 Good evening. We like to call the Durham City Council meeting to order at 7.01 p.m. Monday March 17th and certainly want to welcome all of you that are here with us this evening. If we could just take a moment of silent meditation, please. Thank you. Ask Councilman Brown if he would lead us in the pledge. Ask clerk if she would call the roll please. Mayor Bell. Present. Mayor Pro Tem Cole McVadden. Councilmember Brown. Here. Councilmember Cattati. Councilmember Davis. Councilmember Moffitt. Here. And Councilmember Shul. We have several ceremonial items that we will be introducing this evening. The first is to present to Ms. Sharon Hirsch, Executive Director of Donate Life, North Carolina. Donate Life Month Proclamation. Is she here? She'll join me please. Thank you. I won't read the complete proclamation but it speaks to the fact that according to the United Network of Oregon Sharing, known as UNUS, more than 120,700 people are waiting for Oregon transplants nationally and 3350 of those people are in North Carolina. Whereas an average of 18 people awaiting transplants die each day because there is severe shortage of Oregon donors. Whereas every 10 minutes another name is added to the national transplant waiting list and this is growing faster than the rate of Oregon donations. Whereas one Oregon donor can save the lives of up to eight people and improve more than 50 lives through tissue, blood, bone, bone marrow, and cornea donation. Whereas Duke University's Medical Center's transplant center is a leader in providing the life-saving transplants with patients cared for by a team of experts including surgeons, nurse coordinators, social workers, infectious disease specialists, nutritionists, immunologists, and pathologists. Whereas the City of Durham joins healthcare professionals, volunteers, educators, government agencies, faith-based and community groups, and private organizations in an effort to boost the number of organ, tissue, blood, bone, bone marrow, cornea, and stem cell donors throughout North Carolina. Now therefore William V. Villeville mayor of the City of Durham, North Carolina do hip hop reclaim April 2014 as Donate Life Month in Durham and hip our urge to all the citizens to take special note of this observance. I witness my hand in the Corpusville City of Durham, North Carolina. This is the 17th of March and I present that to Ms. Hirsch-Wenning-Karmus that you might have. Thank you Mayor Bell and the City Council for helping us to raise awareness for the need for more people to register as organ donors. You can do so very easily. You do it when you get your driver's license at the DMV or you can do it online at our website which is donatelifenc.org and it takes about two minutes. But most importantly I want you all to know that it really affects real people, people that you know every day. And I particularly want to ask Karen Johansson to stand up. Many of you in the community know Karen. She's a three-time kidney transplant recipient. She's alive today because somebody like you said yes to being a donor when they went to the DMV and that's what this is all about. So thank you very much for raising awareness. The entire month of April we celebrate this. We honor donor families and we particularly ask you to think about wearing a lot of blue and green on April 11th. That's national donate like blue and green day to help raise awareness. So thank you very much. Next proclamation I recognize this Durham Crop Hunger Walk Day proclamation. Ms. Karen Johansson here. Okay. Well let me read it anyway. I know a lot of us participate in this event and it's become quite. Oh you're here. Join me please. Thank you. Oh you're changing shirts. You're doing double duty this evening. Okay. I'm sorry. How you doing? Different person. Whereas at the end of World War Two many people wanted to share our country's abundance with European war victims and crops. First purpose was to gather wheat and other crops from US farms or shipment to Europe. And whereas today the Durham Crop Hunger Walk is an important part of community life bringing together people of different faiths, diverse cultures and all age groups. Whereas in the last 40 years Durham Crop Hunger Walks have raised over 3.68 million to bring help and hope to people in need around the world in the US. Whereas each year Durham Crop Hunger Walk helps local agencies such as Meals on Wheels, Urban Ministries, Housing for New Hope, Threshold Clubhouse, Food Bank of Central and Eastern North Carolina, St. Andrews Society and Church Food Patrons who provide food to neighbors in need. Whereas the Durham Hunger Crop Walk is the oldest fundraising walk in North Carolina. It will hold its 40th annual crop hunger walk on Sunday April 6th. And I assume that's again at Duke Chapel. And whereas the Durham Crop Hunger Walk helps the community become aware of and concerned about hunger and its causes. Whereas the Durham Hunger Crop Walk is the third largest walk in the nation. It has approximately 1200 walks demonstrating tremendous compassion and altruism of Durham citizens. Whereas Durham Crop Hunger Walk will raise funds to help stop hunger both locally and globally. Now therefore we in the Belleville Mayor of the City of Durham, North Carolina, do I proclaim April 6th, 2014 as Durham Crop Hunger Walk Day in Durham. And have I heard all the citizens take special note of this observance? What's my hand on the 17th day of March, 2014? And would like to present this to you and again for any comments that you might have. Mayor Bell, rest of the Council and staff and everybody else is here. Thank you very much. You know I want to highlight a couple things but when Mayor Bell said we are the third largest walk in the country and we recently I was privileged to go to a meeting of all the leading walks in the in the country and they said for how many of you is this an event in your community and that's what really makes this walk so special. It is is an event. It brings together all the faith communities. It brings together schools, corporations, non-profits. It brings together such a great variety of people. We bring in the community band and the divas to keep things interesting and but it really brings all of our community together in order to help people in our community and around the world which is another thing that I find so special about this walk is the fact that it's not we we've raised it'll be close to a million dollars that will have gone just to Durham organizations feeding hungry people and we also raised money that goes around the world to help solve a lot of serious hunger related issues. So this really does again make a huge difference so we hope you'll come support us and I wanted to highlight our shirts which were designed by a art major from NCCU and we are we have we will have shirts for you all I didn't had any I tried to guess sizes and we decided just to ask you all for sizes so I will send an email out and get sizes from you because we would love to have you have a shirt and we would love to have you come to the walk. Thank you. Chris Boyd who's the assistant director of General Services she would join me this is a proclamation recognizing Arbor Day in Durham 2014. Whereas Arbor Day is officially recognized as an annual observance by the state of North Carolina whereas the city's strategic plan calls for involved in the community and expanding and caring for Durham's trees whereas trees provide numerous environmental benefits to the Durham community by lending summer shade, buffering winds, moderating year around temperatures, reduced glare, filtering there of pollutants, absorbing noises, diminishing erosion by retaining soils and reducing runoff, building soils, providing habitat and food for wildlife, reducing energy consumption and absorbing carbon dioxide and whereas trees beautify the city, enhance the value of property and provide pleasant surroundings for residents and for new and existing businesses. Whereas planting and caring for trees is a living testimony of the Durham community's commitment to the health and welfare of present and future generations. Now therefore I will email Bill Bill and the state of Durham to have our plan March the 21st 2014 as Arbor Day in the city of Durham and encourage and call upon the residents of Durham to observe this day and the recognition of the value and benefits which trees provide and to promote the planting and care of trees within the city of Durham, North Carolina, with my hand, Corporate Associate of Durham. This is the 17th day of May 2014. I'll present this to Chris for comments that she may have along with her cruders here. Good evening, Mayor Bell, City Council members and City Manager Bondfield. I'm Chris Boyer, Assistant Director of General Services. And with me tonight are Alex Johnson, Urban Forestry Manager, Tanya Dautlich from Keep Durham Beautiful, Executive Director and Tobin Freed from the City County Sustainability Office. This year marks the 31st year that the city of Durham has been recognized as a tree city USA. A designation from the National Arbor Day Foundation that indicates the city has valued its trees and green spaces for decades. Being recognized as a tree city USA means that for 31 years, Durham has had a tree ordinance, an urban forestry program that's supported with at least $2 per capita and an Arbor Day proclamation and observance. We will celebrate Arbor Day on Friday at Rockwood Park from 1030 to one and this year we will plant 31 trees in honor of 31 years of tree city USA. In addition to planting the trees, the Durham County Master Gardeners will give away free seedlings and tree planting advice. This week is also Creek Week and concurrently stormwater services will lead a creek cleanup along the section of Third Fort Creek that runs through the park and the Haw River Assembly will conduct an informal investigation of the creek water quality and show us what they find. So we hope you can join us. In your recent travels you may have noticed something happening on Driver Street between Liberty and Ash Streets. We will ultimately plant 140 street trees and along with many other improvements including sidewalk repair, the appearance of this part of the Andrew Driver neighborhood will be transformed. We appreciate that many residents volunteered to join us in a collaboration that brought neighbors together. Through Keep Durham Beautiful, General Services received two grants totaling $9,000 to help make this project possible. One from the North Carolina Urban Forest Council Legacy Tree Fund and another sponsored by UPS and Keep America Beautiful. Last month in an effort by the Trees Across Durham partnership, new trees started to appear at elementary schools throughout the city and county. Trees Across Durham is an outgrowth of one of the joint city county strategic plan initiatives. The purpose of the school plantings is to engage community partners in planting and caring for trees in Durham. In closing I'd like to bring your attention to another way you can support tree planting in Durham and that is to participate in the Water Into Trees program of contributing funds for tree planting through your water bill account. This program was originally initiated by Larisa Seibel when she was a city council member as a way residents can help fund our tree planting program. The new feature of the program is that the process is now electronic through the General Services website so I invite you to visit the site and sign up. Thank you and plant a tree. Next we'd like to recognize this is almost a night of champions to a certain extent but we were had planned to recognize Mr. Betty Kloss who's a fifth grader from Lower River elementary school. Some of you may or not know she was the first African American to when the regional spelling bee champions appear in this area. Unfortunately because of the weather parents live in the northern part of the county and they wanted to delay it and we recognize her sometime in April. But if the southern football high school football team is available. I know the old teams not here but the representatives are southern. Could they join me here at the podium please. Maybe you guys need to stand out there and serve. Let the coach come up here. You have any other coaches. Yeah okay. Yeah I bring all the coaches and that's almost the whole team. I wanted to stand there so they could be seen. You get a P. I'm you draw from your heart. That's good. Yeah I see that. No seriously this is a recognition that we've been trying to get to you guys ever since you won the championship and for various reasons because of schedules or whether they haven't been able to be here but I would fortunately that tonight you were here and the weather didn't discourage you to prevent you from being here so we have a proclamation that we'd like to present on behalf of the city council but before I read the proclamation I just want to say how much you aren't us by doing what you've been able to do. I've had some indirect involvement with southern high school and I know the issues that you guys have been faced with but I assume how you pull yourselves up and you come the high school. What I what I like about at least what I heard is that we really talk about student athletes with the football team and that that is very important. I mean football is important and we all understand that but getting your grades and making it through classes is even more important. So we are very proud of you. You represent role models in this community whether you recognize it or not and we just want to congratulate what you've done and what you will continue to do as you continue this community. The proclamation reads whereas Durham is proud of the outstanding performance and sportsmanship demonstrated by all the teams that carry the city's name but reserves special pride for those who compete for the highest honor whereas the Southern School of Energy and Sustainability Football team won the 2013 North Carolina High School AAA State Football Championship at Wake Forest University. Did you hear that Patrick? Wake Forest University. We have to get that in every now and then for Patrick. At Wake Forest University BB&T Stadium on December the 4th 2013 for the first time in schools history by defeating Shelby Tress High School on NCHSAA 100th anniversary whereas head coach Adrian Jones as his talented coaching staff provided Southern with the first ever state football championship and several players on this team were recognized for their individual performances Kendall Hinton quarterback MVP of the state championship game Dominique Mims linebacker defensive player of the game and Maurice Trial wide receiver whereas the unity and dedication of this team helped them overcome numerous injuries and setbacks along the way to fully achieve the number one ranking among state public schools demonstrating their teamwork character and determination or hallmarks of success in life. And now therefore I William V. Bilbell, Mayor of the City of Durham North Carolina. Do you extend congratulations to the 2013 Southern High School football team for winning its first ever NCHSAA AAA State Football Championship on the league's centennial and urge all citizens to take note of this observance and join in saluting these outstanding student athletes, entire coaching staff and ethnic staff with phenomenal accomplishment. And with my hand in Corporate City of Durham North Carolina this the 17th day of March and I'm going to present this to the coach and you got the rest of them to talk all you want. Thank you. First I'd like to thank Mayor Bil for inviting us out here tonight. The City of Durham we couldn't have done it without you guys. But the one thing we have preached and preached the reason why we won a state championship. It wasn't the X and O's it was family. We preach family every day, you know, and my brother's keeper and we couldn't have done this without this group of coaches right here. They were my background, you know, days I come to come to work don't want to be out there and they kept me together and I'm proud to be a part of this. I'm happy to be a Southern Spartan. I'm also happy to be an Eagle. Now I'm also these guys right here, these football players right here, they gave me an opportunity to move up to another level of college. If it wasn't for these guys right here, I wouldn't be coaching North Carolina Central right now and I want to let them know that I love them and always going to be on the outside. That's it. I like that Chancellor Saunders White if you would join me to podium please. This recognition is for a person who seems like she's been here forever. She saw and drained herself in the community in various ways, very positive ways. And she's been the Chancellor for a few months. But there's a process procedure, I guess that all chancellors and new chancellors new presidents go through and that's their form of installation. And this proclamation recognizes the fact that Dr. Deborah Saunders White as the 11th Chancellor of North Carolina Central University, whereas the city council recognizes the appointment of Dr. Deborah Saunders White as the 11th Chancellor of North Carolina Central University, whereas NCCU is the historic institution that has been a vital educational and cultural resource for the city of Durham since 1910, whereas the university was founded by Dr. James East Shepherd, who served as president until his death in 1947, and was succeeded by a series of distinguished chancellors up to and including the appointment of Dr. Saunders White, whereas Dr. Saunders White has had an extensive and accomplished career serving in senior administrative leadership positions at higher education institutions in the corporate sector and in federal government, serving most recently as Assistant Secretary for Higher Education and the United States Department of Education, where issues were pointed by the University of North Carolina Board of Governors on February 8, 2013, and began her tenure at NCCU on June 1, 2013, introducing a platform of Eagle Excellence or eSquad that identifies student success as the university's number one priority, along with financial accountability and operational services, and whereas a week of campus activities and celebrations would take place in anticipation of the formal installation of Dr. Saunders White on April 4, 2014. Now, therefore, I, William and Bill Bell, Mayor of the City of Durham, North Carolina, do have an honor to North Carolina Central University, who is ongoing dedication to educational excellence and recognizes the impending installation of Dr. Saunders White by renaming Federal Street as NCCU Boulevard for the period running from March 31st to April 4, 2014. What is my hand, Corporate City of Durham, North Carolina, this is the 17th day of March, 2014. Did you hear that? What are we doing? Stand up. Okay. I'll tell you, I stood here nine months ago, as you welcomed me to this great city. And I said to you then, as I say to you this evening, that I was going to work very hard to become a Chancellor that you could be proud of, to be a member of this community that would add value. And it has been truly an honor for me to work with so many of you, thus far, in achieving that dream. North Carolina Central University is a gateway to opportunity. Thank you so very much for your recognition this evening, and your support as we move forward. I'm so full tonight, because there's another recognition that's coming. Mr. Mayor, thank you. Thank you for all of your help and support. Well, as the Chancellor said, there's one more event that's occurring this evening. It really started, I guess, a couple of months ago. And of course, all of us were glued to our TVs and, I guess, PCs. I had to look at it on PC because I was over in the hospital visiting someone, but I saw the game and saw the results of it. And that's the fact that the MEAC men's tournament, the NCCU basketball team, were champions for the tournament for this year, 2014. And this evening, we'd like to ask the head coach, Lavelle Moten, if he's with join us, Jerry Ingram, who's captain. I'm calling names. I'm hoping persons are here. Emmanuel Pooby Chapman, captain, Ingrid Wicker, McCree, the NCCU athletic director, Dr. Deborah Sanders White, who's here with us, and her friend, Dr. Dwight Perry, who's chairman of NCCU board of trustees. If you would join us, please, at the podium. I'm not blocking anybody, I'm all tall and uneasy. Let me say, but for me personally, this is a real treat. You honor the city by what you've done, obviously, at the basketball tournament. The only, I guess, bad part about that for me is that my partner at UDICDC, after you guys played Howard University in the tournament, came to me and said, I guess Howard don't want to play NCCU anymore. How is my school? My alumni, okay. And then I have a cousin up at North Carolina ANT, who coaches North Carolina ANT, and I guess said the same thing, but it really was all in good fun to a certain extent. But let me say that I know the coach has done a tremendous job with his staff. Needless to say, the team has done an excellent job. I had Ingrid, one of your staff persons to come in office a couple of weeks ago. Just to tell you, this team, the school is more than just about basketball. And she came to talk to me about how much the coach wanted to get involved in the community and where the ways we could make that happen. I said, I'm sure we can. And then she said, now if they win the MEAC tournament, would the city be willing to recognize them? I said, it's a done deal. So you make it happen, we do it here. So that's another, that was a small part. We had you guys did all the work. But that was another piece which I guess tells me what this team is about, what the school is about. Again, as I told the young students of Southern, it's not just about athletics, it's really about grades, it's about graduating, it's about how you carry yourself in the community. And all these things have been true of this team. And I've watched them indirectly and directly. And I've seen that and I've had those comments made to me by all the members of the community. So while we know this is the first, we certainly don't hope it's the last, even just the expense of my alma mater and my cousin's school, we hope it's not the last. And someone reminded me before I came down that this is the first time that we've had four North Carolina teams from the 919 area that will be in the basketball tournament, the final four, it's 64. And not only are they four from 919, they're two from Durham. And we're most proud of that. And you guys have all types of champions and people that are rooting for you and behind you. But you've got the number one cheerleader standing up here also. I mean, this is a person who's a former athlete. She's obviously a great person in terms of education. And she can dance too, we saw that in an old this morning. So this has been been a great occasion and we certainly appreciate the fact that you took your time to come here and be with us tonight. I know you've got things you've got to do, coach, to get back ready for the next phase of it. We're confident that you're going to do well. You've already done well. And we just appreciate it and wish you the best as you go forward. And I'm going to turn it over to Coach Moten for any comments that he might have. Got to move this mic up a little bit. So just a little bit. I'm glad you told the story about this spokesperson because she's here, Angelique Stalin. And the agreement was this what she told me when I came if we wanted, then I get to be mayor for a week. And I ain't got to pay a water bill for a year. So I'm gonna hold you to that water bill. I'm sending it all to you, man. But to mayor Bell in the city of Durham, you guys have been incredible in supporting North Carolina Central University. And I stand here and hopefully I can speak on behalf of everyone when I tell you and I express our gratitude from the heart. Anything that's going on in this city, you guys make sure you include us and me personally and for these young men and the other ones are lifting weights right now trying to obviously we got some more business to go handle. But these two behind me, well, I get on them later. My athletic director is incredible. She challenges me. She challenges me to think outside the box and listen to her way. She was a successful volleyball coach as well. And she always gets her way. But, you know, she really challenges me in thinking outside the box. And this self spoken chancellor, she's incredible. We all are in the professional realms of life. And, you know, one of the greatest attributes you can have is to look forward to coming to work every day because your boss is incredible. And I see some of y'all know about that. When you can, when you can smile on your way to work, you know, it's just the ultimate. When I first met her, she called me in and, you know, I've been here since 1992. We had male chancellors and I knew something was different because our office just smelled good. Like men, men's office don't smell good. Our office smelled, you know, faux-paree and stuff like that. We were really honest with each other. And she let me, she listened, you know, and I was one of the biggest leadership qualities that she has. She just sat there and listened to me for 30 minutes. And she said, I just want to tell you what I want. And she gave me her expectations. And she said, I want our kids to graduate in four years. So Chancellor, I'm happy to say, before we get into the basketball, these two young men have been with me four years and they're graduating on time in May. So I have a tremendous support group. Trustee Perry has been incredible. I've been really influential in my life ever since I was a student athlete here at 17 years old. And it's a wonderful support system. But I mean, let's not get it confused. I'm nothing right now without these two guys right here. These two guys, and I have to tell you this, and, you know, hopefully it inspires you to do more life as well. When I recruited these two young men, they had zero scholarships between both of them. They had a lot of interest, but they didn't have a scholarship offer. And they committed to North Carolina Central. And Emmanuel Pooby Chapman is leaving here as the school's all-time assist leader. And I don't know if anyone is going to catch that record. It's in the 600s. And he's an all-conference guy. In Germany, Ingram, me act player of the year, me act tournament, most valuable player, just incredible, man. So and when we watched the selection show, the first thing Clark Kellogg said is, wow, those two can play anywhere in the country. So they went from not having anything to being able to play for anybody in the country. And we're going to ride them in Friday night. They understand what they have to do. And we just hope we can represent the city of Durham like that other team in Durham. And represent the city of Durham and make you guys proud. But I appreciate it. I appreciate your love and support, man. It means a lot. So I'm going to turn it over in case they want to say a couple of things. But thank you. And God bless. I don't know how to follow that because he's good at this kind of thing. But as a as a guy that's been here for four years now, Central gave me opportunity. Coach Moon gave me opportunity. And I'm just like he said, I had to meet with with Dr. McCree and she was 100% honest, you know, you're 18 years old and I know you're going to make mistakes. We don't want you to make mistakes and you're not going to make a mistake. But you know, we have we have your best interest and I trusted them. I trust the coach and I'm not trusted. Dr McCree and I'm luckily I had a guy beside me that you know that came in with me and made the transition a lot easier. But Durham has been nothing but tremendous to me. And I don't want to leave. So if y'all got any openings around here and it was just let me go. Thank you. Good evening. I just want to say thank you so much for this recognition and being a native of Durham, growing up growing up through the public school system and also having parents that went to North Carolina Central. I grew up around the campus and I remember all the excitement around football and basketball. And so one of my goals has been to bring that back that excitement back for athletes. And so we're on our way and thanks to coach Moten and our young men and all the support that we have in our trustees. We're back. Thank you. Mayor Bell, members of the City Council. I also would like to add that we are very grateful this for this recognition. And we're also very grateful for your your you can tell I'm pretty hoarse from helping these guys do what they had to do over the weekend. But but very, very appreciative of your enthusiastic support of North Carolina Central University in general and also the student athletes in particular. North Carolina Central University, as you well know, as is the City Council is very invested in in making Durham a better place for all our citizens. And we thank you for allowing us to speak speak to you. And we wish you every success in all your endeavors. Thank you. We have many, many Eagles here. So if all the Eagles would stand or raise your hand if you're standing. So we're surrounded by soaring Eagles. And of course, I am an eagle myself. And that's why I have. We know you all good citizens, but you don't have to stay if you don't want to. We understand. Sure. Mr. Mayor, I'm really hoping they're going to be Carolina in the second round. Let me ask whether any announcements about members of council, if not recognize city manager for any of our times. Thank you, Mr. Mayor. Good evening. No priority items. Likewise, city attorney. Thank you, Mr. Mayor. No priority items. Likewise, city clerk. No items, Mr. Mayor. We'll follow the agenda as presented. Consent agenda being first of an item is removed by member of the council, member of the public. We'll discuss that later in the agenda. I'll read the heading Beach one. Item one is during performing art center oversight committee appointments. Item two is FY 2013 2014 amendments to the budget ordinance grant project ordinance and capital improvement programs ordinance. Item four is substance abuse and mental health services administration grant project ordinance and contract of alliance behavioral health care. Item five is annual property casualty insurance plan 2014 2015 and I'll pull that item. Item six is the ward of construction contract for North and South Durham water reclamation facilities chemical systems and nutrient related improvements and selection of supervisory control and data acquisition system integrator. Item seven is supplemental article number five for Jordan Lake partnership and contract with Hazen and Sawyer for regional interconnection study phase two for the Jordan Lake partners. Items 10 through 13 items that can be found on the general business agenda as public hearings to recognize and entertain a motion for the approval of consent agenda items with the exception of item five. It's been property movement second Madam clerk we open the vote. Close the vote. It passes seven to zero. We move to the general business agenda for public hearings. Item 10 impact field field Phillips research park apartments. Good evening mayor and council members Bertha Johnson director of budget and management services. This item is an impact field field by Phillips research park apartments. Phil's research park is appealing the impact appeal committee's determination to city council pursuant to city code section thirty dash eighty seven. The manager's office has provided appeal notice of this hearing as required by code section thirty dash eighty seven. City council shall hear hear from the appellant interested parties the manager's office in applicable city departments. And she'll then make findings of fact and conclusions that explain the basis for its determination to either confirm or amend the impact fees currently assessed by the city. And the appellant is here tonight. And wants to speak. We've heard the staff report this is a public hearing. I will open the public hearing now first ask for their comments by members of the council on this item. If not recognize persons that want to speak on this item I didn't have anyone signed up but. I know you said someone wants to speak if you come to the podium to the right. And just state your name and address please to this podium to my right. I said you're right as my fault my right. Thank you mayor bell members of the council. My name is Robin Curran and I'm an attorney and I represent the applicant or the appellant in this case if I could we have some exhibits can I hand them go ahead and hand them up. We'll have copies for each of you. While the phones are getting ready is anyone else that will want to speak on this item so I can look at the time wise anyone else who wants to speak on this item. Okay thank you. What we'd like to do if possible if you could limit your comments to. Ten minutes. Initially and then we see how it goes from there. Okay that's fine I'm here as the capacity as his