Key Innovations of the Unified Development Ordinance (UDO)

Raleigh's New Development Code proposes to move nearly all routine development approvals to a by-right administrative process. This is in contrast to current practice, in which otherwise approvable site plans for commercial and mixed-use developments go through a preliminary approval process by the Planning Commission or City Council. This major change is being implemented both as a result of recent changes in State law, and the desire to provide greater certainty and lower approval costs to developers and their neighbors through a greater reliance of objective standards.

Senate Bill 44
In 2009, the North Carolina General Assembly adopted Senate Bill 44, which built on earlier case law to clarify that land use decisions can take only one of three forms: (1) legislative decisions, such as a rezoning, where the City Council has broad discretion to make law; (2) administrative decisions, where staff apply objective standards to determine compliance with code; and (3) quasi-judicial decisions, where applicants must demonstrate compliance with one or more generally stated standards in a formal evidentiary hearing before an elected or appointed body. Prior to 2009, Raleigh's preliminary site plan process was legislative in nature but involved findings regarding generally stated standards. When the City passed TC-1-10 in response to Senate Bill 44, preliminary site plans could be approved by the Planning Commission with the right of a quasi-judicial hearing in front of the City Council through appeal. However, this solution was always intended as temporary.

Evidentiary Hearings
The conduct of quasi-judicial hearings is intended to ensure that decisions are made on the basis of sound evidence and expert testimony, rather than political considerations. The basic requirements of a quasi-judicial hearing are as follows:

• The applicant has the burden of producing evidence and testimony to support each and every required finding, regardless of whether the staff, public or deciding body has any issues with the proposal.
• No lobbying of decision-makers is allowed.
• All testimony delivered at the hearing is sworn, and subject to cross examination by the board and members of the public.
• Evidence and testimony must be substantial, material and competent. Members of the public are barred from offering lay testimony on matters such as traffic and property value impacts, although they can cross examine the applicant's witnesses on these topics, and organized opposition groups may hire their own experts to testify.
• Final decisions of the board must be supported by findings of fact, based on the evidence provided; and conclusions of law, that the required standards have been met.

While these requirements make for a fair and evidence-based process, they also result in a process which is cumbersome, expensive for applicants, and unfriendly to the public. It is therefore good practice to only resort to quasi-judicial hearings when the desired out comes cannot be obtained through the application of objective standards in the code.

New Approval Procedures
The UDO eliminates the existing preliminary site plan process in favor of administrative approvals for developments which meet the code's standards. All such administrative decisions can be appealed for cause to City Council, Board of Adjustment, or the City Manager. The UDO also provides for a new design-based Administrative Alternate, described below.
Quasi-judicial hearings, which are currently conducted by both the City Council and the Board of Adjustment, will be reserved for the Board of Adjustment in almost all cases. The Board, in addition to hearing requests for hardship-based zoning variances, will also be the sole body hearing cases for Special Use Permits. Applications for special uses must demonstrate to the Board that they meet a special set of discretionary standards. Certain types of zoning appeals will also be heard by the Board.
The rezoning process has been altered so that rezoning petitions can be received and processed by the Department of City Planning at any time. Following staff review, the Planning Commission conducts public meetings on the rezoning case. Zoning conditions can be refined during this Planning Commission review, if the petition is for a conditional use district. Eventually, the Planning Commission recommends either approval or denial and sends the case to the City Council for a public hearing. The Council then makes the final decision whether to approve the case.

Flexibility for Good Design
The UDO creates a new type of administrative decision, the Administrative Alternate. Its purpose is to encourage and reward design creativity. It permits the deviation from a design-related code standard, not for reasons of hardship, but because the applicant believes she has a better idea that meets the intent of the standard. While the decision to grant an alternate is made by the Planning Director, the Appearance Commission plays an important role by conducting a public meeting on the alternate and providing advice and input to the Planning Director. The decision to grant an alternate does not need to be quasi-judicial as the applicant had a by-right path to approval but decided to propose something different. However, an applicant who feels that the Planning Director erred in denying an alternate can appeal to the Board of Adjustment, at which time the decision is quasi-judicial.

Summary
The revisions to the approval processes serve to create more streamlined, fair and predictable outcomes. Applicants who design projects meeting the code standards obtain approvals from staff. Quasi-judicial hearings are reserved for the Board of Adjustment as the body with the most experience with such proceedings. Deviations from the code can be permitted on the basis of good design (administrative alternates) or hardships (traditional zoning variances). The new zoning process permits a faster path to approval for simple and consistent cases, while allowing ample time to discuss more complex cases which may be inconsistent with the Comprehensive Plan.

Raleigh is fortunate to have a collection of neighborhoods exemplifying the era in which they were platted and built, including the 19th Century Oakwood neighborhood, model pre-war subdivisions such as Boylan Heights and Glenwood-Brooklyn, and postwar developments such as Longview Acres and Brentwood. Evolving household tastes and needs coupled with an aging building stock require that these neighborhoods receive periodic reinvestment in order to stay healthy. At the same time, such reinvestment should respect the essential character that made the neighborhood desirable in the first place.

