tuesday, may 18, 2021 6:30 pm council chambers

Planning Commission

City of Fayetteville

Meeting Agenda - Final

433 Hay Street

Fayetteville, NC

28301-5537

(910) 433-1FAY (1329)

Council Chambers6:30 PMTuesday, May 18, 2021

1.0 CALL TO ORDER

2.0 APPROVAL OF AGENDA

3.0 CONSENT

21-20153.01 Approval of Meeting Minutes: March 16, 2021 - Regular Meeting

4.0 LEGISLATIVE HEARINGS

21-19504.01 TA21-005: Text Amendments to Article 30 of the Unified Development

Ordinance regarding Donation Boxes.

21-20044.02 TA21-008: Text Amendments to Article 30 of the Unified Development

Ordinance for reconsideration of quasi-judicial decisions.

5.0 OTHER ITEMS OF BUSINESS

6.0 ADJOURNMENT

City of Fayetteville Printed on 5/12/2021

http://cityoffayetteville.legistar.com/gateway.aspx?m=l&id=/matter.aspx?key=5759



City Council Action Memo

City of Fayetteville 433 Hay Street

Fayetteville, NC 28301-5537

(910) 433-1FAY (1329)

File Number: 21-2015

Agenda Date: 5/18/2021 Status: Agenda ReadyVersion: 1

File Type: ConsentIn Control: Planning Commission

Agenda Number: 3.01

TO: Mayor and Members of City Council

THRU: Planning Commission

Taurus Freeman, MPA - Planning & Zoning Division Manager

FROM: Catina Evans - Office Assistant II

DATE: May 18, 2021

RE:

Approval of Meeting Minutes:

· March 16, 2021 - Regular Meeting

..end

COUNCIL DISTRICT(S):

All

..b

Relationship To Strategic Plan:

Strategic Operating Plan FY 2021

Goals 2026

Goal 6: Collaborative Citizen & Business Engagement

· Objective 6.2 - Ensure trust and confidence in City government through

transparency & high quality customer service.

Executive Summary:

The City of Fayetteville Planning Commission conducted a meeting on the referenced

date during which they considered items of business as presented in the draft.

Background:

NA

Issues/Analysis:

Page 1 City of Fayetteville Printed on 5/12/2021


NA

Budget Impact:

Type here

Options:

1. Approve draft minutes;

2. Amend draft minutes and approve draft minutes as amended; or

3. Do not approve the draft minutes and provide direction to Staff.

Recommended Action:

Option 1: approve the draft minutes

Attachments:

· Draft Meeting Minutes: March 16, 2021


1

MINUTES

CITY OF FAYETTEVILLE

PLANNING COMMISSION MEETING

COUNCIL CHAMBER

ELECTRONIC/ZOOM MEETINGS

MARCH 16, 2021 @ 6:00 PM

Members Present Staff Present

Dr. Lakeisha Payton, Chair Taurus Freeman, Planning & Zoning Manager

Laurie Linder, Vice Chair Alicia Moore, Planner II

Michael King Lisa Harper, Assistant City Attorney

Jamie Tilke Catina Evans, Office Assistant II

David Alderman

Michael Cleary

Dwight Thompson (Zoom)

Thomas Eckert

Members Absent Dymond Spain

Carolyn McLaurin

Paul Toolan

I. CALL TO ORDER

Chairman Lakeisha Payton called the meeting to order at 6:00 p.m.

II. PLEDGE OF ALLEGIANCE

III. INTRODUCTION OF MEMBERS FOR THE RECORD

IV. APPROVAL OF THE AGENDA

MOTION: Laurie Linder

SECOND: Michael Cleary

VOTE: Unanimous (8-0)

V. APPROVAL OF THE MARCH 4, 2021, SPECIAL MEETING MINUTES

MOTION: Laurie Linder

SECOND: Jamie Tilke


Members of the City of Fayetteville Planning Commission stated they did not have any conflicts

of interest with anything on the agenda.

LEGISLATIVE HEARING(S)

2

PND21-002. Request to revise the approved Planned Neighborhood Development Plan (PND)

for Lake Shores Subdivision to add two two-family dwellings (Duplexes), located at the

intersection of Georgetown Circle, Bahama Loop and Offing Drive, (REID#s 0407186890000 &

0407185863000) and being the property of Mong & Ron Enterprises 3, LLC.

