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STAFF ANALYSIS REZ-2019-02

APPLICANT: Richard Angino / Third Wave Housing 463 ½ Carolina Circle Winston-Salem, NC 27104 PROPERTY: Chatham Business Park, LLC OWNER: 1320 Shepherd Street

Durham, NC 27707 LOCATION: 196 Chatham Business Drive

Parcel 80091 EXISTING USE: Vacant AREA: 3.406 acres EXISTING ZONING: C-2 (Highway Commercial) PROPOSED ZONING: O-I (CZ) (Office and Institutional – Conditional Zoning District) ADJACENT LAND USES: Properties adjacent to these parcels of land are Commercial in nature.

North – Parcel is zoned C-2. South – Parcel is zoned C-2. West –Parcels are zoned M-2 and C-2.

East – Parcel is zoned C-2.

ZONING HISTORY: This parcel has been zoned C-2 since the 1989.

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ANALYSIS: The following staff analysis is structured to address the information that should be considered for a map amendment as outlined in the Zoning Ordinance and city zoning enabling statutes for the State of North Carolina.

1. Relationship of the proposed map amendment to the Land Use Plan and

Future Land Use Map. The subject property has been designated for Commercial in the Future Land Use Map. The Commercial category describes areas that are located with convenient access to US 64 Business and US 15-501, particularly near major intersections. Encouraged uses are those that benefit from convenient highway access, including general commercial, restaurants, building supply, light manufacturing, distribution, and professional services. Development in these areas should be well-planned with street-front and interior lot landscaping, coordinated building styles, attractive signage, and shared driveways/access where appropriate. The proposed map amendment from Highway Commercial to Office and Institutional – Conditional Zoning is not consistent with the Future Land Use Map’s designation as Commercial.

2. Suitability of proposed zoning district classification.

General O-I Office and Institutional District: This district is defined as certain land areas with structures that provide office spaces for professional services and for certain institutional function; and residential accommodations, usually medium or high density. The district is normally small, and may include older homes undergoing conversion. The district is usually situated between business and residential districts, and the regulations are designed to permit development of the enumerated functions and still protect and be compatible with nearby residential districts. Conditional Zoning Districts: Conditional Zoning Districts are primarily intended to allow for the zoning and development of property in accordance with general use zoning district standards and additional conditions that enable the use and development to fit better with the site and neighboring properties. In a conditional zoning district, conditions may specify the uses proposed for the district; the location on the property of the proposed use; the number of dwelling units; the location and extent of supporting facilities such as parking lots, driveways, and access streets; design elements of the proposed use; the location and extent of buffer areas and other special purpose areas; the timing of development; the location and extent of right-of-way and other areas to be dedicated for public purposes; the alteration

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of streets to mitigate traffic and environmental impacts; use limitations; and other matters the applicant proposes as conditions upon the request.

3. Availability of public facilities.

The town has received the request for sewer allocation for The Retreat at Pittsboro (196 Chatham Business Park) along with their Conditional Rezoning request. The total request is for 10,440 gpd The current allocation available under the 90% rule (including all previously approved sewer permits from the state and allocation request by the board) is approximately 23,600 GPD. Additional Request in Queue It is important to note that the following additional projects have submitted allocation request with their projects but do not have board approval of their projects yet so they have not been forwarded for consideration at this time. These additional request total 42,604 GPD as shown below:

Date Allocation

Request Received Name of Project Sewer Flow

Requested Status of Project

8/24/18 Revised 2/11/19

893 East Street 584 GPD

Project Under Review

12/11/18 CP - Mosaic A 35,000 GPD initial request

Town Board Approval 8/13/18 CD’s Currently Under Review

12/17/18 Cedar Lane Subdivision 2400 GPD Project Under Review 12/21/18 Dancy Subdivision 4320 GPD Project Under Review 1/21/19 CP – Information

Center 300 GPD Project Under Review

Staff Recommendation: Recommend approval with an expiration of the sewer allocation in 6 months if construction drawings are not approved to construct this project.

4. Population change. This amendment will provide more low-income housing opportunities and likely produce a slight increase in the Town’s population.

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5. Transportation patterns.