The UDO contains a variety of tools that encourage beneficial reinvestment in Raleigh's unique neighborhoods while protecting neighborhood character. In addition to special character protection overlays, such as Neighborhood Conservation and Historic overlay districts, the UDO provides two key tools for ensuring that new buildings and additions in established neighborhoods mitigate adverse impacts and maintain a relationship to the scale of adjacent development. These two tools are the Residential Infill Compatibility standards and the Neighborhood Transition standards for mixed-use development adjoining a residential area.

Residential Infill Compatibility
The Residential Infill Compatibility Standards apply to development on small sites zoned R-4, R-6 or R-10 when at least half of the abutting property is developed for one- or two-family dwellings. This is in contrast to current code provisions, which only regulate infill subdivisions, and do not apply to development that does not involve a change to the underlying lot pattern.

The standards regulate setback, building height and envelope, and the length of sidewall, and have been crafted to permit larger dwellings and additions to be constructed without imposing adverse impacts on neighboring homes. The required setback is contextual, and falls within the range of adjacent setbacks on the block face. Building height at the minimum required setback is limited to 15 feet or the average height of the abutting structures. The height of the structure may increase towards the interior of the lot. Dormers and side-gabled roofs may exceed the maximum height at the setback line, providing for design flexibility and a usable second story, even on constrained lots. Very long sidewalls must be articulated, to avoid long wall expanses adjacent to existing yards.

The standards are administratively applied, providing a by-right approval process for residential infill projects. Relief from the specific standards can be obtained through the Administrative Alternate process, which includes the review and recommendation of the Appearance Commission to ensure that the alternative design fulfills the intent of the standards.

Neighborhood Transitions
In many older parts of the City-such as Hillsborough Street, Peace Street and Five Points-mixed-use frontage lots back up to one- and two-family residential lots. The Neighborhood Transition standards ensure that when new buildings go up in these mixed-use areas, appropriate height transitions and buffers are provided. The standards apply whenever a mixed-use district abuts an area zoned R-1, R-2, R-4 or R-6, or is zoned R-10 and developed for one- or two-family homes.

The standards recognize that some mixed-use sites have ample depth while others are shallow and constrained. In all cases except lots less than 50 feet in depth, no significant development can occur within 50 feet of the rear property line. Where sites are shallow and there is no room for additional landscaped buffers, a fence or wall must be provided. Where depth is not an issue, developers have options: they can provide a wall, or can utilize a landscaped buffer, with the intensity of planting tied to the depth of the buffer, up to 50 feet.

Starting at 50 feet from the real property line, uses permitted in the underlying zoning district can be developed, subject to additional controls on height. Regardless of the maximum permitted height, buildings can only rise 40 feet at the 50-foot line, and from there must step or set back within a 45-degree plane up to the maximum height. As an example, if the zoning permitted five stories and 75 feet of height, the maximum height could only be achieved 75 feet from the rear property line. In this way, the Neighborhood Transition standards ensure that tall commercial and mixed-use buildings cannot loom over their residential neighbors.

Transitions were the subject of intense public interest and scrutiny during the adoption of Raleigh's 2030 Comprehensive Plan. Because of the importance of ensuring adequate transitions, administrative alternates to the Neighborhood Transition standards are not allowed, and therefore relief from the standards requires a showing of hardship to the Board of Adjustment under a variance proceeding.

For more details on the regulations, please reference the UDO document 2.2.7 (Residential Infill) and 3.5 (Neighborhood Transitions).

Backyard Cottages and Accessory Dwellings

In an effort to offer additional housing options in the City of Raleigh, the proposed Unified Development Ordinance incorporates the concepts of Backyard Cottages and Accessory Dwellings.

These two alternative housing options are intended to create new housing units while respecting the look and scale of single family dwellings. They are also intended to increase the housing stock of existing neighborhoods while using existing infrastructure, respecting building scale and placement of structures and allow the sharing of common space on a lot such as yards and driveways.

In addition, these types of units provide a means for residents, such as single parents and seniors to remain in their homes and neighborhoods, as well as offering affordability, accessibility and options for elder family care.

This development pattern is in response to the policies and goals in the City's Comprehensive Plan and the public comments received during the draft review of the UDO during the summer of 2011.

In addition to other standards, backyard cottages are detached structures located behind the primary residence, while accessory dwellings are attached to the primary residence. In either case, only one option may be utilized. The following standards apply to both backyard cottages and accessory dwellings:

• Lot specifications
• Building types
• Building size
• Building placement
• Building height
• Parking
• Occupancy

For more details on the regulations, please reference the UDO document 2-24 and 2-25 sections 2.4.2 and 2.4.3.