Residential Development

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.



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:

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!

We heard quite a bit about flag lots at our meeting on November 23 (a public hearing continued from October 26).  At issue is whether to require (via a text amendment) that persons wishing to develop certain housing on property described as “flag lots” (they look just like they sound – they have a long, skinny driveway and lead back to a lot) be required to have a special use permit issued by the Board of Adjustment before being permitted to do so.  Staff has recommended that the board consider this requirement because over the years, the development of flag lots has been half hazard and inconsistent, and has sometimes created driveway access problems for emergency vehicles and trash pick-up.

Board members expressed the concern that the concerns, overall, went more to infill development than to flag lots in particular.  Concern was also expressed from board members about increased costs and a longer time frame for this type of development, as well as inconsistent requirements for development of frontage property as opposed to development of flag lot property.  There was a desire expressed to try to keep the process as simple as possible in Carrboro. 

The board voted to have staff return at a later date with a follow-up report.

At our board meeting on October 26, we voted to allow the developer (M/I Homes) of the Ballentine property to include a commercial component in their project.  The property is located off of old N.C. 86, not far from the future Twin Creeks Park.  When the total development was initially approved, it was all residential, and Phases 1 and 2 are currently being built.  But the developer re-worked their concept plans for Phases 3 and 4 in a way to allow a mix of residential and commercial development.  In fact, they did this at our request.  When they spoke to us about delays in this project back in 2009, we granted them an extension, and strongly suggested they look at including a commercial component if possible. 

Having come to us with what we suggested, I was hard-pressed (as were others on the board) to tell them to drop the idea.  The commercial component will not be a dominating feature of the design, a point that I believe is necessary with this first step in the northern area of town.  The board did express some concern that the total allowable residential build-out not come to fruition, and the developer assured the board that due to geographic constraints, this would not be possible.  When the developer returns to the board with their detailed project plan, the residential part of the project will be reviewed to make certain this is the case (specifically,  the final vote was to rezone the property from R-R/R-20 to R-10/B-3 Planned Unit Development).  

This was a big step for the board – to “put up or shut up” about efforts to try to get commercial development in the northern area.  Time will tell how this and other projects fare.

You can read more about this project here:

Returning from our summer break, we held public hearings on The Butler and the 300 East Main Street development during our meeting on Tuesday, August 26, 2008. We approved The Butler development after much discussion and information presented from the developer.

We presented the East Main Street developer with various comments and a list of questions that we want addressed before the public hearing is continued in September. Click HERE for a picture of the proposed project with accompanying article, and HERE for more about the project.

Posted on April 11, 2008

Here is a link to an article in The Carrboro Citizen about the discussion the BOA had about reviewing the development plan for the northern area of Carrboro: