 Good evening we like to call the Durham City Council meeting to order. It's 7 or 2 p.m. on Monday, March the 20th and certainly welcome all of you that are in attendance. We could just take a moment of silent meditation please. Thank you. And that's Councilman Davis who will lead us in the pledge. One Nation under God. Indivisible. Delivered to justice for all. Madam Clerk would you call the roll please. Mayor Bell. Present. Mayor Pro Tem Cole McFadden. Council Member Davis. Council Member Johnson. Council Member Moffitt. Council Member Reese. And Council Member Shull. We have two proclamations that we'd like to present this evening. I'm going to ask the Mayor Pro Tem if she would join me. The first one has to do with the Durham Hunger Walk. And while I'm doing that normally we will be presenting the Neighborhood Spotlight Award recipient this evening. But unfortunately I was told that the recipient of that award, Miss Alice Cheek, who many of you probably remember from our call for council of the Edgermond Ellens community is fortunately she's in the hospital and won't be able to be with us this evening. So it will be presented at the appropriate time. I'm going to ask the Mayor Pro Tem if she would read this proclamation. This is the one with Durham Crop Hunger Walk. And we'll ask Karen if she would join us. Oh you're right behind us. This is a proclamation and it reads as follows. Whereas at the end of World War II many people wanted to share our country's abundance. With European war veterans. And Crop's first purpose was to gather wheat and other crops from U.S. farms for shipment to Europe. And whereas today the Durham Crop Hunger Walk is an important part of community life bringing together people of different faiths, different socioeconomic levels, diverse cultures and all age groups to provide local and international hunger aid. And whereas in the last 42 years, Durham Crop Hunger Walks have raised over $4 million to help and bring hope to hungry people in need around the world and here in the United States. Whereas each year Durham Crop Hunger Walk helps local agencies such as Meals on Wheels, Urban Ministries, Housing for New Hope, Double Butts for Snap, Threshold Clubhouse, Food Bank of Central and Eastern North Carolina, Families Moving Forward, Open Tables, PYO, St. Andrew's Society and Church food pantries who provide food to our Durham neighbors in need. And whereas the Durham Crop Hunger Walk raised over $145,000 last year and whereas the Durham Crop Hunger Walk's goal is to raise enough money to be able to support two additional local agencies this year and whereas the Durham Crop Hunger Walk in 2017 will dedicate all of the internationally designated funds over what was raised last year to refugee aid and whereas the Durham Crop Hunger Walk is the oldest fundraising walk in North Carolina and will hold its 43rd annual Crop Hunger Walk on Sunday, April 2nd and whereas the Durham Hunger Walk helps the community to become aware of and concerned about hunger and its causes and whereas the Durham Crop Hunger Walk is the second largest Crop Walk in the nation that's amazing, out of more than 1,000 walks demonstrating the tremendous compassion and altruism of Durham citizens now therefore for I, William B. Billbell, Mayor of the City of Durham, North Carolina to hereby proclaim April 2nd, 2017 as Durham Crop Hunger Walk Day and Durham and hereby urge all the citizens to take special note of this observance again, April 2nd, 2017, Durham Crop Hunger Walk Day Karen, thank you for all the work that you do, it's amazing, you're in everything Thank you Mayor Pro Tem and council members and staff and everyone for having us here as Korra mentioned we for many years have been the third largest walk in the country and we are very excited that we have made it up to number two so I just wanted to point that out, draw a little attention to that because we're very excited about it but I also want to say that while that's based on the amount of money we raise and while the amount of money we raise is important I think what's even more important is the people that we're able to help and I brought some brochures and I will leave them so people can pick them up on the way out but in our brochure our theme this year is neighbors feeding neighbors which I think is a great description of the walk but there are actual pictures of people who we've made a difference for three of them are local people and three of them are people who we provided international relief for but I think it's important to remember that it's not just about raising money but it's about changing lives and not only do we have a very diverse group of people who receive aid from Crop Walks but we have a very diverse group of people who participate so we have a number of 70 some faith congregate, faith worship, places of worship we have schools, we have businesses, we have non-profit organizations many of the ones we serve actually walk in the walk so it's very exciting to me that this is such a great representation of Durham all parts of Durham, all ages, all families, individuals so we invite you to come one thing that's new this year is that as Korra mentioned we are distributing any money above what we raised last year of our international relief money we'll go to refugee resettlement so some of that stays here in Durham there's a church world service office in Durham that resettles refugees some of it will also be for actual relief to refugees who are looking for homes so we really encourage folks to work on getting their sponsors up so we can make a good contribution so I would like to invite you all to come and of course for our city council members we have provided them all with one of our t-shirts from this year's walk so you will be properly attired when you come but I just want to call out to Mia Little who is an NCCU student who designed the shirt this year their class as part of their assignment designed possible logos for the shirt so she is not here, she will be at the walk though and we also want to thank Korra who will be speaking on behalf of the city at the walk I'd like to ask councilman Schull if he would join me please this is a very special proclamation as all of our proclamations are but it recognizes Paul Murray family home National Historic Landmark Day and I know Barbara Lowell is here and Steve is the editor and I guess I'm acquainted with this proclamation but Steve did it all thank you Mr. Mayor hello, good to see you I'm going to read this proclamation congratulations on the designation of the Paul Murray family home as a National Historic Landmark whereas the Paul Murray family home at 906 Carroll Street has been designated a National Historic Landmark by the National Park Service and US Department of the Interior because of its association with groundbreaking African-American civil rights activists, lawyer, feminist, educator, writer Episcopalian priest and LGBTQ community member Paul Murray and whereas Paul Murray was born November 20, 1910 almost 107 years ago and grew up in Durham, North Carolina as part of a prominent African-American family the granddaughter of educator and Union Army veteran Robert Fitzgerald the grand niece of brick maker and banker Richard Fitzgerald and the niece of longtime Durham public school teacher Pauline Fitzgerald-Dame and whereas Paul Murray was an acclaimed author who wrote Proud Shoes, the story of an American family published in 1956 which offers an unprecedented glimpse of early Durham and the significant life experiences of her family members and whereas Paul Murray was a social justice activist in the United States and abroad and a tireless fighter who demonstrated fearlessness and courage in her lifelong struggle for racial and gender equity and serves as an example for LGBTQ people living living out their sexual orientation and gender identities and whereas Paul Murray wrote state laws on race and color for the women's division of Christian services which was labeled the Bible by Thurgood Marshall and was instrumental in the landmark 1954 Brown vs. the Board of Education and other civil rights cases and whereas Paul Murray served as an advisor to Eleanor Roosevelt and was appointed by John F. Kennedy to the Presence Commission on the status of women committee, PCSW on civil rights and political rights and whereas Paul Murray was a founding member of the National Organization for Women in 1966 and coined the term Jane Crow in recognition of the interrelated discrimination faced by women and people of color and crafted a feminist legal strategy later used by Supreme Court Justice Ruth Bader Ginsburg to win protections for women in the workplace and whereas Paul Murray was the first African-American woman to graduate from the Howard University School of Law in 1944 at the top of her class and the first African-American woman to be ordained as an Episcopal priest in 1977 and was named to the Book of Holy Women, Holy Men a celebration of saints in 2012 and whereas Paul Murray's legacy has inspired the Paul Murray Project at the Duke Human Rights Center, Franklin Humanities Institute and the Paul Murray Center for History and Social Justice to shine a light on her life of human rights activism create opportunities for open community dialogue document Durham's lesser-known histories and use history as a tool for addressing contemporary social justice issues Now, therefore, I, William V. Bill Bell, Mayor of the City of Durham do hereby proclaim April 1, 2017 as Paul Murray Family Home National Historic Landmark Day in Durham, North Carolina and commend its observance to all citizens in recognition of this distinction for our community Witness my hand in the corporate seal of the City of Durham, North Carolina this is the 20th day of March 2017, William V. Bill Bell, Mayor Congratulations to you all I'm here tonight on behalf of the Paul Murray Center for History and Social Justice and the Paul Murray Project and we are just so proud to be North Carolina's 39th National Historic Landmark and in fact the very first focused on women's history so I really think