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HomeMy WebLinkAboutORD-2007-002 - Amendment to the Flood Damage Prevention OrdinanceURp "~DG7-doz. ~ -- 2 3 - ~.o o .~- 80... PROPOSED ORDINANCE TO BOCC January 23, 2007 An Ordinance Amending the Flood Damage Prevention Ordinance of Orange County Be it ordained by the Board of Commissioners of the County of Orange, North Carolina, that Section 42-38 of the Orange County Code of Ordinances is hereby amended as follows: Section 1. Sec. 42-38. Basis for establishing the special flood hazard areas. The SFHA are those identified by the FEMA or produced under the Cooperating Technical State agreement between the State of North Carolina and FEMA in its FHBM or flood insurance study (FIS) and its accompanying flood maps such as the FIRM(s) and/or the FBFM(s), for Orange County dated February 2, 2007, which with accompanying supporting data, and any future map update or revision thereto, including letters of map amendment or revision, are adopted by reference and declared to be a part of this article. The SFHA also include those defined through standard engineering 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 subsections 42-69 (11)(12) of this article; (2) Preliminary FIRMs where more stringent than the effective FIRM; or (3) Post-disaster flood recovery maps, if available. Section 2. That this ordinance shall be placed in the file of published ordinances. Section 3. This Ordinance shall be effective upon adoption. Adopted this the day of , 2007, upon motion of Commissioner seconded by ommissioner I, Donna Baker, Clerk to i e 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 January 23, 2007 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 s County, this day of 2007. ~~ ~t ~, ~'' Clerk to the Board of Commissioners REVISEb 1/22/07 ORANGE COUNTY BOARD OF COMMISSIONERS ACTION•AGENDA ITEM ABSTRACT Meeting Date: ~ January 23, 2007 ~ - a~ - ioo'7 ~ 0.- ~ Action Agenda Item No. $ - A SUBJECT: Amendment to the Flood Damage Prevention Ordinance DEPARTMENT: Planning & Inspections PUBLIC HEARING: (Y/N) YO ATTACHMENTS: ~ ~ INFORMATION CONTACT: Flood Damage Prevention Ordinance Text ~ Craig Benedict, Director, 245 2592 'Revisions Glenn Bowles, CFM 245 2577 January 23, 2007 Public Hearing Advertisement December 7, 2006 letter from William R. Blanton, Jr. (FEMA) ' September 14, 2005 Letter from Assistant ' Attorney General December 12, 2006 County Attorney •Letter ~ ' Overlay of 2007 FIRM and 1981 FIRM PURPOSE: To: 1. Hold a Public hearing, 2. Close the Public Hearing, . - 3. ~ Consider an amendment to the Flood Damage Prevention Ordinance (FDPO), and 4. Authorize staff to initiate the Zoning Ordinance amendment process to incorporate-the Flood Insurance Rate Map (FIRM) into the Zoning Ordinance as a new overlay district and to incorporate the •FDPO into the Zoning Ordinance by reference. BACKGROUND: The proposed amendment to the County's FDPO is a Federally mandated change and is necessary in order to incorporate the newly revised Flood Insurance Rate Study and FIRM for Orange County into the FDPO. The September 14, 2005 letter from Cheryl A. Perry and the December 12, 2006 letter from the County Attorney's office both state that the FDPO must specifcally reference the effective date of the new FIRM. Further, staff to the North Carolina Floodplain. Management Branch of the Division of Emergency Management has requested that Orange County revise its FDPO to specifically incorporate the new FIRM and its effective date, after holding a public hearing on the proposed amendment. The proposed amendment to the FDPO will meet the technical requirements requested by FEMA and the State Floodplain Mapping Program. Orange County must adopt a revised FDPO that specifically references the new FIRM and its effective date prior to February 2, 2007 in order to remain eligible to participate in the National Flood Insurance Program. Planning Staff also requests that the BOCC authorize staff to initiate the Zoning Ordinance amendment process to in~rporate the FIRM into the Zoning Ordinance as a new overlay district REVr.SED 182/07 - 2 and to incorporate the FDPO into the Zoning Ordinance as suggested by the September 14, 2005 letker from Cheryl A. Perry and the December 12, 2006 letter from the County Attorney's office. The BOCC adopted the original FDPO in March 1981, with amendments in 1995 and October 2005. Since May 2004, the Division of Emergency Management has been remapping the Orange County~floodplains for inclusion in the FDPO. As of February 2, 2007, new FIRMs applicable to the County will become effeckive and will replace maps that have been in effect since March 16, 1981. Section 42-38 of the existing ordinance states, "The Special Flood Hazard Area are those identified by the FEMA ... and its accompanying flood maps ... for Orange County dated March 16, 1981, which with accompanying supporting data, and any revision thereto, ... are adopted by reference and declared to be a part of this Ordinance." Thus, the need arises to amend the existing FDPO to specifically incorporate the new FIRM and to cite its effective date of February 2, 2007. The draft ordinance to amend the FDPO text is attached. Letters of map amendment and conditional letters of map amendment approved since 1981 are incorporated into the new FIRMs, effective on February 2, 2007. New map amendments and no-rise certificates for culvert and bridgework after the effective date will be made part of the FIRMs, with technical documentation. The Planning Board met on Wednesday, January 3, 2007, at its regular meeting and recommended that the BOCC approve~the proposed FDPO amendment.' The nine members in attendance voted unanimously to recommend approval. This public hearing is the first step in the implementation process of ensuring that flood hazard potential is reduced. The new maps show little change in the riverine flood plain. As the process of implementation continues, additional community outreach, beyond what has been conducted by the State's floodplain management branch and County staff will be scheduled. The zoning maps will be amended pursuant to a future quarterly public hearing process. FINANCIAL IMPACT: The Planning and Inspections Department has budgeted for Public Hearing advertising costs. RECOMMENDATIONS: The Administration recommends that the Board 1. Hold'a public hearing, 2. Close the public hearing, 3. Approve an amendment to the Orange County Flood Damage Prevention Ordinance, to incorporate the new Flood Insurance Rate Map, effective February 2, 2007, and 4. Authorize staff to initiate the process to incorporate the Flood Insurance Rate Maps (FIRMs) into the Zoning Ordinance as a new overlay district and to incorporate the FDPO in the Zoning Ordinance by reference. 4 NOTICE OF PUBLIC HEARING ORANGE COUNTY BOARD OF COMMISSIONERS A public hearing will be held in the Judge F. Gordon Battle Superior Courtroom of the New Orange County Courthouse, 106 E. Margaret Lane, Hillsborough, North Carolina, on Tuesday, January 23, 2007, at 7:30 PM for the purpose of giving alt interested citizens an opportunity to speak for or against the following item: A. Amendment to the Flood Damage Prevention Ordinance (FDPO) Section 42-38 of the Orange County Code of Ordinances BOCC adopted the original FDPO in March 1981, with amendments in 1995 and October 2005. As of February 2, 2007, new Flood Insurance Rate Maps (FIRMs) that the FDPO references will become effective. They will replace maps that have been in effect since March 16, 1981. On September 14, 2006, the State Attorney General issued an opinion that flood damage prevention ordinances shall specifically reference the date new FIRMs become effective. Thus, the need to amend the ordinance arises. Purpose: Section 42-38 of the existing FDPO states, `The Special Flood Hazard Area are those identified by the FEMA ... and its accompanying flood maps ... for Orange County dated March 16, 1981, which with accompanying supporting data, and any revision thereto, ... are adopted by reference and declared to be a part of this Ordinance." This section must be amended by deleting the March 16, 1981 date and replacing it with the new effective map date, February 2, 2007. Publish: Chapel Hill Herald News of Orange Dates: January 10, 2007 January 17, 2007 .