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HomeMy WebLinkAboutORD-2009-014-Zoning Ordinance and Atlas AmendmentZ-23_U `~' ~'l~ ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: February 23, 2009 Action Agenda Item No. C~ 1 _ SUBJECT: Subdivision Regulations, Zoning Ordinance, and Atlas Amendments to create a new Zoning Ordinance Overlay District and incorporate flood protection standards. DEPARTMENT: Orange County Planning ATTACHMENTS: 1. November 7, 2008 NC Emergency Management letter 2. Checklist attachment tv NCEM letter 3. November 12, 2008 letter to Ken Ashe 4. Update of County floodplain activities 5. Amendments to the Zoning Ord. & Subdivision Regulations 6. Proposed Zoning Atlas Amendments 7. Notification letters and Certification of Mailing PUBLIC HEARING: (Y/N) Yes INFORMATION CONTACT: Craig Benedict, Director 245-2592 Glenn Bowles, Planner 11 245-2577 PURPOSE: To receive public comments on proposed amendments to the Subdivision Regulations, Zoning Ordinance, and Zoning Atlas to create a new Zoning Ordinance Overlay District from the Flood Insurance Rate Map (FIRM) and to incorporate flood protection standards of the Flood Damage Prevention Ordinance (FDPO) standards into the text of both regulations. BACKGROUND: Responding to the Community Assistance Visit of August 21 and 22, 2008, the County received a November 7, 2008 letter from Mr. Ken Ashe, 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. 2 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. Affirming the various amendments to the FIRM (future SFHA Overlay District) that FEMA approved on February 2, 2007; and 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) LOMB, 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 LOMB 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 only, an update of County floodplain activities, which includes enforcement activities, elevation certificate surveying progress final report, recent neighborhood meetings, and recent enforcement activities is included in Attachment 4. Notification letters (Attachment 7) to both affected property owners and property owners within 500 feet of an affected property were mailed out on Friday, February 6, 2009. This is a requirement of our zoning amendment notification process (Section 20.6.3). Because of the length of the mailing lists, which include over 8,300 separate addresses, the complete list is not included as an Attachment. The list is available for any interested person in the Planning and Inspections Department during normal business hours. Signs~were posted in front of the properties affected by LOMA and in the vicinity of properties affected by the LOMR on the same date, February 6, 2009. 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 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 1,822 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 proposed amendments, . 2. Conduct the public hearing to receive public comments on the proposed amendments, 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 -Special Flood Hazard Areas (SFHA); 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. 3. Refer the matter to the Planning Board for a recommendation with a recommendation. be submitted back to the BOCC in time for the agenda scheduled for April 21, 2009 BOCC meeting, and 3 4. Adjourn the public hearing until April 21, 2009 to receive the Planning Board recommendation(s) and any submitted written comments. APPROVED 4/21/2009 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, Barry 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, Jay Bryan, Mary Bobbitt-Cooke, Judith Wegner, Rachel Phelps Hawkins, Dr. Larry Wright, and Mark Marcoplos PLANNING BOARD MEMBERS ABSENT: Vice-Chair Jeffrey L. Schmitt, Joel Forrest Knight, II, Samantha Cabe, Tommy McNeill, and Nathan Chambers A. OPENING REMARKS FROM THE CHAIR Chair Foushee called the meeting to order at 7:49 PM. She called attention to the public charge. She turned the meeting over to Brian Crawford, Planning Board Chair. B. PUBLIC CHARGE The Chair dispensed with the reading of the public charge. 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 (SERA) 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. AGENDA ITEM: C1 QUARTERLY PUBLIC HEARING Review of a proposal to incorporate the Flood Damage Prevention Ordinance into the existing Zoning Ordinance and onto the Official Zoning Atlas Why are we doing this? The County has been informed by the Federal Emergency Management Agency (FEMA) and the State Office of Emergency Management that in order to continue participating within the National Flood Insurance Program (NFIP) we had to revise the process utilized to review and process flood regulations and map amendments to be consistent with current Statutory requirements for zoning ordinance and atlas amendments. What is being proposed: Existing regulations, currently within the stand alone Flood Damage Prevention Ordinance, are being placed within the Zoning Ordinance. How are we doing this? Staff proposes to create a new Special Flood Hazard Area (SERA) Zoning Overlay District incorporating existing flood regulations within the Zoning Ordinance and incorporating Flood Insurance Rate Map (FIRM) data onto the Zoning Atlas. What is being proposed (continued): •Processing/approval of map amendments to existing FIRM data that have already been reviewed and approved by State and Federal officials, and •Revie existing subdivision regulations to reference the new location of flood regulations/definitions. Implications of proposed change: No change to property owners • The proposed relocation of flood regulations will not have an impact on a property owner's ability to make use of their property outside of the floodplain. Existing