HomeMy WebLinkAboutAgenda - 01-16-1997 - 2 ORANGECOUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: January 16, 1997
Action Agenda
Item #
SUBJECT: Report on the Water and Sewer Boundary Agreement Process
DEPARTMENT: County Manager PUBLIC HEARING: Yes No
ATTACHMENT(S): BUDGET AMENDMENT: —Yes No
Agenda packet for 11/6/96 meeting of INFORMATION CONTACT:
Water and Sewer Boundary Task Force County Engineer Extension 2303
Draft minutes for 11/6/96 meeting of TELEPHONE NUMBERS:
Water and Sewer Boundary Task Force Hillsborough 732-8181
Durham 688-7331
Staff report Mebane 227-2031
Chapel Hill 967-9251/968-4501
PURPOSE: To provide the Board with a report to update Commissioners on the activities and
discussions of the Water and Sewer Boundary Task Force
BACKGROUND: For nearly three years, since the spring of 1994, the Water and Sewer
Boundary Task Force has been working to develop a water and sewer utility
service area boundary agreement. The purpose of this agreement has been to:
1) develop a map showing the limits of the service areas of the various water
and sewer utilities; 2) address local land use planning concerns related to the
location and extension of water and sewer utilities; 3)provide a framework
for the role of various local governments and utility providers in dealing with
the failure of on-site private and community utilities; and 4)to address equity
issues related to the expenditure of public funds for utility expansion to serve
essential public facilities, public health situations, economic development, etc.
The members of the task force have yet to achieve consensus on many of these
issues. Furthermore, an opinion rendered by consensus of the attorneys for
the County, the Towns and OWASA has indicated that, in accordance with the
NC General Statutes, planning and funding equity issues should not or may not
be addressed by the utility service area agreement. However, the task force has
discussed plans to continue its efforts to develop a boundary agreement that is as
comprehensive as possible.
RECOMMENDATION: The Manager recommends that the Board receive the report as
information.
d ,t
MEMORANDUM
TO: County Commissioners
John Link, County Manager
Geoff Gledhill, County Attorney
Marvin Collins, Planning Director
FROM: David Stancil, Planner 11
Paul Thames, PE, County Engineer
DATE: January 13, 1997
SUBJECT: Chronology and summary of issues directly and indirectly related to the Water and Sewer
Boundary Agreement
Chronology of Events: 1994-1996
Spring 1994 Task Force of two elected officials from Orange County, Chapel Hill, Carrboro and
Hillsborough; and two members of OWASA Board of Directors appointed.
Summer-Fall 1994 Task Force receives reports on system capabilities, status and growth projections,
and begins to discuss boundary issues and related objectives.
December 1994 Task Force creates report proposing adherence to proposed"straw"boundaries
contingent upon addressing six"correlative objectives."
1995 Elected boards from all jurisdictions pass resolutions agreeing in principle to straw
boundaries contingent upon addressing a variety of issues, including the correlative
objectives. The matter is remanded back to the Task Force for creation of an
agreement incorporating the_comments received.
February 1996 Task Force reconvenes to review resolutions and consider next steps. Staffs asked to
review discussion ideas and prepare report.
April 1996 Staff Work Group presents report with draft outline of Interim Boundary Agreement
in April that incorporates issues of boundaries, type of service areas, responsibilities
and other concerns. Report also includes map of service areas and schedule
for consideration of boundary agreement. Task Force agrees to use framework with
changes in terminology and asks staff to flesh out ideas fiuther as a Draft Boundary
Agreement.
September 1996 Task Force reviews updated draft and revises opening sections. Draft conveyed to
attorneys for conceptual review.
November 1996 Attorney review presented by County Attorney. Attorneys recommend separating
land use planning issues from boundary agreement and propose amendments to Joint
Planning Land Use Plan and/or other plans to accomplish land use goals. Task Force
agrees to meet again in January to consider whether to split land use/planning issues
from water/sewer boundary issues.
Issues Under Consideration
During Task Force deliberations on the draft boundary agreement a number of issues have been raised
that have generated discussion and in some cases, disagreement. The current draft of the proposed
agreement contains alternative language in three areas that addresses the difference of opinion among the
Task Force members. These issues are fisted below in the order in which they are found in the draft.
I. Extension Opublic water and sewer service into the Rural Buffer
There has been no recommendation by members of the Task Force that basic water and sewer service be
extended into the Rural Buffer . However, there has been discussion regarding provision of service to
Public health emergencies and"essential public facilities" (as per the County Water and Sewer Policy)
where extension would be into or through the Rural Buffer. On the proposed boundary map (attached),
the Rural Buffer is within the OWASA Long-Term Interest Area-an area where extensions of service
are not anticipated but where OWASA would be the designated provider in the case of a public health
emergency or essential public facility.
One disagreement on language among Task Force members occurs in this area, as to whether it is
necessary to explicitly mention utility service within the Rural Buffer if it is already stated that other land
use agreements will not be superseded by the boundary agreement (Section I.D.2).
Z Equity Issues
Much discussion has centered around one of the correlative objectives from 1994 pertaining to addressing
equity issues. This objective states that the process should"Promote equity for all parties. Formulate
Service Area and other agreements so that benefiting parties pay their fair proportional share of operating
and capital costs incurred by the entity serving that district or interest area."
Some Task Force members have argued that this objective should be interpreted to mean that any County
tax dollars spent on water and sewer extension in one part of the County should be coupled with a like
amount available for other areas of the County, including the Towns. Some members have raised
concerns about the use of County tax dollars for system improvements in northern Orange. Issues of
possible"double-taxation" for Town residents and concerns about funding for County Economic
Development Districts have been expressed in terms of whether benefiting parties are paying their fair
share.
Other members of the Task Force have noted that equity is achieved in a number of different ways, that
system improvements for the Economic Development Districts are funded with sales tax revenues and not
ad valorem taxes, and that in some cases complete recovery of costs by those benefiting from extension
of service is not possible for socio-economic reasons (as in the Efland sewer project).
The current draft agreement contains alternative language in Section I.D.3 that illustrates the difference
of opinion among the Task Force.
3. Lome-Term Interest Areas and Essential Public Facilities
One of the provisions of the draft boundary agreement is the creation of"Long-Term Interest Areas."
These areas represent regions outside of current service boundaries where service is not anticipated, but
where some extension by a designated provider may be required if public health emergencies or essential
public facilities warrant. The OWASA Long-Term Interest Area-where OWASA would be the
designated provider for such service if needed-includes the Rural Buffer(including University Lake
Watershed),Bingham Township (including Cane Creek Watershed)and an area of southwestern Cheeks
Township.
The concept of essential public facilities is found in the County Water and Sewer Policy, and a draft
definition(which has not yet been reviewed by the Task Force)would define an essential MLbfic facility as
"a publicly-owned facility that provides a service for the health., safety and general welfare of County
residents. Essential public facilities may be defined here as a school, fire station, public safety substation
or solid waste convenience center, etc."
1 4
Some Task Force members have expressed concerns with the County Water and Sewer Policy provision
for essential public facilities. The difference of opinion on this subject relates again to concerns over
extension into the Rural Buffer and which party(ies) should have jurisdiction over this decision. Two
alternative paragraphs are currently found in the draft in Section 11(Definitions). One states that OWASA
will not extend service into the Long-Term Interest Area unless action is required to address a public
health emergency or essential public facility. The second adds that concurrence of all parties to the Joint
Planning Agreement should be obtained"prior to the extension of utilities into or through the Rural
Buffer."
Summary
The above issues are the primary areas where differences of opinion have been identified, and are the
issues on which alternative language has been drafted.
It should be noted that the Task Force has not completed a full review of the September 4 draft of the
boundary agreement. As such, there are other issues that will likely engender discussion at future
meetings - such as a possible role for OWASA in the approval process for alternative wastewater systems
in their Long-Term Interest Area.
Related Issues
A letter outlining the concerns and opinions of the attorneys serving Chapel Hill, Carrboro, Hillsborough,
Orange County and OWASA was presented at the November 6th meeting of the Water and Sewer
Boundary Task Force. The letter made two critical points which may serve to change the course of
major elements of the utility service boundary discussions: 1) land use planning is a legislative function
which cannot be restricted by an agreement other than the joint planning agreements which NC
Legislature has specifically granted the local governments of Orange County the authority to create; and
2) equity issues cannot by resolved by agreement that restricts the exercise of governmental discretion in
the use of tax funds for a public purpose. After the presentation of the draft review comments from the
town and county attorneys, the task force's discussion of efforts to codify planning and funding equity
issues within the utility service area agreement essentially concluded in confusion. By the end of the
meeting, there was no clear agreement among committee members to either: 1) carry on with a scaled
back process that would simply develop an agreement to delineate utility service area boundaries and
outline utility service provision processes and responsibilities; or 2) carry on with the development of a
boundary agreement while simultaneously addressing planning concerns through joint planning
agreements and equity issues through some other process.
Regardless of the strategy elected officials and policy makers eventually develop to conclude the
boundary agreement process, the discussions-particularly those regarding funding utility construction for
economic development and utility funding equity-have the potential to immediately affect current
County initiatives and policies. One striking example of an immediate impact is the Chapel Hill Town
Board's resolution requesting that Orange County fund $527,000 in sewer improvements within Chapel
Hill. Both the request and the dollar figure are based on the County's 1987-88 funding of a similar
percentage of the costs of constructing the Efland sewer system. This request apparently seeks to ensure
that the citizens, or at least some of the citizens, of Chapel Hill benefit from an "equitable" expenditure
of County dollars for provision of municipal type sewer collection service.
ORANGE CO UN?'Y COMMISSIONERS
P.O. Box 8181
200 S. Cameron Street
Hillsborougb, N.C.
27278
Moses Carey,Jr. 919-732-8181
William L Crowther 919-968-4501
Alice M.Gordon 919-688-7331
Srepben H.Halkiotis 910-227.2031
Don Willboit MEMORANDUM (Fax)919-644-3004
To: Water and Sewer Boundary Task Force
From: Moses Carey, Chair
Date: October 28, 1996
Subject: Agenda for November 6 Meeting
Please find attached an agenda and materials for the next meeting of the Water and Sewer
Boundary Task Force, scheduled for Wednesday,November 6, 1996 at 7:30 p.m. in the
OWASA Community Room.
