HomeMy WebLinkAboutAgenda - 02-17-1998 - 9dORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: February 17,1998
Action Agenda
Item # q _ d
SUBJECT: Revocation of Preliminary Plan -University Manor, Phase I
DEPARTMENT: PUBLIC HEARING: Yes X No
BUDGET AMENDMENT REQUIRED: Yes X No
ATTACHMENT(S): INFORMATION CONTACT: Emily Cameron
Extension 2580
Resolution of Approval
Preliminary Plan
Declaration of Restrictions
Conservation Easement
Final Plat, Phase I, Section I
1/28/98 Letter Requesting Revocation
TELEPHONE NUMBERS:
Hillsborough - 732-8181
Durham - 688-7331
Mebane - 227-2031
Chapel Hill - 967-9251
PURPOSE: To consider a request for revocation of the Preliminary Plan for University Manor,
Phase I.
BACKGROUND: The Preliminary Plan for Phase I of University Manor was approved by the Boazd of
Commissioners on December 19, 1995. Phase I consists of 47 single-family
residential lots served by new public roads, individual septic systems, and a
community water system. The Final Plat of Phase I, Section I, was approved and
recorded on April 16, 1997. Section I contained nine (9) lots and approximately 24
acres of open space. Part of the open space was included in a Conservation Easement
Dedicated to Orange County and accepted by the Boazd of Commissioners on
December 17, 1996.
The roads and water system in Section I were completed and approved by
appropriate authorities. The road rights-of--way were accepted by Orange County on
behalf of the public with approval of the Final Plat. The developer had not requested
that NCDOT take over maintenance of the roads because the State's minimum
density requirements had not been satisfied. No lots have been sold and no building
permits issued in Section I.
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The roads in Section II of Phase I have been partially graded and graveled, but not
completed. The Final Plat for Section II was never submitted. In addition the
consolidated Concept Plans for the remaining sections of University Manor (Craig
Manor, Guernsdale, University Trace) expired on May 20, 1997.
On January 28, 1998, the Planning Department received the attached letter from the
attorney representing the applicant and owner of University Manor requesting
revocation of the subdivision approval. As stated in the letter, the owner "has entered
into a contract to sell the entire subdivision to Durahill, LLC, on the condition that
the County revoke the approval of the subdivision and that all easements and
restrictions created in connection with the approval of the subdivision be terminated
or withdrawn on or before April 1, 1998."
The effects of a revocation of approvals for University Manor aze positive and
negative. From the County's perspective, one positive result would be relief of
responsibility for the Conservation Easement. Another plus would be as long as the
property remains undeveloped, there will be no added impacts on the environment,
adjacent roads, or public service agencies such as law enforcement and schools.
Negative aspects of the revocation include the loss of permanent open space and .
potential tax revenue from developed lots. In addition, the County and residents of
the azea aze left with an uncertainty of future development plans.
From the developer's perspective, the revocation is, for the most part, positive, as he
is able to sell to the prospective buyer and is freed of legal and financial obligations
associated with development of the property. However, the developer forfeits the
opportunity to sell approved lots.
To accomplish revocation of the Preliminary Plan approval, the Planning Staff and
County Attorney recommend that the applicant present all necessary documents to
rescind the Conservation Easement, abandon the publicly dedicated roads, and make
the recorded Final Plat null and void. Such documents, including a Resolution for
action by the Boazd of Commissioners, may be presented at the next regulaz meeting
of the Boazd on Mazch 4.
Any future development application submitted for the property will be considered a
new request, subject to all requirements, including Flexible Development provisions,
that may be in effect at the time of submittal.
RECOMMENDATION: The Administration recommends that the Staff be directed to bring forwazd at the
next available regulaz meeting appropriate documents to accomplish revocation of
the Preliminary Plan approval of University Manor, Phase I, abandonment of the
public road dedication in Section I, and release of the Conservation Easement.
t
3
RESOLUTION
OF THS
ORANGE COUIiTY BOARD OF COU~iTY COI~QiISSIONSRS
Date December 19, 1995
Name of Subdivision University Manor Phase I
Owner/Applicant Sanford Bailey
The Board of County Commissioners hereby approves the University Manor
Subdivision Preliminary Plan, dated August 1995 and containing 47
residential lots, subject to the fulfillment of requirements specified
herein.
All roads shall be irrevocably dedicated to the general public and be
constructed to standards of the North Carolina Department of
Transportation. The approval of this resolution authorizes and directs the
Orange County Manager to accept for Orange County and on behalf of the
public generally, the offer of dedication of Westcott Court, Brampton
Place, and Chilmark Circle as shown on the Preliminary Plan. This
acceptance by Orange County of the dedication to the general public of
Westcott Court, Brampton Place, and Chilmark Circle shall be without
maintenance responsibility. These roads shall be maintained by the
owner/applicant until such time as they are accepted for maintenance by the
North Carolina Department of Transportation or some other governmental
body. Before the Final Plat of any phase of University Manor can be
recorded:
A. Sewage Disposal and Water Supply
1. Each residential lot shall contain an adequate area for septic
disposal, and repair area, approved by the Orange County Division
of Environmental Health.
2. Disclosure that the septic system location may restrict the size
and location of improvements shall be included in a document
describing development restrictions to be recorded concurrently
with the Final Plat. The document shall also disclose that
information regarding the tentative location of septic systems is
available from the Orange County Health Department, Division of
Environmental Health.
3. Final documents granting easement rights for the operation and
maintenance of the community water system by a private utility
company shall be submitted to and approved by the County ---:-_-
Attorney . _ -- - - - -
4. Construction plans for the community water system shall be
approved by the NC Division of Environmental Health and the
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4
Public Water and Sewer Branch of the NC Division of Environmental
Health.
