Commercial Business

We on the Board of Aldermen were recently presented with (and approved) a multi-party financial agreement that would lead to the following result:  keeping two successful local businesses – Fleet Feet, Inc. (its headquarters and a retail store) and Kalisher – in Carrboro.  An overview of the agreement can be found by reading the following article: The agreement involves a purchase of property and a financial commitment by the Town.

We received lots of support electronically and in-person at our board meeting where we first discussed this proposal publicly.  We did receive a small amount of negative feedback; these related to two general themes.  One concern was around parking – in a town where we are trying to promote biking, walking and using the bus, why are we committing to providing what seems to be a large number of parking spaces for one of the businesses?  We addressed this concern by tying in the parking more closely to the number of employees expected for the business, and by providing financial incentives for employees of that company that chose to use alternative means of transportation to work.  But – point well taken.  As we continue to examine our parking situation in town, this feedback seemed particularly timely and relevant.

The second concern was around what could be characterized as a lack of transparency with the transaction.  The general public found out about this proposed deal four days before our first public discussion and first vote on the matter.  Usually in Carrboro, we kick around an idea of this magnitude for a few weeks, getting lots of public input, before voting on it.  This deal, by its nature, was a different animal.  The Board of Aldermen had discussed the proposed purchase in closed session twice before it appeared on the public agenda, as this is one of the rare subjects (purchase of real estate) permitted by law to be discussed initially in this way.  Secondly, because of the timing of the deal (end of June, before the summer break), input from the general public had to be received as soon as possible (as some input was) and a decision had to be voted on quickly to keep the E. Main Street project moving forward and to keep our two local businesses here in Carrboro.  It seemed to me to be one of those times as an elected official that, having been elected by the citizens, we needed to use our best collective wisdom in determining with a short turnaround whether to move forward with the deal.  This being the case, I believe we made the best decision for Carrboro’s future.

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.



Most media coverage of late about what has been going on in Carrboro has been fixated on the property at 201 N. Greensboro Street.  Several weeks back, a group of local anarchists broke into a building on the property (after a few hours of discussion with our mayor and police chief, the persons inside the building vacated the premises).  A few weeks later, our Board of Aldermen learned through various sources that the group planned to disturb the property again.  Thereafter, our Board spent a good bit of time during a meeting hypothesizing with our police chief about what form this event could take, an event about which the town was never given formal notice (but one which was advertised on a flyer as an event whose purpose was to make the point that “all private property is stolen.”)   Days later, staff time was spent monitoring this event, resulting in one arrest.  Afterward, the local media reported that some citizens and aldermen were upset at the police presence at the event.  The police chief expressed her frustration through the press that “it hurts morale … We continue to do the right thing. We focus on our roles and responsibilities as police officers and enforce the laws … despite the lack of support.” 

As a member of the Board of Aldermen, I want to make clear where I stand in my support of the Carrboro police.  I have not heard anything related to the above-stated chain of events to change my opinion that our police department goes above and beyond its responsibility as an office of law enforcement to not only uphold and enforce the law, but to attempt to balance the values of our community while doing so.  In fact, I publicly stated my support of our police department at our board meeting on March 20, 2012. 

We have lots of work to do in Carrboro, and precious few resources available to get that work done.  During my campaign last fall, citizens were constantly asking me about our tax rate, and how we might increase our commercial presence and sales in Carrboro so that we could relieve the property tax burden on our citizens who own property in the town.  Working on this goal has been a major initiative of our Board.  We have a new Town Manager who is getting up to speed with all of our issues, and who is in the process of preparing a proposed budget for our upcoming fiscal year, a tremendous challenge.  We are constantly working to upgrade our bicycle and pedestrian network, and we are advocating for an expanded transit network via a transit tax that the Board of County Commissioners will likely put on the ballot this fall.   We continue to have important discussions with OWASA, our local water and sewer provider, as we work to make certain we will have a safe, adequate, plentiful water supply in the years to come.  And we are speaking out against the harms of proposed Amendment One, which is on the ballot on May 8, and making certain that people know there are Town employees that will lose their domestic partner benefits if this proposed amendment to our North Carolina Constitution passes.  

As you can see, plenty is happening in Carrboro, and there is lots of work to do.  Let’s turn our attention (and the media’s) toward tackling these other issues.

