Announcement for mayor

Following is the press release regarding my plans for the fall:

Board of Aldermen member Lydia Lavelle announced today that she will file to run for mayor of Carrboro in the November election.   Lavelle, who has been on the Board of Alderman since 2007, will be running for the seat that Mark Chilton has held since 2005. Chilton has announced that he will not be running for re-election.

If elected, Lavelle said in a release she would “promote the values and ideals that have helped Carrboro become one of the most progressive and forward thinking communities in North Carolina.”

Pointing to her years of service on the Board, Lavelle said, “this experience has given me the opportunity to study the many issues our town faces in great detail and to develop public positions on a variety of different topics.” She noted that “this close scrutiny of local and regional issues has prepared me for this run, and it also has given the residents of Carrboro a chance to learn a bit more about my style as an elected leader and the careful, practical approach I bring to the table.”

Referring to the town’s current leader, Lavelle said, “I have greatly admired the job Mark Chilton has done as mayor of Carrboro, and I know I join many others when I thank him for his service and dedication to this town.”

She is the Town’s representative to the regional Transportation Advisory Committee of the Durham/Chapel Hill/Carrboro Metropolitan Planning Organization (TAC-MPO), a group she formerly chaired. The TAC-MPO is composed of elected officials from Orange, Durham and Chatham counties responsible for addressing and planning for transportation needs for the region. In addition, she sits on the Transit Partners Committee, a work group of elected officials and staff that discusses issues related to Chapel Hill Transit. She also represents Carrboro on the Chapel Hill/Orange County Visitors Bureau Board of Directors, and is the BOA liaison to the Appearance Commission and Orange County’s Intergovernmental Parks Work Group. Prior to her election in 2007, Lavelle served on the Carrboro Planning Board and on the New Horizon’s Task Force.

Lavelle is an assistant professor at the North Carolina Central University School of Law in Durham. She has lived in the triangle area for thirty years. She and her family live in the Fox Meadow neighborhood.

Contact information: Lavelle can be reached regarding her campaign at lydlavelle@nc.rr.com or by calling 919-942-5640. Her web site is http://www.lydialavelle.com.

 

Our Town Commons

At our meeting on March 12, 2012, we heard a report from staff about the current policy regarding the use of our Town Commons, and whether we wanted to investigate any changes to the policy.  Most of the agenda item consisted of a history of the modifications to the policy (for example, expansion of the Farmer’s Market, allowing fundraisers, allowing other events of different durations under certain conditions, and discussing insurance requirements).   One suggested change we were made aware we might consider was whether we wanted staff to investigate allowing the sale and consumption of alcohol at the Town Commons (we have such a policy at the Century Center).    Making such a change to the policy would allow us to attract different kinds of events, such as a “Cask Ale Festival” as suggested by Tyler Huntington of locally owned Tyler’s Taproom.

Before we considered the motion, we spent a good deal of time asking various town employees how increasing our special events has affected their existing workloads.   In particular, we spoke with Police Chief Carolyn Hutchison and Public Works Director George Seiz.  Recreation and Parks Director Anita Jones-McNair was also in the audience. These three departments, in particular, are affected by this increase in events.

Annette Stone, our Economic Development Director, has done a bang-up job highlighting special events and bringing new ones to the Town, and partnering with local businesses to increase these (witness the Tift Merritt concert held in fall of 2011 at Town Commons as well as the “For the Love of Carrboro” February themes, among others).  But with an increase in these type of activities comes more work on our already busy staff, and we wanted to signal to the Town Manager (David Andrews) that we recognize this and if necessary, we should explore creative solutions to accommodate our goal to add events, but not burn out or overwork staff.  David agreed that he was aware of this, and was working to identify ways to address these concerns.

The Board voted unanimously for staff to bring back to the Board procedures that would allow alcohol on the Town Commons property, also taking into account all insurance requirements.