5. The community water system shall be constructed and the final
construction approved by the North Carolina Division of
Environmental Health.
B. Roads and Access
1. Westcott Court, Brampton Place, and Chilmark Circle shall be
constructed to standards of the North Carolina Department of
Transportation, within a 50-foot right-of-way, and the
construction shall be inspected and approved by NCDOT.
OR
A letter of credit, escrow agreement, or bond shall be submitted
to secure construction of Westcott Court, Brampton Place, and
Chilmark Circle to the standards of the North Carolina Department
of Transportation. An estimate of the construction cost must be
prepared by a certified/licensed engineer or grading contractor
and submitted to the Planning and Inspections Department. The
financial guarantee must reflect 110 of that estimate and be
issued by an accredited financial institution licensed to do
business in North Carolina.
The document describing development restrictions to be recorded
with the Final Plat shall state that the financial guarantee will
not be released until the road construction has been inspected
and approved by NCDOT.
2. An erosion control plan for construction of the roads .shall be
submitted by the applicant for review and approval by the Orange
County Erosion Control Division.
3. 10' by 70' sight triangles shall be shown at all intersections.
4. If a divided entrance is included in the final design, detail
drawings shall be submitted to and approved by the North Carolina
Department of Transportation.
5. All lots shall access onto the new subdivision roads. This
restriction shall be stated in a document describing development
restrictions and requirements to be prepared by Planning Staff
and recorded concurrently with the Final Plat.
6. Approved street name signs shall be erected at the intersection
of streets as required_in Section IV-B-3-c-12 of the Orange
County Subdivision Regulations. Evidence shall be submitted by
the applicant that the sign is in place or a copy of the receipt
for purchase of the sign shall be submitted to the Planning
Department.
C. Land Use Buffers and Landscaping
1. Landscaping shall be installed or preserved as indicated on the
approved landscape plan, and must be inspected and approved by
the Planning and Inspections Department.
OR
The applicant shall secure landscape requirement installation and
preservation through a letter of credit, escrow agreement, or
bond. An estimate of the cost for required preservation,
plantings and their installation must be provided. The financial
guarantee shall reflect 110 of the estimate and be issued by an
accredited financial institution licensed to do business in North
Carolina.
2. Provisions for protection of existing trees as shown on the
approved landscape plan shall be included in a document
describing development restrictions and requirements to be
prepared by Planning Staff and recorded concurrently with the
Final Plat.
3. A Type A Land Use Buffer shall be provided along New Hope Church
Road and NC 10. The buffer shall be 30 feet in width and provide
sufficient vegetation to meet the standards of Section IV-B-8-e
of the Subdivision Regulations. Said buffer shall be so noted on
the plat, and described in a document describing development
restrictions and requirements to be prepared by Planning Staff
and recorded concurrently with the Final Plat.
D. Drainage
1. The floodway and floodway fringe of Stoney Creek shall be noted
on the face of the Final Plat. Development restrictions within
the floodplain shall be specified in a document describing
development restrictions and requirements to be prepared by
Planning Staff and recorded concurrently with the Final Plat.
2. A 60-foot stream buffer shall be provided adjacent to the
floodplain at the northwest corner of lot 7, as shown on the
Preliminary Plan. Development restrictions within the buffer
shall be specified in a document describing development
restrictions and requirements to be prepared by Planning Staff
and recorded concurrently with the Final Plat.
3. The Final Plat shall show the boundary of the Lower Eno Protected
Watershed on lots 3, 4, 5, 6 and 7, as indicated on the-
Prelimunary Plan. Impervious surface may~not exceed 36$ of the
area within the watershed. These provisions shall be specified in
a document describing development restrictions and requirements
to be prepared by Planning Staff and recorded concurrently with
the Final Plat.
6
4. Stormwater detention/retention siteslundisturbed areas for
infiltration shown on the approved Stormwater Management Plan
shall be labeled on the Final Plat. Use restrictions or other
conditions shall be specified in a document describing
development restrictions and requirements to be prepared by
Planning Staff and recorded concurrently with the Final Plat.
5. Provide 30-foot drainage easements on lot 16, and along the
boundaries of lots 9 and 10 and lots 26 and 27, in the locations
indicated on the Preliminary Plan. Additional drainage easements
may be required following review and approval of the Erosion
Control Plan.
E. Parkland/Open Space
1. Cash in the amount of $4,136 shall be paid to Orange County as
payment in lieu of parkland dedication.
2. The entirety of the open space to be shown on the Final Plat(s)
shall be owned by the homeowners association for recreation/open
space use by residents of the subdivision. The deed shall be
submitted to and approved by the County Attorney.
3. The right to drill replacement wells within the common open space
shall be granted to the utility company, in the event of failure
of the initial well system.
4. Final documents granting a conservation easement to Orange County
or the Triangle Land Conservancy for the permanent protection of
the floodplain on the west side of Stoney Creek shall be
submitted to and approved by the County Attorney.
F. Miscellaneous
1. The Final Plat shall contain a title block and vicinity map in
accordance with Section V-D-2 and V-D-3 of the Orange County
Subdivision Regulations.
2. The following natural and man-made site features shall be shown
on the plat:
a. Stoney Creek floodplain and wetlands
b. Duke Power transmission line
3. The following easements shall be shown on the plat:
a. Conservation Easement dedicated to Orange County
b. Well easement dedicated to private utility company
c. Drainage easements on lots 16, 26/2?, and 9/10, as well as
other location which may be required following review-and
approval of the erosion Control Plan. -
d. Duke Power easement
4. A setback of 40 feet shall be maintained as measured from the
edge of right-of-way of Westcott Court, Brampton Place and
Chilmark Circle. Side yards shall be a minimum of 20 feet, and
rear yards a minimum of 20 feet. These setback requirements
shall be stated on the plat, and in a document describing
development restrictions and requirements to be prepared by
Planning Staff and recorded concurrently with the Final Plat.
