Town of Cary
North Carolina

LDO Amendment

ACT 5 - Planning & Zoning Board Membership and Duties


Department:Planning and Development ServicesSponsors:
Category:LDO Amendment

Speaker: Mary Beerman, Planning


Executive Summary: The adoption of the policy-based Imagine Cary Community Plan has transformed how rezoning cases are analyzed.  Based upon discussions earlier this year with Council and the Planning and Zoning Board, staff has prepared proposed amendments to the Town Code and the Land Development Ordinance (LDO) to reflect this transformation.  The amendments include changes pertaining to membership, procedures, and responsibilities of Planning & Zoning Board, reflecting the board’s statutory duty to advise and comment on whether a proposed rezoning is consistent with the Imagine Cary Community Plan, and the Plan’s policy-based focus.


Planning and Zoning Board Recommendation: For the Proposed Changes to Town Land Development Ordinance: (1) Board votes only on plan consistency – Approval, 8-0; (2) Board does not conduct public hearings – Approval, 8-0. For the Proposed Changes to Town Code of Ordinances: (1) ETJ member considers only ETJ rezoning cases – Denial, 8-0; (2) Number of Board members changed from 9 to 7 – No decision, 4-4.



Planning and Zoning Board Membership, Procedures and Responsibilities


Roles of Staff, P&Z Board and Town Council Since Adoption of Imagine Cary Community Plan


The adoption of the Imagine Cary Community Plan (the Town’s Comprehensive Plan) has transformed how rezoning cases are analyzed.  While the previous Land Use element of the Comprehensive Plan was map-based, the new Cary Community Plan is policy-based.  Analysis of a rezoning request now focuses on the 68 policies contained within the various chapters of the Plan. The evolution of this analysis highlighted the need for an ongoing assessment of the roles staff, the Planning and Zoning Board, and Council have in the rezoning process to ensure that each group is serving the Town appropriately. 


In January 2018, the Planning and Zoning Board (P&Z) requested guidance from Council regarding their role. In preparing information about the role of the P&Z Board, it became clear that it would also be appropriate to look at the roles of staff and Council. At the Council/Staff retreat held in February 2018, there was a session for this discussion.


As discussed at the retreat, and with the Planning & Zoning Board at their March work session, staff, the Board, and Council are presented with different questions when examining a rezoning case. 


§         Staff must analyze the case from a technical standpoint, considering all 68 policies of the Community Plan, and evaluating traffic and stormwater impacts, among other items. 


§         By statute, the primary duty of the Planning and Zoning Board is to “advise and comment” and provide a “written recommendation” on whether a proposed rezoning is “consistent” with the Plan.  


§         Council takes staff’s observations, the Board’s comments, and comments from the public and the applicant, and must then determine whether the rezoning is reasonable and in the public interest, balancing all the competing community values that may be at play. 


Because staff, the Board, and the Council are examining rezoning cases from different perspectives and are answering different questions, they may sometimes, by design, make different determinations about a given case.



At the retreat, Council determined that the Board should focus on its responsibility to advise and comment on Plan consistency and directed staff to examine how the current structure of the Board and its meetings could be reworked to further that goal.   Council emphasized that they find great value in the discussion and observations of the Board members, as individual citizens, as they consider whether a given rezoning is consistent with the Plan. 


Summary of Proposed Ordinance Changes


Staff proposes amendments to the Town Code and Land Development Ordinance to streamline P&Z Board membership, duties, and meeting procedures to better enable the P&Z Board to focus on providing their individual input regarding Plan consistency.  The changes are summarized below. 






Number of P&Z Members


9 (8 regular members, 1 ETJ member)

7 (6 regular members, 1 ETJ member)

An ETJ (extraterritorial jurisdiction) member is required by statute.  Reducing overall membership may help foster more in-depth discussion of Plan consistency issues.

Types of Cases Heard by P&Z

§ Rezonings

§ LDO Amendments

§ Comprehensive Plan Amendments


No Change

By statute, P&Z must advise and comment on rezonings and LDO amendments.  Since the focus of the Board is Plan consistency, continuing to have the Board review Plan amendments is appropriate.


Role of ETJ Member

Vote on all cases

Vote only on cases affecting ETJ, which includes:

§     All LDO and Plan amendments;

§     Rezonings for property located in the ETJ

By statute, ETJ members are required to hear all rezoning cases for property in the ETJ.  LDO and Plan amendments also affect the ETJ. 

Actions taken by P&Z

1. Advise council on whether rezoning and LDO Amendments are consistent with the Comprehensive Plan

2. Recommend whether council should approve or deny a rezoning or LDO amendment

3. Recommend whether council should approve or deny a Comprehensive Plan amendment

Eliminate Action 2. (Recommend whether council should approve or deny a rezoning or LDO amendment.)

Elimination of this action serves to focus the Board on its primary duty, determining consistency with the Plan.  Reinforcing this focus may reduce citizen confusion and assumptions regarding the effect of the Board’s vote on the rezoning case itself.  The Board and the Council are making different decisions when they examine a case.  Council must consider much more than just Plan consistency when determining whether a rezoning or LDO amendment is reasonable and in the public interest.