Since our last meeting, attorneys from the respective jurisdictions have reviewed the draft
boundary agreement, and attorney comments on the draft will be provided under separate
cover prior to the meeting. Review of the attorney comments, completion of our review
of the draft, and consideration of next steps will comprise the agenda for this meeting.
copies: Cal Horton, Chapel Hill Town Manager
John Link, Orange County Manager
Bob Morgan, Carrboro Town Manager
Eric Swanson,Hillsborough Town Manager
William Kerwin, OWASA Executive Director
Michael Brough, Carrboro and Hillsborough Town Attorney
Geof Gledhill, Orange County Attorney
Ralph Karpinos, Chapel Hill Town Attorney
Robert Epting, OWASA Attorney
Greg Feller, Chapel Hill Assistant to the Manager
Gene Bell, Acting Orange County Planning Director
Ed Holland, OWASA Research Administrator
Roger Waldon, Chapel Hill Planning Director
Roy Williford, Carrboro Planning Director
Tom Hartye, Hillsborough Town Engineer
Paul Thames, Orange County Engineer
Chris Berndt, Chapel Hill Long-Range Planning Coordinator
Dave Stancil, Orange County Planner H (Land Use and Environment)
YO U CO UNT IN ORANGE CO U-NTYI
AGENDA
Water and Sewer Boundary Task Force
November 6, .1996
7:30 P.M.
OWASA Community Room
Jones Ferry Road, Carrboro NC
1. 7:34 Chair/Task Force Comments
2. 7:35 Approval of September 4 Minutes
3. 7:40 Review By Attorneys of Draft Boundary Agreement
At the conclusion of the September 4 meeting, the partially-revised draft
was referred to the attorneys for the respective jurisdictions for a basic
conceptual review. The attorneys were not asked to begin drafting a final
agreement at this time,but only to review the draft for legal issues and
comments. A letter from the attorneys with their review will be provided
under separate cover.
4. 8:40 Completion of Task Force Revisions to Draft Agreement
On September 4,the Task Force reviewed and revised portions of the draft
boundary agreement. Over one-half of the draft remains for review. After
hearing continents from the attorneys,the Task Force may wish to
complete the review of the remaining sections.
5. 9:10 Next Steps Toward a Boundary Agreement
Staff has prepared a memorandum outlining a possible process for further
review of the boundary agreement(attached).
6. 9:30 Adjournment
WATER AND SEWER SERVICES BOUNDARY TASK FORCE
MINUTES
SEPTEMBER 4, 1996
A meeting of the Public Water and Sewer Services Boundary Task Force was
held on Wednesday, April 10, 1996 at 7:00 p.m. in the OWASA Community Meeting
Room, Carrboro, North Carolina.
MEMBERS PRESENT: Orange County Board of Commissioners Moses Carey, Jr.,
and Alice Gordon, Chapel Hill Town Council Members Julie Andresen and Joe
Capowski, OWASA Board of Directors Member Pat Davis, Carrboro Board of Aldermen
Hilliard Caldwell and Jay Bryan and Hillsborough Town Commissioner Evelyn Lloyd.
MEMBERS ABSENT: OWASA Board of Directors Member Barry Jacobs.
Chair Carey convened the meeting. He mentioned that Barry Jacobs would not
be able to attend this meeting because of a schedule conflict. He asked for comments
or suggestions for changes in the Agenda.
Commissioner Gordon requested that the equity issue be discussed first.
Councilmember Andresen had questions regarding the 10 and 15 year plans for
the utilities.
MINUTES: A motion was made by Commissioner Gordon, seconded by Julie
Andresen, to approve the minutes as corrected.
VOTE: UNANIMOUS
Pat Davis stated that the "provisional service area" definition is essentially
the same one that is now called "long-term interest area".
DISCUSSION: Conceptual Draft Of Water/Sewer Boundary Agreement:
Councilmember Andresen mentioned that their is relationship between the
adoption of this agreement and the correlative objectives listed in the December
14,1994 document. The issue that has not been met or discussed is that of"promoting
equity for all parties, formulate services area and other agreements so that benefiting
parties pay their fair proportional share of operating and capital costs incurred by the
entities servicing that district or interest area." A suggestion to address that is to use
alternative wording in the Water and Sewer Boundary Agreement. Another suggestion
is to ask the Board of County Commissioners to consider changing the Orange County
Water and Sewer Policy to meet these objectives.
The language for the water and sewer agreement would be reworded to assure
that the southern Orange County residents would not be required to subsidize trunk
sewer lines to economic development nodes or similar examples in the rural parts of the
4
County. They would not include public health emergencies. The recommended
changes to the Water and Sewer Boundary Agreement are as follows:
D: ORGANIZING PRINCIPLES
1. Remains the same
2. Reads as follows: Planning and growth management issues are
influenced by the location of water and sewer. This agreement is not intended to
supersede any land use agreements, e.g., regarding utility service within the Rural
Buffer. Joe Capowski suggested adding the following sentence. "We recognize that
land use decisions are made by elected boards not utilities.
3. Reads as follows: Equity Issues: When Orange County uses general
County-wide tax revenues to pay for water or wastewater facilities, including the
remediation of privately owned systems, the County will recover the costs from the
benefiting or responsible parties through mechanisms such as assessments, service
fees, special district revenues, etc. And such costs shall be recovered over time with an
appropriate interest rate. It is understood that when the Health Director determines that
a public health emergency exists, it may be necessary for the County to use general tax
revenues in hardship cases.
The remainder of#3 would be deleted.
Ms. Andresen's stated outcome was that there would be some limitation on
general county revenues used. For example, the $50,000 of General Revenues spent
by the county each year as pilot projects for companies expected to generate income
within the County would be capped. Second, the County would rely on private, public
utilities, not the County, to provide water and sewer service except in the case of public
health emergencies. Lastly, if the County does get involved in a water and sewer
project , a service district, or some other agreement, would be formed so that the
benefiting parties would pay.
Chair Carey thanked Ms. Andresen and Jay Bryan for putting together the
August 22, 1996 memorandum. However, he felt that it expressed basic philosophical
differences in his perception of the objective of this Task Force and the proposal
presented by Councilmember Andresen and Alderman Bryan. He asked for clarification
of the term "general County Revenue" as it was used in this proposal. He felt that it
was granting to the Towns the right to approval the county's expenditure of funds for
economic development purposes.
Alderman Bryan indicated that all OWASA users are County taxpayers. They
have a problem with the County spending money generated within the OWASA district
to be spent on a water and sewer project that is not in the OWASA district. That is
being taxed twice.
Chair Carey indicated that the County Water and Sewer Policy applies to the
entire county and they would consider a project within the OWASA service area the
County would consider it.
John Link stated that the double taxation would apply if you are talking about ad
valorum taxes and property tax. The expenditure of these funds for economic
development are coming from the 1/2 cents sales tax revenue which generated
statewide and appropriated back to each unit of government based on population. All
revenues for County Capital Improvement Plan come from that 1/2 cent sales tax.
Alderman Bryan felt that was appropriate unless it was a substitution of one
source of funds for another. OWASA customers are concerned that they will have to
pay twice - for OWASA projects and County projects.
The County Water and Sewer Policy cannot be amended by this Task Force.
Commissioner Gordon felt that the best approach would be to have the Area
Boundary Agreement state exactly was decided by this Task Force. She pointed out
that the Water and Sewer Policy could be changed at any time by the Board of
Commissioners which would defeat the purpose of this group if that document was
being used in this agreement.
Councilmember Andresen felt that the County costs are not actually recovered in
economic development projects.
Commissioner Carey stated that costs are recovered when the amount of taxes
the business pays increases above what they were at the time of the investment. If the
increase in the taxes over a five year period match the amount invested, the County
considers that repayment of the investment.
Councilmember Andresen disagreed with this. She pointed out that growth
always costs. She requested a limitation on the amount that the County could spend
on this type of project.
Chair Carey stated that he felt that it was appropriate to ask for that limitation,
however, this document is not the way to do it. The budget process would be the way
to address this request.
Councilmember Capowski asked for an example of a County project where it
would not be practical to recover costs.
John Link mentioned the Efland sewer project. The citizens who are on the
system are paying sewer fees. In 1986 The Board of Commissioners acknowledged
the need to expand the system because there are additional failing septic systems.
Next week Tara Fikes will present to the Board of County Commissioners a proposal
that the County apply for $800,000 in CDBG funds to help address Phase 2 and 3 of
the Efland Sewer Systems. Those funds will require a match from the County which
would be approximately $300,000 out of General Tax Funds. The families that would
benefit from this money are not in a position to repay their portion within the next 3 to 5
years.
Councilmember Capowski felt that it was important that the non-benefiting
parties not be assessed.
Chair Carey suggested looking at the specific language proposed. He repeated
that-he could not agree to eliminate the last two paragraphs in 1.D 3. He commented
on the August 22nd memo from Julie Andresen and Jay Bryan. He stated that he did
not have a problem with the language in 1.D.2 although this process was not intended
to influence planning and growth issues. He felt that everything after"e.g." was
unnecessary because it is not intended to supersede any land use agreements or
jurisdictional plans. He suggested that#3 Equity Issues could also be acceptable as a
partial substitute for the original paragraph. He suggested the following change
service fees, special district revenues, taxes, etc. And such costs s4a4-mom be
recovered over time with an appropriate interest rate. It is understood that when the
Health Director determines that a public health emergency exists, it may be necessary
for the County to use general tax revenues iF; heaFdhip Garse-s to reduce risk to public
health_
Commissioner Gordon felt that a core issue is whether it is enough to recover the
tax revenue without thinking of other costs.
Councilmember Capowski asked how the Commissioners would react if the
COuncil asked for a countywide general tax payer subsidy for the installation of sewer in
the Morgan Creek Development.