 

Communication about proposed developments

I often get e-mails from citizens asking for me to respond regarding development proposals that are coming before us.  These are usually developments that have already been filed with the town, and that are going through some type of review by our advisory boards.  I find myself explaining time and again that whether I am able to discuss a development depends on what kind of decision I ultimately have to make as an alderman.

Our town attorney, Mike Brough, has constructively advised us about this in the context of conditional use rezoning as I have reprinted below (the rest of this post, except for my comment in brackets which refers to two footnotes in his original memo, are his words):

Subject:  Discussion Outside Hearing Regarding Conditional Use Rezonings

The place to begin is with an understanding of the differences between legislative decisions and quasi-judicial decisions.  The legal theory is that, when the Board acts in its legislative capacity, it is making general policy decisions based on its collective view as to what best serves the public health, safety, or general welfare.  In making those types of decisions, the Board is free to act based on information gathered from any source, i.e. it is not bound to act solely upon information received at a public hearing.  In contrast, a quasi-judicial decision is one in which the Board is called upon to apply previously established policies or standards to the facts of a particular situation.  The law requires that such decisions be made based solely on information received at a hearing at which the due process rights of interested parties are protected,  including the right to have witnesses be sworn and to be subject to cross examination.

Unfortunately, applying these legal theories to the realities of zoning is like trying to fit the proverbial square peg into the round hole.  For example, when considering a proposal to rezone a specific piece of property, it seems that a good argument can be made that this does not involve setting general policy and should therefore not be regarded as a legislative decision, but case law has firmly established that zoning amendments are to be treated just like other legislative decisions.  The distinctions between legislative and quasi-judicial decisions become even more blurred in the context of conditional use rezonings, as discussed below.

When the Board considers conditional use permit applications, it acts in its quasi-judicial capacity.  G.S. §160A-388(e1) provides:

 A member of [the Board] exercising quasi-judicial functions pursuant to this Article shall not participate in or vote on any quasi-judicial matter in a manner that would violate affected persons constitutional rights to an impartial decision maker.  Impermissible conflicts include, but are not limited to, a member having a fixed opinion prior to hearing the matter that is not susceptible to change, undisclosed ex parte communications, a close familial business, or other associational relationship with an affected person, or a financial interest in the outcome of the matter.   If an objection is raised to a member’s participation and that member does to recuse himself or herself, the remaining members shall by majority vote rule on the objection.  [Emphasis added].

While it is not exactly clear what the term “ex parte communications” means in this context, it seems certain that the term includes private meetings with proponents or opponents of a CUP.  If such meetings are not disclosed at the hearing, the member is not allowed to participate or vote.  And it is apparent how easy it would be for a Board member to forget to mention one or more such discussions, particularly if there are many.  Moreover, even if all such “ex parte communications” are disclosed, a question could be raised as to whether such communications have biased the member one way or the other or violated the principle that quasi-judicial decisions are to be based solely on the information presented at the hearing.  For these reasons, I have advised that Board members should decline requests to meet with or engage in oral or written discussions with proponents or opponents of projects that require conditional use permits.  [Note:  Our Town Attorney has advised us to forward to the Town Clerk emails that we have received supporting or opposing CUP projects.  The Clerk can then “disclose” them at the hearing by entering them into the record.  Further, discussions regarding what might be developed on a tract or what the Board member would like to see do not run afoul of the “ex parte communication” principle in his judgment.  However, when a particular form of development has been proposed, he opines that the concern arises, even though a formal application may not yet have been submitted (the LUO now requires that an applicant for a special or conditional use permit submit a concept plan to a joint advisory board meeting before an  application is filed).]

In contrast, since zoning map or text requests are regarded as legislative in nature, there is no legal restriction on Board members meeting privately with persons who support or oppose such requests, and such communications do not have to be disclosed.  However, as a prudential matter, pre-public hearing commitments on supporting or opposing a particular rezoning proposal should generally not be made in order to avoid the criticism that the public hearing is of no consequence.

