HomeMy WebLinkAboutORD-2006-101 - Proposed Stream Buffer Zoning Text AmendmentORANGE COUNTY QQ�Q -- c�140 /w
BOARD OF COMMISSIONERS
AND
PLANNING BOARD
PUBLIC HEARING AGENDA ITEM ABSTRACT
Meeting Date: November 20, 2006
Action Agenda
Item No. CA
SUBJECT: Proposed Stream Buffer Zoning Text Amendments
DEPARTMENT: Planning and Inspections
ATTACHMENT(S):
1. Proposed Ordinance changes with
strike and delete highlights (pages A-
1 through A -14)
2. Graphic examples of existing
regulations and proposed
amendments. (pages B -1 through
B -6)
PUBLIC HEARING: (YIN) Yes
INFORMATION CONTACT:
Name Phone Number
Craig Benedict, Director 245 -2592
Robert P Davis, Planner III 245 -2580
Michael D. Harvey, Planner II 245 -2607
Ren Ivins, Erosion Control 245 -0758
PURPOSE: To consider staff initiated zoning text amendments to Section 6.23.7 through
Section 6.24.1 Stream Buffers of the Orange County Zoning Ordinance.
BACKGROUND: For the past few months, staff has been. reviewing the need to develop a
comprehensive planting standard to require individuals to re- establish a required buffer in the
event it has been disturbed. Staff has also been reviewing the need to. modify the types of uses
allowed within protected stream buffers, along with appropriate mitigation standards, that are
consistent with existing North Carolina Division of Water Quality (DWQ) standards.
REQUEST: Staff recommends amending the existing Stream Buffer regulations to address the
following issues:
1*. There is a lack of uniform, comprehensive, planting and mitigation standards for a
property owner to adhere to in situations where they either illegally disturb the required
stream buffer or propose to develop a parcel of property where required stream buffers
do not exist and need to be re- established,
2. There is currently a lack of appropriate mitigation standards designed to offset or
minimize the impact of encroachment into a required stream buffer, as currently
permitted under Section 6.23.7 (b),
3. There is currently no flexibility within the Ordinance allowing for minor encroachment into
the required stream buffer for noninvasive, passive, uses of property, and
4. There is currently no effective way to work with a property owner to address changes in
the location and size of a stream buffer resulting in a change in the FEMA Flood maps.
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The proposed amendments would accomplish the following:
1. Establish a comprehensive re- planting standard that would have to be followed to re-
establish vegetation within a required stream buffer in cases where a property owner
illegally disturbs a required stream buffer or in- cases where vegetation has been
removed from a parcel of property as the result of development,
2. Establish formal mitigation standards that would have to be followed by a property owner
when developing allowable uses within a identified stream buffer or in addressing
changes within the size and location of the required stream buffer, as the result of a
change in the FEMA Flood Maps, and
3. Expand on the types of uses allowed within a regulated stream buffer to include such
uses as: archaeological activities, drainage ditches, water dependant accessory
structures (i.e. decks, piers, etc.), accessory structures intended to allow property owners
to enjoy scenic views of a water feature (i.e. gazebos), trails and walkways, and other
similar uses /activities consistent with current DWQ regulations.
FINANCIAL IMPACT: No County financial impact at this time with human resources being
used from existing departmental staff.
RECOMMENDATION: Administration recommends that the proposed Stream Buffer text
amendments be referred to the Planning Board for a recommendation to be returned to the
County Board of Commissioners no sooner than February 6, 2007.
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Section
6.23.7
Amended
9/18/01
5/20/03
a) Definition
See Article 22 Stream Buffer
*Amended
1 -17 -95
b) Permitted Uses /Activities Within Identified Stream Buffers_:
9FdiRaRSe:
rterrrtitted in stream buffers.
linos are ed eRly aE; �+Ilr,seorl hi tho
P bliG water Rd se wer peR:nit
r
buffer ar, nln elv as rte sihle to nernenrliG UIar
nerneRdiG ilnr as possible.
Certain uses and activities within the stream buffer are classified as being
either:
1. Allowable, or
2. Allowable with Mitigation per the requirements of this section,
Uses and activities not listed within this section are categorically prohibited
from development within an identified stream buffer as defined within Article
twenty-two (22) Definitions of the Orange County Zoning Ordinance.
1 Development within a required stream buffer — Allowable:
Uses designated as Allowable are permitted within the required stream
buffer as long as the proposed user meets the following conditions prior to
land disturbing activity:
1. Provide the Plannin Department with notification of the location and
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nature of the use; and
2. Provide a written statement that the use shall be designed, constructed,
and maintained to minimize soil disturbance and to provide the maximum
water quality protection practicable.
While such uses are not required to engage in specific mitigation activities,
they are required to adhere to all general mitigation standards contained
herein.
2. Development within a required stream buffer —Allowable with Mitigation:
Uses designated as Allowable with Mitigation may proceed within the required
stream buffer provided that there are no practical alternatives to the requested
use and the County, pursuant to this section of the Ordinance, has approved
an appropriate mitigation strategy.
These uses shall require written authorization from the County in the form of a
Zoning Compliance and Erosion Control approval prior to allow for the
commencement of earth disturbing activity as well as issuance of a formal No
Practical Alternatives certification by the Planning Department.