£ ~~~t~ ~ v~.e~~ ~,,- I °° Federal Emergency Ma.nagem o ,~ ~ NI C~ 4, ~. Washington, D.C. 20472 D ~G1vn se DEC ~ 7 DEC 1 22006 cERT~1ED MAIL RETVRN RECEIPT REQUESTED Mr. John M. Linl~ Jr. Orange County Managcr P.O. Box 8181 I3illsborough, North Carolina 27278 Dear Mr. Link Community No.: 370342 Community: Orange County, North Carolina (iTmncorporated Areas) This is in reference to our enclosed December 4, 20061etter, which acknowledged an effective date for the revised Flood Insurance Study (FIS) and Flood insurance Rate Map (FIRM) for the unincorporated areas of Orange County and a deadline for submission of compliant floodplaia management ordinances. Due to an administrative error, the effective date cited in that letter, February 7, 2007, was incorrect. The cornct effective date for the FiS and FIRM is Fcbruary 2, 2007. We apology for auy inconvenience this error may have caused. We remind you that by the effective date of the FIS and FIRM, February 2, 2007, your community must adopt or show evidence .of adoption of floodplain management regulations that meet the standards of Section 60.3(d) of the National Flood Insurance Program (NF1P) .regulations in order to remain eligible to participate in the NFIP. If your comm~mity should encounter an3- difficulties enacting the floodplain management measures, we encourage you to contact the Director, Federal Insolence and Mitigation Division of the Federal Emergency Management Agency, in Atlanta, Georgia at (770) 220-5400. We look forward to working with the officials and residents of Orange County in assuring that the goals of the NF1P are met. Si1n~ce~rel~y~, William R Blanton, Jr., CFM, Chief Engineering Management Section Mitigation Division cc: Mr. Craig Benedict, Orange County Planning Director Mr. Tom Cadwallader, North Carolina Floodplain Mapping Program Engineei Mr. Tom Langan, North Carolina Floodplain Mapping Program Engineer FEMA, Region IV • . ~ . NFIP State Coordinator . 6 FINAL SUNIIVJARY OF MAP ACTIONS Community: Orange County, North Carolina (I7nincorporatedArxcs) Community No.: 370342 Revised Map Panels: Caswell County: 3710992000, and 3710994000 Person County: 3710996000 and 3710999000 Date Issued: December 4, 2006 Page No.: 1 of 2 To assist your community in maintaining the Flood Insurance Rate Map (FIRM), we have stmimarized below the previous Letter of Map Change (LOMC) actions (~.e., Letters of Map Revision (LOly1Rs) and Letters of Map Amendment (LOMA~)) that will be affected by the revised FIItM that will become effective on June 4, 2007. 1. LOMRs and LOMAs Incorporated The LOMRs and LOMAs listed below have been incorporated into and are reflected on the final FIRM. However, until the revised FIRM becomes effective, the LOMRs and LOMAs will remain in effect. New LOMC Case No. Effective Date Project Identifier New Panel Zone None 2. LOMRs and LOMAs Not Incorporated The LOMRs and LOMAs listed below have not been reflected on the final FIltM. Tllis is either due to scale limitations of the FIRM, or because the I.OMR or LOMA issued determined that the lots or strictures involved are out of the Speciai Flood Hazard Area, as shown on the FIRM. These LOMRs and LOMAs will be revalidated free of charge the day after the revised map panels become effective. New LOMC Case No. Effective Date Project Identifier New Panel Zone None 3. LOMRs and LOi11As Superseded The LOMRs and LOMAs listed below have not been reflected on the final FIltM because they have been superseded by new detailed flooding data or sufficient information could not be located on which to make a determination. 'The reason each has been superseded is noted below. When the revised FIRM becomes effective, these LOMRs and LOMAs will no logger be in force. LOMC Case No. Effective Date Project Identifier Reason Superseded None Page 2 of 2 4. LOMRs and LOMAs to be Re-deteanined The LOMCs in Category 2 of this form are revalidated through a single letter that reaffirms the validity of a previously issaed LOMC. Therefore, LOMCs issued for multiple lots or structures where the determination for one or more of the lots or strucdn~es have changed cannot be revalidated through this administrative process. However, we will review the data which were previously submitted as part of the original LOMR or LOMA request listed below and issue a new determination for the subject properties after the FIRM effective date. LOMC Case No. Effective Date Project Identifier New New Pane ~ Zone None 12/12/2006 TU8 16:43 FAR ~.~~' ti 2... ~. Statf~ c~t~ ~c~rtl~ G~~rc)linit fsYaS' .f-r it.Jf'IEI~ a?'pfgtnt ~ +.~".~lcal L1t'(3i~IFl;licllk.hN ,tti~#n-+° 1 '' t r t~aaX E;j_! I~,~i~IC-at September 14, X005 . Phi) Letsinger National Flood Insurance Program (NF1P) 1ti.C. Division.of Emergency Management 47131~1ai1 Service Center Raleigh, North Carolina Dcar Phil: REPLY TO: Crime Control Sectlan (419)716-65b5 You requested information concerning the proper way to amend municipal flood ordinances under North Carolina law. The Division of Emergency Management serves as state coordinator o€the National Flood Insurance Program (NFIP). I understand that the Federal Emergency Management Agency (F1:.~lA) required North Carolina to develop a state model tloodplain management ordinance. FEV1A noted that some states allow ordinances that automatically adopt revisions, while other states require that each ordinariee and revision thereto must be formally adapted by the appropriate municipal governing body. The question regarding the appropriate legal means to adopt andlor revise ordinances is signiFrcarrt as it relates to flood insurance maps. As development occurs and conditions change, the maps change to reflect the effects on floodways and floodplains. There are actual maps that may be amended by a letter of amendment. Communities participating in the NFII' administer their program as part of a zoning Pro~m• lisualty, state law requires that zoning ordinances and maps are adopted and "revised by specific state law procedures. FEMA has requested an opinion regarding whether North Carolina law requires-that zoning~ordinances and maps are adopted and revised using specific state law procedures. Further, FEMA has requested an opinion regarding whether incorporation by reference of future amendments to another statute, rule or regulation constitutes an unlawful delegation of legislative power. Specifically, FEMA has requested an opinion regarding vr~hether under North Carolina law Vorth Carolina's fIoodplain management model ordinance may ~ . provide for the automatic adoption of revisions to such ardirrarrce without any further legislative action by the jurisdiction's governing body. FEMA wants to know whether any necessary ordinance re~lsions based upon new hazard.data provided by FEMA and incorporating any future changes in I~~1P fioodplain management criteria may be made. Therefore; the issue is whether North Carolina's model floodpiain management ordinance may specify that maps "aird any revision thereto" or "as amended" are automatically adopted by the Ordinance without an amendment of the ordinance. ~ lt, appears that this is not permissible under the North Carolina ~o12/ozl 8. 12/12/2006 TUB 16:44 FA% Page 2 of 8 Gonstitution. 