Chair Carey indicated that the Commissioners would consider it like they do all
other proposals within the context of their water and sewer policy. He mentioned
that funding for both Piney Mountain and the Efland project was almost completely
reimbursed by the benefiting parties.
Councilmember Andresen commented that adding the word "taxes" undoes the
paragraph. Also, changing the wording from shall to may does the same thing. She
could not agree with those changes.
Jay Bryan agreed with Councilmember Andresen.
Chair Carey suggested editing as much as possible on this document and then
sending it to the individual Boards after the attorneys have reviewed. The Boards
should be advised as to the areas of disagreement on this Task Force.
Pat Davis suggested forwarding the revised document to the elected officials
with the equity issue included with Option 1 and Option 2. He suggested in 1.B.1 that
the wording be changed from "boundaries for future public. utility development..." He
also suggested that a 4th purpose could be "to provide greater predictability in long
range capital improvements financial planning. If you have uncertainty about when and
where funds will be spent it can raise serious, long range issues.
He suggested the following wording for the fourth purpose. "To provide the
public and private sectors with greater predictability in long-range water and sewer
capital improvements planning and financing."
Councilmember Capowski stated that the Council has never seen a map that
shows what OWASA is planning to do for the next 10 years. He would like to see a
map as well as have review authority over the portions that are within Chapel Hills
corporate limits or future corporate limits.
Pat Davis stated that it was impossible for OWASA to say when they will extend
service because they do not have the ability to control land use plan growth
management decisions.
Ed Holland stated that OWASA does not have such a map because they do not
extend water and sewer lines. Property owners do that and then they dedicate them to
OWASA.
Councilmember Capowski felt that this is not was not completely accurate. He
mentioned that OWASA is discussing putting a water tower at Star Point because of an
anticipated need for more water pressure.
Pat Davis indicated that OWASA does have an Alternate System Development
Plan which could be made available to this group.
There was consensus on the fourth purpose as stated by Pat Davis as follows:
"To provide for predictable, long range water and sewer capital improvements planning
and financing."
After discussion on D. 2 of the Boundary Agreement it was decided that there
was no consensus on either the original or the substitute in Julie and Jay's
memorandum. Both of those options will be presented to the elected officials for their
consideration.
It was also suggested that rather than the using the word "we" in the Agreement,
the phrase "parties to this Agreement" be substituted.
There was consensus to present D.3 of the Draft Boundary Agreement and #3 of
Julie and Jay's memorandum which presented a new paragraph 1 and deleted
paragraph 2 and 3.
11: DEFINITIONS:
Pat Davis suggested that the definitions could be in the Agreement and the
policy related aspects of that could be in the related documents.
After discussion of the wording for the OWASA Long-Term Interest Area the
following wording was suggested ...of the Cape Fear River basin located south of
Bowman Road and located in Orancie Counky..
Councilmember Capowski asked if it was true that the Long Term Interest Area
does not include any of Durham, Chatham, Wake or Alamance Counties. He further
asked if the text stated that. He requested that a clause be added that the OWASA
area is limited to Orange County. It could be made clear that there might be future
agreements with these Counties but that this Draft Agreement is not a unilateral
It was suggested that the attorney's be asked to determine whether the final map
or the text would be the final word when questions arise.
The first paragraph on page 3 was discussed at length. There was discussion
about the phrase "essential Public facility". It was decided to present two options for
this paragraph as well.
Councilmember Capowski asked if a tap-on would be allowed after a sewer was
run to an "essential public facility". The answer to that question is not clear. There are
technical, legal and financial implications to that question all of which have not been
resolved.
Greg Feller felt that a way to narrow the issue would be to say that within the
Rpral Buffer there would have to be agreement by all elected bodies before a facility
would be designated as "essential."
Chair Carey stated that it would probably not be possible for an facility to be
declared and "essential" public facility without the approval of an elected board. This
issue would be narrowed by mentioning the requirements of the Joint Planning
Agreement because that approval by all three bodies is included in that Agreement.
That does not include the areas in the OWASA Long-Term Interest area that is outside
the joint planning area.
Councilmember Andresen stated that she did not feel that including "essential
public facility" subject to the Joint Planning Agreement would make the wording
acceptable to her. The Joint Planning Agreement only affects the Rural Buffer which is
not inclusive enough.
Chair Carey agreed to the language as it applies to the Rural Buffer because it is
tantamount to the agreement that already exists.
Councilmember Capowski asked what the phrase "A management role for
OWASA was intended to imply.
Chair Carey stated that it means a role for OWASA in the approval process for
community systems whether that is in the design approval for new systems and/or
approval of how the new system is constructed. OWASA needs to have a role in
assuring the quality of these systems.
Councilmember Capowski agreed but questioned whether OWASA would
actually manage them.
Pat Davis pointed out that the issue of OWASA providing courtesy review was
addressed later in this document.
Chair Carey suggested deleting it from this paragraph.
In response to a question by Commissioner Gordon in reference to the last
paragraph in page 2, Pat Davis stated that "Individual on-site and small-scale
alternative water supply..." was included because when local governments make
decisions about restricting central systems it means that you are making a decision that
these other types of systems will be used. Putting that specific language in this
paragraph assures that the elected officials will be aware that that will be the primary
means of serving the area.
Paul Thames stated that any system that serves more'than one family unit is an
alternative community system. That term does not speak to the technology used.
It was suggested that the term "community" could be defined as individual on-site
and small-scale alternative systems serving more than one property.
Hillsborough Long-Term Interest Area:
Commissioner Gordon asked what the term "..interests of a proprietary or other
nature..." meant. She also felt that it needs to be clarified that Primary Service Area is
within the Long Term Service Area and that water and sewer might reasonably be
provided. And, that some areas may not have a Primary Service Area. This will be
clarified prior to the next meeting.
John Link requested that the attorneys be requested to review the Draft
Agreement for conceptual problems only prior to the next meeting. There was
consensus on this suggestion.
The meeting as adjourned at 10:00 p.m. The next regular meet of this
Task Force will meet on Wednesday, November 6, 1996 at 7:30 p.m. in the Community
meeting room, OWASA, Jones Ferry Road, Carrboro.
Respectfully submitted,
Kathy Baker, Deputy Clerk
CONCEPTUAL DRAFT
WATER/SEWER BOUNDARY AGREEMENT
(September 30, 1996)
(Note: September 4 changes shown in italic)
Preamble
A. Charge to the Water and Sewer Boundary Task Force (Appendix 1)
B. Purpose of Water and Sewer Boundary Agreement
1 To provide a comprehensive, County-wide system of ultimate
boundaries for future utility development and assignment of
responsibilities for dealing with private water and wastewater
system problems in areas without public water and sewer
service
2. To complement growth management objectives, land use
plans and annexation plans in existing agreements
3. To resolve in advance and preclude future conflicts about
future service areas and annexation areas.
4. To provide for predictable long-range water and sewer capital
improvement planning and financing.
C. Authority of Parties to Enter into Agreement
D. Other Organizing Principles
1 Adherence to Boundaries: The service boundaries shown
herein will be adhered to by all parties to the agreement. No
utility provider shall extend service into another providers
service or interest area without written invitation from the
provider which holds jurisdiction in the area.
2. (TWO ALTERNATIVES UNDER CONSIDERATION)
Alt#1 Policy Issues: Planning and growth management
issues are influenced by the location of water and sewer. This
agreement is not intended to supersede any land use
agreements. We recognize that land use decisions are made
by elected officials, not utilities.
Alt#2 Policy Issues: Planning and growth management
issues are influenced by the location of'water and sewer. This
agreement is not intended to supersede any land use
agreements, e.g., regarding utility service within the Rural
Buffer. We recognize that land use decisions are made by
elected officials, not utilities.
3. TWO AL TERNA TIVES UNDER CONSIDERATION
Alt#1 Equity Issues: When Orange County uses general
County-wide tax revenues to pay for water or
wastewater facilities (including remediation of a
privately owned system), the County will to the extent
practical recover the costs from the benefiting or
responsible parties through mechanisms such as
assessments, service fees, special district revenues,
etc. Such costs may be recovered over time with an
appropriate interest rate.
This principle is not intended to apply when water or
wastewater costs are paid with County funds as an
economic development investment reasonably
expected to be substantially recovered through future
taxes and/or job creation. -
When Orange County uses general tax revenues for a
water or wastewater sewer project and it is not
practical to recover costs from benefiting parties, the
County will seek to achieve County-wide equity in
providing funding for water and wastewater projects in
the County overall. It is understood that overall equity
may be achieved in the County as a whole by meeting
different kinds of public needs in various areas of the
- County.
Aft#2 When Orange County uses general County-wide tax
revenues to pay for water or wastewater facilities
(including remediation of a privately owned system),
the County will recover the costs from the benefiting or
responsible parties through mechanisms such as
assessments, service fees, special district revenues,
taxes; and such costs shall be recovered over time
with an appropriate interest rate. It is understood that
when the Health Director or Board of Commissioners
determine that a public health emergency exists, it may
be necessary for the County to use general tax
revenues to reduce or eliminate risks to public health.
II. Definitions
Primary Service Area: An area where water and sewer service might
reasonably be provided in the future, according to adopted plans.
OWASA Long-Term Interest Area: An area within which public water
and/or sewer extensions are not anticipated to be made, but if such
services are to be provided, OWASA will be the responsible utility service
provider.
The OWASA Long-Term Interest Area shall include all of the area
designated as "Rural Buffer" under the Joint Planning Area Land Use plan
for Orange County, Chapel Hill and Carrboro, as well as portions of the
Cape Fear River basin located south of Bowman Road in Orange County
(as shown on the map in Appendix 2). Development within the OWASA
Long-Term Interest Area is not projected to occur at urban densities, and
therefore, by official plans and policy statements, public water and sewer
services shall generally be prohibited in this area. Individual on-site and
small-scale alternative water supply and wastewater treatment systems
will be the primary methods of meeting the water and sewer service needs
of existing and future development. OWASA's Long-Term Interest Area
does not include areas outside of Orange County, except for areas that
already exist.