attorney. Is this quayside judicial does he need to be sworn in. No it is not. Okay. Basically this is an appeal from the determination of the city manager and the project at issue is the Phillips research park apartments which are located Ellis road. I'll let Mr Phillips do most of the talking but I do want to go quickly through the circumstances. Basically this is a situation where this project- began in two thousand and seven and Phillips research and. There are Phillips development and realty did everything. Possibly within their power to do everything right for a period of almost seven years they're now built they're now up and running. But due to some litigation that. Or an appeal that was brought by neighboring property owner which. Ultimately we prevailed in that the city was involved in we've always been aligned with the city had the same position of the city. But what happened was during the time that- this litigation or this appeal was going on and I'll explain in a minute the impact fees changed. We were not able to move forward with development of the property could not finish a site plan couldn't ask for a building permit for years because- the city would not allow us to go forward because of the the appeal that was brought by the neighboring property owner. What we're basically asking is that we be treated in a way to allow the impact fees to be calculated when we should have been able to and would have been able to file for a building permit had this not happened. Now basically I want to go quickly through there's a chronology- behind tab one that I handed up. And the documentation that corresponds with this chronology is that tab two. But basically before this project ever started in 2007. Mr. Phillips went to the city's zoning planning director or zoning staff Steve medland and asked for a letter saying is this a permitted use or not it's a multifamily apartment. Development there is a letter in there they were given from the city that says yes this is a permitted use. Based on that verification letter they contracted to buy the property in October of two thousand and seven. Now the original site plan was filed for this project in November of two thousand and seven. They had a financing to proceed at that time. Now they went into the system we're working with the city- and found out based on one of the site plan comments that one of the requirements to move forward was that they have access with the property next store- to move forward. Well the city said yes you have to have this access but the property under next store which is colonial. They are required to give you that access based on their site plan. So they had no discretion no legal right to do anything but allow our project to have cross access. We asked for another letter from Mr. Medlin he provided that letter in December of two thousand and seven which said yes you this access is required but yes colonial must give you this access. Based on that letter our client- Mr. Phillips closed on the loan in two thousand and seven or April of two thousand and- and eight. What happened is right after that after we had the site plan. In the system had two letters from the planning department saying we were permitted and we had the access the property owner next store came forward and said we're not going to allow you to access our property we're going to close off that driveway we're not going to let you do it and city of Durham if you let them do it we're going to sue you to. So basically everything stopped in their tracks at that time. And that was in two thousand and eight- basically our site plan was in the system at that time the staff said we can't do anything right now they're going to sue us we don't know what's going to happen we agree with you Mr. Phillips but we don't want you to do anything yet because we're afraid if you do all out this is all going to go south. Well what happened is in- September several months later of O. A. Mr. Medlin wrote another letter. And said yes we agree with you Mr. Phillips you- a colonial you've got to give them access- but at that time colonial appeal that to the board of adjustment this is in September now we're in September of O. A. this has been over a year. And what happened at that time is the city said no you can't get your site plan approval now you have to stop and wait the the rules say that you can't move forward. So what happened is Mr. Phillips is sitting there he's in everything he he should do he's got all his letters. And this is the neighboring property owner has started to appeal now that appeal process went on through the end of two thousand and eleven. And what happened along the way is we're trying to go forward. But the city is saying no no no you can't go forward until we get to a certain point where the litigation- we know you're going to prevail even though you're on our side. So what happened- finally- the board of adjustment which is the one at the beginning of the appeal process finally made a decision. In March of- two thousand and nine. So this was over a year after. Mr. Phillips alone had been closed. But at that time several things had happened first of all the bank had said to Mr. Phillips. You're in default of your loan because you haven't done anything for a year. But the only reason he hadn't done anything for a year is because the city of Durham said no we're not going to let you go forward until this controversy with the neighbor. Is resolved even though the city agreed with Mr. Phillips. So at that time- we're in default Mr. Phillips lost his loan- he's still in litigation and finally when we got to the Superior Court. Mr. Phillips prevailed but he still doesn't have a site plan approval. And what the city said to him at that time in these documents are under tab two was we'll let you go forward now but only if you write a letter saying that you assume all the risk. That if anything happens and if if we lose the city loses and Mr. Phillips loses in court that Mr. Phillips will assume all responsibility he wrote that letter. And only at that time which was in August of two thousand and nine. That is when he was released to go forward with a site plan and get his site plan and ask for a building permit. Now remember he submitted this application in two thousand and seven. Now since two thousand and seven and before this in two thousand and on July first of two thousand and nine the impact fees changed. So ultimately we went all the way to the Supreme Court we won this case but what happened is that difference in the impact fees as when we started and should have been able to go forward were a hundred and eight thousand dollars more by the time we were finally allowed to to proceed with the project. Mr. our theory is or our request is is that we be allowed to proceed as if this neighboring property owner had never filed this for a list appeal. And if the city had never said to us you know please wait we're not going to let you go forward until this is resolved if we had been able to go forward as we should have been allowed to do to begin with. The project- if you may have seen it or been aware or you may be aware of it it is opened it is a very nice beautiful apartment complex. The tax increase or the increase in tax dollars has gone from forty five thousand a year to two hundred and eighty thousand dollars a year- Mr. Phillips was able to get a new loan. Even though the first one fell through. He has fought hard to win the appeal to get a new loan to come back up from from all these hardships and as asking that you please consider- this impact fee- to allow him to proceed as if he had been approved when he should have been and having said that I've taken up a lot of time but I do know Mr. Phillips would like to speak. I can recognize Mr. Phillips. Mayor honorable members of the council thank you for the opportunity- the first thing I'd like to just put a little bit of context into some of this because I know that when you're hitting these dates and of course any time you're looking at something in the rear view mirror it all. Seems to run together so let let me see if I can provide a little bit of context. First of all this was not due to naivete- I begin my career here in real estate in Durham in nineteen ninety two I've known Steve Medlin and members of the staff for twenty two years. When I went to work for the late Gary Hawk. And so if anyone here and I'm sure most of you do remember Mr. Hawk. That was an extremely engaged individual- and I ran the real estate development operation there when I was a very young man. Immediately following my employment with him for three years Maceo Sloan and Justin Beckett at that time with N. C. M. Capitol in the Crest building gave me free office space. In the basement of that building. And it was from there that I planned conceptualized and put together financing plan which for what we now know as the Durham Y. M. C. A. only tell you that simply because I want to make sure that we understand there wasn't a general miscommunication. As Miss current at aptly pointed out in two thousand and seven in November of two thousand seven being extremely diligent intuitive. And looking ahead for any problem might that might you know create an obstacle. I looking at the site plan realized that there was a condition of the master site plan development I think that was from his current. Was a condition master site plan where by as we all have always done in good planning there had to be cross travel cross use easements between the properties. The property that we subsequently purchased. Was part of a larger master plan project where there was a condition precedent. To that master plan receiving its approval that this cross connect access. Must continue and exist. As is very common in planning throughout the city in the county. However having spent a little time with people like my friend Mr. Hawk. And anticipating potential issues it was apparent to me. That I have an adjacent potential competitor that I'm going to build next door to. And one of the two. Points of ingress and egress. That I've been told that I must have. Is this cross easement. To make double dog sure. Before I closed on this property in April of two thousand and eight. I went to my friend the now the director of planning that I've known for twenty two years. And I said Steve I want a letter of reliance because. I know they're supposed to but I've just been in the world too long. And there were two letters. That we used as reliance to obtain this twenty three million dollar loan in close one. I want to make sure. That my zoning is good. Got that letter. Number two in December of oh seven I want to make sure Steve that they can't close this access. And you have that letter in your package. A curious thing happened. As miss current pointed out in November of oh seven. We applied for it applied to D. R. B. for our site plan approval. And given the ordinary time that it takes to process this application we should have been exiting with D. R. B. approval in May of oh eight. In January of oh eight. One of the conditional. Comments of receiving site plan approval and you'll see this in your timeline. Is it Phillips you need to go back and get the consent from colonial your neighbor to use the access. And I'm like why I I have a letter from the director of planning that says they can't deny the access in fact the city could issue a cease and desist if they stripped away or did not honor the very underlying condition that allowed them to operate. Well we want you to go ahead and get it. That should not have been my obligation as a private citizen. To go out and defend a site plan condition that was issued by the planning staff. However. I proceeded. And for four months. We could not get colonial. To respond couldn't have would not happen. There are numerous emails and you have a truncated version of what we think are the relevant documents. And I am imploring staff what is going on now I would like to juxtapose against in the backdrop this one other thing. There was a lot of transition at this time. And staff was want to go forward without. Council city council and if you'll recall about this time. Your prior general accounts city attorney. Had exited and Karen Cindillar was the assistant and no one wanted to really kind of make a decision because the new guy is coming and I don't want to be responsible for. A decision that might go on later on. And this conversation where everyone here in staff says. Well we couldn't do anything once the appeal was filed. But what about the nine months that we sat there and burned away time. And we started getting letters from from the bank that said Phillips. This what happened to these reliance letters well what about these letters that say that this shouldn't be an issue. And then in March. Of oh nine in the tactic of my competitor was to delay delay delay delay it was not until a parole. April of oh nine. That they finally got the board of adjustment hearing and they were denied. Even then even then we were not allowed to proceed because they immediately appealed it. And finally. When they got to the point of the second time they were denied and now we were never sued and we were never in direct litigation with colonial this was going on with the property owner and their threats against the city we were not in privity with that discussion we were the bystander. Finally they said which I think is most unjust. We will give you your approval. If you will take all of the risk and there's not a lender. On the planet that's going to say I will advance. Twenty three million dollars only to find out that later on maybe it'll all be rescinded we should never ever have been placed that decision and I close with this. We've never approached you before. For this reason. After six years. In fifty million dollars through a period of time that banks were failing. We prevailed. And we humbly and respectfully simply ask for this. Just don't. Create injury to us as a result of following the direction and guidance of the people that we had grown to trust for twenty years and I'm sorry that tonight I have to be before you to have this most uncomfortable conversation because we've always had a great relationship with this staff in these people so I thank you for your consideration. Thank you. I'm going to. First ask if the staff has any comments staff in the planning department I'm going to see. City attorney because I lean over him ask was he involved he said not personally but Karen Sandler was. If you have any comments. And then open up for the council comments. Good evening Steve meddling with the Durham City County Planning Department. As Mr. Phillips has indicated I was involved in this project. From its inception. Staff did verify for the applicants that in fact the zoning was appropriate it was a site that had been rezoned with the development plan. A number of years before. That did have a committed along out excuse me committed element on it that required the interconnection between the two portions of the project. Therefore it was not an arbitrary requirement it was a requirement imposed at the time of zoning. The I will take some exception to some of the the way this has been portrayed by this current and Mr. Phillips included in your staff report is actually a chronological history. That was prepared by my assistant director because I want somebody totally independent from me to actually pull that information together from the case records. I think what that will actually show you is that there is actually a chronological history here where there is exceedingly long periods of time where the application was back in the hands of the applicant and there was no response coming forward. The the characterization of Ms. Kern that the staff arbitrarily told the applicant not to come forward is not correct. If you have read the staff report you're well aware that the ordinance is very clear that once an appeal has been filed then we have to stay any further action until such time as that action has been rendered by the board of adjustment that's exactly what happened. I will acknowledge that the adjacent property owner did use process to in some ways elongate the process resulting in the case being carried to the March Board of Adjustment Hearing and subsequent order being approved in April of that year. But I will tell you with all certainty the staff stands behind all actions that we have taken. We feel like we've been above board and up front with all parties on this. I will agree with Mr. Phillips and his attorney that I do feel the adjacent property owner