Based on the proposal, development of this parcel will create: 319 Daily trips 24 AM Peak hour trips 30 PM Peak hour trips

**Trip generation rates from the 8th Edition ITE Handbook. PUBLIC HEARING NOTES:

A public hearing was held on March 25, 2019. One citizen, the Chairman of the Affordable Housing Board, chose to speak in favor of the rezoning on behalf of the entire Board. Some of the Commissioners posed questions regarding the conditions to be imposed on the site and the buffer changes noted by staff. It was requested that a condition be added to require this project to be dedicated only to affordable housing.

PLANNING BOARD RECOMMENDATION:

The Planning Board considered this rezoning at their meeting on April 1, 2019. The Board noted concerns regarding walkability as well as locating a residential use next to property zoned M-2. Questions were posed about the grading of the site and requests were made for the playground to be enlarged and the previously shown additional side buffer to be returned. In a vote of 6-0 the Board found that the request was not consistent with the Future Land Use Plan, but subsequently recommended approval of the rezoning request in a vote of 6-0.

STAFF RECOMMENDATION:

Staff finds this property to be in a suitable location for the proposed Office and Institutional Conditional Zoning District because although the surrounding zoning is mostly highway commercial, the majority of uses along Chatham Business Drive are fairly low intensity and would also be permitted in the O-I zoning district. This amendment is not consistent with the Future Land Use Plan, however, due to the specificity of the proposal and its compatibility with the majority of surrounding uses Staff is recommending approval. Suggested Conditions:

• The project must meet the affordable housing definition to qualify for either 4% or 9% financing.

• A sidewalk will be planned for and installed along Chatham Business Dr at the time of site plan approval

Coates' Canons Blog: A Conditional What? Clarifying Some Confusing Zoning Terminology

By David Owens

Article: https://canons.sog.unc.edu/a-conditional-what-clarifying-some-confusing-zoning-terminology/

This entry was posted on November 13, 2012 and is filed under Land Use & Code Enforcement

A contemporary zoning ordinance can be a complicated proposition.  A small town or rural county’s ordinance often runs over 100 pages.  Some of the zoning ordinances in our larger cities approach (and if a few instances pass) 1,000 pages.  All of the details can be confusing even for the staff and board members who work with it every day.  Imagine how it must perplex the landowner, neighbor, or developer who is picking it up for the first time and trying to figure how it applies to a particular project. 

One common dimension of the confusion with zoning ordinances stems from an unfortunate use of very similar terminology to describe very different things.  In North Carolina land use law the leading example, and our topic for this post, is the use of the terms “conditional use permit,” “conditional use district” zones, and “conditional zoning.”  These three things sound alike, but in the world of zoning they are very different.

Just what are these three things?  A conditional use permit is an approval issued upon an applicant establishing that standards set out in the zoning ordinance have been met.  A conditional use district rezoning involves two decisions – a rezoning to a district that has only conditional uses (and no permitted uses) plus concurrent consideration of a conditional use permit.  A conditional zoning attaches individual, site-specific conditions to the rezoning and does not involve a separate conditional use permit.  While the chart below summarizes these differences, it is easy to see why confusion arises.

Conditional use permit Quasi-judicial permitConditional use district Rezoning plus quasi-judicial permitConditional zoning Rezoning only, but with conditions

So let’s look at each of these in a little more detail.

Conditional Use Permits

The first of these terms to enter the zoning lexicon was the “conditional use permit.”  In the zoning ordinances of eighty years ago, a specific land use was either permitted in a particular zoning district or it was prohibited in that district.  For example, a single family home was permitted (sometimes referred to as a “use by right”) in a residential zoning district, while commercial and industrial land uses were prohibited in that zoning district.  If you asked if a specific land use was permitted to be located on a specific parcel, the answer was yes or no, depending on whether or not it was a permitted use there.  Simple rules for a simpler time.  

But about fifty years ago many local governments decided they needed more nuanced land use rules – that we needed to add “maybe” to the options of “yes” or “no.”  The idea was to add some flexibility to zoning ordinances while retaining oversight of individual projects.  For example, a city might want to allow a small multi-family building to be located in some portions of a residential zoning district.  This use would not be suitable for every location in the district, but with a case-by-case review it could be allowed in some locations within the district.  