4. .Tbe N.G Flabd Damage Prevention Ordinance. - 1 understand that. Article 3, Section B. of the model North Carolina Flood Damage Prevention Ordinance states: The Special Flood Hazard Areas are those identified by the Federal Emergency . Management Agency (FF.INIA) or produced under the Cooperating Technical State (CTS) agreement between the State of North Carolina and FEMA in its Flood Hazard Boundary Map (FIiBM) or Flood Insurance Study (F1S) and its accompanying flood maps such as the Flood Insurance Rate Map(s) (FIRiV~ and/t~r the Flood Boundary Floodway Map(s) (FBFM), for . . (community) dated ,which with accompanying supporting data, and anv revfston thereto, including Letters of Map Ameirdmert of Revision, are adopted by reference and declared to be a part of this ordinance. _The Special Flood Hazard Areas~also include those defned through standard engineering analysis foi private developments or by govenunental agencies, but which have not yet been incorporated in the FIRM. This inclodes, but is not limited to, detailed flood data: 1. generated as a requirement of Article 4, Section C(11 & 12) this Ordinance; 2. ,preliminary FIItMs where more stringent than the effective FIRM; or post-disaster Flood Recovery Maps. Municipal: In addition, upon annexation to (municipality) or inclusion in the Extra-Temtorial Jurisdiction (ETJ), the Special Flood Hazard Areas identified by the Federal Emergency Management Agency (FEMA) and/or produced under the Cooperating Technical State agreement between the State of North Carolina and FEMA as stated above for the Unincorporated Areas of County, with accompanying maps and other supporting data, aied any revision thereto, are adopted by reference and dxlared to be a part of this ordinance. Article 6, Section A of the model North Carolina Flood Damage Prevention Ordinance states: This ordinance in part comes forward by "ro-enactment of some of the provisions of the flood damage prevention ordinance enacted (original adoption date of this ordinance) as ascended, and it is not the intention to repeal but rather to re-e~aact and continue to enfoice without interruption of such existing provisions, so that all rights and ®013/021 12/12/2006 TUB 16:44 FA7C Page 3 of 8 liabilities that have accrues thereunder are reser<+ed and may be enforced. The enactment of this ordinance shall not affocf any action, suit or proceeding instituted or pending. All provisions of the flood damage prevention ordinance of _ (concnnutity) enacted on - _ (orig~inat adoption date of this ordinance), as amended, which are not reenacted herein are repealed. See Article 6, Section A.of the North Carolina Flood Damage Prevention Ordinance. (Emphasis - added). - B'. The rIational Flood Insurance Program. - The National Flood Insurance Program (NFIIi') at 42 U.S.C. 4001 et. seq., seeks "as a matter of national policy, a reasonable method of sharing the risk of flood losses ...through a program of flood insurance which-can complement and encourage preventive and protective measures " Specifically; the NF1F's purpose is io ... {3) requ'ue states or local communities, as a condition of future Fcdetal financial assistance, m participate in the flood insurance program and to adopt adequate floodplain ordinances with effective enforcement provisions consistent with Federal standards to reduce or avoid future flood lasses ..-.. 42 U.S.C. 4002. FEMA impleri~ents the NFII'. FEMA is authorized m make flood insurance available only in communities that have adopted floodplain management regulations that meet minimum NFIP standards and that are enforcing ilioise regulations in flood hazard areas. The NFlP Act provides -that "After December 31, 1971, no new flood insurance coverage shall be provided under this title in any area (or subdivision thereof) unless an appropriate public liody shaII have adopted adequate land-use and control measures (with effective enforceanent provisions} which the Director finds are consistent with the comprehensive criteria for land management and use under 42 U.S:C.4102." C. Legislative Power of the State Vested in t>he Legislattcre. The North Carolina Constitution provides that the legislative power of the State is v_ ested in the General Assembly. N.C. Const. art. II, § I. Normally, legislative power cannot be delegated except as authorized by the Constitution. State ex red. Taylor v. Carolina Racing Assn, 241 N.C. S0, 84 S.E.2d 390 (1954); Gardner v City of Reidsville. 269 N.C. 681, 153 S.E.2d 139 (1967). Although this legislative power vests exclusively in the General Assembly and may not be delegated, there is an exception to this rule as it pertains to cities, towns, or - - counties. Orate ex rel Tayjgr, v Carolina Racing Assn 241 N.C. 80, 84 S.E.2d 390 {1964); Gardner v.City of Reidsville, 269 N.C. 581, 153 S.E.2d 139 (1967}. Power may be~delegated to municipalities and the "ordinary restrictions with reffpect to the delegation of power... do not -apply to cities, towns, or_caunties." )?(.emmer v. Matthewson. 28l N.C. 722,190 S.E2d 204 ®014/021 10 12/12/2006 TU$ 16:45 FA8 X015/021 11 Page 4 of 8 (1972). 'the court in ASP Associates v. City of Italdeh. 298 H.C. 207, 258 S.E. 2d 444 (1979) states "Legislative power is vested exclusively in the General Assembly by Article II, Section 1, of the North Carolina Constitution. From this provision and firm Article I, Section 6, derives the principle ttrat the General Assembly may not delegate its power to any other department or 1?ody. Motsinger v. P an. 218 N.C. 1 S, 9 S.E. 2d 51'1(1940); Coastal Hi hp~ay v. Tun~ike . Authori 237 N.C. 52, 74 S.E. 2d 310 (1953). This principle, however, is not absolute:' D. The Legislature may delegate power to legislate zoning to cities, towns and • counties. It is settled law that the power to zone real property is vested in the General Assembly by this section (N.C. Const_, Art II, §1.) C't±ristmen v. Guilford County, 322 N.C. 611, 370 S.E.2d 579 (1998). `The power to zone is the powec of the State and rests initially with the General Assembly." Zsnfi v City of Wihnia~ 273 N.C. 430,160 S.E.2d 691(1964): "The General Assembly has delegated to the legislative body of cities and incorporated towns the power to adopt zoning regulations and, from time to time, to amend or repeal such regulations." In re Markham, 259 N.C. 566, 131 S.e.2d 329, cert. denied, 375 U.S. 931 (1963): "The authority of the General Assembly to delegate to municipal corporations power to legislate concerning local problems; such as zoning, is an exception to the general rule that legislative powers,. vested in the General Assembly by N.C. Const., Art II, § 1, may not be delegated by it<" Jackson v Guilford County,~d Of Adjustment. 275 N.C. 155, 166 S.e.2d 78 (1969). Hence, zoning is a legislative act that has been delegated to the municipalities by the General Assembly. The court in ASP Associates v. City of Raleirrh.•298 N.C. 207, 258 S.E. 2d 444 (1979) states "Delegations to municipal corporations of the States' police power to legislate concerning local problems such as zoning is permissible by long standing exception non-delegation of legislative power. ~ln Re Markam. 259 N.C. 566,131 TackSOl1 v Board of Adjustment. 275 N.C.155,166 S.E. 2d 78 (1969). to the general Wile of S.E. 2d 329 (1963); 'Local governments have been delegated the power to zone their territories and restrict . them to specified purposes bythe General Assembly. Zopfi v City of Wilmington 2731~.C. 430, 434, 160 S_E2d 325, 330 (1968). This authority "3s subject both to the ...limitations imposed by the Constitution and to the limitations of the enabling statute." Id Within those limitations, the enactment of zoning legislation "is a matter within the discretion of the legislative body of the city or town." Id. Summers v. Citv of Charlotte,149 N.C. App: 509, 562 S.E. 2d 18 12/12/2006 TUS 16:45 FAS ®Q16/021 .. , 12 Page 5 of 8 (2002). The General Assembly~as delegated the legislative act of adopting and amending inning regulations to municipalities; Zoning is a legislative act and only the legislative body of a municipality is authorized to adopt and amend zoning or+d'mances. Only a law making body can adopt and amend a zoning ordinance. Lee.v. Board of Adjustment. 