion on those issues. What issues are you 337 referring to? If I’m understanding correctly James, you’re trying to say the first sentence is about the burden of production 338 and the second sentence is about the burden of persuasion?339 340 James Bryan: I don’t have it in front of me. 341 342 Lydia Wegman: When you were drawing the distinction, you were saying the burden of proof consists of the burden of 343 production and the burden of persuasion. 344 345 James Bryan: I believe the first sentence was what’s currently in our UDO and what I believe is the definition of burden of 346 production. 347 348 Lydia Wegman: We have this new burden of persuasion language which was not there before with reference to issues, but 349 the first sentence doesn’t actually reference specific issues. 350 351 James Bryan: It should reference the standards for whatever section is applicable. 352 353 Lydia Wegman: It’s confusing for an applicant to know the issues. If we are going to keep the burden of persuasion 354 language, I think it needs to be clarified. 355 356 James Bryan: It might have been a copy and paste from Durham where it should have been specified. 357 358 David Blankfard: Since burden of persuasion is a legal term that is not quite obvious to laypeople, is there a way that we 359 can italicize it so people can Google “burden of persuasion” as opposed to Googling each word, because it means a whole 360 host of legal implications. 361 362 James Bryan: I always recommend that ordinances be unaltered and just plain, simple rules. At 600 pages it will never be 363 user friendly. What you do then is create forms and pamphlets to educate the public. I think forms like the application, a364 fill in the blank type of thing, along with pamphlets. 365 366 Kim Piracci: Does Michael have to go back and correct or improve that imperfection that you brought up? 367 368 Michael Harvey: You don’t want to know what Michael is thinking right now. 369 370 Kim Piracci: Can we call this to vote or do we have to come back for it because there’s an imperfection? 371 372 James Bryan: I would always advise against coming up with language on the spur of the moment, but if you were to say 373 relevant issues I think that clarifies it. It’s one word and describes the issues. 374 375 Michael Harvey: I’m not signing off on that. I am not comfortable with that suggestion at this time. 376 377 Kim Piracci: So, we can’t vote on this tonight, anyway? 378 379 Lydia Wegman: We can vote on the language as it sits before us. 380 381 Michael Harvey: This was drafted after a 45-minute discussion between Mr. Bryan and myself to address concerns of legal 382 sufficiency. 383 384 Craig Benedict: I like the brochure idea or something that explains how we implement this. If we cannot put it as a 385 definition with an elaboration of it, which isn’t being suggested, then the language as it is would be useable with a 386 brochure. This would explain what we are trying to achieve. 387 388 Michael Harvey: Are you going to come up with a brochure? 389 390 Lydia Wegman: The brochure also isn’t the standard of court with review. It could be helpful to applicants, but it won’t 391 address the question if it were challenged. The brochure wouldn’t be admissible. 392 21 D R A F T 393 Craig Benedict: The brochure would be a help to the customer. 394 395 Lydia Wegman: It’s a good idea but doesn’t address our comfort with UDO language. 396 397 Craig Benedict: I agree. 398 399 Randy Marshall: Before we vote, I am going to say anything with the burden of persuasion language I’m voting against. 400 I’m not persuaded that we have to have it because Durham had it. We’ve never had it in here and it’s never been a 401 problem. 402 403 Paul Guthrie: Has any court of competent jurisdiction defined what we’re now saying seems to be a problem? 404 405 James Bryan: I haven’t looked. It’s pretty well settled law because the statute is explicit about competent material and 406 substantial evidence. What is substantial has been litigated extensively but questioning the very foundation has not.407 Franklin vs. Byrd is how this came up. There is always a chance that the foundation gets torn up, but this is how it’s been 408 going for a long time. 409 410 Paul Guthrie: What worries me is the turmoil that might occur over trying to justify and accept these definitions. You may 411 find that the rulings will take on and destroy further protections than we have and not just those under the court’s view at 412 that time. It seems like an issue that is one of those that can’t be solved simply and depending on the case that comes 413 forward that case may be awarded for the wrong part of information but set the precedent for all the rest. Is there any way414 to avoid that and still maintain the standard that Michael is trying to justify? 