(TWO ALTERNAT IVES UNDER CONSIDERATION)
Alt#1 OWASA will not extend public water and sewer service in its Long-
Term Interest Area unless said action is required to address a
public health emergency not otherwise correctable and/or to
provide service to an "essential public facility."
Alt#2 OWASA will not extend public water and sewer service in its Long-
Term Interest Area unless said action is required to address a
public health emergency not otherwise correctable and/or to
provide service to an "essential public facility'; provided that the
concurrence of the parties of the Joint Planning Agreement is
obtained prior to the extension of utilities into or through the Rural
Buffer.
Hillsborough Long-Term Interest Area: Same as the Town's Long-Term
Service Area. An area where water and sewer service is to be provided by
the Town as identified within the 50-Year Master Plan (as shown on the
map in Appendix 2).
W2k
END OF SECTIONS REVISED ON SEPTEMBER 4. THE FOLLOWING
SECTIONS WERE NOT REVIEWED BY THE TASK FORCE.
Language shown in bold italic or strikethrough text in the following sections
are changes made by the Task Force at its May meeting.
Orange County Long-Term Interest Area: The remaining areas of
Orange County planning jurisdiction (excluding the Orange County Long-
Term Service Area) within which public water and/or sewer
extensions are not anticipated to be made, but if such services are to
be provided, Orange County will be responsible for coordinating the
provision of utility service.
Development within the Orange County Long-Term Interest Area is
not projected to occur at urban densities, and therefore, by official
plans and policy statements, public water and sewer services shall
generally be prohibited in this area - except County Transition Areas
and Economic Development Districts, where service is currently
permitted under the Land Use Element of the Orange County
Comprehensive Plan. Individual on-site and small-scale alternative
water supply and wastewater treatment systems will be the primary
methods of meeting the water and sewer service needs of existing
and future development outside of the County Transition Areas and
Economic Development Districts.
Orange County will not extend public water and sewer service into
the rural portions of said area (outside of Transition Areas and
Economic Development Districts) unless said action is required to
wateF and seweF sewiGe exleRSiGR is Ret plaRRed t9 GGGUF, eXre"
address public health emergencies not otherwise correctable and/or to
provide service to an "essential public facility".
Accountable for the utility needs within its own Interest Area:
Financially and technically capable of providing water and sewer service
to public health emergencies or other identified public facility needs, as
defined by the parties of the boundary agreement. The provider must
have adequate system capacity, technical capability and financial assets
to address system problems within the interest area without compromising
service to current customers.
Essential Public Facility.A publicly-owned facility that provides a
service for the health, safety and general welfare of County
residents. Essential public facilities may be defined here as a school,
fire station, public safety substation or solid waste convenience
center, etc.
111. Procedures for adoption of agreement, effective date and term.
A. Action by each participating body to make agreement effective
B. Procedure for proposing and acting on changes in agreement
including boundaries
1. imews-Approval of all elected boards required for
changes to agreement
C. Procedure for withdrawal from/decision not to renew the
agreement with 30 months notice to all other parties.
1. Effect of withdrawal on status of agreement among remaining
parties
2. Other parties could continue the agreement ,
D. Term of 5 years; automatically renewed
_. PFQGed ire f9 G9RsideAR9 renewal
1.
same tei:ms
IV. Substance of Agreement
A. Boundaries for Primary Service Areas and Long-Term Interest
Areas
1. Map of Boundaries
B. Clarification that timing and manner of extension of service within an
interest area or service area is at the discretion of the jurisdiction
designated for that area, unless otherwise provided by this or other
agreements, joint plans, etc.
C. Clarification that interest areas are not service areas which create an
obligation for utility to extend service under normal policies
1 An OWASA Long-Term Interest Area will be defined. Within
this area, public water and sewer service will not be
provided, except in the following cases:
a. to address a public health emergency which is not
otherwise correctable, and/or
b. to provide service to an "essential public facility"-&uG -
as a &Gheel
2. A Hillsborough Long-Term Interest Area will be defined. This
area will be coterminous with the Town's Long-Term Service
Area. Service within this area will be provided in accordance
with the Town's,current water and sewer extension policy.
3. An Orange County Long-Term Interest Area will be defined.
Within this interest area, water and sewer service will not be
provided except in the following cases:
a. to address a public health emergency which is not
otherwise correctable, and/or
b. to provide service to an essential public facility, suGh
as a srhee4
D. Procedures for the provision of service within the Long-Term
Interest Areas
1. When water and sewer service extension is required to
address public health emergencies or 'essential public
facilities", the designated provider for the Interest Area shall
have the right of first refusal to provide such service, in
accord with its own policies and procedures. The provider
shall endeavor to provide such service with all due speed
within the provisions of its policy.
2. The Long-Term Interest Areas shall reflect an area where
the respective provider has adequate system capacity and
adequate financial resources to provide such service within
its respective interest area, with the following additional
provisions:
a. Within the Town of Hillsborough Interest Area, the
Town will agree to provide service to needs as
defined above, as system capacity and financial
resources allow. The Town will have the right of"first-
refusal" (as defined below) to decline to serve a
system failure in its Interest Area, if it can be shown
that in so doing the capability to serve its existing
customers would be significantly altered in an
adverse manner. If the Town declines to provide
service, it may contract with another public provider _
upon consultation and agreement with Orange
County regarding the contracted provision of service.
If contracted provision is not feasible, Orange County
will address the situation, and retains the right to
contract with other providers to secure service.
b. In the OWASA Interest Area,44e OWASA PeaFd e
D+resteFs will agree to provide service to needs as
defined above, as system capacity and financial
resources allow. The Authority will have the right of
"first-refusal" (as defined below)to decline to serve a
need in its Interest Area, if it can be shown that in so
doing the capability to serve its existing customers
would be compromised in an adverse manner. If
OWASA declines to provide service, it may contract
with another public provider upon consultation and
agreement with Orange County regarding the
contracted provision of service. If contracted provision
is not feasible, Orange County will address
the situation, and retains the right to contract with
other providers to secure service.
C. In addition, OWASA will be provided courtesy review
and the right to provide written input into utility design
and the provision of easements for all new major
subdivisions and non-residential site plans within the
OWASA Interest Area. Orange County shall retain
approval authority for all development proposals
within portions of the OWASA Long-Term Interest
Area in Orange County planning jurisdiction.
3. Policy of"first-refusal'
a. The designated Long-Term Interest Area provider has
first right to provide service if a public health
emergency or "essential public facility' service need is
established.
b. If the designated provider declines to provide service, it
must notify the other parties to the agreement with a
statement of rationale.
C. The designated provider may contract with another
service provider to address the situation, upon
consultation with Orange County (and other
jurisdictions, where specified by joint planning
agreements) regarding the process for such service
provision.
d. If no other contracted provider is available, Orange
County will address the public health emergency or
essential public facility need according to its own
policies and procedures.
E. -Procedure for a jurisdiction to contract with another public or private
party to operate and maintain facilities, build facilities, etc. within the
jurisdiction's interest and service area while retaining the
jurisdiction's policy control for its designated area under the
boundary agreement.
A.
F. Other Extension and Management Responsibilities
1. The extension of water and sewer service by
any party outside of its Long-Term Service Area and into
its own Long-Term Interest Area (or another jurisdiction's
Interest Area as part of a written invitation from that
jurisdiction), shall be sized so as to serve only the lots
designated in need of service extension, as defined above.
Extension of service to other lots in the area, or
to other lots along the route of extension shall be prohibited.
APPENDICES
A. History of joint and cooperative planning
1. Joint Planning Agreement/Land Use Plan
Z OWASA Memorandum of Understanding
3. Piney Mountain Service Agreement
B. Hillsborough-Durham service area agreement(by reference)
C. OWASA-Durham agreement(by reference)
D. Orange County Water and Sewer Policy(by reference)
MEMORANDUM
TO: Water and Sewer Boundary Task Force
FROM: Joint Staff Work Group
DATE: October 24, 1996
RE: Proposed Next Steps for the Draft Boundary Agreement
As part of the September 4 agenda,the joint staffs recommended a stepwise process for
further consideration of the draft boundary agreement. The first step in that process was
executed on September 4, as the draft agreement was conveyed to the attorneys of the
respective jurisdictions for a basic review.
In keeping with the process identified on September 4,the following steps might next be
taken:
• After completion of the basic, legal-issue review by the attorneys, the Task Force
may wish to revise the draft agreement accordingly,providing further direction.
• Next, the Task Force may wish to consider two alternative paths:
1. Refer to revised draft agreement to the managers and attorneys, asking that
a legal boundary agreement be drawn up for formal consideration by the
elected boards, or
2. Send the conceptual draft(as it reads)to the elected boards for
comment and review. Following this review period, the Task Force might
meet to consider the comments of the elected boards, and then refer the
draft for drawing into a legal agreement(as in step 1 above).
The first alternative might be most prudent if the Task Force feels comfortable with the
structure of the draft following completion of the November 6 review. This approach
might result in a quicker timeframe for review and possible adoption of a draft
agreement.
The second alternative might be selected if the Task Force prefers to check in with the
respective elected boards about the draft before proceeding to the creation of a formal
agreement. This path would result in a longer timeframe and an additional Task Force
meeting to review elected board comments and make final revisions, but might offer the
benefit of learning of any elected official concerns prior to formal consideration.
Nov-05-96 03: 13P ColQman Gledhill Hargrave 919 732 7997
)OX)RANDUK
TO: Moses Carey, Jr. , Chair
Orange County Board of Co=issioners
and water and Sewer Boundary Task Force Chair
FROM: Michael B. Brough
Robert Epting
Geoffrey E. Gledhill
Ralph D. Karpinos
REt Conceptual Draft Water and Sewer Service Boundary
Agreement
DATE: November 5, 1996
-----------------------------------------------------------------
On behalf of the Water and Sewer Boundary Task Force, you
recently requested a review of the Conceptual Draft Water and
Sewer Boundary Agreement accompanying your request. We have
reviewed the draft agreement, met to discuss our review and agree
on the following points.