The “conditional use permit” was zoning’s answer as to how to accomplish this.  Rather than making small multi-family buildings a permitted use in the zoning district, the zoning ordinance would allow it only where it could be established that specified conditions would be met, hence the name “conditional use permit.”  Over 90% of the zoning ordinances in North Carolina now include provisions for some conditional use permits.  And to add one more layer of confusion, the law allows individual “conditions” to be added to any quasi-judicial approval – not just for conditional use permits — including

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Copyright © 2009 to present School of Government at the University of North Carolina. All rights reserved.

zoning variances and certificates of appropriateness under historic district regulations.

In addition to the concept itself, two factors related to this innovation immediately added complexity and confusion to the zoning world.  

First, the conditions specified in the ordinance that determine whether or not the use would be permitted usually included discretionary standards.  For example, the zoning ordinance could condition whether a use would be allowed on a particular parcel upon a determination that it would be harmonious with the surrounding neighborhood and that it would not have a significant adverse impact on neighboring property values.  Our courts soon ruled that since a person has a legal right to their permit upon establishing that the conditions have been met and since facts have to be ascertained to determine if the standards involving judgment and discretion have been met, the board making these decisions must follow quasi-judicial procedures.  This means a number of complex limitations on the decision-making process are required – testimony by witnesses under oath and subject to cross-examination, having substantial evidence in the record to support factual findings, limits on opinion testimony and gathering evidence outside the hearing, mandates for impartiality by decision-makers, requirements for a written decision that adequately explains how the decision was reached, and so forth.  These requirements and how they are followed are described in more detail in this report.

Second, the terminology used for this “maybe” of the zoning world has from the outset been confusing.  Many ordinances use the term “conditional use permit” to describe this type of approval.  Others use the term “special use permit.”  Still others call them “special exceptions.”  Even more mystifying, some ordinances provide for both “conditional use permits” and “special use permits.”  The key thing to remember is that all three of these terms describe the same thing.  There is no legal difference between the three.  For the most part it is just a matter of local preference which of the three is used in any particular ordinance.  

The rationale for some ordinances having both conditional use permits and special use permits is straightforward.  Under North Carolina law a zoning ordinance can assign final decision-making on these permits to the governing board, the board of adjustment, or the planning board.  Some ordinances assign some of these to one board and others to a different board.  For example, most of the permits may be assigned to the board of adjustment but a few more sensitive ones (such as projects with more than 100,000 sq. ft. of floor space) may be assigned to the governing board.  In those situations, the ordinance may use the term “conditional use permit” for all of those that go to the board of adjustment and “special use permit” for those going to the city council.  This is just a convenience and there remains no legal difference (other than the decision-making board) between the two differently named permits.  But this differing terminology has been a source of confusion for decades.

Conditional Use District Zoning

North Carolina land use law prohibits imposing individual, site-specific conditions on a regular rezoning to a conventional zoning district.  If city or county governing board considers only a particular proposed project rather than the full range of uses that would be allowed in the new zoning district, the courts will invalidate the rezoning if it is challenged in court.  If an owner promises the governing board that the new zoning would be used only for a particular project, that promise is not binding.  Once the property is rezoned, the owner (and anyone the person may sell the property to) can undertake any use permitted in the new zoning district.  In addition, any special conditions imposed on a conventional rezoning—such as requiring a buffer strip of a certain size—are not enforceable.  Only those standards that apply to all property in the zoning district are legally enforceable.  In this situation, the North Carolina courts will generally uphold the rezoning but without the invalid condition.  These limits on zoning are described in more detail in this earlier post.

These limits on the use of conditions with a standard rezoning led in the 1980’s to use of a new zoning tool in this state – the “conditional use district zone” (also called a “special use district zone” by some ordinances).  A conditional use district rezoning is initiated when the owner asks for a rezoning to a new zoning district that does not have any automatically permitted uses, only uses allowed by the issuance of a conditional use permit. In the usual conditional use district rezoning process, the owner applies for a special or conditional use permit for a particular project at the same time the rezoning is requested and the two decisions (the rezoning and the permit) are considered in a single proceeding.  This process is also described in more detail in an earlier post.

Conditional use district zoning is a complicated process. Although the rezoning request and the permit application are processed at the same time, the governing board treats the two proposals as legally independent, separate decisions. All

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Copyright © 2009 to present School of Government at the University of North Carolina. All rights reserved.

of the detailed conditions and specific restrictions on the project are attached to the conditional use permit (which is legal) rather than to the rezoning itself (which would not be enforceable). The board must make two decisions that have different procedural requirements, but usually the board attempts to make both at the same time and with a single hearing. 