415 416 James Bryan: I don’t think that there’s any way to fully avoid it. The law is an evolving thing. You can be conservative in 417 your approach by seeing what the common approach is and what is most legally defensible.418 419 Lydia Wegman: If we take a vote, can we vote on whether we approve or disapprove this language? I think several of us 420 are uncomfortable with the second sentence, but not the first. If we were to vote on that, can this go forward to the Board 421 of County Commissioners? 422 423 Craig Benedict: You can vote with both sentences or one; it’s your recommendation. The Commissioners will see your 424 recommendation and vote for or against it.425 426 Lydia Wegman: I’m trying to say I think we can take a vote and move on beyond us to the Board of County 427 Commissioners. 428 429 Michael Harvey: I think the Board just needs to take action as it sees fit. 430 431 MOTION by Hunter Spitzer to approve the Statement of Consistency as contained in Attachment 2 and to approve revised 432 UDO text amendment package in contained in Attachment 3 and refer the Board of County Commissioners to our 433 concerns with the language under the sections discussed this evening and on March 6, 2019 but to approve the document 434 as it stands. Seconded by Kim Piracci435 436 Lydia Wegman: So, basically you are voting to approve it but just advise them that we had some concerns.437 438 Hunter Spritzer: Yeah. 439 440 Carrie Fletcher: I would like to know what your feeling are, I would like to know. 441 442 Michael Harvey: I quite frankly feel that there are some statements that have been made here tonight that are inconsistent 443 with facts and how this language was added. That’s very unfortunate. I think that there is and has always been a burden 444 of persuasion for an applicant engaging in a Variance, Interpretation or Special Use Permit. That is just simple fact. An 445 applicant has the obligation to persuade whatever Board he or she is going before that they are correct and that the 446 information they are providing demonstrates the project complies with applicable standards. How they persuade that 447 Board they are correct is with the submission of competent material and substantial evidence in the form of testimony, 448 22 D R A F T exhibits, documents, models, plans and other materials that the applicant is intending to use to persuade whatever board 449 the request meets the requirements for whatever, Variance Interpretation or Special Use Permit. I think that James’s 450 concern about establishing references to this existing burden, while some may believe is implicit in the ordinance, that the 451 specific language needs to be added was reasonable which was why I added it. The fact that you all don’t agree, that’s 452 your prerogative but some of the comments made about how this language got in here and what my purported motives are 453 is a little unfortunate and somewhat insulting. 454 455 James Bryan: Wait, from me?456 457 Michael Harvey: From the group.458 459 James Bryan: Oh, you can clarify if I was wrong, if I misspoke.460 461 Michael Harvey: This language was put in there to address a concern over legal sufficiency and after 45 minutes of you 462 and I coming to an understanding of what those concerns are, I thought what was crafted was reasonable. I don’t 463 necessarily believe this was added….it wasn’t something that I thought was 100% necessary to add to begin with which is 464 why you and I had 45 minute of discussion on it. I understood you concern and attempted to address it because part of 465 my role with this project is to address concerns over legal sufficiency.466 467 James Bryan: Ok468 469 Carrie Fletcher: From what I am seeing, as everyday citizens, I think I feel that we have an obligation to try to protect the 470 everyday citizenry and if that came across then I am not going to apologize but I understand that you see it from a different471 side than we do and if that’s confrontational, I apologize and I don’t mean to come across…..472 473 Michael Harvey: I guess what I’m getting offended at is that the