utilizing the appeal process did have an adverse effect on them. But beyond that I'll be happy to answer questions council has. Okay. Thank you. I recognize the city attorney for the comments. Thank you Mr. Mayor and members of council. I have become aware of this particular matter and have taken a look at a lot of the background information. I was not personally involved but if Mr. Phillips is a graduate of Hablok High School back circa 80s he and I have actually known each other for about 30 or so years. And good to see you again, Donald. I did take a look at this particular provision and what I heard and maybe I need some more information from either the planning department or asked Ms. Curran to be clearer about this is this repeated reference to the staff telling you you couldn't go forward or that you couldn't apply for building permits. And I asked this question because the concern that we have and we've actually been trying to and I asked Don O'Toole who is the new attorney who took Ms. Cindillard's place upon her retirement that it seemed like the equities would weigh in favor of doing exactly what you're asking for. Now I'm looking for the legal basis for applying retroactively applying an impact fee schedule that doesn't exist anymore since 2009. And the way that the code is written, we can't find a way to allow you, even if you wanted to do this, to retroactively apply an old fee schedule to building permits that get pulled in 2011. But I'd like to hear whether Mr. Medlin or Ms. Curran can enlighten me a little bit more because that's new information for me that the staff told you you couldn't go forward with building permits. I'd just like to hear a little bit more about that. And maybe counsel would too. Ultimately, it's your decision, not mine. And let me be clear. There is a rule that the general statutes and the UDO do state that during, or they used to, it doesn't say this anymore because that's changed as well, that during the time between when an appeal to the Board of Adjustment was filed from the determination of the zoning administrator until the time it goes to Superior Court can't go past that time. During that one period that there is a stay of the project, okay? But the problem, our problem with that is, is one of two things. First of all, our project was really not the one subject to appeal because it was the project next door. It was interpretation of those. So there was really no basis for that stay. But assuming that there was, that was not the only time that the project was stopped. There are emails and whatnot in this exhibit too that actually say that that period extended beyond the Board of Adjustment decision. Well, first of all, let me just tell you that the time, July 1st, 2009, is the day of the change, okay? The Board of Adjustment appeal was filed on September, no, September of 2008 was when Mr. Medlin's initial decision was made. Now, that had to be appealed within 30 days. So it was September of 2009 when we were told, okay, you got to wait for this appeal to go through. Well, what happened was, is it was appealed to the Board of Adjustment and it wasn't heard till, or approved until April of the next year. So we're talking about September, October, November, December, January, February, March, April, that is seven months when normally, if you have a Board of Adjustment appeal and I do this all the time and at Board of Adjustment, that stay is 30 days, maybe 60 max. So this was a seven month period where this state was in effect where Mr. Phillips couldn't go forward. Then after the Board of Adjustment made its decision, at that point, what had happened and during that time, the loan was lost. But it was appealed to Superior Court and right after that Board of Adjustment decision, Mr. Phillips went and said, okay, can I have my site plan now? And it went back to the DRB then and what the DRB did is, and you have a timeline there and it's not exactly correct because it says you got approval on June 19th, 2009. Okay, he got conditional approval on that date. And what the DRB says is we will approve you, but not until you provide a letter which states that you will assume all responsibility during the rest of the appeal process which went on another year or so. So if you look in there, that letter which was negotiated by your predecessor, Mr. Baker and Mr. Phillips Lawyer, finally they agreed on this, what you call a rider that will take responsibility was finally approved on July 27th of 2009. So then it went back and the actual unconditional site plan was not approved until August 10th of 2009. So that July date when the fees had actually changed in the interim. Now what our position is and what the, as you know, it's not an exact fit in your ordinance, but what it says is if impact fees are changed, they can be calculated based on when the completed building permit application is filed. Our argument is sort of a tolling argument, if you will. Our position is that, but for that, what turned out to be on with a nine month stay, we would have been able to move forward with the building permit application and have filed it when well before July of 2009 when it changed. The reason we couldn't file it was not our fault at all. I didn't, we don't mean to be attacking the planning staff at all. I apologize if it came across that way, but this appeal that was filed by the property owner, that put this whole thing into motion where we were frozen for almost nine months. And so ultimately it came to be that the neighboring property owner who was our competitor and knew if they did this, we'd lose our financing and they'd put us out of business. Well, we did lose the financing, but Mr. Phillips came back and was able to do it by getting another loan, but that that action was wrongful. The city was on our side. They fought with us throughout it. We ultimately won, but it is that period of the freeze of the stay that we're asking not be considered and that our building permit be treated as if it was filed when it could have been instead of when we ultimately did that. So that's our stay up or come back. Let me ask, are there comments by members of the council before I raise some questions? If you're not going to ask me a pro term. I had a question. Per your appeal that you said you won, well, with your competitor, did, was a part of decision to pay you any anything? Did you sue them or compensation of any sort? That wasn't the kind of suit that it was, actually. What it was, it was an appeal from Mr. Medlin's decision, which was filed by the property owner, the other property owner, not us. So they, the city and the property owner were fighting. We can't get any money out of that at all. So you didn't go into a legal process to making it to get money. It is not permitted under North Carolina law. You can't recover money damages for what your delay is for a zoning appeal. It's just not allowed. I'm not an attorney, so I don't know these ingredients. Okay, thank you. Your Honor, it's Councilman Davis. Thank you, Mr. Mayor. I just wanted to know if there is any kind of historical precedent for the issues involved here. Is this something that we've had happened in the history of the city? I know this history of the city is a long time, but recently. I can't speak to the entire history, obviously. I did ask Mr. O'Toole to take a look at that. We couldn't find anything on point with this particular, this is an extremely unique situation. Thank you, yes. I recognize Councilman Shul. Thank you, Mr. Mayor. To the staff. Ms. Kern makes a point, which I'm not exactly clear about, that there was a seven month lapse between when they filed and when this went for the Board of Adjustment that was somehow outside of the delay associated with the appeal of the appeal from your decision, is that? I believe Ms. Kern was basically indicating from the time the appeal was filed that there was a seven month period before the item was actually concluded before the Board of Adjustment. What I would say is it is not unusual to take 60 days after an appeal is filed to prepare a response and then schedule the item before the Board of Adjustment. In this case, I think both parties would agree that the attorney for the opposing party delayed the consideration of the item for two months. First, to prepare additional response based on some communications, I think between the attorneys, between the city and city attorney's office and his office, but also the second time because he had a conflict with Board of Adjustment date with the court system and it is usual practice to accept that as a reason to continue the item. The third month, unfortunately, I was scheduled to be out of the office and as the person being appealed, I needed to be there, so we actually asked the Board of Adjustment to hold a special meeting two weeks after their normal meeting in order to hear the case when I would return to town. And they did so. The reason for the additional month is that because it was a contested case with a lot of testimony, it was not just the issue of the cross connection, it was also the issue of whether the use was even permissible as an apartment complex as the property was owned to OI. That is not unusual for the attorney's office to work very closely with the planning staff to draft the order for the Board of Adjustment based on the testimony that occurs at that meeting, which is what occurred. So I hope I have explained that to you. Thank you. And so just to be clear, maybe ask a more general question related to that same question, which is do you have any sense that we delayed this process in a way that was important, significant, an unreasonable amount of time beyond the delays that were caused by the appeal process itself or the normal workings of our departments? I would say based on the record, I think it's clear that whenever we've actually had the application with the exception of the seven month appeal period for the site plan that staff has turned those comments around within the prescribed time frames. It's important to remember that any review process, once it gets back into the applicant's hands, we have no control over how long that information is in their hands before they return it to us. I do believe the appeal process was elongated. I wanna be upfront. I think it was longer. I was frustrated just as I'm sure Mr. Phillips and his team were frustrated with the length that it took to get the appeal before the Board of Adjustment. As you're probably familiar, we try to get appeals before the Board just as quickly as we can, but there are a number of things that occur occasionally where that doesn't happen as timely as we would expect. I will want to clarify for the record that the DRB, when they granted their approval, their initial approval, that was the approval of the site plan. At that time, the process was to grant approval subject to corrections and verification. The verification that was mentioned was the ongoing conversation between the attorney's office and the attorney for the applicant to work out some details, as it related to a note that had to be placed on the face of the site plan. That was a determination of the development review board. The administrative review body that was, is no longer in existence, empowered to make those decisions. And my last question is, Mr. Phillips said that it was his opinion that it was the duty of the city, perhaps the planning department, I'm not sure exactly, I'm not sure I've got them exactly right, to have gone to the owner of the other property and received the permission for that right of way. I'm not sure I've got my language there exactly right, Steve, but is that our responsibility? Did we, is there something we should have done there that we did not? Or is this customary that the developer does it? Just to clarify for the record, it is actually the letter that I sent to the adjacent property owner that created this whole issue of whether or not the requirement was going to be honored as part of the committed element. I just went back and looked at the review comments from the first review. There was no requirement that they do that. They was simply pointed out that they had to make provision for connection that they had originally shown a gate and that was shown or indicated it need to be removed. Thank you. Steve, first of all, for the questions. I should know the answer, but I don't. I'm looking at the fee schedule that the developers have provided us, fees in 2008 and then fees in 2012. I'm not to assume that the fees for street impact, open space and parks and rec remain the same up until 2012 or do we make changes on these graduates? I apologize, I am not the impact fee expert. I'm sorry, you're right. Who should answer that question? Good evening, Gene Bradham, Director of City County Inspections. The impact fee that went into place, there was an increase in the impact fee, July 1 of 2008 and then there was another increase the way it was approved to take effect, July 1 of 2009. So any references to 2011, 2012, it is the 2009 impact fee that went in place, July 1 of 2009 versus the 2008 impact fee. I guess what I'm asking is if the fees changed in 2009 from 2008, were there any other changes between 2009 and 2012? No sir. So the fees are the same. Okay, I just need to make sure I understand what was happening here. So that being the case, and I guess Steve, this is a question for you. Have we had situations where persons entered into the development process? And had fee changes in the middle of that process that they went in? Well, I guess what I'm trying to understand is if I came to the planning department for a project, and I started this in 2008, and for whatever reason, I wasn't able to get it through in 2008, and I was finally able to get it completed in 2009, 2010. But when I started in 2008, I accepted that these were gonna be on my development fees. And they changed, do we have any process where as we notify the developers that your development fees have changed, that these are gonna be your development fees 2009, 2010? As it relates to planning application fees, once you pay your initial fee, there are no additional fees, but if you're referring to impact fees, I would actually, again, have to defer. Okay, whoever can answer that. The way that we've done that in the past is that we require applicants to have a completed package. So if they, in any ordinance, the impact fee ordinance even specifies that, that if the applicant brings a completed package, everything that would be necessary to approve that building permit, then they would be, and if you did it midnight before that change went into effect, if it took three weeks to process it, it would still get what was done at midnight. So I'm asking the developers now, what were your expectations relative to when you started this project, the development fees that you're gonna pay? You knew, I assume you knew what they were in 2008 because you had to get a finance and planning and all that, is that correct? Is the camera done with this exhibit? I'd like to turn it to the- That's fine, yeah. I just looked at tab three, that's where I got these fees from. Well, that's what I was looking at. This is, I don't wanna get in this tia to tell you. Well, let me ask you a question. Mr. Madeline, let me ask you. Yes, as you started a project in 2007. 