Conditional Zoning

The legal complexity and formality of the procedures required for conditional use district zoning led to an alternative that is increasingly common in North Carolina — “conditional zoning.”  In the last decade both the courts and the legislature have approved use of purely legislative conditional zoning.  This is different from a conditional use district in that there is no accompanying conditional use permit.  All of the site specific standards and conditions (sometimes including a site plan) are incorporated into the zoning district regulations.  Conditional zoning is proving to be very popular with elected officials, landowners, and many neighbors because it allows zoning to be tailored more carefully to a particular situation. In some of the state’s larger cities, 80 to 90 percent of the rezonings use conditional zoning.

State law only allows conditional zoning and conditional use districts at the owner’s request; they cannot be imposed without the owner’s agreement.  Also, the individual conditions and site-specific standards that can be imposed are limited to those needed to bring a project into compliance with city and county ordinances and adopted plans and those addressing the impacts reasonably expected to be generated by use of the site.  Conditional zoning is not exempt from a spot zoning challenge.  If the new district is relatively small—and virtually all of these are—the local government must assure that all of the factors defining reasonable spot zoning are fully considered and that the public hearing record reflects that consideration. 

So, while these three terms sound very similar, they are in fact very different.  Some zoning ordinances use all three terms, so a user must pay careful attention to exactly which term is being used.  But once you have the distinctions down, you are well on the way to becoming a zoning pro.  After all, not just anybody knows the difference between conditional use permits, conditional use district zoning, and conditional zoning.

 

 

Links

canons.sog.unc.edu/?p=1646canons.sog.unc.edu/?p=6874canons.sog.unc.edu/?p=5202canons.sog.unc.edu/?p=6839www.sog.unc.edu/sites/www.sog.unc.edu/files/reports/SS_22_v4b.pdfcanons.sog.unc.edu/?p=4781canons.sog.unc.edu/?p=4987canons.sog.unc.edu/?p=4150

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Copyright © 2009 to present School of Government at the University of North Carolina. All rights reserved.

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Copyright © 2009 to present School of Government at the University of North Carolina. All rights reserved.This blog post is published and posted online by the School of Government to address issues of interest to government officials. This blog post is for educational and informational use and may be used for those purposes without permission by providing acknowledgment of its source. Use of this blog post for commercial purposes is prohibited.

To browse a complete catalog of School of Government publications, please visit the School’s website at www.sog.unc.edu or contact the Bookstore, School of Government, CB# 3330 Knapp-Sanders Building, UNC Chapel Hill, Chapel Hill, NC 27599-3330; e-mail sales@sog.unc.edu; telephone 919.966.4119; or fax 919.962.2707.

This blog post is published and posted online by the School of Government to address issues of interest to government officials. This blog post is for educational and informational use and may be used for those purposes without permission by providing acknowledgment of its source. Use of this blog post for commercial purposes is prohibited.

To browse a complete catalog of School of Government publications, please visit the School’s website at www.sog.unc.edu or contact the Bookstore, School of Government, CB# 3330 Knapp-Sanders Building, UNC Chapel Hill, Chapel Hill, NC 27599-3330; e-mail sales@sog.unc.edu; telephone 919.966.4119; or fax 919.962.2707.

0 310155ft

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REZ-2019-02

Date: 3/7/2019Time: 2:29:26 PM

Service Layer Credits: Chatham County,Chatham County GIS, Chatham County EOCNC911, Chatham County, Chatham County

Pittsboro

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The Retreat at Pittsboro

Parcel ID: 0080091

Address: 196 Chatham Business Dr, Pittsboro, NC

Community Meeting Report

All neighboring property owners and parties directed to be contacted by Planning & Zoning were sent

letters. These letters gave a description of the developer and intended development. They included both

contact information as well as a personal invitation to meet a few weeks later at the site. These were put

in the mail on December 6, 2018. A copy of this letter is provided with this submission.

On Friday December 21st, developer Richard Angino and a team member was on site from 4 PM to 7 PM.

The team had large site plans, detailed photographs of prior completed properties, and other information

ready for neighbor review. The temperature was warn and around 60 degrees, though rain was sporadic.