5. Provide documentation that the notable interior woodwork of the
Boyd House, such as the hand-carved mantels, vertical beaded
board wainscoting, heartpine flooring, and the Chinese
Chippendale staircase and balustrade, has been salvaged or
advertised for salvage.
G. Certifications
1. A Certificate of Survey and Accuracy signed by a registered Land
Surveyor shall be notarized on the face of the Final Plat.
2. A Certificate of Declaration and Maintenance in the form provided
in Section V-D-6-b of the Orange County Subdivision Regulations
signed by the landowner and developer shall be on the face of the
plat and included in a document describing development
restrictions to be recorded concurrently with the Final Plat.
3. The Department of Environmental Health shall certify that each
lot contains a -suitable area for septic disposal.
4. The North Carolina Department of Transportation shall certify
that Westcott Court, Brampton Place and Chilmark Circle have been
constructed to State standards or that construction plans have
been approved.
5, A Certificate of Approval signed by the Orange County Planning
and Inspections Department.
Signature of Applicant Clerk to the Board
I. , accept the above listed conditions of
subdivision approval, and acknowledge that each must be met prior to
recordation of the final plat.
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O NGE COUNTY NNING DEPARTMENT ~~ 152 PI.G~ 5JU
NORTH CAROLINA
DECLARATION OF DEVELOPMENT
RESTRICTIONS AND REQUIREMENTS
s
RECORDED CONCURRENTLY WITH UNIVERSITY MANOR SUBDIVISION
PHASE I SECTION I
FOR MULTi~'LE P!Pd SHEET PLAT BOOK/PAGE `~ ~_ ~~_
SEE BOUK "la. PAGE s~
OWNER: KEY WEST ENTERPRISES. INC.
UNIVERSITY MANOR HOMEOWNERS ASSOCIATION
This DECLARATION, made this l4~``day of April, 1997, by Key West Enterprises,
Inc., and the University Manor Homeowner Association, the owners of the property described in the
Property Description section of this declaration, hereinafter called Declarants.
WITNESSETH
Declarants agree for themselves and with any and all persons, firms or corporations
hereinafter acquiring any of the property described in the Property Description section of this
declaration, that the same shall be subject to the following restrictions, conditions, and covenants
relating to the use and occupancy thereof, which restrictions, conditions, and covenants shall run
with the said property and insure to the benefit of and be binding upon the heirs, successors and
assigns of the Declarants and other acquiring parties and persons.
PROPERTY DESCRIPTION
Being all of Lots 1 through 9, and Lots A and B, as shown on the plat entitled "Final Plat of
University Manor Phase I Section I", dated February 12, 1997, as drawn by Edmund H.
Davenport R.L.S. of Bass, Nixon & Kennedy Inc., and recorded in Plat Book `~ 8 ,Page
~, Orange County Registry, hereinafter "the property" or "the subdivision".
SETBACKS
Building structures shall meet applicable setbacks as required by Section .5.1.1 of the Zoning
Ordinance. Said ordinance requires that all structures maintain a front yard setback of 40
feet, measured from the edge ofright-of--way, and a setback of 20 feet from side and rear lot
lines. See also stream buffers as side and rear setbacks.
Exceptions to the setback requirement include certain architectural features- (such as comers,
eaves, and gutters), an unenclosed balcony or fire escape, and an attached private garage or
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eooK 152 P,^L~ 53? so
carport. See Section 6.6 of the Orange County Zoning Ordinance, available at the Planning
Department for specific regulations relating to these exceptions.
SEWAGE DISPOSAL
Septic system locations may restrict the size and location of improvements on each lot.
Information regarding the tentative location of septic systems is available from the Orange
County Health Department, Division of Environmental Health.
WATER SUPPLY
The subdivision has been designed and approved with a community well system which will
be operated by a utility company pursuant to a Certificate of Public Necessity and
Convenience ("Certificate") issued by the North Carolina Utilities Commission. As a
condition for the issuance of the Certificate, the utility company will be required to post a
bond in an amount set by the Utilities Commission to secure the provision of service. No
determination has been made as to whether individual lots aze suitable for individual wells.
If there is a failure in the community well system requiring the construction of new well(s),
the new well(s) may have to be located within the Common Areas owned by the
Homeowners association as shown on the recorded plat. If for any reason the utility
company fails to construct replacement wells, the cost of constructing a replacement well or
wells and the cost to abandon a failed well or wells may become the responsibility of the
homeowners association, which is authorized to levy special assessments against the lots in
the subdivision for the purpose of maintaining, repairing or replacing the community wells.
IMPERVIOUS SURFACE CALCULATION
An impervious surface is a surface composed of any material which impedes or prevents the
natural infiltration of water into the soil. Such surfaces shall include any concrete or asphalt
surface. These would include, but not be limited to, streets and pazking areas, sidewalks,
patios and structures which cover the land.
In order to promote infiltration of stormwater runoff into the soil and to minimize direct and
immediate runoff into streams and water supply impoundments, impervious surface ratios are
required for all subdivisions located within a protected watershed. Modifications of the
impervious surface ratios may be requested as variance or through approval and recordation
of a conservation agreement_ These procedures are described in Article 6.23.3 and 6.23.11 b
of the Zoning Ordinance.
A portion of lots 3,4,5,6 and 7 are located in the Lower Eno Protected Watershed Overlay
District. The impervious surface for the portion of those lots in the Lower Eno Protected
Watershed, as indicated on the Final Plat, shall not exceed 36%.