Public Hearings

Holds public hearing on a rezoning if conditions are modified subsequent to council public hearing


Holds public hearings on all Plan amendments

Eliminate all public hearings

Public hearings do not serve to enhance the Board’s focus on determining Plan consistency based on their individual perspectives as citizens. 




Town Code Section revised: 2-171


LDO Sections revised: Table 2.1-1, and Sections 2.3.2, 2.6.2, 3.2.4, 3.3.2, 3.4.1, 3.4.2, 3.4.3, 3.4.5, 3.9.2, and 3.27.1


Process and Actions to Date 


Town Council Public Hearing   (June 14, 2018)


One citizen spoke at the public hearing and shared his experience with the Board on a rezoning case.  Council members noted potential challenges in making a determination on Plan consistency distinct from the technical analysis performed by staff.


Planning and Zoning Board  (June 25, 2018)


Proposed Changes to Town Land Development Ordinance


1.              Board votes only on Plan consistency           Recommendation:  Approval 8-0


Summary of Board comments: There was agreement and understanding that a determination of Plan consistency, from the viewpoint of Board members as individuals, was the role of the Board.  


2.              Board does not conduct public hearings      Recommendation:  Approval 8-0


Summary of Board comments: Members fully supported the elimination of public hearings and agreed that this would provide clarity to citizens regarding the Board’s role.  It was suggested that there may no longer be a need to televise meetings and that consideration should be given to moving the meeting to a more informal setting such as a large conference room and combining regular meetings and work sessions when needed.  


Proposed Changes to Town Code of Ordinances


1.              ETJ member considers only ETJ rezoning cases         Recommendation:  Denial 8-0


Summary of Board comments: There was agreement that properties within the ETJ and in unincorporated areas outside of the ETJ are affected by development of nearby properties in the corporate limits, and that the viewpoint of ETJ residents should be represented in all rezoning cases.  Board members stated that discussion and vote by the ETJ member on non-ETJ items contributes to having a broad and informed discussion on consistency.  One member suggested an alternative:  allowing the ETJ member to consider any rezoning in the ETJ or within a prescribed radius of the ETJ.


2.              Number of Board members changed from 9 to 7   Recommendation:  No decision 4-4


Summary of Board comments:  Some Board members believed that the current number of members had worked well and provided for a range of viewpoints and discussion that contributed to making a determination on Plan consistency.  There was concern that if the ETJ member only voted on ETJ rezonings, then the discussion on most rezonings would be by only 6 members instead of the current 9.  Other members felt that 7 would be adequate if so desired by council, and that this could allow more time for board members to express their views in greater depth.



Changes Since the Public Hearing


1.      Require that proposed revisions to zoning conditions, a PDD Master Plan, or MXD Preliminary Development Plan be submitted within fifteen (15) business days of the meeting at which the case is scheduled for consideration to allow sufficient time for the changes to be included in the staff report.  This will standardize time frames for submission of these changes to staff. 


2.      Clarify that a second public hearing would be required before the Town Council for a rezoning or Plan Amendment whenever new items or substantive amendments have been made to the item since the initial public hearing.




The LDO Amendments are proposed to become effective immediately.   Therefore, beginning in August, Council may start having second public hearings on rezoning cases in which the applicant has made substantive changes since the initial public hearing.  Council may take final action on the same night as the second public hearing, or may defer action if desired.  However, State law permits applicants with a case in the pipeline to choose whether to follow new development ordinances or development ordinances existing at the time their application was filed.    That means there may still be some public hearings before the Planning and Zoning Board, if an applicant desires a hearing, until all current cases have been resolved.  All new cases filed after July 26 would follow the new ordinance, such that public hearings would only be before Council.   


The Code Amendments are proposed to become effective October 1, 2018.  If adopted as currently written, the ETJ member would cease hearing cases outside of the ETJ beginning that month and the Board would also be reduced to 7 members beginning that month.  One Board member has already announced his resignation, effective September 30, 2018, and three additional Board members have terms expiring on that date.  The Town Clerk’s office has been recruiting for all boards and commissions for the board year beginning October 1, and has alerted applicants that changes may be made to the Planning and Zoning Board.  Council will fill the open seats on the Board during the board appointment process.  




Public Hearing

June 14, 2018

Planning and Zoning Board Work Session

June 18, 2018

Planning and Zoning Board Meeting

June 25, 2018

Final Action by Town Council

July 26, 2018


LDO Amendments: July 26, 2018

Town Code Amendments:  October 1, 2018



The proposed changes seek to adjust the membership and responsibilities of the Planning and Zoning Board while clarifying its role, as well as those of the Town Council and Town staff, in procedural matters. No net fiscal impact is expected to result from these changes.



Next Steps


Appropriate staff will be briefed on the amendments, and the Code and LDO will be updated online and in print by American Legal.