PL10-010
STAFF REPORT
Planning and Development Committee, November 19, 2009
Appeal of Denial of Bailey’s Creek Subdivision Plan (PL10-010)
Consideration of an appeal of the Planning Director’s denial of the Bailey’s Creek Subdivision plan for failure to meet Sections 7.10.3 (A) and (B) of the Land Development Ordinance (LDO)
Speaker: Mr. Kevin Hales
From: Jeffery G. Ulma, AICP, Planning Director
Prepared by: Kevin A. Hales, Senior Planner
Approved by: Benjamin T. Shivar, Town Manager
Approved by: Michael J. Bajorek, Assistant Town Manager
Executive Summary: On October 7th, 2009, a letter was sent to the applicant for the Bailey’s Creek subdivision plan (08-SB-011) indicating that the Planning Director, upon the recommendation of the Development Review Committee (DRC), had denied the proposed subdivision plan. The proposed subdivision plan was denied based on the applicant’s failure to comply with Sections 7.10.3(A) and (B) of the LDO. On October 8, 2009, an appeal was submitted to the Planning Department to be forwarded to Town Council for consideration in accordance with the LDO. The LDO requires that Town Council first decide, by majority vote, whether to consider the appeal and then, if the appeal is considered, Town Council may act on the request. Staff recommends that Town Council affirm the denial.
Background: The proposed Bailey’s Creek subdivision is located at the northern terminus of Anita Way, north of the existing Evans Estates subdivision. The property does not have frontage on Evans Road; however, a right-of-way for a future street (Bailey Park Lane) was previously dedicated between the Bailey’s Creek parcel and Evans Road during the subdivision of the adjacent parcel.
The property was rezoned in April 2008 in preparation for the submittal of a subdivision plan. The meeting minutes for the rezoning include a significant amount of discussion regarding connectivity for a future subdivision. In response to discussion involving connectivity, staff indicated that connectivity would be reviewed in association with a development plan and noted, however, that it was a point of concern for members of the Town Council and should be reviewed closely during the review of the subdivision plan.
The Bailey’s Creek subdivision plan was submitted for review in December 2008. One of the staff review comments provided to the applicant was that a vehicular connection to the property located to the west is required by the LDO. The applicant responded that the provision of a vehicular connection to the adjoining property would be undesirable, predominantly due to a necessary crossing of a stream running parallel to the western property line. Therefore, the applicant was asked to provide correspondence from the applicable permitting agency to the effect that the required stream crossing would not be permissible. The applicant has not submitted the requested documentation. Instead, the applicant responded that a waiver would be requested from the connectivity requirements.
The applicant submitted a written request for consideration of a waiver from the connectivity requirements with the second submittal of the subdivision plan. After consideration of the request by the DRC, by the Planning Director, and by the Engineering Director, the requested waiver was denied because staff did not feel that the justification provided was sufficient without evidence from the appropriate permitting agency that the connection would not be permitted. There are numerous developments in which stream crossings were required for increased connectivity both within a development and between adjacent developments. The applicant responded that they felt the public benefit did not outweigh the potential environmental impacts and that they would like to appeal the decision.
Section 3.9.2(I) of the LDO establishes criteria for the approval of a development plan, one component of which is that the plan meets all applicable requirements of the LDO. Staff did not see any ambiguity in the LDO that warranted the Planning Director deferring the plan to Town Council for interpretation and review. As a result, the plan was denied administratively for failure to meet the requirements of Sections 7.10.3(A) and (B) of the LDO. Section 3.9.2(G) of the LDO provides the option to submit an appeal of an administrative denial to the Town Council for review within ten days of being notified of such action.
Discussion: Section 7.10.3(A) of the LDO states: “any residential development shall be required to achieve a connectivity index of 1.2 or greater unless the Planning Director determines that this requirement is impractical due to topography, existing development, and/or natural features.” The connectivity ratio of a subdivision is the number of street links divided by the number of street nodes (intersections/culs-de-sac). The connectivity ratio of the Bailey’s Creek subdivision, as submitted, achieves a connectivity index of only 1.0 (three links and three nodes). The connection to Bailey Park Lane, aligned with the currently proposed intersection, would raise the connectivity index to 1.3, thereby satisfying the requirement of Section 7.10.3 (A).
Section 7.10.3(B) of the LDO requires that vehicular connection be made in each of the cardinal directions, typically every 1,250 feet to 1,500 linear feet, unless deemed impractical by the Planning Director. Staff conceded that connections to the developed properties located to the north and to the east would be impractical given both the existing development patterns and the sensitivity of the Black Creek corridor located to the east. Staff felt that a connection to the Bailey Park Lane right-of-way would provide an additional point of access to Evans Road for residents of Bailey’s Creek, as well as for the existing Evans Estates subdivision. The connection would require the crossing of a small, un-named tributary of Black Creek; however, it is not unusual for subdivision plans to include stream crossings to facilitate better circulation from a vehicular and a pedestrian standpoint. Staff believes that, absent adequate justification for a waiver, connectivity to the west is warranted since no opportunities exist for future connections to the north or to the east.
