HomeMy WebLinkAboutAgenda - 04-21-2009 - 5bORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: April 21, 2009
Action Agenda
Item No. ~~ - b
SUBJECT: Subdivision Regulations, Zoning Ordinance, and Atlas Amendments to Create
a New Zoning Ordinance Overlay District and Incorporate Flood Protection
Ctanriarric
DEPARTMENT: Orange County Planning PUBLIC HEARING: (Y/N) Yes
ATTACHMENTS: (Under Separate Cover)
1. Resolution Amending the County Flood
Damage Prevention Ordinance,
Orange. County Zoning Ordinance,
Orange County Subdivision
Regulations, and the Orange County
Zoning Atlas
2. Maps Depicting Proposed FIRM and
Zoning Atlas Amendments
3. February 23, 2009 Quarterly Public
Hearing Written Comment
4. February 23, 2009 QPH Minutes
5. Planning Board Minutes -March 4,
2009 Meeting
6. Staff Memo, Dated March 16, 2009
Relating to Possible Future
Amendments
7. County Attorney Letter, Dated April 13,
2009 Regarding Proposed
Amendments
INFORMATION CONTACT:
Glenn Bowles, Planner II 245-2577
Craig Benedict, Director 245-2592
PURPOSE: To receive recommendations from the Planning Board on proposed amendments
to the:
1. Orange County Flood Damage Prevention Ordinance,
2. Subdivision Regulations,
3. Zoning Ordinance, and
4. Zoning Atlas
to incorporate existing flood protection standards contained within the Flood Damage
Prevention Ordinance (FDPO) into the Zoning and Subdivision regulations and to create a new
Zoning Ordinance Overlay District entitled Special Flood Hazard Area Overlay District (SFHA),
incorporating Flood Insurance Rate Map (FIRM) data onto the Zoning Atlas; and to take action
on the Resolution to adopt said amendments.
BACKGROUND:
On the advice of the County Attorney's office, and based on correspondence between the
State Attorney Generals office and the North Carolina Emergency Management Division, in the
fall of 2008 staff began to take steps to incorporate the various existing flood protection
standards within the Zoning and Subdivision regulations.
As presented at the February 23, 2009 Quarterly Public Hearing, these amendments consist of
five (5) different components:
1. Incorporating the amended FDPO text into the Zoning Ordinance;
2. Creating a new Zoning Overlay District entitled Special Flood Hazard Areas (SERA);
3. Affirming the various amendments to the FIRM (future SFHA Overlay District) that the
Federal Emergency Management Agency (FEMA) approved on February 2, 2007; and
4. Correcting definitions and references in the Subdivision Regulations to reflect FDPO
terminology.
The changes proposed do not amend the adopted February 2, 2007 flood insurance rate maps
(FIRMs), except for the FEMA-approved revisions since then. Keeping the flood maps
updated and current is an important maintenance and public information task. Orange County
is interested in the latest Summary of Map Action (SOMA) only because the FEMA FIRM panel
letter suffix has changed and this affects that portion of the FIRM panel within the County's
zoning jurisdiction.
The changes proposed in the attached resolution correct the deficiencies in the FDPO noted
by Kenneth W. Ashe, P.E., CFM, in his November 7, 2008 letter to Commissioner Barry
Jacobs.
Summary of the February 23, 2009 Quarterly Public Hearing:
As previously indicated, this item was heard at the February 23, 2009 Quarterly Public
Hearing. After staff presented a summary of the proposed amendments, BOCC members
asked three questions.
• How can the County not exempt bona fide agricultural operations from the flood
damage prevention regulations when they are part of the Zoning Ordinance?
• How will the non-conformity issue affect existing structures in the floodplain?
• Would a more clearly worded notice wording have been possible?
Several citizens from the Lake Orange neighborhood spoke and made the following
comments:
Moving the Flood Damage Prevention Ordinance into the Zoning Ordinance would not
be in the property owners' best interest.
A task force of interested parties should be appointed for the purpose of resolving
several long-standing issues that could include docks on the lake, stream buffers and
floodplains.
• The County should honor the contractual rights of owners on Lake Orange.
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• Proposed text amendments were not available to the public.
• There is a concern about the accuracy of base flood elevations supporting the floodplain
contours.
Other citizen comments included:
• Concern that the 2007 revised map included almost half of the property owner's six-acre
parcel.
• Problems with a culvert because of upstream drainage.
• Concerns with an elevation certificate with which the County assisted.
• Experience with the County elevation certificate surveying and the Letter of Map
Amendment (COMA) and the need for ground truthing with the maps.
• Experiences with an insurance carrier and the need to notify persons affected by
changes in flood maps and the accuracy of such data.
• General discussions regarding how the proposed change would affect an individual's
ability to improve one's property.
Staff response to these comments and concerns:
In responding to these various questions/comments/concerns, staff offers the following:
BOCC QUESTIONS:
• With this abstract is a letter from the Attorney's office addressing the bona fide farm
issue (please refer to Attachment Seven (7)).
• The existing FDPO contained various standards relating to the continued use,
maintenance, and rehabilitation of nonconforming structures located within identified
flood plains. These regulations are being incorporated within the Zoning Ordinance and
will continue to be enforced.
• Staff understands there may have been confusion created by the notice and will re-
evaluate our process to ensure such confusion does not occur in the future.
LAKE ORANGE RESIDENTS:
• The proposed amendment(s) are designed to address those changes deemed
necessary to guarantee the continued availability of flood insurance to County residents.
• The issues raised by representatives of Lake Orange residents during the Quarterly
Public Hearing include ownership issues (i.e. who owns what) and recreational access
to the Lake.
The proposed re-location of flood regulations/development standards within the Zoning
and/or Subdivision regulations, or the creation of the aforementioned SFHA overlay
district, legally impacts those living near Lake Orange in the same manner as other
property owners whose property will be located within the proposed SFHA overlay
district.
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• `Contractual rights' of Orange County property owners, including those around Lake
Orange, are not affected differently by this proposal than the existing FDPO.
• The accuracy of the mapped floodplains is always in question. FEMA recognizes this
and has developed a protocol to address this issue through the submittal, review, and
approval of a Letter of Map Amendment (COMA).
Five property owners have taken advantage of this process in Orange County since
February 2007. Floodplain elevations were plotted out using the best available
technology for watershed-wide topographic determinations - LIDAR. This is the same
technology used by NASA and is in use throughout the world today.
The topographic coverages found in the County's GIS are generally accurate, but not to
an engineering standard. The County GIS topographic maps were not used to compute
the base flood elevations. The flood elevations are much more accurate but are not a
substitute for on-ground three-dimensional surveying to determine precise topographic
contours of the floodplain.
OTHER COMMENTS: Staff will continue to work with local property owners to address
concerns they may have relating to the interpretation and enforcement of flood regulations on
their property. For the most part, staff has been proactive in identifying various issues and
working with property owners to achieve a desirable outcome.
PLANNING BOARD REVIEW/RECOMMENDATION: The Planning Board reviewed this item
at its March 4, 2009 regular meeting. Discussion at the meeting focused on the following:
1. The County's ability to enforce flood regulations on bona fide farm uses given the
limitation in the County's zoning authority.
Staff Comment: Staff reviewed the various provisions in the proposed amendments to
address this concern.
2. Board members wanted more information on the process necessary in applying for a
COMA,
3. Board members asked if the proposed amendments might impact the ability for
development within existing Economic Development areas and/or nodes.
Staff Comment: These amendments do not impose any greater standard limiting the
overall development permitted on a parcel of property. As a result those properties
containing identified flood areas will still be allowed to develop consistent with existing
flood regulations.
4. Board members expressed concern over the expense in applying for a COMA.
After deliberating on the proposal, the Board voted eight (8) to two (2) to recommend approval
of staffs proposal regarding:
a. Incorporating the amended FDPO text into the Zoning Ordinance text;
b. Creating a new Zoning Overlay District -Special Flood Hazard Areas (SFHA);
c. Affirming the various amendments to the FIRM (future SFHA Overlay District)
that FEMA approved on February 2, 2007; and
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d. Correcting definitions and references in the Subdivision Regulations to reflect
FDPO terminology.
Further the Planning Board moved that:
1. Staff be requested to review whether additional modifications may be warranted in
Section 6.32.6 and Section 6.32.7 of the Orange County Zoning Ordinance to provide
waivers of requirements for extensive engineering studies in the event of the need to
introduce fill that has minimal impact on other properties in the area (Please refer to
Attachment Six (6) for staff's memo on this matter); and
2. The Planning Board invites the Board of County Commissioners to request a review of
provisions related to bona fide farms by the State Attorney General's office. (Please
refer to Attachment Seven (7) for the County Attorney's response)
FINANCIAL IMPACT: While there will be no financial impacts associated with the
implementation of amendments to the Subdivision Regulations, Zoning Ordinance, and Zoning
Atlas, Section 20.6.3 of the Zoning Ordinance requires all properties affected by a Zoning Atlas
amendment and all properties within 500 feet of an affected property be sent notifications.
Over $10,000 was spent to mail out 6,531 postcards and 1,822 certified letters. This cost
includes $640 in materials (labels, paper, postcards and envelopes), $7,448 for postage, and
$2,100 in staff time.
However, not making the revisions to the Flood Damage Prevention Ordinance may put the
County at risk of losing its FEMA accreditation.
RECOMMENDATION: The Administration recommends the Board:
1. Receive the Planning Board recommendation,
2. Close the public hearing, and
3. Adopt the resolution (Attachment One (1)) that amends the FDPO, Zoning Ordinance
text, Zoning Atlas, and Subdivision Regulations by:
a. Incorporating the amended FDPO text into the Zoning Ordinance text;
b. Creating a new Zoning Overlay District -Special Flood Hazard Areas (SERA) for
inclusion on the Zoning Atlas;
c. Affirming the various amendments to the FIRM (future SFHA Overlay District)
that FEMA approved on February 2, 2007;
d. Correcting definitions and references in the Subdivision Regulations to reflect
FDPO terminology; and
e. Repealing the FDPO.
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Attachment One (1): Resolution
RESOLUTION
A RESOLUTION AMENDING THE COUNTY
FLOOD DAMAGE PREVENTION ORDINANCE, ORANGE COUNTY
ZONING ORDINANCE, ORANGE COUNTY SUBDIVISION
ORDINANCE, AND OFFICIAL ORANGE COUNTY ZONING ATLAS
Apri121, 2009
WHEREAS on July 15, 2975 Orange County became a participant in the Emergency Phase of the
National Flood Insurance Program thus making flood insurance available to property owners through the
National Flood Insurance Program (NFIP), and
WHEREAS on March 16, 1981 the Federal Emergency Management Agency (FEMA) converted
the County into the regulaz phase of the NFIP bringing full benefits to the citizens of the County, and
WHEREAS there are currently sixty-two (62) flood insurance policies enforced within the
unincorporated portions of Orange County, and
WHEREAS the County is required to maintain an updated Flood Damage Prevention Ordinance
(FDPO) in order to remain eligible for the NFIP, and
WHEREAS the County desires to repeal its existing FDPO and adopt the following regulations in
order. to be in full compliance with Federal and State requirements for flood damage prevention
programs, and
WHEREAS pursuant to the authority granted to counties by Article 6 of Chapter 153A of the North
Carolina General Statutes (NCGS), specifically NCGS 153A-121, the County hereby enacts the
following flood damage regulations to protect the health, safety, and welfaze of the citizens of Orange
County, and
WHEREAS pursuant to the authority granted to counties by Parts 2, 3 and 4 of Article 18 of
Chapter 153A of the NCGS, specifically including NCGS 153A-340, NCGS 153A-330 and NCGS
153A-352, the County hereby enacts the following flood damage regulations for the purpose of
protecting the health, safety, and general welfare of the citizens of Orange County, and
WHEREAS pursuant to the authority granted to counties by Pazt 6, Article 21 of Chapter 143 of the
NCGS, specifically including NCGS 143-215.54, NCGS 143-215.56, and NCGS 143-215.61 the County
hereby enacts the following flood damage regulations to protect the health, safety, and general welfare
of the citizens of Orange County, and
WHEREAS pursuant to the authority granted to counties by Part 3, Article 4 of Chapter 153A of
the NCGS, specifically NCGS 153A-47, a county may in an ordinance adopt by reference to a published
technical code or a standard or regulation promulgated by a public agency,
THEREFORE BE IT RESOLVED that the Board of Commissioners of the County of Orange,
North Carolina, hereby repeals its existing FDPO in its entirety and amends (indicated by ~
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text for proposed deletions and underlined text for proposed additions) the Orange County Zoning
Ordinance, the Orange County Subdivision regulations, and official Orange County Zoning Atlas as
follows:
PART I. That Article 1 Section 1.5 Farm Exemption of the Zoning Ordinance be amended as
follows:
Section 1.5 Farm Exemption
The provisions of this ordinance which are adopted under Chapter 153A, Article 18, Part 3
do not apply to property used for bona fide farm~umoses, as defined within North Carolina
General Statutes, except as follows:
1. Any non-farm use of farm property3
2 Compliance with any and all regulations required to be imposed by the Federal
Emergency Management Agenck (FEMA) through the National Flood Insurance
Program includin~y and all applicable Flood Insurance Rate Maps (FIRM), and
3 Compliance with the Orange County Special Flood Hazard Area Overlay Zoning
District as detailed within this Ordinance.
PART II. That Article 1 be amended to include a new Section, specifically Section 1.7, entitled
Flood Damage Prevention Authority to read as follows:
1. The Legislature of the State of North Carolina has in:
a. Part 6, Article 21 of Chapter 143;
b. Parts 2 3 and 4 of Article 18 of Chapter 153A: and
c. Part 121. Article 6 of Chapter 153A of the North Cazolina General Statutes
delegated authorit~to county governments to adopt regulations to promote the
public health safety and general welfare of its citizenry.
2. Flood Insurance Rate Mates (FIRM) specifically FIRM Map .Index 37135
CINDOC with an effective date of May 16, 2008 as well as all FIRM panels
contained therein developed by FEMA under a Cooperating Technical State
agreement with the State of North Cazolina and the Flood Insurance Study are
hereby established as shown on the Official Zoning Atlas as the Special Flood
Hazazd Area Overlay Zoning District, and
3 The Board of Adjustment as established b~~e County shall hear and decide
requests for variances from the requirements of the Orange County Special Flood
Hazard Area Overla~g District
PART III. That Article 2 The Board of County Commissioners and its Administrative
Mechanisms, specifically Section 2.3.6 Application of the Variance Power, of the
Zoning Ordinance be amended as follows:
Section 2 3 6 2 In addition to the standards contained within Section 2.3.6.1, any request
for a variance from the Special Flood Hazard Area Overlay Zoning District shall abide by
the following additional criteria:
a. Variances may be issued for the r~air or rehabilitation of historic structures
upon the determination that the proQosed repair or rehabilitation will not
preclude the structure's continued designation as a historic structure and the
variance is the minimum necessar~to preserve the historic character and
design of the structure.
b. In passing_upon such variances the appeal board shall consider all technical
evaluations all relevant factors all standards specified in other sections of this
Ordinance, and:
i. The danger that materials ma~,be swept onto other lands to the iniurv
of others;
ii. The danger to life and propertXdue to flooding or erosion damage;
iii. The susc~tibili~ of the proposed facility and its contents to flood
damage and the effect of such damage on the individual owner;
iv. The importance of the services,provided by the proposed facility to the
Orange County:
v. The necessity to the facility of a waterfront location, where applicable;
vi. The availability of alternative locations not subject to flooding or
erosion damage, for the proposed use;
vii. The compatibility of the proposed use with existing and anticipated
development:
viii. The relationship of the proposed use to the Orange County
Comprehensive Plan and floodplain mana eg ment program for that
area;
ix. The safety of access to the property in times of flood for ordinary and
emergency vehicles;
x. The expected heights velocity, duration, rate of rise, and sediment
transport of the flood waters and the effects of wave action, if
applicable, expected at the site;
xi. The costs of providing~,governmental services during and after flood
conditions including maintenance and repair of public utilities and
facilities such as sewer,~as, electrical and water systems, and streets
and brid eg s; and
xii. The request for a variance is not after-the-fact or for a situation of
one's own making.
c. A written report addressing each of the above factors shall be submitted with
the application for a variance.
d. Upon consideration of the factors listed above and the purposes of this
Ordinance the appeal board may attach such reasonable conditions to the
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rg anting of variances as it deems necessary to further the purposes of this
Ordinance.
e. Variances shall not be issued within an~signated floodway or non-
encroachment azea if any increase in flood levels during the base flood
discharge would result.
£ Conditions for Variances:
i. Variances may not be issued when the variance will make the structure in
violation of other Federal, State, or local laws, regulations, or ordinances.
ii. Variances shall only be issued upon a determination that the variance is
the minimum necessary, considering the flood hazazd, to afford relief.
iii. Variances shall only be issued upon:
a. A showing of good and sufficient cause;
b. A determination that failure to ,grant the variance would result in
exceptional hazdshi~,
c. A determination that the rg_anting of a variance will not result in
increased flood heights, additional threats to public safety, or
extraordinary public expense, create nuisance, cause fraud on or
victimization of the public, or conflict with existing local laws or
ordinances; and,
d. That the circumstances on the subject property are unique to the
subject property and not to properties in eg neral
g. Any applicant to whom a variance is Qranted shall be given written notice
specif~ne the difference between the BFE and the elevation to which the
structure is to be built and a written statement that the cost of flood insurance
will be commensurate with the increased risk resulting from the reduced
reference level elevation. Such notification shall be maintained with a record
of all variance actions.
h. The Floodplain Administrator shall maintain the records of all apueal actions
and report -any variances to the FEMA and the State of North Carolina u~
re uest.
2.3.6.33 All of these findings of fact shall be made in the indicated order by the
Boazd of Adjustment, which is not empowered to grant a variance without
an affirmative finding of fact shall be supported by substantial evidence in
the record of proceedings before the Boazd.
2.3.6.4 The Board may impose reasonable conditions upon the granting of any
variance to insure that the public health, safety, and general welfare shall
be protected and substantial justice done.
2.3.6.45 Nothing in this section shall be construed to authorize the Boazd to permit a
use in a district where that use is neither a Permitted Use nor a Special Use.
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PART IV. That Article 3 Establishment of Zoning District and Atlas, Section 3.10 Interpretation
of District Boundaries of the Zoning Ordinance be amended as follows:
Section 3.10 Interpretation of District Boundaries
When there is any uncertainty as to the intended location of any zoning district
boundary on the Zoning Atlas, the Zoning Officer shall make an interpretation of
said Atlas upon request of any person. Any person aggrieved by any such
interpretation may appeal such interpretation to the Boazd of Adjustment. The
Zoning Officer and the Boazd of Adjustment, in interpreting the Zoning Atlas or
deciding any appeal, shall apply the following standazds:
Boundaries indicated as approximately following the centerlines of streets;
highways or alleys shall be construed as following such centerlines;
Boundaries indicated as approximately following lot lines shall be
construed as following such lot lines;
Boundaries indicated as approximately following City Limits shall be
construed as following such City Limits;
Boundaries indicated as following railroad lines shall be construed to be
the centerline of the main track;
Se Boundaries indicated as following shorelines shall be construed to follow
such shorelines; in the event of change in the shoreline, the boundary shall
be construed as moving with the actual shorelines; boundaries indicates as
approximately following the centerlines of streams, rivers, canals, lakes or
other bodies of water shall be construed as following such centerlines;
boundaries shown as approximately following designated flood hazazd
azea limits shall be construed as following such linuts.
G~€ Boundaries indicated as parallel to or extensions of features indicated in
Subsections A through E above shall be so construed. Distances not
specifically indicated on the Zoning Atlas shall be determined by
reference to the scale of the Atlas.
7.~ Where physical or cultural features existing on the ground aze at variance
with those shown on the Zoning Atlas, or in other circumstances not
covered by Subsections A through F above, the Board of Adjustment shall
interpret the district boundaries.
b) In addition, the following_guidelines shall be required in determining the boundaries
of the Special Flood Hazazd Area Overlay District:
1. The boundaries of the Special Flood Hazard Area Overlay District shall be
determined utilizing the Flood Insurance Stud,
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2. In areas between official cross sections. the Special Flood Hazard Overlay
District shall be determined by scaling the distances on Flood Insurance
Study maps;
3. The regulatory flood protection elevation must in all cases be the
controlling factor in locating the outer limits of the Special Flood Hazard
Area Overlay District; and
PART V. That Article 4 Establishment of Permitted Use Table and Schedule Section 4.1
Establishment of Use Regulations of the Zoning Ordinance be amended by revising
the existing numbering scheme and adding a new number thirteen (13) to read as
follows:
12. Borrow pits (including reclamation by land filling) associated within a State or Federal
highway project (See Article 6.16.16).
13. Uses requiring special permits must meet certain conditions specified in this ordinance.
Only after the existence of these specified conditions has been determined by the Board
of Adjustment, or the Board of Commissioners, as appropriate, will a special permit be
issued; otherwise such uses are prohibited uses.
14. Regulations governing the use of land and structures within a Planned Development
district are as established in Article 7.
15. Within all districts, subdivisions ....
16. All uses, as detailed within this Section and the Ordinance in its entirety shall comply
with the various standards and development limitations as outlined within the Special
Flood Hazard Area Overl,~ District.
PART VI. That Article 4 Establishment of Permitted Use Table and Schedule by creating a new
Section 4.2.34 entitled Special Flood Hazard Area Overlay District (SFHA) to read as
follows:
Sec. 4.2.34 Statement of purpose.
It is the pumose of this Ordinance to promote public health, safety and general welfare
and to minimize public and private losses due to flood conditions within flood prone
areas b~provisions desi ned to:
a. Restrict or prohibit uses, which are dangerous to health safety and property due to
water or erosion hazards, or which result in damaging increases in erosion, flood
heights or velocities:
b. Require that uses vulnerable to floods, including facilities, which serve such uses be
protected against flood damage at the time of initial construction•
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c. Control the alteration of natural floodplains, stream channels, and natural protective
barriers, which are involved in the accommodation of flood waters:
d. Control filling rg ailing, dredging, and all other development, which may increase
erosion or flood damage: and
e. Prevent or regulate the construction of flood barriers, which will unnaturally divert
floodwaters or which may increase flood hazazds to other lands.
Sec. 4.2.35 Obiectives.
The objectives of SFHA Overlay District aze to:
a. Protect human life, safety, and health;
b. Minimize expenditure of public money for costly flood control.projects•
c. Minimize the need for rescue and relief efforts associated with flooding and
eg n~y undertaken at the expense of the eneral up blic;
d. Minimize rn olonged business losses and interru tip ons;
e. Minimize damage to public facilities and utilities such as water and gas mains
electric, telephone, cable and other communication facilities, and sewer lines streets
and bridges located in flood-prone areas;
f. Help maintain a stable tax base b~providing for the sound use and development of
flood prone areas in such a manner as to minimize flood blight areas; and
~. Ensure that potential homebuyers are notified that ~roperty is in a Special Flood
Hazard Area.
Sec. 4.2.36 Statutory authorization.
Under the authority outline in Section 1.7, the Board of .Commissioners of Orange
County, North Carolina, does enact the SFT3A Overlay District regulations as detailed
herein.
Sec. 4.2.37 Findings of fact.
a) The flood prone azeas within the planning_jurisdiction of Orange County are subject
to periodic inundation, which results in loss of life ~roperty health and safety
hazazds, disruption of commerce and governmental services extraordinar,~! ublic
expenditures of flood protection and relief, and impairment of the tax base all of
which adversely affect the public health, safety, and general welfare
b) These flood losses are caused by the cumulative effect of obstructions in flood lp ains
causing increases in flood heights and velocities, and by the occupancy in flood
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prone areas by uses vulnerable to floods or hazards to other lands which are
inadequately elevated, flood proofed or otherwise unprotected from flood damages
Sec. 4.2.38. Applicability.
This regulation shall apply to all SFHAs within the planning_jurisdiction of Oran,
County and within the jurisdiction of any municipality within Orange County whose
governing body has duly authorized its application within its municipal or extraterritorial
jurisdictional, boundaries in accordance with North Carolina law
Sec. 4.2.39 Basis for establishing. the Special Flood Hazard Area Overlay District
~SFHA).
The SFHA are those identified by the FEMA or produced under the Co~erating
Technical State agreement between the State of North Carolina and FEMA or Flood
Insurance Study (FIS) and its accompan~g FIRMS for Orange County dated Februar,~2
2007, with incorporation of Letters of Map Amendments 07-04-6156R 08-04-2897A
08-04-2898A, 08-04-2899A, and 08-04-2900A Letters of Map Revision 06-04-B022P
06-04-C141P, 07-04-6156R, and 08-04-1666P and Summary of Map Amendment #115-
CWG (C) dated May 16 2008 which with accompan~g supporting data including
Letters of Map Amendment or Revision and Summary of Map Amendments are adopted
by reference and declared to be a part of this Ordinance. The SFHA also include those
defined through standard en ineering analysis for private developments or by
governmental agencies, but not incorporated into the FIRM This includes but is not
limited to. detailed flood data:
1. Detailed flood data generated as a requirement of Section 21 11 (11/12) of this
Ordinance;
2. Preliminary FIRMS where more stringent than the effective FIRM• or
3. Post-disaster Flood Recovery Maps, if available.
Sec. 4.2.40 Compliance
No structure or land shall hereafter be located extended converted altered or
developed, improved, or maintained in any way without full compliance with the terms of
this Ordinance and other applicable regulations.
PART VII. That Article 6 Application of Dimensional Requirements by creating a new Section
6.32 entitled Special Flood Hazard Area Overlay District (SFHA) to read as follows:
Sec. 6.32.1 Additional Requirements for the Special Flood Hazard Areas (SFHAI
Overlay District.
In all SFHAs the following_provisions are re uq fired:
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1. All new construction and substantial improvements shall be anchored to prevent
flotation, collapse, or lateral movement of the structure.
2. All new construction and substantial improvements shall be constructed with
materials and utility equipment resistant to minimize flood damage.
3. All new construction or substantial improvements shall be constructed by
methods and practices that minimize flood damages.
4. Electrical, heating, ventilation, plumbing, air conditioning equipment, and other
service facilities shall be designed and/or located so as to prevent water from
entering or accumulating within the components during_ conditions of flooding;
These include but are not limited to HVAC equipment, water softener units,
bath/kitchen .fixtures, ductwork, electric meter panels boxes, utility/cable boxes.
appliances (washers, dryers, refrigerator, etc.), hot water heaters, and electric
outlets/switches.
5. All new and replacement water supply systems shall be designed to minimize or
eliminate infiltration of floodwaters into the s,, s
6. New and- replacement sanitary sewage systems shall be designed to minimize or
eliminate infiltration of floodwaters into the systems and discharges from the
systems into floodwaters.
7. On-site .waste disposal systems shall be located and constructed to avoid
i_pairment to them or contamination from them during flooding,
8. Any alteration, repair, reconstruction, or improvements to a structure, which
complies with the provisions of this Ordinance, shall meet the requirements of
"new construction" as contained in this Ordinance.
9. New solid waste disposal facilities. hazardous waste management facilities.
salvage yards, and chemical storage facilities shall not be permitted in SFHAs.
10. A structure or tank for chemical or fuel storage incidental to an allowed use or to
the operation of a water treatment plant or wastewater treatment facilit,~ay be
located in a SFHA only if the structure. or tank is either elevated or flood proofed
to at least the re ug latory flood protection elevation and certified according to
Section 14.6(3) of this Ordinance.
11. Storage of the following chemical compounds shall be prohibited within SFHAs:
a) Acetone,
b) Ammonia,
c) Benzene,
d) Calcium carbide
e) Cazbon disulfide,
fl Celluloid,
g) Chlorine,
h) Hydrochloric acid
i) Prussic acid,
Magnesium,
k~ Nitric acid,
1~ Oxides of nitrogen,
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m) Phosphorus,
n) Potassium,
o) Sodium,
p) Sulfur,
~ Acet ly ene
r) Gasoline and any
petroleum product,
s) Lumber,
t) Charcoal or coal
dust
u) Polychlorinated
biphenyls (PCBs),
v) Polesnuclear
aromatic
~drocarbons
PAHs
w) Volatile organic
compounds IVOCs). or
x) AnYpriority pollutants
listed in Table 1 of
Section 307 of the Clean
Water Act (P.L. 92-5~
as amended
12 Hospitals nursing_homes foster care facilities sheriff's facilities, fire stations,
emergency operations centers and vehicle and equipment storage facilities shall
not be permitted in SFHAs.
13 Any inhabited structure within any SFHA shall have unobstructed, drv access
during a regulatory flood event.
14 New fill material within any SFHA shall be prohibited.
15. Public utilities and facilities shall be constructed to minimize flood damage
consistent with these and all other applicable County regulations.
16. In cases where development is otherwise allowed within identified SFHA's,
adequate drainage shall be provided.
Sec.6.32.2 Suecific standards.
In all SFHAs where BFE data has been Qrovided as set forth in Section 4.2.38 or 21.9, the
following~provisions are required:
1 Residential Construction New construction within the SFHA shall be prohibited.
Substantial improvement of anx existing- residential structure (including manufactured
homes) shall have the reference level including basement elevated no lower than two (2)
feet above the re ug latory flood protection elevation as defined in Article 22 of this
Ordinance Should solid foundation perimeter walls be used to elevate a structure, opening
sufficient to automatically facilitate equalization of hydrostatic flood forces on exterior
walls shall be provided pursuant to Section 14.6.2.
2. Non-Residential Construction. New construction within the SFHA shall be
prohibited Substantial improvement of any existing commercial, industrial, or other non-
residential structure shall have the reference level including basement, elevated no low- er
than the regulator flood protection elevation. Structures located in the AE Zone may be
flood proofed no lower than two feet above the level of the base flood elevation in lieu of
elevation provided that all areas of the structure below the required flood protection
16
elevation aze watertight with walls substantially impermeable to the passage of water,
usine structural components having the capability of resisting hydrostatic and
hydrodynamic loads and the effect of buoyancy. A North Cazolina licensed Professional
Engineer or Architect shall certify that the standards of this subsection aze satisfied. Such
certification shall be provided to the official as set forth in Section 14.6.
3. Manufactured Homes.
a. Replacement manufactured homes shall be elevated so that the reference level
of the manufactured home is no lower than the re ug latory flood protection
elevation.
b. Manufactured homes shall be securely anchored to an adequately anchored
foundation to resist flotation, collapse, or lateral movement accordin tg o the
State of North Cazolina Regulations for Manufactured/Mobile Homes, 1995
Edition, and any revision thereto adopted by the Commissioner of Insurance
pursuant to NCGS 1;143-143.15 or a certified engineered foundation.
-Additionally, when the elevation would be met by an elevation of the chassis
thirty-six (36) inches or less above the grade at the site, reinforced piers or other
foundation elements of at least equivalent strength shall support the chassis.
When the elevation of the chassis is above thirty-six (36) inches in hei h
en ing Bering, certification is rewired.
c. All foundation enclosures or skirting shall be according to Section 14.6.3.
d. An evacuation plan must be developed for evacuation of all residents of all
new, substantially improved or substantially damaged manufactured home
pazks or subdivisions located within flood prone areas. This plan shall be filed
with and approved by the Floodplain Administrator and the local Emergency
Management coordinator.
4. Public roads private roads and driveways Any_public road private road or
driveway crossing a SFHA shall require a `No-Impact' certification approval from
the North Carolina Emergency Management Division before any building_permits
for new construction can be issued, which derive their vehiculaz access from such
public roads, private roads, or driveways. If the "No-Rise" certification data
demonstrate that the Base Flood Elevation will rise more than one vertical foot,
then the developer shall file a Conditional Letter of Map Revision with the North
Carolina Division of Emergency Management for review and approval. Before any
building_permit can be issued for the improvements associated with the stream
crossing, an approve Letter of Map Revision shall be on file in the Planning and
Inspections Department.
S. Recreational Vehicles. Recreation vehicles placed on sites within a SFHA shall either:
a. Be on site for fewer than 180 consecutive days and be fully licensed and ready
for highway use (a recreational vehicle is ready for hi~hway use if it is on its
wheels or jacking system, is attached to the site only by quick disconnect type
utilities, and has no permanently attached additionsl; or
17
b Meet all the requirements for new construction, including anchoring and
elevation requirements of Section 14.6 and 6.32.1 and subsection (3) of this
section.