226 N.C.107, 37 S.E.2d 128 (1946); Bryan v. Wilson. 259 N.C. 107, i30 S.E.2d 6$ (1963); ~ppiication.of Rea Constr. Co., 272 N.C. 715, 1.58 S.e.2d 887 (i968). The power of a municipality (cities, towns, and counties) to enact zoning ordinances has .been expressly granted by statute. The authorityrto adopt, repeal, and amend zoning regulations is contained in the "arabling act" that is found in the North Carolina General Statutes. -The state law for adopting zoning ordinances and amendments for cities is found at N.C. Gen.. Slat. Section 160A-381 et seq. and for counties is found at 153A-320 eK seq. State law provides that the city . councilor the board of county commissioners provide notice to certain landowners. N.C.G.S. § 160A-384 outlines spexific procedures .for adopting zoning ordinances and amendments for - cities and towns. See N.C.G.S. §l b0A-384 attached. State law provides first for cities and towns "zoning regulations and restrictions and zone boundaries may .. , be amemied, supplenncnied, -. changed, anodifiexl or repealed." If there is a protest against the change, "an amendmart shall not lxecome effective except by favorable vote afthree-fourths of all the members of the city council." N.GG.S. §ibOA-385. SeeN.C.G.S. §160A-385 attached. The state la~ar for adopting zoning ordinances and amendments for counties-is found ai N.C.G.S. § 153A-340. Sere N.C_G.S_ §153A-340 attached: N.GG.S. §I53A-343 and §153A-344 outline.specific procedures for adopting zoning ordinances and amendments for counties. See N.C.G.S. §153A 343 and § ! 53A- 344 attached. Zoning or a change in zoning is a legislative act. Regarding counties' authority to amard zoning ordinances,~the court in Alderman v Chatham County ~ $9 N.C: App. 610, 366 S.E.2d 885 (1988), states "N.C.G.S. 153A-344 expressly gives counties the power to amend their zo~ring - . ordinances. As a legislative function„ the courit}~s act of amending its zoning ordinance is entitled .to a presumption of validity." S-p Associates V. City of Raleigh, 298 N.C. 207; 258 S.E.2d 444 (1979). The legislative act of enacting or amending a zoning ordinance is invalid if it is utu~easonable, arbitrary, or an unequal exercise of legislative power." A county's legislative body has authority~to rezone when reasonably necessary to do so in the interests of the public health, safety, moxals or general welfare. Ordinarily the only limitation upon this authority is that it may not be exercised arbitrarily or. capriciously.. Willis v. Union County 77 N.G. App: 407, 335 S.E.2d 76 (1985). N.C.G.S.153A-340 contains the legislative grant of power to counties to enact zoning ardit-ances. Development Associates. Inc. V. Tht: Wake County Board of Adjustment. 48 N.C. App. 541, 269 S.E.2d 700 (1980). . 12/12/2006 TUB 16:46 FAX ®017/021 13- Page 5 of 8 E. Uula~vful Delegation of Legislative Authority or Power. If a taw incorporates by reference the law or rule of another governmental entity or private body and any future changes to that law or rule this may constitute an unlawful delegation of legislative authority. The unlawful delegation pmblcm can occur when a law or rule is incorporated as amexd~d or as revised. If a North Carolina law incorporates a federal regulation, as amended, then, the North Carolina law will automatically change when those amendments occur without action of the Legislature. One may assert that the state's legislative authority has been given to the federal agency. The present issue involves local ordinances that incorporate maps prepared by or approved by a federal agency, FEMA. One may assert that it i~s unlawful to permit FEMA to change what constitutes a t]oodplain without any action on the part of the county oi• city. The N.C. model Flood Damage.Prevention Ordinance required by F1;MA atter~tpts to adopt by reference future amendments. If a city adopts by reference a statute, together with any future ameaidments theroto, there is an unlawful delegation of legislative authority, rendering the ordinance unconstitutional. ~rinklev v Motor Vehicles Division. 47 Or. App. 25, 613 P.2d 1071 (1980). See~al~ PeoQle v. Urban. 45 Mich. App. 255, 206 N.W. 2d 511(1973); Warren v. State Construction Code mmission 66 Mich. App. 493, 293 N.W. 2d 640 (1976); d ~ ent Community BaiSkers Assoaation of South Dakota. Inc., 345 N.W. 2d 737 (S.D. 1984); Ci.~. of Salem v. J btu 83 Or. App. 540, 732 P. 2d 919 (1987). . . "Numerous other courts hold that a statute that attempts to incorporate future changes of another statute, code, regulation, standard, or guideline is an unconstitutional delegation of legislative pov~ter. See, e.g., International Assn ofPlumbina. and Mechanical Officials v. ~ . California Bldg. Standards Comm'n, 55 Cal. App. 4th 245, 64 CaL Rptr. 2d 129, 134 (Cal.Ct.App. 1997); Pe~„ple v. Pollution Control Bd., 83 Ill. App.' 3d 802, 404 N.E.2d 352, 356- 357, 38111. Dec. 928 {1,980); ['~mbhir v. Kansas State Bd. of Pharmacy, 228 Kan. 579, 618 P.2d 837, 842 843 (1980); Michigan Mfrs Assn v Director of Workers'.Disability CC~mpensation Bureau, 134 Mich. App. 723, 352 N.W.2d 712,•715 (1984); Meyer v. Lord, 37 Ore. App. 59, 586 P2d 367, 371 (1978); City of Chamberlain v. R.E. Lien. Inc., 521 N.W.2d• 130, 132-133 (S.D. 1994); Independent Community Bankers Assn v. State. 345 N_W.2d 737, 744 (S.D. 1984); Woodson v. State, 95 Wash. 2d 257, 623 P.2d 683, 685 (1980)... [T]he adoption by reference of future legislation and rules are unconstitutional. Michiean Mfrs. Assn, 352 N.W.2d at 715. "Tl-e canons of statutory construction apply to the interpretation of an ordinance...: ' Moore v Bd of Adjustment of Cit~r of Kinston.113 N.C. App. 181,182, 437 S.E.2d 536, 537 (1993) (internal citation omitted). Mortis Communications Corporation v. Gastonia.159 N.G. App. 598; 583 S.E.2d 419 (2003). 12/12/2006 TU8 16:47 FAR Page 7 of 8 The N.G Flood Damage Prevention Ordinance provides for the automatic adoption of revisions to such ordinance without any further legislative action by the appropriate city council. and the board of county commissioners. It incorporates future changes in NFIP floodplain management criteria. I< specifies that maps "as ari~ended" "and gny revision thereto" are automatically adopted by the Ordinance without an amendment of the ordinance. Adoption of new FFi1+1A maps may impact hazazds mapping and zones. Property maybe `Yezoned" if the local government adopts or amends an ordinance that limits or prohibits land uses that previously were allowed in the a~eected zone. An orrinance that proposes to rezone ProP~Y ~1~ certain notice to the affected landowners. A zoning ordinance tf,at incorporates by reference all future amend~ertts br modifications of flood inswrance maps and subsequent revisions is an unlawful delegation of legislative authority..' To incorporate future changes to nit ordinance wiU unlawfully delegate to another body, person of emity such as FEIvIA the power to change the - ordinance, which is a power thaf should be reserved to the city council or the board of eourity camrnissioners. ~ . State law at N.GG.S. § 143-215:56(p,) provides that once FEMA approves the floodplain map for the NFIP, then, eac~h'local government affected by the floodplain must incorporate the revised map into its floodplain ordinance. State law at N.C.G.S. § 153A-47 and.N.C.G.S. §160A- 76(b) provide that a city or county may adopt in an ordinance regulations protnulgated.by a public agency. These statutes, N.GG.S. §1S3A-47 and §1b0A-76(b), seem to permit a county or city to adopt the federal regulations promulgataed by a public agency, FEMA. Specifically, these . statutes, N.C.G.S. §153A-47 and § 16QA-7b(b); seam to permit a county or city to adopt FEMA's rules,, including but may not be tirnited to, 44 C.FR Parts 59 and 65, for the mapping of special flood hazard areas. ~ These statutes seem to suggest that the city or county may adopt in its ordinance Fl?1RA's