perception that I am not interested in protecting the 474 common citizenry or that I am simply adding this language as some form of barrier for common citizens hindering their 475 ability to get approvals of variances, interpretations, or special use permits. Further that somehow I concocted all of this all 476 on my own which is inconsistent with the facts. That is incredibly insulting.477 478 Carrie Fletcher: Maybe we all get a little over defensive about it. I don’t mean to be offensive but I think in this 479 environment of government everyone gets a little edgy about making sure we’re protected in a way then verbiage is 480 correct.481 482 Lydia Wegman: So, I’m just going to jump in here and say I think that, I hope we all respect one another and that I feel 483 and I think this is true of the Board that we all very much respect Michael, James and Craig and the work that you do and 484 that we recognize that you are trying to serve all the citizens of Orange County in a fair way recognizing that some of these 485 things are complicated and difficult for individuals to make sense of and you are trying to be as clear as possible so that 486 everyone looks at this code and understands what is required. No one is suggesting, I don’t believe anyone is in this room 487 is suggesting that there was anything other than that motivating this effort. The fact that some of us may be confused or 488 concerned about this language is the way we are reading it but that has nothing to do with what you were trying to do in 489 writing it. I certainly, we all understand that you are trying to help citizens of Orange County move forward with their 490 applications in these SUPs and Variances.491 492 Michael Harvey: Regardless of the vote that is about to occur, and I am going to make the same comment in any other 493 motions that are made this evening, I like to offer a friendly amendment to the motion to approve.494 495 Lydia Wegman: Please do.496 497 Michael Harvey: In our haste to get this done, there are a couple of section references that I neglected to update, and I’ve 498 just discovered. So, with your indulgence, what I would like to point out is that the amendment, the approval would need to 499 include updating section reference in what is Section 2.10.2 Applicant Requirements Subsection B number 4; the 500 narrative outlining the answers to the five required findings detailed within it reads currently Section 2.10.3 that is now 501 actually become Section 2.10.4 with the re-numbering. 502 503 23 D R A F T Next, Section 2.10.5 Additional Criteria for Authorized Variances Special Flood Hazard Areas in addition to the criteria 504 contained within it says Section 2.10.3 that is the same reference that needs to be updated to Section 2.10.4 that is the 505 provision dealing with authorized variances. 506 507 Section 2.10.6 Modifications of the Impervious Surface Ratios in Subsection E reads that such requests may be requested 508 through one of the following provisions; through variance procedures of the Board of Adjustment as described in this 509 subsection. The subsection used to be 2.10.5 it is now re-numbered to 2.10.6. 510 511 Last, required Findings of Fact that is listed in Section 2.10.3 that is now become Section 2.10.4.512 513 So regardless of whatever motion, whatever happens with this vote, I’d like there to be an acknowledgement and any 514 subsequent motions of those corrections as identified by staff.515 516 Lydia Wegman: Ok, thank you517 518 Craig Benedict: That can be incorporated by the person who made the motion and the person who seconded is in 519 agreement that can be amended.520 521 Hunter Spitzer: I would like to amend my motion to include what Michael said.522 523 Kim Piracci: I second that amendment.524 525 VOTE: 4-5 526 Motion Failed 527 528 MOTION by Adam Beeman to strike burden of persuasion out of the UDO and to include the amendment made by Michael 529 Harvey relating to updating section references. Seconded by Randy Marshall.530 531 Michael Harvey: So, your motion would be to eliminate within Section 2.10.3 the sentence “further the applicant shall have 532 the burden of persuasion on those issues” to eliminate from Section 2.11.3 Burden of Proof to eliminate “further the 533 applicant shall have the burden of persuasion on those issues” and last in Section 5.3.2 Special Use Permits “further the 534 applicant shall have the burden of persuasion on those issues”.535 536 Adam