6 Elevated BuildinQS. New construction or substantial improvements of elevated
buildings that include fuller enclosed areas that aze below the re ug latory flood
protection elevation shall not be designed to be used for human habitation, but shall be
designated to be used onl~for parking of vehicles. building access, or limited storage
of maintenance equipment used in connection with the premises, be constructed
entirely of flood resistant materials below the re ug_ latorv flood protection level in the
AE zone and meet the following design criteria:
a. Measures for complvin~ with this.. requirement shall be designed to
automatically equalize hydrostatic flood forces on exterior walls by
allowing_for the entry and exit of floodwaters. To meet this requirement,.
the foundation must either be certified by a North Carolina licensed
Professional Engineer or Architect or meet the following minimum design
criteria:
i. Provide a minimum of two openings on different sides of each enclosed
area subject to flooding;
ii. The total net area of all openings must be at least one (1) square inch for
each squaze foot of enclosed area subject to flooding;
iii. If a building has more than one enclosed azea, each azea must have
openings on exterior walls to allow floodwaters_to directly enter and
exit;
iv. The bottom of all required openings shall be no higher than one (1) foot
above the adjacent rg ade;
v. Openings may be equipped with screens, louvers, or other opening
coverings or devices provided the~pernnit the automatic flow of
floodwaters in both directions: and
vi. Foundation enclosures made of flexible vinyl or sheet metal skirting are
not considered enclosures for re ug l~ry and flood insurance rating
purposes, and therefore, do not require openings. Masonry or wood
underpinning, regazdless of structural status, is considered an enclosure
and requires hydrostatic openings as outlined above to comply with this
Ordinance.
18
b. The enclosed areas shall be used solely for parking of vehicles, building
access, or storage. Access to the enclosed area shall be the minimum
necessary to allow for parking of vehicles (garage door) or limited storage
of maintenance equipment used in connection with the premises (standard
exterior door) or entry to the living area (stairway or elevator). The interior
portion of such enclosed area shall not be partitioned or finished into
separate rooms.
7. Temporary structures. Prior to the issuance of a floodplain development permit for a
temporary structure, the following requirements shall be met:
a. Applicants shall submit to the Floodplain Administrator a plan for the
removal of such structure(s) in the event of a hurricane or flash flood
warning notification. The plan shall include the following information:
i. A specified time period for which the temporary use will be permitted;
ii. The name, address, and phone number of the individual responsible for
the removal of the temporary structure;
iii. The time frame prior to the event at which a structure will be removed
(i.e., minimum of seventy-two (72) hours before landfall of a hurricane
or immediatelyupon flood warning notification);
iv. A copy of the contract or other suitable instrument with a trucking
company to ensure the availability of removal equipment when needed;
and
v. Designation, accompanied by documentation, of a location outside the
SFHA to which the temporary structure will be moved.
b. The above information shall be submitted in writing to the Floodplain
Administrator for review and written ap rp oval.
8. Accessory Structures. When accessory structures (sheds, detached garages, etc.) are
to be placed within a SFHA, the following criteria shall be met:
a. Accessory structures shall not be used for human habitation (including
work, sleepin , lg iving, cooking or restroom areas);
b. Accessory structures shall be designed to have low flood damage potential;
c. Accessory structures shall be constructed and placed on the buildin sip to so
as to offer the minimum resistance to the flow of floodwaters:
d. Accessory structures shall be firmly anchored according to Section 6.32.1;
e. All service facilities such as electrical and heating equipment, shall be
installed according to Section 6.32.1;
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f Openings to relieve hydrostatic pressure during a flood shall be provided
conforming to subsection 5 of this Section;
g An accessory structure with any dimension that is twelve feet or less in
height width or death does not require an elevation or flood proofing
certificate Elevation or flood proofing certifications are required for all
other accessorystructures according to Section 14.6(31: and
h The accessory structure shall meet all zoning and building code requirements.
9. Additions/Improvements.
a Additions and/or improvements to pre-FIRM structures whereas the
addition andlor improvements in combination with any interior
modifications to the existing structure are:
i Not a substantial improvement as defined and does not require a zoning
or buildingpermit the addition and/or improvements shall be designed
to minimize flood damages and shall not be any more non-conforming
than the existing structure.
ii Substantial improvement as defined requiring a zoning or building
permit both the existing structure and the addition and/or improvements
shall comply with the standards for new construction.
b Additions to post-FIlZM structures with no modifications to the existing
structure shall require only the addition to comply with the standards for
new construction.
c Additions and/or improvements to post-FIRM structures whereas the
addition and/or improvements in combination with any interior
modifications to the existing structure are:
i Not a substantial improvement the addition and/or
improvements only must comply with the standards for new
construction; and,
ii A substantial improvement both the existing structure and the
addition and/or improvements must comply with the standards
for new construction.
20
d Where a fire wall or independent perimeter load-bearing wall is provided
between the addition and the existing building, the addition(s) shall be
considered a separate building and only the addition need comply with the
standards for new construction.
Sec 6 32 3 Specific Standards for floodplains without established base flow
elevations (Approximate Zone A).
Within the SFHAs established in Section 4.2.38 are where no base flood data has been
provided the followingprovisions shall apply:
1 No encroachments including fill new construction substantial improvements or new
development shall be permitted within a distance of fifty (50) feet each side from top
of bank or five times the width of the stream whichever is greater, unless certification
with supporting technical data bYa North Carolina licensed Professional Engineer is
provided demonstrating that such encroachments shall not result in any increase in
flood levels during the occurrence of the base flood discharge.
2 If Section 6 32 2(1) is satisfied and BFE data is available from other sources, all new
construction and substantial improvements within such areas shall also comply with
all applicable provisions of this Ordinance and shall be elevated or flood proofed
according to elevations established according~to Section 4.2.38.
3 All subdivisions manufactured home darks and other development proposals located
within SFHAs shall provide BFE data Such BFE data shall be adopted by reference
per Section 4 2 39 to be utilized in implementing this Ordinance.
4 When BFE data are not available from a Federal, State, or other source, the reference
level including basement shall be elevated at least two (2) feet above the highest
adjacent rg ade.
Sec 6 32 4 Subdivisions, manufactured home parks, and maior developments.
All subdivisions manufactured home park and major development proposals located
within SFHAs shall:
1 Be consistent with the need to minimize flood damage.
2 Have~ublic utilities and facilities such as sewer gas, electric, cable, and water
systems located and constructed to minimize flood damage.
3 Have adequate drainage provided to reduce exposure to flood hazards
4 Have BFE data provided if development exceeds either of fifty (50) lots/units or five
(5) acres Such BFE data shall be adopted by reference per Section 4.2.39.
Sec 6 32 5 Standards for floodplains with BFE but without established floodwavs
or non-encroachment areas.
21
Along rivers and streams where BFE data area is provided, but neither floodwav not non-
encroachment areas are identified for a SFHA on the FIRM or in the FIS, no
encroachments including_ fill new construction, substantial improvements, or other
development shall be ,permitted unless certification with supporting technical data by a
North Carolina licensed Professional Engineer is provided demonstrating that the
cumulative effect of the proposed development when combined with all other existing and
anticipated development, will not increase the water surface elevation of the base flood by
more than one foot at anypoint within Orange County.
Sec. 6.32.6. Floodway and non-encroachment areas.
Areas designated as floodwavs or non-encroachment areas are located within the SFHA
established in Section 4 2 39 The floodwavs and non-encroachment areas are extremely
hazardous areas due to the velocity of floodwaters that have erosion potential and carry
debris and potential projectiles The following_provisions shall apply to all development
within such areas:
1 No encroachments including fill new construction, substantial improvements and
other developments shall be permitted unless it has been demonstrated through
hydrologic and hydraulic analyses performed according to standard engineering
practice that the proposed encroachment would not result in any increase in the flood
levels during the occurrence of the base flood. Such certification and technical data
shall be presented to the Floodplain Administrator before issuance of floodplain
development permit.
2 If the requirements of Section 6.32.2b(1) are adhered to, all development shall
comply with all applicable flood hazard reduction provisions of this Ordinance. No
manufactured homes shall be permitted,
Sec.6.32.7. Standards for Floodplains without Established Base Flood Elevations.
Within the SFHAs established in Section 4.2.38, where no BFE data has been provided,
the following_provisions shall apply: .
1 No encroachments including fill new construction, substantial improvements or new
development shall be~ermitted within a distance of twenty feet each side from ton of
bank or five times the width of the stream whichever is greater, unless certification
with supporting technical data by a North Carolina licensed Professional Engineer is
provided demonstrating that such encroachments shall not result in any increase in
flood levels during the occurrence of the base flood discharge.
2 If the requirements of Section 6.32.2(1) are adhered to and BFE data are available
from other sources all new construction and substantial improvements within such
areas shall also comply with all ap,.plicable provisions of this Ordinance and shall be
elevated or flood proofed according to elevations established according to Section
21 11(11/12) When BFE data are not available from a federal, state, or other source,
the reference level including basement, shall be elevated at least two (21 feet above
the HAG.
22
Sec. 6.32.8. Effect anon outstandine floodHlain development Hermits.
Nothing herein contained shall require an~hanee in the plans construction size or
designated use of any development or an~part thereof for which a floodplain development
permit has been granted by the Floodplain Administrator or his/her authorized agents
before the time of assage of this Ordinance• provided however that when construction is
not beeun under such outstanding_permit within a period of six (6) months subse uent to
passage of this Ordinance or anv revision thereto construction or use shall be in
conformity with the provisions of this Ordinance.
Sec. 6.32.9 Enforcement
The provisions of the SFHA Overlay District shall be enforced in accordance with the
requirements contained within Section 23.5 of this Ordinance
PART VIII. That Article 8 Special. Uses be amended by creating a new Section 8.6.1 entitled
Additional standards for development of uses within Special Flood Hazard Area Overlay
District (SFHA) to read as follows:
Section 8.6.1 Additional Standards for Development of Uses. within Special Flood
Hazard Areas.
The Board of County Commissioners may issue a Class "A" Special Use Permit for solid
waste disposal facilities, hazardous waste management facilities salvage/junk yards and
chemical storage facilities that are located in SFHAs if all of the following conditions are
met:
a. The use serves a critical need in the Orange CountX
b. No feasible location exists for the use outside the SFHA.
c. The reference level of anv structure is elevated or flood proofed to at least the
re ug latory flood protection level.
d. The use complies with all other applicable federal state and local laws
e. Orange County has notified the Secretary of the North Carolina Department of
Crime Control and Public Safetv of its intention to grant a Special Use Permit at
least thirty (30) days before rg_anting the permit.
The Board is required to make affirmative findings of fact based on the testimony of the
~plicant(s) as to the project's compliance with these standards
PART IX. That Article 10 Parking be amended by creating a new 10.2 to read as follows:
Sec. 10.2 Prohibited within Special Flood Hazard Areas.
Any off-street parking and loading facilities are prohibited within a Special Flood Hazard
Area.
23
PART X. That Article 11 Nonconformities be amended Section 11.9 Non-conforming Uses of
Major Structures, or Structures and Premises in Combination by adding a new
subsection (f) to read as follows:
fl Non-conforming buildings or uses or other development may not be enlarged,
replaced, or rebuilt unless such enlazgement or reconstruction is accomplished
conforming to the provisions of this Ordinance.
Provided, however, nothing in this Ordinance shall prevent the repair, reconstruction,
or replacement of a building or structure existing on the effective date of this
Ordinance and located totally or partially within the floodway non-encroachment area,
or stream setback, provided that the bulk of the building or structure below the
re atory flood protection elevation in the floodway, non-encroachment area, or
stream setback is not increased and provided that such repair, reconstruction, or
replacement meets all of the other requirements of this Ordinance.
PART XI. That Article 14 Site Plan Approval Procedures Section 14.1 Intent to read as follows:
Section 14.1 INTENT
To establish a set of standazds for site plan applications.
APPLICABILITY
As required by Article 21.4 of this Ordinance, a zoning compliance permit must
be issued before any new site development, building, structure, or vehiculaz use
area may be erected, constructed or used. Site plan approval is required for a
zoning compliance permit with the following exceptions:
a. Single-family detached. dwellings and duplexes, and accessory
structures to those residential uses; provided, however, when such uses
are located in the University Lake Watershed (IJLW) District, site plan
approval shall be required.
b. Temporary uses which do not exceed thirty (30) days in duration; and
c. Interior renovation or repair of an existing structure, provided the use
of the lot and/or structure has not changed.
Site plan approval, as detailed herein, shall be required for all structures and
proposed uses of property for all properties located within the Special Flood
Hazard Area Overlay District.
PART XII. That Article 14 Site Plan Approval Procedures Section 14.2 Professional Design and
Certification be amended to read as follows:
Section 14.2.1 PROFESSIONAL DESIGN AND CERTIFICATION
24
Each site plan shall be prepared by a registered engineer, landscape acchitect, acchitect, or
land surveyor; however, in some cases, professional design and certification of the plan
may not be required. These exceptions include, but are not limited to the following:
a. Proposed additions to existing permitted non- residential structures where the use
of the structure and lot has not changed and the floor area is not increased more
than twenty-five percent (25%); and
b. Accessory structures to existing permitted non- residential structures where
vehicular use azea is not extended and changes to existing grade aze not more than
one (1.0) foot in elevation.
c. Single-family detached dwellings and duplexes, and accessory structures to such
uses when located in the University Lake Watershed (IJLW) District.
d. Large day care homes, as defined in Article 22, Definitions.
e, Rural Guest Establishments with three (3) guestrooms or less -Bed & Breakfasts.
Any and all projects proposing the development of property located within the Special
Flood Hazard Area Overlay District shall be required, regardless of the proposed land use.
to submit a site plan prepazed by a registered engineer, landscape architect, or land
surveyor in accordance with the provisions herein.
PART XIV. That Article 14 Site Plan Approval Procedures be amended creating a new Section
14.6 Floodplain development permit and certification requirements for properties within
the Special Flood Hazard Area Overlay District to read as follows:
Sec. 14.6 Floodplain development permit and certification requirements for
properties within the Special Flood Hazard Area Overlav District.
14.6.1. Plans and Application requirements. Application for a floodplain
development permit shall be made to the Floodplain Administrator on forms
furnished by him or her prior to any development activities proposed to be
located within flood prone areas.
The following items/ information shall be presented to the Floodplain
Administrator to apply for a floodplain development permit.
25
a) A plot elan drawn to scale which shall include but shall not be limited
to, the following specific details of the proposed floodplain
development:
i. The nature, location, dimensions: and elevations of the area of
developmentJdisturbance: existing and proposed structures
driveways, utility systems, ading/pavement areas fill
materials, storage areas, drainage facilities and other
development:
ii. The boundary of the SFHA as delineated on the FIRM or other
flood map as determined in Section 4.2.38 or a statement that the
entire lot is within the SFHA:
iii. Flood zone(s) designation of the proposed development area as
determined on the FIRM or other flood map as determined in
Section 4.2.38:
iv. The boundary of the floodway(s) or non-encroachment area(s) as
determined in Section 4.2.38;
v. The Base Flood Elevation (BFE) where provided as set forth in
Section 4.2.38: Section 21.11 (11/12); or Section 6.32.1
vi. The old and new location of any watercourse that will be altered
or relocated as a result of proposed development•
vii. Preparation of the plot plan by or under the direct supervision of
a North Carolina licensed professional Land Surveyor or
Professional Engineer and certified by them.
b) Proposed elevation, and method thereof, of all development within a
SFHA including but not limited to:
i. Elevation in relation to mean sea level of the proposed reference
level (including basement) of all structures;
ii. Elevation in relation to mean sea level to which any non-
residential structure in Zone AE will be flood- ron ofed;
iii. Elevation in relation to mean sea level to which andproposed
utility systems will be elevated or flood proofed;
c) If flood roofing, a flood rp oofing certificate and back-u~plans from a
registered professional engineer or architect certifying that the non-
residential flood proofed development will meet the flood- roofing
criteria in Section 6.32.2.
d) A Foundation Plan drawn to scale, which shall include details of the
proposed foundation system to ensure all provisions of this Ordinance
are met. These details include but are not limited to:
i. Proposed method of elevation, if applicable (i.e., fill, solid
foundation perimeter wall, solid backfilled foundation open
foundation on columns/postslpiers/piles/shear wall)'
26
ii. Openings to facilitate equalization of hydrostatic flood forces on
walls according to Section 6.32.2(51, when solid foundation
perimeter walls are used in Zones;
e) Usage details of any enclosed space below the re~ulatorv flood
protection elevation.
fl Plans and/or details for the protection of public utilities and facilities
such as sewer, gas, electrical, and water systems to be located and
constructed to minimize flood damage;
g) Copy of all other Local, State and Federal • permits required prior to
floodplain development permit issuance (i.e. Wetlands, Erosion and
Sedimentation Control, Riparian .Buffers, Mining etc•)
h) If the Floodplain Administrator issues a floodplain development permit
for placement of recreational vehicles and/or temporary structures,
documentation to ensure compliance with Section 6.32.2(5 and 7) of
this Ordinance.
it If a watercourse is proposed to be altered and/or relocated, a description
of the extent of watercourse alteration or relocation, an en in~g
r_port on the effects of the proposed project on the flood-carr ny~ng
capaci~ of the watercourse and the effects to properties located both
stream and downstream; and a map, drawn to scale, (if not shown on
plot ~lanl showing the location of the proposed watercourse alteration
or relocation.
14.6.2. Floodplain Development Permit Data Requirement. The following
information shall be provided at a minimum on the floodplain development permit to
ensure compliance with this Ordinance.
a. A description of the development under the floodplain development
permit issuance.
b. The SFHA determination for the proposed development per available
data specified in Section 4.2.38.
c. The re u~ry flood protection elevation required for the reference
level and all attendant utilities.
d. The re ug latorv flood protection elevation required for the protection of
all public utilities.
e. All certification submittal requirements with timelines.
f. A statement that no fill material shall encroach into the floodwa~
non-encroachment area of any watercourse, if applicable.
27
g. If in an AE zone, specify the minimum foundation opening
requirements
h. State limitations of below BFE enclosure uses (if applicable) such as,
parkin, building access and limited storage only).
14.6.3. Certification requirements
a. An Elevation Certificate (FEMA Form 81-31) or Flood Proofing
Certificate (FEMA Form 81-65) is required after the reference level is
completed. Within twenty-one (21) calendar days of establishment of
the reference level elevation, or flood proofing by whatever
construction means, whichever is applicable, it shall be the duty of the
permit holder to submit to the Floodplain Administrator a certification
of the elevation of the reference level, or flood proofing elevation,
whichever is applicable, in relation to mean sea level. Said certification
shall be prepared by, or under the direct supervision of, a North
Carolina licensed professional Land Surveyor or Professional En eer
and certified by them. Any work done within the twenty-one (21) daX
calendar period and before submission of the certification shall be at the
permit holder's risk. The floodplain administrator shall review the
certificate data submitted. Deficiencies detected by such review shall be
corrected by the hermit holder immediately and before further work
being,.permitted to proceed. Failure to submit the certification or failure
to make required corrections shall be cause to issue astop-work order
for the project.
b. A Final As-Built Elevation Certificate (FEMA Form 81-31) is required
after construction is completed and prior to Certificate of
Compliance/Occupancy issuance. It shall be the duty of the permit
holder to submit to the Floodplain Administrator a certification of final
as-built construction of the elevation of the reference level and all
attendant utilities. Elevation certification shall be prepared by, or under
the direct supervision of, a North Carolina licensed professional Land
Surveyor or Professional Engineer and certified by the same. The
Floodplain Administrator shall review the certificate data submitted.
Deficiencies detected by such review shall be corrected by the permit
holder immediately and prior to Certificate of Compliance/Occupancy
issuance. In some instances, another certification may be required to
certify corrected as-built construction. Failure to submit the
certification or failure to make said corrections required shall be cause
to withhold the issuance of a Certificate of Compliance/Occupanc~
c. If a manufactured home is placed within Zone AE and the elevation of
the chassis is more than thirty-six (36) inches in height, an en 'peered
foundation certification is required per Section 6.32.2(3).
d. If a watercourse is to be altered or relocated, a description of the extent
of watercourse alteration or relocation; an engineering report on the
effects of the proposed project on the flood-carr~g, capacity of the
28
watercourse and the effects to properties located both upstream and
downstream; and a map, drawn to scale, showing the location of the
proposed watercourse alteration or relocation shall all be submitted bX
the permit applicant prior to issuance of a floodplain development
e. Certification Exemptions. The following structures, if located within
Zone AE, are exempt from the elevation/flood proofing certification
requirements specified in items a. and b. above:
i. Recreational vehicles meeting requirements of Section 6.32.2(5):
ii. Temporary structures meetin requirements of Section 6.32.2(7);
and
iii. Accessor~Structures with any dimension that is twelve (12) feet
or gxeater in height, width, or depth, meeting requirements of
Section 6.32.2(8).
PART XV. That Article 20 Amendments Section 20.3.2 Contents of Application be amended by
creating a new subsection (g), and re-numbering the existing regulation, reading as
follows:
f) A traffic impact study as required by Article 13.
g) For amendments to the Special Flood Hazard Area Overlay District, the following
information shall be submitted pertaining to a Letter of Map Amendment (an elevation
certificate with either an MT-1. MT-2, or MT-EZ -forms available through FEMA) or
a "No-Impact" analysis for a Letter of Map Revision.
h) All other circumstances, factors and reasons which the applicant offers in support of
the proposed Zoning Atlas and/or Zoning Ordinance text amendment.
PART XVI. That Article 21 Administration be amended by creating a new Section 21.9 entitled
Additional Administrative Provisions for the Special Flood Hazard Area Overlay District
reading as follows:
Section 21.9 Additional Administrative Provisions for the Special Flood Hazard Area
Overlav District.
Section 21.9.1 Administration:
The Zoning Officer, or his/her designee, shall hereinafter be referred to
as the "Floodplain Administrator", is shall hereby be appointed to
administer and implement the provisions of this Ordinance relating to
the development and enforcement of various provisions associated
with:
i) Special Flood Hazard Area Overlay District, and
29
j) State and Federal regulations concerning fl~ylain development
Sec. 21.9.2 Duties and resaonsibilities of the Floodnlain Administrator.
Duties of the Floodplain Administrator shall include but not be limited to•
1. Review all floodplain development applications and issue permits
for all proposed development within flood prone areas to ensure
that the requirements of this Ordinance have been satisfied.
2. Advise permittee that additional Federal or State permits (i e
Wetlands. Erosion and Sedimentation Control Riparian Buffers
Mining, etc.) may be required, and if specific Federal or State
permits aze known, require that copies of such permits be
provided and maintained on file with the floodplain develo ment
pernut.
3. Notif~djacent communities and the North Carolina Department
of Crime Control and Public Safety, Division of Emer encX
Management. State Coordinator for the NFIP prior to any
alteration or relocation of a watercourse. and submit evidence of
such notification to FEMA.
4. Ensure that maintenance is provided within the altered or
relocated portion of said watercourse so that the flood-carrying
c_pacity is not diminished.
5. Prevent encroachments within floodwavs and non-encroachment
areas unless the certification and flood hazard reduction
provisions comply with Section 6.32.3.
6. Obtain actual elevation (in relation to mean sea level) of the
reference level (including basement) of all attendant utilities of all
new or substantially improved structures, according to Section
14.6(3)
7. Obtain the actual elevation (in relation to mean sea levell to
which the new or substantially improved structures and all
utilities have been flood proofed, according to Section 14.6(3)
8. Obtain actual elevation (in relation to mean sea level) of all
public utilities, according to Section 14.6(3).
9. When flood rp oofing is utilized for a particulaz structure obtain
certifications from a North Cazolina licensed Professional
Engineer or Architect according to Section 6.32.2.
10. Where interpretation is needed as to the exact location of
boundaries of the SFHAs (for example where there appears to be
a conflict between a mapped boundary and actual field
30
conditionsl, make the necessary interpretation. The erson
contesting the location of the boundary shall be iven a
reasonable opportunity to appeal the interpretation as provided in
Section 2.3.6.2.
11. When BFE data have not been provided according to section
4.2.38, obtain, review, and reasonably utilize any BFE data, along
with floodway data and/or non-encroachment azea data available
from a Federal, State, or other source, including data developed
pursuant to Section 6.32.2, in order to administer the provisions
of this Ordinance.
12. When BFE data is provided, but no floodway nor non-
encroachment area data has been provided according to Section
4.2.38, obtain, review, and reasonably utilize -any floodway data,
and/or non-encroachment azea data available from a Federal
State, or other source in order to administer the provisions of this
Ordinance.
13. When the exact location of boundaries of the SFHAs conflict
with the current, natural topography information at the site the
property owner may apply and be approved for a Letter of Man
Amendment (COMA) by FEMA. The Floodplain Administrator
14. Permanently maintain all records pertaining to the administration
of this Ordinance and make these records available for ublic
inspection during normal business hours.
15. Make on-site inspections of work in progress As the work
pursuant to a floodplain development permit progresses the
Floodplain Administrator shall make as many inspections of the
work as may be necessary to ensure that the work is bein done
according to the provisions of the local ordinance and the terms
of the permit. In exercising this power the Floodplain
Administrator has a ri hg_t upon presentation of proper credentials
to enter on any premises within the jurisdiction of the Orange
County at any reasonable hour for the purposes of inspection or
other enforcement action.
16. Maintain a current map re ository to include but not limited to
the FIS Report, FIRM and/or other official flood maps/studies
adopted under Section 4.2.38 of this Ordinance includin~y
revisions thereto includine COMA. issued by State and/or FEMA
17. Notify State and FEMA of mappin needs.
18. Issue stop-work orders as required. Whenever a building_or part
thereof is being constructed, reconstructed altered or repaired in
violation of this Ordinance, the Floodplain Administrator may
31
order the work to be immediately stopQed The stop-work order
shall be in writing and directed to the person doing the work and
the owner shall be sent a copy via the U.S. mail The stop-work
order shall state the specific work to be stopped the specific
reason(s) for the stoppage, and the condition(s) under which the
work may be resumed. Violation of a stop-work order constitutes
a Class Three (3) misdemeanor.
19. Revocation of floodplain development Hermits as required The
Floodplain Administrator may revoke and require the return of
the floodplain development Hermit by notif n~n~ the Permit holder
in writing sag the reason(s) for the revocation. Permits shall
be revoked for any substantial deHarture from the aQ rH Dyed
application, plans, or specifications; for refusal or failure to
comply with the requirements of State or local laws• or for false
statements or misrepresentations made in securingpermit
Any floodplain develo mH ent Hermit mistakenly issued in
violation of an applicable State or local law may also be revoked.
20. Make periodic inspections throughout all SFHAs within the
Orange County jurisdiction. The Floodplain Administrator and
each member of the Planning and Inspections Department shall
have a right, upon presentation of proper credentials, to enter on
an~premises within the territorial jurisdiction of the department
at any reasonable hour for the purposes of inspection or other
enforcement action.
21. Follow through with corrective procedures of Section 23.5
22. Coordinate Letters of Map Change and FIS/FIRM revisions with
other County departments, State of North Cazolina, and FEMA
Sec. 21.9.3 Establishment of floodplain development Hermit.
A floodplain development permit shall be required conformin tg o the
provisions of this Ordinance prior to the commencement of any
development activities within SFHA as determined in Section 4 2 38
PART XVII. That Article 22 Definitions be amended by adding the following definitions:
Addition (to an existing building) -- an extension or increase in the floor area or height of a building or
structure, including adding new lumbing electrical or HVAC s, sty ems
Area of special flood hazard -- See "Special Flood Hazard Area (SERA) Overlay District"
Appeal -- A reauest from a review of an administrative interpretation of any provision of this Ordinance
by the Board of Adjustment.
32
Base flood -- The flood having a one (1)percent chance of being_cqualed or exceeded in an~given year.
It is often referred to as the 100-near flood.
Base flood elevation (BFE) -- A determination as published in the Flood Insurance Study of the water
surface elevations of the base flood.
Basement -- An~area of the building having its floor sub grade (below ground level) on all sides.
Chemical storage facility -- A building,, portion of a building or exterior area adjacent to a building used
for the stora e~y chemical or chemically reactive products.
Development -- any constructed chan eg t~ improved or unimproved real estate including but not limited
to buildings or other structures mining dred~in~ filling, rg ading=paving, excavation or drilling
aerations, or stora eg of equipment or materials.
Disposal -- the discharge deposit injection dumping spilling leaking or placing of any solid waste into
or on any land or water so that the solid waste or any constituent part of the solid waste may enter the
environment or be emitted into the air or discharged into any waters, including_gxoundwater.
Elevated Building -- Anon-basement building, which has its reference level raised above ground level
by foundation walls shear walls posts Biers pilings or columns with openings sufficient to facilitate
automatic equalization of hydrostatic flood forces on exterior walls by allowing entry and exit of
floodwaters and the unimpeded movement of floodwaters.
Encroachment -- The advance or infringement of uses, fill, excavation, buildings, permanent structures
or development into a floodplain which may impede or alter the flow capacity of a floodplain.
Existing Construction -- Structures for which, the "start of construction" commenced before March 16,
1981. This term maXalso be referred to as "existing structures."
Existing manufactured home nark or manufactured home subdivision -- a manufactured home nark
or subdivision for which for flood damage prevention purposes, the construction of facilities for servicing
the lots on which the manufactured homes are to be affixed (including, at a minimum. the installation of
utilities the construction of streets and either final site rg aging or the pouring of concrete pads)
completed before March 16, 1981.
Flood and flooding -- A general and temporary condition of partial or complete inundation of normally
dr~land areas from the overflow of inland or tidal waters and the unusual and rapid accumulation of
runoff of surface waters from any source.
Flood fringe -- That portion of the SFHA outside of the floodwav as defined in the FIS and with the
boundary of the 100-year floodplain.
Flood Insurance -- The insurance coverage provided under the National Flood Insurance Program
(NFIP).
Flood insurance rate map (FIRM) -- An official, adopted Orange County map, issued by the FEMA, on
which both the Special Flood Hazard Areas and the risk .premium zones applicable to the count
delineated These areas are incorporated within the official Zoning Atlas for Orange County as the
~ecial Flood Hazard Area Overlay District.
33
Flood Insurance Study (FIS) -- An examination evaluation and determination of flood hazard areas,
corresponding water surface elevations fif ~proQriate) flood insurance risk zones, and other flood data in
Orange County issued by FEMA The FIS report contains an evaluation and determination of flood
hazards and corresponding flood profiles as well as FIRMS, if published.
Floodplain or Flood Prone Area -- Anv land area susceptible to beine inundated by water from anv
source and is interchangeable terms.
Floodplain Administrator -- The individual appointed to administer and enforce the floodplain
management regulations.
Floodplain Development Permit -- A required document for anv disturbance within a manned special
flood hazard area.
Floodplain Management -- The operation of an overal~ro~ram of corrective and preventive measures
for reducing flood damage and preserving and enhancing where possible, natural resources in the
floodplain including but not limited to emergenck preparedness plans flood control works, floodplain
management regulations, and open space plans.
Floodplain Regulations -- This Ordinance subdivision regulations building codes health regulations,
~ecial purpose ordinances and other applications of~olice power which control development in flood-
prone areas This term describes federal state or local regulations in anv combination thereof, which
provide standards for preventing and reducing, flood loss and damage.
Flood Proofing -- Anv combination of structural and nonstructural additions, changes, or adiustments to
structures which reduce or eliminate risk of flood damage to real estate or improved real property, water
and sanitation facilities, or structures with their contents.
Floodway-- The channel of a river or other watercourse and the adjacent land areas that must be reserved
in order to discharge the base flood without cumulatively increasing the water surface elevation more than
one (1) foot This term ma~also be referred to as "regul, story floodway."
Flood Zone -- A geographical area shown on a FIRM that reflects the severit or t e of flooding in the
area.
Floor -- See "Lowest Floor".
Freeboard -- The additional amount of hei¢ht added to the Base Flood Elevation (BFE) to account for
uncertainties in the determination of flood elevations.
Functionally Dependent Facility -- A facility which cannot be used for its intended pumose unless it is
located in close proximity to water such as a docking or port facility necessary for the loading and
unloading of cargo or passengers shipbuilding or ship repair The term does not include lon -tg erm
storage, manufacture, sales, or service facilities.
Hazardous Waste Management Facility -- A facility or an~portion of a facility for the collection,
storage processing treatment recycling recovery or disposal of hazardous waste on or in land in
accordance with rules adopted by the State of North Carolina Department of Environment and Natural
Resources.
34
Highest Adiacent Grade (HAG) -- The highest natural elevation of the ground surface prior to
construction, next to the proposed walls of the structure
Historic structure -- Anv structure that is:
1. Listed individually in the National Register of Historic Places (a listing maintained by the U S
Department of Interior) or preliminarily determined by the Secretary of Interior as meeting the
requirements for individual listing on the National Re ig ster•
2. Certified or preliminarily determined by the Secretary of Interior as contributing to the historical
significance of a registered historic district or a district preliminarily determined by the Secretar~o
qualify as a registered historic district:
3. Individually listed on a local inventory of historic landmarks in communities with a "Certified
Local Government (CLG) Program "which has been approved by the Department of the Interior
or
4. Individually listed on a local inventory of historic places in communities with historic preservation
programs that have been certified either by an approved state proeram as determined by the
Secretary of the Interior, or directly by the Secretary of the in states without approved pro ams
Lowest adiacent grade (LAG) -- The elevation of the ground sidewalk patio slab or deck support
immediately next to the building after completion of the building.