1. Whilo there is no axplicit st^t-ntnry nuthnrity for long
term boundary agreements for public utilities, they are
implicitly authorized in one or more places. For example,
Article 20 of Chapter 160A of the General Statutes, G.S. 5 160A-
460 et seq. , authorizes joint undertakings among North Carolina
units of local government, including than Orange Water and Sewer
Authority. Included within the undertakings permitted by
interlocal cooperation agreements are public enterprises. Public
water and sewer services are public enterprises. Any such
interlocal agreement must be of reasonable duration, as ,
determined by the participating units of government. Any
interlocal cooperation agreement must be ratified by resolution
of the governing board of each unit of government participating.
2. A water and sewer boundary agreement should relate to
and be limited to utility boundaries, utility responsibilities
and who makes those determinations. The conceptual draft of the
water and sewer boundary agreement we reviewed contained land use
planning matters that we think should be the subject of an
amendmenp or amendments to the joint Planning Agreement or
included in a comparable cooperative planning agreement.
Limitations on the use of public water and sewer or other water
and sewer service should be in land use planning agreements among
units of local government with land use planning power.
Land use planning involves the exercise of legislative
discretion which generally cannot be restricted by agreement.
orange County and local governments in Orange County have
specific legislative authority to limit the exercise of
Nov-05-96 03: 14P Coleman Gledhill Hargrave 919 732 7997
Memo to Moses Carey, Jr.
Page 2
November 5, 1996
legislative discretion by the use of joint planning agreements.
Chapter 233 of the 1987 Session Laws of the North Carolina
General assembly gave that authority. However, that authority
must be exercised according to the procedures for adopting
planning legislation generally.
3. The concept of "public health emergency, " used in the
draft agreement, needs standards and needs clarification as to
who makes the determination as to whether a public health
emergency exists. it is our view that these are primarily health
issues and that the Orange County Health Director should be
involved in their determination.
4. The draft agreement speaks almost entirely of sewer
matters. There is little or no reference to public water issues
or responsibilities. To the extent that the agreement is
intended to cover public water matters, it might be useful to
include the City of Durham and the Orange Alamance Water System,
a non-profit corporation operating in the central western portion
of Orange County. Further, if public water issues are to be
covered by this Agreement, various existing agreements and
ordinances related to supply, use and conservation of the public
water supply must be taken into consideration.
5. The draft agreement speaks in terms of "first refusal"
opportunities and responsibilities with respect to sewer lines
extended to serve essential public facilities and to address
public health emergencies. We think this/these concepts should
be clarified. That is, is the "first refusal" to serve an
opportunity or a responsibility?
6. We have a concern with that portion of the draft
agreement that relates to "equity issues. " As a general
proposition, water and sewer systems are set up and are operated
as "enterprises. " That is, they are typically designed to be
self--sufficient. However, any attempt to enforce that notion
with respect to a local government with taxing power is
problematic. The taxing power and the use of taxes, like land
use planning, involve the exercise of governmental discretion.
They are uniquely political. we see no way to limit the ability
of any governmental member of this agreement to use its tax
proceeds for any public purpose.. This is the teaching of Plant
Food Contpmny v. City of Charlotte, 214 N.C. 518 (1938) _ The
Plant Food case is the most frequently cited case in North
Nbv-05-96 03: 14P Coleman Gledhill Hargrave 919 732 7997
Memo to Moses Carey, Jr.
Page 3
November 5, 1996
Carolina standing for the proposition that, in governmental
matters, one elected board cannot bind a successor.
copies: Cal Horton, Chapel Hill Town manager
John Link, orange County Manager
Bob Morgan, Carrboro Town Manager
Eric Swanson, Hillsborough Town Manager
William Kerwin, OWASA Executive Director
Greg Feller, Chapel Hill Assistant to the Manager
Gene Bell, Acting Orange County Planning Director
Ed Holland, OWASA Research Administrator
Roger Waldon, Chapel Hill Planning .Director
Roy Williford, Carrboro Planning Director
Tom Hartye, Hillsborough Town Engineer
Paul Thames, Orange County Engineer
Chris Berndt, Chapel Hill Long-Range Planning coordinator
Dave Stancil, Orange County Planner II (Land Use and
Environment)
lsg-6
carey.mem
Nov-05-96 03_ 14P Coleman Gledhill Hargrave 919 732 7997
j ,ts IN TBE 3UPREN F CO ITIM [214 N.C.
T'i.n.V2 I••oOtY t.Ir, tr. i,rt_t1tT.rsclt?�— .�.•
Wo cundlide that the crfmplalint fails to (state fact enffi(:ielit to coy'- .bra
stitute a <-au5e of actir)n ft,r negligence On tlic part of the tlefendalri,a
tt•llich prosif-ceiy caused tltr. injury ev:ul,laittw{ of, and that the Thr
1 demurrer wars properly mstaincal. the ci
elty n
Jndguwnt aflirmrd.
Creek
-. plaint
been r
a AIL:t T1C:tOYRwKS SAt SxlTeili4,�Q aCit,O
CITY OF
YLA\T 1 !OP COdfi: 5 t ii lRT.OT l t for,a+
had g+
�
Vtnutxr, lflirt.! of t1le
t y llerl : .T
a
t0
cause,
! 1. Munlripul Cor{wratiotas A IJ#y—t:ity*tut} routrwt in rs-garti to dotall of in the
a1luflttfatrltttou or=oya:ritot<:ntR1 trotT'r!r ia/ynirilitlt na gr►rrrsUtu aaual � t1QAtfll
exetion. The
ltodp of a t itp Lunt' not hake a cuatrtrt bin4AP l
lVirile the. rpV*,.minX n•erntneutal discTv- cAatrt
1trR'lf or its suet i 3sur with respat. to ttte e�erelse of gr
Lion. it. Mfr bind itself pith tt`sI>r'(t to proorirtarr affairs lie tz>IItrt1*t
f Cal r,the di rliPrtivu t?ritti;nut a•hother ttut enntrar-t. !: lei[1l i
rtinniII,^.for a feral 9 y• r tetary I„na•t.r• but whether Iii fact the subset
,! re#ato, to a gtwertuacntat or I ropT' ..
contruct deprior'r tit`b'aiem"t tul I or its sti oin-1nr of a tilt.% T•tiun a iCll I�JIIr ciLY
Iuebltl Ixdt1}' dr.muuds ttiaT flrir is 1 lr�tartlt. r It 11%.r fill Id tadmiltl-ttratiou
mny
contract for a Tw.rlod S:• C)oe.
of it ,i'rtt'irlttiu22Lfl] pr}Nrr witirit diw-s n9L iuroivt? Lbe c�Cn'1fiC rTf ;OTrril ;
mental diwretluil• f J1lTlalt
for a te-tm of )•coati for urntatcsl of attadtl'
stan--�ItY WAY Cold, ct real plusaG £
from itR wrtvrrNge tllg'[Str nr bt• . Il of It contme
. t Ivy eC?
eTr L: F,t
Tit#. flctsun nos invLirutea b7 IllaiTSttiC f
'! iCnttaTrt mttiiicilMlity tinder wi ich Plaintiff"Arrest try n:tanrr. gltuita:from for Cry
en ant +x.a.-or++;+` dixtbt�:il Ujant fl31d lx1T the. City fl itkiptil:itrll anfugttC boar,l
Ivr tun rrauocrd. ".Cite''city demurred uII the ground[tort IT:t[grra r,rl t.ov inlere-
the cornpiatnt. that the eontracr was Corr Tttt'rt IT}• t-he c#L7+s Drrciou? Kot-
tract rrillmi t.o :i gocernment,t VITrl:tiuu trf not br.
erning bunt•,and that the eOn hArc t
the. city awl t.herrfore 111c cm t rust iainv rte secs C n:L di.-A- ti nCtry g sera- Sllaf tl
and filte ntteeryfa:ut Sv
i r r contract twi.'t[Cd to a driall Of adnixulstrutiun
tnrat:tl pourer. Held:
nn rrrtitttr*ntial ttii+l M.tSIn:,itttt arnl� usunir
of a l;nrrrnmrlltal jtttu:liam iuT nlriuK >"o
3{ fl knalne- 1Tlnrea f i}nt:iutKrl dlscrrtlon,and tltc tta/n•Cr to lil.•tl:r uch I.rrfu- tnbcl•
�i :rrin4ii3iatr:ft bail of the CStS (lotibt,
#{ tract is a uCr<"�r}' jnl-idcltt Lo the Pt'^FierrT1l.rrTtrrt- to dt-If
t XpsrrnzTrrtit, and the denlnrmr %Y14 prrTtw•r1S - Rented
4 �ltsiar
t:lfdrr the arrutrjet in 111tcKtiuII 3t av:iw n°reed that PLiitttitI stwattit er,
rontow sitidl,.e frA,M the +'iTC'f "'•aa-cr.it^ a#ir Ixr c:ri I,i:ent. and I*ctr il SIAM' Ii"
I�slatru:t. n•l:atavl prtSes:arilp to a in1'olt•,
sated snuf Ix'r rou retwovirl• F7c(tt; The in Ofii
wr+ier :aTUI u+ut a seise r'-f t1tC +rtual:r'• :ttuT did nut #ut'nSrr n +tier u! ritY
1 rt/x CL)' ur#lteSn Lbr ta1.•UT1il1>;ref ('. �.;..�tl`i�, CC{nit#it•.itiN of+'it 1'Iir[rt1M.`rty powcr�
b `_
p !
j to Du Millie br :ttc[1rrI1_ ..
Nov-05-96 03: 14P Coleman Gledhill Hargrave 919 732 7997
r
I'.1LL TER-11,
Al-2-Em. 1,c pl:rir,tift fl-mil Cuml,r I•. �'�,rriul Jtrrlgc, at tirt!tr•rubrr 'feria.
tits ' 1113x- of 1(rr,;tr:�1u n,.. 32c1crscrl.