that's a lot to celebrate and we want you to join us in that on April 1st, Saturday April 1st we'll have a celebration at the Paul Murray House which is at 906 Carroll Street from one to five Mayor Bell and County Commissioner Wendy Jacobs will be there representative from GK Butterfield's office family members we've actually commissioned an original poem to open that ceremony and then there'll be participatory art projects and two exhibits, one new exhibit about Paul's connections between women's rights and civil rights and you'll get to go in the first floor of the house so I hope that you all can join us it's all free, everyone is welcome and we hope to see you there Saturday April 1st thank you all very much, thank you I'd like to recognize Councilman Reese Thank you Mr. Mayor Last weekend young chess players from across the state gathered in Raleigh for the 2017 North Carolina Scholastic Chess Championships competing in the division that encompasses grades kindergarten through fifth grade which is known as the K-5 division was an intrepid team from Durham's own Moorhead Montesquery School the Moorhead Meerkats there were 31 total teams in that division and Moorhead Montesquery was the only public elementary school here in Durham to field a team our Moorhead Meerkats finished eighth in their division which is really awesome the Meerkats were led by a scrappy fourth grader named Elias Elias earned five points out of a possible seven points in the tournament with four wins, two draws and one loss by the way one of those draws was against a player who had twice his rating it was really amazing which earned Elias a tie for 11th place overall out of 150 participants in the K-5 division as a fourth grader Elias also received what's known as a class prize for doing extremely well given his initial chess rating going into the tournament he came in first among all competitors who entered the tournament rated below 1,000 and as it turned out throughout the course of the tournament Elias ended up facing the most difficult opponent list of any competitor in the tournament pretty amazing for a fourth grader Mr. Mayor, when you hear how well Elias did in the tournament it might not surprise you to learn that Elias' dad is the coach of the Moorhead Meerkats chess team but it may surprise you to learn although some folks here may see her beaming from the other end of the dais I may have already guessed that Elias' mom is our colleague city council member Jillian Johnson I know that Jillian and Paul are so very proud of Elias and his team so congratulations to Elias and all of the Meerkats for a Moorhead Montessori for their outstanding performance in the 2017 North Carolina Scholastic Chess Championships Super, that's great Great things that happen in Durham, right? All right Are there other announcements, comments? I recognize the Mayor Pro Tem I'd like to congratulate the Thomas Mentoring Leadership Academy on its awards ceremony on Saturday That group is mentoring close to 13 to 15 young black boys and that group is doing an outstanding job They are incredible But what was so special about the awards luncheon was the recognition of one of our police department employees Terrence Sembley for his work with that mentoring program So I applaud him and the police department for all that they're trying to do to help save our young black children Thank you, Mr. Mayor All right, any other announcements by council members? If not, I understand that the city manages for our dams Thank you, Mr. Mayor, everyone, no priority items Likewise, City Attorney Thank you, Mr. Mayor, no priority items Likewise, City Clerk No items, Mr. Mayor Thank you We'll move the agenda, the first item being the consent agenda Those items can be approved for a single vote If a council member or a member of the audience chooses to remove a consent agenda item We will discuss that item later in the agenda I read the heading of each one Item one, approval of city council minutes Item three is last mile agreement between the City of Durham and the North Crown Department of Transportation Item four is contract amendment number one Listen, I do have the wrong one Blame it on the city manager since he pulled mine up Hold on I got it on Is that it? I thought those things sound familiar anyway Okay, we'll start again Approval of city council minutes Item one Item two is item that can be found on the general business agenda Item three is the Durham Performing Arts Center Oversight Committee Reappointment Item four is the Durham City County Appearance Commission Appointments Item five are grants drawn Drawdown performance audit Item six is FY 2016-2017 Emergency Solutions Grant City General Funds Housing for New Hope Inc Subrecipient Contract Rapid Rehousing Project Item seven is interlocal agreement with North Carolina Department of Transportation and the City of Raleigh for the Regional Strategic Tolls Study Item nine is FY 2015 and FY 2016 Federal Transit Administration Section 5310 Grant Project Ordinance Item 10 is the bid report for January 2017 Item 11 is acceptance of 10,000 electric vehicle charging station grant from Duke Energy Item 12 is CIP Ordinance Amendment and Grant Resolution for the West Elevator Creek Trail Phase II project Tip number C-5572 Item 13 is construction contract for the West Elevator Creek Trail Phase II project tip number C-5572 Item 14 is construction engineering and inspections contract for the West Elevator Creek Phase II project Tip number C-5572 Item 16, 18 and 19 items that can be found on the general business agenda Item 20 is a contract with Meritech Incorporated for Laboratory Services for the Stormwater Quality Program Item 21 is contract amendment Number 6 for ST-264C for Fidmore Road Improvements and Ordinance Amendment number 14945 Item 22 is a contract amendment number 2 for ST-277C project management services for installation of fiber optic cable Items 26 to 29 items that can be found on the general business agenda's public hearings We'll entertain a motion for the approval of the consent agenda It's been propped and moved in second Madam Clerk, we open the vote Close the vote It passes 7 is zero We move to the general business agenda Item 2 is Recreation Advisory Commission Appointment Item 16 is telecommunications license I'm sorry Yes Mayor Bill, David Faleroff has received four votes for appointment to the Recreation Advisory Commission Thank you Item 16 is telecommunications license I think you're reading the vote You're reading from the vote, right? Yes Item 16 is the telecommunications license ring with teleport communications America LLC I have Robert DeRoe who's here to speak Who's raised Do you want to speak with us? I'll be here to answer questions Martin Williams with the Department of Public Works I'll be here to answer any questions you have Sure, this is Robert DeRoe with AT&T He's here to address any questions that the council may have related to the various license agreements that were on the work session last week under the different subsidiary companies that AT&T owns and they're operating within the city limits There are a couple of issues that the council raised as far as work performance by AT&T over the last year during their broadband install At the request of council, Mr. DeRoe is here to address any questions that you may have Well, there are really three items related to that Item 16, 18, and 19 So let me ask you the questions by members of the council on Item 16 Recognized Councilman Shul Thank you, Mr. Mayor Thank you, Marvin So my first questions are for the administration which is, can you describe or let me ask you just this what information do we have about the amount of work that's being done by our staff in order to in terms of the investigations are we finding a lot, do we have any numbers on how many times we're having to get AT&T in these cases This is AT&T in two of its These are all really AT&T companies subsidiaries Do we have figures on the amount of times that we've had to ask them to stop work or make changes? So there should have been a memo attached to this agenda item or one of the other items that were directly related to AT&T's work that gave you all the information requested at the once in a while Item 19, Mr. Shul Council, thank you for allowing me to be here If I can clarify, item number 16 is PFNET, they're a subsidiary of AT&T and they only do work actually it's Teleport, they were PFNET they have an interim license agreement they're asking for a renewal license agreement they only do about one permit per year they're not in the build plan that Mr. Williams is going to talk about so they would not come under the question that you just asked and then also the number 18 I think is AT&T court, they're the long distance leg of this and they would also they only do one or two permits per year so they would not also come under the questions that Mr. Williams is going to answer but all the questions that you have are for BST, the South Telecommunication through and business as AT&T Thank you, that's helpful and in a minute I'm going to get this memo to come up which I'm sorry I didn't realize we had but I appreciate y'all adding it You're still on 16 Well, I think these all go together Mr. Mayor I understand what Robert's saying so I guess my questions go particularly to the which one did you say, Robert, 19? I believe it's 19, it's BST Yeah Before we, I guess I want to Sure It's a recommendation that the Department of Public Works recommends City Council authorized City Manager to enter into a right-of-way telecommunications license Teleport Communications America, LLC Is the Council ready to enter into that motion now? That recommendation? Do you want to wait until you go through 18 and 19? It doesn't matter Either way, it's good Well, if people are comfortable why don't we move on this item 16 in recommendation It's been a proper move in a second for the discussion Madam Clerk, we open the vote Close the vote It passes Did you mean to vote yes? It passes 7 to 0 So the next item is Telecommunications License Agreement Bell South