Minutes of 10/1/2014 Planning Board Meeting [adopted]

Transcription

1 Minutes of 10/1/2014 Planning Board Meeting [adopted] Russ W O'Melia on 02/02 at 12:45 PM Category: Planning Board Minutes MINUTES Wake County Planning Board Wednesday, October 1, :30 P.M., Room 2700 Wake County Justice Center 301 S. McDowell St. Raleigh, N.C. Members Present (9): Mr. Matt Martin, Ms. Michelle Muir, Mr. Michael Birch, Mr. Matthew Brubaker, Ms. Nancy Szabados, Mr. Dale Bouldin, Ms. Tara Kreider, Mr. Douglas Ball, and Mr. Brian LiVecchi Members Not Present (1): Mr. Joseph Springer Staff Members Present (11): Mr. Steven Finn (Land Development Administrator), Mr. Tim Maloney (Planning, Development and Inspections Director), Mr. Bryan Coates (Planner III), Mr. Frank Cope (Community Services Director), Mr. Adam Cook (Planner I), Ms. Kathryn Hobby (Environmental Engineer/Consultant), Ms. Celena Everette (Planner II), Ms. Melinda Clark (Watershed Manager), Mr. Greg Bright (Environmental Health Supervisor), Mr. Britt Stoddard (Water Quality Director), and Mr. Russ O Melia (Clerk to the Board) County Attorneys Present (1): Mr. Kenneth Murphy 1. Call to Order Mr. Martin called the meeting to order at 1:30 p.m. 2. Petitions and Amendments There were none. 3. Approval of Minutes from the September 3, 2014 Planning Board Meeting Mr. Birch made a motion to approve the minutes. Mr. Bouldin seconded the motion. The minutes were approved by unanimous consent. 4. Quasi-judicial hearing: PB-A-01-14: Appeal of Bella Vista Decision Mr. Martin and Mr. Murphy gave a brief overview of quasi-judicial proceedings. Mr. Birch recused himself from consideration of the case. Ms. Kreider disclosed that she had a general conversation regarding the Bella Vista subdivision prior to the appeal being filed, but the conversation would not affect her ability to be impartial when considering the case. Mr. Cook, Ms. Hobby, and Ms. Everette were duly sworn. Mr. Cook submitted following documentary evidence into the record: staff report, PowerPoint slides, subdivision appeal application, preliminary subdivision plans for Bella Vista, site map, correspondence between staff, the appellant, and the North Falls subdivision, and the regulations governing the investigation and mitigation of well interference.

2 REQUEST: Consider an appeal from Mr. Eric Fitzgerald of the Planning Director s decision to approve the Bella Vista preliminary subdivision plan. PETITIONER: Mr. Eric Fitzgerald, on behalf of residents of the North Falls Subdivision. LOCATION: The proposed Bella Vista Subdivision is located on the east side of Creedmoor Road between I-540 and North Falls Drive. Mr. Cook presented the staff report to the board. The preliminary subdivision proposes to subdivide acres into a 66 lot cluster development with 26.5% open space. The site is zoned R-40W and is located in a non-urban area / water supply watershed. On May 6, 2014 staff received an application for the Bella Vista preliminary subdivision. Staff received concerns about the proposed subdivision from Mr. Eric Fitzgerald. Staff responded to the concerns and met with Mr. Fitzgerald and other adjacent property owners on June 11, 2014 to discuss the concerns. Staff shared the concerns with the developer during the staff review of the subdivision plan. On June 20th staff received an additional letter of concerns from Mr. Fitzgerald. In July, staff facilitated an informational meeting between Mr. Fitzgerald and other concerned property owners and the developer. The meeting provided the developer an opportunity to provide information about the proposed plan to the concerned property owners and allowed the owners to express their concerns to the developer. The preliminary subdivision plan was approved by the Planning Director on July 30th and staff received the appeal application on August 28th. Sworn witnesses in favor of the appeal: Eric Fitzgerald, 2541 Countrywood Road, Raleigh, NC Jeff Craig, 2529 Countrywood Road, Raleigh, NC Mr. Fitzgerald testified that he and Mr. Craig represent the North Falls subdivision of 65 homeowners, all of whom are on private wells and septic systems. The concerns that the community has are stormwater runoff and impacts on private wells. Mr. Jason Barron of the Morningstar Law Group stated that he represents the developer of the Bella Vista subdivision. Mr. Barron objected to any testimony relating to impact on wells since that is not relevant to approval of a subdivision according to the UDO. Mr. Murphy said that there are well interference regulations that are part of a separate regulation that is not part of the UDO. The well interference regulations were not considered by staff in their approval of the preliminary plan. He advised Mr. Martin to sustain the objection since impact on wells is not relevant to what the board is being asked to consider. Mr. Fitzgerald noted that there was a comment by Wake County staff during their review that related to wells. Mr. Martin sustained Mr. Barron s objection and barred testimony and evidence relating to impact on wells from the hearing since that is not something the board can consider. Mr. Fitzgerald testified that he has concerns relating to stormwater management, the placement and design of the BMPs, and the water feature on the property including the perennial stream that runs through the pond. Mr. Fitzgerald submitted Appellant s Exhibit 1