On January 26, 2012, our Board approved the rezoning of parcels of property located at 404, 406, 500 N. Greensboro Street and 113 Parker Street for a project which has come to be known as Shelton Station.  The vote was 4-3 in favor of the rezoning (Mayor Chilton and Aldermen Haven-O’Donnell, Slade and I voted in favor of the project, and Aldermen Gist, Coleman and Johnson voted against the project).  We heard many thoughtful arguments for and against the project, which, if and when built out, will change N. Greensboro in a very noticeable fashion.   Pros of the project argued were that it would bring more people downtown to live, spend money, and conduct their daily activities in a more sustainable fashion (it is on a transportation corridor, and the project will be built to LEED-equivalent standards), and that it included a sizeable number of affordable units.  A further pro was that there is a purely commercial component to the project that will enhance the tax value of the property, and add to the sales tax base.   Arguments against the project were that it was too dense and would attract students, would lead to more traffic, and that it would change the character of the surrounding neighborhood.  

I think that this project is uniquely situated to be one that does not impact nearby residences (it sits between Southern States and the Fitch warehouse, and will back up to the railroad tracks).  The Carrboro developer, Ken Reiter, responded to concerns of the community and scaled back the project on two separate occasions.  I think what we have ended up with is exactly what the majority of the citizens of Carrboro would want as we continue to seek ways to reduce the tax burden on our taxpayers, and act responsibly while doing so.  You can read more about this here:

I filed today.  Here is my news relase:

Lydia Lavelle announced that she will file to run for a second term on the Carrboro Board of Aldermen. Lavelle was first elected in November 2007.

During her first term, Lavelle has not only been a steady presence on the Board, but has also been actively representing Carrboro’s interests in several other capacities.

This year, she is serving as the chair of the regional Transportation Advisory Committee of the Durham/Chapel Hill/Carrboro Metropolitan Planning Organization (TAC-MPO), a group 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 Visitor’s Bureau Board of Directors, and is the BOA liaison to the Planning Board.

Lavelle has lived in the triangle area for 28 years, and at her current address for seven years. She became a member of the Town’s Planning Board and chaired its New Horizons Task Force after her neighborhood became a part of the town in January 2006. An attorney, Lavelle is employed as an Assistant Professor at the North Carolina Central University School of Law in Durham.

“I am grateful to the voters of Carrboro who elected me four years ago to serve as an alderman. During my first term, I have established a reputation as a person who listens and makes well-reasoned decisions. I work hard to be accessible to my constituents and colleagues. Further, I actively represent the interests of Carrboro in a variety of regional settings. I have enjoyed getting to know many fine people who also care about Carrboro during my tenure. If I have the opportunity to serve the Town of Carrboro with a second term of office, I will continue the local leadership that I have established these first four years.”

Lavelle has a history of service in her communities. Before serving on the Board of Aldermen, she worked for the city of Durham for eight years, after which she became a member of the City of Durham Recreation Advisory Committee and the Durham Open Space and Trails (DOST) Commission. She was vice-chair of the DOST for several years, and also a member of the Trails Committee, which planned and routed many of the trails and greenways in Durham.

Her continuing priorities will be to work to improve transportation options, to represent Carrboro’s concerns and interests with regional partners, and to steward Carrboro’s growth and development with an eye towards diversifying the town’s tax base.

A lot has been happening this spring, so I thought I would summarize a few matters with this post.  One is that I have been involved in more extra meetings than I thought possible working on our MPO’s transit plan, which includes expanded bus service as well as a light rail line between UNC Hospitals and Alston Ave.  We are under the gun to convince the Orange County and Durham County Commissioners to vote to have a transit tax on the ballot this fall; this money would go toward the transit plan with money from other sources such as a vehicle tax increase and federal and state funds.  The transit tax, however, is a key component in the plan, and one that will require voter education and buy-in if it is indeed on the ballot.

Another bit of news is that our town manager, Steve Stewart, announced that he will be retiring at the end of the summer, and so we have begun the process of hiring a search firm to help us fill this most critical position.  In my opinion (and I am not alone), Steve has done a fine job as town manager, and our task will be challenging as we seek to find someone who brings his level of skill and experience to the position. 