Beeman: And to include changes as identified by staff updating references in Sections 2.10.2., 2.10.5, and 2.10.6 537 as recommended by staff.538 539 VOTE: 7-1 540 Motion Passed with Hunter Spitzer abstaining from the vote. 541 542 Staff note: Abstaining from a vote is not an option the County’s advisory board policy allows but where a member has a 543 conflict of interest the member may be excused by majority vote of the advisory board.544 545 Kim Piracci: Did I understand you to say you didn’t want to put it in either?546 547 Michael Harvey: No ma’am. 548 549 Lydia Wegman: He was persuaded by his conversation with James is what I understood and it was something that made 550 sense to him. 551 552 AGENDA ITEM 5: ADJOURNMENT553 The meeting was adjourned by consensus 554 555 556 Lydia N. Wegman, Chair557 24 ORANGE COUNTY PLANNING BOARD ACTION AGENDA ITEM ABSTRACT Meeting Date:April 3, 2019 Action Agenda Item No.7 SUBJECT: Major Subdivision Concept Plan Application – Fairway Hills (Formerly Occoneechee Hills) Subdivision DEPARTMENT:Planning and Inspections PUBLIC HEARING: (Y/N)No ATTACHMENTS: INFORMATION CONTACT: 1. Application Package 2. Site Assessment Patrick Mallett, Planner II (919) 245-2577 Michael D. Harvey, Planner III (919) 245-2597 Craig Benedict, Director (919) 245-2575 3. Neighborhood Information Meeting (NIM) Materials 4. Staff Comments and Correspondence Under Separate Cover Concept Plan PURPOSE: To review and take action on a Major Subdivision Concept Plan application proposing a 20 lot single-family residential subdivision in accordance with the provisions of Section 2.15 and Article 7 Subdivisions of the Unified Development Ordinance (UDO). BACKGROUND: This application was originally submitted as a 27 single-family lot subdivision called “Occoneechee Hills”. Per Section 7.2.3 of the UDO, this request was classified as a Major Subdivision Class A Special Use Permit (SUP) processed in accordance with the provisions of Section 2.7 of the UDO. Upon further analysis and discussion of the proposal, the applicant chose to modify the request reducing the total number of proposed lots to 20 and renaming the project “Fairway Hills.” The resulting reduction in the number of proposed lots changed the classification and review process for the subdivision, which will now be reviewed in accordance with Section 2.15 Major Subdivisions of the UDO. A SUP is no longer required for the project given the proposed number of lots. The basic facts concerning the current application are as follows: Owners: Beth Porter and Thomas Bradford 11810 Wakehurst Drive North Chesterfield, VA 23236 Applicant(s)/Developers: Old NC 86 Partners, LLC C/o Jim Parker 504 Meadowland Drive Hillsborough, NC 27278 25 Consultants: Summit Design and Engineering Services C/o Tim Smith, PE 504 Meadowland Drive Hillsborough, NC 27278 Location: 2715 US 70 East, Hillsborough, NC 27278.See Attachment 2 for a general location of the parcel. Parcel Information: a.PINs: 9884-32-3275; and 9884-31-9874. b.Size of Parcel: 41.97 acres in area total. c. Zoning of Parcels: Rural Residential (R-1). d.Township: Eno. e.School District: Orange County Schools. f.Future Land Use Map Designation: Rural Residential. g.Growth Management System Designation: Rural Designated. h.Existing Conditions/Physical Features: The property has one 2,286 square foot single-family dwelling built in approximately 1956 and four accessory structures. The site has varying topography, two stream features, moderate cleared areas near structures, and woodlands. i.Roads: Existing vehicular access to the parcel is via a private drive along US Highway 70 East. j.Water and Sewer Service:The property is not located within a primary utility service area. It is designated on the Water and Sewer Management Planning and Boundary Agreement as Hillsborough Long-term Service Area. The existing and proposed homes will utilize private well and individual septic systems. Surrounding Zoning/ Land Uses: a.NORTH: Single-family residences and undeveloped property on lots ranging from 5 to 99 acres in area. All zoned R-1. b.SOUTH: Occoneechee Golf Course and Club; Single-family residences on lots ranging from 1.1 to 131 acres in area. All zoned R-1. c.EAST: Single-family residences and undeveloped property on lots ranging from 0.8 to 5.2 acres in area. All zoned R-1. d.SOUTHWEST: Occoneechee Golf Course and Club (south of US Highway 70 East) and undeveloped property. All zoned R-1. 