3 a report from Axiom Environmental, Inc. Mr. Barron objected to the submission of the exhibit since the representative from Axiom Environmental, Inc. was not present at the hearing. Mr. Martin allowed the exhibit to be included in the record. Mr. Fitzgerald testified that if a stream is determined to be perennial, it would constitute 100-foot setbacks according to the UDO. Mr. Cook provided staff s response to the appellant s items. Item 1: Section (100 buffer for Water Supply Impoundments) of the UDO does not apply to the watershed buffer around the existing pond since the pond is not a water supply impoundment. The UDO defines water supply as, Surface water used as a source of water for drinking, culinary, or food processing purposes after treatment. Examples of existing water supply impoundments are Falls Lake, Jordan Lake, Lake Wheeler, and Lake Benson. The water supply watershed buffer that is shown on the preliminary plan complies with section (Watercourses and Channels, 5 to 25 Acres) of the UDO. The buffer shown on the plan provides a 30 foot buffer with a 20 foot building setback which is in compliance with section Mr. Cook continued his testimony. Item 2: The approved preliminary plan does not show any evidence of the outlet for BMP#2 being located off the proposed subdivision property. He said that there is a natural stream coming out of the back of BMP #2. The preliminary plan does not show the point of discharge for BMP #2 since it is not required at that stage of the subdivision approval process. The preliminary plan is only required to show the location of the BMP. Mr. Martin asked if staff s position is that the point of discharge of the BMP is within the site since the entire BMP is located within the site. Mr. Cook responded that that was correct, and that there is no evidence that the point of discharge would be off the site. Mr. Cook continued his testimony. Item 3: A section of the UDO has not been created requiring developers to assess and model impact of new wells on existing adjacent private wells. Therefore, reason #3 does not meet the requirements of Section to be considered as a reason to appeal the Planning Director s decision to approve the preliminary subdivision plan. Mr. Cook concluded that staff s determination that the Bella Vista preliminary subdivision plan dated July 17, 2014, as approved by the Planning Director on July 30, 2014, complies with the subdivision design regulations of the UDO. Mr. LiVecchi asked about the point of discharge for BMP #2. Ms. Hobby testified that at the preliminary approval stage, staff does not have exact location of the outlet of the BMP. There are provisions in the ordinance that require the subdivider and designer to design the subdivision such that it utilizes existing drainage. Staff will verify and scrutinize the drainage at the next plan stage (construction plans) when staff gets elevations and exact locations. Ms. Muir asked how a BMP could discharge offsite if it is wholly contained within the site. Ms. Hobby said that the purpose of the BMP is to have stormwater either naturally directed to it or directed to it with engineered soils that would collect and treat the stormwater for volume in order to not have a downstream impact, to treat for nutrients, and to recharge the