Lowest floor -- The sub floor, top of slab or grade of the lowest enclosed area (including basement) An
unfinished or flood resistant enclosure usable solely for parking of vehicles building access or limited
storage in an area other than a basement area is not considered a building's lowest floor provided that such
an enclosure is not built so as to render the structure in violation of the applicable non-elevation design
requirements of this Ordinance.
Manufactured home nark or subdivision -- A parcel (or contiguous parcels) of land divided into two or
more manufactured home lots for rent or sale.
Market Value -- The building .value, excluding the land (as agreed to between a willing buyer and
seller), as established by what the local real estate market will bear. An independent certified ap rp sisal
can establish a market value using; replacement cost depreciated b~ge of building (Actual Cash Value)
or adjusted assessed values.
Mean sea level -- For purposes of the NFIP, the National Geodetic Vertical Datum (NGVD) as corrected
in 1929, the North American Vertical Datum (NAND) as corrected in 19$8 or other vertical control
datum used as a reference for establishing varying elevations within the flood lain to which BFE's
shown on a FIRM are referenced. Refer to each FIRM panel to determine datum used
New construction -- Structures for which the "start of construction" commenced on or after March 16
1981, and includes anysubsequent improvements to such structures
Non-Encroachment area -- The channel of a river or other watercourse and the adjacent land areas that
must be reserved in order to discharge the base flood without cumulatively increasing the water surface
elevation more than one (1) foot as designated in the Flood Insurance Study report
Obstruction -- Includes, but is not limited to, any dam wall wharf embankment levee dike Wile
abutment, protection, excavation, channelization, bridge conduit culvert building wire fence rock
35
gravel, refuse, fill, structure, vegetation or -other material in, along, across, or projecting into any
watercourse, which ma y alter, impede, retazd, or change the direction and/or velocity of the flow of water,
or due to its location, its ~ropensityto snare or collect debris carried by the flow of water, or its likelihood
of being_carried downstream.
Post-FIRM -- Construction or other development, which started on or after Mazch 16, 1981.
Pre-FIRM -- Construction or other development, which started before Mazch 16, 1981.
Public safety andJor nuisance -- Anything, which is injurious to the safety or health of an entire Orange
County or neighborhood, or an~considerable number of persons, or unlawfully obstructs the free passage
or use, in the customary manner, of any navi able lake, or river, bay, stream, canal, or basin.
Reference level -- The portion of a structure or other development that must be compared to the
re ug latorY flood protection elevation to determine regulatory compliance. For structures within Special
Flood Hazard Areas designated as Zone AE, the reference level is the top of the lowest floor.
Regulatory flood protection elevation -- The elevation to which all structures and other development
located within the Special Flood Hazard Areas have been determined. Within azeas whereBFE's__have
been determined, this elevation shall be the BFE plus two (2) feet of freeboard. In areas where no BFE
has been established, all structures and other development must be elevated or flood proofed, if non-
residential, to two (2) feet above the highest adjacent rade.
Remedy aviolation -- To bring~the structure or other development into compliance with State and
Orange County laws and regulations.
Repetitive loss -- Flood-related damages sustained by a structure on two (2) segarate occasions during
any ten (10~ eaz period for which the cost of repairs at the time of each such flood event on the average
equals or exceeds twenty-five (25) percent of the market value or the tax value in the absence of recent
com~azative sales, of the structure before the damage occurred.
Retrofitting -- Measures such as flood proofing elevation, construction of small levees, and other
modifications taken on an existin bg_ uilding_or its ary d to protect it from flood damage.
Riverine -- Relating to formed by or resembling_a river (including tributaries), stream, brook, etc.
Salvage yard -- Property used for the storage collection. and/or recyclin og f any type of equipment
whatsoever whether industrial or non-commercial and includin but not limited to vehicles, appliances
and related machinery.
Solid waste disposal facility -- Any facility involved in the disposal of any hazardous or non-hazardous
refuses or sludge from a waste treatment plant water supply treatment plant or air pollution control
facility domestic sewage and sludges .generated by the treatment thereof in sanitary sewage collection,
treatment and disposal systems and other material that is either discarded or is being accumulated, stored
or treated prior to being discarded or has served its original intended use and is generally discazded,
including solid liquid semisolid or contained gaseous material resultinu from industrial, institutional,
commercial and agricultural operations and from community activities.
Solid waste disposal site -- Any place at which solid wastes are disposed of by incineration, sanitary
landfill or anyother method.
36
Special flood hazard area (SERA) -- The land in the floodplain subject to a one (1) percent or renter
chance of being flooded m any given near as determined in Section 4 2 39 of this Ordinance as defined
the base flood elevation The manned special flood hazazd azea approximates the base flood elevation
S ecial Flood Hazard Area Overlay District' An overlay district establishing standards for
development for properties within identified floodplains
Start of Construction -- Includes substantial improvement and means the date the building_permit was
issued, provided the actual start of construction repair reconstruction rehabilitation addition placement
or other improvement was within 180 days of the permit date The actual start means either the first
lp acement of permanent construction of a structure (includinc a manufactured home) on a site such as the
pounng of slabs or footings installation of piles construction of columns or any work beyond the stage
of excavation; or the placement of a manufactured home on a foundation Permanent construction does
not include land preparation such as clearing'- rg adin~ and fillin~• nor does it include the installation of
streets and/or walkways' nor does it include excavation for a basement footingypiers or foundations or
the erection of temporary forms' nor does it include the installation on the property of accessory
buildrngs, such as gazages or sheds not occupied as dwelling units or not part of the main structure For a
substantial improvement, the actual start of construction means the first alteration of any wall ceiling,
floor, or other structural part of the building whether or not that alteration affects the external dimensions
of the building.
Substantial damage -- Damage of any origin sustained by a structure during_anv one yeaz period
whereby the.cost of restoring the structure to its before-damaged condition would equal or exceed fifty
(50) percent of the market value of the structure before the damage occurred See definition of
"substantial improvement." Substantial damage also means flood-related damage sustained by a structure
on two separate occasions during a ten (10)-mar period for which the cost of repairs at the time of each
such flood event, on the average equals or exceeds twenty-five (25) percent of the mazket value of the
structure before the damage occurred .
Substantial improvement -- Anv combination of repairs reconstruction rehabilitation addition or other
improvement of a structure taking_place during ~y one year period whereby the cost of which equals or
exceeds fifty (501 percent of the mazket value of the structure before the start of construction of the
improvement. This term includes structures which have incurred substantial dama a regardless of the
actual repair work performed. The term does not however include either ariy correction of existing
violations of State or Orange County health sanitary or safety code specifications which have been
identified by the Orange County code enforcement official and which are the minimum necessary to
assure safe living conditions or any alteration of a historic structure provided that the alteration will not
preclude the structure's continued designation as a historic structure
Water surface elevation (WSE) -- The height in relation to mean sea level of floods of various
magnitudes and frequencies in the floodplains of coastal or riverine areas
Watercourse -- A lake, river, creek, stream wash channel or other topographic feature on or over which
waters flow at least periodically Watercourse includes specifically designated areas in which substantial
flood dama a may occur.
Violation -- The failure of a structure use or development to be fully compliant or is inconsistent with
any provision of this Ordinance. A structure or other development without the elevation certificate other
37
certifications. or other evidence of compliance required in this Ordinance is presumed to be in violation
until such tune as that documentation is provided
PART XVIII. That Article 22 Definitions be amended be revising the following definitions:
Accessory structure (Appurtenant Structure) -- Ai.-X structure that is located on the same pazcel of
rp O~y or lot as the principal structure and houses an accessory use with any dimension greater than
twelve (12) feet, shall not exceed 400 squaze feet or one story and that is incidental to the use of the
nnncipal structure.
Manufactured home -- A dwelling unit, transportable in one or more sections that:
(i) Is not constructed in accordance with the standazds of the North Cazolina Uniform
Residential Building Code for One- and Two-Family Dwellings;
(ii) Is composed of one or more components, each of which was substantially assembled in a
manufacturing plant and designed to be transported to the home site on its own chassis,
(iii) Exceeds forty ~ feet in length and eight ~, feet in width,
(iv) The manufacturer voluntarily files certification required by the Secretary of the
Department of Housing and Urban Development and complies with the standards
established. and
(iv) Is built on a permanent chassis and designed to be used with or without a permanent
foundation when connected to the required utilities
Recreational vehicle ~V) -- Aself-propelled or towed vehicle, qualified to be licensed by the
appropriate State agency and is built on a sinele chassis 400 squaze feet or less when measured at the
largest horizontal projection providing short term recreational living accommodations, designed rimarily
not for use as a permanent dwelling but as tempor living_quarters for recreational camping travel or
seasonal use.
Structure -- Any walled and roofed building a manufactured home or a as or liquid storage tank that
which is built or constructed principally above ground constructed or erected to a height of thirty (30)
inches or more, including but not limited to load bearing walls, columns, beams or girders.
PART XX That Article Twenty-three Enforcement be amended by adding a new Section 23.5
entitled Additional Corrective Procedures -Special Flood Hazard Area Overlay District
Standards
Section 23.5 Corrective Procedures -S ecial Flood Ha rd Area Overlay District
Standards
Section 23.5.1 Actions in Event of a Violation:
Identified violations of the Special Flood Hazazd Area Overlay District shall
be sent a Notice of Violation. The Notice shall detail the nature of the
violation and schedule a hearing with the Floodplain Administrator to
review the situation.
This hearnne shall be held before the Floodplain Administrator at a
desienated place and time, not later than ten (10) business days after the
38
date of the Notice, at which time the owner shall be entitled to be heard in
person or by counsel and to present arguments and evidence pertaining to
the matter.
Following the hearing the Floodplain Administrator may issue such order
to alter, vacate, or demolish the building• or to remove fill as appears
appropriate.
Sec 23.5.2 Order to Take Corrective Action:
If, upon a hearing h~pursuant to the notice prescribed above the
Floodplain Administrator shall find that the building or development is in
violation of this Ordinance he or she shall make an order in writin to the
owner, requiring the owner to remedy the violation within a specified time
period, -not less than sixty (60) days.
Where the Floodplain Administrator finds that there is imminent dan er to
life or other property, he or she may order that corrective action be taken in
such lesser period as may be feasible.
Sec 23.5.3 Auueal:
Anv owner who has received an order to take corrective action rnav appeal
the order to the local elected governing body by ig ving notice of ap ep al in
writing to the Floodplain Administrator and the clerk within ten (10)
business days following issuance of the final order
In the absence of an appeal the order of the Floodplain Administrator shall
be final. The Board of Adjustment shall hear an appeal within a reasonable
time and may affirm, modify and affirm or revoke the order
Sec 23.5.4 Failure to Comely with Order:
If the owner of a building or property fails to comply with an order to take
corrective action from which no appeal has been taken or fails to comply
with an order of the governing body following an appeal he or she shall be
guilty of a Class Three (3) misdemeanor and shall be punished in the
discretion of the court.
PART XXI. That Article Twenty-four Legal Status Provisions and E, f,~'ective Date of the Zoning
Ordinance be amended by adding the following to Section 24.2 and new Sections
24.4 Interpretation, Section 24.5 Effect on rights and liabilities under the existing
flood damage prevention ordinance, and Section 24.6:
Section 24.2 Abroeation and greater restrictions.
This Ordinance is not intended to repeal abrogate or impair any existing easements
covenants, or deed restrictions. However where this Ordinance and any other Ordinance
conflict or overlap whichever imposes the more stringent restrictions shall revail
39
Section 24.5 Interpretation.
In the interoretation and application of this Ordinance, all provisions shall be:
a. Considered as minimum requirements:
b. Liberally construed in favor of the governing body; and,
c. Deemed to neither limit nor reveal any other rowers granted under State statutes.
Sec. 24.6 Effect on rights and liabilities under the existing flood damage
prevention ordinance.
This Ordinance in part comes forward by re-enactment of some of the provisions of the
Flood Damage Prevention Ordinance enacted March 2 1981 as amended and it is the
intention to replace, re-enact, and continue to enforce without interruption of such existing
provisions, so that all rights and liabilities that have accrued hereunder are reserved and
may be enforced. The enactment of this Resolution shall not affect any action suit or
proceeding instituted or pending. All provisions of the Flood Damage Prevention
Ordinance of Orange County enacted on March 2 1981 as amended which are not
reenacted herein, are re even aled•
Sec. 24.7 Disclaimer of Liability -Flood Regulations
The degree of flood protection required by this Ordinance is considered reasonable but
does not imply total flood protection.
PART XXII. The FIRM is hereby amended by LOMR with an effective date of August 7, 2008.
1. Letters of Map Amendment
a. 07-04-6156R (dated January 8 , 2008),
b. 08-04-2897A (dated April 10, 2008).
c. 08-04-2898A (dated Apri129, 2008),
d. 08-04-2899A (dated April 10, 2008), and_
e. 08-04-2900A, (dated May 22, 2008).
2. Letters of Map Revision
f. ~ 06-04-B022P (dated February 3, 2007),
g. 06-04-C141P (dated November 5, 2007),
h. 07-04-6156R (dated January 9, 2008), and
i. 08-04-1666P (August 7, 2008).
3. Summar~of Map Amendment #115-CWG (C) dated May 16, 2008.
PART XXIII. That Section I Purpose, Authority, Jurisdiction, Private Property Rights and
Applications to be Processed Expeditiously of the Subdivision Regulations is
hereby amended as follows:
I-F. Special Flood Hazard Area Standards.
Section 6.32 of the Orange County Zoning Ordinance is hereby adopted by reference
40
PART XXN. Section II. Definitions of the Subdivision Regulations is hereby amended by adding
the following definitions and deleting the eavsting definitions as follows:
"Floodnlain refers to any land area susceptible to being inundated by water from any source more
specifically, lands subiect to a one (1) percent or greater chance of being flooded in an~given e~
determined in the Flood Damage Prevention Ordinance The floodplain is also referred to as the s e~ cial
flood hazard area. Special flood hazard areas are mapped in the Federal Emergency ement
A~ency Flood Insurance Rate Maps as Zone AE for areas where the base flood elevation has been
determined, and Zone A, where no base flood elevation has been determined "
"Floodwav means the channel of a river or other watercourse and the adjacent land areas that must be
reserved in order to dischazge the base flood without cumulatively increasing the water surface elevation
more than one (1) foot. This term may also be referred to as the regul~ry floodway " .
"Special flood hazard areas refer to azeas mapped in the Federal Emer enc~anagement Agency Flood
Insurance Rate Maps, with an effective date of February 2 2007 as Zone AE for azeas where the base
flood elevation has been determined and Zone A where no base flood elevation has been determined."
PART XXV. That the Orange County Zoning Atlas is hereby. amended to create the Special Flood
Hazard Area (SERA) Overlay District incorporating data from the
aforementioned amended FIRM maps onto the Zoning Atlas, and
PART XXV. The Orange County Flood Damage Prevention Ordinance is hereby rescinded in its
present form and is no longer in effect.
Adoption certification. I hereby certify that this is a true and correct copy of the amendments to the
Zoning Ordinance and Subdivision Regulations, as adopted by the Board of County Commissioners of
Orange County, North Carolina, on the day of 2009.
WITNESS my hand and the official seal of, this the _ day of , 2009. .
Donna Baker Seal:
Clerk to BOCC
PART XXVI. This Ordinance shall be effective upon adoption. Adopted this the day
of , 2009, upon motion of Commissioner ,seconded by
Commissioner
I, Donna Baker, Clerk to the Boazd of Commissioners for the County of Orange, North Cazolina,
DO HEREBY CERTIFY that the foregoing is a true copy of so much of the proceedings of said Boazd at
a meeting held on, 2009 as relates in any way to the adoption of the foregoing and that said proceedings
are recorded in the minutes of said Boazd.
WITNESS my hand and the seal of said County, this day of , 2009.
Clerk to the Boazd of Commissioners
42
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Kristine M. Herfkens, Ph.D.
Betty Rider, FACHE
4738 Old Lake Trail
Hillsborough, NC 27278
February 21, 2009
Ladies and Gentlemen:
As owner/occupants of property adjoining Lake Orange we are unable to attend the public
hearing on February 23`~ and are taking this opportunity to comment Agenda Item C-1 related to
Subdivision Regulations, Zoning Ordinance, and Atlas Amendments. Specifically it relates to a
new Zoning Overlay District and incorporation of flood protection standards.
tt is unclear from the "dear homeowner" letter received by regular mail or from our reading the
published agenda and attachments whether or not our property is affected. To date, there has
been no sign concerning the proposed action posted in the vicinity of our properly. Since the
relevant 615 and 620 elevations are significant components of the proposed actions, we are, at
minimum, and without question, interested parties.
It is imperative that the Board of Commissioners appoint a special committee to reconcile
differences that might exist between the goals of the amended ordinances and the rights of Lake
Orange landowners to freely access the lake, enjoy it's recreational benefits, and to create a
uniform understanding among the affected property owners, interested other parties, and
regulatory authorities. The only real consensus is the data describing the 615 and 620
elevations is inaccurate and/or inconsistent.
While we support reasonable and responsible regulations, the more prudent action would be to
first accurately determine the benchmark elevation ~in order to reach a uniform understanding of
necessary regulations. This is particularly important to owners of affected property at or
adjacent to Lake Orange because, absent an accurate benchmark elevation, regulation will
continue to be misunderstood and inconsistent, thus putting the county and property owners at
further risk.
Thank you for your consideration.
56
Kris Herfkens Betty Rider
Attachment 4 5 7
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EXCERPT FROM DRAFT FEBRUARY 23, 2009
QUARTERLY PUBLIC HEARING MINUTES
DRAFT DRAFT DRAFT
MINUTES
ORANGE COUNTY BOARD OF COMMISSIONERS
ORANGE COUNTY PLANNING BOARD
QUARTERLY PUBLIC HEARING
February 23, 2009
7:30 p.m.
The Orange County Board of Commissioners and the' Orange County Planning Board
met for a Quarterly Public Hearing continuation meeting on Monday, February 23, 2009 at 7:30
p.m. at the Central Orange Senior Center in Hillsborough, NC.
COUNTY COMMISSIONERS PRESENT: Chair Valerie P. Foushee, and Commissioners
Alice M. Gordon, Bany Jacobs, Pam Hemminger, Mike Nelson, Bernadette Pelissier, and Steve
Yuhasz
COUNTY COMMISSIONERS ABSENT:
COUNTY ATTORNEY PRESENT: Geof Gledhill
COUNTY STAFF PRESENT: Assistant County Manager Willie Best and Deputy Clerk to
the Board David Hunt (All other staff members will be identified appropriately below)
PLANNING BOARD MEMBERS PRESENT: Chair Brian L. Crawford, Vice-Chair Jay
Bryan, Mary Bobbitt-Cooke, Judith Wegner, Rachel Phelps Hawkins, Dr. Larry Wright, and Mark
Marcoplos
PLANNING BOARD MEMBERS ABSENT: Jeffrey L. Schmitt, Joel Forrest Knight, II,
Samantha Cabe, Tommy McNeill, and Nathan Chambers
*************************************************************
C. PUBLIC HEARING ITEMS
1. Zoning Ordinance and Atlas Amendment: To receive public comment on creation of a new
Zoning Overlay District entitled Special Flood Hazard Area (SFHA) incorporating the County's
existing Flood Damage Prevention Ordinance within the Orange County Zoning Ordinance as
well as amending the official Zoning Atlas map to delineate the SFHA on properties within the
.County encumbered by flood zones as delineated on the FEMA Flood Insurance Rate Maps
(FIRM).
Planning Director Craig Benedict introduced this item. He said that it took about 1,700
certified mailings and about 6,000 postcard mailings to residents living within an adjacent area.
Michael Harvey and Glen Bowles summarized parts of the PowerPoint presentation
also.
2
1 AGENDA ITEM: C1
2 QUARTERLY PUBLIC HEARING
3 Review of a proposal to incorporate the Flood Damage Prevention Ordinance
4 into the existing Zoning Ordinance and onto the Official Zoning Atlas
5
6
7 Why are we doing this?
8 The County has been informed by the Federal Emergency Management Agency (FEMA)
9 and the State Office of Emergency Management that in order to continue participating within the
10 National Flood Insurance Program (NFIP) we had to revise the process utilized to review and
11 process flood regulations and map amendments to be consistent with current Statutory
12 requirements for zoning ordinance and atlas amendments.
13
14 What is being proposed:
15 Existing regulations, currently within the s#and alone Flood Damage Prevention
16 Ordinance, .are being placed within the Zoning Ordinance.
17
18 How are we doing this?
19 Staff proposes to create a new Special Flood Hazard Area (SERA) Zoning Overlay
20 District incorporating existing flood regulations within the Zoning Ordinance and incorporating
21 Flood Insurance Rate Map (FIRM) data onto the Zoning Atlas..
22
23 What is being proposed (continued):
24 •Processing/approval of map amendments to existing FIRM data that have already been
25 reviewed and approved by State and Federal officials, and
26 •Revie existing subdivision regulations to reference the new location of flood
27 regulations/definitions.
28
29 Implications of proposed change:
30 No change to property owners
31 The proposed relocation of flood regulations will not have an impact on a property
32 owner's ability to make use of their property outside of the floodplain. Existing regulations will
33 still be in effect for any portion of a parcel of property located within an identified floodplain.
34 The only positive impact is related to the review and processing of Letters of Map
35 Amendment (COMA) and Letter of Map Revision (LOMR)
36
37 Parcels Notified of proposal (map)
38
39 History:
40 •Orange County began participating within the National Flood Insurance Program (NFIP) in
41 1981
42 •The County adopted a standalone Flood Damage Prevention Ordinance (FDPO) along with
43 Flood Insurance Rate Maps (FIRM)
44 •Approximately twenty four hundred (2400) properties within the County's planning jurisdiction
45 are subject to compliance with flood regulations
46
47
48
58
3
1
2
3 Why are we doing this now?
4 •In anticipation of the revised 2007 FIRM amendments, the State Attorney General's office
5 issued an opinion in 2005 indicating that amendments to existing flood regulations and/or flood
6 maps ought to be treated and processed as zoning amendments
7 •In the fall of 2006, the County Attorney's office concurred with this opinion
8 •In the Fall of 2008 State and Federal officials conducted a Community Assistance Visit (CAV)
9 with staff to review/audit the floodplain management program where we were told to being this
10 process
11
12 Why we are doing this (continued):
13 Staff and the County Attorney had hoped to wait to incorporate flood regulations into the
14 zoning ordinance when work began on developing the Unified Development Ordinance (UDO).
15 Given the comments received from State officials during the community visit, we can not longer
16 wait for development of the UDO to begin.
17
18 Road Map for Amendments
19 •42-31. Statutory Authority
20 •42-32. Findings of Fact
21 •42-33. Statement of Purpose
22 •42-34. Objectives
23 •42-35. Definitions
24 •42-37. Lands to which this Ordinance applies
25 •42-38. Basis for establishing the SFHA
26 •42-39. Compliance
27 •Article One (1)General Provisions -new Section 1.7 Statutory Authority (Section 42-31 of
28 FDPO)
29 •Article Four (4) Establishment of Permitted Use Table and Schedule -new section
30 establishing Purpose and Intent of the Special Flood Hazard Overlay District (includes Sections
31 42-32 through 42-33 and Sections 42-37 through 42-39 of FDPO)
32 •Definitions will be moved to Article 22 Definitions of the Zoning Ordinance
33 •42-40. Abrogation
34 •42-41. Interpretation
35 •42-42. Penalties for violation
36 •42-66. Designation of Floodplain Administrator
37 •42-67. Establishment of floodplain development permit
38 •42-68. Floodplain development permit & certification requirements
39 •42-69. Duties and responsibilities
40 •Article Twenty-four (24) Legal Status Provisions and Effective Date is being amended to
41 include Sections 42-40 through 42-42 of FDPO.
42 •Article Twenty-one (21) Administration is being amended to include administrative references
43 outlined within Sections 42-66, 42-67, and 42-69 of the FDPO
44 •Article Fourteen (14) Site Plan Approval Procedures will include floodplain permitting
45 requirements
46 •42-70. Corrective Measures
47 •42-71. Variance Procedures
48 •42-91. General Standards
59
4
1 •42-92. Specific Standards
2 •42-93. Specific Standards - Approximate A Zones
3 •42-94. Subdivisions et al.
4 •42-95. Standards for areas of shallow flooding
5 •42-96. Effect on outstanding floodplain development permits
6 •Article Twenty-three (23) Enforcement will include section 42-70 of the FDPO
7 •Article Two (2) Board of County Commissioners and its Administrative Mechanisms is
8 being amended to include the Variance Procedures outlined within Section 42-71 of the FDPO
9 •Article Six (6) Application of Dimensional Requirements is being amended to include the
10 specific requirements for the proposed overlay district (includes Sections 42-91 through 42-96 of
11 the FDPO)
12
13 •42-97. Effect on rights and liabilities under existing FDPO
14 •42-98. Effective date
15
16 •Sections 42-97 through 42-98 of the FDPO are being placed within Article Twenty-four (24)
17 Legal Status Provisions and Effective Date of the Zoning Ordinance
18
19 Zoning Atlas -Incorporation of Flood Map Data (map)
20
21 Additional work being proposed -FIRM Map Amendments
22 •Letters of Map Amendment (COMA) - 5
23 A localized amendment only to the FIRM,
24 •Letters of Map Revision (LOMR) - 4
25 An amendment to the FIS and FIRM, and
26 •Summary of Map Action (SOMA) --1.
27 SOMA
28 LOMAs 8 LOMRs (maps)
29
30 Frequently Asked Questions:
31 •Why did I receive a certified letter. and/or postcard informing me of the PUBLIC HEARING?
32 •Will this change and/or impose new flood regulations that may be applicable to my property?
33 •How long have the floodplain regulations been in effect?
34 •Who defines floodplain boundaries and how are they designated?
35 •What if I want to challenge the location my property within a floodplain?
36
37 Staff recommendation:
38 1. Receive the proposed amendments,
39 2. Conduct the public hearing to receive public comments on the proposed amendments,
40 3. Refer the matter to the Planning Board for a recommendation with a recommendation be
41 submitted back to the BOCC in time for the agenda scheduled for April 21, 2009 BOCC
42 meeting, and
43 4. Adjourn the public hearing until April 21, 2009 to receive the Planning Board
44 recommendation(s) and any submitted written comments.
45
60
5
1 Rachel Phelps Hawkins arrived at 8:01 p.m.
2
3
4 Commissioner Jacobs said that the notices were very difficult to understand. He asked
5 for clarification about whether it would change anything about the property. Craig Benedict said
6 that this is correct.
7 Commissioner Yuhasz asked about the adoption of this ordinance. He said that
8 qualified farms are exempt from zoning regulations under State statute. He noted on the
9 proposed Part 1.5 that the farm exemption is supposedly not in effect with respect to this
10 particular section of the zoning ordinance. He asked about the legal basis for exempting in
11 Orange County certain parts of zoning from the bona fide farm exemption.
12 Michael Harvey said that the Planning Department staff had the same concerns and the
13 section was written based on the model of the Wake County Unified Development Ordinance
14 after review with the County Attorney's Office.
15 Commissioner Gordon said that the notice should have been clearer so that people
16 would not have been forced to come out to the public hearing to get clarification.
17
18 PUBLIC COMMENT:
19 Lynette Hartsell spoke on behalf of the Friends of Lake Orange. She said that she asked for
20 a copy of the letter from the Attorney General's Office that prompted this change. The letter is
21 dated September 14, 2005, and is addressed to the National Flood Insurance Program. It was
22 actually a memorandum. She said that the letter that she received addressed issues of FEMA,
23 flood maps, and whether the maps can be incorporated. The issue addressed in the
24 memorandum was whether or not future maps could be accepted without this kind of public
25 notice. She said that she is confused that this is being moved under zoning. There is nothing in
26 the letter that she read that you cannot have a standalone flood prevention ordinance. She said
27 that the people in Lake Orange get nervous about these things. She said that the people in
28 Lake Orange are concerned that their rights will be taken away from them. She said that there
29 is a lot of distrust that the government will not act in the citizens' best interest. She said that
30 there must be meaningful dialog and not just public hearings. She asked the County
31 Commissioners to think outside the box and initiate a task force charged to identify problems
32 and find solutions for Lake Orange and reach a binding agreement.
33 Brent Clayton said that he bought 6.5 acres in 2000 and it was not in the floodplain. His
34 property got put in a floodplain in 2007. He originally purchased his property to ?? behind the
35 house that is there now. The floodplain took almost three acres of his property, and the
36 property is now useless. He asked how this was helping him.
37 Steve Richardson was with the Friends of Lake Orange. He said that there are vast
38 gaps in the proposal and there are some State constitutionality questions. He urged the County
39 Commissioners to decline to act on this unnecessary proposal. If the County Commissioners
40 vote on this, he asked that they amend it specifically to honor and grandfather the special,
41 perpetual, contractual rights with the County under the terms by which Lake Orange was gifted
42 to the County 40 years ago, so that nothing within the technical zoning change can be
43 construed as going against those rights in any way. Secondly, the property owners of Lake
44 Orange have endured decades of bad experience with the County and are mistrustful. Several
45 County Commissioners and staff have been welcoming, forthcoming, and have worked in good
46 faith. He thanked those people. He said that these people were the exception. He said that the
47 assurance that this change would have no effect on properties is not strictly true. He read a
48 resolution that was proposed by the Friends of Lake Orange, as follows:
49 "In the interest of reestablishing mutual trust and good will, eliminating future avoidable
50 misunderstandings that could further divert all involved from their other interests,
51 responsibilities, and duties, as well as potential future involvement of remote third parties whose
61
6
1 interests may coincide with none of the Task Force members' there shall be established a Lake
2 Orange Task Force.
3 The Lake Orange Task Force shall be a group of no more than seven members, with
4 designated alternates, comprised of representatives from the office of the Orange County
5 Manager and the office of the Orange County Attorney, representatives of Friends of Lake
6 Orange, and any other property owners claiming rights or interest in Lake Orange and the
7 issues set forth below, and material stakeholders directly involved in Lake Orange and its
8 management.
9 The charter of the Lake Orange Task Force will be to resolve issues concerning water
10 rights, including but not limited to: recreational rights, the Voluntary Capacity Users Group
11 Agreement and the maintenance and administration of the usage of Lake Orange.
12 The goal of the Task Force will be: to reach a binding agreement on these issues,
13 define a future path for dealing with Lake Orange and establish methods for resolving future
14 questions, based on a common understanding that considers and respects the rights,
15 responsibilities and needs of all parties involved.
16 When that consensus is reached and those methods are established, the charter of the
17 Task Force will be fulfilled and the Task Force will end.
18 The first order of business of the Lake Orange Task Force will be to obtain from each
19 Task Force member a statement of its interests and perceived needs from which a concise and
20 specific set of high-level tasks will be defined by the Task Force in support of its charter.
21 Thereafter the Task Force will. establish working groups and timelines for completion of each
22 task."
23 He submitted the resolution to the Clerk.
24 Bruce Lucas lives on NC 86 North in Hillsborough. He said that he has water coming on
25 both sides of the road into his branch and it floods his property. He asked for help in getting a
26 bridge, which would stop some of the flooding. He submitted pictures as proof of the flooding.
27 Carolo~n Fuller lives in Efland and she has some property in the floodplain. She asked
28 how this was affecting the property and if there was anything they needed to do.
29 Brian Crawford asked that someone from the staff address this question after the
30 meeting.
31 Greg Plachta said that he is a concerned citizen and he agrees with the Friends of Lake
32 Orange (I think, I couldn't understand him, he was talking so fast).
33 Ed Johnson said that he lives beside a creek and he wants to raise some concerns
34 about data gathering. He made reference to a letter from the Planning Department and said
35 that he lives close enough to the creek that the Planning Department sent out a surveyor and
36 wrote this letter with recommendations and photographs of-the property with yellow lines giving
37 sea level elevations. He said that this photograph with the elevations is full of errors. He
38 wonders if other people have been plagued by these errors. Because of these errors, he has no
39 faith in the recommendations made concerning his property.