Speaking of the Town Manager, Steve masterfully presented another tax-increase free budget to us this month for the upcoming fiscal year.  He accomplished this predominantly by cost cutting where possible, keeping some positions vacant, and delaying some capital purchases.  These are not options we can do every year, but as the economy improves, hopefully we will be able to restore money in areas where we have had to cut or delay expenses.

We voted at one of our meetings to a rezoning for a property off of Hillsborough Road so that the County could consider an option to purchase the property to build a Carrboro branch library on the site.  Many residents came out to speak in favor of the project, but there were also several residents (mostly neighbors) who spoke who did not want the site rezoned for a library.  Although we ended up voting for the rezoning (a supermajority vote of six affirmative votes out of the seven members was required because a protest petition had been submitted by neighbors), we also expressed concern about the plans for traffic flow to the library and the impact on the streets surrounding the property.  When the site plan comes before us in the future, we will be looking at this closely. 

Finally, at one of our meetings, we reviewed the parking deck that will be constructed at the East Main Street project.  We gave comments and feedback to the developer, and were told that they hoped to break ground later this summer on both the parking deck and the hotel on the property.  This is a much anticipated project in Carrboro, one that will be a key to our plan for growth in the downtown area.

It has been a busy spring!

I would like to respond to an article printed in The Chapel Hill Herald on Wednesday, February 2, about economic development in Carrboro.  The article summarized various comments made during our Board of Aldermen retreat held on January 30, a retreat at which no motions were made or votes taken.  The focus of the retreat was economic development, and board members had an opportunity to have a free-flowing conversation nearly all afternoon. 

The comments printed in the article were attributed mostly to Dan Coleman and Jacquie Gist when, in fact, several of us chimed in with our comments on the direction the Board should take.  I would like to take this opportunity to summarize the comments that I made at the retreat, as one could assume from the way the article was written that the entire Board felt the same way about the Chamber, when in fact this is not true.  I am a supporter of the Chapel Hill-Carrboro Chamber of Commerce.  As I told the Board, I always attend the Chamber’s Annual Meeting, where in fact, last year, many Carrboro businesses were recognized and honored.  The Chamber offers benefits that appeal to Carrboro businesses, such as their unique small business health insurance program (offered by Piedmont Health Services) and the opportunity to network with other local businesses.  We have at least seventy businesses that are Chamber members, and I urged the Board to include the Chamber in any economic development effort we have, including having a seat at the table of any new committee we help form.

I recognize that not all of the positions that the Chamber (or any group, for that matter) takes will be in accord with positions that our Board takes.  However, I believe the positives of working with the Chamber outweigh the negatives, particularly in these days of finding our way back to economic prosperity.    

I believe in the local economy model.  As the report from the Local Living Economy Task Force states, “More money re-circulates in your community when you buy from locally owned, rather than nationally owned, businesses.”  Some of the specific action items that came out of the report that we discussed at the retreat are promising:  we want to identify ways for people to “Think Local,” not just “Buy Local,” such as thinking of using local professional services when shopping for attorneys, doctors or architects.  We directed our Economic Sustainability Commission to explore innovative ways to set up a mechanism to invest money locally.  We had a lengthy discussion on how to financially bolster our very successful revolving loan fund.  These are the types of specific efforts I would like the Board to discuss with Chamber officials, and we discussed the idea of having an event with Chamber officials during which we could show them our philosophy in action. 

Ironically, while discussing taking Chamber officials on a tour of Carrboro, we realized that one of the stops might be Southern States, a “chain” store that we think of as a local store.  The local living model recognizes that you cannot always be completely local:  in ascending order, first, you buy less (not so good for economic development, but another core value in a community that believes in the philosophy of reduce, reuse, recycle); then, you buy completely local, meaning from a local store, with locally made goods and locally found input; then you buy with at least one element that is local; then you buy regional; then you buy bi-local or fair trade.  

As I study these concepts, I acknowledge that each community has its own unique geographic and constituent mandates, and that each community cannot exist in a vacuum.  This does not mean Carrboro needs to change its underlying philosophy, nor should we degrade others who do not subscribe entirely to the local living model.  But what we can do is share our position regarding economic development with others in an effort to foster greater understanding.

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