A recent article (CHN, bit.ly/1twZU17)) described my comments to the Community Design Commission (CDC) during their meeting last week to consider a certificate of appropriateness for the Village Plaza Apartments. I rose to speak because I believed that the town staff liaison to the commission, Kay Pearlstein, erred when she told the members at this meeting and at the previous one that they were not permitted to consider the height of the proposed building in relation to the existing nearby buildings at the site.
The duties and responsibilities of the CDC are found in chapter 5 of the town charter, which clearly states that the commission shall examine the architectural style and other characteristics of the building envelope, and that it shall take no action except for the purpose of preventing construction if it finds that the proposed building will be “ obviously incongruous” with the existing development in the area. The Form Based Code (FBC), recently approved by the Town Council for the development site in question, does not expressly alter the authority given to the CDC by the town charter.
The following day, Town Attorney Ralph Karpinos issued a memorandum entitled “Form Based Code CDC Role.” In this document, the attorney stated “In the case of the Form District Code, the Council did not delegate to the CDC the authority to factor in to its review the appearance of existing nearby buildings.”
Curiously, the town attorney failed to address the issue I raised. Again, doesn’t the CDC (including all of its authority and not just within the Form District Code) have the ability to consider building appearance, including its height, in relation to existing development? As town citizens, are we to believe that the absence of a grant of authority by the council in the Form District Code or the FBC silently erases the authority previously given the CDC in the town charter? Am I mistaken in believing that the council is required by law to restrict the CDC’s authority in an express manner as opposed to using a stealthy absence to reinstate authority?
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The legal principle here reminds me of a well-known traffic law. If a driver comes to a red light, he may make a right turn if the traffic permits it, but he is not obligated to do so. However, if there is also a sign posted stating “No Right Turn on Red,” then he is prohibited from making the turn. Thankfully, we don’t have to divine that permissible right turns do not apply in a form district because the FBC was silent about right turns on red in that district.
If the council did not want the CDC to consider the congruency between the proposed Village Plaza Apartments and the existing development, then it should have expressly restricted the existing CDC authority in the FBC.
I and other citizens of Chapel Hill expect the town leadership to always act in strict accordance with the governing statutes and to ensure that their governing instructions to review commissions are clear to the average citizen BEFORE a district is formed so that the best interests of all residents are met.
Tom Henkel lives in Chapel Hill.