On April 21st the city council unanimously passed a private amendment to the Uniform Development Ordinance, drafted by developer lawyer, Patrick Byker, that allows developers to ignore the UDO’s tree coverage requirements if they proceed via a “statutory development agreement.” A statutory development agreement is a special contract negotiated between the individual developer and the city or county. Prior to the amendment, the UDO prohibited statutory development agreements from altering environmental requirements.
Immediately after the council passed the amendment they approved Byker’s statutory development agreement to develop a property for 160 units with tree coverage reduced from 20%, as would have been required before the amendment, to 7%. In addition, zero buffers are required under Byker’s development agreement. The council was enticed by the fact the development is promised to be entirely affordable and Byker claimed it could not be built unless the tree coverage requirement was severely reduced. No idea whether that is true, but the tree coverage requirement is eliminated for ALL developments with a statutory development agreement, not only affordable ones.
I’ve asked the planning department the following questions. Will report when I get answers.
Hello Ms Young and planners,
I am writing a post for North Durham on Patrick Byker’s private amendment which passed on April 21st and removed Sec. 8.3 Tree Protection and Tree Coverage from requirements for a Statutory Development Agreement. I am hoping for some clarification before publication.
Questions:
1) Byker and council members repeatedly mentioned 7 percent as the minimum tree coverage that would be required. At one point Byker testified that the amendment doesn’t specify a minimum so there would be “flexibility” to go for 8 or 9 percent, etc.
a) As no minimum amount of tree coverage is specified, is there any prohibition on zero percent tree coverage under a development agreement? If so, where is that language?
2) It seems Byker got this passed because he associated it with the Page Road affordable housing project which he claimed would not be built unless the tree coverage provision of the Sec 3.26 was nullified. Page Road may never be built – the developer said the project would be dumped if his LIHTC application is rejected. HUD’s budget has been slashed. It’s very uncertain whether Page Road will get LIHTC approval.
a) If Page Road is not completed, what happens to the property? If it is sold, does the development agreement apply to any future use of the property?
3) It appears the developer is allowed to mass grade from boundary to boundary, removing every tree, and then simply plant saplings randomly around the property so long as the total of the areas planted add up to 7 %.
a) Is this correct? If not, what language in the agreement applies?
b) Another provision: The minimum tree coverage shall be 7%, which can be achieved either through preservation and/or replacement tree cover, with no dimensional standards required. Accordingly, this is a modification to UDO 8.3.1.C.4.c.(1)(a) to decrease the minimum tree coverage. What dimensional standards for tree coverage are being waived that would ordinarily apply absent the agreement?
4) During the public hearing on Page Corners Byker presented as though there would be defacto buffers of up to 40 feet. However, the development agreement allows “a reduction of the minimum 0.6 opacity project boundary buffer and mass grading buffer for residential development established under Sections 9.5.1 4 4859-4257-1326, v. 1 and 9.4.3.C.6 so that buffers will be eliminated.”
a) Will buffers be eliminated at Page Corners?
b) If the current site plan indicates ten foot buffers, may that be changed to zero buffers under the development agreement?
4) The development agreement provides: A reduction of the Open Space (as defined in the UDO) required under UDO Section 6.11.3.F, such that Open Space provided within the Development shall amount to fifteen percent (15%) of the Property. Furthermore, there shall be no dimensional standards required for Open Space within the Project.
a) What dimensional standards for open space are being waived that would ordinarily apply absent the agreement?
5) The agreement provides: Affordability restrictions shall be evidenced by restrictive covenants, which shall be recorded with the Durham County Register of Deeds.
a) If the developer cannot finish the project, will the affordability restrictions apply to future owners or uses of the property?
b) Is there a process to alter restrictive covenants?
6) The agreement states: The Parties understand that Developer will not obtain title to the Property until after approval of the Site Plan (as defined in the UDO) and other related entitlements from the City for the development of the Property.
a) Who has title to the property now, before the developer obtains title?
7) Byker and the developer said at the hearing that a site plan had already been submitted to the planning department.
a) Why wasn’t the site plan included in the packet for the council and public to review before the hearing?
Thank you for your attention to these questions. I’ll submit this as a public records request, too.
Save Durham 