3. Determination of No Practical Alternatives.
Persons who wish to undertake uses designated as Allowable with Mitigation
shall submit a request for a No Practical Altematives Certification to the
Planning Department in conjunction with an Orange County Building and
Erosion Control Permit Applications. This request shall include the following
information:
a. The name, address, and phone number of the applicant along with the
Tax Map and Block (TMBL) as well as the Parcel Identification Number
of the property;
b. The applicant shall submit a written description of the project outlining
why the proposed use /activity has to be located within a required stream
buffer area,
c. A map /site plan delineating the exact location of the proposed activity as
well as the square footage of the proposed disturbance;
d. The applicant. shall complete any and all Federal, State, and County
applications requesting permission to begin earth disturbing activities
including, but not necessarily limited to, the following: Building, Zoning,
Health, Erosion Control, Division of Water Quality 401 -404 Permits, and
US Army Corp of Engineers;
e. An explanation of why this plan for the activity cannot be practically
accomplished, reduced or reconfigured to better minimize disturbance to
the stream buffer, preserve aquatic life and habitat and protect water
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quality; and
f The submission of a formal Mitigation Plan completed in accordance with
the provisions of this Ordinance.
The request shall be reviewed to determine compliance with applicable zoning,
erosion control and water quality regulations. All requests shall be reviewed
and either approved or denied within forty -five (45) days of receipt of a
complete submission based on the criteria outlined above. Failure to issue an
approval or denial within forty -five (45) days shall constitute denial by County
staff of the No Practical Alternatives Certificate.
The Planning Department may attach additional conditions to the No Practical
Alternatives Certificate that support the purpose spirit and intent of the stream
buffer protection program.
4. Issuance of a No Practical Alternative Certificate:
Once the Planning and Erosion Control departments review the entire proiect,
a determination of No Practical Alternatives shati be made. In order to issue a
No Practical Alternative Certificate the following findings are required to be
affirmed by Planning staff:
a The basic project purpose cannot be practically accomplished in a
manner that would better minimize disturbance preserve aquatic life
and habitat and protect water quality;
b The use cannot practically be reduced in size or intensity, reconfigured
or redesigned to better minimize disturbance preserve aquatic life and
habitat and protect water quality; and
c The proposed mitigation methods are appropriate to offset any negative
impact to the required stream buffer and the proposed development
will not adversely impact water quality, harm aquatic life and habitat,
and represents the minimal disturbance necessary to allow for the
development of the proposed use /activity.
5 Recording of No Practical Alternative Certificate:
The No Practical Alternatives Certificate shall be in the form of an easement,
deed or other suitable form of encumbrance signed by all parties and
reviewed by the Orange County Attorney for consistency and
appropriateness.
ister of
within
A- 5
future stream buffer activity on the property. The recording of this Certificate
shall include an approved_ copy of the Mitigation Plan outlining the approved
location and method for reinstalling required vegetation.
The new vegetation, planted in accordance with the approved Mitigation Plan,
shall constitute an expansion and relocation of the required Orange County
stream buffer and shall be considered part of the required stream buffer area
upon installation.
This information shall be delineated on the Mitigation Plan and within the No
Practical Altematives Certificate recorded at the Orange County Register of
Deeds and shall be considered a regulated stream buffer area per the
requirements of this Ordinance.
6. Mitigation — In General:
The following general standards shall be utilized in all cases regardless of the
status of the proposed activity within a stream buffer:
a. For the purpose of these regulations, perpendicular crossings are
defined as those crossings that intersect the surface water at an angle
between 750 and 1050
,
b. No matter the classification of the proposed activity, all uses /activities
shall observe a twenty -five (25) foot setback from the top of the banks
of the stream or water feature. This setback area shall remain in a
natural, vegetative state,
c. Pathways or walkways constructed out of wood or other similar
material shall be no wider than six (6) feet and shall be reviewed as an
Allowable with Mitigation use /activity in accordance with the provisions
of this Section.
d. With respect to the installation of above and below ground utility lines,
well systems and supply lines, the installation of public sewage and
water lines, or the installation of water lines serving a community water
system, all such lines shall be installed by a vibratory plow or trenching
method, directional drilling, or other similar method as proved by
Orange County Erosion Control and the State Division of Water Quality
(DWQ). The trench shall be backfilled with the excavated soil material
and stabilized with vegetation immediately following the installation of
the utility line,
e. Construction activities shall minimize the removal of woody vegetation,
the extent of the disturbed area and the time in which areas remain in
a disturbed state. All vegetation shall be cleared by hand. No land
grubbing or grading shall be allowed within the stream buffer,
f. Limited grading within the stream buffer may be allowed to re- establish
sheet flow to address stormwater issues subiect to review and
approval of the proposal by Orange County Erosion Control and the
State Division of Water Quality,
A- 6
g. Vegetative root systems shall be left intact to maintain the integrity of
the soil. Stumps shall remain where trees are cut and shall not be
removed,
h. No fertilizer shall be used within the stream buffer other than a one (1)
time application to re- establish vegetation after approval from the
Current Planning and Erosion Control divisions of the Planning
Department,
i. Active measures shall be taken after construction and during routine
maintenance to ensure diffuse flow of stormwater through the buffer in
a manner acceptable to the Erosion Control division,
i. With respect to the protection of wetlands, mats shall be utilized to
minimize soil disturbance, and
k. If a stream or water feature is subiect to the Neuse Ruies, any and all
buffer impacts shall be in accordance with the requirements of this
section as well as the Orange County Stormwater Ordinance for lands
within the Neuse River Basin originally adopted by the Orange County
Board of Commissioners on March 9, 2001.