To ensure a comfortable environment, the Third Wave Housing team set up a pop up tent in order to keep

all parties dry and out of the elements.

Neighbor Teri Smith of Cary visited with the Third Wave Housing team. She was in support of further

development in Pittsboro, including the Third Wave Housing development. This was in the hopes positive

change would increase the value of her own land parcel. Considering support by neighbors of the current

development as it is, team is pursuing forward with their current plans.

December 6, 2018 To My Future Pittsboro Neighbors, I am working on development of vacant land at 196 Chatham Business Park Drive for apartments. As we will be future neighbors, I wanted to introduce myself and this new community. About Me: My name is Richard Angino and I am the owner of Third Wave Housing based in Winston Salem. My experienced team and I develop quality apartments in well located, small towns. We are long term owners and prefer walkable location near amenities. In the last few years, we have completed similar new construction developments in Statesville (Iredell County) and Rocky Mount (Nash County). We are today working on new construction adjacent to the Henry Siler School in Siler City and also in Hickory (Catawba County). For additional details on my prior experience and properties, please visit the website www.thirdwavehousing.com. About the Development: Like the above communities, we are planning to develop apartment. We would like to build a small multi-family property on this 3.41 acre site. Ideally, we would start construction in early 2020 and have units available to be leased in mid 2021. Why Pittsboro: We are very excited about this property’s location as well as the ability to add much needed new construction to the market. My team and I love this infill location for its close proximity to Pittsboro’s long-established historic district. Our property will give additional consumers to downtown business and will also give residents a central, new construction choice (when looking for the place to call home). Questions & A Personal Introduction: If you have any questions or concerns, I am available via email at pittsboro@thirdwavehousing.com. Also, I will be onsite on Friday, December 21 from 4:00 PM – 7:00 PM., if you would like to meet me in person. All the best. Sincerely, Richard Angino Third Wave Housing, LLC www.thirdwavehousing.com

1/22/2019 Wil Warren

1/2

Subject: Update on Pi�sboro Le�ersFrom: "Sean Dowell" <sean@dowellcommercial.com>Sent: 12/6/2018 2:18:51 PMTo: "Richard" <richard@thirdwavehousing.com>; "Wil Warren" <blanketcreekllc@gmail.com>;

See below.

SMD

‐‐‐‐‐‐‐‐ Forwarded Message ‐‐‐‐‐‐‐‐Subject:RE: Time Sensi�ve Request for Prin�ng & Mailing Le�ers

Date:Thu, 6 Dec 2018 18:49:39 +0000From:PCA220 <PCA220@postalconnec�ons.com>

To:Sean Dowell <sean@dowellcommercial.com>

Finished everything. The total came to $19.30. Everything will be going out in the mail today. From: Sean Dowell <sean@dowellcommercial.com> Sent: Thursday, December 06, 2018 10:40 AMTo: PCA220 <PCA220@postalconnec�ons.com>Cc: Richard <richard@thirdwavehousing.com>; Wil Warren <blanketcreekllc@gmail.com>Subject: Time Sensi�ve Request for Prin�ng & Mailing Le�ers Anna,

Can you please print and send out the attached letter to the attached parties. 

Besides these attached parties, a copy of this letter will also need to go to Mr. Angino at 463 ½ CarolinaCircle, Winston­Salem, NC 27104.  This way he will know when these other individuals get this letter.

If we can have this in mail by tomorrow that would be great.  When this does go out, please let us know. We have to wait a few weeks from this date before we can do our public meeting.

Richard Angino will be paying this bill and can be reached at 336­499­1963.  He is also copied on thisemail.  You may already have this info as he has done numerous letter campaigns through you all (throughme).

Let him or I know if you have any questions.  If needed, my cell is 919­924­4137

Thank you!