Craig Harmon presented PND21-002. He presented the applicant’s request to build two duplexes

on the properties. On their site plan it shows a flood plain. Originally, the area was scheduled for

commercial development. In 2007, the owners revised their plan and were approved to put 14

townhomes on the property. They divided the land into two parcels. The area was marked PND.

The applicant plans to put two duplexes per lot. Currently, the area is undeveloped with wooded

lots. To the west are townhomes on Offing Drive. There are single-family houses and a bridge on

the back side of the property. The staff has approved this request. The proposal would develop

the lots while keeping the necessary open space. Mr. Harmon stated that the development is in

alignment with the 2010 Land Use Plan.

Ms. Payton opened the hearing.

Speakers in favor:

Bob Doran, 1301 Raeford Road, Fayetteville, NC 28305

Mr. Doran stated that he is in favor of the plan. He said the development would fit well with and

bring value to the community.

Whitney Serauskas, 4615 Duncastle Road, Fayetteville, NC 28314

Ms. Serauskas stated that she was in favor of the plan.

Speakers in Opposition

Roland Kleinman, 342 Offing Drive, Fayetteville, NC 28314

Mr. Kleinman stated that his property is across from the development. He said he spoke to a lot

of people in his neighborhood who were not in favor of this development. Mr. Kleinman stated

that the traffic issue is one that will be addressed by many of the residents. He said he speaks for

the right of the people who live in the area. He noted that those for the development are not

living the area. When he first came into the neighborhood it was single-family housing. Mr.

Kleinman said he paid for low density and low traffic and he expected it to stay that way. Mr.

Kleinman stated that he did not have a problem if the owner would build houses on the land.

Residents who bought houses in the area were under the impression that it would remain single-

family housing. He stated that they do not need eight units on the eight acres.

Ed Blanchard, 5444 Summerduck Road, Fayetteville, NC 28314

Mr. Blanchard was speaking on behalf of the members of the McFayden Lakes Association. He

stated that he is the President of the Association. Mr. Blanchard stated that the problem with the

3

development is that the sediment ridden area is inadequate for them to build duplexes on it. He

would like to put a hold on the project until they can consult with their engineers and bring it

before the Commission. He said the right thing to do is to build something that matches the land.

Laura Lupton, 324 Bahama Loop, Fayetteville, NC 28314

Ms. Lupton said that she hoped the owners would build single-family lots or a park on the land.

She is concerned because the property is surrounded by three roads. The roads are curvy and

hilly. She said that cars parked on the street could cause accidents. The Planning Commission

should conduct a traffic study and put parking signs around the lot. Ms. Lupton said that any new

housing would result in visual clutter of trash cans that would be visible from the street. There

would need to be sidewalk construction as well. Ms. Lupton said she bought her house under the

assumption that the area would be single-family housing.

Toby Tabor, 3042 Bahama Loop, Fayetteville, NC 28314

Mr. Tabor said he lives in the townhomes across from the development. He said that he is

concerned about the flood plain. The townhomes have had two feet of water during the hurricane

season, and he along with other residents pay for flood insurance as the residents of the new

developments would have to do as well. Mr. Tabor said that there is a traffic issue on Offing

Bridge where these developments would be built.

Kenneth Lutz, 693 Georgetown Circle, Fayetteville, NC 28314

Mr. Lutz said he lives south of the development. He opposes the developments for reasons

already stated. He thought as well that single-family housing would be built on the land. He

stated that this development would not allow residents to reinvest in the property and the lake. In

the past, the sediments in the lake were so bad that the residents paid to have it removed. He said

some of the current residents do not contribute to the funds to keep the wetland in the area up.

Ms. Payton closed the hearing and asked for a motion.

Mr. Cleary wanted to know if there was a homeowners association in the area. Mr. Harmon

stated there is a lake association, but it is a private agreement between the lot owners and the

residents and not the City.

Ms. Payton reopened the hearing for a speaker.

Roland Kleinman, 342 Offing Drive, Fayetteville, NC 28314

Mr. Kleinman stated that residents pay dues. The homeowners are part of an association and they

would pay the dues. The dam is owned by McFadden Association. They are working to keep it

up.

Mr. Alderman asked if the 6 houses were part of the PND. Mr. Harmon stated that they were part

of the PND. The development was first slated for commercial and later changed to residential

4

when the townhomes were built. He said that the development would bring more people to the

property. Currently, the owners have lost the approval to build on the property.

Ms. Serauskas stated that the property was bought as a commercial property. They decided to

build town homes on the land. She said that the development would allow more people to own

land in the community.

