In my previous post I shared the questions I submitted to the Durham Planning Department regarding the UDO amendment, passed by the council on April 21st, which nullified tree coverage requirements for developments. Below are my questions and the answers I received. I will analyze the planning department’s answers in a future post. The planners’ answers are in italics.
Questions:
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.
Question: 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?
Answer: [Zero tree coverage is allowed]: No, the text amendment does not place a limit on the amount of tree coverage reduction which can be requested by an applicant. However, each request will still require a neighborhood meeting, Planning Commission review, and a public hearing at City Council (or the Board of County Commissioners, as appropriate).
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.
Question: 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?
Answer: The zoning that is currently on the property is tied to the land. The only way to remove the conditions and requirements of the zoning is approval of new zoning by City Council. Any future purchaser would be bound by the zoning that was approved until a City Council action is taken to change the zoning.
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 %.
Question: Is this correct? If not, what language in the agreement applies?
Answer: [Mass grading from property line to property line is allowed] That is correct. The development agreement does not require the mass grading buffers that are usually required for projects where grading of more than four acres is conducted.
Question: Another provision of the development agreement: 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.
Question: What dimensional standards for tree coverage are being waived that would ordinarily apply absent the agreement?
Answer: [This standard is waived] : Tree coverage dimensional requirements are located in UDO Sec. 8.3.1D.3.b: “For parcels greater than one acre, no tree preservation area for a cluster of trees shall be counted toward meeting the tree coverage standard unless it includes a minimum of 1,000 square feet (or such smaller area as required by paragraph 8.3.1C.4 above) and has no individual dimension of less than 13 feet.”
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.”
Question: Will buffers be eliminated at Page Corners?
Answer: Yes, the development agreement would allow buffers to 0.
Question: If the current site plan indicates ten foot buffers, may that be changed to zero buffers under the development agreement?
Answer: Yes. It could be changed to zero under the development agreement.
5) 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.
Question: What dimensional standards for open space are being waived that would ordinarily apply absent the agreement?
Answer: [This standard is waived] Open space dimensional requirements are in UDO Sec. 7.2.4B.2: “Within the Rural, Suburban, and Urban Tiers, a horizontal dimension of at least 25 feet in all directions shall be the minimum required to be considered open space.”
5) The agreement provides: Affordability restrictions shall be evidenced by restrictive covenants, which shall be recorded with the Durham County Register of Deeds.
Question: If the developer cannot finish the project, will the affordability restrictions apply to future owners or uses of the property?
Answer: Yes, the affordability requirements of the development agreement are tied to the zoning. If a future developer wanted to do something different than what is in the development agreement the site would need to be rezoned.
Question: Is there a process to alter restrictive covenants?
Answer: Restricted covenants can theoretically be altered but the restrictive covenants still need to maintain the AMI and tenure laid out in the development agreement to comply with the agreement.
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.
Question: Who has title to the property now, before the developer obtains title?
Answer: According to our records Page Road Development LLC is the current property owner.
7) Byker and the developer said at the hearing that a site plan had already been submitted to the planning department.
Question: Why wasn’t the site plan included in the packet for the council and public to review before the hearing?
Answer: [Site plan kept from council]: Site plans are an administrative review and are not subject to public or elected official review. Site plans must meet all requirements of the UDO and zoning commitments – there is no discretion in that regard. Additionally, we do not include site plans because those can change and are not binding on the zoning, meaning that the site could be designed multiple ways and still meet the d-plan/development agreement, so showing it as part of the zoning can ultimately be misleading, and council should not consider that specific plan in making a zoning decision as it could change.
Comment from me: Thanks for these answers. One immediate note, do any of you honestly think informed citizens are placated by the “neighborhood meeting, planning commission, public hearing” routine? Every monstrous development in southeast Durham went through that process – as we all know, it’s required for all rezonings. As long as there are four near automatic yes votes none of that matters. FYI, we were, and are, all offended by your suggestion that the ordinary process is a safeguard. If council members fell for it, that’s sad and will be questioned.
Save Durham 