regulations will still be in effect for any portion of a parcel of property located within an identified floodplain. • The only positive impact is related to the review and processing of Letters of Map Amendment (COMA) and Letter of Map Revision (LOMR) Parcels Notified of proposal (map) History: •Orange County began participating within the National Flood Insurance Program (NFIP) in 1981 •The County adopted a standalone Flood Damage Prevention Ordinance (FDPO) along with Flood Insurance Rate Maps (FIRM) •Approximately twenty four hundred (2400) properties within the County's planning jurisdiction are subject to compliance with flood regulations Why are we doing this now? •In anticipation of the revised 2007 FIRM amendments, the State Attorney General's office issued an opinion in 2005 indicating that amendments to existing flood regulations and/or flood maps ought to be treated and processed as zoning amendments •In the fall of 2006, the County Attorney's office concurred with this opinion •In the Fall of 2008 State and Federal officials conducted a Community Assistance Visit (CAV) with staff to review/audit the floodplain management program where we were told to being this process Why we are doing this (continued): Staff and the County Attorney had hoped to wait to incorporate flood regulations into the zoning ordinance when work began on developing the Unified Development Ordinance (UDO). Given the comments received from State officials during the community visit, we can not longer wait for development of the UDO to begin. Road Map for Amendments •42-31. Statutory Authority •42-32. Findings of Fact •42-33. Statement of Purpose •42-34. Objectives •42-35. Definitions •42-37. Lands to which this Ordinance applies •42-38. Basis for establishing the SFHA •42-39. Compliance •Article One (1)Genera/ Provisions -new Section 1.7 Statutory Authority (Section 42-31 of FDPO) •Article Four (4) Establishment of Permitted Use Table and Schedule -new section establishing Purpose and Intent of the Special Flood Hazard Overlay District (includes Sections 42-32 through 42-33 and Sections 42-37 through 42-39 of FDPO) •Definitions will be moved to Article 22 Definitions of the Zoning Ordinance •42-40. Abrogation •42-41. Interpretation •42-42. Penalties for violation •42-66. Designation of Floodplain Administrator •42-67. Establishment of floodplain development permit •42-68. Floodplain development permit & certification requirements •42-69. Duties and responsibilities •Article Twenty-four (24) Legal Status Provisions and Effective Date is being amended to include Sections 42-40 through 42-42 of FDPO. •Article Twenty-one (21) Administration is being amended to include administrative references outlined within Sections 42-66, 42-67, and 42-69 of the FDPO •Article Fourteen (14) Site Plan Approval Procedures will include floodplain permitting requirements •42-70. Corrective Measures •42-71. Variance Procedures •42-91. General Standards •42-92. Specific Standards •42-93. Specific Standards - Approximate A Zones •42-94. Subdivisions et al. •42-95. Standards for areas of shallow flooding •42-96. Effect on outstanding floodplain development permits •Article Twenty-three (23) Enforcement will include section 42-70 of the FDPO •Article Two (2) Board of County Commissioners and ifs Administrative Mechanisms is being amended to include the Variance Procedures outlined within Section 42-71 of the FDPO •Article Six (6) Application of Dimensional Requirements is being amended to include the specific requirements for the proposed overlay district (includes Sections 42-91 through 42-96 of the FDPO) •42-97. Effect on rights and liabilities under existing FDPO •42-98. Effective date •Sections 42-97 through 42-98 of the FDPO are being placed within Article Twenty-four (24) Legal Status Provisions and Effective Date of the Zoning Ordinance Zoning Atlas -Incorporation of Flood Map Data (map) Additional work being proposed -FIRM Map Amendments •Letters of Map Amendment (COMA) - 5 A localized amendment only to the FIRM, •Letters of Map Revision (LOMR) - 4 An amendment to the FIS and FIRM, and •Summary of Map Action (SOMA) -- 1. SOMA LOMAs & LOMRs (maps) Frequently Asked Questions: •Why did I receive a certified letter and/or postcard informing me of the PUBLIC HEARING? •Will this change and/or impose new flood regulations that may be applicable to my property? •How long have the floodplain regulations been in effect? •Who defines floodplain boundaries and how are they designated? •What if I want to challenge the location my property within a floodplain? Staff recommendation: 1. Receive the proposed amendments, 2. Conduct the public hearing to receive public comments on the proposed amendments, 3. Refer the matter to the Planning Board for a recommendation with a recommendation be submitted back to the BOCC in time for the agenda scheduled for April 21, 2009 BOCC meeting, and 4. Adjourn the public hearing until April 21, 2009 to receive the Planning Board recommendation(s) and any submitted written comments. Rachel Phelps Hawkins arrived at 8:01 p.m. Commissioner Jacobs said that the notices were very difficult to understand. He asked for clarification on whether it would change anything about the additional notified properties beyond the affected property. Craig Benedict said no. Commissioner Yuhasz asked about the adoption of this ordinance. He said that qualified farms are exempt from zoning regulations under State statute. He noted on the proposed Part 1.5 that the farm exemption is supposedly not in effect with respect to this particular section of the zoning ordinance. He asked about the legal basis for exempting in Orange County certain parts of zoning from the bona fide farm exemption. Michael Harvey said