26 Development Process, Schedule, and Action: The typical cadence for the review of a Major Subdivision Flexible Development is as follows: x First Action – Planning staff schedules a Neighborhood Information Meeting (NIM). STAFF COMMENT – DONE.This meeting was held on February 19 2019. Please refer to Attachment 3 for a synopsis of the NIM. x Second Action – The Planning Board reviews and takes action on the Concept Plan application approving ‘Flexible Development’ layout. The Planning Board review begins on April 3, 2019. As a reminder, the Concept Plan review is intended to allow Board members and the applicant to discuss the nature of the project and identify possible solutions to concerns identified by staff or surrounding property owners. If approved, the Concept Plan serves as a ‘roadmap’ for the developer with respect to the acceptable lot and road layout as well as location of proposed/required open space and recreation areas. x Third Action – Once a Concept Plan is approved, the Planning Board reviews and makes a recommendation on the approval of the Preliminary Plat for the project. x Fourth Action – The BOCC reviews and takes action on the Preliminary Plat application. x Fifth Action – Once all construction activities have been completed, or appropriate bonds have been approved, staff will sign off and allow the recordation of a Final Plat allowing for the individual lots to be created. Proposal: The petitioner has submitted a Major Subdivision Concept Plan application proposing to develop a maximum of 20 single-family residential lots with an overall proposed density of approximately 1 dwelling units per 2 acres of gross land area with approximately 16.25 acres of the site dedicated as Common Open Space to be held by a local homeowners association. The proposed single-family lots range in size from 42,785 square feet (smallest) to 125,765 square feet (largest). The Gross density is one dwelling unit per 2.1 acres. Subdivision Type Number of Lots Average Lot Size Area in Common Open Space Open Space Percentage Flexible Development Plan 20 56,594 square feet (1.3 acres) 16.25 acres (13.85 acres required) 38.7% (33% required) STAFF COMMENT – SUBDIVISION TYPES:The proposal is in accordance with the anticipated densities for properties located within the Rural Residential land use category as defined within the adopted Comprehensive Plan, Rural Designated area as denoted on the Growth Management Systems Map, and the requirements of the Hillsborough Strategic Growth Plan. The applicants have indicated they wish to pursue the Flexible Development option versus the conventional subdivision options. Staff supports this request. 27 Roads: The proposal involves the creation of two new public roads to service the project, each will be constructed to NC Department of Transportation (DOT) standards. The applicant has also proposed the construction of right (west bound) and left (eastbound) turn lanes at the proposed entrance on US Highway 70 East. The applicant has also reserved 5 feet of area for potential right- of-way along the frontage of US Highway 70 East in order to better plan for and accommodate other future NCDOT improvements not associated with this project. STAFF COMMENT - ROADS:Staff has determined that the proposed roadway construction and layout is consistent with the requirements of the UDO. Staff and NCDOT have also determined that the access to US Highway 70 East and the properties to the north are sufficient for public/private and emergency services. Utilities – Water and Sewer: The applicant is proposing to serve the project with individual wells and for septic systems developed on each lot. The Concept Plan denotes anticipated areas for septic sites. The applicant has also conducted more detailed well and septic analysis and submitted documents as part of their application. STAFF COMMENT - UTILITIES:Orange County Environmental Health has indicated they do not foresee problems with the proposed layout with respect to finding suitable soils to support septic field development or locations for individual wells. Final approval of proposed lot layouts for wells and septic typically occurs at the Preliminary Plat application review stage of the subdivision process. Stormwater Drainage: Overall drainage will be engineered according to applicable standards at the time of permit application for construction. The property is subject to adopted erosion control and stormwater management guidelines. The