Ms. Payton asked about safety. Ms. Whitney stated that if there was one duplex on each lot they

would be okay with it. There would be drive ways and garages for the cars to avoid the traffic

issues, and they could hold the owners to the same standard of upkeep for their trash cans.

Mr. Blanchard asked Mr. Harmon to post the documents that he wanted to present to the

Commission. Mr. Harmon stated that the documents has already been given to the Commission.

Mr. Alderman stated that a large enough house could be built and cause sediment. He said that a

person could build any type of structure on the land and they would have sediment issues. The

builders would have to deal with this issue.

Ms. Linder asked if there would be for sale or rental properties. Mr. Harmon stated that cannot

take that into account to ask that question. Ms. Linder asked about the size of the units. Mr.

Harmon said that Ms. S could answer that question. Ms. S said it would be two cares double

deep. Ms. Linder said that the end to end driveways would cause problems.

Ms. Cleary asked how much living space would be allotted. Ms. S. state that it would be 1500

square feet. Mr. Doran added that it would have 1500square feet and 3000 square feet for the

total duplex. Mr. Cleary state that he had driven out to the area and saw that traffic increase

would be a problem.

Mr. Thompson was asked if he had any questions and he did not have any additional questions.

Ms. Payton closed the hearing and asked for fora motion.

MOTION: Laurie Linder made a motion to approve the proposed PND with a contingency that

a more revised plan be set in place with a parking plan to keep cars parked off the road.

SECOND: David Alderman

VOTE: (7-1) ( Dwight Thompson was opposed)

TA21-003. Ms. Alicia Moore presented TA21-003. She addressed the amendment that was

reviewed by City Council and now is being presented to the Planning Commission. Each zoning

district has rights under current laws. There are special uses that are evaluated under certain

conditions. Subdivision waivers allow for more flexibility. There are quasi-judicial decisions that

are reviewed by an initial Board and forwarded to a second board for approval. The Unified

Development Ordinance requires that the City Council look at the advisory board’s

recommendation. There are strict procedural rules in which quasi-judicial is based on substantial

evidence. Therefore the information has to be presented again to the City Council which can lead

to confusion in some cases. This issue was presented to the City Council and they agreed that

5

the amendment was necessary. There would be a single board review without an advisory board.

They would go directly to the City Council. Ms. Moore stated the recommendation options to the

Board.

Ms. Payton opened and closed the public hearing due to no speakers.

MOTION: Jamie Tilke made a motion to adopt the amendment

SECOND: Dwight Thompson


T21-004. Jennifer Baptiste presented the text amendment dealing with the Historic Resources

Commission study. The study evaluated the Commission to see if there needed to be any

changes. She presented an amendment to reduce the size of the Board from 11 to 7 members and

the size necessary for a quorum from 7 to 4 members. Currently the Unified Development

Ordinance Article 30.2.7b states that the Commission would be 11 members who would reside in

Fayetteville as appointed by the City Council. The quorum would have to be revised as well.

Staff is proposing to revise the number of members necessary for a quorum from 7 to 4. Ms.

Baptiste stated the recommendations to the Board.

Mr. Tilke stated that he did not hear as to why the change was being proposed by the staff. Ms.

Baptiste stated that a typical jurisdiction has seven members for the Historic Resources

Commission and currently they have well beyond that number on the Fayetteville Historic

Resources Commission. Mr. Cleary asked what the time limit was for terms. Ms. Baptiste stated

they had two-year terms. Ms. Payton asked if there were staffing issues and Ms. Baptiste said

there were times when it took time to staff the Board.

Ms. Payton closed the hearing and asked for a motion.

MOTION: Laurie Linder made a motion to approve the reduction the number of members of

the Historic Resources Commission from 11 to 7 members.

SECOND: Michael Cleary


VI. OTHER BUSINESS

Mr. Freeman stated that there were no new cases for the April 20, 2021, meeting.

Ms. Payton asked for a motion to close the meeting.

MOTION: Laure Linder made a motion to adjourn the March 16, 2021, meeting.

SECOND: Jamie Tilke


The meeting was adjourned at 7:43 p.m.

Respectfully submitted by Catina Evans.




(910) 433-1FAY (1329)




Agenda Number: 4.01



FROM: Taurus Freeman, MPA - Planning & Zoning Division Manager

DATE: May 18, 2021

RE:

TA21-005: Text Amendments to Article 30 of the Unified Development Ordinance

regarding Donation Boxes. ..end


All

..b



Goals 2026

Goal 3: City Investment in Today and Tomorrow

· Objective 3.4 - Revitalize neighborhood with effective code enforcement

and violation abatement.