Telecommunications LLC Doing business since 18 and 19 That's the one that we want to wait on Bell South Telecommunications Well, I just read it So that's the one we're talking about So we're on item 18 And I would ask questions, comments by members of the Council Just to be clear This is the one where most of these permits are, is that yours? Thank you I've had a chance here to quickly glance at this memo, which I appreciate I'm sorry, I didn't realize we had And I see there's a list of the complaints that have been logged and it looks like AT&T has about 523 complaints that have been logged in a period since June of 2015 That's correct Is that right? And how about, and then I see here we have the stop work orders which follow that, is that right? That's what that next chart is That's correct, it gives you a date of the various stop work orders if it was cruise specific or if it was a full city-wide shutdown And so this looks like about 6 or 7 times once was Google but the others were AT&T There was a full city-wide shutdown and various cruise shutdowns for lack of restoration city-wide various violations working past a lot of time So let me just say to Mr. DeRode that's a lot and that's not just the the full not just the shutdowns but the complaints log that's a complaint logged at least, I don't know, maybe an average of one a day since that time So could you comment on your plans and practices regarding this and you and I spoke on the phone earlier I appreciate your call last week but could you comment on that? Yes sir with this being a full scale deployment into Durham as a new I guess a new area for us to be deployed in we have had roughly 40,000 limit units we've passed so the 500 complaints in the last two years is about a percent one and a half percent of the residents that we have passed I do also believe that those most of the complaints and most of the shutdowns have occurred at the very beginning or towards the middle of the deployment and that those numbers have decreased recently we have regular calls with the city of Durham at their request we come and meet with the city of Durham practices and try to do everything that we can to mitigate these complaints I don't think there are any open complaints that we have not addressed so I feel like we are getting better and we have any of those crews that were shutdown crew specific we have made sure that they are not working in Durham now Thank you and for our staff again this contract what would be the length of time of this contract this is just to get us through the license agreement and so what is the length of time of it does it have a time if I could it does not have an end date it is a license agreement we are in an interim agreement right now with the city of Durham that has been in place since 2000 and so this 2017 agreement is just updating the interim agreement okay and so again this is costing us the inspections something like four million dollars over the next couple of years taxpayers money and as you know we have passed an ordinance which said that we would be recovering 50% of the direct cost that we incurred and the legislature overturned this they said that we were not allowed to charge those permitting fees any further even though we had been collecting permitting fees and I know that the EU and the other utilities went to the legislature to lobby for this and I just want to express my feeling that my strong feeling that this should be something this should not be an expense that the taxpayers should be bearing this should be an expense that the that the company should be bearing this is you all are not regulated utilities you can pick and choose what neighborhoods you go to and you do pick and choose what neighborhoods you go to and I discussed this on Friday and if it was a regulated utility and everybody in town was guaranteed the service including low income neighborhoods and everybody could be served I might feel differently about it but in a situation where this is an unregulated profit making business I've been in an unregulated profit making business myself for 30 years I have no problems with it but I do think that this is not something that the taxpayers should bear and I just want to express my strong disappointment that you all took that action as I said you and I have spoken about it I know we're in disagreement about that but I feel that very very strongly do you have any comments on that? we're in agreement that the taxpayers should not bear that cost where we have a disagreement is that the legislature passed a fee structure that in lieu of fees we would pay into a fund quarterly and Durham does receive money from the industry AT&T and if I remember correctly Durham City of Durham received 20 million dollars last year from the industry the telecommunications the energy and the gas companies and the clarification that we wanted from the general assembly is what we were paying into that fund for and I think that that was clarified in that unless the right-of-way maintenance went above the 20 million we should not pay fees and anyone who is not paying into that general fund fee still has to pay your permit fees you still have permit fees on your books so we definitely agree that the taxpayers should not bear the burden but I feel like we are paying into that fee for that reason so I do believe that we are paying our share well I'm just going to have to differ with you on that that I have some figures in terms of the revenues that we've received for the telecommunication and local video programming revenue most of it is for local video programming revenues less of it is for telecommunication sales tax but the the amount that we received in FY16 was about four million dollars down from the previous year but pretty consistent with previous years and that was from the telecommunications portion of that telecommunications and local video programming yes sir I agree with that but your total permitting cost for the you're talking about four million over the next couple of years that's for your total permitting for gas, electric, AT&T, Google everybody sure but I think we all know that this is really being driven by what AT&T and Google are doing and Frontier and Time Warner and Frontier and Time Warner fair enough but it's been driven by these increases Duke Energy is not a land lot of cable so it's being driven by what the expanding telecoms are doing so your right it does include everyone who's doing that but it is definitely being driven not just by AT&T and you're right I'm singling you all out as you're here and this is your permitting this is your this is your licensing agreement but we will be hearing from them as well I'm sure they'll be coming for their agreements in 2015 2014 let me see if I've got this right I'm sorry 2007-2008 the the legislature removed the city's authority to award or renew franchises for telecommunications services and that's when you started collecting those fees and that's when we started collecting those fees and we those franchises that franchise agreement was an agreement whereby money got paid to the city and returned for you all being able to operate so instead what we did was we had a a fee system and that fee system has been in place without challenge that I know of from 2007-2015 2016 and now when you all are doing a tremendous amount of work requiring all those 623 complaints have to be checked out and not only those complaints have to be checked out but all of your work has to be reviewed and needs to be reviewed as I'm sure you agree and yet we're not able to recover anything for that I just want to tell you I think it's wrong I'm disappointed in the utilities and I think it's hurting our taxpayers in a way that it shouldn't I know that that in a sense is water under the bridge except that what I will express to our city administration is that I hope that we will find a way to make sure that we are recovering as much of our cost from the utilities as we can for this service and I know that you all will probably be and I'm sure you'll be in continuing discussions with our city staff but I know you all are anxious for a speedy build out and I know the other telecoms are as well but and we all want that service in Durham we all want that service but I don't think it's incumbent upon us to do it at such to provide these city services at such a speed and such a level as we have if you all aren't going to be paying the cost and if the taxpayer is going to be buried so that's my thought I'll commend that to the administration and just again want to express my disappointment in the way things have turned out and I appreciated your call the other day Robert in our discussion so thank you the other comments recognize Councilman Rees thank you Mr. Mayor it's tempting as it is to leave the issue on those eloquent remarks I did want to add two things first of all that I agree 100% with what Steve said it's really frustrating I know that you have a difference of opinion with some of us about the nature of the fees that are already being paid the source of monies for those fees and what they're supposed to be used for that was very artful language that the general assembly clarified of what those fees were for I got to remember to write that down but we are here to talk about this license fee the reason the second thing I wanted to mention separately is that in full disclosure I was one of the members of the council who asked that this be put on the general business agenda for tonight at the last work session because it was frustrating to me that we were seeing three separate license fees for AT&T affiliates a concern that's been expressed to me many many times over the course of the last year and a half that I've been on this council is that utilities keep coming through over the last year and a half digging up the front of people's yards putting it back with some straw and what not leaving the orange cables or the orange tubes or whatever the heck that stuff is hanging out of the ground until the next one comes along and digs it up again and does the same thing again which I