REQUIREMENTS FOR STREAM BUFFER IN PROTECTED WATERSHEDS
The portion of lots 6 and 7 located within a stream buffer, as shown on the Final Plat, shall
remain in its natural state, unless the azea is subject to serious- erosion, in which case an
2
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ELil1(1~ /~ Puur 538
erosion resistant vegetative cover shall be established and maintained as required by, Article 11
6.23 of the Zoning Ordinance.
LANDSCAPING
Existing trees shall be preserved to satisfy the landscaping requirements pursuant to Section
IV-B-8-d-1 of the Subdivision Regulations.
A Type A Land Use Buffer shall be provided along New Hope Church Road and NC 10.
The buffer shall be 30 feet in width and shall be composed of deciduous and/or evergreen
vegetation that is opaque from the ground to a height of at least five (5) feet, with semi-
opaque intermittent visual obstructions from the opaque portion to a height of at least thirty
(30) feet.
Clear cutting of trees is prohibited. No trees measuring twelve (12) inches or more in
diameter at a point four and one half (4.5) feet above the ground shall be cut. An exception
shall include clearing of trees for the location of buildings, driveways, septic systems, and
gazden areas.
OTHER RESTRICTIONS
All lots shall access onto Westcott Court or Brampton Place.
The letter of credit to assure the final construction of Westcott Court and Brampton Place
shall not be released until the construction of said roads has been inspected and approved by
the North Carolina Department of Transportation.
The drainage easements shown on lots A, 1, 2, and 3 shall remain unobstructed to maintain
natural drainage patterns.
CERTIFICATE OF DEDICATION AND MAINTENANCE
"The undersigned hereby certifies that the land shown on the subdivision plat referenced
under 'Property Description' on page 1 is owned by the undersigned and is located within the
subdivision-regulation jurisdiction of Orange County and hereby freely dedicates all rights-
of-way, easements, streets, recreation area, open space, common azea, utilities and other
improvements to public or private common use as noted on this plat, and further assumes full
responsibility for the maintenance and control of said improvements until they are accepted
for maintenance and control by an appropriate public body or by an incorporated
neighborhood or homeowners association or similar legal entity."
OTHER RELATED DOCUMENTS
Utility Easement (DB 1563/ PG 309)
Water Line Easement (DB 1563/ PG 11)
Common Area Deed (DB 1563/ PG 7)
Conservation Easement (DB 15-72 PG 555
3
Declaration of Covenants, Conditions and Restrictions (DB ~~, PG 5y I
Tree Removal Agreement
Documents recorded concurrently with the Final Subdivision Plat may be revised and
re-recorded at a later date. Check property record through the Orange County Register of
Deeds to identify all documents recorded for this property.
DURATION OF RESTRICTIONS
12
The restrictions imposed by this Declazation shall remain in full force and effect until such
time as they are removed by the official legislative or administrative action of Orange County
or another govenlmental unit with jurisdiction over the property.
IN WITNESS WHEREOF, Declarant has caused this instrument to be signed and sealed on the day
. , ;. ,and yeaz first written above.
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NORTH CAROLINA ~~ "'t""`~~~~,
COUNTY
By: ~
Sanfor .Bailey, Preside t
Key est Enterprises, Inc.
By: ~
Sanford Bailey, President
University Manor Homeowners ssociation
FILED
i. 6 AF'F: '19'37, at 1 1 : ~8: 1 1 am
~ii +1 i~:: i c7::, F'dCae J.~S Ei -' J.^-i'~
Fsetty J~.u~e Hayes.
F:egiyter 1,+f Deed S,
I, ~115Q11 ~, ~Q ml(,QS ,Notary Public for said County and State,
certify that Op personally came before me this day and acknowledged that
he/~ is ecretary of a West Enterprises, Inc., a corporation, and of University Manor
Homeowners Association, a corporation, that by authority duly given and as the act of the
corporations, the foregoing instrument was signed in their na~n~es by their presidents, sealed with
their corporate seals, and attested by himself,4~f as theiPSecretary.
Witness my hand and official seal, this the ~ day of 1997.
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My commission expires: y 19 ? •t s
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NORTH CAROLINA -ORANGE COUNTY
eaoK 15`72 oticE 555 13
Prepared by and return to: David M. Rooks, III, Northen Blue Law
Firm, P.O. Box 2208, Chapel Hill, N.C. 27515
9 ~~a-39- ~33~~
~.~ L3..~
CONSERVATION EASEMENT
This CONSERVATION EASEMENT made this ~y ~ day of
Qc~ttL1.. , 199 by and between University Manor Homeowners Association, Inc.
("Grantor") and Orange County, North Carolina ("Grantee").
Witnesseth:
WHEREAS, Grantor is the sole owner in fee simple of certain
real property more particularly described in Exhibit A attached,
(the "Protected Property") that has ecological, scientific,
educational and aesthetic value in its present state as a natural
area; and,
WHEREAS, Grantee is a body politic existing under Chapter
153A of the North Carolina General Statutes; and
WHEREAS, the Protected Property is a significant natural
area that qualifies as a "... relatively natural habitat of fish,
wildlife, or plants, or similar ecosystem," as that phrase is
used in P.L. 96-541 USC 170(h)(4)(A)(ii), as amended, and in
regulations promulgated thereunder; and
WHEREAS, Grantor and Grantee have the common purpose of
conserving the above-described conservation values of the
Protected Property in perpetuity, and the State of North Carolina
has authorized the creation of Conservation Easements pursuant to
N.C. Gen. Stat. S 121-34 et seq; and
1
~n~~ 1572 Fti~E 556
14
WHEREAS, Grantor intends, as owner of the Protected
Property, to convey to Grantee the right to preserve and protect
the conservation values of the Protected Property in perpetuity;
and
WHEREAS, Grantee intends to accept this grant to honor the
intentions of Grantor stated herein and to preserve and protect
in perpetuity the conservation values of the Protected Property
for the benefit of this generation and the generations to come.