40 Ken Terlep read a prepared statement: My name is Ken Terlep and I am a member of
„ n
41 the Friends of Lake Orange . My property borders Lake Orange and is within the proposed
42 Special Flood Hazard Overlay District that is included in the proposed Amendment to the Zoning
43 Ordinance.
44 I have two primary comments about the proposed Amendment:
45 1. Although it has been stated that there is no additional restriction to property owners with
46 property that is in the new Special Flood Hazard Overlay District, the specific wording to
47 be placed in the Amendment has not been provided. I think we all must have the
48 chance to review the actual words in the Amendment before a final Public Hearing is
49 held. When will the specific wording be available so a comprehensive review can be
50 made?
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7
2 2. I have seen a map of the flood elevation contour for my property superimposed on a
3 map my property boundaries and the 615' elevation contour which is the same elevation
4 as the spillway for Lake Orange. Some inconsistencies can be seen by examining the
5 various contours shown on or near my property. I question the accuracy of the data
6 when displayed together and to be used for compliance assessment according to the
7 Zoning Ordinance. I have been cautioned on many occasions by Orange County Staff
8 that the GIS data available has limited accuracy and that, as stated on the GIS website:
9 "Orange County and its vendors assume no legal responsibility for the information".
10 How can it be used for assessment of compliance to the proposed Special Flood Hazard
11 Overlay?
12
13 What accuracy is ascribed to the Flood Maps relative to the County's data for property
14 boundary lines?
15
16 I also support the proposals made by Lynette Hartsell and Steve Richardson who have
17 previously talked tonight -requesting the Commission to recognize the unique status of Lake
18 Orange and to establish a Task Force to address issues pertinent to property owners and others
19 with interest in the access to and the use. of Lake Orange.
20
21 Ken Terlep
22 Cedar Grove
23 February 23`x, 2009
24
25 Craig Benedict said that the exact words of the Flood Damage Prevention Ordinance as
26 it is being incorporated into the zoning ordinance is available through the internet and in the
27 postcards that were sent out.
28
29 John Hartwell said that his house sits close to the Eno River on a steep bank. He has a
30 Certification of Elevation. He said that the maps are being amended and the public should see
31 all of the information.
32 Judith Kramer owns a home on New Hope Creek, which has flooded twice in the fast 12
33 years. She commended the County for considering taking this action to ensure that the
34 residents of Orange County have access to the National Flood Insurance Program. She said
35 that there is a benefit of having FEMA's protection in a flood situation. She has some concerns
36 about the methods of notification of important changes in the flood maps when property is
37 affected. She said that she was shocked to find out from her mortgage company that she was
38 no longer in a floodplain, because she never received notification by the County or FEMA. This
39 was related to the change in a map in 2007. She knew that she was at risk of flooding because
40 her home was flooded during a hurricane. She suggested taking history into account.
41 Robert Brown lives near a creek. He said that the flooding that he has seen has been
42 due to water restrictions or the size of the bridge, which has backed the water up. (Couldn't
43 understand him).
44 Wallace Williams said that he and his wife live 80 feet above the floodplain. He asked if
45 the Planning Board would give him a hard time if he tried to build something on his property.
46
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
8
Commissioner Jacobs asked Geof Gledhill if the Planning staff goes onto property
without permission for elevation assessments and Geof Gledhill said no, but they only respond
to permit requests.
A motion was made by Commissioner Jacobs, seconded by Commissioner Nelson to
adjourn the public hearing until April 21, 2009 to receive the Planning Board recommendations
and any submitted written comments.
VOTE: UNANIMOUS
Valerie Foushee, Chair
Donna S. Baker, CMC
Clerk to the Board
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Attachment Five (5): Excerpts of Approved Planning Board Minutes
MINUTES
ORANGE COUNTY PLANNING BOARD
MARCH 4, 2009
REGULAR MEETING
MEMBERS PRESENT: Brian Crawford, Eno Township At-Large (Chair); Jay Bryan, Chapel Hill Representative (Vic;e-
Chair); Mary Bobbitt-Cooke, Cheeks Township Representative; Samantha Cabe, Chapel Hill Township At Large;
Nathan Chambers, Cheeks Township At-Large; Rachel Phelps Hawkins, Hillsborough Representative; Tommy McNeill,
Eno Township Representative; Jeffrey Schmitt, Cedar Grove Township; Judith Wegner, Bingham Township; Larry
Wright, Cedar Grove Township At-Large
MEMBERS ABSENT: Joel Forrest Knight, Little River Representative; Mark Marcoplos; Bingham Township At-Large
STAFF PRESENT: Craig Benedict, Planning Director, Robert Davis, Planner III; Michael Harvey, Zoning Enforcement
Officer; Perdita Holtz, Planning Systems Coordinator; Shannon Berry, Special Project Planner; Glenn Bowles, Planner
II; Tom Altieri, Comprehensive Planning Supervisor; Tina Love, Administrative Assistant II
******************************************************x*****~**,~**~**~**~*~~*,~,~**,~**********
AGENDA ITEM 2: INFORMATIONAL ITEMS
a) Next Regular Planning Board meeting scheduled for Wednesday, April 1, 2009
b) Planning Calendar for March and April
c) Memo regarding items requested at February 4, 2009 meeting
*************************************
Brian Crawford: The other question asked was about flood insurance and how many policies were in our communities.
The staff came back with 35 active flood insurance policies in effect in Orange County.
Judith Wegner: How is that determined and does that mean 35 individual parcel owners have flood insurance and half
are in the flood plains?
Glenn Bowles: Flood insurance even in a voluntary situation, unless you are trying to get a mortgage and then most
mortgage companies require it if your structure is in a flood plain. In this county, the majority of the polices in effect
are the properties that do no contain any flood plain at all.
Judith Wegner: Are these FEMA only policies?
Glenn Bowles: This would be FEMA flood insurance.
Judith Wegner: Does that mean that people don't know about it. The woman at the hearing said that she had gotten
flood insurance and people told her not to.
Glenn Bowles: She has very unique situation. Her house has a walk out basement and during Fran she got a foot or
so of water in her walk out basement. The new flood plain map took her house out of the flood plain and one of the
statements in the revised flood standards states that just because you are not in a flood does not mean you will not get
flooded.
Judith Wegner: If she is no longer in the designated flood plain, is she unable to get flood insurance?
Glenn Bowles: That is not a true statement.
Judith Wegner: She is within the flood plain.
Glenn Bowles: Anyone can purchase flood insurance.
Judith Wegner: That is distinguished from our special flood hazard area?
65
66
Glenn Bowles: That is correct The majority of the people who have active policies in this county do not have property
that is even in a designated flood plain. Sometimes you have over exuberant insurers and mortgage companies that
demand it
Brian Crawford: Can you purchase private flood insurance?
Glenn Bowles: I am assuming that someone would insure for water damage.
Tommy McNeill: For homeowners who have chosen not to purchase flood insurance, are there any educational
courses to discuss the consequences of not doing so?
Glenn Bowles: I have had two outreach meetings with a number of those people. Very few choose to come to those
meetings. Most people choose not to buy it. In this last mailing, we sent 1,800 or so mailings, which were the first time
we had' a good outreach, program on that discussion. We tell them that insurance is not mandatory on our part Most
are not interested in buying it. We are on the sidelines when it comes to flood insurance.
AGENDA ITEM 9: ZONING ORDINANCE AND ATLAS AMENDMENTS: TO ESTABLISH A NEW OVERLAY DISTRICT AND TO
INCORPORATE THE EXISTING FLOOD DAMAGE PREVENTION ORDINANCE INTO THE ZONING
ORDINANCE AND SUBDMSION REGULATIONS
To consider a recommendation to the BOCC regarding this item heard at the February 23,
2009 Quarterly Public Hearing
Presenter: Glenn Bowles, Planner II
Glenn Bowles: Reviewed the abstract.
PURPOSE: To receive the referral from the BOCC regarding proposed amendments to the Subdivision Regulations,
Zoning Ordinance, and Zoning Atlas that create a new Zoning Ordinance Overlay District from the Flood Insurance
Rate Map (FIRM) and incorporate flood protection standards of the Flood Damage Prevention Ordinance (FDPO) into
the text of both regulations and to make recommendations back to the BOCC.
BACKGROUND: Responding to the Community Assistance Visit of August 21 and 22, 2008, the County received
a November 7, 2008 letter from Mr. Ken Ache, of the North Carolina Emergency Management Division, outlining
necessary revisions to the Flood Damage Prevention Ordinance. A checklist was attached to the November 7~
letter (See Attachments 1 and 2 for the letter and checklist). The County responded to Mr. Ashe's letter on
November 12~ and requested a time extension to adequately schedule for inclusion of the amendments at the
next available Quarterly Public Hearing (February 23, 2009).
The changes proposed do not amend the adopted February 2, 2007 flood insurance rate maps (FIRMs), except
for the FEMA-approved revisions since then.
In coordination with the amendments to the FDPO, the County Attorney recommended that the required
amendments to the FDPO and the amended FDPO be incorporated into the Zoning Ordinance as text
amendments and a new Special Flood Hazard Area Overlay District, which would be delineated on the Zoning
Atlas.
Thus the Zoning Ordinance amendments take on five (5) different aspects:
1. Incorporating the amended FDPO text into the Zoning Ordinance text;
2. Making bona fide farming operations subject to Special Flood Hazard Area Overlay District standards,
regulations, procedures, and definitions;
3: Creating a new Zoning Overlay District -Special Flood Hazard Areas (SERA);
4. Affim~ing the various amendments to the FIRM (future SFHA Overlay District) that FEMA approved on
February 2, 2007; and
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5. Correcting definitions and references in the Subdivision Regulations to reflect FDPO terminology.
From time to time FEMA and its Cooperating Technical State partner, the State of North Carolina Division of
Emergency Management, approve Letters of Map Amendment (COMA), Letters of Map Revision (LOMR), and
Summaries of Map Action (SOMA). Since the adoption of the new FEMA Flood Insurance Rate Maps (FIRMS),
which became effective on February 2, 2007, FEMA has approved five (5) LOMAs, four (4) LOMR, and one (1)
Summary of Map Amendment. The primary objection FEMA voiced to the Orange County FDPO was that these
corrections to the FIRM were not specifically listed in the ordinance.
A LOMR alters the base flood elevation of the floodplain and the underlying Flood Insurance Study, by lowering or
raising the elevation. It is required for any stream crossing or dam removal involving a mapped special flood hazard
area (floodplain). LOMRs physically and legally alter FEMA FIRMs. The applicant must notify all surrounding property
owners by mail and perform detailed hydrologic and hydraulic analyses to document the alterations.
A COMA is an acknowledgement by FEMA that the mapped floodplain does not reflect the true base flood elevation, as
applied to a specific house or accessory building. They are applied for when a property owner believes his or her
house, garage, barn, or other structure is inappropriately mapped within a floodplain. An elevation certificate is
required to verify the owner's assertions. One of the results of the 2007 BOCC-funding floodplain surveying program is
that four property owners were able to receive LOMR approvals that effectively removed their houses from a mapped
floodplain. The FIRM and the underlying Flood Insurance Study does not change, but the flood insurance status for
the house or accessory structure does. In the case of the Cates Creek Parkway FIRM, before the engineer could
determine the correct hydrology and stream hydraulics for the new stream crossing, the flood mapping data had to be
corrected.
Keeping all FEMA Flood Insurance Rate Maps updated and current is an important maintenance and public
information task. Orange County is interested in the latest SOMA only because the FEMA FIRM panel letter suffix has
changed and this affects that portion of the FIRM panel within the County's zoning jurisdiction.
For informational purposes a draft Fooodplain Development Permit form is included as Attachment 6.
Attachment 7 lists all the sections of the existing FDPO and the proposed locations of each section in the amended
Zoning Ordinance.
Summary of the February 23, 2009 Quarterly Public Hearing:
After staff presented a summary of the proposed zoning ordinance amendments, BOCC members asked three
questions.
1. How can the County not exempt bona fide agricultural operations from the flood damage prevention
regulations when they are part of the Zoning Ordinance?
2. How will the non-conformity issue affect existing structures in the floodplain?
3. Would a clearer notice wording have been possible?
Several citizens from the Lake Orange neighborhood spoke. Their concerns are summarized as follows:
• Moving the Flood Damage Prevention Ordinance into the Zoning Ordinance would not be in the
property owners hest interest.
• A task force of interested parties should be appointed for the purpose of resolving several long-
standing issues that could include docks on the lake, stream buffers and floodplains.
• The County should honor the contractual rights of owners on Lake Orange.
• Proposed text amendments were not available to the public.
• Concern over the accuracy of base flood elevations supporting the floodplain contours.
Other citizen comments included:
• Concern that the 2007 revised map included almost half of the property owner's six acre parcel.
• Problems with a culvert because upstream drainage.
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• Concems with an elevation certificate with which the County assisted.
• Experience with the County elevation certificate surveying and the COMA and the need for ground frothing
with the maps.
• Experiences with an insurance carrier and the need to notify persons affected by changes in flood maps and
the acxuracy of such data.
• General discussions regarding how the proposed change would affect an individual's ability to improve one's
property.
Staff response to these comments and concems:
• Flood Damage Prevention standards and the Flood Insurance Rate Maps will not be changed, except to
place them within the Zoning Ordinance and Atlas. Property values and the ability to improve an individual's
property remain exactly as they are now. The public interest is served by this change and no contractual
arrangements will be affected.
• The Lake Orange area's long-standing concems involve docks.and stream buffers and are not affected by
this proposed change.
• The text amendments were available to the public on February 11 and were posted to the County's website
on February 13, 2009.
• The accuracy of the mapped floodplains is always in question. FEMA recognizes this and has developed
and protocol through the approval process for a Letter of Map Amendment (COMA). Five property owners
have taken advantage of this approval process in Orange County since February 2007. Floodplain
elevations were plotted out using the best available technology for watershed-wide topographic
determinations - LIDAR. This is the same technology used by NASA and is in wide use throughout the world
today.
The topographic coverages found in the county's GIS are generally accurate, but not to an engineering
standard. The county GIS topographic maps were not used to compute the base flood elevations. The flood
elevations are much more accurate, but are not a substitute for on-ground three-dimensional surveying to
determine predse topographic contours of the floodplain.
FINANCIAL IMPACT: While there will be no finandal impacts associated with the implementation of amendments to
the Subdivision Regulations, Zoning Ordinance, and Zoning Atlas, Section 20.6.3 of the Zoning Ordinance requires
that all properties affected by a Zoning Atlas amendment and all properties within 500 feet of an affected property be
sent notifications. Over $10,000 was spent to mail out 6,531 postcards and 1-,826 certified letters. This cost indudes
$640 in materials (labels, paper, postcards and envelopes), $7,448 for postage, and $2,100 in staff time.
However, not making the revisions to the Flood Damage Prevention Ordinance may put the County at risk of losing its
FEMA accreditation.
RECOMMENDATION: The Planning staff recommends the Planning Board:
Receive the February 23, 2009 BOCC referral;
2. Make recommendations back to the BOCC in time for the agenda process for the April 21, 2009 BOCC
meeting regarding:
a. Incorporating the amended FDPO text into the Zoning Ordinance text;
b. Making bona fide farming operations subject to Special Flood Hazard Area Overlay District
standards, regulations, procedures, and definitions;
c. Creating a new Zoning Overlay District - Specal Flood Hazard Areas (SERA);
d. Affirming the various amendments to the FIRM (future SFHA Overlay District) that FEMA approved
on February 2, 2007; and
e. Correcting definitions and references in the Subdivision Regulations to reflect FDPO terminology.
69
Tommy McNeill: You said that most people were happy after you discussed this with them. Please share some
concerns of the others who were displeased.
Glenn Bowles: We will set the Lake Orange discussion over to one side. They were displaced with beavers that are
flooding their pastures and woodland. Not only with beavers but also with deer. That was the one discussion I heard
the most The Wake Orange discussion deals with items that are not pertinent tonight dealing with flood plains. Some
were questioning the accuracy of the flood mapping. The flood map itself is really a contour and has been determined
by fairly technical studies done using a Corp of Engineering HEGRAS model for modeling and hydrological and
hydraulic characteristics of the streams and coming up with a contour. The flood maps are an approximation of that
contour. Some question if that contour is there or somewhere else. There is a process if they believe that it is not
there through FEMA which is fairly expensive.
Larry Wright: Some of these are in Economic Development Zones like the Efland Cheeks, etc. Then you mentioned
also that the zoning ordinances would need to be changed to accommodate these. Would these, the documentation
for these development districts need to be changed as well?
Glenn Bowles: Those Economic Development Districts have been subject to these same flood regulations. We are
taking verbatim text from the map and transferring it into the zoning ordinance. There will be a zoning district overlay.
Samantha Cabe: I was not able to be at the last public hearing. What was the rationale the County Attomey gave for
the need to incorporate these into the actual zoning ordinance?
Glenn Bowles: Our attorney suggested that if we want to be compatible with the 2005 Attomey General's letter stating
that communities who have flood maps amend those flood maps should do similar to the way they amend their zoning
atlas maps. Geoff was suggesting we go one step further and incorporate everything into a zoning ordinance.
Samantha Cabe: Why?
Glenn Bowles: He is not here and I can't speak for him.
Craig Benedict: We can provide his letter so you can read it.
Michael Harvey: The first documentation of the County Attomey making the recommendation that flood regulations be
incorporated into zoning occurred- bads in 1995 and assumed that a UDO (Unified Development Ordinance). The
rationale at that time was that flood regulations constitute land use restrictions. If you read general statute, the
appropriate location for all regulations governing the development of property is a zoning ordinance. The concern was
that it did not make appropriate reference to any other mechanism that a county or municipality could utilize to regulate
the development of property except that wonderful book we have. As early as 2006 the County Attorney made the
determination that we should be done 10-11 years ago and we should do it now. The clincher was the letter from the
Attomey General's office that amendments to the flood maps should be processed as amendments to zoning atlas.
Mr. Gledhill determined that, given the nature of the regulations and his opinion, there is only one logical place for them
and they need to be moved.
Samantha Cabe: They may not be enforceable if they are not included in our ordinance.
Michael Harvey: I don't share that opinion but we have been told that Mr. Gledhill's legal opinion that the best location
for these regulations is in zoning.
Judith Wegner. I think this was at the last meeting here but we talked about the Board of County Commissioners
wanted to unify development ordinance so this stuff will have to come in anyway so that is part of the policy call they
are making. The discussion at the Board of County Commissioners meeting was that in order for people in Orange
County to get flood insurance, we have to do this to conform. Isn't there a reference to that?
Glenn Bowles: WE didn't receive a formal notice but a verbal notice from the State Emergency Management Flood
Plain Mapping Division that FEMA was going to suspend the program because of certain deficiencies in the ordinance?
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Brian Crawford: In Orange County?
Glenn Bowles: That was never in writing.
Judith Wegner: They had a list of ways in which or ordinance would exceeded the minimum requirements but they are
not saying we have to remove what is there that exceeds the minimum requirements if you're flooded are they?
Glenn Bowles: They encourage you to go beyond the model ordinance.
Judith Wegner. So that is not a problem.
Glenn Bowles: We incorporated those changes first and then moving things around.
Samantha Cabe: On the list of things that exceed the minimum requirement, is the requirement for the base flood
elevation dated to be submitted for any development in an SFHA and I have recently had experience with that. It costs
between $15,000-$30,000 to have that done. Abase flood elevation opinion or study from an engineer is very
expensive and there are people who cannot afford to pay that.
Glenn Bowles: This is a FEMA driven requirement.
Samantha Cabe: Why is it on the list of items that exceed the minimum requirements?
Glenn Bowles: I am not sure.
Samantha Cabe: The state said they didn't believe it was required.
Glenn Bowles: We don't require anything in that regard. We don't go beyond what FEMA requires.
Samantha Cabe: My concern is there anything we can do about this for a person that has only one piece of property.
Brian Crawford: If they are saying it exceeds that it is incumbent upon us to take to the minimum necessary.
Glenn Bowles: What they don't want to do is to back flood waters on someone else's property which has been a
historic problem.
Samantha Cabe: My question is why it would not be sufficient to have an engineering opinion about the culvert size?
Glenn Bowles: It could be one and the same. There is nothing to say that sizing the culvert and the elevation
determination could not be the same study.
Samantha Cabe: The study is a very extensive mapping process.
Glenn Bowles: And rightfully so. The farmer that came complaining about his culvert flooding out, that is his problem.
He undersized the culvert which is not only your problem but someone else's problem.
Jay Bryan: Those are good points. We could keep our approval out on this particular issue and then ask for the staff
to report back to us or the Board of County Commissioners with more information.
Michael Harvey: The specific example used was fill material was added on a flood plain in violation of existing
standards without the benefit of a permit or staff review. The reason for the cost is the amount of data that had to be
provided for staff to assist the property owner resolving the matter not from a permitting standpoint. We do not
encourage or FEMA does not allow us to encourage the development of field and flood plain for the reasons we know.
We also having examples where fill material has been used.
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Samantha Cabe: What is considered fill material? If you have someone with an existing gravel road on their property
and that road needs to be maintained, do they need a permit every time they put gravel on their road? Do they need a
base elevation study every time?
Glenn Bowles: We could work with the particular situation.
Samantha Cabe: For purposes of what we do tonight, I would ask that any approval that we do exclude the
requirements that exceed the minimum requirement from FEMA until those are flushed out because of the cost.
Brian Crawford: That comment carries all the way through this entire application so anything the county is proposing
exceeding federal guidelines, we would hold that out.
Glenn Bowles: We have an excellent flood plane program now and some of those standards that need to be there
particularly the iwo foot free board.
Judith Wegner: These are existing in the County Ordinance, it seems that allowing transfer into the zoning ordinance
but to target certain things for further review would be a cleaner way.
Brian Crawford: A point of procedure. We are having this discussion and asking specific questions but in reality we
don't have any motion on the floor. We need to have someone on the board suggest a motion to pass or deny it. If
she wants something to be excluded, there is no motion to be excluded from.
Mary Bobbitt-Cooke: Can we still discuss his report?
Jeffrey Schmitt: Yes.
Brian Crawford: In that discussion, we are making specific suggestions.
Mary Bobbitt-Cooke: I wanted to talk about making bonafide farming operations subject to the speaal flood hazard
area overlay. Commissioner Yuhasz raised the question about a North Carolina state law about farms not being
subject to specific zoning. Dces the state have preemption over what we do in Orange County?
Glenn Bowles: You have a point. How can Orange County exempt a bonafide farm operation from their zoning
ordinance when the State Zoning allows the exemption? I can't answer that question because it would need to be
referred to our attorney.
Michael Harvey: The wording we have provided in Section 1.5 of the revision was language crafted by the attomey's
office.
Mary Bobbitt-Cooke: Our attomey?
Michael Harvey: Yes. North Carolina General Statute speafically prohibits counties from regulating farming activities.
We have e~asting provision in our zoning ordinance that essentially stipulates we cannot regulate farming activities.
The language proposed by the attorney's office is an attempt to address the concern you are expressing and what you
are expressing for the last six months.
Jeffrey Schmitt: This in on page 22, number 2, they should not be subject to flood hazard?
Michael Harvey: The existing flood regulations in the Flood Damage Provision Ordinance, does not recognize any
exclusion of any land use activity. As we are participants in the National Flood Insurance Program, we are obligated to
regulate all land uses for compliance with flood regulations consistent with those requirements to be eligible for the
membership.
Mary Bobbitt-Cooke: The question arises when you try to put the flood plain map inside the zoning ordinance. If you
keep it the way it has been, it would make sense.
72
Glenn Bowles: You are correct
Michael Harvey: We have been directed to address the County Attorney's concern and this is the method we are
using.
Judith Wegner. On page 47, part I, Section 1.5 reads Provisions of this ordinance adopted do not apply to bonafide
farms as defined except as follows; in a non-farm use of farm property, which is outside the zones. It looks the County
Attorney has crafted this to be spedfic to say that no, you don't have to comply with the rest of the zoning provisions,
however, as I understand it, in order for unto be compliant, he has carved an exception saying that so far as the fads
require it of you in a bonafide farm, which we cannot tell the fads. 1 think it is a reasonably well crafted way to try to
make an exception to honor the statues and the obligation if we want people to have eligibility.
Jeffrey Schmitt: I would like to publicly thank Glenn. Several of my neighbors received this post card and I got calls so
I came to Glenn and he gave me six or seven pages as an explanation. There have been some excellent points
brought up. If we decided or recommended to the board that we do nothing, what is the downside?
Glenn Bowles: The County Board can take the non-vote and take it into consideration when they do what they have to
do. If we do nothing at all and just make FEMA changes, we would have to go bads to Public Hearing because they
were very specific about what we were and were not changing.
Jeffrey Schmitt: What is the implication to the 35 who have flood insurance?
Glenn Bowles: If the programs were suspended and they wanted to buy flood insurance, they now have been
grandfathered in; they would not qualify for preferred rates. It may double the premium.
Jeffrey Schmitt: So it is in the interest of the people who have building that are in the flood plane as defined by FEMA
for us to make these changes otherwise, their insurance cost to the Federal government could potentially double.
Tommy McNeill: What is the impact of what Samantha is discussing? How does that change the dynamics of your
presentation? What is the impact of her statements in regards to the changes?
Glenn Bowles: Should that private road been non-existent last year and they wanted to build it today, they would have
to get a no rise certificate through FEMA. I am only involved in seeing it and signing off on the findings of the engineer
or surveyor. All the work is approved at a federal level. We, as staff, are only involved if we see a situation like that,
we make sure the owner knows the ramifications of the situation. There have been four studies done and a fifth on my
desk today. Our involvement is minimal. We don't require these unless we see a violation.
Jeffrey Schmitt: Is it possible to write a dause to address Samantha's question. I have a stream running through my
property and while it is not designated, let's say hypothetically does, and say that t have a road that goes through: it
with a small covert that has not flooded out It appears from the discussion that I wanted to add an inch of gravel to
that road; I would have to incur fairly significant costs from a study?
Glenn Bowles: Yes.
Jeffrey Schmitt: That is not right. We have to accommodate them making some modification that road without
spending $30,000. That is part of the obligation this board has.
MOTION made by Judith Wegner to recommend to the Board of County Commissioners that they adopted the
proposed ordinance that begins on page 47. We request staff to review whether additional modifications may be
warranted in Section 6.32.6 and Section 6.32.7 to provide waivers of requirements of extensive engineering
studies in the event of the need to introduce fill but have minimal impact on other properties in the area.
Seconded by Larry Wright.
Judith Wegner: My reasons are taking something that has been one format into another format so it is not a
matter of introducing new added requirements but simply trying to conform to the FEMA requirement even if it is
silly. I think people are entitled to have flood insurance. I appredate what is said about farms but I think the
73
County Attorney has done a good job to craft something that addresses that. We have given ample notice to
individuals who came out. We are not being ask to write a flood hazard zoning provision from the get go, we are
being ask to do a procedural thing to shift this into a competent of the zoning ordinance where we are going to be
moving to unify development ordinance presumed to what the Board of County Commissioners has indicated and
it does not make sense to say stop and not do anything because I think it will be brought into uniform format in
any event.
Samantha Cabe: Under Farm Exemptions, any non-farm use of farm property, will that include farm roads, gravel
roads especially if a residence in on the same property and 1 agree that brings the feds in that preempt the staff but I
think brings the whole thing back under the county's umbrella because we are creating this specal flood hazard
overlay zoning district which is governed by this ordinance. If we are saying the we are requiring farms to comply with
this special overlay zoning district, aren't we saying they have comply with this which is going to be part of our zoning
ordinance?
Judith Wegner: For the last point, there is a double negative in that it says provisions do not apply except as, which is
designed to say is that only in so far as this piece would apply as to what amount to non-farm use of farm property. I
don't think there is definition of that in here. I haven't looked at all the case law interpreting that part of the state statue
but I remember it says used as a bonafide farm so that the bonafide farming use is what is central to it.
Samantha Cabe: My biggest concern is number 3 because it seems what we are saying is that farms are except as
they have to be in compliance with this...
Judith Wegner: particular slice which is what they have always been required to comply with which is not being
imbedded into the zoning ordinance.
Samantha Cabe: The Special Flood Hazard Area Overlay Zoning District?
Judith Wegner: Yes. It is taking what it used to be called and saying this is the piece of it too.
Samantha Cabe: Were farms subject to this prior to now?
Craig Benedict: Yes.
Jay Bryan: Where were they subject? In the ordinance, the provisions under 1.5 say that provisions of this whole
zoning ordinance do not apply.
Glenn Bowles: They were subject to the flood damage prevention.
Judith Wegner: It is not in the zoning ordinance.
Jay Bryan: In that particular section, they were subject to that?
Glenn Bowles: To the flood standards, yes.
Jeffrey Schmitt: Number 2 which states, including all applicable flood rate maps, so the map was drawn by FEMA and
FEMA outlined the maps on page 89?
Glenn Bowles: Yes.
Jeffrey Schmitt: The County does not have a restriction for the creation of a flood plain district greater than FEMA?
Glenn Bowles: That is correct.
Mary Bobbitt-Cooke: I would like to offer a friendly amendment. I think it would behoove us to have a state lawyer look
at this language to see if is consistent with state law. I think that Counselor Gledhill did a good job but I would not want
to put something in place and find out we guessed wrong.
74
Jeffrey Schmitt: We are attempting to look out for the farming community in this county to the maximum amount
that we can given what FEMA said. We are not trying to burden the farming community with additional
regulations.
MOTION made by Judith Wegner to recommend to the Board of County Commissioners that they adopt the
proposed ordinance that begins on page 47. We request staff to review whether additional modifications may be
warranted in Section 6.32.6 and Section 6.32.7 to provide waivers of requirements of extensive engineering
studies in the event of the need to introduce fill but have minimal impact on other properties in the area. We invite
the Board of County Commissioners to request a review of provisions related to bonafide farms by the State
Attomey General's office. Seconded by Larry Wright.
Samantha Cabe: Is the process for amending the current ordinance that is not part of the zoning ordinance
different that amending the zoning ordinance?
Judith Wegner: If you are going to amend the zoning ordinance, everyone gets notice but for other types of
things, then if there were further modification then there would have to be appropriate notice to a targeted
audience.
Samantha Cabe: Why I would be in opposition to your motion is it seems that the ordinance in its current state
would be easier to amend if it were made part of our zoning ordinance and then we amended it.
Judith Wegner: I think you would end up with the same result. If we didn't act on this now, you would probably
have to give two more sets of notice, one would be to anything specific about the road to it, the raising and then
they would have to re-notice and redo the broader hearing if we were coming up with a different formulation.
Michael Harvey: One reason we had to go through this process is because we are creating a special flood hazard
overlay district. If this is placed in the zoning ordinance, we would have to follow the established parameters
under our ordinance to modify existing regulatory standards which would not require notification but would require
ads in the paper, public hearing, etc. The County attorney's opinion is that amendments to the Flood Damage
Prevention Ordinance as a separate entity has to occur consist with any currently established parameter for
zoning.
Samantha Cabe: Even if it is not part of our zoning ordinance, we should follow the same procedure?
Michael Harvey: Yes.
MOTION made by Judith Wegner to recommend to the Board of County Commissioners that they adopted the
proposed ordinance that begins on page 47. We request staff to review whether additional modifications maybe
warranted in Section 6.32.6 and Section 6.32.7 to provide waivers of requirements of extensive engineering
studies in the event of the need to introduce fill but have minimal impact on other properties in the area. We invite
the Board of County Commissioners to request a review of provisions related to bonafide farms by the State
Attomey General's office. Seconded by Larry Wright
VOTE: (2 opposed)
Attachment Six (6): Staff memo
MEMORANDUM
To: County Manager and BOCC members
From: Craig N. Benedict, Planning Director
Glenn R. Bowles, CFM
Date: March 16, 2009
Subject: Clarification of Planning Board Comments Regarding
Maintenance to Private Roads and Farm Lanes
At the March 4, 2009 Planning Board meeting, the Board voted to recommend to
the BOCC approval of, with requests for additional work:
• Incorporating the amended FDPO text into the Zoning Ordinance text;
• Making bona fide farming operations subject to Special Flood Hazard Area
Overlay District standards, regulations, procedures, and definitions;
• Creating a new Zoning Overlay District -Special Flood Hazard Areas
(SERA);
• Affirming the various amendments to the FIRM (future SFHA Overlay
District) that FEMA approved on February 2, 2007; and
• Correcting definitions and references in the Subdivision Regulations to
reflect FDPO terminology.
One of the requests for additional work was a more definitive explanation of how
proposed Sections 6.32.6 & .7 of the Zoning Ordinance would affect
maintenance of existing private roads and farm lanes and field access roads.
The intent is to not overburden farmers and private road owners when road
maintenance is needed only for situations involving special flood hazard areas
(regulated floodplains).
Planning staff is presented with two challenges regarding roads built in regulated
floodplains: (1) how to regulate new construction and (2) how to manage existing
roadway maintenance issues such as resurfacing and culvert sizing.