suspect is in the nature of some of the complaints that we've seen on the document which again thanks to the staff so it had been my frustration that led me to pull those items to find out why if all of these particular licensees were AT&T affiliates why they couldn't figure out somebody to work together unfortunately that particular line of questioning lost some steam when you explain the nature of the folks because at this point we're paying 7500 for each of those licensing agreements and we would like for that to be under one state law says we can't and obviously Durham wants to be able to see who's doing what work where okay well in any event what I was going to say is these are at least two of these are not in the nature of the frequent folks that we've seen getting complaints around the city and certainly not that I've received so I just wanted to flag the fact that I did ask that these matter be pulled and thanks to the clarification from the folks who came today I'm ready to move forward. Thank you Mr. Mayor. Are there other questions, comments on this item? If not we have again a recommendation by the staff that the administration approved the license agreement that we have before us. Move the staff's recommendation. Is there a second tonight? I'll second it for the purpose of discussion and I guess the question is an awesome racist administration if we don't approve the license agreement that's it. That's probably a question for the city attorney as well Mr. Mayor in terms of what authority the council has not to grant the license. I hadn't considered whether you would not do that. My guess is that and I'd have to check the state law on this I would suspect that AT&T would object to that and probably enjoined the city from not issuing the license. I guess next who was that? Well the end result is that it appears to me that the license isn't granted and if they aren't able to do this then people who want it won't be able to get the service. That sounds the bottom line to me and I'm not sure that I'm in a position to want to go to that extent. I've heard the discussion of concern about the fees and how it's got about but the bottom line is we're trying to be a wired community you have people that want the service and I think it would be the wrong thing for this council not to allow that to happen for those verses that wanted it but having said that I'm going to recognize staff first if you have comments on that. Well it was just a follow-up having talked to the city attorney's office earlier today. One thing that was pointed out was that the 1996 telecommunications act prohibits any discriminatory actions against providers performing essentially the same services within the city so I don't think I'm not sure and I have to defer to the city attorney if there's legal grounds based on this. The point of my the language that I chose was that this isn't going to be the end of the story if you decide not to give AT&T the license agreement I would expect that there would be some form of litigation. All right. Somebody's mom to know who I'm trying to recognize. Let me recognize councilman Marford and then councilman Schuyl. Well thank you Mr. Mayor I want to appreciate my colleagues Steve and Charlie for speaking up I share their angst and I know all of us too because we're in now for over for several million dollars for having to pay consultants because our staff can't handle the load with all of the permits and complaints that are going on. One of the most frustrating things for me is when I get emails from citizens from residents who are beside themselves because they're being they're looking for someone to help them because they're being mistreated and those complaints have come as you can see over 500 complaints over the last few months of TNT's work so it's frustrating to have this many complaints it's frustrating to spend this much money and it's frustrating to have the legislature clarify that they don't like municipalities so that said I will probably wind up holding my nose and voting for this because this is because people do want these connections and councilman Schuyl is right people in neighborhoods that probably aren't going to get these connections want them as well and that's another point of frustration Thank you Thank you Mr. Mayor Well what you and Don said I agree with I think that people in Durham do want these services I don't think we ought to I do think we ought to have AT&T have a license in Durham I'm planning to vote for it but I am in the future after the after I believe the fees have to expire at the end of June about what our plan is going to be going forward in terms of dealing with utility so I'll be interested in that but I do plan to vote for the license and appreciate it Other questions on the side I just wanted a clarification from our city attorney about can you repeat what you said about whether we have the authority to deny the request and what would happen if we did The issue is that you can't treat similarly situated utilities differently and that would I guess I'm giving AT&T their legal argument but you've asked the question you're not going to be able to pick and choose between utilities based on some arbitrary issue or some specific and I'm not even sure what that would be I hadn't really thought of that but the challenge is going to be to have AT&T in but Google or AT&T out and Google still in being able to do their work under their presumed license agreement that's going to be the challenge Other further questions or comments if not I'm going to call a question Madam Crick, we open the vote close the vote 7-0 Thank you That was 18, now we've got 19 19 is telecommunications license agreement with AT&T cooperation Second Madam Crick, we open the vote close the vote It passes 7-0 Thank you Thank you Move to the general business agenda public hearings Item 26, unified development ordinance tax amendment traffic impact analysis expiration Thank you very much Michael Stock with the planning department Before I begin I would like to note that all required notification for planning department public hearing items have been performed and on file for review for specifically for tax amendment TEC 16-0002 that includes changes to the traffic impact analysis or TIA standards within the unified development ordinance A TIA is a professional study regarding the impacts of a proposed development on the roadway system and indicates any necessary improvements to that system as part of the proposed development The UDO establishes a period of validity for TIAs and staff has applied this period of validity to all TIAs including those submitted as part of the zoning map change with the development plan The city attorney's office has advised that the current text of the UDO would not allow period of validity to be applied to a TIA associated with the development plan The UDO staff has initiated this amendment to section 3.3 and 3 TIA traffic impact analysis and section 3.5 zoning map change to clarify that expiration of a TIA also applies to TIAs approved along with the development plan and to establish procedures for such a TIA such if a TIA has expired I'm sorry and that is found in attachment A The joint city county planning committee proposed a TIA section 3rd 2016 meeting the planning commission recommended denial 5 to 7 of the text amendment at the December 13 2016 meeting staff has addressed the concerns raised by the planning commission and to better execute the intent of the amendments thus the text amendment proposed for city council on board of commissioners approval is a revised version and that's your attachment A. In short this is the practice of staff that a new TIA will be required and any new mitigation measures will be required in addition to those committed on the development plan As a reminder council will be required to take two actions the first will be an action on the ordinance amendment itself and that's attachment A and the second would be an action on the appropriate statement of consistency found as attachment B Thank you. I'll be happy to answer any questions. I would ask first all the questions by members of the council on the staff report. If not I have one person that has signed to speak on this item item 26 Patrick Biker Good evening Mayor Bell, Mayor Pro Tem Cole McFadden, members of the city council my name is Patrick Biker I live at 2614 Stuart Drive. I'm here tonight representing I'm sorry I'm going to turn you with Morningstar Law Group in Durham I'm representing the properties in Reader and Partners who are developing Beth Page a 400 acre development approved for 1100 residences 150,000 square feet of retail and over a million square feet of office space. I'm also here representing Craig Davis properties the developer of Davis Park which contains almost 200 acres and it will consist of about 1200 residences over 100,000 square feet of retail and it's been quite a few years but my recollection is that both of these large master plan developments receive unanimous approval from the city council. These two master plan developments are moving forward providing new residences and job opportunities in the city of Durham. I'm here tonight to oppose this text amendment and I strongly agree with the analysis put forward by Planning Commissioner Tom Miller whose comments are in your agenda package Commissioner Miller stated quote this procedural requirement if adopted would be unlawful because it presumes to tell a property owner that he cannot develop his property as it is currently zoned. He went on to say the TIA guides us in making regulatory decisions it is not part of the regulations itself we cannot incorporate it into the zoning regulations and give it an expiry date unquote. Tom Miller's colleague on the Planning Commission and also my colleague and Morningstar law group Planning Commissioner Neil Gauch had the following to say which is also in your attachment quote I want to point out the lack of irrational nexus if nine years ago the project was expected to produce X amount of trips how can it be expected to produce more