Executive Summary:

On September 8, 2020, at the City Council Work Session, Development Services

provided research on donation boxes sporadically placed throughout the city.

Per the Unified Development Ordinance (UDO) definition, a recycling drop-off center is a

small collection facility where recyclable materials are purchased or accepted from the

public. Typical uses include neighborhood recycling stations and thrift store collection

trucks.

Recycling Drop-Off Centers are allowed by land use in Office and Institutional (OI),

Neighborhood Commercial (NC), Limited Commercial (LC), Community Commercial

(CC), Mixed-Use (MU), Downtown (DT), Limited Industrial (LI), Heavy Industrial (HI) zoning

districts. A Special Use Permit is required in Single-Family 6 (SF-6), Mixed Residential 5

(MR-5), and Manufactured Home (MH) district, according to Table 30-4.A.2. Yet, there is



no permitting process under the current City Code.

The following additional requirements must be met:

Section 30-4.C.5.f.5. Recycling Drop-Off Centers

A recycling drop-off center shall comply with the following standards:

a. The collection bin shall be located in or adjacent to an off-street parking area,

and shall not occupy more than five percent of the total on-site parking spaces.

The mobility of the collection bin shall be retained.

b. The bin and adjacent area shall be maintained in good appearance and free

from trash.

c. There shall be no collection or storage of hazardous or biodegradable wastes on

the site.

Background:

In 2005, the City researched screening the donation boxes or requiring them to be

located in the rear of the property. After discussion, it was determined that those actions

would render the donation boxes inaccessible, create additional trash, and not be

feasible.

Over the past several months, City Council has discussed the abatement of “drop boxes”

within the city. On numerous occasions, the boxes have become a nuisance due to

“dumpster divers” leaving the donated items over sites.

Much concern was regarding the aesthetic appearance of discarded debris around the

perimeter of the boxes. This typically happens because of the following:

· The donation box is at capacity, and items are dropped outside the designated

box;

· The boxes are not secure and easily accessible to the public;

· Items are pulled out of the box and not adequately replaced into the bin; and/or

· Donation box are not utilized for the intended recycling use.

In such cases, Code Enforcement will send a Notice of Violation to the property owner for

illegal dumping, per Section 22-16, as show below:

Section 22-16. Illegal Dumping; Owners and Occupants Required to Keep

Premises Free from Public Health and Safety Nuisances.

a. Every person owning or occupying any premises in the city shall keep such

premises free from the following enumerated and described conditions which are

hereby found, deemed and declared to constitute a hazard or detriment to the

health and safety of the inhabitants of the city:

1. Any condition which constitutes a breeding ground or harbor for rats,

mosquitoes, harmful insects or other pests;

2. Open wells and open basements or structures where construction of such

structure has been abandoned or the structure has been razed by fire,

demolition or other casualty;

3. An open place of concentration of combustible items such as mattresses,

boxes, paper, automobile tires and tubes, garbage, trash, refuse, brush, old

clothes, rags, or any other combustible material or object of a like nature;

4. An open place of collection of garbage, food waste, animal waste, or any

other rotten or putrescible matter of any kind which is subject to decay or



shall otherwise be a menace to health or cleanliness;

5. Hides, dried or green, provided such hides may be kept when thoroughly

cured and odorless; or

6. Any furniture, appliances or other metal products of any kind or nature

openly kept which have jagged edges of metal or glass where such

furniture, appliances or other metal products poses a source of danger for

children through entrapment in areas of confinement that cannot be opened

from the inside.

This is the same process used when a dumpster becomes unsightly. The processing time

to notify the property owner and have it cleaned is a constant churn, and “success”

dramatically relies on the business/property owner to keep the area and container clean

more than the regulatory process of abatement.

Issues/Analysis:

Other municipalities similarly treat donation boxes as Fayetteville:

In Fayetteville, recycling bins or donation boxes are automatically allowed in commercial

and industrial zoning districts with no zoning permit. Also, they are only permitted with a

Special Use Permit in some of the residential zones.

Winston-Salem allows boxes as an accessory use. If the area around the boxes becomes

cluttered with donated items, the owner of the property and the owner of the box receive a

Notice of Violation. After two notices within 12-months, the donation box is no longer

permitted on that property for two years.

Greensboro allows recycling collection points in all districts as an incidental use. Still, per

the definition, the collection point would be found in a shopping center parking lot or a

public/quasi-public parking area such as a church or school.