The lack of restrictions on pre-public hearing communications regarding zoning map or text amendments clearly applies not only to general use district rezonings but also to rezonings to conditional zoning districts (two such conditional districts have been established by Section 15-141.6 of the LUO:   B-2 Conditional and B-1(g) Conditional).  In conditional zoning, no CUP is issued, but the rezoning is approved subject to conditions that are written right into the rezoning ordinance itself – thus the process is regarded as legislative.  Shelton Station is an example of a conditional rezoning.

Conditional use rezonings (authorized by LUO Section 15-141.3) present a more complex situation.  The ordinance requires that the applicant for  a conditional use rezoning submit simultaneously both a rezoning request and a conditional use permit application, and further provides that both “shall be processed and reviewed concurrently.”  A single public hearing is held, using quasi-judicial procedures, but votes on the two requests are held sequentially.  The ordinance clearly states that the Board makes a legislative decision on whether to grant the rezoning.  If the rezoning is denied, that effectively denies the CUP request.  If the rezoning is approved, the Board votes on the CUP just as it would any other CUP.

In theory, because the Board makes a legislative decision when it votes on the rezoning component of a conditional use rezoning request, pre-hearing conversations about the merits of just the rezoning proposal would be unobjectionable.  However, the reality is that in most all cases it will not be possible to confine the discussions to the rezoning while avoiding discussions about the CUP.  After all, it is the CUP that defines what the applicant actually proposes, and not the rezoning, which potentially authorizes a much wider range of uses. If conditional use rezonings were always turned down, this would not matter since the Board would never reach the quasi-judicial decision (the CUP).  However, the ex parte communication limitation would come into play if the rezoning is approved and the Board is then called upon to consider the CUP.  Therefore, I recommend that Board members treat conditional use rezonings just like standard conditional use permit requests in terms of avoiding ex parte communications.

 

 

 

Charging for park and ride lots

At our January 15, 2013 Transit Partners Meeting, we had a discussion about UNC-CH’s plans to begin charging for parking at their University park and ride lots starting in August of this year.  We were aware that this would be happening, as this is part of their Department of Public Safety Transportation and Parking Five-Year Plan.  We discussed possible impacts to the towns (Chapel Hill and Carrboro).

By necessity, this required Chapel Hill Transit to investigate charging at Town-owned park and ride lots, because the fear is that many commuters might choose to park at the free town lots rather than pay for a permit in the UNC lots.   The Chapel Hill town lots this will affect are located on Eubanks Road, in Southern Village and on Jones Ferry Road.  If the Town of Chapel Hill is to start charging also, this means setting up a system for parkers to pay ,distributing permits to parkers, hiring parking monitors, and so on.  A more complicated discussion involves how often to allow people to pay – unlike the University, which can operate on a University semester or academic schedule and can deduct parking by payroll deduction, there needs to be a way to let local residents use the Town of Chapel Hill park and rides, yet be able to pay on a different schedule (and, what about the occasional user?  This supposes that people who use the park and rides do so regularly).  A further complication is that Triangle Transit riders also use the lots (in particular, the one on Eubanks Road) to park their cars and then pay to ride Triangle Transit routes to nearby towns.  Should they also have to pay for parking?

Finally, what are the implications for Carrboro?  Our town prides itself by having free (and thus far, fairly adequate) parking.  I have not heard a majority of our board suggest that we want to change this philosophy.  But when these changes take place in August, we need to be mindful that this may push riders (“parkers”) into our free lots or town, and so we need to have a strategy to address this.  Also, Chapel Hill Transit currently has an arrangement with the owners of Carrboro Plaza (at a minimal cost) to have a free park and ride lot on the back side of the stores for transit; the owners of the plaza are not interested in having equipment installed to have transit riders pay to park and ride.  Their concern is that parkers will simply park on the front side of the plaza and then walk through to the back to catch the bus.  So, the implementation of these plans will also likely mean that this park and ride lot will be eliminated.