regulations for mapping special flood hazard areas. Ii is unclear whether these statutes, N.C.G.S. §] 53A-41 and § 160A-7b(b), permit a city or county to incorporate FEMA's ,future rules or future amendments for mapping special flood hazard areas. . State law at N.C.G.S. § 160A-384, § 153A-343 and § l 53A-344 outline specifCC procedures for amending zoning ordinances for cities, towns and counties, respectively, including but may not be limited to, providing notice to certain landowners and a public hearing. Adoption of amendments to the Flood Insurance Study or the Flood Insurance Maps for an area under the local jurisdiction must be done in accordance with the statutory procedures at N_C.G.S. § 1 b0A- 384, § i 53A--343 and § 153A-344. "While N.C.G.S. §§ l 53A-4 and 160A-4 mandate that g~rauts of authority to local governments be broadly interpreted, zoning authority cannot be exercised in a manner contrary to the express provisions of the zoning enabling authority." In~ty of Lancaster v. Meck[enbura County, 334 N.C. 496, 434. S.E.2d 604 (1993). It is settled law in North Carolina any zoning ordinance must be amended in acxordance with state law. "[A] zoning ordinance or an amendment thereto which is not adopted in acxordance with the enabling statutes is invalid and ineffective." Sellers v_ Cit~- of Asheville.. 33 N:C. APP. 544, 236 S.E.2d 283 (] 977). It has been held that in addition to complying with the state statutory requirement, local zoning authority must comply with ail requirements of its own local zoning ordinance before ®als/ozl 14 . 12/12/2006 TUE 16:47 Fax Page 8 of 8 adoption of amandmetil of a zoning ordinance. - Frizzelle v. Harnett County. 106 N.C. App 234, 416 S.E.2d 421(1992). "... [O]nly the legislative body of a municipality is authorized to adopt and amend zoning ordinances. Only a law making body can adopt and amend a zoning ordinance. Lee v. Board of Adjustment. Z26 N.C. 107, 37 S.E.2d 128 (1946); Bryan v. Wilson. 259 N.C.107, 130 S.E,2d 68 {1963); Application of Rca Constr. Co_, 272 N.C. 715,158 S.e.2d 887 (1968). Thus, North Carolina law does not constitutionally permit local governing bodies to incorporate by references revisions in flood insurance maps without also following the statutory provisions for amending the floodplain management ordittance under N.C.G.S. §160A- 384, § 153A-343 and § 153A-344. In accordance with N.C.G.S. § 153A~47 and § 160A-76(b), the city council or •the board of commissioners may incorporate by reference present maps that have been approved by the city council or board of county commissioners in accordance with N:C.G.S. §160A-384, §153A-343 and §153A-344. However, if they incorporate future changes or future revisions of the maps, this would coastitute.an unlawful delegation of legislative authority or power. As you know, other states such as South Carolina, Mississippi, and Oregon also coirclucled that the incorporation of future changes or revisions of the maps constituted an unlawful delegation of legislative authority or power and thus, were unconstitutional under their state constitutions. This memorandum is not an Advisory Letter and has not been reviewed and approved in accordance with procedures for issuing an Attorney General's opinion: Sincerely, ~~' , Cheryl Perry Assistant Attorney al 4t~loorSiDATA;N'PSCrimewaNrol`PERRYIl1HLS7I7~nfipmappioynemawpd c: ~ Doug Hoell,.Director, N.C. Division of Emergency Management J. Cluis Crew, Hazard Mitigation Section Chien N.G. Division of EM . Li1Ge Peebles, Agency Legal Specialist, N.C. Division of EM 15 16 December 12, 2006 VIA FACSIMILE Mr. Glen Bowles Orange County Planning Department P.O. Box 8181 Hillsborough, NC 27278 Re: Amendment to County Flood Damage Prevention 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 ("FIltM") 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 attached), if the County's FDPO is not revised according to this deadline, then County residents will become ineligible for the National Flood Insurance Program ("NFIP"). 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 with 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 FIRM for your community 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 from 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 17 period for Orange County actually expires on February 2, 2007, instead of February 7 as indicated in Mr. Blanton's letter. I am uncleaz 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 aze for Caswell and Person Counties, not Orange County. The letter also states that: "Although your community is unaffected by the updated flood hazazd information presented in the FIS reports and FIItMS, 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 FIlZM 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 amendment do not become effective until June 4, 2007. The September 14, 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 reference future revisions in flood insurance maps without first following the. statutory requirements for zoning map amendments. We agree with this view. Therefore, it appeazs that the -County is constitutionally precluded from taking action in January of 2007 to adopt a map revision that does not become effective until June 4, 2007. 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 office of the N.C. Division of Emergency Management and the North Cazolina Attorney General When Staff is prepazed 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 Cazolina Supreme Court decisions (see for example, Craig v. County of Chatham, 356 N.C. 40 (2002)) teaches that FDPO amendments comply with the procedures for amending the County's Zoning Ordinance and its official 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 Phil 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 (FIRM) 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.. I8 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 all 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 Ordvnance which would allow for the elimination of the FDPO as a separate Ordinance, will be undertaken in the future 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 Cazolina 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 in 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 Boazd, or by any person or agency that submits an application. Specifically, Section 20.3.2(b) requires that applications for teict 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 Officer who causes an analysis to be made of the application and prepares 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 "Notice 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 FIRM into the Zoning Ordinance. Article 20 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 notice 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 Boazd 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 shall 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. 19 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 is uncleaz to me how all of this may be accomplished given that January 23, 2007 is the last remaining BOCC meeting before the February 2, 2007 deadline. Please let me know if you have any questions regarding this letter. Best Regazds, COLEMAN, GLEDHILL, HARGRAVE, & PEEK P.C. Brian M. Ferrell cc: Laura Blackmon Craig Benedict ~.'~ _ 'i ~ ~ s d ~ a L •~ ~. _0 I.L c~6~~-~o~-aaz ,~ ~ z3 ..