Tltc lrlaiutili allcgvd ill its cun,pini:tt illat it had n:ads a r,;ritt;lrt. kith
tl,r citj• of Chariot lc vvi-cring n l,eriod f,f tt•a }'tr r:s tut,ler w ltir}1 t l,e
�-` rih' :!;:reed at its o„t1 c� xnsf• to del-%t +
• I r !lu ;juc.i;r, from its Sugar
CrctfL dispn<;11 i j;u+t upt,n l,rol,7_rl� cull.trtici(Ill acrd utaiutaiucd (Iry i=
l,rds, to Iry plvridud aitd rnairttainet11 at the esperest< of the sit;; and
plaintiff a��n•,.d ttr r•OrrIV1e the shldLI fro,u the dr-ing beds after it had
been rnuditir,nr,t, as ,peci6,<l in the cvntrarl, Will to pay the city therc-
fur, tv the totlrlagr- in u slattd seLrdnlc; arld titnt the plaintiff
had goer Iv Crealt eipetiwf to put itself in pa.itivn to Carry out its part.
of the contract. It. is nlle(,ed that tllr defeirdant luunicipniitS uitltuut
H or cause, brorlc•hed its vol,travt with l,laintiff in ccrtxin parrirulats set out
in tltr r-runplaint. to tLr great dxn'llge of the pl:lint.15, whit:lc demnrids
clanln�es tl,arrfvr.
tout; The deicndxut drn,ttrred iv t}re rourplaint ulwn tLo ground that tee
cor+trlrt had brert cnlerrd int.v by ol,c city adluini.trativn and a r ubsr-
rat qucnt adminisrration i�brio cued for-its brcnrh, and the contract made
1 r'arK
ritr uirit plaintiff, azi a matter of L•1u, \ tmLj not lee bllrdilig 11pon the
Ukh i subsequent aciministratwn of the
Pity of Charlvttr,tt! 7pon the hrarin , the.d em rr,,r
,tYort rt1, sus taii,ed in
d plaintif a}rpenled.
core- :
Cnc%rran & .11cCfenr•yhan and James A DeLancy for pLaintrff, trp-
'� pellan.►,
Scarlulrougll and R. M. Ilvyd for dcf ufdan.t, uppe'llac.
r tlr-
from 5E twrT1., T. The drfeudant. contends that the contract before na
1o111,t fvr cow,iderntic,,, invulvee those diNCtrtionars pm11•erR of the mnu eipal
from board wiiirj= roust be k.e.t free at. all time
goo- P , to be csr rciyed in the public
uu of
? inrennt; and sines the purvr•rs 06ficerned are of that character, they ear,_
cite nut tat delegated, ausperidrd, Ur erttbarrasecd by contract, k hieh would
,ct•rn- 112te it binding curer upon rucrerding boards. the plaintiff contends
%Slion that the contract involNcs ouly.the proprietary or bn8inets rowere of the
v1Ll` muuicilral corporation, and that the ncrlire invoked id a Irgitimate
' 61• sub'
.1crt of emntrnet which rrtjg}tt extend over a.prriocl of v,.xrs. dire
"1t� doltbt, lrvivel•cr, whether a aimplc rlasy;}iration of that sort is sufficient
to ded in i it ter. question at f.4tuc, since there are enough anomalies pre
theted in either exsc to retake it an inaccurate test of the power to make
:poukl
ailrn-
the contract.
11, ;t It'is trw% as a rule, drat where gu'•crntnrntxl dircr�-tim,ary powers are
f ctt`. u►TOJY'cd a board can make 1w evntrart which would bind its sunves;,urn
to once with respect to the exero;se of thn discretion. dtnon�?t the
Powers 1
` 1r rs Kenrrully runc�•t,lyd to be accompanied by 8uc}t govrrnmetttat
Nov-05-96 03: 15P COletttan Gledhill Har rave 919 732 7997
t.
r.
5l0 TN THE SliPRE 11E COURT. [214 S.
YL.eST 1"0011 (70. x-. C11.111LOTTL _-
diucr,aton, and rvhiclt rnnnot be snslx;tldcd or imitrvllyd by cvatract, arr, liar
usually classed the legislatit•e [?ott'ers t:rf the governing hody—the power
to make ordinances aild decide upon public qllt.-,;l lutis of a iture'ly Kul'ern- lrt:tt
mental character (al)d under this head most be vlasse!l most of the ket'1
strictly govVrturlental (liseretinnnry powers, sinve the body acts as n
whale and usually by ordinance or resolutivu); tire Initrer to lay out to t
nrrtl riiaintalrt streets, to build bridges and viaducts over which they Lim
lead, preserve civil order; fo rrKU];tie r;lrr; (%vhart� potrcr to do d is tLc
given in the charter); to levy taxes, make assessments, awl the like. t,ut
Tlte r are rrientinncd. =imply by way.of illustration and only roughly fuuc
indicate the quality of the poave:r we tire di5cusit,L. ".t linhIie futietiott +legli
is one which is extreiNed by virturr of certain attribute: of sovereignty X. (.
delegated to a city for thr health and prott:rtion of its inhabitants, or 01
the public." McLend r. £laluth, 17-1 lfittn_, 184, 21S \. W., 11'92. 44S.
Where 4oyr:rnttrt`.rltat powrrs of this .kind arc not Invulr'ed or dig• t susta
adcantagr.usly t e r right to otake rclntrart;. otherwise. unobjccr ; the t
:t11r: c1 the
tionable to the law, is olle of the nlvit in,[rorl:lnt i'Witit'111A of municipal sionr
rvverrtrnr-nt. LrataJ504 t'. Third imrilte, 1149 N. l.'., 4z%" 10;'' S. R., 1475. t pI n2
�' LTlld!•
In the adrnirtistrativll of its l,roprit.-tary affair:; the• tommigiivner•s or
emtneilnun of the tO%VU may malts; re:esonable ermtraet.;; hinding upon .f olx•ra
their surces�!vis rimming tirrotlgh a term of rear:. the 1„
The lint? brtwern pon•rr� clasirCel wi goyt•rn,ttr:rrtal nut( tho,t• chin-
find rltc proprietary is nwle too sharpy dr ult, ;lr,d ig gnl,jrat [o a ell:ulge t i S.
of(trout as society a!3lattrrs;un1 ronrrptious of the fttrretivn:+ of Kovi:rn- Iilr�ug;
nieut arr•modified wider its imistet:r dt•lttands. And it may tic;said tbat � do, 1,•
w4h respr!et to the making of evrttr:tcts tltc inlrihition lh7<A not strictly liabilj
ripply n,huru go.. nt to the l,erformnnt•,• of the par- autl tl
ticul:u art IN oo longer meentsury. We
It is not to be snpposecl that bee.-m,(t the _everal Sltl)jrct stay belolt€ rnlitlil
i it) the field of gurermnental potter; uo dctzil of arlmiuigtrativlt may 1>c tact rl.
carried unt by enntmet, or that such co3ltract mum lx, Completed. teitbill wea11
till-. term of the t„ntrarting eouneil- The true teit is tylwth!•r the Con It ig 11
r [rant itself deprives t vl't mittg body or its succe-j-r, !,f ;r ,1isr;r('tiou
} [ r , till! Pat
i tthicl, pnlilie polier dam:123ds .ghuuld lie• It-ft unimpaired. Tt is obcidu" tuine,l
that :t too rigid atlhrrenee to the prinv;L,le xynuld It•ac,r tllc tOwtt r.otivcil su<tail,
nurs,u; a here throw, in the poec+;ion of an nuportattt orn•i ramCStt`1 Ile;•
power without pnit•tlrnl lll0:31i for its mini ltn:thltl To tmdCTL7 kC 1710y:11
i. fill V lalpt>rC;3nt l,tilrl n• work, >I11rP no rt,ut•t•r31 rct,llld t•thil l> ,Isrlf :tlltl �r-p ��,
tuulvrtal:r! t1w [we,jw•1. 14-hell the adil the pt-o,IUCt (•.,. r•.
1n•rltalrs of[xiliticai at•cid,!ut, tnig[lt rrputliatr• tlic ronlr-:u•t :it. %611 darilig
it t [trrforrnruur. 'i� kas rot
1is14
SCt� Lhiuk the [,1•iuril,L; ix snhjl-e'L try :t +urtlu•t• rt•L•lxatiotr. � opiui,,p
detnils in an etttvrin•iw nuderral-cii originally nmlrr ;otcrutnrnt:rl pnn'cr its ter1,
ll
l4
Nov-05-96 03: 16P Coleman Gledhill Hargrave 919 732 7997r
t
FALL •1')::1111, 1111". 521
--- 1LA�N'r 1'Ur,u t.'4 1% t'IIAUL0T7C.
ba1•r beett held tr, Irt• 'illljr-c'tt. crf 1nl;el Contracts, birld1II:, upon tllc St1C
��ors to tllc cvnt.rxct„} ht„l•, ;rn t.ile prim'tIlle thaT tl,r•y hnvc b<rnnlc
=platters of hnsincss polticr or lau.,itr+s iii"'t'et:i„+. S l,u� a rvr tr;lct to
keep a trcet in rcpnir, running for tru r as not ronsidrrrtl off(")-
siTC to t.hr ru)e, nithourh the In-ring alit of flit. rr;tc hr.lnli^ _rncrally
ol-croimntn)
to the <li�orc tintlnry l'rc,trrr. jrxr?t i>ttr lrpkrall C'v. I'.
Uujivillc, 123 Ky., GS4 ;t7 S. W., 31. \trc inn• be prnnittctl to runkr.
the parentltrtirnl utscrtntinu hrre Clint, %%hilt a tder our late tlic 1.tyIng
` out and gradi=tg of atrcet.t, brlt+r,g. tv tllr cxcrri-c: of a fiorcrnlacntal
fatictioll, thy, town Ls, no-ort1lrless, liable for Inlill'y .tui:tnit„�l lhri,ti�h
pegIil;even in kt'epir.; -lit, :itirtrnikt in tef'larir. I�rrl.ef.l v. R. I:., 200
C., 750, t:,tt S. R.. ::;r;,
Our at.terltivil is rallr;l to thr rosy; of .ilrl: r. A•*hrVV 13U it. C.
r 7 48, 114 S. R.. Fi I, isi tt"ltich rertn"err tt•as deilird for injnry avid ileath
sustalI rtCtl throuAll pollution Of tbf IvIltrl-A Iry rt•n Citl, Of ucgl:gcncc In
the operation of n s, tw(,rngi. plant, on the CrUtllad that the rntllreli5
sionrrc of the to11-tt, in the constructintt nild ojl, rntiou of tltc s(,,u•crago
plant, r'crc in thr prrforinaurt of n ptu•ely governmental funetioct,
Under the gesnern) 1',o-rcrc+ giit,n to t«1s-tts anti cities to eonstruot and
r operate setcerage systems, we doubt wherlier it is necessary to invoke
i the Icolice power to sustain cutlh yntl,t,rity, sad it is difficult to rcrnncilr.