Stay tuned for how the Chapel Hill Town Council decides to address this in the coming months, and the implications for Carrboro.

 

OWASA update

We had a discussion regarding OWASA at our November 13, 2012 meeting.  As background, we created an OWASA subcommittee at our April 24, 2012 board meeting as “a board subcommittee to work through technical information related to the OWASA draft DROP program with the Town’s OWASA representatives, to work with the Chapel Hill subcommittee, and to communicate more effectively with OWASA.”  Randee Haven-O’Donnell, Sammy Slade and I were appointed to the committee and met several times over the summer and fall with our OWASA representatives, staff from the N.C. Division of Water Resources, Town staff and OWASA staff.

Out of these meetings, the subcommittee identified three areas of importance and ongoing discussion:  1. the pursuit of a Level I allocation (and if necessary, pursuing a change in the administrative rules regarding the Level I allocation) 2. ongoing concerns with the current Drought Response Operating Protocol (DROP) and its relation to necessary changes to the Water and Sewer Management, Planning, and Boundary Agreement (WSMBPA), and 3. enhanced conservation (expanding programs, infrastructure, possible Conservation Task Force).  This post will deal specifically with the first area.

OWASA currently has a Level 2 allocation.  The difference between Level 2 and Level 1 is that Level 2 is allocation, while Level 1 is allocation and intent to withdraw within five years.   An entity pays $250,000 to move from Level II to Level I.  NC Division of Water Resources (DWR) staff has stated that any withdrawal from Jordan Lake, whether for ongoing or emergency needs, must come from a Level 1 allocation.  OWASA currently can withdraw water from Jordan Lake for emergency use (by debiting Cary’s allocation), but Durham and Cary staff have made it clear that in the future, any water from Jordan Lake that is sold to OWASA must come from OWASA’s own Level 1 allocation.

There have been three Jordan Lake allocations over the past few decades, and the fourth round of allocations is coming up. Applicants must submit draft applications by February 1, 2013 and final applications by May 1, 2013. the Environmental Management Commission (EMC) will make decisions as to allocations at their September 11, 2014 meeting.  OWASA is concerned that by not applying for a Level I allocation soon, they will have a weaker claim for allocation when the definitive decisions are made.

If OWASA starts the process toward Level 1 and over the course of the next year decides not to continue to pursue Level 1, the initial $250,000 that is expended can be reimbursed.  One item of concern is that an entity may lose its Level 1 assignment if the recipient does not begin to withdraw within five years of receiving an allocation. OWASA has said that they do not necessarily plan to draw water within five years, but feel they can argue successfully that they “intend” to draw water within five years to DWR, based on possible emergency usage.

OWASA’s need for Jordan Lake water is unique in that it would use Jordan Lake to supplement its water supply under an emergency (as defined in WSMPBA), in contrast to other Jordan Lake partners who use Jordan Lake as their primary water supply.   If OWASA’s Level 1 application is rejected, or if OWASA decides not to go forward under the current rules, OWASA might consider pursuing an administrative rule change to cove r their unique circumstances.

I should also note that an area of concern of the subcommittee is that OWASA has not finished doing the financial and logistical research it needs to do as to the full cost and commitment required if it is to rely on Cary and Durham for water transfer with a Level 1 allocation.

The subcommittee asked the Board of Aldermen to consider these comments, and whether to support OWASA pursuing a Level 1 allocation.  After a bit of discussion, the Board voted 5-2 against OWASA pursuing the Level 1 allocation.  Randee Haven-O’Donnell and I voted against the motion.  The vote is really a symbolic one, as the OWASA Board of Directors will decide whether to pursue the allocation.  However, our representatives will be instructed by our vote.