~ao ~ 8 ~.. Section 3. That this resolution be forwarded to all Orange County. law enforcement agencies:, locally elected officials and #o our state and federal legislative delegations on behalf of the residents of Orange County: This the 23`d day of January 200.7.. A motion was made by Commissioner Foushee, seconded by Gommissioner Nelson to approve a resolution :opposing the use of locale: law enforcement to enforce civil immigration law and policy and authorize the Chairto sign. VOTE::. UNANLMOUS 7. Special Presentations-.NONE 8. Public Hearings a. Amendment to the Flood Damage Prevention t~rdnance The Board held a Public :Hearing and considered an amendment to the Flood Damage Prevention Ordinance (FDPO) and Flood Insurance Rate Map (FLRM} into the Zoning Ordinance as-a new overlay district. Planning Director Craig Benedict summarized'this item. This-ordinance was originally adopted in 1995 using a model ordinance provided by the state and federal governments. The original maps from FE MA have been used fore 25 years and now these maps have been updated:. The suggestion is to hold a public hearing to amend the existing ordinance. The maps would be effective February 2, 2007. The state and federal governments have asked the County to use the new maps so that it can remain part of the National Flood Insurance Program.. The second part of the approval process, which will-occur at a later date:, is the actual incorporation of these maps into the zoning ordinance.. This will involve changing the zoning, text and..making a zoning atlas amendment. There has been over a_year of public outreach conducted by the National Floodplain Management'Divison that Orange County has. participated in. He said that the maps have not changed very much. Commissioner Jacobs asked about the year of public outreach. Certified Floodplain Manager Glen Bowles said'.-that it went-back to 2004 when FEMA came out and there were two meetings that were advertised in the paper: He said`in the: last two years, he has sent out letters to citizens that own property in the floodplain. He said that Commissioner Jacobs does. not have structures in the floodplain, so `he would not: have gotten a letter. He said that there was an outreach meeting on November 7"' and it was explained to owners on a lot-by-lot basis- where-the floodplain would change. About 20 people came to .the meeting. Commissioner Gordon-asked why this has not come to the Board as a public hearing before. now. She said that here .was a time when jurisdictions held public hearings:. and then voted on the same- night, and she does. not like this because the public was excluded. She would like to see the two separated. She asked. that. public hearings on major items be held on separate nights of the decisions.. There was no public comment. A motion was made. by Commissioner Foushee, seconded by Commissioner Nelsonto close the public-hearing. VOTE: UNANIMOUS A motion: was made by Commissioner Nelson, seconded by Commissioner Jacobs to approve an amendment to-the Orange County Flood Damage Prevention Ordinance, to incorporate the new Flood Insurance Rate Map, effective February 2, 2007, and authorize staff to 'initiate the process to incorporate the. Flood Insurance Rate Maps (FIRMS).. into the Zoning Ordinance as a new overlay district and to incorporate the FDPO in the Zoning;Ordinance by reference. Commissioner Jacobs said that his econd was with the understandingahat he agree's with Commissioner Cordon's statements: about. public hearings and the process. VOTE: IJNANI'MOUS 9. u a. Development of Orange County Transfer Station The Board considered accepting a report on the January 1'8th landfill community meeting and discussing and. providing direction to staff regarding a location for an Orange County Transfer Station. Solid Waste Director Gayle Wilson reviewed how the landfill community meeting went. The meeting was January 1-8~h at the Faith Tabernacle Oasis Church of Love on Rogers Road.. He said that he explained the background' and the specifics of a transfer station. A summary of the comments is shown below: Meeting Summary Landfill: Neighborhood Community Meeting January 18,.2007 Comments were, received on the following. topics during the meeting and have been grouped for ease of consideration. A complete listing of citizen questions and. comments are available upon request.. Current Landfill Issues_ Traffic: • speed limit on Rogers .and Eubanks:. Road • easier ID of speeding government. collection vehicles by placing a big number on the sides of the trucks, two feet high, so that it is easily seen and reported • Eubanks Road needs to be 3 lanes Odor:- • concern about the odor being bad for your health • neighbors don't deserve the odor. • the pungent=order that exists out there is awful • how long will the landfill smell after it closes Groundwater: • concern about the water contamination Other Solid Waste FacilteslServices to Remain: • what other landfills will remain open on Eubanks after this landfill unit closes Potential Transfer Station Issues .Past Promises/lJnfair: • getting dumped on again c~ ~ ~ °~ ,moo ~ '~-°~ ~` ` c7le ' C1 'r ROAP Application Trips Persons undu licated Total EDTAP 10,000 1,200 $94,023 EmploymentlWork First Trans. N/A 72 $21,492 Rural General Public RGP 33,000 NIA $73,586 TOTAL $189,101 PUBLIC COMMENT: None. A motion was made by Commissioner Jacobs, seconded by Commissioner Foushee to close the public hearing. VOTE: UNANIMOUS A motion was made by Commissioner Jacobs, seconded by Commissioner Foushee to approve the annual FY 2007-2008 ROAP grant application, including the supplemental request and authorize the Chair to sign. VOTE UNANIMOUS 6. Regular Agenda a. Approval of Fiscal Year 2007-48 Budget Ordinance. Capital Proiect Ordinances. and Grant Proiect Ordinances The Board considered adopting the County's budget ordinance, School and Capital projectordinances, and County grant project ordinances for fiscal year 2007-08. Laura Blackmon said that this is her first time doing this and she was surprised at the number of resolutions and ordinances that had to be passed. She thanked everyone for all of the hard work that has gone into the budget process. Donna Coffey said that she is asking the Board of County Commissioners to approve the budget ordinance, which includes the changes made at the last work session. The total General Fund now is $173,624,000. The property tax rate increase is set at 4.7 cents. on the ad valorem, which totals 95 cents per one hundred dollars valuation. The budget also includes an increase of 1.5 cents to the CHCCS District Tax, which totals 20.35 cents per one hundred dollar valuation. The per pupil current expense was increased to $3,069 per student. This is an increase of $112 over FY 2006-2007. The Fair Funding amount was increased by $188,000, bringing the total to $988,000. These funds will be split 50!50 between OCS and CHCCS. The Board is also being asked to approve the School and County Capital Project Ordinances that were delivered yesterday. The Board agreed to budget 50% of the lottery proceeds in the upcoming fiscal year, with the remaining 50°~ to be budgeted in arrears (2008- 2009). The staff has not been able to work with either school system on how the money will be allocated. The ordinances will be brought back to the Board in the fall. There are also several grant projects thatwere continued. Commissioner Gordon made reference to the Resolution of Intent, #11, which is "To approve the County and School Capital Project Ordinances for fiscal year 2007-08." She said that the Board did not get to discuss this. Donna Coffey said that the Board could approve items 1-10, which would implement the Budget Ordinance. Adoption of Attachment 2 will be the Budget Ordinance and will not include the County and School Capital Project Ordinances. A motion was made by Commissioner Foushee to adopt the 2007-08 budget, capital, and grant project ordinances consistent with the parameters outlined in the Board's "Resolution of Intent to Adopt the 2007-08 Orange County Budget," with the exception of #11. Geof Gledhill said that the Board should adopt attachment 2, which will capture everything in items 1-10 on attachment 1. A motion was made by Commissioner Foushee, seconded by Commissioner Gordon to adopt the Budget Ordinance as shown by Attachment 2. Laura Blackmon clarified that the Board is not approving the County and School Capital Project Ordinances. Itwill be considered