Mctz r•. , sherrille, .ar_lrre, .t;th Vv-xter r. Burlington, 162 N. C., 141,
r• i8 S. W., 74 (e)cuhare Asbury v. AtbatstePrIc, :62 1T. C., 217); al-
though n•e do not attempt, te, ditollrb the classiiiration there given. We
t do, hirtCtrer, rSf,rr'4S T14C t,1„uie?n that Ca6t:ti clenlisi�t; solely with the
9 lial,ility of crtltnieipatl corporations for ut-ligei,ec of its wcrtartts or
agents do nut ruts parnllrl ulth varies un-olvin•; the pQivvr to contract,
and their applinsi6ors may become misleatlittg.
We think the purposes of this; particular contract [oust determine it;,
validity, ratbt-.r thou the history incidentnl to the es,terprise and the
c fact that material for the remnvn) t',f which the city Contra kited is the
u
to-railed '`tiludge,” or proelnet of treatment through tLe city ar,wrrn,r.
i
It is ,'here ra mli auce or pim-ritinI nui:tnttrt, and its rninorat rtlis within
n
the rate-gory of situilnr cul,j,:riw of mutract Zvhirh hn.c vftrn brct au.-
1 tairird by the coilrts. Sill-It a centraut for the reulvl•al of garhnge iA
1 3urtained in Balch r. Utica. :.A N. Y. S.. 51'3, 165 V. Y., G;,1, til
13:.17; see Roberts 6'a.11irrlell, `L11 N. Y., 304, Ills N. 8,., 548, Be-
r.
l moral of dt-atl auitnnles: Loucsrilly 1r. Mrible, y4 Icy., 1200, 1 5. W., Goa.
•t
See XrRcatt, v. Frr.ma, 112 i,ai.1.. I5U, 44 I'., 358; Calijurnia j;rrlrlchlyn
X10, v. Sanitary itary Re.( u:liun SCorls. 1W) I.T. S., atlG,
} NVe uannot rec that any govcrnnirntal discretionary power of the city
11672 eoxuprumisrd in the Inak;ltg of this oontrart, and we are of the
opillion that it ennnc,t 1,e arbitrarily or eapri,•iously abandoned during -
r its tertn.
NON 705-96 03: 17P CQIQntan GlQdhill Hargrave 919 732 7997
1�.
f'
sal El T-al. SlTP1tEA1E CUIIRT. L414 �.{'•
———--—_——---- ---
--- 1;UPVLT CO. ——
l)t
1. The defendant a'ontcn(is that the c:oby a iavolres a sale , City, tltis
property whicL could not he lrludr except by aurtitnl, under C. ., 2838• j'lai:
TV apply, this lam v> t}tt: pl'h?nt rage oil that thmry advanced try rho:
j,f,ndartt it would be nm'=ssary to ltare an auction for the salt of nlu3�e ply t
u 1„ it accumulated in sufficieut quantities. The product doe-) ltot appear rrnsa
to it a s:ticublo corn 3 ity earept as something play be M-all"ed frolu it
ill the process of retnor:<l. In the eolttrut;t bettyvtxl these parties the hilt%.
rt•-mAVal of the Alutigr. is rite dare%ailing cntuideratinn :%mid is sufficiently sand
pre+laimisutr+t to eharach girt; the contract n� a,ne of u rciee, not of salt. tbl'
Payment to the defendant was an iveidelttal caving.
I
For thew reAsaotu, we thipk the comPlaialt states .t cause of action
uttd tit(, jtldpient sustainitl; the demurrer is had
Reversed. to 1
t. fell%
ply
tltM
.; Sail
V(fI7l11rR. �- N. $(IIT)lEK sn _IIT.SS CfT.\t17.11TT1 tiOHAit'Ii T. 1tAt
FFtTifxL it>J�t;TF T Comp- \Y. T .. T1 VINC. JI. 1tAlIT. ANSI t
Hard+•BEAUTY SUPPLY CO]ir AN}',Ixc• tilt
1 tF'fird iQ Nucrmvl r, t!Y34.1 atu
a rtlt'Anal cau!ra 1+1�rul+etl7 ire
l'lcttdtnlry a }1i�17tntaltz-r tar aalcjofndlu of N+t td.inz detect.
fell
:i awerrulvtl after AIItsNUpaw of umt'Daitu�al raorttta
thie action Cr Cr)7tlrtrf.'l/L• and dt}rualaut llletl a lai'
rlaiutiff iastitutrd Ira
j a-Oantert-laita-MCKilt1:d:tttta>;rs:tl'tittst liluitttlff for bfor a of eOntsif t Act
to cni,'a�t In t11r smuaC Imtttiue=+ in the satac lan:tlitr for :t ixrlaxl ttf thrn of
i; % miter vartir.. which aefcntlaat half juittatd
yet tbal. Ptahttilf to 1 hr trial•-mart
pl:
had rntt-spimcl t1vet11Cr LO brC:trh tills:ti'r y Lionsuil lt;aw-t tim addit,0110l ill
tite original defendant tat [t1:t a ra,htnt 117 :lZ ttultt
.i :1 MtWtrtClailu .u1C1�'
.A pUrtir-n. and to amueud tits :i v1 trl!'t'u• o �ni:=�r in the sAnte hulit tC-
plalnl.ltf fur brrat'h oC tilt• t run tt•ttieh the dt,zourrvr ]
Ijrid.: Th« autCndmt nt. CiiminatCt! tilt -rvund tI ru ter. tue l:
tr (ttimtliu� of tilt d tnurrvr wa's P 1 Ml t
Tras intrrpttsrtt. :tad tl of
smilrudKl auluCr beitl°sotl'tCirut ra grate:a rani..e of Selina trader a li
it ka ai
cvustrurtion. C-W. tat
ti >s c r,m! Jtula l at 1[ay p;xtz;i Civil di
A.peF.nt. by plaintiffm: from I;r•trJLf ru ~-c
3$rrmeci. p de. .
jarttt, 1834, of �{SCI:LY:cttt-nt:. it
rluintilFs Altix:ali.d froul an order of tlu, ::Dort 1»Ii>tv ctnl.4we t1
fondant Frltun l�eau1v fitlpple COMpanc to file an attteade-d attxt,cr,and
!7 overritllll{; (tiaiutiff,I dcualu•rer (hereto- o.
f.'n/ten a:ui )iruc'I: (ita.rl lv_g fur I,lcunl%/T 3,t1ppr/Califs.
Paul trratyLllrtT, 4l illiant 11•10e.r a,nl I.oLin.aun %1: Jvnre fa)r dxfendaa!
Fatlarn RefluC,C Surr(tly Co.,appellee.
i
t
i
2
0
N
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rn
STATE OF NORTH CAROLINA a
w
SESSION LAW'S AND RESOLUTIONS '
v
0
PASSED BY THE
a
3
1987 GENERAL ASSEMBLY a
J
Q
AT ITS ?
FIRST SESSION 1987 x
a
BEGINNING ON �
a
MONDAY, THE NINTH DAY OF FEBRUARY, A.D. 1987
ua
HELD IN THE CITY OF RALEIGH w
N
J
ISSUED BY
i
SECRETARY OF STATE THAD EURE �
PUBLISHED BY AUTHORITY
0
CHAPTER ,,. Session Laws-.- 1987 Session Laws— 1987 CIIAPTE4 <
section 1113}' be matte contingent upon any necessar• rezonir. of such 14► The methods for amending the agreenitl+t (including the Ul
properly. } g
;tree witl+io which the 1grCenscut will be eflectk and
(b) The authority contaiacd ill this section is in addition to and not ta-shlinntil t e agreement. sn
in limitation of anv other nutllority granted by this Charter or any t (e) if tine city exercises any IegislAlive or administrative powers or
other law,"
' Sec. 2, This act is effective upon ratification. fut►coons on behalf of a county udder (his section• Ilhen the ngrcauent W
authorized uncles' subsection (b) may provide for a 11tca1hs or
In the Gcneral Assembly read three limes and ratified this the i re ieseniatian
of residents of the joint planning area in the same N
22nd day of tMay, 1987, p 1.
manner and to tite same extent as representation of residents of an '0
extraterritorial planning nrea is pruvided for under G,S. 160A-362.
H.H. 73$ CHAPTER 133
x (d) In exercising any power or function authorized Is n
0
'
agree nte15T"ad-0-0-Te pursa:tu tot 1e sectwl►. a clip or con}hey governing' ro
AN ACT TO AUTHORIZE ORANGE COUNTY AND b �' tat ushahv8 agent • may exercise t hat power unction in
MUNICIPALITIES IN THAT COC;NTY TO ENGAGE IN JOINT i C6r ancC wIt h e sc s re�u it- prose tires an a
PLANNING PROGRAMS AND TO ENTER . INTO v 11111 MIU11'emer►ts^" 7
ANNEXATION AGREEMENTS. i "" ; . Article 4A of Chapter 160A of (tic General Statutes is
n
nmendtcl by adding a slew Part b to rend as follows: �
The GrnFrnl AsscrrhLir vj+tfarrtt Cwo/irrn c►orts: "Part 6. ID
Section I. AI'ticle 19 of Chapicr 160A of the Genera Statutes 'futerlocal Agrcentenis Litwiling Annexation Authority. Q
is amended to add it new section to read: " } r60A-58,20. Irllel./tw l Agree- nrs k.i»rirnlg Arillemitiort
" 160A•360.1. Joint Pla,utftlg,--(a) A city and a county may agree Aurilorky.-•(a) The following terms shall have the meaning indicated
that• within a mutually agreed upon geographical area (hereinafter, the when used in this section.