than X amount of trips today. In other words how does the passage of time affect the expected traffic impacts of the same proposed development the answer is it does not. Therefore a traffic problem that exists today but did not exist nine years ago cannot be the fault of an undeveloped project unquote. According to it is clear to me that this proposed text amendment has legal challenges I'd be remiss if I did not point out the provisions of North Carolina General Statute 6-21.7 which allows for a judge potentially to award attorney's fees to a party who successfully challenges the city's action for being outside its authority. I would also be remiss if I did not point out that Beth Page and Davis Park are master plan developments located very close to the Wake County line. I am sure that the cities next to us in Wake County do not require their developments to spend one thin dime on traffic improvements in Durham. Even though many of those Wake County residents work here every day. However these Durham projects that I referenced are forced to pay for traffic improvements due to all those folks in Wake County who drive here every day to work here. And so the long story short is the more Wake County grows the more Durham projects have to pay for these traffic improvements. That is just not right. For all these reasons I respectfully ask for your disapproval of this text amendment or as an alternative please have this text amendment only apply to zoning map changes approved after March 31, 2017. Last I would just like to ask if that's not appealing please reference the North Carolina Permanent Extension Act so that that would apply to this text amendment so that TIAs would be granted another three years of validity. This text amendment makes it very difficult for master plan projects that I referred to that are 200, 400 acres in size to be developed within an eight year time frame. I'll be happy to answer any questions you may have and I thank you very much for your time tonight. Thank you. Let me ask so there are some questions I want to speak on this item before I get back to the council. Is anyone else who wants to speak on this item? No, it matters back before the council. I haven't closed the public hearing yet but it matters back before the council. I recognize council will moff it. Yes, I'd like that. I'm trying to understand the issue the changes that were made since the planning commission meeting and the impacts of all this. So let me start by by saying that there's zoning. Every piece of property has a zoning on it. Some of those have a development plan on them and some do not. If it has no development plan on it is there ever a time that a TIA is required? Yes. Okay, and what is that time? When they submit a site plan for approval and it trips a threshold requiring a site. Okay, and then when that happens we're talking about no development plan at that point does our local and state DOTs weigh in with improvements that they require before the site plan can move forward? Correct. Then when we have a development plan when is the TIA I mean I know the answer but I want everybody to know the answer when is the TIA required? Same thresholds when there's a determination through the development review process that's going to trip a certain threshold. For no development plan is required when the site plan is submitted. Correct. But the TIA with a development plan is required with the development plan. Correct. Before the site plan. Correct. Then I got to wondering why is that? Now we're going in with the development plan and we're actually putting in required elements. It seems like based on the way we do things with no development plan if we just waited until they came up with the site plan and they submitted the TIA and they'd have to make their improvements then all this would be a moot point would it not? It would be. This is a practice that has happened even prior to the UDO and the policy direction that has come through when you go through rezoning there's always been interest as to the impacts that that development is going to have on the roadway system and try to these are committed elements so an applicant doesn't have to commit to those TIA improvements they are committed elements by the applicant at that time. So NCDOT I assume wants to see a TIA no development plan now I have a site plan they want to see a TIA under certain circumstances when thresholds are met. Is that correct? Once the development plan is approved does NCDOT come back later and want to see a new TIA? If there's no TIA required no I mean with TIA for example Mr. Becker brought up two cases two large scale developments I'm sure there are others there's a development plan the TIA is done before there's a site plan when the site plan is submitted does NCDOT want to see another TIA they do review site plans and they'll issue comments on it based upon the requirements that they've already issued through the development plan. Are you aware of them ever requiring additional traffic mitigation when the site plan is reviewed? I'm not but have there been changes? I'm just trying to understand Bill Judge with transportation yes NCDOT participates in our review of development plans and TIAs really just to try to improve the process but there's really no commitment or obligation for them to follow any comments or requirements that are issued as part of the development plan their actual authority is at the time of site plan or driveway permit issue so if there's concerns that come up after the zoning's approved they always have that ability to require additional analysis or additional improvements so in the case of the two projects that Mr. Biker was talking about Beth Page and Craig Davis Properties in those case when a site plan is submitted the developer might be required to provide additional traffic mitigation measures they very well could where they're impacting NCDOT roads I will say that they do a NCDOT does try to participate in our process and provide those comments up front so as to minimize impacts or changing requirements to applicants so it's relatively rare but they do have that authority that they could do that okay thank you Mr. Stein I want to ask a question too about the point that's been raised when we do a development plan zoning and we have committed elements in it the committed elements according to planning commission members those committed elements become part of the zoning would you agree with that correct and they make the case that if you if you say well gosh you know some period of time has elapsed so therefore your zoning is no longer valid I can see you've got your attorney behind you shaking his head you might tool from the city attorney's office I guess what I would say is the way the the UDO tax change has been modified alleviates the problem that you're saying bottom line is before this tax change was proposed it was always understood I believe by the city council that originally approved these UDO provisions planning and transportation department that TIA's even with development plan rezonings could expire Mr. Biker actually brought forward a project about two years ago and complained about that and said that that was a problem that if there are committed elements in the development plan then it can't be changed the change here is to clarify that TIA's do expire even with regard to a development plan rezoning and that when a new TIA is done and they would only expire eight years after the initial rezoning when that TIA is done if additional transportation requirements are required that the applicant would have to agree to those in addition to what's already approved in the committed elements for the development plan is that the same would you say that is the same as for a used zone that does not have a development plan in other words the property owner the property owner with the development plan or no development plan would they be in the same situation in regards to the difference is of course with no development plan that the property owner has no current requirements for traffic mitigation right so I'm just trying to wrap my head around because I think the problem I noticed that you said that the TIA expires eight years after the zoning approval which makes it sound like it's part of the zoning but if I understand your argument the TIA is actually just a tool correct and it's actually eight years after the TIA is completed then it expires right correct it's not attached to the zoning the TIA is not the committed elements are right so any traffic improvements that are the result of the TIA those become committed elements in the development plan zoning okay so I may have another question but I have to think about it thank you Mr. Mayor I have two questions I can ask Councilor Marise make sure I understand what you're saying if we vote for this particular amendment is that suggesting that every TIA that's currently in existence that is older than eight years is automatically invalid today if it has not been enacted upon yes if someone got a zoning back in 1995 with the development plan of TIA and hasn't acted upon that development plan say it was a development plan for office right and the TIA was done for office or other office uses but the house that's on that property back in 1995 is still there but now they want to build an office on it well conditions have changed since 1995 so it's saying that we want to take into consider and analyze those conditions and roadway improvements make sure that A that anything that was committed on that development plan obviously would still be in play but what are the new mitigation measures that we'd normally even require even if it didn't have a development plan on it that would require anyway because it's tripping the threshold that we would take a look at those mitigation measures also okay well I appreciate your example of 1995 that's not what we're talking about here right right but it's an example of an expired TIA so it could be 1995-2005 the date really doesn't matter you're right but I'm just saying if it's an old development plan