[Durham INC] Taking discretion out of the site plans

Wed Jul 4 21:33:19 EDT 2012

I disagree with Pat.  The rule means that developers can’t cozy up to
planners and get discretionary changes to requirements which involve no
notice or hearing for other stakeholders.  The law on this is not new.  The
practice of cities giving their planning offices wide discretionary powers
by ordinance violated existing statutes and the NC Constitution.  The 2009
law was a  reality check.

Durham went crazy in the UDO giving the planning director discretionary
powers to waive requirements or allow things in his discretion.  When Mr.
Duke began to exercise this power, he caused huge trouble all over town (a
Jordan Lake decision comes to mind).  No one knew what he was up to until it
was all over.  The Trinity Park case and the Moreene Road case are two other
examples of too much staff discretion without notice and hearing.  Under NC
law, changes to zoning rules must involve notice to effected parties and an
opportunity to be heard.  Without at least quasi judicial hearings,
discretionary site plan review becomes a one-sided case with no notice and
no appeal.

When we did the Ninth street plan and rules the neighborhood stakeholders
objected strenuously to the draft provisions that vested discretionary
decision-making powers in the planning director, the downtown Durham design
group, or the DRB.  The city attorney agreed with our objections.

Tom

From: inc-list-bounces at rtpnet.org [mailto:inc-list-bounces at rtpnet.org] On
Behalf Of Pat Carstensen
Sent: Wednesday, July 04, 2012 7:11 PM
To: inc-list at rtpnet.org
Subject: Re: [Durham INC] Taking discretion out of the site plans

Quasi-judicial means you have to argue based on real facts, not opinions (or
at least what expensive lawyers will say are facts (-:).  There are changes
throughout the UDO on this.  Basically IMHO the change is good news for
idiot developers and bad news for the kind of developers we want, who would
work with Planning Department to figure out the best solution on, for
example, how to carve out lots in a cluster development.  I don't know what
it will mean about doing form-based zones (probably that we will get some
really bad examples before we figure out how to do concrete measures that
give us what we want). 

Regards, pat

  _____  

Date: Wed, 4 Jul 2012 11:25:17 -0700
From: mmr121570 at yahoo.com
Subject: Re: [Durham INC] Taking discretion out of the site plans
To: pats1717 at hotmail.com; inc-list at rtpnet.org

Pat, I'm frazzled and the text below reads like Greek to me. 

What does it mean in practical terms for lay-citizens like me?

Melissa

  _____  

From: Pat Carstensen <pats1717 at hotmail.com>
To: inc-list at rtpnet.org 
Sent: Monday, 2 July 2012 10:38 PM
Subject: [Durham INC] Taking discretion out of the site plans

Another fine gift from our legislators......

  _____  

Subject: Notice of Draft UDO Revisions
Date: Mon, 2 Jul 2012 16:09:00 -0400
From: Wade.Griffin at durhamnc.gov

The Durham Planning Department is initiating changes to Durham’s Unified
Development Ordinance (UDO) to remove discretionary ordinance standards for
site plan approvals. 

Background:

In late 2009 the General Assembly adopted S.L. 2009-421 to create N.C.G.S.
§153A-349 and §160A-393. Effective January 1, 2010, those statutes, among
other things, defined a quasi-judicial land use decision as any site plan
approval that involve discretionary standards. This is in addition to
quasi-judicial approvals already established for special use permits,
variances, and appeals.

Durham’s Unified Development Ordinance (UDO) contains many discretionary
provisions that are intended to provide flexibility in response to unique
site conditions and development circumstances. These provisions, as
currently written, are not quasi-judicial. The goal of these changes is to
allow for flexibility of certain development standards, but allow that
flexibility through specific criteria (or performance standards), or through
a quasi-judicial process. 

Providing Feedback on the Proposed Revisions:

The Planning Department welcomes feedback regarding the proposed changes to
the UDO. Please provide comments regarding the following:

1.       Proposed changes. 

If you have comments regarding a proposed change, please provide helpful
feedback as to how the proposed changes could be corrected or modified.

2.       Provisions that may have been overlooked. 

There may be provisions of the ordinance you believe should be changed
because they appear to be discretionary or lack clear and measurable
criteria. Please provide comment and suggest possible language that could
correct the issue.

3.       Anything else.

You can comment on other ordinance issues beyond the scope of this project,
or even comment on typographical errors (“typos”) you discover. “Typos” will
be corrected, and comments that are outside the scope of this project will
be collected, reviewed, and determinations will be made if they warrant
subsequent amendments to the ordinance. 

How to provide comment:  

The easiest way to comment, and for the Planning Department to review your
comments, is to list your comments either in Word or Excel (a list via email
will also suffice). Please provide the section number (and page number if
possible), then the comment/issue, then any suggested correction. 

Review the draft document
<http://durhamnc.gov/ich/cb/ccpd/Pages/Text%20Amendments/Revisions-to-Discre
tionary-Actions-within-the-UDO.aspxhttp:/durhamnc.gov/ich/cb/ccpd/Pages/Text
%20Amendments/Revisions-to-Discretionary-Actions-within-the-UDO.aspx> 

Contact information
<http://durhamnc.gov/ich/cb/ccpd/Pages/Text%20Amendments/Changes-to-the.aspx
>  

When are comments due?

Comments are welcome through the end of day Friday, August 10th. 

And then?

Once the Planning Department has reviewed comments and revised the draft
accordingly, Planning will determine the need for hosting a public
information session, and then proceed to the public hearing phase of the
approval process.

The first public hearing will be before the Planning Commission. Once the
Planning Commission has made a recommendation to the governing bodies,
public hearings will be held by the City Council and Board of Commissioners
for final approval. These hearings have not been scheduled at this time
since this draft is still undergoing review.

Notice Under the Americans with Disabilities Act - A person with a
disability may receive an auxiliary aid or service to effectively
participate in city government activities by contacting the ADA Coordinator,
voice 919-560-4197, fax 560-4196, TTY 919-560-1200, or ADA at durhamnc.gov, as
soon as possible but no later than 48 hours before the event or deadline
date.

Wade Griffin

Planner

Durham City/County Planning Department

101 City Hall Plaza

Durham NC 27701

Phone: 919-560-4137 x28229

Fax    : 919-560-4641

www.durhamnc.gov/departments/planning

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