2007's when we applied, correct. And you knew what the development fees were for your project at that time. Absolutely. You figured all that out. At an important time, did you think as you're going through this process that your development fees were gonna be different than what you started? Well, no, and one of the clarifications we wanna make here is that we're serious people. I closed in April of 2008 while this conversation is going on and I will have to take Umbridge with Madeline. I've got, if emails kill for anything, I have emails that you will go get consent of the adjacent property owner if you, as a condition of, that is one of the considerations for DRB approval. And we clearly, we had a closed construction and development loan. It wasn't as if we were going to obtain that. And we are ready, and we know, I've been doing this for about two decades now in the city of Durham. We know it takes about five months, on average, to get through the DRB process. You have a letter of reliance from the chief of zoning that says to us, yes, this property is permitted use as multifamily. You have a reliance letter that says yes, you can, that cross connection, you can't be denied that, that'll go forward. And what happens, we get caught in that no man's land while there's this argument going on between the city of Durham and an adjacent property owner. And we can't even intervene. There's nothing for us to do, but stand and burn. I'm getting letters, and there are emails that I could torture you with between me and I'm sending emails to Steve. Steve, you don't let us go. Their bank is going to call my loan. This is a closed construction loan. And in fact, prophetically, in March the 30th of 2000, and nine, they do. This isn't just about from the date that the appeal was filed regarding his letter to BOA. What about the first seven to eight months, and nine months that it took to get all the way over there? We should in May, no later than June of 2008, been through DRB, then move on with the submittal of our construction drawings. That's how we've been doing it for two decades. This isn't, we got caught in a quandary, not of our making. And but for, but for following every single procedure that you as an individual would reasonably follow a letter from the director of planning regarding those issues, what more could I do? What more could I do? I was told, if you proceed to DRB, you're liable to get turned down until this other issue is resolved. So I'd stand there going crazy and remember, I would like to also say that, I think maybe we've all forgotten about this thing called the great recession. You know, Washington Mutual went out of business, first unionists failing during this time. Banks aren't exactly excited to be hanging around with the developer at this moment. Tell me again, when did you start construction on the project? When do we finally start it? After the bank called our loan, we went all the way back through another two years. Let's say I've been in this for six years. We started construction in June of 2012. And when you put your package together for your loan, you had development fees in there. What did you assume? The process that we started when the bank gave us our, we started, we turned a package into HUD in June of 2009 because the bank had put us on notice to default. I'll answer my question again. I'll put it in the same scheme. What development fees did you assume when you started your package in 2009, when you went to the bank and said, this is what I wanna do here in my body? It was the current fee schedule. You used 2008 fees. Had to, it was the current fee schedule. I'm trying to understand. Yeah, I'm sorry. You used 2008 fees. Yes, sir. And my question is nobody notified you in 2009 that the fees had changed. Not before, no one notified, they did not. No one notified you. Can someone from the inspecting department talk about that? They didn't. I mean, you've got a project that's ongoing, started in 2007. He put in a package with the bank. He assumed certain fees for 2008. In spite of all the stuff that was going through, he finally put in another loan package to the bank in 2009. And he put in development fees and instead of using 2009 development fees, which had increased, he used 2008. Do we have any kind of obligation to talk to people, let them know that the fees have changed and just assumed that's something they need to find out. How does this work? Yeah, I think the question too is, what processes do we use to notify the public of changes in the impact fees, whether they have projects in the pipeline or not? So I'll speak first. Mr. Mayor, as you recall, when we brought, bring the impact fee changes forward, we have the poll here for that. Don't recall anything. I'm trying to understand. You've got to develop with a lot of experience, has been to the bank, put together all his finance and his packaging fees, his loan costs, and he originally includes fees, which he knows what they are in 2008. He goes back in 2009. Again, a knowledgeable developer, he puts together his loan package and he uses 2008 fees instead of the new fees 2009. I mean, the only thing that I would explain is that when the impact fee was adopted, it was a public hearing and the notices go out at public hearings. There wasn't a separate mailing that went out every developer to say that. Okay, so that's it, you don't, okay. Let me understand from you, the developer, why is it that you didn't know about the change in fees? Why was I notified of the change in fees? No, I'm trying to understand why didn't you know about the change in fees? Well, when I put my second financing package together, because I'd been put on default in March the 30th of 2009, I then turned a package into HUD in June of 2009 and the fees did not change for another month and I can't anticipate what this good body will or won't develop. Okay, so you said when you put your package in. It was still a relevance fee schedule. It was still fees of 2008. Yes, sir. Is that what you're saying? Yes, sir. So I got caught with bad timing and as Robin accurately pointed out, but for this bizarre delay, I wouldn't be there. I'm just wanna make sure I understand why with your experience, why were you using 2008 fees rather than 2009 fees? Honestly, Mayor, I think what it is, is this is just one of those extenuating unique circumstances. I cannot think of a way in which this would anyway set precedent. I'm trying to understand your position. Nobody else, I'm trying to understand your position. Let me just say one thing, that HUD loan that he applied for, because I was involved with litigation with the first bank, what was submitted before the fee change and it took and it does take, and he will tell you, and I didn't know this, it takes years to get through that HUD process and no change can be made. So at the time it went in, the fees were right. So. That's all I'm trying to understand. I'm sorry. When you submitted them, they were the applicable fees. That's correct, sir. Okay. As Councilor Moffitt. According to the timeline in our packet, the fees actually changed in May of 2008. They were first applied in July one, 2008, and then again in 2009. Ms. Kern, I wanted to ask you, so at the time the packet was submitted to HUD, they'd already changed. I wanted to just ask you very quickly about, let's see, oh, no, it's here. What is a multi-million dollar chapter 75.1 lawsuit if there's no way to recover damages from someone else? Say that. Well, in the packet of information you gave us is a letter that says your client is placing itself at great risk. Well, that was a different lawyer than me. There is not, this is a zoning appeal and maybe Mr. Baker can chime in here. If you have a Board of Adjustment Zoning Appeal, the courts have said that if you are delayed or have any damage at all and you ultimately win that appeal and you can proceed with your project, you can't recover damages. Now this email was sent and I understand that that was threatened but it is not possible to do. Mr. Phillips has asked me that and I have advised him that there is no way in North Carolina for him to recover those fees, so. Okay, and then I had a question. I just wanted to ask about building permits because the fees are applied at the time of building permit and according to the timeline I've seen, the building permit was first submitted in November 2010 and then with John in September 2011, is that correct? And then resubmitted in October of 2011. Mr. Phillips. Okay, so could you just tell us briefly why you went to your building permit resubmitted it? I don't know exactly remember the circumstances but I do know what Ms. Curran had spoke of before was the length of time that it was taking to get the HUD application and this is a extremely expensive process. Again, remember we're talking about a six year period of time in which I'm trying to hold this thing together and it could have been for economic reasons. I don't remember exactly what the circumstances were at the time but I will tell you that I think that the whole process took us, again as I mentioned earlier, we were finally able to close after losing the first lender in June of 12 just to kind of give you some. You were between loans. We were between, we were between loans. Again, we didn't close the successful loan in start construction until June of 2012. So frankly, after the financing was called because of the delay, in fact, we have a letter from the bank that says, look, we appreciate what you sent us that they were being sarcastic but those letters of reliance that you provided us as inducements for your loan, we don't understand why you can't proceed forward. We don't really care but the fact of the matter is that you have a substantial completion date and we've been sitting here waiting with you for over a year now and you're not going anywhere so therefore we're going to call your loan and that started the whole dance of just trying to survive and you understand what the landscape was in that time. Oh, very much so. You said that no one had seemed to remember that there was a great recession but that's one of the first things that occurred to me looking at the dates was that a lot of things changed between the time you started the project and now, I mean a lot changed. The credit market's definitely changed and you were not quite know what the word to describe your neighbor is but it was very clear that they were using the court. I shouldn't say it's very clear. I'm not a lawyer but it seems that they were using the courts to delay you as long as possible. Possibly as you pointed out as a competitor and so going over this case earlier today, I was thinking about that you have my sympathy and my admiration for being able to see the student completion. I have been in your situation but not nearly to the extent that you are but where things change, things are delayed and additional costs are incurred and you really stuck with it and made it happen. I appreciate that. I appreciate it. Let me tell you where I'm having a dilemma. To me, there are two issues for me. You've come to us strictly because of the development fees because of the impact fees. That's why you're here. And what you're telling us is that you've been delayed because of things that the planning department did and I'm not going to get into that and accept that. I've still got to get comfortable that as an experienced developer, you put in a package with certain numbers, then you put in another package for the same project. And I assume you changed the numbers because some construction costs changed or something changed in the project but you didn't change the impact fees. And the reason you're saying you didn't change the impact fees is because it happened. The impact fees change after you put in your application to HUD. I just heard Don Moffitt say that the impact fees change when, May, May. And you put in your package to HUD when? You're talking about the O9 change, yeah. I'm trying to feel comfortable that you did not know about the O9 change when you put in this financing package with HUD. Mr. Mayor, I'm not certain we can check this but I believe that the council approved those changes in May of 2008. So although they didn't change until 2009, the deed was done in May of 2008. And you were not aware of that? Okay, I'll come back. Let me recognize Councilman Brown. I don't know if I can shed any light on this or not where there's a lot of smoke but a couple of points. Number one, Mr. Phillips, we appreciate you using your development talents to invest in and I knew Mr. Hawk, your former boss. We appreciate too what he has done with this, particularly with his medical project on Ben Franklin Boulevard as well as others. Well, I guess, if anything, this certainly epitomizes the old adage that particularly when it comes to development that time is money. I guess I'm just uneasy about all of this, Mr. Mayor. I, it's a complicated issue, obviously in my judgment, if we can point a finger at anyone, it's colonial. So question about that in my judgment. But as Robin has pointed out as well, I mean, legally under state statutes there's nothing you can do about that. I'm just not satisfied at this junction that, and I say this with reluctance, but I don't think this was our finest hour for our planning department. I think there should have been better contact with you as the developer. You should have been notified about the impact fee change. Not everyone reads the papers about this sort of thing. Even though you're a very sophisticated developer. I guess there was some burden of proof that I would think our planning department would pick up, not the least of which would be notification. And also, perhaps if possible, perhaps it was not, but a more forceful communication with the colonial. I can't really reach a decision on this tonight, Mr. Mayor. My suggestion would be to move it back to our manager and perhaps we can further discuss this at a later time. A lot of you probably do not want to do that, but I'm perhaps a minority of one, but that's my feelings for tonight. All right, thank you. Are there other comments? Recognize Councilman Schuhl. Thank you, Mr. Mayor. Are we in a public hearing? At what point do you want to motion? We are in a public hearing. Okay. And it's still open. Okay. Well, when you're ready, I'll comment and motion it when you think that's appropriate. Okay. Let me ask you, are there other questions or comments on this piece? It is a public hearing. Just a minute. It is a public hearing and I was going to call to see if anybody else wants to speak on this item, this being a public hearing. Do you want to speak on this item? Do you want to speak on this item? Okay. I recognize Ms. Peterson, please. You have two minutes. Two minutes or three minutes, Mr. Mayor? Two minutes. Yes, I'm Mrs. Peterson. I'm one of the political activists here in Durham. It's heart-wrenching to hear this situation. Sometimes myself and Mr. Brown, we may not always be on the same page, but I really feel bad about this situation. And whatever these folks need, I'm hoping that the city council will help them to get to where they're trying to get. When it looks like somebody has spent over $400,000, am I seeing that right on your... That's a lot of monies. They could have donated that monies to some of our programs in this community where we need help. I don't know what happened here, Mr. Mayor, and city council members, but somebody has made a boo-boo. And when the government, would you're serving the people? I think when that happens, we need to try to do the best we can to work it out to help those who are trying to invest in this community, trying to help persons get employed, trying to help persons get housing. And for something like this to go on for years, why? Why? Six years? You've been going through this? This is a, Mr. Mayor, this community, this government can do much better. We can do much better than that. So Mr. Mayor and city council, I don't see why you want to wait and hold another meeting. Is it not possible, Mr. Davis and Don and some of the other council members to bring to some end to this that will help them, help them at the end? Mr. Mayor, can you help me with that, please? Thank you, Mr. Peterson. Let me ask, is anyone else who wants to speak on this item before I close the public hearing? Let the record reflect that no one else asks to speak. I'm gonna close the public hearing. I'd like to come back to the city attorney and tell us what are our options on this request from the legal standpoint. Mr. Mayor and city council, you have a recommendation that's in front of you. I certainly understand Mr. Phillips and Ms. Curran's statement with regard to the impact fee piece. I still see the code provisions as being mandatory that the impact fee shall be determined at the time of building permit application and that building permit application came in sometime after July 1, 2009. I think that the facts are undisputed about that and I don't see any wiggle room in the code to make some sort of retroactive statement to apply impact fees that don't exist at the time of the building permit application was submitted, which I believe was sometime in 2011. So the recommendation is still there in front of you and I'd have to ask, maybe Ms. Johnson or Mr. Medlin if there's an alternative to the recommendation it would have to be based on some sort of finding and essentially take the equitable argument that Ms. Curran has made that there are some sort of tolling that happens as a result of the unique circumstances here that through a combination mostly tied up in litigation that Mr. Phillips wasn't able to submit his completed application as Mr. Bradham has mentioned is the thing that really tolls the time for making the determination about what impact fee applies. I don't see any