later. Resolution of Intent to Adopt the 2007-08 Orange County Budget The items outlined below summarize decisions that the Board acted upon June 21, 2007 in approving the 2007-08 Budget. WHEREAS, the Orange County Board of Commissioners has considered the Orange County 2007-08 Manager's Recommended Budget; and WHEREAS, the Commissioners have agreed on certain modifications to the Manager's Recommended Budget; NOW THEREFORE BE tT RESOLVED, that the Orange County Board of Commissioners expresses its intent to adopt the 2007-08 Orange County Budget Ordinance on Tuesday, June 26, 2007, based on the following stipulations: 1} The following changes to existing positions, as presented in the 2007-08 County Manager's Recommended Budget on May 24, 2007, are approved: i Department Position Title Approved Approved FTE Funding Information Technology Systems Analyst $0 0.10 Staff Attorney (Transfer vacant position #908, Communications Specialist, assigned County Manager to Board of County Commissioners to $67,000 0.00 County Manager's Office to serve as Staff Attorne Water Resources Coordinator (Transfer Environment and Resource vacant position #386, Agriculture Extension Conservation Department Agent, assigned fo Cooperative Extension to $51,000 0.00 ERCD to serve as Wafer Resources Coordinator Environmental Health Specialist -Food & 1° Lod in effective Jarruar 1 2008 $37,707 1.00 ~ ~ ~ Environmental Health Specialist- Well ~ o ~ = Construction Program (effective January 9, $44,432 1.00 x ~ 2008 w` Environmental Health Technician - WeII Pro ram & Indoor Air Quail $55,794 1.00 N Athletic Program Supervisor (effective ~ Januar 1 2008 $27.689 1.00 a Parks Conservation Specialist/Turfgrass o Manager for West Ten & Northern Park $49,367 1.00 effective Se tember 1 2007 Parks Conservation Technician II for West ~ Ten &Northern Park (effective November 1 $31,699 1.00 , 2007 o ~ Income Maintenance Caseworker II $50,784 1.00 Social Worker II {School Social Worker for ~ Gravell HIII Middle School $55,452 1.00 Housing & Community Develo ment HOME Pro ram Coordinator g $58,245 1.00 Total $529169 9.10 All positions authorized to begin July 1, 2007 unless otherwise noted. 2} The following modifications to the County Manager's Recommended Budget are made: A ro riations• 1. Defer hiring 2 Emergency Services ositions for one ear ($130,000) 2. Reap ro riate savings realized in Cable Casting Contract ($45,000) 3' Decrease Board of Elections printing budget to reflect State allowin competitive bidding for ballots {$37,000} 4 Defer Board of Elections equipment maintenance until fiscal ear 2008-09 {$15,000} 5 Change delivery of employee newsletter from paper to ' electronic {$3,000} 6 Delay hiring of Environmental Health Food & Lodging and " WeII Construction positions b 6 months $52,000 7. Reduce BOCC Contingency by 50% ($17,500) 8 Delay hiring of Staff Attorney position by 3 months (effective ' November 1, 2007) $33,000) 9' Add Water Resources Position Effective November 1, 2007 $51,000 10. Eliminate Funding for Medicaid Increase ($545,000) 11. Reduce 401 (k) from $5 increase to $2.50 increase per pay period {$46,500 12. Delete. funding for Orange Alamance Water Stud {$20,000) 13. Increase ap ropriation to Energy Mana ement $6,844 14. Retain Families in Focus Program in Health Department $26,000 15 Increase funding to Orange Community Housing for Land . Trust Staffing $35,000 16. Retain Medical Reserve Corps for one additional year $17,000 17. Increase appropriation for HYAA $1,125 18. Eliminate funding for Critical Needs Reserve (Carry forward unex ended funds from fiscal year 2006-07 {$125,000} 19. Budget for Libra Services Interoperabili Stud $10;000 20. Increase appropriation for School Fair Funding to be split 50150 between CHCCS and OCS $188,000 21. Increase Schools Current Expense Funding from $2,957 per pu it to $3,069 $2,081,912 Total Changes to Recommended Appropriations $1,347,881 Revenues• 1. Increase Investment Income Bud et 100,000 2. Increase Ad Valorem Tax Rate by the Equivalent of One Cent to Fund Additional Increases in Current Ex ense Ap ro riation 1,247,881 Total Changes to Recommended Revenues 1,347,881 3} The total current expense appropriation for Schools is $53,793,744. The appropriation to the Chapel Hill-Carrboro City Schools is $33,121,357 and the appropriation to the Orange County Schools is $20,672,387. The per pupil allocation is approved at $3,069. 4) The recurring capital outlay for both school districts is $2,400,000 and is hereby- appropriated $1,458,480 for Chapel Hill-Carrboro City Schools for recurring capital. There is hereby allocated $941,520 for Orange County Schools for recurring capital. b) The County's ad valorem contribution to Chapel Hill Carrboro City Schools and Orange County Schools totals 84,528,997 or 48.7°k of the County's total General Fund budget of $173,554,351. 6} The Ad Valorem property tax rate shall be set at 95 cents per $100 of assessed valuation, an increase of 4.7 cents over the fiscal year 2006-07 rate of 90.3 cents. 7} The Chapel Hill-Carrboro City School District Tax shall be set at 20.35 cents per $100 of assessed valuation, an increase of 1.5 cents over the fiscal year 2006-07 rate of 18.85 cents per $T00 assessed valuation. The Chapel Hill-Carrboro Board of Education's 2007-08 requested budget included a 25.95 cent increase in the special district tax rate. 8) The Fire District tax rates shall be set at the following rates (all rates are based on cents per $100 of assessed valuation): ~ Cedar Grove 7.30 ~ Chapel Hill 1.90 ~ Damascus 5,00 ~ Efland 4.225 ~ Eno 5.70 ~ Little River 4.60 ~ New Hope 6.75 ~ Orange Grove 3.90 ~ Orange Rural 5.60 ~ South Orange 9.50 ~t Southern Triangle 5.00 ~ White Cross 5.00 9) Provide for a County pay and benefits plan that includes: • 3 percent Cost of Living increase effective July 1, 2007 for permanent employees • In-range salary increases ranging from 1 to 2 percent for employees whose work performance is rated proficient or higher work performance effective on the employees' performance review date • $2.50 increase in County 401 (k) contribution for non-sworn law enforcement employees from $25 to $27:50 per pay period effective July 1, 2007 • Increase the County's Living Wage for employees from $9.62 per hour to $10.12 per hour effective July 1, 2007 10} To adopt the recommended County Fee Schedule with the following exceptions: • Animal Services -Current fees for Animal Services Civil Penalties and Fines will remain at the fiscal year 2006-07 rates until the Animal Services Advisory Board and Board of County Commissioners agree upon a public education and outreach program PUBLIC COMMENT: CHCCS Board Member Lisa Stuckey said that this has been a hard budget season, and she thanked the County Commissioners for the work they have done this year and for listening to the public. She said that the budget supports almost all of the needs of the growth and the mandated pay increases from the State. She. agreed about looking for a cooperative budget process. She also looks forward to some clarification on the fund balance situation. VOTE: Ayes, 4; No, 1 (Commissioner Nelson) Attachments 3 and 4 Donna Coffey said that this includes only the projects that will receive pay-as-you-go funds in 2007-08. Attachment 4 includes all of the capital project ordinances that are included in Attachment 3, but it also includes ordinances that have an expiration date of June 30, 2007 that need to be continued. Commissioner Jacobs made reference to the Information Technology capital projects on Attachment 3. He suggested that a higher priority be placed on those projects that interface with the public. Previously, IT had the Clerk to the Board putting up minutes and ordinances for citizen searches last, and now it has the Library replacement computers last. He said that people are complaining that the library computers are very slow and inconsistent. He suggested