7. Mitigation Plan — Required Contents:
In cases where a property owner applies for a No Practical Alterhatives
Certificate, the following information is required for submission as part of the
formal mitigation plan:
a. A scaled site plan of the property showing the following.
1. The boundary lines of the property,
2. The location of the stream buffer on the property as well as the
delineation of the point from which the buffer was measured,
3. The location of all other relevant environmental features on the
property (i.e. wetlands, etc.) including topographic information using
contours no greater than five (5) feet,
4. The location of the proposed disturbed area including the proposed
equipment access route, and
5. The square footage of the entire proposed disturbed area in the
buffer including the proposed equipment access route and all areas
of the buffer where the natural ground cover or vegetation has been
graded, removed, or altered.
b. The species, size, and total number of proposed trees bushes or other
similar vegetation, regardless of size, that will be removed from the
stream buffer:
c. A signed statement, prepared by a licensed environmental consultant or
biologist, indicating that the proposal will not adversely impact any or all
identified species located on the property,
A- 7
water flow through the required stream buffer;
e. A fertilizing and watering plan outlining maintenance of the new
vegetation. It should be remembered that the County only allows for a
one (1) time application of fertilizer within the stream buffer in accordance
with the requirements of this Ordinance.
f. A signed statement by the applicant indicating that he /she accepts
responsibility for maintaining all replacement vegetation for a period of
five (5) years from the date of installation. If any vegetation installed as
part of an approved mitigation plan dies within the five (5) year period, it
shall be replaced in accordance with the No Practical Alternatives
Certificate issued by the County;
g. The type and location of ground cover to be placed within the disturbed
area (i.e. mulch, pine straw, etc.),
h. The location, size, and species of all proposed new trees or other similar
vegetation that will be replanted as part of the mitigation proposal, and
i. The proposed planting schedule and deadline for completion of
restoration activities. Please note that all vegetation required to be
replanted in accordance with an approved Mitigation Plan shall be
installed no latter than six (6) months from the completion of earth
disturbing activities.
8. Mitigation — Planting Location:
The planting of new vegetation, in accordance with an approved Mitigation
Plan, shall be located within the buffer that is adjacent to the identified stream
buffer as close to the point of the approved land disturbance activity as
practical.
9. Mitigation — Planting Standard:
The planting standard for mitigation proiects is as follows:
a. All disturbed area shall be stabilized in accordance with Orange
County Erosion Control standards,
b. To replace any and all trees or other vegetation removed as part of this
process, the following standards shall apply:
1. Trees only: For every one thousand (1,000) square feet of
disturbed area, the applicant shall be required to install ten (10)
trees at a minimum initial caliper of one inch (1 ") at diameter breast
height. The applicant shall install trees that are native to the area
and that are consistent with the provisions of Article Twelve (12)
Landscaping of the Orange County Zoning Ordinance.
2. Trees in conjunction with shrubs or other similar vegetation: The
ratio of trees to shrubs is as follows: One (1) tree equals five (5)
shrubs. The applicant shall be required to install a minimum of
eight (8) trees with the remaining required vegetation being
comprised of shrubs or other similar vegetation. Shrubs are
required to have a minimum planting height of three (3) feet and
shall be able to achieve a height of six (6) feet within three (3)
years of planting. The applicant shall install shrubs, and other
similar vegetation that are native to the area and that are
consistent with the provisions of Article Twelve (12) Landscaping of
the Orange County Zoning Ordinance.
10. Table of Allowable and Allowable with Mitigation Uses /Activities:
Uses /Activities:
Allowable:
Allowable with
Mitigation
Functionally dependant structures that are water
X
dependant such as docks, piers, public and private
boat ramps, boat houses over the water, walkways.
Functionally dependant structures' that are non
X
habitable and are intended to allow a property
owner to eniov the scenic views of a water bodv
Archaeological activities /projects being conducted in
X
accordance with all applicable County, State, and
Federal reaulations
Dam /reservoir maintenance activities
X
Drainage ditches, roadside ditches, and stormwater outfalls at the edge of the identified
protected stream/riparian buffer as follows:
1. Maintenance of existing outfalls provided that
they are managed to minimize the
X
sediment, nutrients and other pollution that
convev to waterbodies
2. New drainage outfalls provided that a
stormwater management facility is installed
x
to control nitrogen and attenuate flow before
the convevance discharaes into the riparian
Uses /Activities:
Allowable:
Allowable with
Mitigation:'
M.
'10
A- 10
Uses /Activities:
Allowable:
Allowable with
Mitigation:
Drainage of a pond in a natural drainage way
X
provided that a new riparian buffer that meets all
applicable Orange County requirements including
the Orange County Stormwater and Zoning
Ordinance. The drainage of the pond shall be re=
established along the new channel.