4 groundwater. The BMP will discharge the stormwater at an exact rate to an area that shows topographically as an area where stormwater is already leaving. Mr. LiVecchi asked if the subdivision approval would come back to the Planning Board if the construction plans indicate that BMP#2 discharges offsite. Ms. Everette said that staff would not approve the construction plans if they show that the BMP discharges offsite. The neighbors or the developer would also have an opportunity to appeal an approval or denial of the construction plans, and the developer could also request a waiver of the subdivision standards; all of those circumstances would bring the subdivision approval back to the Planning Board. Ms. Muir asked how the jurisdictional status of a stream is determined. Ms. Hobby answered that for perennial streams the ordinance requires them to be on the most recent USGS quadrangle map or the soil survey. Both of those were looked at for the features. Any change would come from a determination letter from the Division of Water Quality. Mr. Barron came forward to address the board regarding the appellant s items. Item #1: According to the staff report, the UDO defines a water supply as surface water used as a source of water for drinking, culinary, or food processing purposes after treatment. Mr. Barron said that the only evidence in the case shows that the pond is not a water supply, and the appellant did not submit any evidence to the contrary. Item #2: Mr. Barron said that staff testified that the point of discharge is within the site. The developer has not asked to locate the point of discharge off the site. Mr. Barron testified that the appellant did not produce any evidence that the point of discharge is off the site. Item #3: the appellant has admitted that there is not UDO regulation with respect to impact on wells. Regarding the perennial stream, Mr. Barron noted that report in Appellant s Exhibit 1 only studied the stream offsite. There was no evidence to indicate that it was a perennial stream located on the site that is being developed. Mr. Barron concluded that the appeal is without merit, and that the appeal should be denied. Mr. Bouldin departed at 2:50 p.m. Sworn witness: Dale Werenko, 115 MacKenan Drive, Cary, NC Mr. Werenko of Withers & Ravenel stated that he created the preliminary plan drawings. He testified that he is a North Carolina professional registered engineer, and he has been doing engineering for over twenty years. He specializes in land development engineering projects. Mr. Barron asked Mr. Werenko about the process to determine whether a stream is intermittent or perennial. Mr. Werenko testified that he pulled up USGS quadrangle sheets to identify the features on the property. The most recent USGS map from 1999 shows an intermittent stream

5 on the property, so UDO section does not apply. Water supply watershed buffers are calculated by applying the guidance that shows how large the drainage area is. A 30-foot buffer was used based on the drainage area being between 5 and 25 acres. Mr. Martin asked if there was a drinking water supply on the property. Mr. Werenko answered that there is not. Sworn witness: Hunter Freeman, 115 MacKenan Drive, Cary, NC Mr. Freeman, a stormwater engineer with Withers & Ravenel, came forward to address the board. He testified that BMP#2 will discharge on the property and then flow offsite to the east. The discharge from BMP#2 is in a natural drainage way following natural drainage patterns. Ms. Muir asked if any studies were conducted in addition to checking the USGS maps to determine if the stream was perennial. Mr. Werenko answered that there were not any other studies done. Sworn witness: Gerrett Vanduyn, 2524 Saddleridge Drive, Raleigh, NC Mr. Vanduyn said that he helped draft the comments that the North Falls subdivision sent to staff. He questioned whether staff considered the fact that there is a perennial stream at the north end of the development near lots That area does not appear to have 100-foot setbacks; it appears to be foot setbacks. He believed that the preliminary plan should be modified to reflect 100-foot setbacks off of that perennial stream. Mr. Vanduyn question whether stormwater runoff was considered as part of the preliminary plan approval outside the UDO. He asked whether BMP#2 has been deemed to be sufficient to meet the sediment requirements for the impacted watershed of Falls Lake. The drainage of 23.8 acres is different than the original plan and cuts over BMP#3. If the pond is determined to be a non-drinking water source impoundment, then the setback should be 50 feet, not 20 feet, dependent on the number of acres that flow into it. The 11 acres to the south (east of the pond/stream) was not considered in the runoff which will impact the acreage that is running off into that area. This contributes to the perennial waterways which would require increased buffers around the water. Mr. Vanduyn said that the community well drilled on the property has an output of 80,000 gallons per day. The preliminary plan was adjusted to bring the well down to 30,000 gallons per day. He noted that this shows that staff did look at groundwater issues when reviewing the preliminary plan even though the UDO does not require a well impact assessment. Sworn witness: Tammy Boat, 1205 Carrington Drive, Raleigh, NC 27615