that these projects be reprioritized based on a service model to the public. Laura Blackmon will follow up on this. Commissioner Gordon said that she thought the Board was going to go through Attachment 3 in order to discuss these. She does not believe that all of these projects need to be adopted. She thought that the Board should approve the Manager's recommended allocation for the previous commitments. She would also like the Manager to come back with options for space needs. She does not want to obligate all of the pay-as-you-go funds yet. She thinks that the Board should obligate items 1, 2, 3, and 9. Laura Blackmon said that some of these items, such as Information Technology, are a year's worth of work, and if they do not approve it, they will be months behind. She said that #14 can start later in the year. The improvements need to be made on the Blackwood Farm soon. If some of the projects are delayed, then there will be less time to complete them. A motion was made by Commissioner Gordon to adopt all items on Attachment 3, except #14, and instruct Laura Blackmon to bring back options for DSS space needs. There was no second. The motion failed. Commissioner Foushee said that she would not be supportive of delaying items 6, 8, or 12. Commissioner Jacobs said that #3 is just the County repaying itself and this would bean ideal place to defer transferring money. He is not in favor of delaying#14. Commissioner Jacobs asked about #10. He said that he and Chair Carey met with the Chair and Vice-Chair of the OCS Board. When the tennis courts were discussed, the school board was thinking that if the County were to help them with the lottery proceeds and having them available more readily, there might be more capital funding to bid the track and the tennis courts simultaneously. There were also questions about whether the tennis courts would in fact cost $300,000. He thinks that this could be staged over the course of the year. OCS Associate Superintendent for Support Services George McFarley said that the school board has not met since this meeting with the Chairs and Vice-Chairs, and they meet on July 9w. At that time, there will be a discussion about the findings on the actual costs. He feels comfortable with the estimates brought forth, that it will be at least $300,000 to complete just the tennis courts. Donna Coffey said that the Board can amend this once the OCS Board has made a decision on how it wants to use the lottery proceeds. Commissioner Jacobs said that atone point there was money budgeted for retrofitting plumbing and lighting fixtures - $10,000 a year for ten years. He had argued several times that it should be $50,000 for two years, but he cannot find it. Donna Coffey said that it is Utilities Demand Reduction Systems. Donna Coffey said that there is no new money put in this year. There are some funds left over to continue retrofitting the toilets, etc. Commissioner Jacobs asked to see a schedule. Laura Blackmon said that she will be doing a maintenance schedule, and this will be included. Commissioner Jacobs made reference to a handout about the vote of the Wilkes County Board of County Commissioners to appropriate their lottery proceeds to reduce taxes. He said that if this is legal, this is new to him. He asked the County Attorney to look at this. A motion was made by Commissioner Foushee, seconded by Commissioner Jacobs to adopt the County Capital Budget. VOTE: Ayes, 4; No, 1 (Commissioner Gordon) Chair Carey asked about the grant project ordinance and it was answered that it should be done separately. Commissioner Gordon asked about the Homestead Aquatics Center capital project ordinance. She said that if she works on this with Donna Coffey, then they could bring back another ordinance. Donna Coffey said that all of this will be clear when all of the bonds are expended. A motion was made by Commissioner Jacobs, seconded by Commissioner Nelson to adopt the 2007-08 grant project ordinance. VOTE: Ayes, 4; No, 1 (Commissioner Gordon) Donna Coffey said that the Board had to act on Attachments 5 and 6, which were the school capital project ordinances. This is appropriating the schools' pay-as-you-go money for 2007-08. The staff will be bringing back to the Board in October a full ten-year plan. A motion was made by Commissioner Gordon, seconded by Commissioner Foushee to adopt the school capital project ordinances. VOTE: UNANIMOUS b. Acceptance of Grant from the NC Parks and Recreation Trust Fund for Northern Park The Board considered accepting a $500,000 state grant from the NC Parks and Recreation Trust Fund for construction of Northern Park (also known as Cedar Grove Park) and authorizing the Chair to sign subject to final review by staff and the County Attorney. Environment and Resource Conservation Director Dave Stancil said that he would present items 'b'and 'c' together since they are so similar. He said that this park is known as Cedar Grove Park or the Northern Park at the Northern Human Services Center. At some point, the Board will want to assign a formal name to the park. This is a 40+-acre park along NC 86, six miles north of Hillsborough. This grant is very timely as it enables the Countyto build all of phase one of the park. The grant is a reimbursement grant, and the County can begin getting reimbursed once it expends about half of the total project. The Manager's recommendation is to accept the grant and authorize the Chair to sign the grant contract after review by the County Attorney and staff. Commissioner Jacobs congratulated staff of both Recreation and Parks and ERCD. He asked about the total of grant funds since 2001 and Dave Stancil said around $4.2 million. Commissioner Jacobs made reference to naming the park and said that he asked staff to do some research. Dave Stancil said that Tina Moon, Cultural Resources Specialist, has looked at over 150 years worth of title searches to see who owned the property. Commissioner Jacobs asked to see this information. Commissioner Jacobs asked about the status of the wastewater for the Northern Human Services Center. Dave Stancil said that the last conversation was that this would be resolved in September. Commissioner Jacobs asked that this be put in the Manager's Memo over the summer. He wants to be aggressive about this and go to Raleigh if necessary. A motion was made by Commissioner Jacobs, seconded by Commissioner Nelson to approve accepting a $500,000 state grant from the NC Parks and Recreation Trust Fund for construction of Northern Park {also known as Cedar Grove Park) and authorize the Chair to sign subject to final review by staff and the County Attorney. VOTE: UNANIMOUS c. Bid Award for Northern Park. Phase I The Board considered awarding a bid and approving a contract with Faulconer Construction in an amount not to exceed $1,547,149 for construction of the major elements of Northern Park {also known as Cedar Grove Park) and authorizing the Chair to sign. Recreation and Parks Director Lori Taft made reference to the first page of the abstract, which lists the items included in phase one. The one pending item is the ball field lighting. There could be enough in the allocated funding to include the lighting, but this one alternate was sat aside with the realization that there are some issues with soil that could be quite costly. In addition, there is a risk of running into rock, which can be costly. The staff is asking for the Board to consider approval of the budgeted amount, which includes the original bond money, part of the grant money, as well as the payment-in-lieu funds from this park district. A motion was made by Commissioner Jacobs, seconded by Commissioner Nelson to approve awarding a bid and approving a contract with Faulconer Construction in an amount not to exceed $1,547,149 for construction of the major elements of Northern Park (also known as Cedar Grove Park) and authorize the Chair to sign.