Note: New drainage outfalls that do not provide control for nitrogen before discharging
through the riparian buffer or the proposed excavation of the streambed in order to bring
it to the same elevation as the invert of a ditch are strictly prohibited
Note: The allowance, and permitted maintenance, of outfalls does .not include the
Piping or elimination of a stream for any purpose
Driveway crossings of streams and other surface waters as follows:
1. Driveway crossings on single family
residential lots that disturb less than, or equal
to, twenty -five (25) linear feet or twenty -five
hundred (2,500) square feet of riparian buffer
X
2. Driveway crossings on single family
X
residential lots that disturbs less than, or
equal to, one hundred fifty (150) linear feet
or one -third (1/3) of an acre of riparian
buffer
Driveway /road crossings of streams and other surface waters within subdivisions as
1. In a subdivision that cumulatively disturbs
X
less than, or equal to, one hundred fifty 150)
linear feet or one -third (1/3) of an acre of
riparian buffer
2. In a subdivision that cumulatively disturbs
greater than one hundred fifty (150) linear
feet or one -third (1/3) of an acre of riparian
buffer
X
Note: Any driveway or roadway, whether for a single- family residence or a subdivision
road, that are parallel to the stream or water body shall be treated as Allowable with
Mitigation regardless of the cumulative impact.
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11
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Uses /Activities:
Allowable:
Allowable with
Mitigation:
Greenways and /or hiking trails six (6) feet with width
X
composed of natural materials at least thirty (30)
feet from the top of bank of a stream or water body.
Greenways and/or hiking trails six (6) feet in width,
X
with improved paths (i.e. wood decking, etc) at least
thirty (30) feet from the top of bank of a stream or
water body.
Historic preservation protects /activities being
X
conducted in accordance with the provisions of all
applicable County State and Federal regulations
Natural Streams: Periodic maintenance of modified
X
natural streams such as canals and a grassed travel
way on one side of the surface water when
alternative forms of maintenance access are not
practical.
Public water and sewer lines located in conjunction
with the
provisions and
requirements of the Orange County Water and Sewer Policy, that are located within
stream buffers only to the extent necessary and provided that they enter and exit the
buffer area as nearly perpendicular as possible and in accordance with the following
provisions:
1. Public water and sewer lines that does not
disturb over forty (40) linear feet of riparian
buffer
X
2. Public water and sewer lines that disturbs
x_
over forty (40) linear feet of riparian buffer.
Under no circumstances may a utility line
require the disturbance of over one
hundred fifty (150) linear feet of riparian
buffer
Note: Individual or community wastewater disposal systems are not permitted within
stream buffers.
Streets Roads bridge approach slabs and right -of -ways' Public and private streets,
bridges and other similar travel ways Such uses may be located within stream buffers
only to the extent necessary and provided that they enter and exit the buffer area as
nearly perpendicular as possible and in accordance with the following provisions:
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12
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Uses /Activities:
Allowable:
Allowable with
Mitigation:
1 Proposal would not disturb over forty (40)
linear feet of riparian buffer.
X
2 Proposal would disturb over forty (40) linear
feet of riparian buffer. Under no
X
circumstances may a street or road require
the disturbance of over one hundred fifty
(150) linear feet of riparian buffer
Temporary roads intended to allow access to a
X
property for development purposes.
Railroad crossings and right -of -ways crossing of streams
and other surface
waters as
follows:
1 Railroad crossings that impact less than or
equal to forty (40) linear feet of riparian
X
buffer
2 Railroad crossings that impact more than
forty (40) linear feet of riparian buffer.
Under no circumstances may a railroad
crossing or railroad line require the
X
disturbance of over one hundred fifty (150)
linear feet of riparian buffer
Scientific studies and stream gauging
X
Stormwater management ponds - excluding dry ponds as follows:
1 New stormwater management ponds
provided that a riparian buffer that meets
the requirements of the Orange County
X
Stormwater Ordinance and Zoning
Ordinance and is established adiacent to
the pond.
2 New stormwater management ponds where
a riparian buffer that meets the
requirements of the Orange County
Stormwater Ordinance and Zoninq
X
Ordinance and is NOT established adiacent
to the pond
A- 12
13
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Uses /Activities:
Allowable:
Allowable with
Mitigation:
Stream restoration and /or stream bank stabilization
X
Utility lines: above ground and buried for local distribution of electricity, telephone and
cable television service, accessory and appurtenant apparatus such as poles guy
wires, transformers and switching boxes. Such uses may be located within stream
buffers only to the extent necessary and provided that they enter and exit the buffer
area as nearly perpendicular as possible and subject to the following conditions:
1. Proposal would not disturb over forty (40)
X
linear feet of riparian buffer.
2. Proposal would disturb over forty (40) linear
X
feet of riparian buffer. Under' no
circumstances may the installation of a
utility line, or any necessary accessory
apparatus, require the disturbance of over
one hundred fifty (150) linear feet of
riparian buffer
Well systems and lines: individual and/or community well system distribution lines and
systems installed in accordance with the provisions of the Orange County Health
Department. Such uses may be located within stream buffers one to the extent
necessary and provided that they enter and exit the buffer area as nearly perpendicular
as possible and subject to the following conditions:
1. Proposal would not disturb over forty (40)
X
linear feet of riparian buffer.