The applicant submitted a written response to the denial of their requested waiver from the connectivity requirements. This letter indicated their reasons for not wanting to provide the connection (indicated in Bold below), to which staff offers the following observations (indicated in Italic below):
• Environmental Degradation: As mentioned previously, the connection would require the crossing of an un-named tributary of Black Creek that is protected by a 50-foot (either side, 100 feet total) riparian buffer which is regulated by the State of North Carolina. While the proposed crossing would impact the tributary and the adjacent riparian buffer, linear impacts associated with vehicular crossings and with other infrastructure are relatively common in the course of development and are considered allowable. The statement provided by the applicant’s environmental consultant noted that the crossing would not necessarily satisfy the impact justification criteria for approval; however, the consultant also indicated their impression was that the connection was not required to satisfy development regulations.
As mentioned previously, staff has requested that the applicant provide documentation from the applicable permitting agency to indicate whether the proposed crossing would or would not be permissible. To date, the applicant has not provided the Town with the requested documentation. Staff believes that the crossing would be considered permissible, as the connection is required by the LDO.
• No Justifiable Public Need: The connectivity requirements of the LDO were adopted to “… support the creation of a highly connected transportation system within the Town in order to provide choices for drivers, bicyclists, public transit passengers, and pedestrians; promote walking, bicycling and public transit; connect neighborhoods to each other and to local destinations such as schools, parks, and shopping centers; reduce vehicle miles of travel and travel times; improve air quality; reduce emergency response times; increase effectiveness of municipal service delivery; and free up arterial capacity to better serve regional long distance travel needs.” The applicant’s response correctly asserts that the proposed subdivision conforms to standards for maximum cul-de-sac length and for the number of lots served from a single entrance. The fire department has indicated that there are no concerns about the length of the cul-de-sac or number of units being accessed through Anita Way. However, the provision for additional points of access to a development increases the efficiency and efficacy of service delivery, included public safety. The length of the cul-de-sac and the number of lots being less than 100 do not relieve the applicant from meeting the remainder of the connectivity requirements of the LDO.
• Phasing: The applicant has indicated that constructing the connection to the property line would be problematic for topographical reasons. In situations such as this that involve topographical constraints, the Town has allowed a developer to construct as much of the connection as is practical while providing access and construction easements to allow the remainder of the construction to occur when the adjacent property develops. Alternately, the Town could consider approving the dedication of the right-of-way and any necessary construction easements to allow the entire connection to be constructed with the development of the adjacent property. To date, the applicant has failed to provide any type of provision for future vehicular connectivity.
Staff sees no ambiguity in the LDO requirements and feels, coupled with the existence of a right-of-way on the adjacent property and absent documentation from any permitting authority that prohibits the crossing, the provision for the vehicular connection to Bailey Park Lane does not represent an undue hardship to the applicant.
Fiscal Impact: The provision of the connection may reduce the number of lots the subdivision could contain, thereby reducing potential revenue from the subdivision. Alternately, the applicant may decide not to pursue the subdivision at this time if the connection is required, representing a larger loss in revenue for the Town. Elimination of the required connection between adjacent subdivisions adversely impacts efficiency and efficacy of service delivery, including police, fire, and solid waste services.
Staff Recommendation: Based on the appeal provisions of the LDO, the Town Council is being asked by the applicant to make two separate decisions regarding this appeal. First, the Town Council must decide whether or not to consider the appeal. Staff feels that decision should rest solely with the Town Council and, as such, staff does not offer a recommendation on that point. Second, if the Town Council chooses to consider the appeal, it may affirm, may reverse, or may modify the Director’s denial of the plan. Alternately, the Town Council may also direct that the plan be processed through the Planning and Zoning Board for a recommendation prior to action by the Town Council on the appeal of the denial of the proposed subdivision plan.
Staff believes that the connection to the existing right-of-way provided for Bailey Park Lane to the west provides the only practical opportunity to provide additional connectivity for this subdivision. The applicant has not provided the requested correspondence to demonstrate that the required crossing would not be permissible. Absent such documentation, staff does not feel that the required crossing of a stream is sufficient justification for waiving the requirements of the LDO. Staff sees no ambiguity in the regulations and the applicant has made no attempt to provide any provision for a connection to the adjacent property in accordance with LDO requirements, despite being requested by staff to do so since the initial review of the plan.
For the above reasons, staff recommends that the Town Council, should it choose to consider the appeal, affirm the Planning Director’s denial of the Bailey’s Creek subdivision plan.