There are a series of options to consider to change this visual impact item:

· Not allowing the recycling donation boxes (as there are many other options to

donate throughout the City).

This action will affect all faith-based, non-profit, and for-profit organizations, i.e.

Salvation Army, Habitat for Humanity, Goodwill, churches, private businesses, etc.

· Establishing a new city standard similar to that of Winston-Salem where they are

allowed but then no longer permitted when they don’t keep them in good, clean

order.

Increased code enforcement action allows the City to remove donation boxes if

two violations occur within a six (6) month time period. Then, the boxes will have to

be removed for two-year time period. However, maintaining a database would be

cumbersome.

· Prohibiting third-party vendors from operating within the city.

Companies that operate the boxes are not always faith-based or non-profits.

Some are regular for-profit organizations, and few are locally managed.

Fayetteville has numerous agencies that provide these services.

The existing bins would be removed in an allotted timeframe after the adoption of

this amendment.



Budget Impact:

NA

Options:

The Planning Commission shall hold a legislative hearing on the application in

accordance with the Fayetteville City Code. After the close of the hearing, the

Commission shall consider the application, relevant support materials, the staff report,

and any comments given by the public. The Planning Commission, by a majority vote of a

quorum present, shall take one of the following actions:

1) Recommend to City Council to prohibit Recycling Drop-Off Box in all applicable

zoning districts;

2) Recommend to City Council to establish a new city standard (similar to the City of

Winston-Salem) where they are allowed but then no longer permitted when they

don’t keep them in good, clean order;

3) Recommend to City Council to prohibit third-party vendors from operating within

the city and all to be removed after a designated time;

4) Recommend remanding of the proposed text amendments to Staff for further

consideration; or

5) Take no action.

The Planning Commission shall provide a written recommendation to the City Council that

addresses whether the decision is consistent with all City-adopted plans that are

applicable, but a comment by the Planning Commission that a proposed amendment is

inconsistent with the applicable plans shall not preclude consideration or approval of the

proposed amendment by the City Council.

Recommended Action:

The following standards for text amendments as required by the Code

§30-2.C.2(e):

1. The proposed amendments are consistent with all applicable City-adopted plans.

2. The proposed amendments are not in conflict with any provision of this Ordinance,

or any related City regulations.

3. The proposed amendments align with Code with NC General Statutes, NC

Building Codes, and various other regulations and requirements within the City

and the Code.

4. The proposed amendments address a community need to provide the best Codes

as possible for interpretation, enforcement and compliance.

5. The proposed amendments are consistent with the purpose and intent of the

zoning districts in the Code and ensure efficient development within the City.

6. The proposed amendments would result in a logical and orderly development



pattern.

7. The proposed amendments would not result in significantly adverse impacts on the

natural environment and the natural functioning of the environment.

Attachments:

· Ordinance Option Summary

· Peer Cities Ordinances


Current Ordinance

a. Recycling Drop-Off Centers


a. The collection bin shall be located in or adjacent to an off-street parking

area, and shall not occupy more than five percent of the total on-site

parking spaces. The mobility of the collection bin shall be retained.

b. The bin and adjacent area shall be maintained in good appearance and

free from trash.

c. There shall be no collection or storage of hazardous or biodegradable

wastes on the site.

Option 1:

Prohibit Recycling Drop-Off Centers in all applicable zoning districts in Table 30-4.A.2.

Table 30-4.A.2 Use Table

P = Permitted Use S = Special Use

MP = Allowed Subject to a Planned Development Master Plan

“/” = Prohibited Use [1]

USE

CATEGORY USE

TYPE

ZONING DISTRICTS ADDITIONAL

REQUIREMENTS SPECIAL RESIDENTIAL BUSINESS PLANNED

DEVELOPMENT CD AR SF-

15 SF-

10 SF-

6 MR-

5 MH OI NC

[3] LC CC MU DT BP4 LI HI PD-

R PD-

EC PD-TN

INDUSTRIAL USE CLASSIFICATION [1] Waste

Related

Services

Recycling Drop-Off Center

/ / / / / / / / / / / / / / / / / / / 30-4.C.5.e.5

Option 2:

5. Recycling Drop-Off Centers

a. A recycling drop-off center shall comply with the following standards:

1. The collection bin shall be located in or adjacent to an off-street

parking area, and shall not occupy more than five percent of the total

on-site parking spaces. The mobility of the collection bin shall be

retained.

2. The bin and adjacent area shall be maintained in good appearance

and free from trash.