New Construction
For all new road and/or bridge construction in regulated floodplains, staff will
require a "no-rise" or "no-impact" analysis, which typically will lead to a FEMA-
approved Letter of Map Revision. That process is described as follows:
/ Prepare detailed engineering drawings and hydraulic/hydrologic studies
for the stream crossing.
/ Submit to FEMA all required documentation and paperwork for a
Conditional Letter of Map Revision (CLOMR).
/ Review by FEMA and/or North Carolina Emergency Management -
Floodplain Mapping Program.
75
76
/ Receive FEMA and/or North Carolina Emergency Management -
Floodplain Mapping Program approval in the form of a LOMR.
Once the applicant has received FEMA and/or State approvals, an application for
a Zoning Atlas amendment can be submitted to Orange County in time for the
next available Quarterly Public Hearing. Property owners shall be notified of
proposed amendments in accordance with Article 20 of the County's Zoning
Ordinance.
The stream crossing and approaches will also require a Floodplain Development
Permit.
^ Prepare detailed engineering drawings and hydraulic/hydrologic studies
for the stream crossing.
^ Submit to FEMA all required documentation and paperwork for a
Conditional Letter of Map Revision (CLOMR).
^ Review by FEMA and/or North Carolina Emergency Management -
Floodplain Mapping Program.
^ Receive FEMA and/or North Carolina Emergency Management -
Floodplain Mapping Program approval in the form of a LOMR.
Once the applicant has received FEMA and/or State approvals, an application for
a Zoning Atlas amendment can be submitted to Orange County in time for the
next available Quarterly Public Hearing. Property owners shall be notified of
proposed amendments in accordance with Article 20 of the County's Zoning
Ordinance.
After taking public testimony and comments at the Public Hearing, the BOCC
shall refer the Zoning Atlas amendment to the Planning Board. Final action on
the Zoning Atlas amendment request occurs after the Planning Board
recommendation is received. Preliminary Plat approval may be conditioned on
Zoning Atlas amendment approval and no construction shall commence until the
BOCC approves the Zoning Atlas amendment. However, if the stream crossing
does not impact the base flood elevation, then a Zoning Atlas amendment is riot
required. Stream crossings and approaches will also require a Floodplain
Development Permit.
Such studies and analyses are expensive and tend to be part of either a major or
minor subdivision review and approval process. Other ways to require the
studies are through the building permit -zoning compliance review process.
Private of farm road maintenance
The second scenario was of more concern to the Planning Board, particularly as
the standards set forth in the proposed Sections 6.32.6 & .7 of the Zoning
Ordinance relate to the maintenance of private roads and farm lanes or field
access roads on active farm operations. Staffs concern is that these roadbeds
can and do act as impediments to the free flow of floodwaters. They can
77
impound floodwaters, which in turn back onto upstream properties or over wash
the roadbed causing loss of road bed materials, erosion and general decline of
the "drivability" of the road.
After discussing the general situation with Gail Hughes and staff in the Orange
Soil and Water Conservation Office, staff proposes the following solution. When
individual property owners determine the need to repair their roadway and before
they begin to spend money to correct the situation, we would ask them to meet
informally with Planning and the Orange Soil and Water Conservation staffs to
explore various options and to suggest the least costly and lowest impact
solution. The intent is to minimize the cross sectional area of the road bed and
select the optimal culvert size such that "no-rise" studies are not warranted.
Should these meetings identify opportunities to address water quality issues, we
can also bring into the conversations Erosion Control Division staff to advise the
property owner.
This does not waive any of the engineering requirements of Sections 6.32.6. &
.7, but may allow the property owner to proceed without incurring the analytic
costs of a "no-rise" or "no-impact" solution. If staff consultations are not
successful in reducing the floodwater impacts of the road maintenance, then the
owner will have to proceed to retain private expertise to complete the required
studies before construction can be permitted.
_ -~.;. ~ -
LAW OFFfCES
COLEMAN, GLEDHILL, HARGRAVE & PEEK
A PROFFSS[ONAL CORPORATION
129 E. TRYON STREET
P. O. DRAWER 1529
HILLSBOROUGH. NORTH CAROLINA 27278
919.732.21%
FAX 919-732.7947
wwar.cg[zp-Eaa.wm
April 13, 2009
Mr. Glenn Bowles
Orange County Planning Department
Flood Damage Prevention Program Administrator
Orange County Planning Department
P.O. Box 8181
Hillsborough, NC 27278
FROM THE DESK OF
GEOFFREY E. GLEDHILL
E-MAIL g~ed6Bl~cghp•lamaro~n
Re: Amendments to County Flood Damage Prevention Ordinance
Dear Glenn:
The purpose of this letter is to: (1) address the applicability of the proposed flood damage
prevention regulation to property used for bona fide farm purposes, and {2} address the public
notice requirements for zoning atlas and text amendments necessary for incorporating the flood
regulations in to the Orange County Zoning Ordinance and Orange County Zoning Atlas.
Proaosed Ordinance & Atlas Amendment & Bona Fide Farms
N.C. Gen. Stat. § 153A-340 contains the "grant of [zoning] power" to counties from the
North Carolina General Assembly. This grant of power limits a county's ability to apply its
zoning regulations to property used for bona fide farm purposes.[ The bona fide farm limitation
contained in county zoning power has prompted a question about the efficacy of incorporating
the current freestanding Flood Damage Prevention Ordinance (the "FDPO" or "Flood
Regulations") into the Zoning Ordinance. It is our view, as discussed more fully below, the
incorporation of the FDPO into the Zoning Ordinance will not impede or otherwise interfere with
the applicability or enforcement of flood damage prevention regulations as they relate to bona
fide farms anymore than the existing regulations are impeded by the dual ordinance structure
now in place. Further, it is our view the proposed incorporation of FDPO into the Zoning
Ordinance will have the beneficial effects of eliminating the redundancy of having two "zoning
ordinances" {with separate enforcement and variance procedures within each) in the County and
marks a step toward the County's desired goal of creating a unified development ordinance.
~8
' This~limitation does not limit a county's power to apply its zoning regulations to the use of farm property for
nonfarm purposes. There is no "bona fide farm" limitation in N.C. Gen. Stat. § 160A-381, tbe grant of zoning
power to cities and towns.
79'
The Flood Regulations are "zoning regulations" as defined by North Carolina law
because they regulate the location and use of buildings, structures, and land_ "The General
Assembly has delegated to the legislative body of [counties] the power to adopt zoning
re lotions an from time to time amend or " 2 "
gu d, repeal such regulations. A zoning ordinance
may regulate and restrict the height, number of stories and size of buildings and other structures,
the percentage of lots that may be occupied, the size of yards, courts and other open spaces, the
density of population, and the location and use of buildings, structures, and land for trade,
industry, residence, or other purposes." 3 "These ordinances maybe adopted as part of a unified
development ordinance or as a separate ordinance.s4 Except for swine farms with large "waste
management systems," .zoning regulations do not apply to real property used for bona fide fann
purposes {unless the farm property is used for nonfarm purposes).s
Part 6 of Article 21 of Chapter 143 of the North Caroling General Statutes gives local
governments the specific authority to adopt ordinances to regulate uses in flood hazard areas and
grant permits for the use of flood hazard areas 6 However, this statute specifically permits
farming,. pasture, outdoor plant nurseries, horticulture, forestry, mining, wildlife sanctuary, game
farm, and other similar agricultural, wildlife and related uses within flood hazard areas.
The existing FDPO, like the attached proposed resolution incorporating the FDPO into
the Zoning Ordinance, cites multiple sources of authority for enacting flood regulations within
the County. This authority, includes the zoning authority discussed above, the authority given to
local governments specifically related to regulation of uses of land within flood hazard areas also
discussed above, as well as -the general police power given to counties to protect the health,
safety and general welfare of its residents. Regardless of whether the Flood Regulations exist as
a freestanding ordinance or whether they are incorporated into the Zoning Ordinance, there is a
risk that the regulations will be deemed inapplicable to the use of property far bona fide farm
purposes. However, since the both the freestanding FDPO and the proposed amendment
incorporating the same into the Zoning Ordinance cite the same enabling legislation, the risk is
not increased by the incorporation of the regulations into a unified ordinance. In short, the
question of whether or not the bona fide farm exemption to the County's zoning power impacts
the enforceability of flood damage prevention regulations is the same today with the County's
dual zoning ordinance structure as it will be if the County decides to unify its flood prevention
land use regulations as proposed with the current amendments..
Therefore, it is our view that the recommendation from Planning Staff to incorporate the
FDPO into the Zoning Ordinance that was articulated in a Board of County Commissioners
agenda item abstract on August 28, 1995 be pursued to conclusion at this time. It is our view
doing so will not change the likelihood the County's flood regulations will be inapplicable to
bona fide farms.
z In re Markham, 259 N.C. 566, cert. denied, 375 U.S. 931 (1963).
3 N.C. Gen. Stat. § 153A-340(a)
4 Id_
5 N.C. Gen. Stet. § 153A 340(b)(1)
6 N.C. Gen. Stat. § 143-215.54(a)
7N.C. Gen. Star. § 143-215.54(b}(1) .
80
Notice Re uirements
The proposed amendments at issue aze designed to not only incorporate the FDPO into
the Zoning Ordinance, but they are also designed to update the current regulations with current
mapping data and to address several technical deficiencies noted in the recent Community
Floodplain Management Regulations Review. Letters to you and the Planning Director from
Brian dated December 12, 2006 and January 5, 2007 outline the reasons why the FDPO should
be incorporated into the Zoning Ordinance and why amendments to the FDPO should be handled
in the same manner as amendments to the County's Zoning Ordinance and Zoning Atlas. These
letters echoed the view of the State Attorney General's office, that the FDPO should be amended
in the same manner as required for the amendment of zoning regulations generally.
We are aware of the significant expense and administrative work that went into sending
certified mailings to ail affected property owners and those property owners within 500 feet of
affected property given the large number of property owners who fall within the "notice ring".
However, this notice is necessary given the fact the proposed amendments are in fact "zoning
regulations" as discussed above. "[A] zoning ordinance or an amendment thereto which is not
adopted in accordance with the enabling statutes is invalid and ineffective." Sellers v. Cit~f
Ashville, 33 N.C. App. 544 (1477). Because the County's notice requirements do not permit
notice by publication when there is a Iarge number of affected property owners, the numerous
mailings prepared by the Planning Department are necessary in order to implement the proposed
changes to the FDPO and the Zoning Ordinance.
We also recognize the significant public outreach effort that was necessary to comply
with the amendment process within the County's Zoning Regulations and inform the public
about the proposed new flood regulation construct. Please let us know if we can offer additional
assistance to you in this complicated amendment process.
COLEMAr
Attachments
cc: Board of County Commissioners
' Valerie P. Foushee, Chair
Alice M. Gordon
~EK P.C.
Pam Hemminger
Best Regards,
81
Barry Jacobs
Mike Nelson
Bernadette Pelissier
Steve Yuhasz
Brian Crawford, Chair, for the Planning Board
Laura Blackmon
Craig Benedict
Geof Gledhill
Annette Moore
82
Attachment One (1): Resolution
RESOLUTIOl~T
A RESOLUTION AMENDING TI3E COUNTY
FLOOD DAMAGE PREVENTION ORDINANCE, ORANGE
COUNTY ZONING ORDINANCE, ORANGE COUNTY
SUBDIVISION ORDINANCE, AND OFFICIAL ORANGE .
COUNTY ZONING ATLAS
April 21, 2009
WHEREAS on July 15, 2975 Orange County became a participant in the Emergency Phase of the National
Flood Insurance Program thus making flood insurance available to property owners through the National Flood
Insurance Program (NFIP), and '
. WHEREAS on March 16, 1981 the Federal Emergency Management Agency (FEMA} converted the County
into the regular phase of the NFiP bringing full benefits to the citizens of the County, and
WHEREAS tbere are currently sixty-two (62) flood insurance policies enforced within the unincorporated
portions of Orange Coumy, and
WHEREAS the County is required to maintain an updated Flood Damage Prevention Ordinance (FDPO) in
order to remain eligible for the NFIP, and
WHEREAS the County desires to repeal its existing FDPO and adopt the following regulations in order to be
in full compliance with Federal and State requirements for flood damage prevention programs, and
WHEREAS pursuant to the authority granted to counties by Article 6 of Chapter 153A of the North Carolina
General Statutes (NCGS), specifically NCGS 153A-121, the County hereby enacts the following flood damage
regulations to protect the health, safety, and welfare of the citizens of Orange County, and
WHEREAS pursuant to the authority granted to• counties by Parts 2, 3 and 4 of Article 18 of Chapter 153A of
the NCGS, specifically including NCGS 153A-340, NCGS 153A-330 and NCGS 153A-352; the County hereby
enacts the following flood damage regulations for the purpose of protecting the health, safety, and general welfare of
the citizens of Orange County, and
WHEREAS pursuant to the authority granted'to counties by Part 6, Article 21 of Chapter 143 of the NCGS,
specifically including NCGS 143-215.54, NCGS 143-215.56, and NCGS 143-215.b1 the County hereby enacts the
following flood damage regulations to protect the health, safety, and general welfare of the citizens of Orange
County, and
WHEREAS pursuant to the authority granted to counties by Part 3, Article 4 of Chapter 153A of the NCGS,
specifically NCGS 153A-47, a county may in an ordinance adopt by reference to a published technical code or a
standard or regulation promulgated. by a public agency,
83
THEREFORE BE 1T RESOLVED that the Board of Commissioners of the County of Orange,
North Carolina, hereby repeals its existing FDPO in its entirety and amends {indicated by
~ text for proposed deletions and underlined text for proposed additions) the Orange
County Zoning Ordinance, the Orange County Subdivision regulations, and official Orange
County Zoning Atlas as follows:
12/i2/200fi TtJE 16:43 FAS
~~~:. -
. ~~ . .
- Statf~ of `r~rlh C,~trcfl~na -
~i~ i~~i.iFh7t' t~trn4~~64 ~~:i' .
~~rt~ ~.t~-'!4t~~. 1 •'t r, (3s~_ii-"• REt'LY'!'~
• _ ~~~ .. CrtmeCoar+vlSSacttan
• -'.'~~='•' (919)716.6565 -
September 14, ?A05 . .
. Plti! I.etsirmger ~ - -
Nation8! Flood insurance Program (NFIP) _ .
1~.G Divisiomiof)rmergemmcy Management .
4713 ~Viat-I Service Center - - _
Raleigh. North Corollas - ~ -
Dear Phil: - - . - ~ - .
84
_ Yon requested information concbrning the proper way to mend mnmmicipal flood -
- ottliiranct;3 under?Jorth Carnfiae law. The•I~ivision ofF,mergencyMaaagennent serves as state
' coordinator of the blaliotmal Flood Lmsm~ance Program (i~~F1P)- I mmdesstand that the Federal
Enmergmcy Management Agency (F1~1dA? requu~o7 North Carolina to devebp a state tnadel _
floodplain management ordinance. FE.IIIA noted that some states allow ardinatares that
autamaticalty adopt revisions. while other estates require that each aadinatiCe and revision thereto
. must be formally adapted by the appropriate municipal gcrvartiiag body. The~gcestio>a regarding
-~ - - the appropriate legal means to adopt andlor r~wise ordirranees is signifit~nt as it relatts to flood '
insrmsrarmcc maps. As developrnart occurs and'candi[ions change, "the maps clmange ter reflect the.
effects an Eloodvvays and floodplains. There are actual maps that tttay ba amended by a letter of
- amendment. Communities participating in fist titF[l'- administer their program as part of a zoning '
pre~• - ~ .
t~sgaily, state law requires that zoning ordinances acid maps arc adopted and ievisod by
specific state law prooeduxes. FEMA has r+eyuested an opinion ~egandutg whetlmer• North Carolina
. law regattas that ~otriag ordinanos:s and maps are adapted and revised using specific stela law .
. - procedures. Furtht;r, FE.A/IA has requested an opinion regarding vrhether ittcoaporatiaQi by .
rcferesnre of Future aramendtitents~to atather statute, rule or regulation o~riUes an unlawful
delegation of legislatir~ power. Specifically. FEMA has requested an opinion regarding whetimor
under Nord! Carolina law tiTorth Caroline's f ioodplain trtatta~aeamt model ordina~mce may • .
. provide for the automatic adoption of reti~isions to such ondinaitce without any fmtlmer legislative . .
action by the jurisdit~ion's governing body. FE1alA wants m know whether nay necessary ~ -
ordinance revisions based upcxt new hazard.data provided by FEMA and incorporating any future
• chaimgesa in Iti"FlP floodplain management criteria may be made. Them; the issue is w6etlmer
• '_darth Camtina's model floodpiain matmagetnent ordinance may spocify that maps "aimd any - .
• revision thereto" or "as amended" are automatically adopted by the Qrdiaaimce v~rithout an
amendment of the ordinance. " it ihat this is not ptrmissrble ender the North Carolina
12/12/2006 TIIS 16z44 PAZ
Page 2 of 8
Gonstitutian.
A. The ~1 G Blood Dan~ge Pnweat~n Urdiaance.
- I undeastand that Article 3, Sertian B. of the model North Camlina Flood Damage
Preventicsn Ordinanoe staters: ..
The Special. Flood I3azard Arras are those identified by the Federal P~nerrgearcy _
Mauaganeatt Agenncy (FEMA) or pnnduccd tinder the C~gerating Teclaaical 3tatc
(CTS) agreement between the State of North ~orolioa and FElV1A in~its FiOOd
Hazarti Bouadary MaP (FT3BAi1} or Flood Insuo~ce Study (F1S} and'its
accompanying #lood maps such as the Flood lnsuraBCe Rate Map(s) (FIRM) '
and/or the Flood Boundary Floadway Map(s) (FBFM), for -
{cammwtity) dated , whidr with
acx~ompanying sappoafirig data, and ruer rerfsfan tlrerdo. iucludiicg LetDers of
Map Amendment or. Revision, arc adopted by refeiencc and declared to tie apart
of this ordinance. The Special Flood Hazard Arcas~ also include thos$ defined
tlutaitgh~ s~tand~+d.mgineeting analysis foe private dcvelopnretrts or by
goverurneertal agencies, but which have iiot yet bcen incoipotated ~ the FIltM.
This includes, but is not limited m, detailod fiooa data: .
- ~ 1. gera«ateci a~ a requirement of Article 4, Section C(11 & 1Z) this
_ .Oiidmance;~ - ~ -
- 2. prelimuasry FIRMS whine mote stringent than the cffectit~e FatM;
or ~ '
3. post~lisaster Flood ReoovcryMaps. - ~ ' .
Mnn4cip$I: tra addition, upon an»exatiart to ~ .
(municipality) or ineinsion in the Extr~Territorial Jurisdiction (ETJ), the Special
flood Hazard Arras idatfif'icd by the Federal Emerg~acy Matragtsne~t Agency
(FF~IA) and/or produced tinder the C,oopecating Techarical State agroem.ent
bdween ffie State ofNoath Carolina and FEMA as stated move for the
Uniacorporate+dAuras of .
County, with accompanying maps and other s~rpporting data, aJtd amen
thtrieto. are adopted by refar~ce and doclared'ta be a part of this ardinaacc.
Article 6, Sec#ion A of the model North Carolina Flood Datnage Prev~tion Ordinance states:
This ordinance in part comes foravat~d by i~a•enaGment of wane of the provisions of the
t]ood damage prevention ord"usance aracroed (original adoption date of this '
ordiermree} as amendeid, and it is not the ir-ten#ion tb repeal but rathrr 1u re-~ pact and
continue to enfosee without intcauption of suct- eatistiag: provisions, So that all rightsand -
~ 85
]:2/12/2096 TU8 i6: 48 FAZ
- - ~ X86
_ 3 .-
.. ~ ~
' {
. Page 3 of 8 ~ - ,
• ~ liabilitis>s that have accrued thereunder are reserved and maty be enforced. The enactament
of this ordinance shall not affocf any action, salt ~ pt+ocxeding institi+ated or pending. All
psanvisiaass of the flood d~$raage prevention vrdisnarsu:e of _ j
- ~ (~~). ~~# ~ - ~ ~ _ (aigirral adoption date of
. ~ -Chia ordinance}. as amerederL which ate not raxaaated hareun are repeated. Sec Assticle 6, ~ ~
_ Section A,of the North Carolina Flood Damage Prevention tlydins3ave, (Eu6phasis s
-added}, ~ - j
i
& The Nations[ Flood Iasarance Psagram,
,,
The National Flarod Insrirance Frugram ~} at 42 U.S.C. 40Q1 ~. seq., seep "as a i
. ~ ~ matter of national policy, a reasonable method of sharing the risk of Flood lasses ... through a ~ 1
program of flood insurances which.can complement and es~ourage preventive and protective -
- measures." Spscifita!!y, the NFfl''s piutpose is to :.. ~ ~ '
. . (3) r~nire states or lava! conrit<unities, ass a condition of fntu~e Federal financial ~
assistance; to participate is the flood insurance prog<atn s~ Lo adopt adesXuate {
. . ~ floodplain osrd~ances with effactiva enaffarcement provisions consistent with
Federal attaridards to reducx or avoid~futsarre flood losses ..•.. 42 US.C. 4002. .
- i
ItEMA irirplexhents rhea: NFIP. FIINA is authoxixed bo matke flood instrran~ce arvaila~ie otsty iri
. ~ ebatrmreniti~ that have adopted fioodpisin ruanagetne~ regulations that rout minirniurn NF1P ~ j
standards and.t7mt. are anforcing.thot;e aregulattions~ is flood Ira2ard areas. 'The NP'1P Act provides
'tl>lal After December 3I , 1971, rsso nevv flood instu~noe coverage sha11 be provided undue this i
title in any amen (or sanbdivisioir thereof) unless an appropriates public body shall have adopted
•• adequate land•vse and coradrol measures (varlth eff$ctive esarforceinea~ provisions) ovhich the 1
Diss+~tor finds are consistent with.the comparel-ensive cariteria for land management and ure under ~
. .. ,
.
C.. I.eg[slative Power of the Stafe Vested to tie Lepslatnre.
The l+torth Carolina Constitution pravidcs that the tegisiatirres power of the Stott is vested
• in the General Assembly. N.C: Const. art. II, § t. Narr~lly, le~istative power canna[ be ~ •
delegated except as authorised 5y the Constitution. ; t ex reL '~g~1or v. Carolina Rasing
Assn. 241 N.C. 80, 84 S.E.2d 390 (1954); ~Claes v City of Radsviile. 264 N.C. 581,153
. S.E.2d 139 (1967). Alfhougl! this legistastive power vests•tarchrsive~y lit the [~ieral Assembly
and may not be delegated, these is an exception to this~rale: as it pertains to cities, towns, or
counties. , [.Ate a 1, Tay~~ v Carolina itacina Ass_n•?kl N.C. 80,84 S.E.2d 39Q (1954): -
Gardner v_Crtvof Reidsville 26'3 N.C: 581, >•53 S.E.2d 139 (1967).- 1'owermay bedeiegated to .
• municipalities and the uordinaryrestrictions with respect to the rtelegation ofpower do not
• apply po cities, towns, or cowxtes." ~ensamer v. Matthe~vsorS, 281 H.C. 72x,140 SE.2d 2Q4
12/12/200fi xU8 16:45 FA%
Page 4 of 8 .
{i972).
'i'he ~~ in ASP Associates v. City of Raleie~ 298 N.C. 207, 258 S.E. 2d 444'(1979)
states "Legislative powet is vcs0ed exclttstvely in the Gcnaal Assanbly by Article Q, Secticm 1.
of the Alorth Carolina Constitution. Fisdm this provision and fiom Article 1, Secti~ 6, derives the
principle tt-~t the Geaerlil Assembly niay net delegate its power tQ arty other department or body.
Mctsigger v. P~yrn~n. 21 S N C.15, 9 S.E. 2d Sly (1g40~; Coastal Higln+vtty v. ilea
Authority. 237 N C. 52, 74 S.E. 2d 3I0 (1953). This principle, however, is not absahtte:'
D. The I.egi3latare may delegate power to legislate zoning to cifiez, 6avrns and
- cottttties.. - .
It is settled law that the pov~rer to zone real pmpeciy is vested iu the General Assembly by
section {N.C. ~~,, pri ]Y, ~l.) Christmnt• v. Guilford Couhtlt: 322 irT.C. 6t 1, 370 S.E.2d
579 (1998). "I itp prnyer to za~o is the power of the State and rests initiallywith the General.
Assembly.,. ~a ~fi1L.v City_g~ Diu tg~o .273 N.C. 430,1b0 S.E.2d b91(1964}: • .
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`The Grxteral Assembly has deleted m tlrE~ legislative body of cities and incorporated .
tpwns the power' to adopt zona~g tegulatioas and. ftnra time ~ time„ to aenead or relseal sack
regulations." In ~ 1~rlcha~ 259 N C. 566, • 131 S.e.2d 329, cx~t. denied; 375 U.s. 931(1963):
`"[`he authoriCy of the Cieneaal Assembly to delegate to murt~cipal corpoiatiar~s power to legislata
concerning local prablpns; such as zaiting, is an exceprion to the g~eral rule that legislative
powers, vesood in tho General Assembly by N C. Const., Art Il, §l, may t-ot be delegated liy it~°
J ~ ~ 275 N.G.155, i66 S.e.2d 78 {1969 Hence, . .
zoning is s legislative act that has been delegated to the rituniespalities by the Genfxal Assembly.
' The court jn ASP Associates y. City of Italeielr. •298 N.C. 207, 258 S.E. 2d 444 (1979)
states "Delegations to muniapaluuporad'ons ofthe States' police power to legislate cottoeming
local probietrzs such as zoning is permissr'ble by Ivttg standing ~uception to the general nde of
nai~-delegation of legislative power. 1n Re Marlram-259 N.C. 566,.131 S.l;. 2d 329 (1963);
Jackson v. Board Qf~idj~n ng~t 275 N.C. ISS. lb6 S E. 2d 78 (1969).
Local govermnerus have been delegated the power to Wane their territories and restrict .
therri to specified ptaposes by the General Assanbly Z~€_ f v. City of Wihning~,, 2731~.C.
430, 434, 160 S.E~ 325, 330 {1968 This authority °is subJect both to the . ~.. limitations
imposed by the Constitution and iti the limitations of die enabl'mg statute." Id Within those
limitations. the enactment ofzonitig legislation "is a matte within the discretion of the legislative
body of the city or town." Id. Suxruners v. City of Ch~rtot~ 1491~T,C. App. 509, 562 S.H_ 2d 18
i87
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The General A,ssetn~lyllas delegated the legislative act of adapting and amending zottnng
t~gttlatiutts m mttnicipaiitie$. Zoning is a kgislatfi-e act and only the legislative body of a ' .
rnuniapalityi is authorized to adopt and amend zoning ordinances. Only a law ti~tg body can
adapt and amend a zoning ordinance. I.ee.v_ Ad' ~ 226 N.C.1 OT, 37 g.E?d 12$
(1946); ~tvan v. Wilson. 259 N.C. lOT,130 S.B.2d68 (1963); nliwtiono£Rea Constr. Co..
27Z N.Cr 7I5, I58 S.e.2d 887 (1968}_
The power of a mtmicipality (cities, fawns, and counties} to enact toning ordinances has
beat exprrssly 8 by statxite. The author~ityto adopt, repeal, acrd amend zatiing nc:g»lations
is contained in the "enabling act" that is found in the North Carolina General Stawtes. The state
lavv for adaptiiag zoning ordinances and amendrttents for cities is found at N.C, Gan. Stet. Section
160A 381 et seq: and for oortttries is found at iS3A-320 et seq. State law provides tliaf the city . -
council ar the board of county comtnissiorters pt; ovidv aa6ce to certain landoxmcrs.:~.C G.S.
§ 150A-384 outlines specific p~racednres for adopting zoning ardimances and ameudmettts for '
.cities and morns. See N:C.G.S. ~160A--384 attached. State lttw provides foal for cities acrd to'vvns
"DOttit~ regulations and tastrictrons and zone boundaries may ... be amended, sa~tpleritexttod, _
r.hattg+ed, modified or repealed." If thcre~ is a protest against the change, "an amettdmeat shall not
beootne etT+ective except by favorable vote of tlnuc-fautYhs of all the members of the ca~ty ,
c:ortncil," 1±I.C.G.S..§1 h0A-3$5. Sec N.C G.S. § I60A 385 attached. ~ The sta~bc lavv for adopting
coning order end amendments for oouraies'is tionad at N C.Q.S. § 133A-340. See N.C.G.S.
§153A--340 attached: N.C.G.S. ~I53A-343~and §.153A 344 otdline.specificprocedtttea.far
adopting zoamg ordinances and amendments for couunties. See N.C.G.S. § 153A 343 and ~ 153A.
344 attached ~ .
Zoning or a change in totting is a legislative aei. Regarding counties' authority m_ amend
totting ordtnatices,•thecourt Tn Alderman v. Ch t~h,tm nt 89 N.C: App. 510, X66 S.E.~d 885
(1988), states "N.C.G:S.153A 344 exgc~essly gives counties the power to atnead their zotdng .
ordinances. As a kgstative function, the eoutit}~s act of eatettding its zonutg ordinance is antitled~
.to a preattinption of validity." Sip Associates V. City of Raleigh, 298 N.C. 207,25$ S.E.2d 444
.(197'9). 'Che legislative act of enacting or amending a toning ardirt_attce is invalid ifst is .
unreasonable, arbitrtity, or an unequal exercise of legislative power." .A county's legislative body
'has :tutlrmity to t+ezono when reasonably necessary to do so in the interests of the public health,
safety, moxals err gateral welfare. Ordinarily the only lim'station upon this authority'is that it may
not be exercised arbitraxiiy or.. capriciously. yfj'tllis v iJnion.~out~t~ 77 N.C. Aplx 407, 335
S.E.2d ?5(1985). N.C.G.S. I53A-340 contains the Eegislative grant of power ba crnmlies so
enact zoning ord~ttattces. Deve]~nient 'ores. Luc. V: The Wake Cotmty Ba of
Adiustmeat. 48 N.C. App. 541,269 S.E2d 700 (1980)_
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page 6 of 8
E. >Talarrfnl DeLegatioia of Leglslatlve Antltority or Poveer.
If a law incotporatcs by inference tl~e taw or tuk of another gavemrnenta! cattily ar
private~body and any future changes to that !aw a rule this may constitnte an unlawful ddegati>m
of legistaliva authority. The nalawful delegation pmal7lem can ac;cur.when a law or cola is.
incorporated as hex or ~ reriserl< If a North Carolit-a law incoCpotates a federal
regulation, as amended, then, the North CCaraoliua law will automatically change wheal those
atnendmenis occur without actimt of the Ilaturz One may as~rt that the state's kgislative
authority has been given to the federal agency. The present issste involves local ~ that
it~oorPorate snaps prepared by or apptovod by a fedea"al a~tcy, FEMA. One may ~asat that it is
unlawful ba pe~ttit FLMA to change what oonsdtutes a poodplain witl~ut any act on the part
of the county ai city.
The N.C. inodd Flood Da~aaga.tion Qrdit~ance required by FI;MA attdt-p1s to
adopt by reference future amoredmcnts.. If a.city adapts 6y reference a statute, together with any
future ameiidtuassts thereto, there is an unlawua! 6degation of lagishtitve antharlty, rendering 0-e
ordinance estiiutiobal. ~nklev,v Motor Vehicles Division. 47 Or App. 2S, 613 P2d 1471
(1980}. See•also ~eople v. I3than, 45 Mich. App. 255, 206 N.W. 2d 511(1973); Warren v State
~~n-alrttctlon +Code Cornrnission. 561Mctt_ ApP• 493, 293 N.W. 2d 640 (197G); ~ea~t . .
Coan~ty Bailkeca Association .a~uth Dakota lac.. 346 N.ViI 2d 'Y37 (S.D. 1984) City of
_ • : S ein'v. Junebhtf_ 83 Oc. App. 540, T32 F. 2d 919 (1987). .
"1Juarmv~is other corms hole that a st~ta t3sat atoanpts to irncatporate futuue changes of
another statute, calla, regolation, stat7dard, or gaideTu~e is ~an uncoustitutioaial dclegation of
legislative povrex. Seer e.g., I~rnational Ass'a ofP j>~gand Meahatncal Oflmials v: ' .
California Bldg St~aldards Comm'n. SS Cal. Agp. 4th 245, 64 CaL Rptr 2d 129,134
(CaI.CtApp_ 1997); Pegp}e v. Pol tition Coritcol Bd.. 83 Ill. App: 3d 802, 404 N.E.2d 352, 35b-
357, 38 ill. Dec: 928 (l 980} r~ambhir v Kansas State Bd. of Fhat7tiac~+. 228 Kan, 579, 618 F.2d
837, 842-843 (1980); ~irlichigan.Mfrs. Aas'n v. Director. of Wo~)~1.y Comte' b
. ~ Buena 134lvfich. App: 723, 352 N:W.2d 712,•715 (1984); Mayer v. I..ord, 37 Ore. App. 59, 586
P3c1367, 371(197$); ~tv of Cha~mbcrlain v ILE~ Lien. Inc 521 IJ.W.2d-13Q, 132^133 (S.D.