Planning and Development Committee, November 19, 2009
Appeal of Denial of Bailey’s Creek Subdivision Plan (PL10-010)
Consideration of an appeal of the Planning Director’s denial of the Bailey’s Creek Subdivision plan for failure to meet Sections 7.10.3 (A) and (B) of the Land Development Ordinance (LDO)
Speaker: Mr. Kevin Hales
From: Jeffery G. Ulma, AICP, Planning Director
Prepared by: Kevin A. Hales, Senior Planner
Approved by: Benjamin T. Shivar, Town Manager
Approved by: Michael J. Bajorek, Assistant Town Manager
Executive Summary: On October 7th, 2009, a letter was sent to the applicant for the Bailey’s Creek subdivision plan (08-SB-011) indicating that the Planning Director, upon the recommendation of the Development Review Committee (DRC), had denied the proposed subdivision plan. The proposed subdivision plan was denied based on the applicant’s failure to comply with Sections 7.10.3(A) and (B) of the LDO. On October 8, 2009, an appeal was submitted to the Planning Department to be forwarded to Town Council for consideration in accordance with the LDO. The LDO requires that Town Council first decide, by majority vote, whether to consider the appeal and then, if the appeal is considered, Town Council may act on the request. Staff recommends that Town Council affirm the denial.
Background: The proposed Bailey’s Creek subdivision is located at the northern terminus of Anita Way, north of the existing Evans Estates subdivision. The property does not have frontage on Evans Road; however, a right-of-way for a future street (Bailey Park Lane) was previously dedicated between the Bailey’s Creek parcel and Evans Road during the subdivision of the adjacent parcel.
The property was rezoned in April 2008 in preparation for the submittal of a subdivision plan. The meeting minutes for the rezoning include a significant amount of discussion regarding connectivity for a future subdivision. In response to discussion involving connectivity, staff indicated that connectivity would be reviewed in association with a development plan and noted, however, that it was a point of concern for members of the Town Council and should be reviewed closely during the review of the subdivision plan.
The Bailey’s Creek subdivision plan was submitted for review in December 2008. One of the staff review comments provided to the applicant was that a vehicular connection to the property located to the west is required by the LDO. The applicant responded that the provision of a vehicular connection to the adjoining property would be undesirable, predominantly due to a necessary crossing of a stream running parallel to the western property line. Therefore, the applicant was asked to provide correspondence from the applicable permitting agency to the effect that the required stream crossing would not be permissible. The applicant has not submitted the requested documentation. Instead, the applicant responded that a waiver would be requested from the connectivity requirements.
The applicant submitted a written request for consideration of a waiver from the connectivity requirements with the second submittal of the subdivision plan. After consideration of the request by the DRC, by the Planning Director, and by the Engineering Director, the requested waiver was denied because staff did not feel that the justification provided was sufficient without evidence from the appropriate permitting agency that the connection would not be permitted. There are numerous developments in which stream crossings were required for increased connectivity both within a development and between adjacent developments. The applicant responded that they felt the public benefit did not outweigh the potential environmental impacts and that they would like to appeal the decision.
Section 3.9.2(I) of the LDO establishes criteria for the approval of a development plan, one component of which is that the plan meets all applicable requirements of the LDO. Staff did not see any ambiguity in the LDO that warranted the Planning Director deferring the plan to Town Council for interpretation and review. As a result, the plan was denied administratively for failure to meet the requirements of Sections 7.10.3(A) and (B) of the LDO. Section 3.9.2(G) of the LDO provides the option to submit an appeal of an administrative denial to the Town Council for review within ten days of being notified of such action.
Discussion: Section 7.10.3(A) of the LDO states: “any residential development shall be required to achieve a connectivity index of 1.2 or greater unless the Planning Director determines that this requirement is impractical due to topography, existing development, and/or natural features.” The connectivity ratio of a subdivision is the number of street links divided by the number of street nodes (intersections/culs-de-sac). The connectivity ratio of the Bailey’s Creek subdivision, as submitted, achieves a connectivity index of only 1.0 (three links and three nodes). The connection to Bailey Park Lane, aligned with the currently proposed intersection, would raise the connectivity index to 1.3, thereby satisfying the requirement of Section 7.10.3 (A).
Section 7.10.3(B) of the LDO requires that vehicular connection be made in each of the cardinal directions, typically every 1,250 feet to 1,500 linear feet, unless deemed impractical by the Planning Director. Staff conceded that connections to the developed properties located to the north and to the east would be impractical given both the existing development patterns and the sensitivity of the Black Creek corridor located to the east. Staff felt that a connection to the Bailey Park Lane right-of-way would provide an additional point of access to Evans Road for residents of Bailey’s Creek, as well as for the existing Evans Estates subdivision. The connection would require the crossing of a small, un-named tributary of Black Creek; however, it is not unusual for subdivision plans to include stream crossings to facilitate better circulation from a vehicular and a pedestrian standpoint. Staff believes that, absent adequate justification for a waiver, connectivity to the west is warranted since no opportunities exist for future connections to the north or to the east.