language in the code specifically to do that because of the mandatory language that's there. Well, I think that's part of our evaluation and how we got to this point that while we do on a surface see all of the thinking behind why it would be fair and equitable to have the prior impact fee applicable we could not find the basis in the code to do that but if you're saying we can imply that then that may be a different conclusion. Bertha? I would just state that the charge for the impact fee appeal committee has always been to look at the methodology used to calculate the fee. So the committee had no authority to apply to fee in any other way unless it was proven that the fee was applied incorrectly. We have never had a case again as the attorney mentioned where it is something other than that that's brought to our attention and we have had cases where the reason the appeal hasn't gone any further is because we have agreed to look at the methodology and make some adjustments in the methodology but that is all that the committee is allowed the only adjustments they're allowed to make. Okay, I'm going to entertain a motion on this and the motions be made to get a second then we'll discuss it. Recognize Councilman Schultz. I would move to uphold these staff's ruling, Mr. Mayor and be happy to talk about that at the appropriate time. It's been properly moved and second and recognize Councilman Schultz to make a motion to discuss that. Thank you Mr. Mayor. I am very sympathetic to Mr. Phillips' situation here but I want to say just a few things. First of all, Mr. Phillips, my experience with Mr. Medlin and his department on these matters is that in my experience, Mr. Medlin has always shown absolute integrity in these matters when they've come before us and when his staff has moved too slowly or been at fault in some way, my experience is that he hasn't been afraid to say so and sometimes his rulings on things haven't fallen out the way that I wish they did personally and the point of view that I had but I've always trusted his integrity and his reliability and might I say also in some cases his courage in these matters totally. I can think of lots of controversial matters where he's had to take a position and so I'm very respectful of that and I place a lot of faith in his judgment on that when he says that he feels that the department followed the procedures and that they were supposed to have and I understand, I sympathize with you a lot. I really can see that the adjoining landowner messed you over badly and it's a shame that you can't recover from that landowner. I'm sure it cost you a lot of money besides just the amount of these fees, I have no doubt and you came back and did the project anyway and I am respectful of that and grateful of him. But I do feel having heard the various arguments that I'm convinced personally that it wasn't the city who was at fault, that the city was like you caught in circumstances that had to do with this other lawsuit and then it forced the city's hand and the planning staff's hand to various decisions and actions. So in that sense, I don't think it's our responsibility to make you whole. Again, I sympathize with you, I wish there wasn't a way you could recover from the people who I think were, as you said, using the legal system and our system to try to delay you for competitive purposes. But again, I do support the staff recommendation. Oh, they're further recognized. Councilman Davis. Thank you, Mr. Mayor. It's my understanding as our attorney has said that this is a very unique, not very unique, a unique situation and that historically we have not had issues such as this one and that there is not a way to recover the loss or the change in the impact fee from the competitor that caused many of the delays that we dealt with. Would it be in order to put forth an amendment to the motion to allow an adjustment to half of the change in the impact fee from the earlier fee to this current impact fee? I'd have to ask the city attorney to do it and respond to that. If you can make an adjustment, you can make it a zero. If you can make it a half, you can make it a zero. So I just like to understand what the rationale would be. How can we do that? My understanding is that you have to have a basis for the decision and I don't know what the basis would be to identify a number, unless you found that the calculation was incorrect, which isn't the issue here. That's typically what you're asked to weigh in on but that's not the issue. You're talking about essentially changing the UDO on the fly and I don't know what legal basis you would have to do that. All right, so in response to your answer then Mr. Attorney, then Mr. Mayor, I would like to and I will respect the motion that's on the floor but would vote against it and if it fails, I will offer a motion that we go back to the original impact fee. Well, look, can I comment on that? You can always make a substitute motion and I guess my question is from the attorney, can we do that? I mean, can we go back to the original fees that were in 2008 on this project? Given that the council took an action back in 2008 to change the fees, I don't know if there's a legal basis to retroactively change the fee just for this project. If you, just off the cuff, if you went retroactive you would have to refund a lot of folks a lot of money. Just wanted that discussion before you move forward to the motion. I recognize councilwoman Cotati. Yeah, I just wanted to make a few comments and I appreciate that apparently the situation regarding impact fees may be unique but certainly we've had many, many, many other changes that affect development, whether environmental rules, floodplain maps or other aspects that affect the development process and we've certainly heard of delays over time and so I do truly respect your perseverance and glad that you have moved forward with the project but I do not believe it's the city's responsibility to make you whole nor do I feel like we are in a position to do that for the many, many developers that come before this body and invest in our city and so that's where I'm at. Thanks. Is there further discussions on item? None, I'm gonna call the question. Madam clerk, will you open the vote please? And we're voting on the motion, maybe about councilman Schultz on this side. Open the vote, close the vote. It passes. Six to one council member Brown voting though. Thank you. Okay. Item, moved item 11, fiscal year 2014 to 2015, fiscal year budget and fiscal year 2015, 2020, council improvement plan. Good evening. This again is a public hearing item. Good evening, this is a public hearing on the fiscal year 2014, 15 fiscal year, I'm sorry, budget and the FY 2015, 2020, capital improvement plan. We have, let me ask first of all the questions and comments by members of the council as we entertain public comments. I have the Donna Summers, Vince Hammer, Donna Rudolph, John Martin, Heather Sloan, Slane Sloan, Victoria Peterson, and Peter Katz, that'll sound up to speak. Is anyone else that wants to speak on this item? This being a public hearing item. If not, you each have three minutes. I'm sorry, what's this? Okay, in that case, if you don't mind, let's speak to some of you, you can speak first. And I guess, I wanted to speak on another one also, but I have an appointment, a medical appointment that I'm trying to get to. I would like to ask, and I mentioned this last year when the city was working on your budget. And Mr. Mayor, I apologize, I haven't gotten a copy of your state of Durham, but I did hear that you have mentioned in there about poverty that we want to address that, that you want to address that. I would like to see, and I've mentioned this before, the city and the county several years ago put a project together to go in and redo the old Holton School. And that's been done. And there's been several programs, GED, and adult sort of programs in there to work with the students. I was hoping that that school would be used as a full-fledged vocational, technical, not a Durham Tech, not a North Carolina Central, Durham Tech is your two-year degree, North Carolina Central is your four-year degree. We have a lot of young people in this community that need to be job-trained. These kids who are dropping out of school can be salvaged with a good vocational offering, heating and air conditioning, copper cable fiber optic. There's a variety of different kinds of training that would be short-term training that could be offered in that building. And I would like to see, and I mentioned this last time, $5 million set aside, not $5 million given in one year, but a million over the next five years to really train our young people in this community, Mr. Mayor. I had an opportunity over the last several weeks, and some of you might have heard this, that I've been doing a little work in the Durham Public School system. Some of those young folks are off the hook. We need to salvage our young people in this community. And running them through that criminal justice system is not gonna work anymore. Those kids go up in that jail, they play basketball, cards, and everything else. We need to catch our young people at the age of 15 and 16 and start training them. Like we're doing with the, I think it's called the Medical Academy or the Durham Academy, over here by Durham Regional Hospital, that whole facility is to help young people go into the medical field. Well, why can't we do that for other children in this community who would like to go in to become plumbers or IT persons? They don't have to have a two-year college degree. They don't have to have a four-year college degree either. They can go out and get six, three months, six months of good job training and get some of these companies to hire them and to empower our young people. So Mr. Mayor, that's what I would like to see some of the tax dollars use. And thank you very much. You're welcome. Next is Ms. Ladonna Summers. Each member has three minutes on this public. Great, thank you. My name is Ladonna Summers and I've spoken this budget cycle to you with my neighbors in PAC-1. But today I speak to you as Chair of Durham's Open Space and Trails Commission. We are appointed by you and by the County Commissioners to advise you and DOS has asked me to be here tonight to elevate to you an urgent budget issue for your action. Last month we sent to you the unanimous resolution you see before you. This is the strongest statement DOS can make to you on an issue. In a budget year when we hear again and again that funds are hard to come by for parks and trails it would be unconscionable to lose $2 million of federal funding for trails. In 2005, Durham was awarded this $2 million in the federal safety loot transportation bill. Originally it was intended to be used for the Duke Belt Line and the Timberlake Line to acquire them to turn them into trails. Norfolk Southern has since taken the Timberlake Line off the table and for the Belt Line is at an impasse with Durham on price despite all of the best efforts of a number of local and state leaders. We have been admonished by Congressman Price's office as well as the NCDOT office who administers such earmarks that as the $2 million earmark approaches a decade old it is at risk of rescission. And in order to prevent it, Durham needs to take steps to obligate the funds on a viable rail to trail project. Other North Carolina communities have lost earmarks recently after they passed the decade mark. We're at nine right now, nine years. Obligating the earmark involves putting matching funds into the budget and directing staff to take the necessary steps to put a project agreement in place with NCDOT. This process takes about a year. While negotiations with Norfolk Southern continue and efforts to raise additional funding continue, it would be terrible to lose the $2 million earmark to rescission. Working with staff from planning, parks and rec and transportation as well as the county, DOS has assessed other rail segments available in Durham and you can see that on the very back page of your handout. We have confirmed with NCDOT we could put a project agreement in place to work on an alternative and if the belt line becomes possible we can amend the agreement back to the belt line and the funds will have been preserved. If the belt line doesn't become possible we can put these precious funds to use on the alternative trail rather than lose them. Based on our research with staff we would recommend the third option to you on your sheet since it has long been in our trails plan as well as the Eastern Durham Open Space Plan. It would serve an underserved yet growing part of the community and additionally this option has in its own impact fees available now to put in the budget for the match that is needed for the earmark. DOS requests that you urgently protect the $2 million by budgeting the match from the available zone to impact fees and directing staff to begin the process to obligate the funds culminating in a project agreement. Thank you and I'd be happy to answer any questions. Welcome. If our council members have questions out there I think it's just please let me know so I can recognize you. Thank you. Thank you. Vince Hammer. Thanks. The inner neighborhood council or INC has identified some limited concerns within the current cell tower ordinance as it impacts residential areas within the county. INC thinks that there are unacceptable risks relating to some safety and aesthetic aspects of the towers that may impact both Durham citizens and the cell tower companies going forward and I'm inclined to agree. I'd even wager that there's a silent majority of property owners within Durham County who share some if not all of these concerns. It's my opinion that support for this initiative has been very limited because the probability of a tower being placed within or near any particular homeowner's property is extremely low. Thus it can be viewed as the other guy's problem. However, I think that's a dangerous and short-sighted assumption. Years worth of work have been invested by INC in studying our zone regulations of other North Carolina communities and communicating with carriers and tower companies and authoring draft recommendations for updating the ordinance. Based on my reading of recent articles within the local media, all stakeholders have been willing to collaborate on revising the current ordinance to mitigate suspected risks and that's a major accomplishment. Unfortunately in comparison to many other planning and development needs, the ordinance updates are currently being classified as relatively low priority for the county. That's disappointing since it's my belief that much of the hard work but pertaining to the ordinance update has already been completed. Nevertheless, it appears that the ball is now in the planning department's court and additional resources may be needed to see this effort through to completion. If the planning department hasn't already included a resourcing request for this particular need in their 2014-2015 budget request, it's my hope that specific additional resourcing needs such as this one can be included prior to the finalization of the next county budget. Given the growth rate of our county's population, it would be great if we could expand our planning department staff through additional permanent hiring. However, since this particular project is narrowly focused and could be completed within the span of a year, it may be possible to hire a contingent worker or a temporary consultant to drive the project through the completion in an expedient manner. My chief concern is that the cell tower ordinance initiative will be put on the back burner, so to speak. Meanwhile, property owners and cell tower companies will continue to face unmitigated risks. An even bigger concern is that enough momentum could be lost such that a one-year project could then become a 10 or 15-year project. I hope that with careful budgeting now we can prevent that possible scenario from becoming a reality. Thank you for your time. You're welcome. Let me ask the manager. Have we sized the resource requirement for this effort? Is that? Yes, Mr. Medlin. All right, thank you. Excuse me, I'd have to ask Mr. Medlin where that is in the work plan at this point. Good evening, Steve Medlin. Very quickly, we are scheduled to report back to the Joint City County Planning Committee meeting on April 2nd, a result of a study. Our staff analysis of the information provided by NC is our hope that coming out of that we will have clear direction as to what policy direction we