1994); Xndeoeadent C_nnity Banlass Ass'a ~ State. 346 N: W.Zd 737.744 (S~. l 984
Woodson v. State: 95 Wash 2ci 257,'623 l?:2d 683, 685 (1980}... [Tjhe adoption by reference of
future legislation and roles are unconstitutional. 352 N.W.2d at 715.
. "the canons of statutory construction apply to the i7aterpretatiou of an ard'maBCe... "
Min v Bd. of Adiustment of C~tY of Kind. l 131~_C. App.1 B 1, 182, 437 S.E.2d 536, 53?
(1993) ('mten7al citation oautted). Harris Coamsunicati lion v: Gastonia 159 N.C.
..App. 598; 583.S.E.2d 419 (2003).
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The ALC. Flood Damage Prevention Ordinance Provides far the autom~ adoption of
revisions m-such ordinance without airy farther legislative salon by the appropriate city courxii
and tIu board of county cornnnissioners. It iacootporutes furore changes irr NF1P iloodptain
management cxiteda. It specifies than malra "ss amended" "aad arty revision llr~o° ar+e
automatically adopted by the Ordinance without an aomeadtnerrt of the ordinance, Adoption of
new FEi1rtA nubs may impact lrazends mapping and zones Property maybe `~rortod" if the
local govecrmnerit adopts or an~rds ~ ordinance that limits or pmohibfts land uses that previously
were alIoived in the a~icctod zone. Art a~inance tltat.prnposts to ~orar property requires
certain notice to the afTected Latrdowaers. A zoning ardinancx that incorposatos by reference aU
future amendmerds br mrsdificatiarrg of flood inaruama maps and subsequent revisions is an
unlawful delegation of legislative authority. ' To incorporate future changes W an ordinance wt7l
unlawfitliy delegate to another body, pemon or entity such-as 1<F.MA the power to changethe.
~r~ance. which is a power that should he raser_ ved to the city coUncr'i or Ure baa~t~d afcoarity .
commissioners. ~ - -
State lave at bLC.G S. §143 215:Sb(g} provides that once FEMA appravea the floodplaia
map for the NI'7P; tlretr, earJr•tocal goverrrmer~t affected by the' f loodplain meat incorporate the
~reviscd map €rrto its IIooeplaitr ordinance. State Iaw at N.GG.5: §IS3A-47. and N.C.G.S. §160A-
7G(#i) provide that a city or county may adopt in err ot~ce regtilatiaais promnlgated.by a
public agency_ These statutes, N.C.G.S. §1S3A-47 and §ISOA 76(b), soexn to pextnit a county or
ccitty to adopt ilre federal regulations prrirnulgated.by a public agency, FEMA. Spexificstlly, these
$tatubes, I~I_C_G.S. §153A-47 sad §164A 76(b}; saint to pEnnit a county ar city to adapt FIIMA's
rules, iuchrdtng but may not Ue linnted to, 44 C.FR. Parts S9 arid 6S, &fr the rna of spetdal
flood hazard areas. Thy stad~rtcs seem to suggest that the city or county may adopt in its
ordinance FEVIA's ~egutatoirs tier mapping specis~t flood hazardareas: It is naclear whether
• these statutes; N.C.G.S. §IS3A-47 and §160A-76(b). permit a ccitty or catuity tai incorporatB
FEMA's future rules a~ future amendrrrents fiat mapping special flood hazard areas.
State law at N.C,G.S. § 160A 384, § 153A 343 and § 1 S3A 344 outline specific procedures
for aarrerzding zorruag ardinancxs for cities, fawns at'rd conpties, respectively; i~clrtdirrg birt may
not be limited to, providing notice. to attain landowners and a public liearitrg. Adoption of
aureadments to the Flood Insurance Study ar the Flood Insyacarrce Ylaps for as area under thG
Local jirrisdictian must bu lane irr accordance with the statutory procedures at Id:+C.G.S. §.I60A
384, § 1 S3A-343 and § I53A 344. "aVhile N C.G.3- g§ L 53A-4 and 16QA-4 mandate that giants
of authority td local govermnenEs be broadly interpreted, zoning authority carunot be ezercrsai is
a manner corrtraty to the express provisions of the zoning enabling authority:' In County of
Lancaster v. Mecklerrbuta Conrrrt~-. 334 N.C. 496, 434 S,E.2d~b04 (1993). It is settled law in
North Carolina say zoning ordinance must be amended in accordance with stale htov. "[A] zoning
ordinarrcx or an arnendmccit thereto which is not adopted in aocoradance with the enabl'mg statutes
is invalid and ineffiect~ive." Sellers v. CitY,af Ashe:villc_ 33 Ai,C. APP. 544, 236.S.E2d 283
(] 977). It bas bcen held that in addition to complying with the state statutory requireiuast, local'
zoning arithvrity mtist comply with all requzluoanerrts of its own local zoning ordinance before
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adoption oir aniendmdnt of a noiring ordinance.. ~rizzelk v. Harnett travmty, ! 06 N_C: App 234, .
416 S.Fi.2d 421(1992). "... [O]nly the legislative body of a muaictpality is authorized to adopt
acct amend zoning otdinances. Only a law making body can adopt and amend a zoning
ordmaoce. i ee v ]ward of Adj 7.25 N.C. l O7, 37 S.E.Zd 128 (1946}; Brvan v. Wilson. -`
259 N.C.107, 134 S.E.2d 68 (1953); application ofRea Co~tr Co 2T2 N.G 715,158 S.e2d
88T (1958). - - -
Thos, North Carolina taw does not coatstitutmnally pCamit local. gbveming bodies ~
incarpnrate by refereaoe nsviaioms in flood itlsucaace maps v~itthout also following the
statutoey provisions for amending the floodplain managrrnent oi~diitanoe undue N.C.C:S. §iGOA-
• 384; § 1 S3A-343 and § t 53A 344. In acxordance with~N.C.C#_S. § 153A~7 and § I60A 76(b~ the
• - •city council ar the baatd of eotrmrissioners macy inaaiporate by reference present maps tltst have-
. been appra~ed by the dty _cotmcil or board of county ronuaissionexs in aceor~danee with
N:GGr.S §160A-384, § 153A 343 and §153A 344. However, if Choy inonfporare future changes
' _ ar future revisions of the maps, this would constimte.an nntawfui delegattion of legislative
~utharity car power. - . - - •
'As you laeow, other states such as Santh Camliua, Mississippi, and Oregon also .
.co~lucled that the incorporation of futru3e changes or rewisions of the maps constituted-an
• unlaa~rfiut delegation of legislative authority ar power aad thus. were unoaastitationaturdertheir
State OOpStittlUOds. .
• This meinoi~andutn is not an Advisory let~ar and-has not been reviewed and •appmved is
accordance with procedures for issuing an Attorney Generals opinion. .
. - - Sincea~ty,
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- Cheryl Pent .
.. Assistant Attamey.
c: Doug Hoeil,.Director,.N.C. Division of Emergency Management
]. Cliais Crew, Hazard Mitigation Section Chief N.G: Division of EM
Lillie Peebles, Agency Legal Spadatist, N.C. Division of F1VI- .
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December 12, 2006
VIA FAGSIlvIII.E
Mr. Glen Bowles
Orange County Plazzning Depazi,ment
P.O. Box $181
Hillsborough, NC 2727$
Re: Amendment to County Flood Damage Preye~ution Ordinance To Reflect
Revised-Flood Insurance Rate Map Panel -
Dear Glen:
During the Development Review Committee meeting on Thursday, December 7,
2006 you asked me to advise Staff as to the proper procedures for amending the County's
existing Flood Damage Prevention. Ordinance {"FDPO"). You informed me that the
County is required to amend its FDPO ,prior to February 2, 2006 to incorporate a new
Flood Insurance Rate- Map ("FIRM") published by the Federal Emergency Management
Agency-("FEMA'~. You further advised, as described in the December 4, 20061etter to
the Orange County Manager (a copy is a#tached), if the County's FDPO is not revised
according to this deadline, then County residents will become ineligible for the National
Flood Insurance Program ("NETT'").
- You provided me with a copy of a letter from William R. Blanton, Chief of
- FEMA's Engineering Management Section addressed to John M. Link that is stamped
wilfi the date of December 4, 2006. This letter states as follows: "Your community is
currently in the six month ordinance adoption period for- Orange County and incorporated
areas that will end on February 7, 2007, when the FIS [Flood Insurance Study] report and
F1RM for your comzfzunity become effective." The letter goes on to state that
"Communities that fail to amend their ordinance and submit it to the State and Regional
. ~ Office ~ for review and approval will be suspended froze participation in the NFIP . -.."
You have informed me that the February 7, 2007 deadline stated in this letter is in error,
and that you have confirmed with FEMA staff that the six-month ordinance adoption
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period for Orange County actually expires on February 2, 2007, instead of February 7 as
indicated in Mr. Blanton's letter.
. i am unclear as to why. Mr. Blanton's letter triggers ,the need for the County to
amend its existing FDPO and what type of amendment is required. First, the letter states
that 'the revised FIRMS that Staff wishes to incorporate into the FDPO are for Caswell
and Person Counties, not Orange County. The letter also states that ~ "Although your
community is unaffected by the updated flood hazard information presented in the FIS
reports and FIRMS, your community does lie on one or more of the revised map panels."
This statement leads me to the conclusion that the revised maps and associated reports do
not contain any changes to current flood hazard data or maps for Orange County. I
assume you have taken the appropriate steps to determine why Orange County is required
to adopt the revised FIRM in its FDPO even though the FIRM does not affect Orange
County..
Secondly, Mr. Blanton's letter states in two places that the revised map panels
that Staff wishes to incorporate into the existing FDPO by amendmen do not become
effective until June 4, 2007. The September l4, 2005 letter from the assistant attorney
general to the N.C. Division of Emergency Management makes the point that North
Carolina law does not constitutionally permit local governing bodies to incorporate by
referencefuture revisions in hood insurance maps without first following the statutory
requirements for zoning map amendments. We agree with this view. ~ Therefore, it
appears that the County is constitutionglly precluded .From taking action in January of
2007 to adopt.a map revision that does not become effective until June 4, 2A07. We do
not recommend making revisions to the FDPO that incorporate a future FIRM that is not
effective on the date the FDPO amendment is enacted. -
We recommend that you immediately obtain clarity on these issues from the
once of the N.C. Division of Emergency Management and the North Carolina Attorney
General.
- When Staff is prepared to proceed with the amendment -to the. FDPO we
recommend the following process.. The Orange County FDPO is freestanding. It has not
been incorporated into the County's Zoning Ordinance. However, it is our view that one
or more North Carolina Supreme Court decisions (see for example, Craig v. County of .
Ci~atham, 356 N.C. 40 (2002)) teaches that . FDPO amendments comply with the
procedures for amending the County's Zoning Ordinance and i#s offciai Zoning Atlas as
set forth in Article 20 of the Zoning Ordinance. This view is supported by the attached
memorandum from Assistant NC ~ Attorney General Cheryl ~ A. Perry addressed to Phii
Letsinger of the ~NFIP and dated September 14, 2005. The procedures for properly
amending the FDPO to incorporate the new proposed language and the new map (FIR.IVI)
are set forth below. Furthermore, the safest way to insure FEMA coverage in Orange
County is for the County to readopt the FDPO as amended and with the new maps as
amendments to the County's Zoning Ordinance.
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Planning Staff recommended this course of action when the FDPO was amended
at the August 28, 1995 BOCC meeting. The abstract for this item states that "Since the
Zoning Ordinance now applies to alt of Orange County's planning jurisdiction, the
requirements of the NFIP could be included in the Zoning Ordinance rather than in a
freestanding Flood. Damage Prevention Ordinance. inclusion of these provisions in the
Zoning Ordinance which would allow for the elimination of the FDPO as a' separate
Ordinance, will be undertaken in the fuha~e during the process of creating a Unified
Development Ordinance." The BOCC meeting abstract making this recommendation is
also attached. The timeline for integrating the FDPO into the Zoning Ordinance has been
compressed .due to North Carolina Supreme Court decisions discussed above. The
original plan to delay incorporation of the FDPO until the adoption of the Unified
Development Ordinance may no longer.be an option if the County wishes to participate
in the NFIP run 2007.
Section 20.2 of the Zoning Ordinance permits an amendment to be initiated by the
Board of County. Commissioners on its own motion {the ""BOCC"), the Planning Board,
or by any Berson or agency that submits an application. Specifically; Section 20.3.2(b}
requires that applications for text- amendment contain, among other items, a written
statement which describes "in detail" changes.which the applicant proposes to make. The
completed application is then reviewed by the Zoning Offiicer who causes an analysis to
be made of the application and prepazes a recommendation for consideration by the.
Planning Board and the BOCC. Thereafter, the BOCC and the Planning Board hold a
properly noticed joint public hearing on the proposed amendment.. Section 20.6.1 of the
Zoning Ordinance requires that `2lotice of public hearing shall. be given by publishing
said notice at least twice in a newspaper of general circulation in the County, stating. the
time and place of such hearing and the substance of the proposed amendment." The first
notice must be published not less than ten days nor more than twenty-five days before the
date of the public hearing. ~ ~ -
As ~ mentioned above, the amendment in ~ this case involves not only a text
amendment to the Zoning Ordinance to incorporate the FDPO in its entirety, but also an
amendment to the Zoning Atlas to incorporate the newly revised F1ItM into the Zoning
Ordinance. Article 24 requires that additional notice procedures be followed in the case
of a .map amendment. Specifically, Section 20.6.3 requires the County to provide written
notice of the public hearing via certified mail to the affected .property owners and all
adjacent property owners whose property. lies within five hundred feet of the affected
property_ This native must be sent no less-than fifteen days.before the hearing date. The
Zoning Officer must certify to the BOCC that the notices were properly, mailed.
Following the date of the public hearing, the proposed amendment shall be
referred to the Planning Board for its consideration and recommendation. The Planning
Board then submits its recommendation to the BOCC at a date certain under Section
20..7.1. The BOCC shalt not consider enactment of the proposed amendment until the
Planning Board makes its recommendation or takes no action on the application. The.
BOCC then makes its decision on the amendment
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As you know, it has been the normal course of conduct for the Planning Board to
consider ordinance amendments that relate to land use and zoning issues, as this
amendment does, prior to being presented to the Board of County Commissioners. It i§
unclear to me how all of this maybe accomplished given that January 23, 2007 is the last
remaining BOCC meeting before the February 2, 2007 deadline.
Flease let me know if you have any questions. regarding this letter.
Sest Regards,
COLEMAN, GLEDHILL, HARGRAVE, & PEEK P.C.
Brian M. FerreA
cc: ~ Laura Blackmon
Craig Benedict
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January 7, 2009
Mr. Craig Benedict, Director
Orange County Planning Department
P.O. Box 818.1
Hillsborough, NC 27278
Re: Amendments to County Flood Damage Prevention Ordinance
Dear Craig:
This letter is to reiterate our recommendation to the Planning Department that the County's Flood
Damage Prevention Ordinance ("FDPO'~ should be amended in the same manner as the County's Zoning
Ordinance and Zoning Atlas are amended as sex forth in Article 20 of the Zoning Ordinance. This letter is
prompted by my receipt on January 5, 2008, of a draft copy of a public hearing notice for a hearing to be
held at the Central Orange Senior Center, 515 Meadowland Drive, Hillsborough, North Carolina on
January 22, 2009 at 7:30 Plvt for the purpose of giving alI interested citizens an opportunity to speak for
or against various amendments to the FDPO. I understand from various correspondences with Glen
Bowles, the County's Flood Plain Manager, that-the proposed amendments are required by the Federal
Emergency Management Agency ("FEMA"} in order for County residents to remain eligible for the
Federal Flood Insurance Program. The proposed ordinance amendments address a "number of problems"
with the ciurent FDPO as identified by Kenneth W. Ashe, Assistant Director of the North Carolina
Department of Crime Control and Public Safety Division of Emergency Management in a letter to then
Board of Commissioners Chair, Barry Jacobs, -on November 7, 2008. A copy of Mr. Ashe's letter is
attached.
I understand from conversations with you and with Glen Bowles, that the County has been
notified by the State FEMA office that it is in danger of being removed from the Federal Flood Insurance
Program if it does not amend the FDPO by the end of January 2009 to address the issues with the FDPO
xaised by Mr. Ashe. I also understand that the County has not received formal written notification of the
pending suspension. The Planning Department is apparently moving forward with noticing a public
hearing that is to be held on January 22 which is the same night the Board of County Commissioners will
be asked to vote on the amendments. It is our view that moving forward with amendments to the FDPO
without following the requirements of the County Zoning Ordinance is not a good idea.
I wrote to Glen Bowles, copying you and Laura Blackmon, on December 12, 200b and on
January 5, 20A7 outlining the reasons why the FDPO should be incorporated into the County's Zoning
Ordinance and why amendments to the FDPO should be handled in the same manner as amendments to
the County's Zoning Ordinance and Zoning Atlas are adopted. The most recent amendments to the
FDPO were adopted on January 23, 2007. The agenda item. abstract for the January 23, 2007. meeting, a
copy of which is attached, requested authorization for staff to, "initiate the Zoning .Ordinance amendment
97
process to incorpoxate the FIRM into the Zoning Ordinance as a new overlay district and to incorporate
the FDPO into the~Zoning Ordinance as suggested by the September 14, 20051etter from Cheryl A Perry
and the December 12, 2006 letter from the County Attorney's Office." This was never done.. Now,
instead of following the recommendations of this office and the authority given to the Planning
Department by the BOCC for amending the FDPO and incorporating the scene into the Zoning Ordinance,
the Planning Department has chosen to move forward with amendments to the FDPO as a standalone .
ordinance. I understand you are concerned that there is not enough time to follow the zoning ordinance
amendment process set forth in Article 20 of the Zoning Ordinance, which requires a public hearing on
the amendments followed by a referral of the amendments to the Planning Board for recommendation
before returning the amendments to the BOCC for 'a final vote, before FEMA removes Orange County
from the Federal Flood Insurance Program.
As I wrote previously, if the Planning Department moves forward with the public hearing on the.
FDPO amendments on January 22, 2009 followed by a request by the BOCC to adopt the amendments
without incorporating the FDPO into the County's current Zoning Ordinances then the FDFO may be
subject to legal challenge on the grounds that the zoning regulations were not adopted pursuant to the
requirements .of State law. For the reasons stated in this letter, and for the reasons stated in our letters to
the Planning Department of December 12, 2006 and January 5, 2007, we recommend that the FDPO be
incorporated into the County's Zoning Ordinance and Zoning Atlas by amendment as set forth in Article
20 of the Zoning Ordinance. _
You outlined this same process and a timeline far adoption of the necessary Zoning Ordinance
Amendments by March of this year in your November I2, 2008 letter to Kenneth W. Ashe. We
recommend you follow through on the proposal you submitted to Mr. Ashe in your November 12, 2008
letter. .
Please let me know if you have any questions regarding this letter.
Best Regards,
COLEMAN, GLEDHII.,L, HA,RGRAVE, & PEEK P.C.
Brian M. Ferrell
Attachments
cc: Laura Blackmon
Glen Bowles
Geof Gledhill
Annette Moare
.. ..t
.: _. ~ •
. - - ~ ~ - - Attachment 1
,~
North Carolina Department of Crime Control and Pnblia SafetS•
DiZnsion of Emergency Mamage~mtent .
Offiice of Ge~spat7ai and Teclm+olagy Management
4719 Mail Sotvioe l.eouter - F~aiaig7~, bfC 27699-4719
• jV.Gcbael F. Fa~uleg Bryan li. Beatty
C"°°erm'°r ~ 3eoratary'
- Navendber 7, 2008 - ~ .
N[r 8atx'y 7acoba
Cha3rmarii, Board of Commissioners - .
Orange Cotmt~r... .
Z00 South Ca~oaexan Street ~ ~ .
Post Office Box 8 f 81
]~borougb, North Carolina 27278 ~ ~ -
R,e: National Flood Insurance Program (NFXP)
. . - Camantaity Assistance Visit (CAV) :.
... wear Mr. Jacobs:. .
This letter is a ~ullaw'~zp tca the CAV conducted in. the Orange Cflnnty Planning and Agdaultxue
Building on August 22, 2008 with Mfr.. Cileamt.Bavr'!es by.Mr: Randy' Mmtdt and•Mr. Mark
Sta~rd. of the Noxtb~ Caroiit~ Divisions of Emergency .Dgetnent (NL'~), alnatg vviih
comsiiltant. Maggie.. Iv~2ttliig. ~ Mi: Baaalea lies 7ieea. very helpful #broughout this process is
answering moons, ai~ainmg copies of rea~uired NFII' records and being available ~ assist
. during tlS.e $eld work conducted Just prior tp this visit; - -
Ifi oxcler•to participate iu ttie NFII',-your eommaunutq has beeat required to establish, admaixxistear,
'acad. eafaroe a floodplain xaanagementt~program that meets or exceeds the minimum standards
established by the NF'1P as set faith is Title 44, Code of Federal Regalaotions (CE+It),. Setrtian
603: Though partEeapation in:tiie NFIP is voluntary fox cdrnmunf#ies ~aiesting NFIP standards,
that partiai~patian allows iooal citizeps to ,obtain a#fox~detrle flood insar~nae thmngti the 1~iFIP as
well' 8s receive 1mosE v8~ei sEate and federal disaster assistance. Of greatest i~sbitance, the goal
. of participation in the NF7P is to reduce the loss of lives and pmper~.y. As obs~cved in working
. 'with your staff dur3og ibis visit, this vision is understood by Urange Cduaty, Your community's
cb»it~ent to' sound fiiaodp]ain manageuaent is apparent in, d!e cons~vatioa of your floodplaixt
in it's natural and nad~eveloped state. Furth, yovir comm~mity's waunitmeiat tra ensuring a solid
98
. 6 Mr. Jacobs ~ -
November 7, 2008 ' . .
Page 2 ~ - , .
floodplaut management program is reflectied in your adoption of higher regulatory standards and '
in your interest in joining the Comnuurity System.
Orange County has parkicipated in the Emergency Phase of the NFIP ~eince Daly 15; 1975, thus
. .making flood insurance available to property owners throagb. the NFIp since this daze. ~
. Iviarcl? 1'6, 1981, the Federal &nergettcy Nlanagettierit Agency {FBIvFA) converted the County
into the Regular Phase of the•NFIP bringing ~u11 NFfP benefits to the citizens of the County. Our
- records indicate .tliat there are ctmently 62 flood insurance policies in- force within the
U~cvrpoxated Areas of Orange County for coverage in the amount of over $1$ Ilion dollars.
' Since the Crnusty.entered the Regular Phase of the 1dFIP in 1981, there have beets clgums totaling .
$98,917. ~ -
.The purpose of-tbis letter is to identify any findings of deficiencies in or violations of 01•a~e
County's floodplaiu m~agemeut program' and. to recommend cnxractive actions and time
regwrernen#s needed to remedy them. -
Based an the field survey of flood biazard areas, an examination of-development panmits and
intervieyvs, the hTCLM Team found your staff to be knowledgeable of the ~I~.' . regulations .slid
' ~ interested is proper enfiarcement of the Cannty's Flood Damage Prevention E)rdin~ance. .
The survey and visit revealed that there has been na development in the-flflodplain'fox several
years. This aeenzs reasonable given #1ie County's desigria~ian of conservation. areas and stream
buffer regalaiians and, given the amount of #loodplain is small cbmpaxed to the undeveloped land
areas vfOrange Cou~rty. ~ ~ . .
.. -The County's Mood llamage Prevention Ordinance adopted in .2007 has been rsviewed.. A
number of problems have been identi$.ed with the County's "ordinance. Specifically; a mmsber of
. deSmitioa3s . aatd doss . refeg require -correction. In additiuya, ttLa CciunCy i~htdes art
"Automatic A~dvpt~ub°' provision m its ordi~nce: ~ Qrdinaavice+s oriritaining the automatic adoption
..provisions were determined by the State Office of tea Attamey f~rieral ire. September X045 _~
no# be con2pliaut. While•tlxe County may leave inthe-automatie adoption langaage, this section
iuust -specifically xeferenee the xe~tly effective map panel (3710989000) dated iViay 1f:,. 200$:
' _ The lango~ge in~Sec#ion. 42-36 should,also be redised~t~o•reraove references bo the Flood Hazard
Boundary M,dli- and Flood: 8oundaxy Floodway Map. ' Both of these are o~isolete• map pmduefs
have no cuXre~t relevaiicj+ in your .community. A..capy of our campieted-ordinance ali+oclr list
' which highlights the areas t~vhere •def%cii~ncies in. y, Dux ainxerxt o~inarioes`were found -is attached
fax your review. Please make the necessary corrections at your earliest oarivenience, liiat no later
.than Ngv~nber 3Q, 2008. Upon c~nilpietiou of ~adaption of the nestled cliai~ges; please send a
- certified Dopy to this a€fice to the attentioa~of Ibh Randy Mundt, : - ~ '
We would lilts to take flue oppaxlunity to xeoaixtcl. you that Federal Code requires thax compliance
retards mist be maintained (available. upon request) an all developmmeot in your Special ~Fload .
€i<azard Areas iu petrpetnity iin ruder to ascertain whether or not the development corrtplies with . • '
applicable floadplain management regula#ioas.. A structure or other development without the
proper flood records sueli as permits, certified elevation data, or other certifications, as required .
in dA• CFR sections 60.3 (a~1}, (b)(5), (c~4), (0)(10), {d}{3}, {e)(2), (e)(4), or (e){5) is presarried
#o be in violation until such docameao~tion xs provided: -
100
Nlr.Iacobs •
November 7, 2A08 - - ~ ~
Page 3
if you need additional time to complete, to revise and adopt your Hood Damage Reductrlon Ordinance,
please suknnit a request 8or an extension in writing prior to the Gctoher 30, 20Q8 deadline. _
Please express our~thanks and appreciation to Mr. Bowles fior his time and assistance in conjunction
with this visit.
Should you have any questions regarding the CAV, please arntact Mr. Randy Mundt at his office at -
(919) 715-5711, extension 119 or through email at mnimdtQnceni.org. We look fotvvard to working
with you in the future in your efforts to promote better floodpk&in nnanagement.
Sincerely yours,
Kenne#li W. Ashe, PB., C]*M ~ .
Assistant Director
Rnclosure
cc: Nlsc Laura Blackmon, Orange County Manager Mr. Glenn •
Bowles, AICP, CFM, Grange County Planner Mr. Craig Benedict,
• Planning Director Mt. Glee, NC~1VI Area.15 Coordinator Mr. Randy ~ •
Mundt, Infierim State NFfP Coordinator, PkGBM Mr. IV1arkStaffird, ~ ~ .
Community Development Planner, NCEM Mr. Prasad Inmula, FBMA .
Region N Mr. John Doman, Director, NCF1VlP Mr. Kenneth Ashe,
Assistant Director, NCFMP File .
A~yY/~~dg- Sb
Attachment One (1): Resolution 1
RESOLUTION
A RESOLUTION AMENDING THE COUNTY
FLOOD DAMAGE PREVENTION ORDINANCE, ORANGE COUNTY
ZONING ORDINANCE, ORANGE COUNTY SUBDIVISION
ORDINANCE, AND OFFICIAL ORANGE COUNTY ZONING ATLAS
Apri121, 2009
WHEREAS on July 15, 2975 Orange County became a participant in the Emergency Phase of the
National Flood Insurance Program thus making flood insurance available to property owners through the
National Flood Insurance Program (NFIP), and
WHEREAS on March 16, 1981 the Federal Emergency Management Agency (FEMA) converted
the County into the regular phase of the NFIP bringing full benefits to the citizens of the County, and
WHEREAS there are currently sixty-two (62) flood insurance policies enforced within the
unincorporated portions of Orange County, and
WHEREAS the County is required to maintain an updated Flood Damage Prevention Ordinance
(FDPO) in order to remain eligible for the NFIP, and
WHEREAS the County desires to repeal its existing FDPO and adopt the following regulations in
order to be in full compliance with Federal and State requirements for flood damage prevention
programs, and
WHEREAS pursuant to the authority granted to counties by Article 6 of Chapter 153A of the North
Carolina General Statutes (NCGS), specifically NCGS 153A-121, the County hereby enacts the
following flood damage regulations to protect the health, safety, and welfare of the citizens of Orange
County, and
WHEREAS pursuant to the authority granted to counties by Parts 2, 3 and 4 of Article 18 of
Chapter 153A of the NCGS, specifically including NCGS 153A-340, NCGS 153A-330 and NCGS
153A-352, the County hereby enacts the following flood damage regulations for the purpose of
protecting the health, safety, and general welfare of the citizens of Orange County, and
WHEREAS pursuant to the authority granted to counties by Part 6, Article 21 of Chapter 143 of the
NCGS, specifically including NCGS 143-215.54, NCGS 143-215.56, and NCGS 143-215.61 the County
hereby enacts the following flood damage regulations to protect the health, safety, and general welfare
of the citizens of Orange County, and
WHEREAS pursuant to the authority granted to counties by Part 3, Article 4 of Chapter 153A of
the NCGS, specifically NCGS 153A-47, a county may in an ordinance adopt by reference to a published
technical code or a standard or regulation promulgated by a public agency,
THEREFORE BE IT RESOLVED that the Board of Commissioners of the County of Orange,
North Carolina, hereby repeals its existing FDPO in its entirety and amends (indicated by s~l~
2
text for proposed deletions and underlined text for proposed additions) the Orange County Zoning
Ordinance, the Orange County Subdivision regulations, and official Orange County Zoning Atlas as
follows:
PART I. That Article 1 Section 1.5 Farm Exemption of the Zoning Ordinance be amended as
follows:
Section 1.5 Farm Exemption
The provisions of this ordinance which are adopted under Chapter 153A, Article 18, Part 3
do not apply to pro~erty used for bona fide farm purposes, as defined within North Carolina
General Statutes, except as follows:
1. Any non-farm use of farm property,
2. Compliance with any and all regulations required to be imposed by the Federal
Emergency Management Agenc~FEMA) throug~i the National Flood Insurance
Program including any and all applicable Flood Insurance Rate Maps (FIRM), and
3. Compliance with the Oran eg County Special Flood Hazard Area Overlay Zoning
District as detailed within this Ordinance.
PART II. That Article 1 be amended to include a new Section, specifically Section 1.7, entitled
Flood Damage Prevention Authority to read as follows:
1.' The Legislature of the State of North Carolina has in:
a. Part 6 Article 21 of Chapter 143;
b. Parts 2 3 and 4 of Article 18 of Chapter 153A; and
c. Part 121 Article 6 of Chester 153A of the North Carolina General Statutes,
delegated authority to county governments to adopt regulations to promote the
public health safet~and general welfare of its citizenry.