then yes so bear with me to the extent that a developer has acted in reliance on the TIA that they prepared and the development plan that they put forward under what authority does this council propose to change the terms of that I don't understand how that works like legally no one's changing the authority all the requirements of the zoning are in play you're enacting additional review because if it was a site plan submittal you're asking you're requiring review of that site plan and determining what are the mitigation measures needed based upon the threshold requiring the TIA the developer was entitled to do a particular thing in a particular way we're passing changes to the law that makes them no longer able to do that thing that way isn't that correct I'm a lawyer but I'm not this kind of lawyer but that seems like the gist of what we're doing right well yes but we change zoning and zoning regulations all the time and if you have a house and you built the house back in 1995 the rules for building the house if you want to do additions on it you don't go to the 1995 rules for building the house you go to the 2017 rules for building a house okay um Don can you help me understand how this isn't a taking how what this isn't a taking it isn't a taking because no value is being taken from the property bottom line wait wait wait and the expiration of a TIA certainly changes the value of that property it changes the use to which the developer can put it right I guess what I would say is the TIA is not part of the zoning so the TIA but it triggers committed elements correct like it the things the TIA requires are required to be committed elements isn't that what I just heard so the TIA that is used up front to develop a development plan rezoning that study is done committed elements come out of that council considers that and decides okay we're going to approve this development plan with these committed elements it's understood at the time that a TIA the TIA its period of validity is eight years if no development occurs on that property over a period of eight years what this is saying is upon some new submittal to planning a new TIA would be required and transportation DOT planning would all need to look at it and look at all of the change circumstances that occurred had occurred around that neighborhood and figure out what if any additional mitigation measures are required I appreciate it thank you for your opinion I have a question for planning again this is a process question I'm still relatively new in this job I don't think I've seen a I'll spare you all I don't think I've seen a text amendment proposed by the administration that's been voted on disfavorably by the planning commission and then continue to be brought forward here is there no mechanism for staff to make revisions and then bring it back to the planning commission or is this what has to happen does it have to happen like this what we felt was that we heard what the planning commission said and we read the comments and we took a look at the draft text again and normally I'll back up normally when planning commission it's not uncommon for planning commission members to have issues with text so most of the time they'll say can you make these changes or can you consider these changes then we go ahead and do that and they vote on it and in this case they voted denial but we still felt that we needed to take a look at the changes based upon the comments that we heard and we agreed that the way the text was written was not written in a clear way that thus brought up the comments that were generated and kind of backed out from we might have gotten a little too if then with the text that created confusion or not being unclear thus we backed out and just made it very clear and simple you can always develop with what you are zoned to do this is just the requirement for just as if it was a site plan you'd come in for the TIA if it expired and do those additional committed elements you also have the right to if you feel they have the right to also seek rezoning if they feel that it would be helpful to they need to get out of what they've already committed to because of the change circumstance of the TIA and they might not need those committed elements so you can come back in and ask council to say hey we have this new TIA we don't need these rose improvements we're just here to change our development plan committed elements we want to recognize councilman Davis and then the mayor approach him thank you Mr. Mayor I think the last comments you made indicates that whatever decision we make tonight the people who have pending developments and plans will be notified of the change and that they would be given the opportunity to comply with the policy that we passed tonight if we chose to do so yeah we can do a letter to industry correct it asks are you going to do that if it's passed yes yes recognize the mayor approach him I need clarification on whether or not it is something that we can legally do and secondly recall from me or Michael for discussion at the joint city county planning committee we just looked at the proposed amendment and can you remember Don we didn't recommend anything is that correct yes typically we see it before it goes to the planning commission right we don't it certainly none of these issues occurred to me at that time and I find that the planning commission's comments invaluable as well as the perspectives of my colleagues well it just doesn't seem fair for us to penalize if you will projects that are already best recognize councilman johnson thank you mr mayor I think I'm sorry like so many things this kind of comes down to a question of litigation risk whether this is a taking or not a taking in the opinion of our city attorney it's not some of the planning commissioners not maybe it was the fact that we have a development lawyer here you know arguing against it makes me wonder whether we are facing some sort of litigation as a result of this and so I wanted to just ask Don what you know what your opinion is on that like is this you're recommending that we go forward with this does that mean that you think that the litigation risk is minimal or that we can survive a challenge donno tool city attorney's office the truth behind this whole initiative was trying to implement what we thought would be council's desire so at the end of the day whatever council chooses to do if you're comfortable with a deep plan rezoning that sits on the shelf for years and maybe the transportation conditions around that project have changed and you don't believe a re-study is required then I don't think it's necessary that we move forward with this but if you're asking me whether this is a taking I do not believe it's a taking okay thank you I mean I think that it's correct that we don't want projects developed after eight years without traffic review the question is just whether we can do that legally and if this is a way to do that legally so yeah thank you recognize the council I'm sorry Shul and then Mr. Mayor Mike first of all I want to thank you I always feel like you're like our attorneys you're the person that reads everything that none of the rest of us read and you write most of it so let me just give you my appreciation for you know I know that every time we get one of these ordinances it's complicated and intricate that your your imprimatur is on it and just want to appreciate that and similar to the work of the the hidden hand of the city attorney's office as well so could you describe so we have a current practice and as opposed to so can you describe what our current practice is with a rezoning regarding a TIA for a rezoning with a D plan and without a D plan so without a D plan there's no TIA review there's nothing remotely being locked down with the rezoning to generate that task for review thus if you approve OI zoning without a development plan when someone comes in for a site plan to do something that OI zoning allows you to do then the TIA is required at that time with after doing OID and they're proposing uses that would trip the whatever threshold is 150 trips peak hour trips then the TIA would be required at that time and then based upon the mitigation measures that are revealed then they would be committed to or can be committed to as part of the development plan so yeah but talk to me through the eight year thing or the five year or the eight year thing so once so site plan and once so if there was no development plan site plan site plans actually have only a four year validity this double that so if a site plan becomes expires no one acts on that site plan someone could still make use of the existing TIA and submit a new site plan as long as it's within that eight year time frame same thing generally with the TIA for development plan you can submit site plans under that same TIA but the starting point is with the development plan approval not within that initial site plan approval so it's just a change in the starting point but and so let's say that the with the development with the D plan the the eight years passes and so what is our current practice well the current practice is not to require a TIA because we are instructed by the city attorney's office that the text wouldn't allow us to do that before your instruction so when did the instruction from the city attorney's office two years ago and prior to that what was our practice the practice was that once it expires in a new TIA was and correct me if I'm wrong Bill but was that we would require TIA and you would be required to do what the development plan says you're you committed to or whoever did the development plan you in general and then plus whatever the other mitigation measures were determined necessary yeah and so and you know so I'm not sure if this is for you Mike or not sure which of you would want to take this but so one of the things that Patrick said is that we have that and that these were in the these were embodied in Neil Gauchy's comments as well in the planning commission which was that there's a TIA and it's it applies to a certain