that the Planning Department staff had the same concerns and the section was written based on the model of the Wake County Unified Development Ordinance after review with the County Attorney's Office. Commissioner Gordon said that the notice should have been clearer so that people would not have been forced to come out to the public hearing to get clarification. PUBLIC COMMENT: Lynette Hartsell spoke on behalf of the Friends of Lake Orange. She said that she asked for a copy of the letter from the Attorney General's Office that prompted this change. The letter is dated September 14, 2005, and is addressed to the National Flood Insurance Program. It was actually a memorandum. She said that the letter that she received addressed issues of FEMA, flood maps, and whether the maps can be incorporated. The issue addressed in the memorandum was whether or not future maps could be accepted without this kind of public notice. She said that she is confused that this is being moved under zoning. There is nothing in the letter that she read that you cannot have a standalone flood prevention ordinance. She said that the people in Lake Orange get nervous about these things. She said that the people in Lake Orange are concerned that their rights will be taken away from them. She said that there is a lot of distrust that the government will not act in the citizens' best interest. She said that there must be meaningful dialog and not just public hearings. She asked the County Commissioners to think outside the box and initiate a task force charged to identify problems and find solutions for Lake Orange and reach a binding agreement. Brent Clayton said that he bought 6.5 acres in 2000 and it was not in the floodplain. His property got put in a floodplain in 2007. He originally purchased his property behind the house that is there now. The floodplain took almost three acres of his property, and the property is now useless. He asked how this was helping him. Steve Richardson was with the Friends of Lake Orange. He said that there are vast gaps in the proposal and there are some State constitutionality questions. He urged the County Commissioners to decline to act on this unnecessary proposal. If the County Commissioners vote on this, he asked that they amend it specifically to honor and grandfather the special, perpetual, contractual rights with the County under the terms by which Lake Orange was gifted to the County 40 years ago, so that nothing within the technical zoning change can be construed as going against those rights in any way. Secondly, the property owners of Lake Orange have endured decades of bad experience with the County and are mistrustful. Several County Commissioners and staff have been welcoming, forthcoming, and have worked in good faith. He thanked those people. He said that these people were the exception. He said that the assurance that this change would have no effect on properties is not strictly true. He read a resolution that was proposed by the Friends of Lake Orange, as follows: "In the interest of reestablishing mutual trust and good will, eliminating future avoidable misunderstandings that could further divert all involved from their other interests, responsibilities, and duties, as well as potential future involvement of remote third parties whose interests may coincide with none of the Task Force members' there shall be established a Lake Orange Task Force. The Lake Orange Task Force shall be a group of no more than seven members, with designated alternates, comprised of representatives from the office of the Orange County Manager and the office of the Orange County Attorney, representatives of Friends of Lake Orange, and any other property owners claiming rights or interest in Lake Orange and the issues set forth below, and material stakeholders directly involved in Lake Orange and its management. The charter of the Lake Orange Task Force will be to resolve issues concerning water rights, including but not limited to: recreational rights, the Voluntary Capacity Users Group Agreement and the maintenance and administration of the usage of Lake Orange. The goal of the Task Force will be: to reach a binding agreement on these issues, define a future path for dealing with Lake Orange and establish methods for resolving future questions, based on a common understanding that considers and respects the rights, responsibilities and needs of all parties involved. When that consensus is reached and those methods are established, the charter of the Task Force will be fulfilled and the Task Force will end. The first order of business of the Lake Orange Task Force will be to obtain from each Task Force member a statement of its interests and perceived needs from which a concise and specific set of high-level tasks will be defined by the Task Force in support of its charter. Thereafter the Task Force will establish working groups and timelines for completion of each task." He submitted the resolution to the Clerk. Bruce Lucas lives on NC 86 North in Hillsborough. He said that he has water coming on both sides of the road into his branch and it floods his property. He asked for help in getting a bridge, which would stop some of the flooding. He submitted pictures as proof of the flooding. Carolyn Fuller lives in Efland and she has some property in the floodplain. She asked how this was affecting the property and if there was anything they needed to do. Brian Crawford asked that someone from the staff address this question after the meeting. Greg Plachta said that he is a concerned citizen and he agrees with the Friends of Lake Orange. Ed Johnson said that he lives beside a creek and he wants to raise some concerns about data gathering. He made reference to a letter from