2. Flood Insurance Rate Maps ~FIRMLpecificall~ FIRM Map Index 37135
CINDOC with an effective date of May 16 2008 as well as all FIRM panels
contained therein developed by FEMA under a Cooperating Technical State
agreement with the State of North Carolina and the Flood Insurance Study are
hereby established as shown on the Official Zoning Atlas as the Special Flood
Hazard Area Overlay Zoning District, and
3 The Board of Adjustment as established by Orange County shall hear and decide
requests for variances from the requirements of the Orange County Special Flood
Hazard Area Overlay Zoning District
PART III. That Article 2 The Board of County Commissioners and its Administrative
Mechanisms, specifically Section 2.3.6 Application of the Variance Power, of the
Zoning Ordinance be amended as follows:
Section 2 3 6 2 In addition to the standards contained within Section 2.3.6.1, any request
for a variance from the Special Flood Hazard Area Overlay Zoning District shall abide by
the following additional criteria:
a. Variances may be issued for the repair or rehabilitation of historic structures
upon the determination that the proposed repair or rehabilitation will not
preclude the structure's continued designation as a historic structure and the
variance is the minimum necessary to preserve the historic character and
design of the structure.
b. In passin~~on such variances the appeal board shall consider all technical
evaluations all relevant factors all standards specified in other sections of this
Ordinance, and:
i. The danger that materials may be swept onto other lands to the iniury
of others;
ii. The danger to life and property due to flooding_or erosion damage;
iii. The susceptibility of the proposed facility and its contents to flood
damage and the effect of such damage on the individual owner;
iv. The importance of the services provided by the proposed facility to the
Orange County;
v. The necessity to the facility of a waterfront location, where applicable;
vi. The availability of alternative locations not subject to flooding or
erosion damage for the proposed use;
vii. The compatibility of the proposed use with existing and anticipated
development;
viii. The relationship of the proposed use to the Orange County
Comprehensive Plan and floodplain mana eg ment program for that
area;
ix. The safety of access to the property in times of flood for ordinary and
emergency vehicles;
x. The expected heights velocity duration, rate of rise, and sediment
transport of the flood waters and the effects of wave action, if
~plicable, expected at the site;
xi. The costs of providing governmental services during and after flood
conditions including maintenance and repair of public utilities and
facilities such as sewer gas electrical and water systems, and streets
and brid eg s; and
xii. The request for a variance is not after-the-fact or for a situation of
one's own making.
c. A written report addressing each of the above factors shall be submitted with
the application for a variance.
d. Upon consideration of the factors listed above and the purposes of this
Ordinance the appeal board may attach such reasonable conditions to the
' 4
granting of variances as it deems necessary to further the purposes of this
Ordinance.
e. Variances shall not be issued within any designated floodway or non-
encroachment area if any increase in flood levels during the base flood
discharge would result.
f. Conditions for Variances:
i. Variances may not be issued when the variance will make the structure in
violation of other Federal, State or local laws regulations or ordinances
ii. Variances shall only be issued upon a determination that the variance is
the minimum necessary, considering the flood hazard to afford relief
iii. Variances shall only be issued upon:
a. A showing of good and sufficient cause•
b. A determination that failure to grant the variance would result in
exceptional hardship
c. A determination that the rg_anting of a variance will not result in
increased flood heights, additional threats to public safety or
extraordinarypublic expense create nuisance cause fraud on or
victimization of the public, or conflict with existing local laws or
ordinances; and,
d. That the circumstances on the subject property are unique to the
subiect property and not to p operties in eneral
g. Anv applicant to whom a variance is granted shall be given written notice
specifying the difference between the BFE and the elevation to which the
structure is to be built and a written statement that the cost of flood insurance
will be commensurate with the increased risk resulting from the reduced
reference level elevation. Such notification shall be maintained with a record
of all variance actions.
h. The Floodplain Administrator shall maintain the records of all appeal actions
and report any variances to the FEMA and the State of North Carolina upon
request.
2.3.6.3 All of these findings of fact shall be made in the indicated order by the
Board of Adjustment, which is not empowered to grant a variance without
an affirmative finding of fact shall be supported by substantial evidence in
the record of proceedings before the Board.
2.3.6.4 The Board may impose reasonable conditions upon the granting of any
variance to insure that the public health, safety, and general welfare shall
be protected and substantial justice done.
2.3.6.5 Nothing in this section shall be construed to authorize the Board to permit a
use in a district where that use is neither a Permitted Use nor a Special Use.
PART IV. That Article 3 Establishment of Zoning District and Atlas, Section 3.10 Interpretation
of District Boundaries of the Zoning Ordinance be amended as follows:
Section 3.10 Interpretation of District Boundaries
When there is any uncertainty as to the intended location of any zoning district
boundary on the Zoning Atlas, the Zoning Officer shall make an interpretation of
said Atlas upon request of any person. Any person aggrieved by any such
interpretation may appeal such interpretation to the Board of Adjustment. The
Zoning Officer and the Board of Adjustment, in interpreting the Zoning Atlas or
deciding any appeal, shall apply the following standards:
Boundaries indicated as approximately following the centerlines of streets;
highways or alleys shall be construed as following such centerlines;
Boundaries indicated as approximately following lot lines shall be
construed as following such lot lines;
Boundaries indicated as approximately following City Limits shall be
construed as following such City Limits;
4~ Boundaries indicated as following railroad lines shall be construed to be
the centerline of the main track;
5~ Boundaries indicated as following shorelines shall be construed to follow
such shorelines; in the event of change in the shoreline, the boundary shall
be construed as moving with the actual shorelines; boundaries indicates as
approximately following the centerlines of streams, rivers, canals, lakes or
other bodies of water shall be construed as following such centerlines;
boundaries shown as approximately following designated flood hazard
area limits shall be construed as following such limits.
Boundaries indicated as parallel to or extensions of features indicated in
Subsections A through E above shall be so construed. Distances not
specifically indicated on the Zoning Atlas shall be determined by
reference to the scale of the Atlas.
Where physical or cultural features existing on the ground are at variance
with those shown on the Zoning Atlas,, or in other circumstances not
covered by Subsections A through F above, the Board of Adjustment shall
interpret the district boundaries.
b) In addition the following guidelines shall be required in determining the boundaries
of the Special Flood Hazard Area Overlay District:
The boundaries of the Special Flood Hazard Area Overlay District shall be
determined utilizing the Flood Insurance Study;
6
2. In areas between official cross sections the Special Flood Hazard Overlay
District shall be determined by scaling the distances on Flood Insurance
Study maps;
3. The regulatory flood protection elevation must in all cases be the
controlling factor in locating the outer limits of the Special Flood Hazard
Area Overlay District; and
PART V. That Article 4 Establishment of Permitted Use Table and Schedule Section 4.1
Establishment of Use Regulations of the Zoning Ordinance be amended by revising
the existing numbering scheme and adding a new number thirteen (13) to read as
follows:
12. Borrow pits (including reclamation by land filling) associated within a State or Federal
highway project (See Article 6.16.16).
13. Uses requiring special permits must meet certain conditions specified in this ordinance.
Only after the existence of these specified conditions has been determined by the Board
of Adjustment, or the Board of Commissioners, as appropriate, will a special permit be
issued; otherwise such uses are prohibited uses.
14. Regulations governing the use of land and structures within a Planned Development
district are as established in Article 7.
15. Within all districts, subdivisions ....
16. All uses, as detailed within this Section and the Ordinance in its entirety shall comply
with the various standards and development limitations as outlined within the Special
Flood Hazard Area Overlay District.
PART VI. That Article 4 Establishment of Permitted Use Table and Schedule by creating a new
Section 4.2.34 entitled Special Flood Hazard Area Overlay District (SFHA) to read as
follows:
Sec. 4.2.34 Statement of purpose.
It is the puroose of this Ordinance to promote public health safety and general welfare
and to minimize public and private losses due to flood conditions within flood prone
areas by provisions designed to:
a. Restrict or prohibit uses which are dangerous to health safety and property due to
water or erosion hazards, or which result in damaging increases in erosion flood
heights or velocities;
b. Require that uses vulnerable to floods, including facilities which serve such uses be
Lrotected against flood damage at the time of initial construction•
c. Control the alteration of natural floodplains stream channels and natural protective
barriers, which are involved in the accommodation of flood waters•
d. Control filling grading dredging and all other development, which may increase
erosion or flood damage=and
e. Prevent or regulate the construction of flood barriers which will unnaturally divert
floodwaters or which may increase flood hazards to other lands.
Sec. 4.2.35 Obiectives.
The objectives of SFHA Overlay District are to:
a. Protect human life, safety, and health;
b. Minimize expenditure of public monexfor costly flood control proiects;
c. Minimize the need for rescue and relief efforts associated with flooding and
eg nerally undertaken at the expense of the eg neral public;
d. Minimize prolonged business losses and interruptions;
e. Minimize damage to public facilities and utilities such as water and gas mains,
electric telephone cable and other communication facilities, and sewer lines, streets,
and bridges located in flood-prone areas;
f. Help maintain a stable tax base by providingLfor the sound use and development of
flood prone areas in such a manner as to minimize flood blight areas; and
g. Ensure that potential homebuyers are notified that property is in a Special Flood
Hazard Area.
Sec. 4.2.36 Statutory authorization.
Under the authority outline in Section 1.7 the Board of Commissioners of Orange
County North Carolina does enact the SFHA Overlay District regulations as detailed
herein.
Sec. 4.2.37 Findings of fact.
a) The flood prone areas within the ~lanning_iurisdiction of Orange County are subject
to periodic inundation which results in loss of life property, health and safety
hazards disruption of commerce and governmental services, extraordinary public
expenditures of flood protection and relief and impairment of the tax base, all of
which adversely affect the public health, safety, and general welfare.
b) These flood losses are caused by the cumulative effect of obstructions in floodplains
causing increases in flood heights and velocities, and by the occupancy in flood
prone areas by uses vulnerable to floods or hazards to other lands, which are
inadequately elevated flood roofed, or otherwise unprotected from flood damages.
Sec. 4.2.38. Applicability.
This regulation shall apply to all SFHAs within the planning_jurisdiction of Orange
County and within the jurisdiction of any municipality within Orange County whose
~overnin~ body has duly authorized its application within its municipal or extraterritorial
jurisdictional, boundaries in accordance with North Carolina law
Sec. 4.2.39 Basis for establishing the Special Flood Hazard Area Overlay District
SFHA .
The SFHA are those identified by the FEMA or produced under the Cooperating
Technical State agreement between the State of North Carolina and FEMA or Flood
Insurance Study (FIS) and its accompanying FIRMS for Orange County dated February 2
2007, with incorporation of Letters of Map Amendments 07-04-6156R 08-04-2897A
08-04-2898A, 08-04-2899A and 08-04-2900A Letters of Map Revision 06-04-BQ22P
06-04-C141P, 07-04-6156R, and 08-04-1666P and Summary of Map Amendment #115-
CWG (C) dated May 16 2008 which with accompan~g supporting data including
Letters of Map Amendment or Revision and Summary of Map Amendments are adopted
by reference and declared to be a part of this Ordinance. The SFHA also include those
defined through standard en ing Bering analysis for private developments or by
governmental agencies, but not incorporated into the FIlZM This includes but is not
limited to, detailed flood data:
1. Detailed flood data generated as a requirement of Section 21 11 (11/122 of this
Ordinance;
2. Preliminary FIRMs where more stringent than the effective FIRM• or
3. Post-disaster Flood Recovery Maps, if available.
Sec. 4.2.40 Compliance
No structure or land shall hereafter be located. extended converted altered or
developed, improved, or maintained in any way without full compliance with the terms of
this Ordinance and other applicable regulations.
PART VII. That Article 6 Application of Dimensional Requirements by creating a new Section
6.32 entitled Special Flood Hazard Area Overlay District (SFHA) to read as follows:
Sec. 6.32.1 Additional Requirements for the Special Flood Hazard Areas (SFHA)
Overlay District.
In all SFHAs the following_provisions are required:
All new construction and substantial improvements shall be anchored to prevent
flotation, collapse, or lateral movement of the structure.
2. All new construction and substantial improvements shall be constructed with
materials and utility equipment resistant to minimize flood damage.
3. All new construction or substantial improvements shall be constructed by
methods and practices that minimize flood damages.
4. Electrical heating ventilation plumbing, air conditioning equipment and other
service facilities shall be designed and/or located so as to prevent water from
entering- or accumulating- within the components during conditions of flooding.
These include but are not limited to HVAC equipment water softener units,
bath/kitchen fixtures ductwork electric meter panels boxes utility/cable boxes,
appliances washers dryers refn_gerator etc.) hot water heaters, and electric
outlets/switches.
5. All new and replacement water supply systems shall be designed to minimize or
eliminate infiltration of floodwaters into the system.
6. New and replacement sanitary sewage systems shall be designed to minimize or
eliminate infiltration of floodwaters into the systems and discharges from the
stems into floodwaters.
7. On-site waste di~osal systems shall be located and constructed to avoid
impairment to them or contamination from them during flooding.
8. And alteration repair reconstruction or improvements to a structure, which
complies with the provisions of this Ordinance shall meet the requirements of
"new construction" as contained in this Ordinance.
9. New solid waste disposal facilities hazardous waste management facilities,
salvage yards and chemical storage facilities shall not be permitted in SFHAs.
10. A structure or tank for chemical or fuel storage incidental to an allowed use or to
the operation of a water treatment plant or wastewater treatment facility may be
located in a SFHA only if the structure or tank is either elevated or flood proofed
to at least the regulatory flood protection elevation and certified according to
Section 14.6(3) of this Ordinance.
11. Storage of the following chemical compounds shall be prohibited within SFHAs:
a) Acetone,
b) Ammonia,
c) Benzene,
d) Calcium carbide,
e) Carbon disulfide,
f) Celluloid,
g) Chlorine,
h) Hydrochloric acid,
i) Prussic acid,
j) Magnesium,
k) Nitric acid,
1) Oxides of nitrogen,
m) Phosphorus,
n) Potassium,
o)
p)
Sodium,
Sulfur,
Acet,, l~ene
r) Gasoline and any
petroleum product,
s) Lumber,
t) Charcoal or coal
dust
u) Polychlorinated
phenyls (PCBs
v) Polynuclear
aromatic
hydrocarbons
PAHs
w) Volatile organic
compounds VOCs~or
x) Any~rioritYpollutants
listed in Table 1 of
Section 307 of the Clean
Water Act (P.L. 92-5001.
as amended
12. Hospitals, nursing homes, foster care facilities sheriff's facilities fire stations
emeraency operations centers and vehicle and equipment storage facilities shall
not be permitted in SFHAs.
13. Any inhabited structure within any SFHA shall have unobstructed dry access
durin a regulatory flood event.
14. New fill material within any SFHA shall be prohibited
15. Public utilities and facilities shall be constructed to minimize flood dama e
consistent with these and all other applicable Count regulations
16. In cases where development is otherwise allowed within identified SFHA's
adequate drainage shall be provided.
Sec.6.32.2 Specific standards.
In all SFHAs where BFE data has been provided as set forth in Section 4 2 38 or 21 9 the
following provisions are required:
1. Residential Construction. New construction within the SFHA shall be prohibited.
Substantial improvement of any existing residential structure (including manufactured
homes) shall have the reference level, including basement, elevated no lower than two (2)
feet above the regulatory flood protection elevation, as defined in Article 22 of this
Ordinance. Should solid foundation perimeter walls be used to elevate a structure opening
sufficient to automatically facilitate equalization of hydrostatic flood forces on exterior
walls shall be provided pursuant to Section 14.6.2.
2. Non-Residential Construction. New construction within the SFHA shall be
prohibited. Substantial improvement of any existing commercial, industrial, or other non-
residential structure shall have the reference level, including basement elevated no lower
than the regulatory flood protection elevation. Structures located in the AE Zone may be
flood proofed no lower than two feet above the level of the base flood elevation in lieu of
elevation provided that all areas of the structure below the required flood protection
elevation are watertight with walls substantially impermeable to the passage of water
using structural components having the capability of resisting hydrostatic and
hydrodynamic loads and the effect of buoyancy. A North Carolina licensed Professional
Engineer or Architect shall cert~ that the standards of this subsection are satisfied. Such
certification shall be provided to the official as set forth in Section 14.6.
3. Manufactured Homes.
a. Replacement manufactured homes shall be elevated so that the reference level
of the manufactured home is no lower than the reQUlatory flood protection
elevation.
b. Manufactured homes shall be securely anchored to an adequately anchored
foundation to resist flotation collapse or lateral movement according to the
State of North Carolina Regulations for Manufactured/Mobile Homes, 1995
Edition and any revision thereto adopted by the Commissioner of Insurance
pursuant to NCGS X143-14315 or a certified engineered foundation.
Additionally when the elevation would be met by an elevation of the chassis
thirty-six (36) inches or less above the grade at the site, reinforced piers or other
foundation elements of at least equivalent strengt~-h shall support the chassis.
When the elevation of the chassis is above thirty-six (36) inches in height, an
en ingi eerin~ certification is required.
c. All foundation enclosures or skirting shall be accordingLto Section 14.6.3.
d. An evacuation plan must be developed for evacuation of all residents of all
new substantially improved or substantially damaged manufactured home
parks or subdivisions located within flood prone areas. This plan shall be filed
with and approved by the Floodplain Administrator and the local Emer~ency
Management coordinator.
4. Public roads private roads and driveways. Any public road, private road, or
driveway crossing a SFHA shall require a `No-Impact' certification approval from
the North Carolina Emergence Management Division before anv building permits
for new construction can be issued which derive their vehicular access from such
public roads private roads or driveways. If the "No-Rise" certification data
demonstrate that the Base Flood Elevation will rise more than one vertical foot,
then the developer shall file a Conditional Letter of Map Revision with the North
Carolina Division of Emergency Management for review and approval. Before anv
buildingLpermit can be issued for the improvements associated with the stream
crossing_ an approve Letter of Map_ Revision shall be on file in the Planning and
Inspections Department.
S Recreational Vehicles. Recreation vehicles placed on sites within a SFHA shall either:
a. Be on site for fewer than 180 consecutive days and be fully licensed and readv
for hi way use (a recreational vehicle is readv for hi way use if it is on its
wheels or jacking system is attached to the site only by quick disconnect type
utilities, and has no permanently attached additions); or
b. Meet all the reauirements for new construction including anchoring and
elevation reauirements of Section 14 6 and 6 32 1 and subsection (3 of this
section.
6. Elevated BuildinQS. New construction or substantial improvements of elevated
buildings that include fully enclosed areas that are below the regulatory flood
protection elevation shall not be designed to be used for human habitation but shall be
designated to be used only for parking of vehicles building access or limited storage
of maintenance equipment used in connection with the premises be constructed
entirely of flood resistant materials below the re ulatory flood protection level in the
AE zone and meet the following design criteria•
a. Measures for complying with this requirement _ shall be designed to
automatically equalize hydrostatic flood forces on exterior walls by
allowing for the entry and exit of floodwaters To meet this requirement
the foundation must either be certified by a North Carolina licensed
Professional Engineer or Architect or meet the following minimum design
criteria:
i. Provide a minimum of two openings on different sides of each enclosed
area subject to flooding;
ii. The total net area of all openings must be at least one (1) square inch for
each square foot of enclosed area subject to flooding;
iii. If a building has more than one enclosed area each area must have
openings on exterior walls to allow floodwaters to directly enter and
exit;
iv. The bottom of all required openings shall be no higher than one (1 foot
above the adjacent grade;
v. Openings made equipped with screens louvers or other opening
coverings or devices provided the permit the automatic flow of
floodwaters in both directions: and
vi. Foundation enclosures made of flexible vinyl or sheet metal skirting are
not considered enclosures for re latory and flood insurance rating
purposes, and therefore, do not require o enings. Masonry or wood
underpinning, regardless of structural status, is considered an enclosure
and requires hydrostatic openings as outlined above to comply with this
Ordinance.
b The enclosed areas shall be used solely for parking of vehicles, building
access or storage Access to the enclosed area shall be the minimum
necessary to allow for marking of vehicles (gars eg door) or limited storage
of maintenance equipment used in connection with the premises (standard
exterior door) or entry to the living area (stairway or elevator). The interior
portion of such enclosed area shall not be partitioned or finished into
separate rooms.
7 Temporary structures Prior to the issuance of a floodplain development permit for a
temporary structure the following re~,uirements shall be met:
a. Applicants shall submit to the Floodplain Administrator a plan for the
removal of such structure(s) in the event of a hurricane or flash flood
warning notification The plan shall include the following information:
i. A specified time~eriod for which the temporary use will be permitted;
ii. The name address and phone number of the individual responsible for
the removal of the temporary structure;
iii. The time frame prior to the event at which a structure will be removed
(i a minimum of seventy-two (72~hours before landfall of a hurricane
or immediately upon flood warning notification);
iv. A copy of the contract or other suitable instrument with a trucking
company to ensure the availability of removal equipment when needed;
and
v. Designation accompanied by documentation of a location outside the
SFHA to which the temporary structure will be moved.
b The above information shall be submitted in writing to the Floodplain
Administrator for review and written approval.
8 Accessory Structures When accessory structures (sheds, detached garages, etc.) are
to be placed within a SFHA the following, criteria shall be met:
a. Accessory structures shall not be used for human habitation (includin
work sleeping living, cooking or restroom areas);
b. Accessory structures shall be designed to have low flood damage potential;
c. Accessory structures shall be constructed and placed on the building site so
as to offer the minimum resistance to the flow of floodwaters;
d. Accessory structures shall be firmly anchored according to Section 6.32.1;
e. All service facilities such as electrical and heating equipment, shall be
installed according to Section 6.32.1;
5
Openings to relieve hydrostatic pressure during a flood shall be provided
conforming to subsection 5 of this Section;
g. An accessory structure with any dimension that is twelve feet or less in
height, width, or depth does not require an elevation or flood proofing
certificate. Elevation or flood proofing certifications are required for all
other accessory structures accordin~to Section 14.6(3)• and
h. The accessory structure shall meet all zoning and building code requirements
9. Additions/Improvements.
a. Additions and/or improvements to pre-FIRM structures whereas the
addition and/or improvements in combination with any interior
modifications to the existing structure are:
Not a substantial improvement as defined and does not require a zoning
or building permit, the addition and/or improvements shall be designed
to minimize flood damages and shall not be any more non-conforming
than the existing structure.
ii. Substantial improvement as defined requiring a zoning or building
permit, both the existing structure and the addition and/or improvements
shall comply with the standards for new construction.
b. Additions to post-FIRM structures with no modifications to the existing
structure shall require only the addition to comply with the standards for
new construction.
c. Additions and/or improvements to post-FIRM structures whereas the
addition and/or improvements in combination with any interior
modifications to the existing structure are:
Not a substantial improvement, the addition and/or
improvements only must comply with the standards for new
construction; and,
ii. A substantial improvement. both the existing structure and the
addition and/or improvements must comply with the standards
for new construction.
d Where a fire wall or independent perimeter load-bearing wall is provided
between the addition and the existing building, the addition(s) shall be
considered a separate building and only the addition need comply with the
standards for new construction.
Sec. 6.32.3 Specific Standards for floodplains without established base flow
elevations (Approximate Zone A).
Within the SFHAs established in Section 4.2.38 are where no base flood data has been
provided the following_provisions shall apply:
1. No encroachments including fill new construction, substantial improvements or new
development shall be permitted within a distance of fifty~50) feet each side from top
of bank or five times the width of the stream whichever is greater, unless certification
with supporting technical data by a North Carolina licensed Professional Engineer is
provided demonstrating that such encroachments shall not result in any increase in
flood levels during the occurrence of the base flood discharge.
2. If Section 6.32.2(1) is satisfied and BFE data is available from other sources, all new
construction and substantial improvements within such areas shall also comply with
all applicable provisions of this Ordinance and shall be elevated or flood proofed
according to elevations established according to Section 4.2.38.
3. All subdivisions manufactured home arks and other development proposals located
within SFHAs shall provide BFE data. Such BFE data shall be adopted by reference
per Section 4.2.39 to be utilized in implementing this Ordinance.
When BFE data are not available from a Federal, State, or other source, the reference
level including basement shall be elevated at least two (2) feet above the highest
adjacent grade.
Sec. 6.32.4 Subdivisions, manufactured home narks, and major developments.
All subdivisions manufactured home park, and major development proposals located
within SFHAs shall:
1. Be consistent with the need to minimize flood damage.
2. Have public utilities and facilities such as sewer gas electric, cable, and water
systems located and constructed to minimize flood damage.
3. Have adequate drainage provided to reduce exposure to flood hazards
4. Have BFE data provided if development exceeds either of fifty (50) lots/units or five
~5) acres. Such BFE data shall be adopted by reference per Section 4.2.39.
Sec. 6.32.5 Standards for floodplains with BFE but without established floodways
or non-encroachment areas.
Along rivers and streams where BFE data area is provided, but neither floodwav not non-
encroachment areas are identified fora SFHA on the FIRM or in the FIS, no
encroachments, including fill, new construction, substantial improvements or other
development, shall be permitted unless certification with supporting technical data by a
North Carolina licensed Professional Engineer is provided demonstrating that the
cumulative effect of the proposed development, when combined with all other existing and
anticipated development, will not increase the water surface elevation of the base flood by
more than one foot at any point within Orange Count
Sec. 6.32.6. Floodway and non-encroachment areas.
Areas designated as floodways or non-encroachment areas are located within the SFHA
established in Section 4.2.39. The floodwavs and non-encroachment areas are extremely
hazardous areas due to the velocity of floodwaters that have erosion potential and carry
debris and potential projectiles. The following_provisions shall apply to all development
within such areas:
1. No encroachments, including fill, new construction, substantial improvements and
other developments shall be permitted unless it has been demonstrated through
hydrologic and hydraulic analyses, performed according to standard en ing Bering
practice, that the proposed encroachment would not result in any increase in the flood
levels during the occurrence of the base flood. Such certification and technical data
shall be presented to the Floodplain Administrator before issuance of floodplain
development permit.
2. If the requirements of Section 6.32.2b(1) are adhered to, all development shall
comply with all applicable flood hazard reduction provisions of this Ordinance. No
manufactured homes shall be permitted,
Sec.6.32.7. Standards for Floodnlains without Established Base Flood Elevations.
Within the SFHAs established in Section 4.2.38, where no BFE data has been provided
the followingprovisions shall apply:
1. No encroachments, including fill, new construction, substantial improvements or new
development shall be permitted within a distance of twenty feet each side from top of
bank or five times the width of the stream whichever is greater unless certification
with supporting technical data by a North Carolina licensed Professional Engineer is
provided demonstrating that such encroachments shall not result in any increase in
flood levels during the occurrence of the base flood discharge.
2. If the requirements of Section 6.32.2(1) are adhered to and BFE data are available
from other sources, all new construction and substantial improvements within such
areas shall also comply with all applicable provisions of this Ordinance and shall be
elevated or flood proofed according to elevations established according to Section
21.11(11/12). When BFE data are not available from a federal, state, or other source
the reference level, including basement, shall be elevated at least two (2) feet above
the HAG.
Sec 6 32 8 Effect upon outstanding floodplain development permits.
Nothing herein contained shall require any change in the plans construction, size, or
designated use of an~ development or anypart thereof for which a floodplain development
permit has been Granted by the Floodplain Administrator or his/her authorized agents
before the time of passage of this Ordinance provided however that when construction is
not begun under such outstandi~,,permit within a period of six (6) months subsequent to
passage of this Ordinance or any revision thereto construction or use shall be in
conformity with the provisions of this Ordinance.
Sec. 6.32.9 Enforcement
The provisions of the SFHA Overlay District shall be enforced in accordance with the
requirements contained within Section 23.5 of this Ordinance.
PART VIII. That Article 8 Special Uses be amended by creating a new Section 8.6.1 entitled
Additional standards for development of uses within Special Flood Hazard Area Overlay
District (SFHA) to read as follows:
Section 8 61 Additional Standards for Development of Uses within Special Flood
Hazard Areas.
The Board of County Commissioners may issue a Class "A" Special Use Permit for solid
waste disposal facilities hazardous waste management facilities salvage/funk yards, and
chemical store facilities that are located in SFHAs if all of the following conditions are
met:
a. The use serves a critical need in the Orange County.
b. No feasible location exists for the use outside the SFHA.
c. The reference level of any structure is elevated or flood proofed to at least the
re u~ latory flood protection level.
d. The use complies with all other applicable federal, state and local laws.
e. Orange County has notified the Secretary of the North Carolina Department of
Crime Control and Public Safety of its intention to grant a Special Use Permit at
least thirty (30) days before granting the permit.
The Board is required to make affirmative findings of fact based on the testimony of the
applicant(s) as to the project's compliance with these standards.
PART IX. That Article 10 Parking be amended by creating a new 10.2 to read as follows:
Sec. 10.2 Prohibited within Special Flood Hazard Areas.
Any off-street parking and loading facilities are prohibited within a Special Flood Hazard
Area.
PART X. That Article 11 Nonconformities be amended Section 11.9 Non-conforming Uses of
Major Structures, or Structures and Premises in Combination by adding a new
subsection (f) to read as follows:
f) Non-conforming buildings or uses or other development may not be enlarged
replaced, or rebuilt unless such enlargement or reconstruction is accomplished
conformin to the provisions of this Ordinance
Provided, however, nothing in this Ordinance shall prevent the repair reconstruction
or replacement of a building or structure existing on the effective date of this
Ordinance and located totally or partially within the floodway non-encroachment area
or stream setback, provided that the bulk of the building or structure below the
regulatory flood protection elevation in the floodway non-encroachment area or
stream setback is not increased and provided that such repair reconstruction or
replacement meets all of the other requirements of this Ordinance.
PART XI. That Article 14 Site Plan Approval Procedures Section 14.1 Intent to read as follows:
Section 14.1 INTENT
To establish a set of standards for site plan applications.
APPLICABILITY
As required by Article 21.4 of this Ordinance, a zoning compliance permit must
be issued before any new site development, building, structure, or vehicular use
area maybe erected, constructed or used. Site plan approval is required for a
zoning compliance permit with the following exceptions:
a. Single-family detached dwellings and duplexes, and accessory
structures to those residential uses; provided, however, when such uses
are located in the University Lake Watershed (ULW) District, site plan
approval shall be required.
b. Temporary uses which do not exceed thirty (30) days in duration; and
c. Interior renovation or repair of an existing structure, provided the use
of the lot and/or structure has not changed.
Site plan approval, as detailed herein, shall be required for all structures and
p_ roposed uses of property for all properties located within the Special Flood
Hazard Area Overlay District.
PART XII. That Article 14 Site Plan Approval Procedures Section 14.2 Professional Design and
Certification be amended to read as follows:
Section 14.2.1 PROFESSIONAL DESIGN AND CERTIFICATION
10
Each site plan shall be prepared by a registered engineer, landscape architect, architect, or
land surveyor; however, in some cases, professional design and certification of the plan
may not be required. These exceptions include, but are not limited to the following:
a. Proposed additions to existing permitted non- residential structures where the use
of the structure and lot has not changed and the floor area is not increased more
than twenty-five percent (25%); and
b. Accessory structures to existing permitted non- residential structures where
vehicular use area is not extended and changes to existing grade are not more than
one (1.0) foot in elevation.
c. Single-family detached dwellings and duplexes, and accessory structures to such
uses when located in the University Lake Watershed (ULW) District.
d. Large day care homes, as defined in Article 22, Definitions.
e. Rural Guest Establishments with three (3) guestrooms or less -Bed & Breakfasts.
Any and all projects proposin~~the development of property located within the Special
Flood Hazard Area Overlay District shall be required regardless of the proposed land use,
to submit a site plan prepared b~ registered engineer landscape architect, or land
surveyor in accordance with the provisions herein.
PART XIV. That Article 14 Site Plan Approval Procedures be amended creating a new Section
14.6 .Floodplain development permit and certification requirements for properties within
the Special Flood Hazard Area Overlay District to read as follows:
Sec. 14.6 Floodplain development permit and certification requirements for
properties within the Special Flood Hazard Area Overlay District.
14.6.1. Plans and Application requirements. Application for a floodplain
development permit shall be made to the Floodplain Administrator on forms
furnished by him or her prior to any development activities proposed to be
located within flood prone areas.
The following items/ information shall be presented to the Floodplain
Administrator to apply for a floodplain development permit.
ii
a) A plot plan drawn to scale which shall include but shall not be limited
to, the following specific details of the p oposed floodplain
development:
i. The nature, location, dimensions, and elevations of the area of
development/disturbance• existing and proposed structures
driveways, utility systems, ading(pavement areas fill
materials, storage areas, drainage facilities and other
development;
ii. The boundary of the SFHA as delineated on the FIl2M or other
flood map as determined in Section 4.2.38 or a statement that the
entire lot is within the SFHA;
iii. Flood zones designation of the proposed development area as
determined on the FIRM or other flood map as determined in
Section 4.2.38;
iv. The boundary of the floodway(s) or non-encroachment area(s) as
determined in Section 4.2.38;
v. The Base Flood Elevation (BFE) where provided as set forth in
Section 4.2.38; Section 21.11 (11/12); or Section 6.32.1•
vi. The old and new location of any watercourse that will be altered
or relocated as a result of proposed developmental
vii. Preparation of the plot plan by or under the direct supervision of
a_ North Carolina licensed professional Land Surveyor or
Professional Engineer and certified by them.
b) Proposed elevation, and method thereof, of all development within a
SFHA including_but not limited to:
Elevation in relation to mean sea level of the proposed reference
level (including basement) of all structures:
Elevation in relation to mean sea level to which any non-
residential structure in Zone AE will be flood-proofed;
iii. Elevation in relation to mean sea level to which an~ proposed
utilit~ystems will be elevated or flood proofed;
c) If flood proofing,, a flood roofing certificate and back-up plans from a
registered professional engineer or architect certifyin~ that the non-
residential flood proofed development will meet the flood-proofing
criteria in Section 6.32.2.
d) A Foundation Plan drawn to scale, which shall include details of the
proposed foundation system to ensure all provisions of this Ordinance
are met. These details include but are not limited to:
Proposed method of elevation, if applicable (i.e., fill, solid
foundation perimeter wall, solid backfilled foundation, open
foundation on columns/posts/piers/piles/shear wall);
12
ii. Openings to facilitate equalization of hydrostatic flood forces on
walls according_to Section 6.32.2(5), when solid foundation
perimeter walls are used in Zones;
e) Usage details of any enclosed space below the regulatory flood
protection elevation.
f) Plans and/or details for the protection of public utilities and facilities
such as sewer, gas, electrical, and water systems to be located and
constructed to minimize flood damage;
gLpv of all other Local, State and Federal permits required prior to
floodplain development permit issuance (i.e. Wetlands, Erosion and
Sedimentation Control, Riparian Buffers, Mining etc.)
h) If the Floodplain Administrator issues a floodplain development permit
for placement of recreational vehicles and/or temporary structures,
documentation to ensure compliance with Section 6.32.2(5 and 7) of
this Ordinance.
i) If a watercourse is proposed to be altered and/or relocated, a description
of the extent of watercourse alteration or relocation, an engineering
report on the effects of the proposed project on the flood-carrying
capacity of the watercourse and the effects to properties located both
stream and downstream; and a map, drawn to scale, (if not shown on
plot plank showing the location of the proposed watercourse alteration
or relocation.