2. Proposal would disturb over fob (40) linear
x
feet of riparian buffer. Under no
circumstances may the installation of a well
system line require the disturbance of over
one hundred fifty (150) linear feet of
riparian buffer
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14
A- 14
Uses /Activities:
Allowable:
Allowable with
Mitigation:
Vegetation Management including but not limited
X
to, the following:
1 Emergency fire control measures provided
that topography is restored once the
emergency has been abated,
2 Planting vegetation to enhance the riparian
buffer, .
3 Pruning forest vegetation provided that the
health and function of the forest vegetation
is not compromised and the pruning activity
is conducted by hand,
4. Removal of individual trees which are in
danger of causing damage to dwellings
other structures or human life provided that
the activity is conducted by hand, and
5 Removal of poison ivy and other similar
nuisance vegetation provided that the
activity is conducted by hand.
Vegetation Management proposing the installation
X
of new vegetation with a proposed stream buffer as
part of an approved mitigation plan where the
applicant is proposing to use a one (1) time
application of fertilizer to allow for the re-
establishment of vegetation.
Vegetation management/replanting in an effort to
X
protect existing structures
Wetland restoration in accordance with all
X
applicable County State and Federal regulations
Amended
5/21/97
c) Land Disturbance and Planting or Replanting of Vegetation
1) Area within a stream buffer SA hiGh is hat are subject to serious
erosion may be disturbed for the purpose of planting and
maintaining erosion - resistant vegetative cover in accordance with
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15
the provisions of subsection B of this Section.
2) Existing forested areas or any other healthy vegetation aaRnotshall
not be removed from a stream buffer, except where replaced with
vegetation resulting in comparable stormwater runoff velocity and
quantity one year after planting.
3) In cases where ' New new vegetation shall -beis planted to capture
non - source polltants before they reach the perennial stream, as
the result of a disturbance of the required stream buffer in conflict
with the requirements of this Section, or when a parcel of property
is being proposed for development and there are no required
stream buffers surrounding streams or other water features, the
replanting of vegetation shall adhere to the following standard: as
The Dlantina plan must be approved by the Current Planning and
Erosion Control Divisions of the Planning and Inspections
Department and shall be developed such that the planting shall be
in accordance with the mitigation requirements contained within
Section B (9).
Proposed trees and the installation of the new vegetation, shall
further comply with the requirements of Article Twelve (12)
Landscaping and Buffer Requirements of the Orange County
Zoning Ordinance.
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c) Existing Lots
An existing lot, for the purpose of determining compliance with Article
6.23, is defined as a lot which was created prior to January 1, 1994, or a
tot within the Cane Creek watershed which was created prior to October
19, 1999, with respect to the October 19, 1999, amendments related to
the CANE -CA and CANE -PW districts, and non - conforming lots of
record.
Stream buffers as required by Article 6.23.7, and setbacks for septic
systems as required by Article 6.23.8 may be reduced to the extent
necessary to allow development of the lot, provided that all of the
following criteria are met:
1) The septic system is sized to serve no more than four
bedrooms; and
2) The septic tank, drainfield and repair area (where required) can
be accommodated on 20,000 square feet of area or less; and
3) The Orange County Planning Staff, in consultation with Orange
County Environmental Health and /or the Orange County
Engineer has determined that encroachment of the structure
into the stream buffer and /or encroachment, of the septic
system or repair area into the stream buffer or reservoir setback
is necessary in order to provide adequate area for septic
disposal and repair while maintaining required separations
between wells, septic systems, structures and property lines;
and
4) The Orange County Planning Staff, in consultation with Orange
County Environmental Health . and /or the Orange County
Engineer, has determined that the relative locations of the well,
septic system and structure maximize the amount of watershed
protection that can be achieved while allowing development of
the lot. Generally, an exception to setbacks for repair area is
preferable to an exception for the initial septic system, and
encroachment of structures or gravity septic systems into the
setback is preferable to the installation of a septic system pump.
5) The amount of encroachment into the stream or reservoir buffer
is the minimum amount whir# —that can be obtained while
meeting the above criteria as well as the mitigation
requirements outlined within subsection B of this Section.-
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17
EXISTING COUNTY REGULATIONS — STREAM BUFFERS:
Replacement of damaged /destroyed stream buffer:
• Existing standards requiring replacement of protected stream buffers
in the event they are destroyed or removed are scattered throughout
the existing text,
• There is no true comprehensive standard within the existing
Ordinance,
• There have been issues surrounding consistency due to the nebulous
language of the current regulations.
A graphic example of this problem is as follows:
Water Body
• Required stream buffer area
'iii•
■h'« l
P 0 0
Joe
J Disturbed Area — existing
regulations do not provide a
definitive, comprehensive,
replanting procedure for staff
to utilize in addressing
disturbance of protected
stream buffers
Developable area
Existing vegetation
B -17
PROPOSED AMENDMENTS — STREAM BUFFERS:
Replacement of damaged /destroyed stream buffer:
• Proposed amendments would establish a comprehensive standard
requiring a specific amount of vegetation to be replaced within -a
disturbed stream buffer,
• Proposed amendments centralize replanting requirements into one (1)
section, eliminating confusion and conflicting regulations,
• Standard is consistent with State Division of Water Quality (DWQ)
requirements to address disturbance of protected stream buffers,
A graphic example of the proposed solution is as follows:
000 • Required stream buffer area
• •
I* Joe
Water Body • I**
Disturbed Area —
replaced
AMIL
vegetation per proposed new
regulations — ten (10) trees for
• every thousand (1,000) square feet
of disturbance.