3. There shall be no collection or storage of hazardous or biodegradable

wastes on the site.

4. The name and telephone number of the party responsible for its

maintenance shall be clearly posted on the container.

b. Responsibility/Violations

1. Both the sponsoring organization responsible for the donation

container and/or the owner of the property where it is located

shall be subject to the enforcement provisions contained in

Article 30-8. Enforcement.

2. Additionally, should the sponsoring organization responsible for

any donation container violate the standards or regulations of

this section at least two (2) times within a six (6) month period at

any one or more sites within the City zoning jurisdiction, then

such sponsoring organization may not place a donation container

within the City’s zoning jurisdiction for a period of two (2) years

following the date of the sixth violation, and all such donation

containers shall be immediately removed from the City's zoning

jurisdiction.

3. At the expiration of two (2) years from the removal of the donation

container, it may be re-established at the site from which it had

been removed.

Option 3:

5. Recycling Drop-Off Centers


a. The collection bin shall be located in or adjacent to an off-street parking

area, and shall not occupy more than five percent of the total on-site

parking spaces. The mobility of the collection bin shall be retained.

b. The bin and adjacent area shall be maintained in good appearance and

free from trash.

c. There shall be no collection or storage of hazardous or biodegradable

wastes on the site.

d. Third-party vendors are prohibited from operating within the city.

Existing bins are to be removed ___ days after the adoption of this

subsection.

Option 4:

Remanding of the proposed text amendment back to Staff for further consideration.

Donation Boxes

Municipality Definition Standards Enforcement

Winston Salem/Forsyth Co Section 5.3.3E

Donation container - A box, bin, trailer, or similar receptacle used as a depository or collection point for the donation of clothing or other household items that is not a structure as defined by this Ordinance.

1. NUMBER Only one donation container shall be allowed on a zoning lot. 2. INSPECTION a. Donation containers shall be inspected on a sufficiently regular and frequent basis by the container's owner to ensure that all donations are placed inside the container. b. Donations found outside the container constitute evidence of violation of this provision. 3. EVIDENCE OF PROPERTY OWNER AUTHORIZATION The sponsoring organization responsible for the donation container must submit written evidence on demand that the property owner has authorized said location for a donation container site. 4. MAINTENANCE Donated items shall be placed inside the donation container and shall not be allowed to accumulate outside the same. 5. IDENTIFICATION a. The name and telephone number of the party responsible for its maintenance shall be clearly posted on the container. b. The donation container shall also contain information that states the sponsoring organization and charities receiving benefit (including telephone number and address) if different from the party responsible for maintenance.

6. RESPONSIBILITY/VIOLATIONS a. Both the sponsoring organization responsible for the donation container and the owner of the property where it is located shall be subject to the enforcement provisions contained in Section 10.2, Enforcement, of the UDO. b. Additionally, with respect to any site upon which the standards and regulations of this section have been violated twice, but less than six (6) times, within a twelve (12) month time period, a donation container shall not thereafter be a permitted accessory use thereon, but shall, for purposes of this subsection only, and notwithstanding Section 11.2, Definitions, be considered nonconforming, and any donation container shall be immediately removed from the site where the violations occurred. c. At the expiration of two (2) years from the removal of the donation container, it may be re-established at the site from which it had been removed. d. Additionally, should the sponsoring organization responsible for any donation container violate the standards or regulations of this section at least six (6) times within a twelve (12) month period at any one or more sites within the City's/County's zoning jurisdiction, then such sponsoring organization may not place a donation container within the City's/County's zoning jurisdiction for a period of two (2) years following the date of the sixth violation, and all such donation containers shall be immediately removed from the City's/County's zoning jurisdiction.

Durham – City Only 5.4.7.e

An unattended clothing container is any box, bin, dumpster, trailer or other receptacle that is intended for use as a collection point for donated clothing or other household materials at times when no employee or representative of the sponsoring company or organization is present to accept donations.

Notwithstanding the other provisions of this section, unattended clothing donation containers are prohibited unless located at the operational site of a company or organization that collects used clothing for resale or donation as a primary business function.

Prohibited clothing donation containers that exist at the time this section is adopted shall be removed within 30 days of adoption.

Greensboro Nothing specific to donation boxes – recycling centers mentioned however I believe this is intended for cardboard, glass etc 30-15-17

Recycling Collection Point - An incidental use that serves as a neighborhood drop-off point for temporary storage of recoverable resources. No processing of such items shall be allowed. This facility is generally located in a shopping center parking lot or in other public/quasi-public areas, such as at religious assembly uses and schools.