wanna move into so that we can go ahead and draft the potential amendments. I do not have a firm timeline because I again don't know how big the scope of that project will be at this point, but we do hope to have some sense of timeline probably within the next month or so. And timeline that includes resources to meet the timeline? Yeah, and I guess I just, if I can very clearly, the issue involving the text amendment is not a staffing issue. It's a policy direction issue. We've already committed and expended a tremendous amount of staff resources to work on this. It's just the target has moved a little bit during the course of the conversation and we're just trying to sort of firm that up so that we can move forward with the text amendment. Yes, Council Member Catani. Thank you, Mayor. I believe Mr. Medlin's being very diplomatic. And what's come before us, I will say that I really appreciate the INC and citizen effort on this. They have done a lot of background work and staff has reviewed it carefully, but my understanding of the proposed change will be to remove cell towers from or have very clear separation from residential areas and my non-professional evaluation is that will take a major rewrite of the entire ordinance. So JCCPC has discussed it. I don't know what their recommendation's gonna be and where it's gonna go, but again, I don't think it's a, that the bulk of the work has already been done as Mr. Hammer suggested. There's been a lot of background work, but in terms of moving forward, there will be quite a bit of work that I think will have to happen. Thanks. Okay, well, in any event, I would hope that whatever you come up with that you can assign a dollar value or staff value to do what would be required to do it. Now, I'm not saying I'm supporting it, but we just need to understand the magnitude. We are prepared to do so, Mr. Mayor, without any additional staff. Thank you for your question. All right, okay. Next is Donna Rudolph. Thank you, council members and mayor and staff for your attention on this issue. I wanna speak about the completing the revision of the Durham City County Wireless Facilities Ordinance. I think it is a 2014-15 budget priority and if you look at the sheet, you already know items one and two. First, council and commissioners agreed that the Celta Ordinance of Durham needed revision and a large body of citizens which put their belief in the hands of the INC, the Inter-Neighborhood Council, to move forward. Spent a lot of time, about four months, like a college semester, studying North Carolina ordinances, interviewing wireless industry representatives and canvassing neighborhoods to get their input to come up with the document that we gave you at the end of January which occasioned the feeling of rather un-chilly welcome because it would take some time to study it and to integrate it into the wireless ordinance. But I say to you, the wireless industry is a big business and you have allowed this commercial enterprise because of the demand of the users to sit in residential zones and for example, a 150 foot tower with four carrier tenants brings a revenue to the tower owner of around $400,000 a month per tenant, around $500,000 a month comes to about $5,000,000 a year. And the towers lease are usually 25 years so that's $105,000,000 a year times 25 years. It's a $125,000,000 enterprise and at the sufferance of the citizens, this takes place, of course they use the wireless and Durham is a fertile field and a very delicious lunch for the wireless industry because we are growing. I looked at the statistics of Durham and I think the statistics were very proud that Durham was increasing by 10% each decade and the latest figures are that Durham County has increased almost 10% in five years. So of course there's more users, more demand and so we will see a lot of wireless towers on a horizon and the wireless industry is not going away and we can't let it, we depend upon it but doesn't the large majority of the resident population have the right to have input in the approval of the towers and to have setbacks and to have safety features that until this time have been totally out of their hands for 10 years the towers have been placed in residential zones without prior notification or a format for public hearing for the residents and I'm just asking on behalf of the 243,000 residents of the city of Durham and the 40 additional thousand residents of the county of Durham that you finish this ordinance that citizens have brought forward. Thank you for your time. Welcome. Next is John Martin. Good evening. My name's John Martin. I live at 401 East Trinity Avenue and I've hectored you a couple of times already at Coffee with Council so I think you know what I'm gonna say. I'm the past president of the Interneighborhood Council and serving for two years with the Interneighborhood Council I was struck how many issues that came from neighborhoods did in fact involve the planning department, local historic districts, national register historic districts, the cell tower issue, the revisions of the UDO and I do think that the INC has made a contribution to the city and trying to bring some of these issues forward and I appreciate what Councilwoman Katadi said about Mr. Medlin being a bit diplomatic. I think that's true. I think that the planning department needs more funding. Now the people who know me will probably tell you how cheap I am so I'm not normally one of those people who pounds the table about spending money but really I do believe that the planning department needs increased staffing to deal more expeditiously with these citizen concerns and I really hope that you will take very serious note of this and ask Mr. Medlin to give you a budget where he can do the very best he can do and not where he is attempting simply to hold things together because that's all he has the resources to do. Thank you very much. You're welcome. Peter Katz. No, I'm sorry. We'll go ahead Peter, he's a heather. I'm kind of talking about the same thing anyways. Good evening Council members, Peter Katz. I am a resident of Old North Durham and also a member of INC. A few weeks ago members of my neighborhood association met with members of the planning department to ask for help in applying for a grant to expand our outdated National Historic District. The grant which would have encouraged investment in our historic housing stock would have come from the state but had to go through the planning department. In response to our request, they indicated that they don't currently have the resources to accommodate us and that they aren't likely to for several years. Now the world certainly isn't gonna come to an end over that but it also doesn't seem like it's such a big deal to ask either. We're essentially talking about collecting and dispersing the state's money. So from our perspective it was disappointing but also indicative of a bigger problem and I'd like to see you, I'd like to see us better fund this department with a mandate to provide services to the residents of our community. Thank you. You're welcome. Heather Slane. Hello, I'm Heather Slane. I'm the outgoing now Chair of the Preservation Commission. I'm gonna summarize because I wrote the stuff down about a month ago and I don't remember at all but I'm sure you have the numbers. We have been talking on the Commission for at least the four years that I've been in it about how to raise awareness for historic districts, how to make sure people know that they're in historic districts and what those historic districts mean for the local districts. We have a lot of ideas for how to do that and most of them cost a lot of money including new street signage and other things like that but this year we're looking at starting small and by doing a annual newsletter that goes out to everyone in the historic districts. Partly as a reminder that they're in a local district and partly to provide information on the COA process, on happenings that are going on in the historic districts potentially highlighting projects that have gone through the COA process and just similar to the citizen's newsletter that goes in the water bill, just trying to stay on their radar and keeping in their minds that they're in a historic district. So we got an estimate of the number of property owners from the city staff and a quote from speedy queue for printing the newsletters and postage and all of that came to just about $2,000. So that is our request but I'm happy to answer any questions. Thank you. Recognize Council Member Mock? I did have one question for you. How does the Historic Preservation Commission in viewing this, how would the stories, the content be developed? We were basically told from staff that they didn't have people to do it so we as a commission would write the content for it and of course it would be approved by the planning department the sort of content before it goes out but we would generate the content and the formatting and they have agreed to give us the labels or at least a digital format for printing the labels. Thank you. This is a public hearing and I know people have signed up but before I close the public hearing I wanna know if there's anyone else that wants to speak on the signing that's being a budget. Let the record reflect that no one else asks to speak I will declare the public hearing to be closed as a matter of fact before the council entertain a motion on at least to include that we receive the comments that have made on the public hearing. Exactly. It's been properly moved. Second Madam Clerk, will you open the vote? Close the vote. Thank you. Passes seven to zero. Recognize Council Member Mock? I just wanted to very briefly just thank the people who came out tonight who have been patient to an already lengthy meeting and who provided us with the feedback that we've gotten. Thank you. All right, let's move to the next item. What is that item? A tab that's gone. Item 12. Item 12. Consolidate annexation item 54 Plaza. Recognize Steve Medlin? Good evening Steve Medlin with the Durham City County Planning Department. I would first like to verify for the council that all proper notice has been made with both this item and the next item in accordance with law and that affidavits are part of the case files for public review. The first case before you is 54 Plaza. This item is in essence three separate actions by city council related to the annexation of the 54 Plaza development. The utility extension agreement will allow the applicant to serve the development with city water and sewer service. The public works and water management departments have performed a utility impact analysis and determined that water and sewer facilities are adequate to serve the site. Case BDG 13-14 is a voluntary petition for contiguous annexation submitted by the property owners for the site. The budget and management services department has performed a fiscal impact analysis based on the most intense use permitted within the proposed initial zoning. The analysis projects that estimated revenues will exceed estimated expenditures immediately on annexation. Pursuant to state law the city council is also required to apply an initial zoning to newly annexed property. Case Z 13-21 is a request to zone the property commercial general with a development plan. The zoning as proposed is consistent with both adopted comprehensive plan and unified development ordinance standards. The staff is recommending the council approve the extension agreement, voluntary annexation and the initial zoning of 54 Plaza. The planning commission recommended approval of the initial zoning at their meeting in January by a vote of 11-0-0. I'll be happy to answer any questions you have. Thank you. Again, this is a public hearing. You've heard the staff report. Are there questions, comments by members of the council? Is there anyone in the public who wants to speak on this item? Let the record reflect, are you coming forward to speak on this item? All right. If you could state your name and address and you have three minutes initially. My name is Brandon White, 333 Fayville Street, Suite 600 in Raleigh. I'm with Kimley Horne representing the developer Durham Imperial Investors. We're here and I'd like to thank staff for their assistance in getting through the process and to let you know we have the project engineer, transportation engineer and planner here to answer any questions you may have. Thank you. Thank you. Are there questions of the proponents of the development? Again, let the record reflect that no one else asked to speak on this item. I would encourage the public hearing to be closed as a matter of fact before the council. It's been properly moving second. Madam Clerk, will you open the vote? Close the vote. It passes seven, it's zero. Thank you. Move to the next item. Item 13, zoning map change, Bethpage Village revisions Z1300030. Good evening, Steve Matlin again with the Durham City County Planning Department. Zoning case Z13-30, Bethpage Village revisions are changes to the committed elements from the existing development plan. The zoning designation of the site will remain as plan density residential 4.733, industrial light with a development plan and commercial general with a development plan. This development plan was initially approved by the Durham County Board of Commissioners in 2007 and subsequently annexed into the city in 2009. At the request of the applicant, the council voted to amend the profit committed element lot size of 6,500 square feet in 2012. The requested changes before you this evening include adding language that specifies housing governed by the Housing for Older Persons Act of 1995 shall be exempt from the voluntary donation to Durham Public Schools and modifying the required recreation amenities originally proffered in 2007. The applicant also wishes to remove protection for an existing cemetery located on the site. Staff has determined the request is consistent with the conference plan and unified development ordinance standards. The Planning Commission recommended approval on January 14th of this year by a vote to 11-0. I'll be happy to answer any questions you may have. As the public hearing, you've heard the staff comments, reports. Let me ask all their questions to my members of the council of the staff report. Is there anyone in the audience that would like to speak on this item? If so, if you proceed to the podium to my right and state your name and address, please. Good evening. My name is Scott Lay. It's LAY, 1328 Plunkett Drive and Wake Forest. Has been a long night. You guys have heard and read the staff report. Just know I'm here representing the ownership of the property. And we're excited about the potential of actually moving our development forward after owning it since 2005. So the things that we're asking for are a few minor tweaks to the committed elements. Not the removal of any significant requirement or anything from our perspective. So I'm here to answer any questions you guys might have. Okay. You've heard the applicant's representative. They're questions of the applicant. Recognize Councilman Moffitt, Councilman Katani in that order. Yes, first I just want to note that this project is bigger than 751 South. It's properly located for infrastructure. It's a project that I worked on when I was on the Planning Commission. And it's one that I want to see us move, help them move forward. That said, I have concerns on two issues. The first has to do with recreation facilities for anybody who might be in a non-age restricted lot. Could you address that concern? Yes, and we had understood that that was a concern of Mr. Moffitt before tonight and Bob's own what, which I know you guys probably know Mr. Zumbul. He's not able to be here tonight. But we worked with Mr. Medland's office to get some alternate language that we believe addresses Mr. Moffitt's concern and we'll be happy to profit that tonight. Should I read it, Steve? If you could repeat it into the record please. What's essentially said is what Don expressed is concerned to us for is, one of the committed elements that we've tweaked is really we are going to take the single family residential portion of our development in age restricted. We're gonna self-impose that. But we will do it on a phase by phase basis versus doing it in the entire development at one time. So what Mr. Moffitt's concern was, that's all fair and great when phase one, phase two goes forward but what happens if the remainder of the development for whatever reason does not continue in that fashion what happens to the folks