0 • • Developable area
00 0
Existing vegetation
0 •
0
19
EXISTING COUNTY REGULATIONS — STREAM BUFFERS:
Mitigation /repair of stream buffers (parallel disturbance):
• Existing regulations allow for some development within protected
stream buffers, specifically driveways, roads, and utility lines.
• There are currently no standards to mitigate the disturbance of the
stream buffer when these uses are installed,
• The existing regulations are too limited and do not address other
passive uses that may be acceptable within stream buffers with the
use of proper mitigation techniques consistent with DWQ guidelines.
A graphic example of this problem is as follows:
• • • Required stream buffer area
Water
Body • • Disturbed Area — under current
• •• rules there are no guidelines
• regulating this disturbance to
• avoid unnecessary destruction
• • • of the vegetation within the
area.
Developable area
• • Existing vegetation
I: M
Kill
PROPOSED AMENDMENTS — STREAM BUFFERS:
Mitigation /repair of stream buffers (parallel disturbance):
• Proposed amendments would establish basic minimum requirements
outlining how disturbance is to be accomplished to ensure the
protection of the buffer area,
• Proposed amendments establish specific mitigation requirements for
stabilization of disturbed area,
• Proposal expands on the number of uses allowed within a stream
buffer to be consistent with DWQ . requirements. The proposal
establishes a table of uses, some of which will require mandatory
replanting of new vegetation to re- establish the required buffer,
A graphic example of the proposed solution is as follows:
• • • Required stream buffer area
•0• •
•••
• • • Disturbed Area — new vegetation is
Water required to be planted under the
Body • • • proposed new ordinance to offset
• • • the removal of vegetation from the
• � buffer.
• • • = Under this proposal, staff also
• recommends that documentation be
• • • recorded at the Register of Deeds
• expanding the recognized stream
000 buffer on the property so that it can
be protected in perpetuity
000 � Developable area
• • Existing vegetation
. M
21
EXISTING COUNTY REGULATIONS — STREAM BUFFERS:
Mitigation /repair of stream buffers (perpendicular disturbance):
• Current regulations encourage perpendicular disturbance of a stream
buffer for roads and driveways,
• There are currently no standards to mitigate the disturbance of the
stream buffer when these uses are installed,
• Many of the uses we allow now, with no mitigation, DWQ requires
mitigation under existing Neuse River Basin regulations.
A graphic example of this problem is as follows:
soWater • • • Required stream buffer area
®• Body • •
•
•
• . Disturbed Area — current
• regulations do not require
replanting of disturbed area,
does not define what is
considered perpendicular, and
• does not require developer to
® follow any standards to avoid
se
• • unnecessary disturbance of the
® • stream buffer
• 0
• • Developable area
• •
® • • • Existing vegetation
•• Oool
B -21
22
PROPOSED AMENDMENTS — STREAM BUFFERS:
Mitigation /repair of stream buffers (perpendicular disturbance):
• Proposed amendments define what is considered perpendicular
development,
• Proposed amendments establish specific mitigation requirements for
stabilization of disturbed area,
• Proposal expands on the number of uses allowed within a stream
buffer to be consistent with DWQ requirements. The proposal
establishes a table of uses, some of which will require mandatory
replanting of new vegetation to re- establish the required buffer,
A graphic example of the proposed solution is as follows:
• • Water • Required stream buffer area
Body • • see
• , • Disturbed Area — new
• • •• vegetation is required to be
' • planted under the proposed
• new ordinance to offset the
• • removal of vegetation from
• the buffer
0
•
• • • Developable area
•
• • • • Existing vegetation
oil
•
B -22
notify all of the property owners. He thinks the County should consider doing this eventually, G tft
but it is not an immediate fix that he would urge the Planning Director and County
Commissioners to consider.
Public Comment
Steve Yuhasz commented on this public hearing process. He said that the text
amendments are complicated and it is difficult to prepare comments when the amendments
were not available until the Wednesday prior to the public hearing. He said that if this is the only
opportunity for the public to comment, then that is not enough time. He said that he was
involved with the question that arose with the text and the maps for this item. It seems to him
that the real problem is which is given precedence — the text or the maps. He said that the text
ought to hold rather than the maps regarding overlay districts where the district is well- defined
by the text. He said that if the maps are viewed as illustrative rather than controlling, there is
not a problem. He made reference to the definitions where it talks about "potential reservoirs"
and then talks about "proposed reservoirs" in the same definition. He asked that this be
consistent. In contributing watersheds, he pointed out that, included in this is a redefinition of
the critical area for both Cane Creek and University Lakes. This definition is "one -half mile from
the normal pool elevation or the contributing watershed divide, whichever is greater." He said
that it is possible, with this definition, for a piece of property to be both in the Cane Creek Critical
Area and in the Back Creek Protected Watershed. He does not think that this is intended. He
urged the County Commissioners to look at the text rather than the maps because the text is
specific.
Geof Gledhill made reference to Mr. Yuhasz's comments about Cane Creek and said
that the only thing in front of the Board tonight is the Upper Eno.
Chair Jacobs encouraged Mr. Yuhasz to submit any additional comments in writing for
the Planning Board to be able to consider as part of the record.