No additional standards




(910) 433-1FAY (1329)




Agenda Number: 4.02



Taurus Freeman, MPA - Planning & Zoning Division Manager

FROM: Alicia P. Moore, Esq., MUP - Planner II

DATE: May 18, 2021

RE:

TA21-008: Text Amendments to Article 30 of the Unified Development Ordinance for

reconsideration of quasi-judicial decisions.

..end


All

..b



Goals 2026

Goal 6: Collaborative Citizen & Business Engagement

· Objective 6.2 - Ensure trust and confidence in City government through

transparency & high quality customer service.

Executive Summary:

In general, once a quasi-judicial decision has been rendered, the decision stands and

cannot be reconsidered by any board. The exception to this rule is triggered if there has

been a material change in relevant ordinance standards or circumstances, such that the

application can no longer be considered the same claim. In such case, an applicant can

resubmit or submit an amended application for a new decision.

Current City Code impermissibly authorizes reconsideration of quasi-judicial decisions

after a one-year waiting period, without regard to material change. The proposed text

amendment would change the relevant section of the Code to authorize reconsideration

of quasi-judicial decisions only upon a demonstrated material change. This change would



align the Code with the applicable case-law requirements.

Background:

Unlike legislative decisions, which may be permissibly reconsidered after one year, the

rule for quasi-judicial decisions is that the issue cannot be reheard by any board,

irrespective of the amount of time passed since the decision was made. This rule comes

from the legal concept of res judicata, which applies to quasi-judicial land use decisions

and means that once an issue has been properly decided, that same issue cannot be

relitigated. Res judicata does not apply, however, if there has been a material change in

circumstances or ordinance standards such that the application can no longer be

considered the same claim.

This notion has been a source of confusion, as many local ordinances group together

legislative and quasi-judicial decisions for the purposes of reconsideration, and authorize

a new hearing a year after the decision. While this is acceptable for legislative decisions,

it is impermissible for quasi-judicial decisions. Unless there has been a material change,

res judicata applies and the quasi-judicial decision cannot be reheard.

Issues/Analysis:

In this same regard, current City Code does not distinguish between legislative decisions

and quasi-judicial decisions. Instead, the relevant provision authorizes reconsideration of

“any” development application after one year. This is not permissible for quasi-judicial

decisions, as res judicata applies to the original decision and the board cannot rehear the

matter.

To bring City Code into legal compliance, the proposed amendment changes Section

30-2.B.22, currently titled “Waiver of Time Limit.” This section first states that when any

development application requiring a public hearing is denied, the matter shall not be

reconsidered for at least one year from the date of denial. The section then states that a

waiver of that time limit can be approved and lists the requirements for a waiver. While

these provisions are permissible for legislative decisions, they are not permissible for

quasi-judicial decisions.

The proposed amendment changes the name of the section to “Reconsideration of

Applications.” Next, it specifies that the provisions regarding the one-year waiting

requirement and waiver apply only to legislative decisions. Last, the proposed

amendment adds a new paragraph stating that a quasi-judicial decision cannot be

reheard unless there has been a material change in conditions or ordinance standards

such that the application can no longer be considered the same claim. The determination

of material change shall be made by the same decision-making board responsible for

rendering the quasi-judicial decision at issue. (For example, for special use permits, the

determination of material change would be made by the City Council; for variances, the

determination would be made by the Zoning Commission.) The decision-making board

would follow quasi-judicial procedures for making the determination of material change.

The determination shall be based upon sufficient evidence to demonstrate that the

change materially affects the reasons that supported the original decision such that the

application can no longer be considered the same claim. If the board finds that there has



been a material change, then the applicant can resubmit or submit an amended

application for a new decision. Appeals of determinations of material change are made

to the superior court.

The proposed changes to Section 30-2.B.11 are as follows: (deleted language is

formatted as strikethrough and added language is underlined)

30-2.B.22. Waiver of Time Limit Reconsideration of Applications

a. General Legislative Decisions

Whenever any application for a development permit or approval requiring a public

legislative hearing is denied, a similar application for all or part of the same land

shall not be considered for a period of one year after the date of denial unless a

Waiver of Time Limit is subsequently approved by the decision-making board in

accordance with the requirements of this section. Only one Waiver of Time Limit

may be submitted by the applicant during the one-year period.

b. Waiver of Time Limit for Reconsideration of Legislative Decisions

1. Initiation

A request for Waiver of Time Limit may be initiated only by the owner of land or

the owner's authorized agent, by submitting a request for Waiver of Time Limit

to the City Manager, along with a fee to defray the cost of processing the

request.

