Carolina North Development Agreement: Dr. Owens Responds

Dr. David Owens, Gladys Hall Coates Professor of Public Law and Government at UNC and advisor to Council on the development agreement process, has responded to my Oct. 14th.

Will,

Roger Stancil passed your queries along to me.

You asked if the Council is in some way bound to follow this approach should they determine to start on this path. They are not. The Council can at any time decide that the process is not working and needs to be modified or abandoned. All existing options remain open until the Council actually adopts a development agreement (with that accompanying LUMO text and zoning map amendment).

The issue of how to set measurable performance goals — what they are and how they are monitored — is essentially the same for all of the tools available to the town. For each approach the Town has the difficult task of addressing the substantive question of what those goals and standards are and how they are monitored. While I will discuss the enforcement question in more detail with the Council tonight, the short answer is that the Town retains all of its existing enforcement tools and a development agreement, to the extent it changes things at all, enhances enforcement options.

The scope of provisions in a development agreement is subject to negotiation and can be as broad or narrow as the parties agree to make it. One significant advantage to a development agreement is that it allows a broader range of issues to be addressed in binding approval requirements than most any other regulatory approach. As one would expect, the scope of the provisions is frequently a significant point of negotiation between local governments and applicants. The question of how long an agreement runs and how much development is approved is often related to the range and scope of mitigation measures applicants are willing to commit to. But the ultimate answer to this query is that it is for the most part whatever there is mutual agreement on.

I hope this helps.

It certainly does.

Since a development agreement provides a legal framework for requiring adherence to standards above and beyond existing zoning requirements, I am exploring how the Town can negotiate “best in class” environmental expectations somewhat along the lines of the work proposed by the Horace-Williams Citizens Committee sub-committee on environment.

Those requirements, which I set the stage for (May 26th, 2006’s The Last Horace Williams Citizen’s Committee. Hurrah?), would set the “greeness” bar moderately high for UNC. Of course, if you don’t ask, you don’t get. I wouldn’t ask, though, if I didn’t know that our world-class University has the capability, if not the will, to meet environmental standards typically applied in other jurisdictions.

Thank you Dr. Owens for the quick reply.

I will be attending this evening’s meeting I’m glad to hear your going to explore some of these issues in greater depth. Before the Horace-Williams Citizens Committee was decommissioned, the environmental sub-group had started to create a framework for establishing specific “best in class” environmental benchmarks for Carolina North. We also discussed how to monitor compliance – so many candlepower per square foot for light pollution, so many gallons of runoff, so much particulate pollution, etc. – and possible enforcement procedures. This is the context behind some of my questions.

Since your Sept. 25th meeting I’ve had an opportunity to research several other states adoption of this process. While the basic theme is the same, it’s interesting to see how different jurisdictions bind community needs to developer requirements. One issue, though, that I haven’t found much material on is the public hearing process. You might recall from the Sept. 25th meeting my concern about evidentiary procedure. It appears many communities dispense with a quasi-judicial framework and defer to an informal process.

I’m going to lobby Council for the greatest transparency in adopting the development agreement: no ex parte discussions, minutes of all meetings, some formal evidentiary proceedings and informal – though open, documented – discussion. I know Council has indicated they want the community to have a full opportunity to weigh in but given the tight timetable, I’m afraid that the public might be shortchanged as the process concludes. This is not an abstract concern, as this has happened several times recently. Any suggestion on how to build in this transparency from day one?

Thank you again for work on behalf of Chapel Hill.

I appreciate Dr. Owens rapid response.

I’m not afraid to ask questions – dumb or not – in order to zero in on the relevant issues. I have a number of updates from recent requests on everything from the County’s e-waste management to the Police department’s “eyes on the community” plan in the pipeline. I hope to share soon – keep an eye out.