14.6.2. Floodplain Development Permit Data Requirement. The following
information shall be provided at a minimum on the floodplain development permit to
ensure compliance with this Ordinance.
a. A description of the development under the floodplain development
permit issuance.
b. The SFHA determination for the proposed development per available
data specified in Section 4.2.38.
c. The regulatory flood protection elevation required for the reference
level and all attendant utilities.
d. The regulatory flood protection elevation required for the protection of
all public utilities.
e. All certification submittal requirements with timelines.
f. A statement that no fill material shall encroach into the floodway or
non-encroachment area of any watercourse, if applicable.
13
g. If in an AE zone, specify the minimum foundation opening
requirements
h. State limitations of below BFE enclosure uses (if applicable, such as,
parking, building access and limited storage only).
14.6.3. Certification requirements
a. An Elevation Certificate (FEMA Form 81-31) or Flood Proofing
Certificate (FEMA Form 81-65 is required after the reference level is
completed. Within twent -one 21) calendar days of establishment of
the reference level elevation, or flood proofing, by whatever
construction means, whichever is applicable, it shall be the dut~of the
permit holder to submit to the Floodplain Administrator a certification
of the elevation of the reference level, or flood proofing elevation,
whichever is applicable, in relation to mean sea level. Said certification
shall be prepared by, or under the direct supervision of, a North
Carolina licensed professional Land Surveyor or Professional Engineer
and certified by them. Any work done within the twenty-one (21) day
calendar period and before submission of the certification shall be at the
permit holder's risk. The floodplain administrator shall review the
certificate data submitted. Deficiencies detected by such review shall be
corrected by the permit holder immediately and before further work
being_permitted to proceed. Failure to submit the certification or failure
to make required corrections shall be cause to issue astop-work order
for the project.
b. A Final As-Built Elevation Certificate (FEMA Form 81-31 is required
after construction is completed and prior to Certificate of
Compliance/Occupancy issuance. It shall be the duty of the permit
holder to submit to the Floodplain Administrator a certification of final
as-built construction of the elevation of the reference level and all
attendant utilities. Elevation certification shall be prepared by, or under
the direct supervision of, a North Carolina licensed professional Land
Surveyor or Professional Engineer and certified by the same. The
Floodplain Administrator shall review the certificate data submitted.
Deficiencies detected by such review shall be corrected by the permit
holder immediately and prior to Certificate of Compliance/Occupancy
issuance. In some instances, ,another certification may be required to
certify corrected as-built construction. Failure to submit the
certification or failure to make said corrections required shall be cause
to withhold the issuance of a Certificate of Compliance/Occupancy.
c. If a manufactured home is placed within Zone AE and the elevation of
the chassis is more than thirty-six 36) inches in hei t, an engineered
foundation certification is required per Section 6.32.2(3).
d. If a watercourse is to be altered or relocated, a description of the extent
of watercourse alteration or relocation; an engineering report on the
effects of the proposed project on the flood-carrying capacity of the
14
watercourse and the effects to Rroperties located both upstream and
downstream• and a map drawn to scale showing the location of the
proposed watercourse alteration or relocation shall all be submitted by
the permit applicant prior to issuance of a floodplain development
permit.
e. Certification Exemptions The following structures, if located within
Zone AE are exempt from the elevation/flood proofing certification
requirements specified in items a. and b. above:
i. Recreational vehicles meeting requirements of Section 6.32.2(5);
ii. Temporary structures meeting requirements of Section 6.32.2(7);
and
iii. Accessory Structures with any dimension that is twelve (12) feet
or greater in height width or depth, meeting requirements of
Section 6.32.2(8).
PART XV. That Article 20 Amendments Section 20.3.2 Contents of Application be amended by
creating a new subsection (g), and re-numbering the existing regulation, reading as
follows:
f) A traffic impact study as required by Article 13.
g) For amendments to the Special Flood Hazard Area Overlay District, the following
information shall be submitted pertaining to a Letter of Map Amendment (an elevation
certificate with either an MT-1 MT-2 or MT-EZ -forms available throu FEMA) or
a "No-Impact" analysis for a Letter of Map Revision.
h) All other circumstances, factors and reasons which the applicant offers in support of
the proposed Zoning Atlas and/or Zoning Ordinance text amendment.
PART XVI. That Article 21 Administration be amended by creating a new Section 21.9 entitled
Additional Administrative Provisions for the Special Flood Hazard Area Overlay District
reading as follows:
Section 21.9 Additional Administrative Provisions for the Special Flood Hazard Area
Overlay District.
Section 21.9.1 Administration:
The Zonine Officer, or his/her designee, shall hereinafter be referred to
as the "Floodplain Administrator", is shall hereby be appointed to
administer and implement the provisions of this Ordinance relating to
the development and enforcement of various provisions associated
with:
i) Special Flood Hazard Area Overlay District, and
j) State and Federal regulations concerning floodplain development
Sec. 21.9.2 Duties and resaonsibilities of the Floodalain Administrator.
15
Duties of the Floodplain Administrator shall include but not be limited to•
1. Review all floodplain development applications and issue Hermits
for all proposed development within flood Hrone areas to ensure
that the requirements of this Ordinance have been satisfied.
2. Advise permittee that additional Federal or State permits (i e
Wetlands, Erosion and Sedimentation Control, Riparian Buffers
Mining, etc.~y be required, and if specific Federal or State
permits are known, require that copies of such Hermits be
provided and maintained on file with the floodplain develo ment
permit.
3. Notify adjacent communities and the North Carolina Department
of Crime Control and Public Safety, Division of EmergencX
Management, State Coordinator for the NFIP prior to any
alteration or relocation of a watercourse, and submit evidence of
such notification to FEMA.
4. Ensure that maintenance is provided within the altered or
relocated portion of said watercourse so that the flood-carrying
capacity is not diminished.
5. Prevent encroachments within floodways and non-encroachment
areas unless the certification and flood hazard reduction
provisions comply with Section 6.32.3.
6. Obtain actual elevation (in relation to mean sea level of the
reference level (including basement) of all attendant utilities of all
new or substantially improved structures, according to Section
14.6 3 .
7. Obtain the actual elevation (in relation to mean sea level) to
which the new or substantiallyproved structures and all
utilities have been flood proofed, according to Section 14.6(3).
8. Obtain actual elevation (in relation to mean sea level) of all
public utilities, accordin~to Section 14.6(3).
9. When flood proofing is utilized for a particular structure, obtain
certifications from a North Carolina licensed Professional
Engineer or Architect according to Section 6.32.2.
10. Where interpretation is needed as to the exact location of
boundaries of the SFI3As (for example, where there appears to be
a conflict between a mapped boundary and actual field
16
conditions), make the necess interpretation. The person
contesting the location of the boundary shall be 'given a
reasonable opportunity to appeal the interpretation as provided in
Section 2.3.6.2.
11. When BFE data have not been provided according to section
4.2.38, obtain, review, and reasonably utilize any BFE data, along
with floodway data and/or non-encroachment area data available
from a Federal, State, or other source, including data developed
pursuant to Section 6.32.2, in order to administer the provisions
of this Ordinance.
12. When BFE data is provided, but no floodway nor non-
encroachment area data has been provided according to Section
4.2.38, obtain, review, and reasonably utilize any floodway data,
and/or non-encroachment area data available from a Federal
State, or other source in order to administer the provisions of this
Ordinance.
13. When the exact location of boundaries of the SFHAs conflict
with the current, natural topography information at the site, the
property owner may apply and be approved for a Letter of Map
Amendment (COMA) by FEMA. The Floodplain Administrator
in the floodplain development permit file will maintain a copy of
the COMA issued from FEMA.
14. Permanently maintain all records pertaining to the administration
of this Ordinance and make these records available for public
inspection during normal business hours.
15. Make on-site inspections of work in progress. As the work
pursuant to a floodplain development permit progresses, the
Floodplain Administrator shall make as many inspections of the
work as may be necessary to ensure that the work is being done
according to the provisions of the local ordinance and the terms
of the permit. In exercising this power, the Floodplain
Administrator has a right, upon presentation of proper credentials,
to enter on an~premises within the jurisdiction of the Orange
County at any reasonable hour for the purposes of inspection or
other enforcement action.
16. Maintain a current map repository to include, but not limited to,
the FIS Report, FIRM and/or other official flood maps/studies
adopted under Section 4.2.38 of this Ordinance, including any
revisions thereto including COMA, issued by State and/or FEMA.
17. Notify State and FEMA of mappin ng eeds.
18. Issue stop work orders as required. Whenever a buildin or part
thereof is being constructed, reconstructed, altered, or repaired in
violation of this Ordinance, the Floodplain Administrator maX
17
order the work to be immediately stopped. The stop-work order
shall be in writing and directed to the person doing the work and
the owner shall be sent a copy via the U.S. mail. The stop-work
order shall state the specific work to be stopped, the specific
reason(s) for the stoppage, and the condition(s) under which the
work maybe resumed. Violation of a stop-work order constitutes
a Class Three (3) misdemeanor.
19. Revocation of floodplain development permits, as required. The
Floodplain Administrator may revoke and require the return of
the floodplain development permit by notifying the permit holder
in writing stating the reason(s) for the revocation. Permits shall
be revoked for any substantial departure from the approved
application, plans, or specifications; for refusal or failure to
comply with the requirements of State or local laws; or for false
statements or misrepresentations made in securing the permit.
Any floodplain development permit mistakenly issued in
violation of an applicable State or local law may also be revoked.
20. Make periodic inspections throughout all SFHAs within the
Orange County jurisdiction. The Floodplain Administrator and
each member of the Planning and Inspections Department shall
have a right, upon presentation of proper credentials, to enter on
any.premises within the territorial jurisdiction of the department
at any reasonable hour for the purposes of inspection or other
enforcement action.
21. Follow through with corrective procedures of Section 23.5.
22. Coordinate Letters of Map Change and FIS/F1RM revisions with
other County departments, State of North Carolina, and FEMA.
Sec. 21.9.3 Establishment of floodplain development permit.
A floodplain development permit shall be required conformin tg o the
provisions of this Ordinance prior to the commencement of anX
development activities within SFHA as determined in Section 4.2.38.
PART XVII. That Article 22 Definitions be amended by adding the following definitions:
Addition (to an existing building) -- an extension or increase in the floor area or height of a building or
structure. includin ag dding new plumbing, electrical, or HVAC s st~ems_
Area of special flood hazard -- See "Special Flood Hazard Area (SFHA Overlay District"
Appeal -- A request from a review of an administrative interpretation of any provision of this Ordinance
by the Board of Adjustment.
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Base flood -- The flood having a one (l~percent chance of being equaled or exceeded in any given year.
It is often referred to as the 100-year flood.
Base flood elevation (BFE) -- A determination as published in the Flood Insurance Study of the water
surface elevations of the base flood.
Basement -- Any area of the building having its floor sub grade (below Around level) on all sides.
Chemical storage facility - A building, portion of a building, or exterior area adjacent to a building used
for the stora e~y chemical or chemically reactive products.
Development -- any constructed Chan eg to improved or unimproved real estate, including, but not limited
to, buildings or other structures, mining, dredging filling=grading, paving, excavation or drilling
operations, or stora eg of equipment or materials.
Disposal -- the discharge, deposit, injection, dumping, spillin , lg Baking or placing of any solid waste into
or on any land or water so that the solid waste or any constituent part of the solid waste may enter the
environment or be emitted into the air or discharged into any waters, including_groundwater.
Elevated Building -- Anon-basement building, which has its reference level raised above ground level
by foundation walls, shear walls, posts, piers, pilings, or columns with openings sufficient to facilitate
automatic equalization of hydrostatic flood forces on exterior walls by allowing entry and exit of
floodwaters and the unimpeded movement of floodwaters.
Encroachment -- The advance or infringement of uses, fill, excavation, buildings, permanent structures
or development into a floodplain, which may impede or alter the flow capacity of a floodplain.
Existing Construction -- Structures for which, the "start of construction" commenced before March 16,
1981. This term may also be referred to as "existing structures."
Existing manufactured home park or manufactured home subdivision -- a manufactured home park
or subdivision for which, for flood damage prevention purposes, the construction of facilities for servicing
the lots on which the manufactured homes are to be affixed (including` at a minimum, the installation of
utilities, the construction of streets, and either final site ading or the pouring of concrete pads)
completed before March 16, 1981.
Flood and flooding -- A general and temporary condition of partial or complete inundation of normally
dry land areas from the overflow of inland or tidal waters and the unusual and rapid accumulation of
runoff of surface waters from any source.
Flood fringe -- That portion of the SFHA outside of the floodwav as defined in the FIS and with the
boundary of the 100-year floodplain.
Flood Insurance -- The insurance coverage provided under the National Flood Insurance Program
NFIP
Flood insurance rate map (FIRM) -- An official, adopted Orange County map, issued by the FEMA, on
which both the Special Flood Hazard Areas and the risk premium zones applicable to the county are
delineated. These areas are incorporated within the official Zoning Atlas for Orange County as the
Special Flood Hazard Area Overlay District.
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Flood Insurance Study (FIS) -- An examination, evaluation, and determination of flood hazard areas,
corresponding water surface elevations (if appropriate), flood insurance risk zones, and other flood data in
Orange County issued by FEMA. The FIS report contains an evaluation and determination of flood
hazards and corresponding flood profiles, as well as FIRMS, if published.
Floodplain or Flood Prone Area -- Any land area susceptible to being inundated by water from any
source and is interchangeable terms.
Floodplain Administrator -- The individual appointed to administer and enforce the floodplain
management regulations.
Floodplain Development Permit -- A required document for any disturbance within a mapped special
flood hazard area.
Floodplain Management -- The operation of an overall program of corrective and preventive measures
for reducing flood damage and preserving and enhancing, where possible, natural resources in the
floodplain, including but not limited to emergency preparedness plans, flood control works, floodplain
management regulations, and open space plans.
Floodplain Regulations -- This Ordinance, subdivision regulations, building codes, health regulations,
special purpose ordinances, and other applications of police power, which control development in flood-
prone areas. This term describes federal, state or local regulations in any combination thereof, which
provide standards for preventing and reducing flood loss and damage.
Flood Proofing -- Any combination of structural and nonstructural additions, changes, or adjustments to
structures, which reduce or eliminate risk of flood damage to real estate or improved real property, water
and sanitation facilities, or structures with their contents.
Floodway -- The channel of a river or other watercourse and the adjacent land areas that must be reserved
in order to discharge the base flood without cumulatively increasing the water surface elevation more than
one (1) foot. This term may also be referred to as "regulatory floodway."
Flood Zone -- A geographical area shown on a FIRM that reflects the severity or type of flooding in the
area.
Floor -- See "Lowest Floor".
Freeboard -- The additional amount of height added to the Base Flood Elevation (BFE) to account for
uncertainties in the determination of flood elevations.
Functionally Dependent Facility -- A facility, which cannot be used for its intended purpose unless it is
located in close proximity to water, such as a docking, or port facility necessary for the loading and
unloading of cargo or passengers, shipbuilding, or ship repair. The term does not include lon -tg erm
storage, manufacture, sales, or service facilities.
Hazardous Waste Management Facility -- A facility or any portion of a facility for the collection,
storage, processing, treatment, recycling, recovery, or disposal of hazardous waste on or in land in
accordance with rules adopted by the State of North Carolina Department of Environment and Natural
Resources.
20
Highest Adiacent Grade (HAG) -- The highest natural elevation of the ground surface, prior to
construction, next to the~roposed walls of the structure.
Historic structure -- Anv structure that is:
1. Listed individually in the National Register of Historic Places (a listing maintained by the U.S.
Department of Interior) or preliminarily determined by the Secretary of Interior as meeting the
requirements for individual listing on the National RegYSter;
2. Certified or preliminarily determined by the Secretary of Interior as contributing to the historical
significance of a registered historic district or a district preliminarily determined by the Secretary to
qualify as a registered historic district;
3. Individually listed on a local inventory of historic landmarks in communities with a "Certified
Local Government (CLG Program," which has been approved by the Department of the Interior;
or
4. Individually listed on a local inventory of historic places in communities with historic preservation
programs that have been certified either by an approved state program as determined by the
Secretary of the Interior, or directly by the Secretary of the in states without approved prop ams
Lowest adjacent grade (LAG) -- The elevation of the ground, sidewalk, patio slab, or deck support
immediately next to the building after completion of the building.
Lowest floor -- The sub floor, top of slab or grade of the lowest enclosed area (including basement). An
unfinished or flood resistant enclosure, usable solely for parking_of vehicles, building access, or limited
storage in an area other than a basement area is not considered a building's lowest floor provided that such
an enclosure is not built so as to render the structure in violation of the applicable non-elevation design
requirements of this Ordinance.
Manufactured home park or subdivision -- A parcel (or contiguous parcels) of land divided into two or
more manufactured home lots for rent or sale.
Market Value -- The building value, excluding the land, (as agreed to between a willing buyer and
seller), as established by what the local real estate market will bear. An independent certified appraisal
can establish a market value usin ;g_replacement cost depreciated by age of building (Actual Cash Value
or adjusted assessed values.
Mean sea level -- For purposes of the NFIP, the National Geodetic Vertical Datum (NGVD) as corrected
in 1929, the North American Vertical Datum (NAND) as corrected in 1988, or other vertical control
datum used as a reference for establishing varYinQ elevations within the floodplain, to which BFE's
shown on a FIRM are referenced. Refer to each FIRM panel to determine datum used.
New construction -- Structures for which the "start of construction" commenced on or after March 16,
1981, and includes any subsequent improvements to such structures.
Non-Encroachment area -- The channel of a river or other watercourse and the adjacent land areas that
must be reserved in order to discharge the base flood without cumulatively increasing the water surface
elevation more than one (1) foot as designated in the Flood Insurance Study report.
Obstruction -- Includes, but is not limited to, any dam, wall, wharf, embankment, levee, dike, pile,
abutment, protection, excavation, channelization, bridge, conduit, culvert, building, wire, fence, rock,
21
Gravel refuse, fill structure vegetation or other material in, along, across, or projecting into any
watercourse which may alter impede retard or change the direction and/or velocity of the flow of water,
or due to its location its propensity to snare or collect debris carried by the flow of water, or its likelihood
of being carried downstream.
Post-FIRM -- Construction or other development, which started on or after March 16, 1981.
Pre-FIRM -- Construction or other development, which started before March 16, 1981.
Public safety and/or nuisance -- Anything, which is injurious to the safety or health of an entire Orange
Count o~ neighborhood or any considerable number of persons, or unlawfully obstructs the free passage
or use in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin.
Reference level -- The portion of a structure or other development that must be compared to the
regulatory flood protection elevation to determine re ug lator~pliance For structures within Special
Flood Hazard Areas designated as Zone AE, the reference level is the top of the lowest floor.
Regulatory flood protection elevation -- The elevation to which all structures and other development
located within the ~ecial Flood Hazard Areas have been determined. Within areas where BFE's have
been determined this elevation shall be the BFE plus two (2) feet of freeboard. In areas where no BFE
has been established all structures and other development must be elevated or flood proofed, if non-
residential, to two (2) feet above the hi est adjacent grade.
Remedy aviolation -- To brim the structure or other development into compliance with State and
Orange County laws and regulations.
Repetitive loss -- Flood-related damages sustained by a structure on two (2~eparate occasions during
any ten l0~vear period for which the cost of repairs at the time of each such flood event, on the average,
equals or exceeds twenty-five (25~percent of the market value, or the tax value in the absence of recent
comparative sales, of the structure before the damage occurred.
Retrofitting -- Measures, such as flood proofing, elevation, construction of small levees, and other
modifications, taken on an existing buildin og r its yard to protect it from flood damage.
Riverine -- Relating to formed by, or resembling_a river (including tributaries), stream, brook, etc.
Salvage yard -- Property used for the storage, collection, andlor rec~g of any type of equipment
whatsoever whether industrial or non-commercial, and including but not limited to vehicles, appliances
and related machinery.
Solid waste disposal facility -- Anv facility involved in the disposal of any hazardous or non-hazardous
refuses or sludge from a waste treatment plant, water supply treatment plant or air pollution control
facility domestic sewage and sludges generated by the treatment thereof in sanitary sewage collection,
treatment and disposal systems and other material that is either discarded or is being accumulated, stored
or treated prior to being discarded or has served its original intended use and is Qenerally discarded,
including solid liquid semisolid or contained gaseous material resulting from industrial, institutional,
commercial and agricultural operations, and from community activities.
Solid waste disposal site -- Any place at which solid wastes are disposed of by incineration, sanitary
landfill or any other method.
22
Special flood hazard area (SERA) -- The land in the floodplain subiect to a one (1) percent or greater
chance of being flooded in any ig yen year as determined in Section 4.2.39 of this Ordinance as defined
by the base flood elevation. The mapped special flood hazard area approximates the base flood elevation
Special Flood Hazard Area Overlay District: An overlay district establishing standards for
development for properties within identified floodplains.
Start of Construction -- Includes substantial improvement and means the date the building Hermit was
issued, provided the actual start of construction, repair reconstruction rehabilitation addition placement
or other improvement was within 180 days of the permit date. The actual start means either the first
placement of permanent construction of a structure (including a manufactured home) on a site such as the
pouring of slabs or footings, installation of piles construction of columns or anv work beyond the stage
of excavation; or the placement of a manufactured home on a foundation. Permanent construction does
not include land preparation, such as clearingLgrading, and filling; nor does it include the installation of
streets and/or walkways; nor does it include excavation for a basement footing~iers or foundations or
the erection of temporary forms; nor does it include the installation on the property of accessory
buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure For a
substantial improvement, the actual start of construction means the first alteration of anv wall ceiling,
floor, or other structural part of the building, whether or not that alteration affects the external dimensions
of the building.
Substantial damage -- Damage of anv origin sustained by a structure during anv one year period
whereby the cost of restoring the structure to its before-damaged condition would equal or exceed fii~
(50) percent of the market value of the structure before the damage occurred See definition of
"substantial improvement." Substantial damage also means flood-related damage sustained by a structure
on two separate occasions durin a ten (l0~year period for which the cost of repairs at the time of each
such flood event, on the average equals or exceeds twent -five 25Zpercent of the market value of the
structure before the damage occurred.
Substantial improvement -- Any combination of repairs reconstruction rehabilitation addition or other
improvement of a structure, taking_place during any one near period whereby the cost of which equals or
exceeds fifty~50~ercent of the market value of the structure before the start of construction of the
improvement. This term includes structures, which have incurred substantial damage regardless of the
actual repair work performed. The term does not, however include either any correction of existing
violations of State or Orange County health sanitary or safety code specifications which have been
identified by the Orange County code enforcement official and which are the minimum necessary to
assure safe living conditions, or any alteration of a historic structure provided that the alteration will not
preclude the structure's continued designation as a historic structure.
Water surface elevation (WSE) -- The height, in relation to mean sea level of floods of various
magnitudes and frequencies in the floodplains of coastal or riverine areas.
Watercourse -- A lake, river, creek stream wash channel or other topographic feature on or over which
waters flow at least periodically. Watercourse includes specificall~gnated areas in which substantial
flood damage may occur.
Violation -- The failure of a structure use or development to be fully compliant or is inconsistent with
any provision of this Ordinance. A structure or other development without the elevation certificate other
23
certifications or other evidence of compliance required in this Ordinance is presumed to be in violation
until such time as that documentation is provided.
PART XVIII. That Article 22 Definitions be amended be revising the following definitions:
Accessory structure (Appurtenant Structure) -- And structure that is located on the same parcel of
property or lot as the principal structure and houses an accessory use with any dimension greater than
twelve~l2) feet shall not exceed 400 square feet or one story and that is incidental to the use of the
principal structure.
Manufactured home -- A dwelling unit, transportable in one or more sections that:
(i) Is not constructed in accordance with the standards of the North Carolina Uniform
Residential Building Code for One- and Two-Family Dwellings;
(ii) Is composed of one or more components, each of which was substantially assembled in a
manufacturing plant and designed to be transported to the home site on its own chassis,
(iii) Exceeds forty 40 feet in length and eight ~ feet in width,
(iv) The manufacturer voluntarily files certification required by the Secretary of the
Department of Housing_ and Urban Development and complies with the standards
established, and
(iv) Is built on a permanent chassis and designed to be used with or without a permanent
foundation when connected to the required utilities.
Recreational vehicle ~) -- Aself-propelled or towed vehicle, qualified to be licensed by the
appropriate State agency and is built on a single chassis 400 square feet or less when measured at the
largest horizontal projection, providing short term recreational living accommodations, designed primarily
not for use as a permanent dwelling but as temporary living_quarters for recreational, camping, travel, or
seasonal use.
Structure -- Any walled and roofed building a manufactured home, or a gas or liquid storage tank, that
which is built or constructed principally above ground, constructed or erected to a height of thirty (30)
inches or more, including but not limited to load bearing walls, columns, beams or girders.
PART XX That Article Twenty-three Enforcement be amended by adding a new Section 23.5
entitled Additional Corrective Procedures -Special Flood Hazard Area Overlay District
Standards
Section 23 5 Corrective Procedures -Special Flood Hazard Area Overlay District
Standards
Section 23.5.1 Actions in Event of a Violation:
Identified violations of the Special Flood Hazard Area Overlay District shall
be sent a Notice of Violation. The Notice shall detail the nature of the
violation and schedule a hearing with the Floodplain Administrator to
review the situation.
This hearing shall be held before the Floodplain Administrator at a
desi ng ated place and time not later than ten (10) business days after the
24
date of the Notice, at which time the owner shall be entitled to be heard in
person or by counsel and to present arguments and evidence pertaining to
the matter.
Following the hearing, the Floodplain Administrator may issue such order
to alter, vacate, or demolish the building; or to remove fill as appears
app~o riate.
Sec 23.5.2 Order to Take Corrective Action:
If, upon a hearing held pursuant to the notice prescribed above the
Floodplain Administrator shall find that the building or development is in
violation of this Ordinance, he or she shall make an order in writin tg o the
owner, requiring the owner to remedy the violation within a specified time
period, not less than sixty (60) days.
Where the Floodplain Administrator finds that there is imminent dan e~ r to
life or other property, he or she may order that corrective action be taken in
such lesser period as may be feasible.
Sec 23.5.3 Appeal:
Any owner who has received an order to take corrective action may~~eal
the order to the local elected governing body giving notice of appeal in
writing to the Floodplain Administrator and the clerk within ten (10~
business days following issuance of the final order.
In the absence of an appeal, the order of the Floodplain Administrator shall
be final. The Board of Adjustment shall hear an appeal within a reasonable
time and may affirm, modify and affirm, or revoke the order.
Sec 23.5.4 Failure to Comply with Order:
If the owner of a building or property fails to comply with an order to take
corrective action from which no appeal has been taken, or fails to comply
with an order of the governing body following an appeal, he or she shall be
Quilty of a Class Three (3) misdemeanor and shall be punished in the
discretion of the court.
PART XXI. That Article Twenty-four Legal Status Provisions and Effective Date of the Zoning
Ordinance be amended by adding the following to Section 24.2 and new Sections
24.4 Interpretation, Section 24.5 Effect on rights and liabilities under the existing
flood damage prevention ordinance, and Section 24.6:
Section 24.2 Abrogation and greater restrictions.
This Ordinance is not intended to repeal, abrogate, or impair any existing easements,
covenants, or deed restrictions. However, where this Ordinance and any other Ordinance
conflict or overlap whichever imposes the more stringent restrictions shall prevail.
25
Section 24.5 Interpretation.
In the interpretation and application of this Ordinance all provisions shall be:
a. Considered as minimum requirements;
b. Liberally construed in favor of the governing body; and,
c. Deemed to neither limit nor repeal any other powers granted under State statutes.
Sec. 24.6 Effect on rights and. liabilities under the existing flood damage
prevention ordinance.
This Ordinance in part comes forward by re-enactment of some of the provisions of the
Flood Damage Prevention Ordinance enacted March 2 1981 as amended, and it is the
intention to replace re-enact and continue to enforce without interruption of such existing
provisions so that all ri~~ts and liabilities that have accrued hereunder are reserved and
may be enforced. The enactment of this Resolution shall not affect any action, suit or
proceeding instituted or pending. All provisions of the Flood Damage Prevention
Ordinance of Orange County enacted on_March 2, 1981, as amended, which are not
reenacted herein, are repealed.
Sec. 24.7 Disclaimer of Liability -Flood Regulations
The degree of flood protection required by this Ordinance is considered reasonable but
does not imply total flood protection.
PART XXII. The FIRM is hereby amended by LOMR with an effective date of August 7, 2008.
1. Letters of Man Amendment
a. 07-04-6156R (dated January 8 , 2008),
b. 08-04-2897A (dated April 10, 2008),
c. 08-04-2898A (dated Apri129, 2008),
d. 08-04-2899A~ dated April 10, 2008 and
e. 08-04-2900A, (dated Mav 22, 2008).
2. Letters of Map Revision
f. 06-04-BQ22P (dated Februar~3, 2007),
g. 06-04-C141P (dated November 5, 2007),
h. 07-04-6156R (dated January 9, 2008), and
i. 08-04-1666P (August 7, 2008).
3. Summary of Map Amendment #115-CWG (C) dated May 16, 2008.
PART XXIII. That Section I Purpose, Authority, Jurisdiction, Private Property Rights and
Applications to be Processed Expeditiously of the Subdivision Regulations is
hereby amended as follows:
I-F. Special Flood Hazard Area Standards.
Section 6.32 of the Orange Countv Zoning~Ordinance is hereby adopted by reference.
26
PART XXIV. Section II. Definitions of the Subdivision Regulations is hereby amended by adding
the following definitions and deleting the existing definitions as follows:
"Floodnlain refers to any land area susceptible to being inundated by water from any source more
specifically, lands subiect to a one (1) percent or greater chance of being flooded in any 'given e
determined in the Flood Damage Prevention Ordinance The floodplain is also referred to as the special
flood hazard area. Special flood hazard areas are mapped in the Federal Emergency Mana ement
A~ency Flood Insurance Rate Mans as Zone AE for areas where the base flood elevation has been
determined, and Zone A, where no base flood elevation has been determined "
"Floodwav means the channel of a river or other watercourse and the adjacent land areas that must be
reserved in order to discharue the base flood without cumulatively increasing the water surface elevation
more than one (1) foot. This term may also be referred to as the re ulatory floodway "
"Special flood hazard areas refer to areas mapped in the Federal Emer ency Management Agenc F~ lood
Insurance Rate Maps with an effective date of February 2 2007 as Zone AE for areas where the base
flood elevation has been determined, and Zone A where no base flood elevation has been determined "
PART XXV. That the Orange County Zoning Atlas is hereby amended to create the Special Flood
Hazard Area (SFHA) Overlay District incorporating data from the
aforementioned amended FIRM maps onto the Zoning Atlas, and
PART XXV. The Orange County Flood Damage Prevention Ordinance is hereby rescinded in its
present form and is no longer in effect.
Adoption certification. I hereby certify that this is a true and correct copy of the amendments to the
Zoning Ordinance and Subdivision Regulations, as adopte y the Board of County Commissioners of
Orange County, North Carolina, on the day of 2009.
WITNESS my hand and the official seal of, this the2~a
Donna Baker
Clerk to BOCC
PART XXVI. This Ordinance all be effective upon
of 2009, upon motion
Comm ssioner
by
I, Donna Baker, Clerk to the Board of Commissioners for the County of Orange, North Carolina,
DO HEREBY CERTIFY that the foregoing is a true copy of so much of the proceedings of said Board at
a meeting held on, 2009 as relates in any way to the adoption of the foregoing and that said proceedings
are recorded in the minutes of said Board.
WITNESS my hand and the seal of said unty, t 's 1 day of , 2009.
Clerk tot a Board of Commissioners