2. Action

At the meeting for which the Waiver of Time Limit is scheduled, the decision-

making board shall consider the request, other relevant support materials,

statements made by the applicant or the applicant's representative, and the

public, and approve or deny the request based on the standards in Section 30-

2.B.22.b.3, Waiver of Time Limit Standards.

3. Waiver of Time Limit Standards

A Waiver of Time Limit shall be approved only upon a finding by a two-thirds

majority or more of the membership of the decision-making board that

substantial evidence is presented that demonstrates:

a. Substantial Change in Circumstances

There is a substantial change in circumstances relevant to the issues and /or

facts considered during review of the application that might reasonably

affect the decision-making board’s application of the relevant review

standards to the development proposed in the application; or

b. New or Additional Information

New or additional information is available that was not available at the time

of review that might reasonably affect the decision-making board’s

application of the relevant review standards to the development proposed in

the application; or

c. New Application Materially Different

A new application is proposed to be submitted that is materially different from

the prior application; or

d. Material Mistake of Fact



The final decision on the application was based on a material mistake of fact.

c. Quasi-Judicial Decisions

When a board has rendered a decision on any application for a

development permit or approval requiring an evidentiary hearing, that

application shall not be reconsidered by any board, except upon

determination of a material change in conditions or ordinance standards

such that the application can no longer be characterized as the same claim.

1. The determination of whether there has been a material change shall be

made by the decision-making board responsible for rendering the

quasi-judicial decision at issue, pursuant to the applicable section(s) of

Section 30-2.B, Common Review Procedures. The applicant shall submit

evidence to demonstrate that there has been a material change. The

board shall consider, among other factors in its discretion, whether the

change materially affects the reasons that supported the original

decision such that the application can no longer be characterized as the

same claim. In making that determination, the board may consider the

factors listed above in paragraph 3(a)-(d).

2. The decision-making board shall follow the applicable standards and

requirements for quasi-judicial decisions and public notification pursuant

to Section 30- 2.B.12, Public Notification, Section 30-2.B.14, Evidentiary

Hearing Procedures (Quasi-Judicial Decisions), and Section 30-2.B.15.,

Evidentiary Hearing.

3. If there has been a determination a material change in accordance with

this section, the applicant may resubmit or submit an amended

application which shall be reviewed under the applicable standards and

requirements for the application at issue.

4. Appeals of determinations of whether there has been a material change

shall be made to the Superior Court of Cumberland County.

Budget Impact:

None

Options:

The Planning Commission shall hold a legislative hearing on the application in

accordance with the Fayetteville City Code. After the close of the hearing, the

Commission shall consider the application, relevant support materials, the staff report,

and any comments given by the public. The Planning Commission, by a majority vote of a

quorum present, shall take one of the following actions:

1) Recommend to City Council adoption of proposed text amendments;

2) Recommend to City Council denial of the proposed text amendments;

3) Recommend revisions and adoption of the proposed text amendments; or



4) Recommend remanding of the proposed text amendments back to Staff for further

consideration.

The Planning Commission shall provide a written recommendation to the City Council that

addresses whether the decision is consistent with all City-adopted plans that are

applicable, but a comment by the Planning Commission that a proposed amendment is

inconsistent with the applicable plans shall not preclude consideration or approval of the

proposed amendment by the City Council.

Recommended Action:

Staff recommends approval based upon the congruency of the proposed

amendments with the following standards for text amendments as required by

the Code §30-2.C.2(e):

1. The proposed amendments are consistent with all applicable City-adopted plans.

2. The proposed amendments are not in conflict with any provision of this Ordinance,

or any related City regulations.

3. The proposed amendments align with Code with NC General Statutes, NC

Building Codes, and various other regulations and requirements within the City

and the Code.

4. The proposed amendments address a community need to provide the best Codes

as possible for interpretation, enforcement and compliance.

5. The proposed amendments are consistent with the purpose and intent of the

zoning districts in the Code and ensure efficient development within the City.

6. The proposed amendments would result in a logical and orderly development

pattern.

7. The proposed amendments would not result in significantly adverse impacts on the

natural environment and the natural functioning of the environment.

Staff also recommends approval because the proposed amendments would bring City

Code into alignment with the requirements of case-law.

Attachments:

N/A


tuesday, may 18, 2021 6:30 pm council chambers

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