A motion was made by Commissioner Carey, seconded by Commissioner Foushee to
refer this to the Planning Board to return a recommendation to the Board of County
Commissioners no sooner than February 6, 2007. No option was specified.
VOTE: UNANIMOUS
Discussion ensued on the Planning Board's recommendations. Chair Jacobs assured
the Planning Board that the Board takes the recommendations under advisement and reads the
minutes, etc.
Geof Gledhill said that his recommendations were in no way stiff - arming the Planning
Board, but only a measured response to a measured problem.
Commissioner Gordon made reference to the abstracts and said that it would be helpful
to distinguish between what is being considered and what is not (i.e., Eno or Cane Creek).
Also, she agrees that the text should be available when the ad goes out.
4. Zoning Ordinance Text Amendments: Staff initiated amendments to Sections 6.23.7
through 6.24.3 - Stream Buffers - to include new regulations establishing formal stream
buffer replacement standards and creation of new regulations allowing for minimal
disturbance within an identified stream buffer for specific types of development.
Michael Harvey made this presentation. He said that this is a modification of existing
standards on the ordinance governing the protection of stream buffers. He read the definition of
stream buffers. The County has had these regulations since 1982 and there have been several
amendments. Most notably, in 1994, stream buffers were extended to cover the majority of the
County. In the ordinance, there are references to standards that govern the reestablishment
and the replanting of a buffer that has been illegally or accidentally disturbed. The staff, over
the last several months, has identified several concerns within the existing ordinance. There is
a lack of a uniform comprehensive and centralized planting standard within the ordinance, that
people are held to who have disturbed the stream buffer or for property that may have been in a
forestry program or part of a bona fide farm that is seeking to develop into another use where
stream buffers would be required. The present standards would require the planting of 436 -681
trees per acre. Staff's concern is that this does not establish a viable or pertinent buffer within
the required time to guarantee water quality. The second problem is that there is a lack of
appropriate mitigation standards. Another problem is that there is no flexibility within the
ordinance allowing for minor encroachment into the required stream buffer for non - invasive,
passive uses of the property. Finally, staff is concerned that there is no effective way to work
with a property owner to address changes in location and size of stream buffers resulting in a
change.
Staff is proposing that a comprehensive replanting standard be established in cases
where the stream buffer has been disturbed. The proposal is that the standard be ten trees for
every 1,000 square feet of disturbance and also that a property owner could install bushes on a
ratio with the required trees in order to reestablish the buffer. Staff is also recommending that
formal mitigation standards be established to regulate development of the stream buffer.
Finally, the staff is recommending expanding on the types of uses allowed within a regulated
stream buffer to include such uses as: archaeological activities, drainage ditches, water
dependant accessory structures (i.e. decks, piers, etc.), accessory structures intended to allow
property owners to enjoy scenic views of a water feature (i.e. gazebos), trails and walkways,
and other similar uses /activities consistent with current DWQ regulations.
Planning staff submitted this proposed ordinance change to several internal departments
and external agencies (Towns of Chapel Hill, Carrboro, and Hillsborough; OWASA; Commission
for the Environment). There has been some feedback from Erosion Control, Division of Water
Quality, Environmental Health, and other County departments requesting clarification of
revisions. The recommendation is for this to be forwarded to the Planning Board for
consideration and also that the Planning Board solicit input from Commission for the
Environment.
Commissioner Gordon said that she was present at the Commission for the Environment
meeting and there were several comments about wanting to provide input.
Chair Jacobs made reference to page 9 and the Table of Allowable and Allowable with
Mitigation Uses /Activities, and he read, "Functionally dependent structures that are water
dependent such as docks, piers, public and private boat ramps, boat houses over the water,
walkway." He asked if boat ramps and boathouses are allowed with mitigation and it was
answered yes. He said that he does not understand the statement on page 6, item b, "No
matter the classification of the proposed activity, all uses /activities shall observe a 25 -foot
setback from the top of the banks of the stream of water feature. This setback area shall remain
in a natural, vegetative state." He asked how a dock could be set back 25 feet.
Michael Harvey said that the intention is that water dependent structures would not have
to meet the setback requirement. He said that the staff could provide an exemption on the
activities and Chair Jacobs agreed.
Chair Jacobs asked why there would not be a differentiation of mitigation based on
illegal activity between mitigation on someone that has to do an activity that disturbs the stream
buffer. Michael Harvey said that there would still be disturbance of the stream buffer and the
interest is to reestablish it in the quickest time possible.
Geof Gledhill said that the legal answer is that there can be a differentiation.
Chair Jacobs encouraged discussion with Forestry.
Chair Jacobs made reference to page 12, "Temporary roads intended to allow access to
a property for development purposes." He asked who permits a temporary road and who
makes sure that when the development is completed that the road no longer exists. Michael
Harvey said that this was added because of a recommendation from the Division of Water
Quality. It would be permitted through the County's zoning permit process if it was a
subdivision. The County would make sure that the road would no longer exist.
Chair Jacobs made reference to page 20 where it says, "Proposal expands on the
number of uses allowed within a stream buffer to be consistent with DWQ requirements." He
said that this makes it sound like the number of uses is being liberalized because that's what
DWQ allows. Michael Harvey said that this is saying that DWQ allows for certain uses that the
County sees are reasonable. Chair Jacobs said that sometimes DWQ's requirements seem to
be watered down to fit the development community's interest. Michael Harvey assured Chair
Jacobs that this is not the intention.