The applicant submitted a written response to the denial of their requested waiver from the connectivity requirements. This letter indicated their reasons for not wanting to provide the connection (indicated in Bold below), to which staff offers the following observations (indicated in Italic below):
• Environmental Degradation: As mentioned previously, the connection would require the crossing of an un-named tributary of Black Creek that is protected by a 50-foot (either side, 100 feet total) riparian buffer which is regulated by the State of North Carolina. While the proposed crossing would impact the tributary and the adjacent riparian buffer, linear impacts associated with vehicular crossings and with other infrastructure are relatively common in the course of development and are considered allowable. The statement provided by the applicant’s environmental consultant noted that the crossing would not necessarily satisfy the impact justification criteria for approval; however, the consultant also indicated their impression was that the connection was not required to satisfy development regulations.
As mentioned previously, staff has requested that the applicant provide documentation from the applicable permitting agency to indicate whether the proposed crossing would or would not be permissible. To date, the applicant has not provided the Town with the requested documentation. Staff believes that the crossing would be considered permissible, as the connection is required by the LDO.
• No Justifiable Public Need: The connectivity requirements of the LDO were adopted to “… support the creation of a highly connected transportation system within the Town in order to provide choices for drivers, bicyclists, public transit passengers, and pedestrians; promote walking, bicycling and public transit; connect neighborhoods to each other and to local destinations such as schools, parks, and shopping centers; reduce vehicle miles of travel and travel times; improve air quality; reduce emergency response times; increase effectiveness of municipal service delivery; and free up arterial capacity to better serve regional long distance travel needs.” The applicant’s response correctly asserts that the proposed subdivision conforms to standards for maximum cul-de-sac length and for the number of lots served from a single entrance. The fire department has indicated that there are no concerns about the length of the cul-de-sac or number of units being accessed through Anita Way. However, the provision for additional points of access to a development increases the efficiency and efficacy of service delivery, included public safety. The length of the cul-de-sac and the number of lots being less than 100 do not relieve the applicant from meeting the remainder of the connectivity requirements of the LDO.
• Phasing: The applicant has indicated that constructing the connection to the property line would be problematic for topographical reasons. In situations such as this that involve topographical constraints, the Town has allowed a developer to construct as much of the connection as is practical while providing access and construction easements to allow the remainder of the construction to occur when the adjacent property develops. Alternately, the Town could consider approving the dedication of the right-of-way and any necessary construction easements to allow the entire connection to be constructed with the development of the adjacent property. To date, the applicant has failed to provide any type of provision for future vehicular connectivity.
Staff sees no ambiguity in the LDO requirements and feels, coupled with the existence of a right-of-way on the adjacent property and absent documentation from any permitting authority that prohibits the crossing, the provision for the vehicular connection to Bailey Park Lane does not represent an undue hardship to the applicant.
Fiscal Impact: The provision of the connection may reduce the number of lots the subdivision could contain, thereby reducing potential revenue from the subdivision. Alternately, the applicant may decide not to pursue the subdivision at this time if the connection is required, representing a larger loss in revenue for the Town. Elimination of the required connection between adjacent subdivisions adversely impacts efficiency and efficacy of service delivery, including police, fire, and solid waste services.
Staff Recommendation: Based on the appeal provisions of the LDO, the Town Council is being asked by the applicant to make two separate decisions regarding this appeal. First, the Town Council must decide whether or not to consider the appeal. Staff feels that decision should rest solely with the Town Council and, as such, staff does not offer a recommendation on that point. Second, if the Town Council chooses to consider the appeal, it may affirm, may reverse, or may modify the Director’s denial of the plan. Alternately, the Town Council may also direct that the plan be processed through the Planning and Zoning Board for a recommendation prior to action by the Town Council on the appeal of the denial of the proposed subdivision plan.
Staff believes that the connection to the existing right-of-way provided for Bailey Park Lane to the west provides the only practical opportunity to provide additional connectivity for this subdivision. The applicant has not provided the requested correspondence to demonstrate that the required crossing would not be permissible. Absent such documentation, staff does not feel that the required crossing of a stream is sufficient justification for waiving the requirements of the LDO. Staff sees no ambiguity in the regulations and the applicant has made no attempt to provide any provision for a connection to the adjacent property in accordance with LDO requirements, despite being requested by staff to do so since the initial review of the plan.
For the above reasons, staff recommends that the Town Council, should it choose to consider the appeal, affirm the Planning Director’s denial of the Bailey’s Creek subdivision plan.