Concept Plan currently anticipates improving drainage using mostly Common Open Space Areas. STAFF COMMENT - STORMWATER:Orange County Erosion Control does not anticipate any issues with the proposed Concept Plan. Staff notes, however, that the applicant will be required to submit additional details, with respect to the anticipated stormwater management plan, as part of the Preliminary Plat application package for review and comment. Open Space: The total area reserved as Common Open Space is approximately 15.45 acres (36.8% of the site) further broken down as follows: x Primary Common Open Space: The Concept Plan denotes approximately 6.43 acres shall be preserved. These areas include identified streams and required buffers maintained in accordance with applicable regulations. These areas will be held in ownership and/or easement(s) and will be maintained by the subdivision’s homeowners association. x Secondary Common Open Space: The Concept Plan denotes approximately 6.99 acres in secondary open space. This area is primarily wooded and is either adjacent to identified Primary Common Open Space areas or located along the perimeter of the subdivision. Secondary areas shall be utilized to support resident access to Primary open space areas, potential recreation sites, drainage and stormwater control features, and a mail kiosk. Single-family lots around the perimeter of the subdivision without proximity to identified buffers or Primary or Secondary Common Open Space will provide a 20 foot wide Open Space access easement to be held and maintained by the HOA. These areas connect all the Common Open Space areas in the subdivision. 28 STAFF COMMENT – OPEN SPACE:Staff has no concerns related to the location or composition of the proposed open space. Landscape Buffers/Setbacks: The Concept Plan denotes a 75 foot wide Type E natural/constructed landscape buffer along US Highway 70 East. This area will be planted with additional materials and landscaped (e.g. berms/fencing) to augment preserved existing vegetation. The 75 foot buffer will be meet the required Type E Buffer, as outlined in Section 6.8.6(F) of the UDO. The applicant has proposed a 50 foot perimeter well and septic setback and a 100 foot building setback, which would limit structures, clearing and utilities along the perimeter and US Highway 70 East. STAFF COMMENT – LAND USE BUFFER:Section 6.8.6 (D) of the UDO requires that this project maintain a 75 foot wide Type E land use buffer separating the project from adjacent roadways (i.e. US Highway 70 – Arterial). Staff has determined the proposed land use buffer meets the requirements of the UDO. Staff Generated Correspondence: Attachment 4 contains staff comments for this project as of the date of abstract preparation. Public Notification(s): Section 2.15.2 (D) of the UDO requires that each property owner within 1,000 feet be notified by regular mail of the Neighborhood Information Meeting (NIM). Staff mailed out letters on January 29, 2019 to the property owners within 1,000 feet of the property concerning the February 13, 2019 NIM. Please refer to Attachment 3 for additional information on the NIM. Planning Board notifications were also mailed out to the owners within 1,000 feet of the property on March 22, 2019. These notices informed residents of the change in development proposal (i.e. reduction in the number of proposed lots from 27 to 20) and that the Concept Plan would be reviewed by the Planning Board on April 3, 2019. A sign was posted on the property on March 22, 2019 indicating the Planning Board’s review of the Concept Plan. Analysis: As required under Section 2.15.2 (E) of the UDO, the Planning Director is required to: ‘prepare and submit a recommendation’on the concept plan to the Planning Board for consideration. In analyzing this request, the Planning Director offers the following: 1. The application has been deemed complete in accordance with the requirements of Section 2.2 and 2.15.2 of the UDO. 2. Staff has determined that the property is of sufficient size to support the proposed subdivision. 3. The proposal appears consistent with the various goals outlined within the Comprehensive Plan concerning development, including: a. Land Use Overarching Goal: Coordination of the amount, location, pattern, and designation of future land uses, with availability of County services and facilities sufficient to meet the needs of Orange County’s population and economy consistent with other Comprehensive Plan element goals and objectives. b. Land Use Goal 2: Land uses that are appropriate to on-site environmental conditions and features and that protect natural resources, cultural resources, and community character. 29 c. Land Use Goal 3: A variety of land uses that are coordinated within a program and pattern that limits sprawl, preserves community and rural character, minimizes land use conflicts, supported by an efficient and balanced transportation system. 4. Staff supports the approval of the Concept Plan using the Flexible Development option as illustrated in the submitted Concept Plan and described in the submitted application materials. RECOMMENDATION:The Planning Director recommends the Board: 1. Receive the Concept Plan application for the Fairway Hills Subdivision, and 2. Approve the Flexible Development option Concept Plan and allow the applicant to proceed with the development and submittal of a Preliminary Plan and application utilizing this layout. 30 31 Attachment 1 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 Site Data: PINs: 9884-32-3275; and 9884-31-9874 Zoning; Rural Residential (R-1) Acreage: 31.6 acres (9884-32-3275); & 10.65 acres (9884-31-9874) 41.97 acres total Overlay Districts: Lower Eno Protected Watershed Legal Reference: B ROGER L MARSHALL P71/24 Plat: PB71 PG24 Zoning Requirements: Min. Lot Size: 43,560 sq. ft. (Traditional Development); or 10,000 sq.ft. (Flexible Development) Max. Density: One residential dwelling unit per acre Min. lot width: 150' Building Setbacks: Front (from right-of-way): 40' (30' with Flexible Development) Side and Rear Property lines: 20' (15' with Flexible Development) Subdivision Perimeter Setback: 100' Max. Impervious: 36% (658,156.75 sq. ft. based on 41.97 acres) Environmental Features: Streams/Water Bodies: Yes, 80' buffers SFHA (Floodplain in): No. Wetlands: None mapped. Flood Info: Panel #:9884 Base Flood Elevation (BFE): N/A BFE with 2’ County Freeboard: N/A Flood depth at structure: N/A Land Disturbance Thresholds: 1) Erosion Control Application/Permit required if disturbing more than 20,000 sq. ft.; 2) Stormwater Management Application/Permit required if disturbing more than 21,780 sq. ft. for residential structures. **Call OC Erosion Control a t (919) 245-2586 for more information** Notes: 1) Private Road Justifications, Recorded Declarations, Restrictive Covenants, Bona Fide Farm status, use and building type (e.g. duplex. units) will change subdivision and development requirements. 2) Wetlands data is taken from Classification of Wetlands and Deepwater Habitats of the United States. U.S. Department of the Interior, Fish and Wildlife Service and does not constitute a forma l delineation (i.e. survey) of the property. All wetland areas are approximate. 3) Flood boundaries are subject to change based on periodic amendments to flood maps. Determination is based on current, best available, data; and 4) This does not constitute a formal land survey. Scale 1"= 300.' Date Site Assessment Completed: December 7, 2018 by PRM Data shown on this map is obtained from Orange County GIS and is for reference only. Exact locations and boundaries should be verified. Map prepared by Orange County Planning & Inspections. 12/07/2018 - pmallett 2901 2805 530 1515 2715 2707 2812 1611 2902 28202818 31041520 1500 1516 2808 9884335032 MICHAEL MCLEOD SUSAN MCLEOD 9884404825 JAMES L CARTER BERTHA CARTER 9884313212 JAMES P RAY DONNA A RAY 9884315141 JAMES P RAY DONNA A RAY 9884414887 JAMES L CARTER BERTHA CARTER 9884520120 JOHNNY E BAILEY 9884335673 KENNETH K COOK 9884410127 JAMES LINDSEY CARTER BERTHA CARTER 9884429001 ZELDA LOCKHART 9884311492 KARLA NEEMS YOUNG 9884428558 VICTORIA H KELLY 9884414278 JAMES L CARTER BERTHA CARTER 9884405881 JAMES L CARTER BERTHA L CARTER 9884419008 MICHAEL J FREEMAN 9884417038 PAUL R II LOMAN 9884422280 JAMES L CARTER BERTHA CARTER 9884410054 DALE C ROE KRISTEN E DOUGLAS 9884243189 JOHN MCNEELY DUBOSE LYNNE K DUBOSE 9884319874 BETH M ETAL PORTER THOMASIN M BRADFORD 9884401724 CLARA ALLEN 9884437339 JOHN K JR POOLE 9884436159 MICHAEL MCLEOD SUSAN MCLEOD 9884323275 BETH M ETAL PORTER THOMASIN M BRADFORD 9884319310 JAMES DAVID ETAL CARTER JAMES L CARTER 9884427733 VICTORIA H KELLY 9884521439 JUDY O VECCIA 9884417417 SILVESTRE B TEJADA 9884521331 JONATHAN B ANDERSON JENNIFER R ANDERSON 9884418849 JAMES M SIMMONS PEDDY SIMMONS 9884400983 JAMES L CARTER BERTHA CARTER 9884413675 JAMES L CARTER BERTHA CARTER 