NOW, THEREFORE, Grantor, for and in consideration of the
facts recited above and of the mutual covenants, terms,
conditions and restrictions contained herein and as an absolute
and unconditional gift, hereby gives, grants, bargains, sells and
conveys unto Grantee a Conservation Easement in perpetuity over
the Protected Property of the nature and character as follows:
1. Purpose. The purpose of this Conservation Easement is
to ensure that the Protected Property will be retained forever
predominantly in its natural state; to protect any regionally
rare glants, animals or plant communities as well as state- or
federal-monitored plants or animals on the Protected Property; to
protect the water quality of Stoney Creek; and to prevent any use
of the Protected Property that will significantly impair or
interfere with the conservation values or interests of the
Protected Property described above. Grantor intends that this
Conservation Easement will restrict the use of the Protected
Property to only such activities as are consistent with the
purpose of this Conservation Easement.
2
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a~or,15?2 P~~t 558
of new impoundents of water; 15
2.8 The pruning, cutting down, or other destruction or
removal of live or dead trees, except as necessary and with prior
written approval of Grantee pursuant to paragraph 4.5 below, in
accordance with generally accepted forestry conservation
practices, to control or prevent hazard, disease, or fire.
2.9 The planting of invasive plants (as recognized by
the N.C. Natural Heritage Proqram of N:c:. Botanical Garden) not
native to the region anywhere an the Protected Property, grazing
of domestic animals, or disturbance or change in the natural
habitat in any manner;
2.10 The dumping or other disposal of wastes, refuse,
and debris on the Property;
2.11 The installation or extension of utilities;
2.12 Use of pesticides or biocides, including but not
limited to insecticides, fungicides, rodenticides, and
herbicides, and use of devices commonly known as "bug-zappers",
except with prior written approval of Grantee pursuant to
paragraph 4.5 below and in accordance with management practices
of Grantee;
2.13 Operation of snowmobiles, dune buggies,
motorcycles, all-terrain or off-road vehicles, or any other types
of motorized vehicles or motorized floating craft;
3. Grantor's Reserved Rights. Grantor hereby reserves the
following rights:
4
~ao~,1572 ~hc~ 559
3.1 Existing Uses. To undertake or continue any 16 ,
activity or use of the Protected Property not prohibited by this
Conservation Easement. Prior to making any change in use of the
Protected Property, Grantor shall notify Grantee in writing to
allow Grantee a reasonable opportunity to determine whether such
change would violate the terms or purposes of this Conservation
Easement.
3.2 Transfer. To sell, give, mortgage, lease or
otherwise convey the Protected Property provided such conveyance
is subject to the terms of this Conservation Easement.
3.3 Diseased Plants. To cut and remove diseased,
hazardous, or invasive plants and to cut firebreaks, subject to
the prior written approval of Grantee pursuant to paragraph 4.5
below, except that such approval shall not be required in the
case of emergency firebreaks.
3.4 Game Management. To eliminate exotics (starlings
etc.) and reduce populations of native species that threaten the
ecosystem under a prescribed plan approved by the N.C. Natural
Heritage Program or the N.C. Division of Wildlife Resources and
with prior written approval of Grantee pursuant to paragraph 4.5
below.
4. Grantee's Rights. To accomplish the purpose of this
Conservation Easement, the following rights are conveyed to
Grantee by this Conservation Easement:
4.1 Right to Protect. To preserve and protect the
conservation values of the Protected Property.
5
aoo~, ~~ l ~ ~~~: ~~~~
4.2 Right of Entrv. To enter the Protected Property
17
at all reasonable times and with prior notice and, if necessary,
across other lands retained by Grantor, for the purposes of: (a)
inspecting the Protected Property to determine if Grantor is
complying with the covenants and purposes of this Conservation
Easement; (b) enforcing the terms of this Conservation Easement;
(c) taking any and all actions with respect to the Protected
Property as may be necessary or appropriate, with or without
order of court, to remedy or abate violations hereof; (d) making
scientific and educational observations and studies and taking
samples in such a manner as will not disturb the quiet enjoyment
of the Protected Property by Grantor; and (e) monitoring and
management as described below.
4.3 Monitorincx and Management. The right, but not the
obligation, to monitor the condition of the plant and animal
populations, plant communities, and natural habitats on the
Protected Property, and to manage them, to the extent deemed
appropriate by Grantee, to ensure their continued presence and
viability on the Protected Property. Such activities shall be in
accordance with management practices of Grantee.
4.4 Easement. To prevent any activity on or use of
the Protected Property that is inconsistent with the purpose of
this Conservation Easement and to require the restoration of such
areas or features of the Protected Property that may be damaged
by any inconsistent activity or use, pursuant to paragraph 9.
6
~aoK 1572 P~cE 561
1$
4.5 Discretionary. Consent. Grantee's consent for
activities otherwise prohibited under paragraph 2 above, or for
any activities requiring Grantee's consent under paragraph 2 or 3
above, may be given under the following conditions and
circumstances. If, owing to unforeseen or changed circumstances,
any of the activities listed in paragraph 2 (and to the extent
applicable, paragraph 3) are deemed desirable by both Grantor and
Grantee, Grantee may, in its sole discretion, give permission for
such activities, subject to the limitations herein. Such
requests for permission, and permission for activities requiring
Grantee's consent under paragraph 2 or 3, shall be in writing and
shall describe the proposed activity in sufficient detail to
allow Grantee to judge the consistency of the proposed activity
with the purpose of this Conservation Easement. Grantee may give
its permission only if it determines, in its sole discretion,
that such activities (1} do not violate the purpose of this
Conservation Easement and (2) either enhance or do not impair any
significant conservation interests associated with the Protected
Property. Notwithstanding the foregoing, Grantee and Grantor
have no right or power to agree to any activities that would
result in the termination of this Conservation Easement or to
allow any residential, commercial or industrial structures or any
residential., commercial or industrial activities not provided for
above.