6 Ms. Boat testified that she lives in the Stonebridge subdivision and is on the board. The subdivision has 524 homes. The Lower Barton Creek runs behind the subdivision s common areas. The common areas, including tennis courts and a playground, flood about once a year. Ms. Boat said that she has a concern about the stormwater runoff that could impact the entire Stonebridge neighborhood. Mr. Barron objected to any testimony relating the stormwater due to relevance and an no mention of stormwater issues in the appeal application. Mr. Martin asked if staff consider stormwater issues when reviewing preliminary plans. Ms. Hobby answered that staff does look at stormwater issues, particularly the requirements to meet the Neuse rules relating to peak flow. Mr. Martin overruled Mr. Barron s objection since the statues allow the board to consider bases of the appeal that do not specifically appear in the application. Mr. Barron reiterated that there was no evidence offered to show that the preliminary plans do not meet the requirements of the UDO; therefore, staff properly applied the UDO when reviewing the plan, and the appeal should be denied. Mr. Fitzgerald requested that the board reverse the staff s decision to approve the preliminary plan based on what was presented. Ms. Muir asked about the peak flow analysis. Ms. Hobby answered that the requirement is for the peak flow to be the same as preexisting, not less. There is no evidence that this requirement would not be met. The developer has met the obligation so far. Mr. Martin asked about the Lower Barton Creek. Ms. Hobby said that it is a perennial stream, so there is an existing Neuse buffer that is 50 feet outside the stream and a 100 foot buffer since it is a perennial stream. Both of those buffers are shown on the preliminary plans. There was no one else who wished to speak in favor of or in opposition to the request. Mr. Martin closed the evidentiary/public hearing. BOARD DISCUSSION Mr. LiVecchi discussed the appellant s item #1 regarding the classification of the existing pond. He said that the definitions in the UDO of a water impoundment and perennial stream limit the ability of the board to deviate from what staff has done. The UDO requires staff to refer to the USGS map. Based on staff testimony, staff did refer to the USGS map which lists the stream as an intermittent stream. Ms. Muir discussed the appellant s item #2. She said that evidence was not provided to suggest that the point of discharge does not fall within the site. Mr. Ball discussed the appellant s item #3. He said impact on wells is not a requirement of the UDO when approving preliminary plans. Mr. LiVecchi noted testimony that the initial point of discharge of BMP#2 is within the property line. He said that interested parties will have an opportunity to address this issue at a later date if in fact the question is raised regarding where the discharge is.

7 MOTION Mr. Brubaker made a motion that based on the Wake County Unified Development Ordinance provisions, and the testimony and evidence submitted in the matter of PB-A-01-14, that the Board find and conclude that the Planning staff s approval of the Bella Vista Subdivision Preliminary Plan should be upheld. The motion to affirm is based on the following findings of fact and conclusions of law. 1. The water supply watershed buffer shown on the preliminary subdivision plan complies with section of the Wake County Unified Development Ordinance. The Wake County UDO requires the use of the USGS maps to verify the delineation of streams as they relate to the buffers placed on the streams. Per staff s testimony, the USGS map does not show the stream to be perennial, therefore staff properly applied the UDO. No evidence was provided to substantiate that the water is used drinking, culinary, or food processing activities as required by UDO section No evidence has been provided to suggest that UDO section would apply because there is no treatment of the water prior to the uses. 2. The preliminary subdivision plan is in compliance with section of the Wake County Unified Development Ordinance. The appellant has not provided sufficient evidence that the discharge point of BMP#2 is located offsite. 3. The Wake County Unified Development Ordinance does not require developers to assess and model the impact on existing wells. Therefore, reason number 3 does not meet the requirements of section of the UDO to be considered as a reason to appeal the Planning Director s decision to approve the preliminary subdivision plan. No evidence was provided to suggest that staff is required to consider elements outside the UDO. Mr. LiVecchi seconded the motion. By a vote of 7-0, the motion passed, and the planning staff s decision was upheld. So ordered. 5. Reports There were no reports. 6. Planning, Development and Inspections Report Mr. Maloney reported that the Code & Operations committee will discuss telecommunications towers in November. The Board of Commissioners approved ordinance amendments for accessory dwelling units and nonconforming uses. 7. Chairman s Report There was no report. 8. Adjournment With no other business, the meeting was adjourned at 3:55 p.m.