I voted against the motion because I would like to make certain we have a back-up plan in place in case of a water emergency, and I see no harm in pursuing the Level 1 allocation at this time, particularly because the initial cost is refundable. I made clear that my intent is for the Level 1 allocation to be used as a back-up, not a primary water source.  I still have concerns about the proposed DROP protocol where the OWASA Board might urge the use of Jordan Lake water sooner than at an emergency level.  But that is a subject for another day.

 

The cost of judicial elections

 Following is a commentary I wrote and recorded for Chapelboro regarding the upcoming November elections.  Of particular concern to me were the judicial elections.  Despite the advent of public financing, it was apparent that “big money” was being spent to influence the judicial elections as a result of the United States Supreme Court Citizens United decision.

It is election time, and we should all have great concern about how little the voters know about our appellate judicial candidates.  Studies have shown that people sometimes vote for certain candidates based simply on their gender or their name.

In our one North Carolina Supreme Court race, a new Super PAC has spent more than $800,000 to try to keep conservative Justice Paul Newby on the court.  Newby is being challenged by North Carolina Court of Appeals Judge Sam Ervin IV.  If Judge Ervin wins, the philosophical bent on the court will likely shift.

Newby has stated that he is not bothered by unlimited spending by PACs in elections, because this supports a “free speech” concept and helps people learn about the candidates. Democracy N.C. has said that “this is not free speech, it is purchased speech.”  Ervin has stated that he worries this excess of outside money will erode the public’s confidence in the judiciary.   By the way, if you have a chance, find the Newby banjo ad on the web and watch it.  I like banjo music, but I am not sure what “being tough on crime” has to do with applying the law as an appellate judge!

As for the remaining appellate races, there are three incumbents running for re-election to the Court of Appeals:  Judges Linda McGee, Wanda Bryant and Cressie Thigpen.  These judges bring diversity, as well as – in my opinion – years of sound appellate experience to the bench.

In North Carolina, appellate judges run state-wide – a monumental task – without a party affiliation on the ballot.  This means that voters need to be educated about these judicial elections, arguably the most important elections in our state.  These courts issue decisions that affect North Carolinians on a daily basis.  Visit the candidate and party web sites, read the Public Funding Voter Guide that you received in the mail, talk to attorneys you know, read the endorsements of groups you trust.

Please be an informed voter and inform others.

 

Resolution for Rogers Road

On September 18, 2012, we were asked by the County to consider several decisions related to reparations for the Rogers Road neighborhood, which bore the burden of the nearby landfill for many years.  A newly-formed Historic Rogers Road Neighborhood Task Force had been meeting for several months, and out of the group came several recommendations for the three jurisdictions (Chapel Hill, Orange County and Carrboro) involved in the legal entanglements of the Rogers Road community  to consider.  One was to discuss how much each jurisdiction might be willing to allocate toward a sewer infrastructure that would serve the historic Rogers Road properties.  Another was to consider allocating money to go toward construction of a community center for the neighborhood (a community center had been informally operating in the neighborhood, but had been forced to close due to several code violations).  The County had already signaled their intent to contribute financially to these two initiatives.

The Board members present (Dan Coleman was absent) were unanimous in agreeing that money should be allocated toward improvements in the neighborhood, although we discussed several logistical concerns about the proposals.  With regard to the sewer infrastructure, we wondered if future developers would really be the ones to ultimately benefit from the sewer extension, rather than current residents.  We also discussed concerns with the ongoing operating costs that would be associated with any community center that was built.  We further noted that there was a community center planned for a church property being developed on Rogers Road, and wondered whether it made sense to pursue a joint venture with the church.  We also were concerned about agreeing to allocate a percentage of money toward what was currently an unknown total cost.

Ultimately, the Board voted 6-0 “that the Town of Carrboro has the intention of contributing not more than $900,000 for the Town’s portion of the community center and cost of the sewer project.” We also directed the Town Manager to research funding sources, and investigate how the Town could recoup the sewer line investment costs from future developers.  We also expressed our appreciation to the County for their commitment to the project and requested that the Town of Chapel Hill consider their share of the contribution.