9884432326 MICHAEL MCLEOD SUSAN C MCLEOD 9884424228 STEVE KOVACS MARY BETH MCGRANAGHAN 9884214669 LLC OCCONEECHEE LAND CO 9884308655 REFUGIO MEDINA VIRAMONTES CARMEN M DE MEDINA Flood Panel: 9884J Lower Eno Protected Watershed FI R E F L Y R D GU S 7 0 E AL L E N L N 694 688 67 8 676 672 652 690 680 674 664 654 644 666 650 648 646 64068266865661060865864 2 6 2 8 6246306 2 6 62 0 632622616670 6 6 2 684 660 670664662654652650686680666 660 7 0 4 7 0 2 71 4 706 658 656 670668 6186146126 0 8 6 0 6 624 620 6 0 6 6 0 2 638 6366 3 46146126 9 6 658 65 6 6 4 8 646700 6 6 0 652 630 628 626 616610 6 2 8 710 676 652616606604R1 Soil: Ch Soil: GeB Soil: HwB Soil: GeC Soil: GeC Soil: TaE Soil: TaD Soil: HwB Soil: Lg Soil: GeB Soil: EnB PORTER BETH M ETAL BRADFORD THOMASIN M 63 Attachment 2 64Attachment 3 65 66 67 68 69 70 71 72 73 74 75Attachment 4 1 Patrick R. Mallett To:Chuck Edwards Contact; Molly Boyle; DAC Cc:Jones, DeAngelo J Subject:RE: [External] Next DAC Meeting: Thursday, March 28th   From: Chuck Edwards Contact Sent: Wednesday, March 27, 2019 10:50 AM To: Molly Boyle; DAC Cc: Jones, DeAngelo J Subject: RE: [External] Next DAC Meeting: Thursday, March 28th  Molly,  Ihavereviewedthesubmittalsandofferthefollowingcomments.   FairwayHillsSubdivision(formerlyOcconecheeHills): PermittingandApprovals PriortoperformingworkintheNCDOTR/W,theApplicantwillneedtoobtainthefollowing: x ApprovedNCDOTDrivewayPermitforproposedaccessonUS70 x NCDOTplanapprovalforproposedsubdivisionstreets x Pleaseconfirmthatnowaterandsewerutilityconstructionorconnectionsareproposed  TripGenerationandTrafficImpacts; Basedonthecurrentplan,theproposeddevelopmentconsistsof20singlefamilyresidentiallots.Uponthefullbuildout,thesite isexpectedtogenerateapproximately200newdailytrips.Theapplicanthasindicatedontheplanthatleftandrightturnlanes onUS70willbeprovidedattheproposedaccess.Withtheproposedimprovements,trafficisexpectedtooperateacceptablyat theaccesspointandadjacentroadnetwork.Asaconditionofthependingdrivewaypermit,theApplicantwillneedtodesign andconstructexclusiveleftandrightturnlaneswith10Ͳ0’offullstorageandappropriatetransitionsonUS7Ͳ0attheproposed subdivisionaccess.  Plans: Priortopermittingandconstruction,theApplicantwillneedtoprovidecompleteplansfortheproposedinternalsubdivision streetsandoffsiteroadimprovementsmeetingNCDOTrequirementsforreviewandapproval.Thecurrentplansare incomplete.Thecommentsbelowpertaintotheinformationprovided.RefertotheNCDOTdrivewaymanualandsubdivision manualforadditionaldesignguidance  x Somecenterlineradiidomeetminimumrequirements(min150’) x MailClusterBoxUnits(CBU)locatedintheproposedNCDOTR/WmustmeetNCDOTrequirements.Pleaserefertothis linkforadditionalinformation.Adjustdesignaccordingly. https://connect.ncdot.gov/resources/safety/Teppl/TEPPL%20All%20Documents%20Library/M01_CBU.pdf x TheremustbesufficientlotcounttosatisfyNCDOThousingdensityrequirementsforallroads.Theshortsubdivision accessroad,BirdieLanecanbeconsideredforaddition,butmustprovidedirectorindirectingressandegresstoa minimumof4residences.Pleasenotethatthese4residencescannotbedoublecountedtowardtheminimumhouse countfortheotherstreets.   C. N. Edwards Jr., PE (Chuck) 76 2 District Engineer North Carolina Department of Transportation Division of Highways Division 7, District 1  336 570 6833  cnedwards@ncdot.gov   115 East Crescent Square Drive P. O. Box 766 Graham, NC 27253   From:MollyBoyle<mboyle@orangecountync.gov> Sent:Monday,March25,20194:31PM To:DAC<DAC@orangecountync.gov> Subject:[External]NextDACMeeting:Thursday,March28th  CAUTION:Externalemail.Donotclicklinksoropenattachmentsunlessyouverify.Sendallsuspiciousemailasanattachmentto report.spam@nc.gov  HelloDACmembers,  IhaveattachedtheagendaforourmeetingthisThursday,March28th.I’vealsoattachedthenotesfromourlastmeetingon March7th.ForthoseofyouwithaccesstoEnergov,youcanaccesseverythingthere.ForthoseofyouwithaccesstotheTdrive, youcanaccessthesupportingdocumentshere:  T:\OrangeCountyPlanningͲDevelopmentAdvisoryCommittee(DAC)MeetingFolder\03Ͳ28Ͳ2019  I’llemailthesupportingdocumentstoexternalDACmembersshortly.  SeeyouThursday!  MollyBoyle,MPA PlannerI OrangeCountyPlanning&Inspections (919)245Ͳ2599  PursuanttoNorthCarolinaGeneralStatute132,correspondencesentandreceivedfromthisaccountisapublicrecordandmay bedisclosedtothirdparties.  Email correspondence to and from this sender is subject to the N.C. Public Records Law and may be disclosed to third parties. 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119