SMD

­­ Sean DowellCEO / PrincipalDirect – (336) 378­5067

Wil Warren

Textbox

The Retreat at Pittsboro Community Meeting Report Proof of Mailed Notice (Receipt from Postal Connections shows the address of each neighbor that was mailed a letter) Page 1

Wil Warren

Textbox

The Retreat at Pittsboro Community Meeting Report Proof of Mailed Notice (Receipt from Postal Connections shows the address of each neighbor that was mailed a letter) Page 2

0 0.0550.0275mi

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186 Chatham Business Park Dr (Adjacent Prop)

Date: 10/19/2018Time: 2:21:40 PM

Service Layer Credits: Chatham County,Chatham County GIS

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Multi-FamilyHousing

350

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UNIT B(b)

UNIT COUNT AND SQUARE FOOTAGES

Unit Type

Total

1 Bed/1 Bath Accessible

Description

1 Bed/1 Bath

2 Bed/2 Bath Accessible

2 Bed/2 Bath

2

7

4

35

Count

48

786

Gross SquareFootage Per Unit

786

1038

1038

1572

Total GrossSquare Footage

5502

4152

36330

47556

NOTES:1. A MINIMUM OF 10% OF THE UNITS ARE ACCESSIBLE. 5% AS REQUIRED BY THE 2012 NC BUILDING CODE AND AN ADDITIONAL 5% REQUIRED BY THE NCHFA.

2. A MINIMUM OF 2% OF THE UNITS ARE DESIGNED FOR THE HEARING & VISUALLY IMPAIRED.

1426

Total HeatedSquare Footage

4984

3836

33530

43776

713

Heated SquareFootage Per Unit

712

959

958

Building One

Building Two

BUILDING UNIT MIX AND SQUARE FOOTAGES

Building

Total

3

# of Stories

24912

Total GrossSquare Footage

50178

Total

48

24

NOTES:1. HEATED SQUARE FOOTAGE IS MEASURED INTERIOR WALL TO INTERIOR WALL, NOT INCLUDING EXTERIOR WALL SQUARE FOOTAGE. INTERIOR WALLS ARE NOT DEDUCTED.

2. GROSS SQUARE FOOTAGE IS MEASURED EXTERIOR SHEATHING TO EXTERIOR SHEATHING AND INCLUDES BALCONIES, PORCHES, EXTERIOR STORAGE, AND BREEZEWAYS.

22995

Total HeatedSquare Footage

45453

-

A(a)

2

3 2 24 20781 22644

Community Bldg 1 1677 2622

-

A(b)

7

7

2

B(a)

4

2

22

B(b)

35

13

0 50' 100' 200'SCALE: 1" =100'

ARCHITECTURAL SITE PLAN

Site Plan Notes:1. Subject property is 3.41 AC.2. Condition for Re-zoning: Parking maximum is 1.25 spaces per each one bedroom unit and 1.5 spaces per each two

bedroom unit, based on the current zoning ordinance. Note: Total parking spaces provided is 71.This includes 7 accessible parking spaces which is one per

accessible apartment unit plus one for the manager’s office.3. All on site driveways, sidewalks, parking lots, and entrances/exits to buildings shall be sufficiently and adequately lighted

to ensure the security of property/buildings and the safety of persons.4. This development must be provided with a drainage system that is adequate to prevent the undue retention of surface water

on the development site.5. No surface water may be channeled or directed into a sanitary sewer.*6. Whenever practicable, the drainage system of this development shall coordinate with and connect to the drainage systems or

drainage ways on surrounding properties or streets.7. This development shall be constructed and maintained so that adjacent properties are not unreasonably burdened with

surface waters as a result of such developments*8. No development may be constructed or maintained so that such development unreasonably impedes the natural flow of water

from higher adjacent properties across such development, thereby unreasonably causing substantial damage to such higheradjacent properties*

9. No development may be constructed or maintained so that surface waters from such development are unreasonably collectedand channeled onto lower adjacent properties at such locations or at such volumes as to cause substantial damage to suchlower adjacent properties.*

10. Stormwater control facilities shall be maintained by the developer. *11. Any variation to the approved plan shall be brought to the attention of the Town of Pittsboro Planning Director for evaluation

and revised plan submitted for review and approval.12. Vehicle accommodation area surfaces shall be kept in good condition (free from potholes, erosion, dust, etc.).13. Parking spaces in areas surfaced in accordance with concrete/asphalt shall be appropriately demarcated with painted lines or

other markings.14. All new construction to meet the standards and requirements of Energy Star 2.0.

Bolds Items are Conditions for Re-zoningItems with asteriks (*) are County, State, or Federal Requirements.

Projected Timeline:Site Plan Submittal December 2019Construction Begins April 2020