development and that developments the traffic that is generating and and then there's that that leads to certain committed developments and as elements are incorporated into the D plan and the council votes in favor of it and there it is and that there are no that that that is predicting the future traffic generated out of that development and that that developments not that that's not going to change that development has a some sort of range of units and and that TIA is is projected on I would assume a maximum number of units that developer would be building there and so I think if I'm following Patrick's line of argument it is that therefore what is generated out of development is not changing and therefore there should be no need for any more committed elements on the part of that development even if traffic in that area even if traffic in that area expands for other reasons Patrick is blaming Wake County because always always enjoyable I like blaming them too but I wondered if you or someone else could comment sort of on that respond to that argument or in any sort of policy way sorry the I'm not sure I heard all your questions so do you want me to ask it again yes if you could my question is I hope I can boil it down my assumption about a TIA that has been adopted into a deep planet is that I'm sorry the TIA which has led to committed elements that have been adopted into a development plan is that that TIA was based on the maximum number of trips that would be generated out of that development if it was fully built out and that as I understand Patrick's argument it is that that doesn't change in 8 years or in 12 years that is to say that development whether it be Beth Page or any other has a maximum extent to which it is to be built out and those traffic and that those trips generated out of there are already somehow accounted for in the original TIA and that any change in circumstances would be generated not by that development because it's already accounted for in the TIA but would be from other traffic that is other things that are happening around it and that therefore the developer should not bear the burden of having to deal with those improvements which are not due to their okay that probably wasn't any clear but there you go that's not I think I understand so the the TIA includes a number of assumptions which is a trip generation component for the site there are provisions in the ordinance that basically because there's so many different uses on most of these that they could ultimately end up submitting site plans for that limit basically significant deviations from the TIA so they can't underestimate the number of trips and then come in with a site plan for something that's going to generate significantly more trips so that is true that part is correct one of the other assumptions though is they estimated build out year so generally they predict the traffic growing out two, three, four years are almost I don't recall ever getting one that was more than eight years after so our period of validity is always generally beyond that that estimated for when they're estimating traffic conditions and mitigating back to to accommodate or to address those issues with other developments that may be occurring in the area I'm sorry Bill I missed could you explain that last part again I apologize so one of the assumptions that the TIA has when they submit it with the development plan site plan whenever the TIA is first prepared is they estimate traffic conditions one year after a build out so they assume a build out year of the development it's about two, three years out they generally assume pretty aggressive growth that they're going to be able to get their site plans approved start construction so and as long as they're able to do that everything works out our period of validity of eight years is usually well beyond that for some of the larger projects they may have a larger growth year but it's almost never eight years out but and so the period of validity addresses that concern so that they're looking at conditions for when this project is likely to be built out when it languishes for eight, ten, fifteen years conditions change and while they're estimating the trips for the site they haven't taken into account the changing conditions for other development in the area so and I'm not this is really more I think a question for us than for you but any comment that you or Sarah or anyone else has to make on this which is is it you know thinking about this from a policy standpoint is it good policy or is it fair to save a developer you have you have a TIA that applies to your development and from that TIA you have developed certain committed elements that those committed elements have been adopted into the development plan and the development plan has passed city council and now and now that you can depend on that and we don't expect any more trips in that to be developed to be generated from your development but conditions change and they can change you know they can change a lot over that period of time and therefore you the developer are responsible for potentially responsible for the new trips generated by others just not you know I'm struggling with what is a TIA you know so when we do a TIA now we're looking at all the traffic conditions for sure but we're mainly looking at the new traffic that's generated by that development and so you know I'm just interested in your thoughts about I'm struggling to understand why that's fair to the developer you know I'm so can you help me? Well the mitigation requirements that require improvements that developers are required to make are to improve the level of service depending on the area of the comprehensive plan typically most areas it's a level of service D or better so they're looking at not only addressing their traffic but any existing deficiencies within that build out year so if you're in town or compact neighborhoods it's a little lower level of service where we're anticipating a little higher level of delay due to urbanized conditions but so that's generally the purpose behind the TIA and the required improvements is to meet that required level of service threshold okay Mr. Mayor we're just one or two more I'm sorry I apologize and so when we do a TIA now and we're making a requirement into the D plan or we're not making a requirement when the committed element comes to us as part of the development plan and we vote for it that committed element or that TIA which leads to that committed element is considering all of the traffic in the area and but especially it's considering what that development is adding to it which is going to change the level of service you know and therefore more roads are needed more so are we saying to a developer and we're going to look at all of that again in eight years if you haven't developed we're going to look at all of that again and we're going to require you to be responsible for improvements which are none of your making which are from results which are from traffic that's none of your making if I might say we're young with the planning department I think one way to look at this that certainly staff has tried to take into account is that a TIA is a snapshot in time of both as as Bill as Mr. Judge explained the trips generated by the proposed development but also the existing on the ground conditions and between the time TIA with development plan happens a lot of other developments by right without needing a rezoning could come online and change those conditions if the subject of the development plan for instance didn't need one and it was operating by right and it came in 10 years later its TIA would have to account for those things so there's no way for us to reconcile the fact that if you wait long enough things will certainly change and we have parts of the community that are changing rapidly so that's one of the things that we were trying to address is how do you make it fair so that we don't get complaints from citizens about our roads being you know above or below a level of service over capacity and then we have to stand up and say well the TIA said it was okay so we were trying to come up with a way that was fair we could do different things change the effective date so it would only apply to development plans beyond the effective date we could look at some other options certainly there's the option to refer it back to staff and say staff were not happy with the proposal think about it some more so we're open to whatever policy guidance you all want to give us thank you I think I have some more questions but not right now Mr. Mayor I appreciate your patience thank you thank you sir we tried to get someone that hasn't spoken back to Councilman Mark thank you sir that's about Popeyes but go ahead excuse me that's about Popeyes I thought that's what you said but I so I have a question for Mr. Stock Mr. Stock earlier you said if a site plan is languished or a project is languished for 10 years 12 years no one has acted upon the property can you be more specific what does that mean if I have a 200 acre project and I'm working on 50 acres of it over here does that mitigate does this make this whole conversation then it's not relevant to that project not necessarily if they're only acting upon site plans can be come in as portions of sites or the entire sites and site so site plans are the expiration are per site plan so when this would take effect if a site plan was submitted longer than 8 years after the TIA was completed correct alright that's thank you then I wanted to ask a question Mr. Judge you said that if it happens 8 or 10 12 years later the applicants TIA is not taking into consideration the current conditions but when I thought the way it worked if I want to go down on 751 and I want to do a project down there I'm going to have to take into account all of the traffic that 751 south is supposed to generate and I'm going to have to mitigate beyond what they're doing is that not true yes generally that's true as long as 751 south TIA remains valid so at some point as these projects