4.6 Grantor conveys to Grantee all development rights
that are now or hereafter allocated to, implied, reserved or
7
~.1 ~ 1~ ~~~ ~~
19
• inherent in the Protected Property, and the parties agree that
such rights are terminated and extinguished, and may not be used
on or transferred to any portion of the Protected Property, as it
is now or hereafter may be bounded or described, or to any other
property adjacent or otherwise, nor used for the purpose of
calculating permissible lot yield of the Protected Property or
any other property.
5. Costs and Liabilities. Grantor retains all
responsibilities and shall bear all costs and liabilities of any
kind related to the ownership, operation, upkeep and maintenance
of the Protected Property, including the maintenance of adequate
comprehensive general liability insurance coverage. Such policy
or policies of insurance shall name Grantee, its officials,
employees, agents and contractors as additional insureds.
Grantee may maintain general liability insurance covering the
activities of its officials, employees, agents and contractors on
the Protected Property. Grantor shall keep the Protected
Property free of any liens arising out of any work performed for,
materials furnished to or obligations incurred by Grantor.
Grantor shall hold harmless, indemnify, and defend Grantee,
its officials, employees, agents and contractors and the heirs,
successors and assigns of each of them (collectively "Indemnified
Parties") from and against all liabilities, penalties, costs,
losses, damages, expenses, causes of action, claims, demands, or
judgments, including without limitation, reasonable attorneys'
fees, arising from or in any way connected with:. (1) injury to
8
Boor, ~5~? PHG't 56~ 20
and all encumbrances, including but not limited to, any mortgages
not subordinated to this Conservation Easement,- and that Grantee
shall have the use of and enjoy all of the benefits derived from
and arising out of this Conservation Easement.
8. Hazardous Waste. Grantor covenants and warrants to
Grantee that Grantor has no knowledge of the existence of
hazardous substances or toxic waste on the Protected Property and
has no knowledge that hazardous substances or toxic waste have
been generated, treated, stored, used, disposed of, or deposited
in or on the Protected Property, and has no knowledge of the
existence of any underground storage tanks on the Protected
Property.
9. Grantee's Remedies. If Grantee becomes aware of a
violation of the terms of this Conservation Easement, Grantee
shall give notice to Grantor, at Grantor's last known post office
address, of such violation via certified mail, return receipt
requested, and request corrective action sufficient to abate such
violation and restore the Protected Property to its previous
condition at the time of this grant. Failure by Grantor to abate
the violation and take such other corrective action as may be
requested by Grantee within thirty (30) days after receipt of
such notice shall entitle Grantee to bring an action at law or
equity in a court of competent jurisdiction to enforce the terms
of this Conservation Easement; to require the restoration of the
Protected Property to its previous condition; to seek to enjoin
the noncompliance by ex pane temporary or permanent injunction
10
.. ~ __.
gvnK 1572 Pti~~ X65
• in a court of competent jurisdiction; and/or to recover any 21
damages arising from the noncompliance. Grantor agrees that
Grantee's remedies at law for any violation of the terms of this
Conservation Easement are inadequate and that Grantee shall be
entitled to the injunctive relief described in this paragraph,
both prohibitive and mandatory, in addition to such other relief
to which Grantee may be entitled, including specific performance
of the terms of this Conservation Easement, without the necessity
of proving either actual damages or the inadequacy of otherwise
available legal remedies. Grantee's remedies described in this
paragraph are cumulative and in addition to all remedies now or
hereafter existing at law or in equity. Damages, when recovered,
may be applied by Grantee, in its sole discretion, to corrective
action on the Protected Property. Any costs incurred by Grantee
in enforcing the terms of this Conservation Easement against
Grantor, including, without limitation, costs of suit and
attorneys' fees, and any costs of restoration necessitated by
Grantor's violation of the terms of this Conservation Easement
shall be borne by Grantor. If Grantor prevails in any action to
enforce the terms of this Conservation Easement, Grantor's costs
of suit, including, without limitation, attorneys' fees, shall be
borne by Grantee.
9.1. Emergencv Enforcement. If Grantee, in its sole
discretion, determines that circumstances require immediate
action to prevent or mitigate significant damage to the
conservation values of the Protected Property, Grantee may pursue
11
,.~,,,a,
aa~n 1572 Pti~:566 22
its remedies under this paragraph without prior notice to Grantor
or without waiting for the period for cure to expire. In that
event, the provisions of paragraph 9 related to the costs of
enforcement shall pertain.
9.2 Failure to Act or Delav. Grantee does not waive or
forfeit the right to take action as may be necessary to ensure
compliance with this Conservation Easement by any prior failure
to~act and Grantor hereby waives any defenses of waiver, estoppel
or laches with respect to any failure to act or delay by
Grantee, its successors or assigns, in action to enforce any
restriction or exercise any rights under this Conservation
Easement.
9.3 Violations Due to Causes Bevond Grantor's Control.
Nothing hereby shall be construed to entitle Grantee to institute
any enforcement proceedings against Grantor for any changes to
the Protected Property due to causes beyond Grantor's control,
such as changes caused by fire, flood, storm, earthquake or the
unauthorized wrongful acts of third persons. In the event of
violations of this Conservation Easement caused by the
unauthorized wrongful acts of•third persons, Grantor agrees, upon
request by Grantee, to assign its right of action to Grantee, to
join in any suit, or to appoint Grantee its attorney-in-fact for
the purposes of pursuing enforcement action, all at the election
of Grantee.