that aren't by the HOA documents allowed to use the facility. So we've proposed to proper the committed element in the event access to the main recreation facility is limited to age restricted units in accordance with the Federal Housing for Older Peoples Act of 1995. At least one of the four active recreation areas will be located in a non-age restricted portion of the community and will contain a minimum of one of the following items. You know, a taut lot, a pool of cabana, an informal play field of at least 5,000 square feet. So it puts a, the illness of having age. The second concern I had was that there's a single grave site that you all are looking to relocate into a cemetery according to state law, that's my understanding. And you've asked that the committed element regarding its treatment be removed from the current list. But my only concern is what happens if you actually don't move that grave site? Well, we did a fair amount of research because I'm certainly not a grave expert by any sense of the imagination. But when this was originally approved back in 2006, I was not associated with the project at that time. And for whatever reason it was requested that the grave site stay for whatever reason. But it's just kind of creepy to have one single grave in the back of your development to use a real technical term. So what we're proposing to do is located in accordance with state standards. You know, the state, the state statutes have very specific guidelines that you follow. Are you advertised to the next again? And you know, if, if, if during that advertisement somebody comes forward and said, we don't want, you know, we want great grandpa to stay where I was at then we have to say okay. And what we're saying is if, if we can remove the proffered element that it absolutely has to be to stay, that if we advertise and choose to move it and someone comes forward and says, we don't want it to be moved, then we'll formally protect it at that time. We'll put a fence around it with the gate so it can be mowed and all those kinds of things. But if it can be moved, it will be moved. Otherwise, if the proffer says it has to stay, you know, it couldn't be moved if they went through the process. Is that correct? It didn't actually proffer to move it. So I was, my concern was the proffer that has been submitted to staff, if I can just go ahead and read this into the record. In the event the existing cemetery is not relocated in accordance with state and local regulations, it will be preserved and protected within an open space area with the gravesites rounded by a four foot high, tall decorative fence with gate. Sorry, Steve, I'm not as seasoned as Mr. Zunwald. I should have read that. I apologize. I guess what's missing in that to me, who maintains it? Well, the HOA will maintain it. It will be in a common area. I'm asking the staff, who will maintain it? If it is within common area, then it becomes the property of the HOA. They are required to present documents that show how they will maintain their commonly held properties as part of their development approvals. And that would include the cemetery. All right, thank you. Any other questions, comments on the side? Recognize the Councilwoman Cattati. Yeah, I'm not gonna make comments, but can you just clarify, so why would we remove that less? Because what you just read has the potential to move it and if it isn't moved, then it defines. Is that new language? That is the new language. Oh, okay, thank you. Any other questions, comments? If not, does anyone else want to speak on this item? Thank you all. You're welcome. Let the record reflect, no one else has to speak. I declare the public hearing to be closed as a matter of fact for the Council. It's been properly moved in second, Madam Clerk. Will you open the vote? Close the vote. It passes seven and zero. We moved to item 14, supplemental items, resolution, memorializing, and Ferdinand Benson, FVP, Dallison, Jr. You all have a copy of that item. It's been properly moved in second. Madam Clerk, will you open the vote? Close the vote. It passes seven and zero. We have a item 15, proposed economic development deal points with Austin Lawrence Partners, East LLC, Alpeas LLC for capital investments and architectural elements at 119 West Paris Street, 113 West Paris Street, 118 West Main Street, 120 West Main Street, and 122 West Main Street, and 202 North Carcord. Is someone going to present this? Right now we can't, it's just a supplemental item. Good evening, Mr. Mayor, members of Council, city staff. I'm Kevin Dick with the Office of Economic and Workforce Development. And this evening we have before you the proposed economic and community development deal points with Austin Lawrence Partners. They are present this evening. These deal points would be the precursor to an economic development incentive agreement which would involve the development and construction of the proposed city center tower as well as the renovation of the Jack Tar Motel. The city would basically get a development that we perceive to be very catalytic for the city center downtown. It would be the tallest building in downtown. We would also receive or a redevelopment of the Jack Tar Motel which has been a very historic building as well. There would be substantial street traffic and visitation to downtown. And basically really a development that would bring more parking as well, more retail spaces, more office spaces, over 100,000 square feet of office. At tens of thousands of square feet of retail as well as over 100 units of apartments as well as a 74 room hotel that would replace what currently sits in the Jack Tar with the 260 space parking deck. The timeline from here is that if the council were to accept these deal points as the premise of an economic development incentive agreement, we would proceed to negotiate such agreement with the developers and basically look to bring that forward next month. Our goal would be the next regular city council meeting of April 7th, but certainly no later than the April 21st. First of all, I support the project and I think the council supports the project also. I need some clarification on this last page that speaks to SDB summary. It says while no specific SDB provisions are specifically acquired by ordinance for the agreement, it is understood that if the agreement is approved, Alpe's LLC will be required to develop an implement and plan to make good faith efforts to use Durham based firms for contracting activities. This will also be required to enter into a workforce development plan to ensure that during career center, registrants would have the first opportunity plan for the available jobs that will be created. My question is, and I hope we get an answer when you come back with your agreement, how does this differ from, this is a large project, an opportunity for a lot of jobs, a lot of opportunity for a lot of minority participation. I need to understand how does this statement differ from what the office of the Debra Jowell's department, how it is different if that department were managing this project towards meeting those goals. Because it's not clear to me that that's what's in here. I hear the words, but it troubles me when it says no specific provisions are required. That really bothers me because I think for a project like this, for the participation, that investment that the city and county are making, we need to have goals. We need to have some kind of assurances that we're gonna have that participation. I just don't see it in these wording. So I'm not asking for the answer now, but Mr. Manning, really before it comes back, I'd like some clarification on that. Is there anything else we need to do other than accept the recommendation to permit the, entertain the motion in that effect? Recognize, oh, I'm sorry, question. Okay, I recognize Councilman Schewel. Thank you, Mr. Mayor. I have a few questions. The, one second here, Kevin. This is on page three and it refers to the new jobs. The new jobs expected to be created by the project would consist of 250 construction jobs, 500 office workers, 75 retail-based employees and 10 hotel jobs with benefits. The 500 office workers, are they really new jobs? It had been my previous understanding that a lot of these jobs were, perhaps, for example, already existing at Duke and might be coming into this building. So I was wondering if new jobs is really the right term here? There may be a heavy transfer of jobs from Duke, but I wouldn't say that. I wouldn't characterize all of the jobs being from Duke. There have been discussions, I believe, with the developers for Duke to lease some of the office space, but not all of it. Okay. So I guess at some point, I'd be interested in how many new jobs we're talking about. I know we can't know exactly, but what would be a good estimate or a range that you think might end up being good office? A good estimate. So we'll need to get with the developer and bring that back and we've heard varied communications about intent for leasing space, but that's not been a part of any definitive negotiations. Right. Let's see. And then on the top of page five, it says, assistance and incentive policy for job creation, job retention, and capital investment, over 71.5 million of the 85 million would consist of taxable improvements that would possibly impact the city's tax base. I was confused because on page two, it looks to me that it says that the proposed very beginning page, to the proposed project components with projected combined assess value of 60.9 million. And so I was wondering, I'm expecting that those numbers are different for a reason that I don't understand, but maybe you could help me with that or clarify that. Sure. The assess value is a conservative estimate that's derived by the tax office. That's basically a projected value for the new building. That doesn't necessarily speak to the amount of capital investment that the developer would be putting in. So the capital investment does not necessarily equate to assess value. We'd like it to always be. I was gonna say, is that common? Because if it's common, that seems like a problem. People are building 71 million dollars in a building and we're assessing it at 60 million? It's, as I said, it's a conservative method of housing that the tax office implies. Well, I'm just hoping that the developers are gonna, yeah, I'm just hoping that with 71.5 million dollars, they're gonna build a building that's worth that much. The other point I would make there is that some of that 71.5 million are hard costs, excuse me, they're soft costs related to construction that we give credit for in our policy. Because without the cost related to architecture, architectural and engineering, and certain design features and civil surveys and so forth, the construction couldn't happen. And so that's why that number wouldn't always match. It still rolls up into the value, but that is, as we said, we calculate the estimated tax numbers. We have contact with the tax collector's office and rely on their estimate of value based on square footage and any number of other factors. Right, okay, thank you. And then just wanted to get a clarification on, this is the bottom of page seven. Based upon current tax valuations over 4.9 million dollars in incremental property taxes, 3.4 million in occupancy and retail sales tax will be generated as a result of this project. Yielding a total net revenue gain to the city of 8.3 million over 15 years. So in year one, Kevin, or let's just say in year one after the, I don't have the chart in front of me, but can you talk to me a little bit about kind of how that spread out? What is our, how positive are we in year one? We're positive from the start to the finish of the incentive and certainly beyond. Sure, no, I understood that, but I mean, do you have a number for year one? How positive will be? I do not have that in front of me, but I'll make sure that we have it when we bring back the agreement. Basically, I can say that the property taxes, excuse me, the property tax net is fairly flat, because the estimates assume no revaluation. Right. I remember it was about $90,000. Roughly. Just from the property taxes. Just from property taxes. Just from property taxes. But the values are variable over the Corsini incentive because there are different occupancy assumptions with the hotel and different, and also different sales tax assumptions. Sure. I'd love to see an estimate of the, how positive we are in year one, including those other taxes. And I know you gave us some other information about that previously, but it would be great to have that again. But as I understand it, we're going to be eight point, the city is going to be eight point $3 million. We're, of course, we can't know exactly about any of this, especially the sales tax and so forth, but we're estimating will be about eight point $3 million positive over the 15 years that we're discussing here. That's cool. Is that right? Okay. And then explain to me, my last question is the, I couldn't quite calculate the ratio for that you had for also large partners, East LLC, 21.3 to one. This is on the top of page eight, Kevin. Could you give me, from looking at your numbers, I couldn't make that calculation myself. So give me just an estimate. 71.5 million related to about roughly just under four million. Okay. So you used the, okay, great, okay, great. Private capital investment versus city capital investment. All right, that's great. For city and senate. Yeah. Right, and that's right. And that's just the city money, not the county money. Correct. Right. So the actual, the public investment, it might be more accurately characterized 12 to one. Or 10 points something to one. Right. Yeah. Okay. All righty. Thank you very much. Quite welcome. Recognize, is that Mayor Pro Tem? Kevin, I noticed in item 11 on page five that you stated the developer make every attempt to ensure the potential tenants are knowledgeable of the germ livable wage and the jobs created as a result of the project pay the germ livable wage. I also would like for you to somehow include in this some assurance that they are knowledgeable of our summer youth program as well, and that they will encourage their tenants to participate in that in some way, either through hiring them or giving money to hire them someplace else. Yes, ma'am, thank you. I will add that that has now become a part of our Durham Workforce Development Plan. So that that's a stipulated part of the plan that they need to adhere to in order to stay compliant with the agreement. Okay. Well, I didn't see that. So it's embedded. It's embedded. Right. Okay, all right. Thank you. Let me ask other questions on this item. We have a recommendation. That's right, I was just saying we have a recommendation I'm still open for questions. Recognize Councilor Schuall. I just wanted to say to the developers that you all are hearing the concern of the council about livable wage as well as minority employment. And these are very important goals of our community. And I think one of the things you're hearing is that we're asking for when we come back that you all will help our office to come back to us with some more specificity about these goals and that we hope and expect that they will be ambitious for the hiring of minority employees. And so just wanted to say that. I know you're there and you're hearing it but just want to make it concrete. Entertain a motion on the recommendation. The recommendation is authorized city manager to negotiate an economic and community development agreement based on deal points negotiated between the city of Durham and Austin Lawrence partners, LLC for capital investments in 119 West Paris Street and the restoration of identified architectural elements at 113 West Paris Street, 118 West Main Street, 120 West Main Street, 122 West Main Street and 202 North Cochrane for total incentive payment amount not exceed $3,970,095 over 15 year period and one to hold a public hearing on proposed economic incentive agreement per GS statute, GS 158-7.1. Entertain a motion on that. It's been properly moved for the second. Further questions? Here are none called a question. All in favor and keep a clerk opening the vote. Close the vote. It passes seven as you wrote. Thank you. We have one last item and that's item five that was pulled and the person that pulled and Ms. Peterson has gone. Entertain a motion on item. It's been properly moved for the second. Madam clerk, we open the vote. Close the vote. Any other items? The council have not withdrawn at 9.46 p.m. Thank you. Thank you.