Chair Jacobs suggested that the language include "low impact" as opposed to a passive
building.
Commissioner Gordon said that she would hope that the Planning Board would look very
carefully at all of these uses that are being allowed. She said that some of the uses are pretty
intrusive. Michael Harvey said that one of the reasons for all of the uses is to see what the
County Commissioners see as acceptable.
Jay Bryan asked if there was a hurry with this and Michael Harvey said no, but the
existing standards are lax. There is no immediate need, but the problem needs to be fixed.
Public Comment
Lynette Hartsell said that she owns property at Lake Orange and Cane Creek. She said
that she thinks this is a very poor plan. She said that she has been listening to the comments
tonight that the property owners are committing illegal acts on property that they somehow think
they own. She said that it is because she paid money for the property and she has a deed that
says she owns it. She understands that there has to be a relationship with the Planning Board,
County Commissioners, and people who are moving in that area that want water. She said that
she wants clean water just as much as everyone else. She said that none of the current
property owners are criminals, but they are property owners and taxpayers. She said that this is
a stealth conservation easement and the common person cannot read it and understand how to
get a mitigation plan through. She said that the plan is vague and gives staff power that the
County Commissioners should not give. She said that, in the end of the document, it says that
the agreement must be recorded as an easement deed and continues in perpetuity as an
easement. She said that there is something wrong with her giving the County her land, if it lets
her use the land. She understands the need for erosion control, but she is perplexed at the
need for erosion police. She said that if the 25 -foot buffer is allowed to go untended, there will
be an enormous vermin control problem. She said that this plan should be pitched and the
Planning Board should start over and work with the landowners in a more symbiotic relationship
and create something synergistic rather than something antagonistic.
Pete Wehr lives on Lake Orange. He asked if this affects Lake Orange and it was
answered that it affects all of Orange County. He said that the landowners there should be
consulted because they are great stewards of the lake. He said that he resents someone telling
him how the landowners can better keep the lake clean. He feels insulted by the ordinance. He
said that the landowners there should be exempt from the ordinance, and if not, then the County
should buy the buffer and lower their taxes.
John Macaulay lives on Queen Street. He suggested that the remediation include native
plants.
Commissioner Gordon said that she appreciates the public comments. She said that
this would be a good time to try and work with the landowners and get feedback on this.
Commissioner Carey agreed.
A motion was made by Commissioner Gordon, seconded by Commissioner Carey that
the Stream Buffer Text Amendments be referred to the Planning Board for a recommendation to
be returned to the Board of County Commissioners no sooner than February 6, 2007.
Commissioner Gordon encouraged the Planning Board to incorporate landowner
comments.
Tom Eakes asked to make a comment. He lives on Lake Orange. He said that the
people on Lake Orange, as well as the people on the other lakes and streams around town,
would like to know how staff will police this and what kind of actions will be taken.
VOTE: UNANIMOUS
Chair Jacobs pointed out that there have been two meetings of the Eno River
Confluence — and there was an effort to bring together people that had interest in the Upper
Eno, and there was never representation from Lake Orange residents. There will be another
one in April. He encouraged the residents to leave information with the Clerk so that they can
be invited.
5. Subdivision Regulations Text Amendments: Planning Board and staff initiated
amendments to Section IV -B, Conservation- Cluster Option, to modify the perimeter buffer
standards to distinguish and develop comparable dimensions between urban versus rural
design subdivisions.
Planning Supervisor Robert Davis introduced this item. Orange County has three flexible
development options — Estate Lot, Conservation Cluster, and Village. This amendment will only
affect the conservation cluster option and only the buffer standard and the types of ownership of
the buffers. There were modifications in 1999 that placed a 100 -foot perimeter building setback
buffer on this development option. The original intent of the 100 -foot setback was to lessen the
impact of higher density clusters of housing on the surrounding, lower density dwellings. The
setback has presented challenges in smaller acreage subdivision and also irregularly shaped
tracts. There was a situation in Ashwick where an accessory structure could not be built because
of the setback. The proposal is to go from the 100 -foot setback to a 60 -foot setback owned by the
homeowner's association. The 100 -foot setback requirement will remain in rural areas along
roadways. The staff would like to get this back to the Planning Board to set up an Ordinance
Review Committee to review this more thoroughly.
Chair Jacobs said that his initial impression is that in the urbanizing areas, it seems to
make more sense. He suggested putting the map in the abstract and giving the County
Commissioners more information on the buffer requirements.
Chair Jacobs questioned the faith that the Homeowner's Association will solve a problem.
He said that part of this is based on the assumption that if the Homeowner's Association
controlled the buffer, that it would be less likely to be disturbed. Based on his experience, it is just
as likely to be the other way around.
Robert Davis said that his experience is that people do less encroachment from a
structural standpoint when the homeowner's association owns it.
Jay Bryan said that he does not recall anyone else asking for anything other than just
looking at how to prevent the immediate issue in Ashwick. He does not remember it being
expanded to a larger policy issue.
Robert Davis said that he recalls that the motion was to consider ways for this not to
happen again.