10. Parties Subject to Easement. The covenants agreed to
and the terms, conditions, and restrictions imposed by this grant
12
n~
ooK15~2 ~hct56~ ~3
E
shall be binding upon Grantor and Grantor's lessees, agents,
personal representatives, successors and assigns, and all other
successors in interest to Grantor and will continue as a
servitude running in perpetuity with the Protected Property.
11. Subsequent Transfers. Grantor agrees that the terms,
conditions, restrictions and purposes of this grant or reference
thereto will be inserted by Grantor in any subsequent deed or
other legal instrumen~t~by-~which Grantor divests either the fee
simple title or a possessory interest in the Protected Property;
and Grantor further agrees to notify Grantee of any pending
transfer at least thirty (30j days in advance.
12. Merger. Grantor and Grantee agree that the terms of
this Conservation Easement shall survive any merger of the fee
and easement interest in the Protected Property.
13. Assignment. The parties hereto recognize and agree
that the benefits of this easement are in gross and assignable,
and Grantee hereby covenants and agrees that if it transfers or
assigns the easement it holds under this indenture, the
organization receiving the interest will be a qualified
organization as that term is defined in Section 170(h)(3) of the
Internal Revenue Code of 1986 (or any successor section) and the
regulations promulgated thereunder organized and operated
primarily for one of the conservation purposes specified in
Section 170(hj(4)(Aj of the Internal Revenue Code, and Grantee
further covenants and agrees that the terms of~the transfer or
assignment will be such that the transferee or assignee will be_
13
aaoK 152 ~~1~ 568
24
required to continue to carry out in perpetuity the conservation
purposes that the contribution was originally intended to
advance.
14. Extinguishment. Grantor hereby agrees that, at the
time of the conveyance of this Conservation Easement to Grantee,
this Conservation Easement gives rise to a real property right,
immediately vested in Grantee, with a fair market value of the
Conservation Easement as of the date of the conveyance that is at
least equal to the proportionate value that this Conservation
Easement at the time of the conveyance bears to the fair market
value of the property as a whole at that time.
That proportionate value of Grantee's property rights shall
remain constant. When a change in conditions takes place which
makes impossible or impractical any continued protection of the
Protected Property for conservation purposes, and the
restrictions contained herein are extinguished by judicial
proceeding, Grantee, upon a subsequent sale, exchange or
involuntary conversion of the Protected Property, shall be
entitled to a portion of the proceeds at least equal to that
proportionate value of the Conservation Easement. Grantee shall
use its share of the proceeds in a manner consistent with the
conservation purposes set forth herein or for the protection of a
"relatively natural habitat of fish, wildlife, or plants or
siunilar ecosystem," as that phrase is used in and defined under
P.L. 96-541, 26 IISC 170(h)(4)(A)(ii), as amended and in
regulations promulgated thereunder. __
14
err -~ t
sD~x 1572 Pti~t 569
25
15. Eminent Domain. Whenever all or part of the Protected
Property is taken by an exercise of eminent domain by public,
corporate, or other authority so as to abrogate the restrictions
imposed by this Conservation Easement, Grantor and Grantee shall
join in appropriate actions at the time of the taking to recover
the full value of the taking and all incidental or direct damages
resulting from it, and the proceeds shall be divided in
accordance with the proportionate value of Grantee's and
Grantor's interests, and Grantee's proceeds shall be used as
specified above. All expenses incurred by Grantor and Grantee in
such action shall be paid out of the recovered proceeds.
16. Option. Grantee shall have an option to obtain the
entire Protected Property in fee by deed of gift from Grantor
within five years of the date of recording of the final plat for
the final phase of University Manor subdivision as the
subdivision is described in the Concept Plan approved by the
Orange County Planning Board on May 20, 1996 but in all events no
later than. December 1, 2001. Grantee may exercise this option
upon written notice to Grantor.
17. Miscellaneous Provisions.
17.1 Severability. If any provision of this
Conservation Easement or the application thereof to any person or
circumstance_is found to be invalid, the remainder of the
provisions of this Conservation Easement and the application of
such provisions to persons or circumstances other than those as
to which it is found to be invalid shall not be affected thereby.
15
• rc . t~
17.2 Successors and Assigns. The term "Grantor" shall
include Grantor and Grantor's heirs, executors,- administrators,
successors and assigns and shall also mean the masculine,
feminine, corporate, singular or plural form of the word as
needed in the context of its use. The term "Grantee" shall
include Orange County, North Carolina and its successors and
assigns.
17.3 rye-recordinv. Grantee is authorized to record or
file any notices or instruments appropriate to assure the
perpetual enforceability of this Conservation Easement; for such
purpose, Grantor appoints Grantee its attorney-in-fact to
execute, acknowledge and deliver any necessary instrument on its
behalf. Without limiting the foregoing, Grantor agrees to
execute any such instruments upon request.
17.4 Captions. The captions herein have been inserted
solely for convenience of reference and are not part of this
Conservation Easement and shall have no effect upon construction
or interpretation.
17.5 Counterparts. The parties may execute this
instrument in two or more counterparts, which shall, in the
aggregate, be signed by both parties; each counterpart shall be
deemed an original instrument as against any party who has signed
it. In the. event of any disparity between the counterparts
produced, the recorded counterpart shall be controlling.
17.6 Notices. Any notices required in this
Conservation Easement shall be sent by registered or certified
16
l.!M wl.
27
p~~r, ~ 57? ?hcE ~7~
mail to the following address or such address as may be hereafter
designated by notice:
Grantor: University Mannr Homeowners Association, Inc.