reach their period of validity we no longer we have not been requiring them to include that as adjacent development with the understanding that they would have to come back and do this prior to I guess almost 2 years ago when this was pointed out this this issue but with the period of validity to me it seems like the problem is that we're treating projects with development plans differently and that is and I understand that right somebody comes in they say I want to do a rezoning on 200 acres and people say well what are the impacts and how are we going to know what the traffic impacts are without a TIA so we say let's do a TIA TIA then lists a bunch of mitigations and then we wind up saying well let's go ahead and ask the developer if they would meet those concerns by agreeing to proffer those committed elements and then suddenly it seems like the improvements when we start talking about when you might have to do more improvements it seems like we're now disrupting I mean as a lay person that we're disrupting the the zone, the use zone and that really what we should be doing it seems like is to say look we want to do a development plan we want to see a TIA so that everybody knows what the impacts are we'll even list out all of the mitigations that you'd have to do if you submitted a site plan today but we don't need you to commit to it because you're going to have to do them anyway when you submit your site plan and then then we would be on the same basis as no development plan and it doesn't seem like there would be an issue because we'd no longer get committed elements changing if you will but in any case Mr. Mayor something somebody said earlier triggered something to me and I think since when I was on the planning commission I had time to really delve into these issues and focus on them but we deal with a lot of different matters now what we've heard the staff say is they've made material changes to the proposed ordinance since planning commission took a look at it we've had some persuasive arguments by people on the planning commission and I would like to suggest that we send it back to staff to have them return to the planning commission and let us get an in depth review from the planning commission on the changes that have been submitted thank you are there other comments or questions I think that's a good idea me too this is a public hearing now do you want me to close the public hearing with that I'll declare the public hearing to be closed I'll entertain a motion on that so I'll move that we refer the item back to staff with the understanding that the planning commission we're going to get an opportunity for the planning commission to give us an opinion on the revisions we'll properly move in a second in a further discussion here on Madam Clerk will you open the vote close the vote it passes 7-0 thank you very good thank you let's move to the next item which is the item 27 street closing of Shawnee street street closing 14-0-0-0-0-20 thank you Jacob Wiggins with the planning department Lindsay Smart proposes to close an approximate 180 linear foot portion of Shawnee street this right away is currently bordered by the property owned by Ms. Smart and her husband John and Megan McVeigh and the city of Durham it's also located directly north of an abandoned Norfolk and southern rail line if this request is approved the right of way will be divided amongst the three property owners and a 20 foot bicycle and pedestrian easement is proposed to be reserved along the excuse me the McVeigh's property the purpose of this easement for access to the rail line that item is also included for consideration by council this evening and can be seen as attachment 6 in your packet staff has no issues with this proposal at this time and recommends the closure of this right of way and I'm happy to answer any questions that you all may have the public hearing is open and you've heard the staff report and I'm going to answer the questions by members of the council on this item does anyone in the audience speak on this item no one has signed up to speak I'll let the record reflect that no one in the audience has to speak on this item the credit department will be closed matters back to the board of council it's been a proper movement second Madam Clerk we open the vote close vote move to item 28 consolidated annexation for mount level missionary thank you Jacob Wiggins again this is a request for extension agreement voluntary annexation and initial zoning has been received from mount level missionary Baptist church located at the south eastern corner of Denfield street at Hebron road this request comprises approximately six contiguous acres a place of worship is currently located at the subject site and if this request is approved the applicant intends to expand that place of worship through an associated site plan and minor special use permit staff is recommending an initial zoning designation for residential suburban 10 and residential suburban 20 and falls Jordan B Overlay for the subject site this is exact translation of the existing county's designated zoning if approved the annexation will become effective on March 31 March 31, 2017 public works and water management performed the utility impact analysis which indicated that the existing city of water and sewer surfaces have capacity to serve this project and budget management services perform the physical impact analysis which did indicate that the request would ultimately become revenue negative which is not uncommon for a place of worship giving their exempt property tax status staff recommends that the council approve the utility extension agreement voluntary annexation and initial zoning designation and adopt a consistency statement and I'm happy to answer any questions that you all may have to move to the public let me ask other questions by the council of the staff's recommendations if not we have one, two, three four persons that sound to speak on this item three have indicated their proponents I don't have Tasha Phillips ask questions answer questions I recognize Mr. James Covington follow by Ron Peterson and Robert Jones in that order if you can come to the podium to my right please you can set your name and address and you have three minutes on this item my name is James Covington 6094 Green State Court Greensboro, North Carolina I serve as the assisting the owner with civil, site and planning matters during the annexation so I'm with Covington and Associates located at 811 Suite B Euler Street in Greensboro, North Carolina and I'm just here in the event there are any technical questions that need to be answered and I think the other members that you have that turned in forms as well are here for any questions that may that are more appropriate for the church to respond to any questions well let me just call the names and make sure that it's Ron Peterson same thing for Robert Jones and Tasha Phillips is the same okay let me ask the council their questions of any of these persons that are representing here and now I'm going to close the public hearing as a matter of fact before the council I'm probably going to move the second Madam Clerk will you open the vote it passes 7-0 then property movement second Madam Clerk will you open the vote and close the vote it passes 7-0 thank you I know y'all are expecting that same long discussion we had a last one we can give to you .9 is consolidated annexation for shallow glen 1 and 2 Jacob Wiggins again with the playing department this request is a utility this is an annexation request comprising a utility extension agreement annexation petition and zoning map change from SP shallow LLC for three parcels and public right of way totaling approximately 60 acres generally located on the western side of Slater Road at shallow glen drive these two annexation cases represent an extension of the existing city limits and the applicant ultimately intends to construct an office and warehouses uses at the subject site if this request is approved in addition the applicant has requested a zoning designation of industrial light two of the parcels on the side are currently designated as industrial light so this would be an exact translation of the existing zoning the applicant submitted a separate rezoning petition for one of the parcels to also receive the industrial light designation if these cases are approved this request would become effective on March 31st 2017 public works and water management departments perform the utility impact analysis for the utility extension agreement which indicated that the existing city of Durham water main has capacity to serve this proposed project budget management services department form the fiscal impact analysis which determined that the proposed annexation is expected to become revenue positive immediately upon annexation and staff recommends that the council approve the annexation petition the utility extension agreement initial zoning requests as well as adopt a consistency statement and I'm happy to answer any questions that you all may have other questions of the staff we have one person that signed up to speak Patrick Biker you have three minutes good evening Mayor Bell just here on behalf of the developer SP Shiloh LLC with my friend Mike Cain who's our project engineer we're just here to answer any questions and we want to thank the administration and the planning commission for their support thank you for your time tonight so there are questions by members of the council of the developers hearing none I'm going to close the public hearing as a matter of fact for the council there are three separate items utility extension agreement we can do them all together okay the two zoning ordinances you can do those as part of one motion is that is there a seconder no questions Madam Clerk will you open the vote close the vote it passes seven is zero Madam Clerk will you open the vote open the vote close the vote it passes seven is zero thank you that concludes all of the agenda items any other items to come before the council if not we adjourn at 846 p.m. thank you