the Planning Department and said that he lives close enough to the creek that the Planning Department sent out a surveyor and wrote this letter with recommendations and photographs of the property with yellow lines giving sea level elevations. He said that this photograph with the elevations is full of errors. He wonders if other people have been plagued by these errors. Because of these errors, he has no faith in the recommendations made concerning his property. Ken Terlep read a prepared statement: My name is Ken Terlep and I am a member of the "Friends of Lake Orange". My property borders Lake Orange and is within the proposed Special Flood Hazard Overlay District that is included in the proposed Amendment to the Zoning Ordinance. I have two primary comments about the proposed Amendment: 1. Although it has been stated that there is no additional restricfiion to property owners with property that is in the new Special Flood Hazard Overlay District, the specific wording to be placed in the Amendment has not been provided. I think we all must have the chance to review the actual words in the Amendment before a final Public Hearing is held. When will the specific wording be available so a comprehensive review can be made? 2. I have seen a map of the flood elevation contour for my property superimposed on a map of my property boundaries and the 615' elevation contour which is the same elevation as the spillway for Lake Orange. Some inconsistencies can be seen by examining the various contours shown on or near my property. I question the accuracy of the data when displayed together and to be used for compliance assessment according to the Zoning Ordinance. I have been cautioned on many occasions by Orange County Staff that the GIS data available has limited accuracy and that, as stated on the GIS website: "Orange County and its vendors assume no legal responsibility for the information". How can it be used for assessment of compliance to the proposed Special Flood Hazard Overlay? What accuracy is ascribed to the Flood Maps relative to the County's data for property boundary lines? I also support the proposals made by Lynette Hartsell and Steve Richardson who have previously talked tonight -requesting the Commission to recognize the unique status of Lake Orange and to establish a Task Force to address issues pertinent to property owners and others with interest in the access to and the use of Lake Orange. Ken Terlep Cedar Grove February 23~d, 2009 Craig Benedict said that the exact words of the Flood Damage Prevention Ordinance as it is being incorporated into the zoning ordinance is available through the internet and in the postcards that were sent out. John Hartwell said that his house sits close to the Eno River on a steep bank. He has a Certification of Elevation. He said that the maps are being amended and the public should see all of the information. Judith Kramer owns a home on New Hope Creek, which has flooded twice in the last 12 years. She commended the County for considering taking this action to ensure that the residents of Orange County have access to the National Flood Insurance Program. She said that there is a benefit of having FEMA's protection in a flood situation. She has some concerns about the methods of notification of important changes in the flood maps when property is affected. She said that she was shocked to find out from her mortgage company that she was no longer in a floodplain, because she never received notification by the County or FEMA. This was related to the change in a map in 2007. She knew that she was at risk of flooding because her home was flooded during a hurricane. She suggested taking history into account. Robert Brown lives near a creek. He said that the flooding that he has seen has been due to water restrictions or the size of the bridge, which has backed the water up. Wallace Williams said that he and his wife live 80 feet above the floodplain. He asked if the Planning Board would give him a hard time if he tried to build something on his property. 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 2. Zoning Ordinance Amendment: To receive public comment on proposed amendments to Article 2, Sections 2.2.14.3 through 2.2.14.9, of the Zoning Ordinance clarifying the procedures and requirements for amendments to the adopted Comprehensive Plan. Special Projects Planner Shannon Berry made this presentation. PowerPoint presentation for item C-2 Zoning Ordinance Amendments -Article 2 Clarification of procedures and notification requirements for amendments to the Comprehensive Plan The proposed amendments to Article 2 address Comprehensive Plan (text & map) amendments only Comprehensive Plan -Text Amendments -Land Use Plan (Map) Amendments Zoning Ordinance -Text Amendments -Zoning Atlas (map) Amendments N.C. General Statutes North Carolina law does not provide guidelines or procedures for the adoption or amendment of comprehensive plans Orange County Zoning Ordinance •Article 2- Sections 2.2.12 through 2.2.14.3 address the Comprehensive Plan specifically •2.2.12 Comprehensive Plan, Intent •2.2.13 Comprehensive Plan Adoption •2.2.14 Amendment of Adopted Comprehensive Plan •2.2.14.1 Initiation of Amendments •2.2.14.2 Classification of Amendments •2.2.14.3 Consideration of Amendments 2.2.14.3 Consideration of Amendments "Except as noted herein, the submission and consideration of applications for proposed amendments to the Comprehensive Plan or portion thereof shall be governed by the procedures contained in Article 20 of this Ordinance." Article 20. Amendments •Article 20 deals specifically with amendments to the Zoning Ordinance and provides detailed procedures and requirements for processing amendments to the Zoning Ordinance