P.O. Drawer 1859
Wake Forest, NC 27588-1859
Grantee: Orange County
Attention: Purchasing Director
P.O. Box 8181
Hillsborough, NC 27278
TO HAVE AND TO HOLD the said Conservation Easement unto the
said Grantee forever.
IN WITNESS WHEREOF, Grantor has executed and sealed this
document the day and year first above written.
UNIVERSITY MANOR HOMEIIWNERS ASSOCIATION, INC.
By • ~ -
• Pres' ent
ATTEST: ~ ~ ' =r F I LED
~Q.4. .
,~~ '=' 1 G AF'F,' 1'x'37, at 1 1 : 58: 14am
`I~` -~~. ~ir_~~'rF: 157'x, F'c7~e .CJJJ - J7::
~'r ~~"~'`~~~ E~etty June Hayes,
Secretary u~ ~„~~ ~ t -
~SS~ L' = F,'eg i st er , ~ f Deeds,
_ ,~:. ` . 1 _ Orange ~=:~_~unt y, N. i_ .
:~ b~
State of North CarolinaE; .'rte, ] ~.~ ~.((~~~ ~'
Orange County ~ ll
~~`'~j~~,,,~,,,,++`'~+ f 99 ~ P~~~'~$aMlyR~ before me
On this Iy day of_ i~~~ , ~, w o, being by
me duly sworn did say that he is the QS~ Secretary of University Mano:
Homeowners Association, Inc. , the corporation named in the foregoing
instrument; that the seal affixed to said instrument is the
corporation seal of said corporation; and acknowledged said
instrument to be the free act and deed of said corporation.
Pub ~ S wsa.r~ K ~S' ro e V NOTAR~y..`+a~N
Co on Expires : / v~/~~~ s
%~~~1 * • s
lsg- - ~ t
nnn aor~s caa a L : /alto.. r i ~'
E~~ ~ X572 p;;~E 57?
. 28
EX~BBIT A TO CONSERVATION EASEMENT
BEING all of the area designated as "Conservation Easement" on the plat entitled "
Waterline Easement and Open Space Plat, University Manor, Phase P' prepared by Bass. Nixon
and Kennedy, Inc. dated March 4, 1997 and recorded at Plat Book 77, Page 191, Orange County
Registry to which reference is made for a more particular description.
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JOHN A. NORTHEN
J. WILLIAM BLUE, JR.
DAVID M. ROOKS. III
CHARLES H. THIBAUT
CAROL J. HOLCOMB
JAMES C. STANFORD
CHERYL Y. CAPRON
IVIr. John Link
Orange County Manager
20U S. Cameron St.
Hillsborough, N. C. 27278
NORTHEN BLUE, L.L. P
A LIMITED LIABILITY PARTNERSHIP
ATTORNEYS AT LAW
100 EVROPA DRIVE
SUITE 550
CHAPEL HILL, NORTH CAROLINA 27314
Januar~~~ 4-,-)-998-
Re: University Manor Subdivision
Dear John:
31
MAILING ADDRESS:
P. O. eOx 2209
CHAPEL HILL, NC 27$15-2208
TELEPHONE (919> g6A-aa41
TELEFAX (919) 942-6603
E-MAID nblaw~netpath.net
I write on behalf of Sanford Bailey and Key West Enterprises, Inc., the applicant and
owner of University Manor Subdivision, to request that the Commissioners revoke their approval
of the subdivision. Key West has entered into a contract to sell the entire subdivision to Durahill,
LLC on the condition that the County revoke the approval of the subdivision and that all
easements and restrictions created in connection with the approval of the subdivision be
terminated or withdrawn on or before April 1, 1998.
Key West obtained preliminary plat approval for Phase 1 of University Manor some time
ago and recorded the final plat for Section 1 of Phase 1 on April 16, 1997. The final plat for
Section 2 of Phase 1 is still pending. In connection with the approval of and recording of the final
plat, a number of documents were recorded as required by the Commissioners including:
1. Declaration of Development Restrictions recorded at Book 1572, Page 536;
2. Declaration of Restrictions recorded at Book 1572, Page 541;
3. Conveyance of common areas to the University Manor Homeowners Association, Inc.
4. Conservation Easement to Orange County recorded at Book 1572, Page 555;
5. Water and utility line easements to Coteswonh Downs Utilities, Inc. recorded at
Book 1563. Page 309, Book 1563, Page 31 1 and Book 1563, Page 313;
6. Plats recorded at Plat Book 77, Page 191 and Plat Book 78, Pages 28 and 29. The
__ - ____ - ~ we((5'
c,~.~o~k.e r I ~ ,mac, a ~z ~~.....c~l..~
NORTHEN BLUE, L.L.P.
Mr. John Link
January 28, 1998
Page 2
plat at Plat Book 78, Page 28 includes the dedication and acceptance of a public road right
of way.
Key West, which has conveyed no lots in the subdivision, is in a position to assure that the
utility company and the homeowners association will convey and release their interests in the
easements and common azeas if the Commissioners aze willing to revoke their approval of the
subdivision plats and release the conservation easement such that the title of the property would
be returned to the same state it was in prior to the approval of the subdivision. Key West
recognizes that it would lose any rights it might have to develop the property under the
application it submitted for University Manor if the Commissioners grant this request and that any
subsequent development of the property would be under the ordinance as it might exist at the time
the subsequent application is made.
Time is an issue since Key West has until April 1 to obtain the revocation of the existing
approval. If the revocation cannot be obtained by that time, Key West would lose its sale and
would submit a final plat for the balance of Phase 1.
Please let me know how we should proceed from here.
Sincerely,
David M. Rooks, III
DMR/hos
cc: Hon. Margaret Brown
Mr. Gene Bell
Ms. Emily Cameron
Mr. Geoffrey Gledhill
Ms. Stephanie Powell
Mr. Sanford Bailey
32