'joint planning area*) 'all of the powers granted by this Article. (1) 'Agreement.' Ali agreement authorized under subsection
including without limitation powers involving the exercise of 1-gislalive (b) of this section. W
discretion, may be exercised by the city on behalf of the county, by (2) tavolantary annexation.' ' Annexation authorized or
tilt county on behalf of tilt city. Or jointly by both the city and coun t lnsdertaken pursuant to Parts us 3 of this Article. �
By way of illustration without limitation. a city and couury may agree (3) 'Voluntary annexation.' Annexation authorized or lu
that, within a defnhed joint planning area, the city play adopt tilt text undertaken pursuant to G.S. 16OA-31. o1- Part 4 of this N
of a zoning or subdivision ordinance on behalf of the couaq' and may Article.
administer and enforce such ordinance, but that all decisions (b) Two or more municipalities or one or more municipalities and U}
establishing or amending the zoning classifications of properties shall one or snore counties ithay enter• into binding w•riuen ,1greemet+IS with N
be jointly determined by the two governing bodies. I each other to set forth areas or boundaries within which or beyond ID
(b) A,nv agreement authorized under subsection (a) shall be wiliest one or more of the participating municipalities will refrain frotu v
reduced to writing and shall be ratified by resolution of the governing eugagutg in aunexatiai► {voluntary, involuntary, or both). Such N
body of each unit that is a parry to the agreement. The agreement t agreements shall be of reasonable duration, not.to exceed 20 years.
shall specify; {c} Hefore engaging its i+tvoluatary annexaton, a municipality that v
(1) The area a' areas within which the power specified in the s is a party to an agreemenl'shnil send to the chief administrative official ID tD
agreement are to be exercised. of every other party to such agreciaent a copy of the notice of intent to
(2) The powers 111,11 are to be exercised and tilt manner its 111itex territory specified i1► G.S. 160A-38(a) or 160A-49(a) (as
which the powers are to be exercised by the parties (i.e., applicable). Hefore engaging in voluntary annexation, a municipality
one unit on behalf of another or jointly). that is a party to an agreement shall send to each other parry to the
(3) The duration of the agreement. agreenicul a copy of the statutorily required notice of public hearing
nn such proposed voluntary annexation. A failure to send the notice
required herein shall s•eudcs' nny anuexntioa undertaken in disregard
310 311
0
CHAPTER _ ., Session Laws 1917
Session Laws— 19$7 Cki'APT►... .34 ' <
of this requirement null and void with respect to any property covered as a copy of Cite annexation ordimtnce and ally offer Ln
under an agreement. j minutes or documents that constitute the record of the
(d) if, on or before life date of a
p.rblic hearing on voluntary annexation procedure. in
annexation, an annexing municipality that is a party to an agrecment c. The court shall fix the date for review of annexation
receives front another party to such agreement a written statement i proceedings under (Iris Part, which review shall 0
protesting the proposed annexation on the MIS of an alleged viotation preferably be within 30 days following the datc of d+e
of such agreement, then an annexation ordinance adopted by the litiol to lite end that revicw shall be expeditious acrd
annexing municipality may not make the annexation effective sooner wthota unnecessary delay's. The review shall he ro
than 30 days following the date.of the adop•ion of such ordinance. conducted by the court w•ilhout a jury. The coull rtav
(e) Monetary damages shall not constitute a remedy for breach of hear oral ar unncuts and receive written t)riefs, and may n
any agreement. However, an alleged brercti of such agreement may ! take eviden a intended to determine whether there has 0
be redressed as provided in this subsection. been a violatio» of a+t agreement authorized under this
(1) Any party to an agreement entered Into under this section section. to
who believes that another party has adopted an invoimntary d. if the court deterntines that then•c has been n viol�ion 3
annexation ordinance in violation of the agreement ma t
g 7 ' of aft annexation agreenten(, it shall declare the �
appeal the annexation in life manner set forth in G.S. anncxatiofl null and void aad may order auv addi0iial _
160A-38 or G.S. 160A-50 (as appropriate), except that the relief that appears appropriate. o
pclitioning party to such an agreement need not c. If an area that has been voluntarily annexed is the 4
demonstrate ►naterial injury ar prejudice beyond the subject of an appeal to the superior, court or appellate
violation of (Ile agreement. If die court concludes that file division on lite effective date of flit ordinance, ilrer Cite _
agreement has becn violated, is shall. In addition to any ordinance shall he deemed amended to ,hake file
other appropriate remedy, renand the ordinance to the effective date with respect to such area the Hate of the =
municipal governing' board for amendment of life final judgment of the superior court or appellate a
annexation boundaries to exclade the area included in division, whichever is appropriate."
tC
violation of the agreement. Scc. 3. This act shall apply only to Orange County and to
(2) Any party to an agreement who believes that another party tit unici>alilies located within that county. a
has adopted a volumary annexation ordinance in violation 1
of Cite agreement stay, not later than 30 days After the Sec, 4. This act is effective(illy upon rctifi ttics . I
Y !n life General Assunbly read three ti»+cs and ratifiecl tlri;. life
adoption of an such ordinance, file a t
P y petition in the :2nd day of tvtay, 1987. ,
superior court of the county in which file municipality is t
located seeking review of file ac ion of the governing board 11 B. 848 CHAPTER 234
adopting such ordinance.
t
a. Such petition shall explicitly state what exceptions arc AN ACT TO EXEMPT THE TOWN Or' KNiGHTDALE FROM t
. taken fa the action of the governing body and what SILL' ItGSTR.1CTIONS ON SATELLIi•E ANNEXATIONS
relict the petitioner seeks. Within 5 days after the UNDER CERTAIN CONDITIONS.
petition is filed with the court, the party seeking review
shall serve copies of Cite actition by cerlificd mail, the General.Isse»rGly of North Carolina t,oarrs:
return receipt requested upon the annexing Stctiun 1. A subdivision ntay be annexed under Part d of
municipality. Article 4A of Chaplet` 160A of the General Statutes notwiihstauditng
b. Within 15 days after receipt of the copy of the petition the litntitation of G.S. 160A-58•I(b)(5) if the:
for review, or within such idditiona) time as the court (1) city annexing the area is providhtg water and sewer service
may allow, the municipal t}" shall transmit to the to the subdivision:
reviewhtg court a copy of the annexation pefifion as well (2) subdivision is totally within lire exh-atcr:ilorial zoning
jurisdiction of file city;
312 31;1
i
c U �f_
WATER AND SEWER SERVICES BOUNDARY TASK FORCE
NOVEMBER 6, 1996
MINUTES
A meeting of the Public Water and Sewer Services Boundary Task Force was
held on Wednesday, November 6, 1996 at 7:30 p.m. in the OWASA Community
Meeting Room, Carrboro, North Carolina.
MEMBERS PRESENT: Orange County Board of Commissioners Moses Carey, Jr. and
Alice Gordon, Chapel Hill Town Council Joe Capowski, Carrboro Board of Aldermen
Jay Bryan, OWASA Board of Directors Pat Davis and Barry Jacobs.
MEMBERS ABSENT: Chapel Hill Town Council Julie Andresen, Carrboro Board of
Aldermen Hilliard Caldwell, Hillsborough Town Commissioner Evelyn Lloyd.
MINUTES: The minutes of the September 4, 1996 meeting were approved, with
changes, by consensus.
ATTORNEY REVIEW OF CONCEPTUAL DRAFT WATER AND SEWER SERVICE
.BOUNDARY AGREEMENT:
County Attorney Geoff Gledhill reviewed the letter dated November 5, 1996 in
which attorneys Michael Bough, Robert Epting, Geoffrey Gledhill and Ralph Karpinos
reviewed this Draft Agreement. A copy of that letter was distributed to each member. It
is made a permanent part of this record, by reference, and is in the Water and Sewer
Boundary Task force file in the Clerk's office. He indicated that any attempt to direct
growth through this agreement would be considered land use planning. For example,
the section which refers to the OWASA long-term Interest Area indicates that public
water and sewer would generally be prohibited in this area. The attorney's consider this
type of statement to be land use planning, therefore, this concept should be in the Joint
Area Planning document rather that this Agreement.
Pat Davis stated that the intent here was to claify current policy, not to set that
policy.
Jay Bryan asked for clarification regarding the legal prohibitions for including
land use references in this document.
Geoff Gledhill indicated that in the view of the attorneys involved these directives
are planning directives and must be handled as such with the agreement of the all of
the elected boards.
Barry Jacobs commented that the intent was that people would be clear about
where water and sewer was to be extended. He felt that if the attorneys saw this as
muddying the water he was fine with deleting it.
���
37
y
Chair Carey indicated that one of the reasons this boundary pros ss was started
was to determine who would respond with water and sewer when needs arose.
Another reason was that determining interest areas would facilitate planning for all of
the entities involved.
Geoff Gledhill indicated that it would be acceptable to have other documents
referred to in this Agreement if the intent was to illustrate the current regulations. He
also indicated that if a Board, such as OWASA, ignored the intent of the agreement, the
recourse of the elected officials would be to replace Board members. This agreement
could be called a Planning and Boundary agreement, however, it would have to be
processed through the elected boards. He clarified that the only way an elected board
can be held accountable to an Agreement is if they formally adopt that Agreement.
They must also recommit to the Agreement as the Board's make-up changes.
Commissioner Gordon suggested having this included in the Joint Planning
Agreement and working with Hillsborough to revise their Joint Planning Agreement.
Chair Carey indicated that a boundary agreement is necessary even if it is
accomplished through the Land Use Planning Agreement.
Council Member Capowski made an analogy with the Chapel Hill Bus Tax. He
pointed out that if the bus system has a financial crises they could divert money to that
system, however, they would be breaking a 25 year old trust and that would not be
done lightly.
Commissioner Gordon requested that the term "public health emergency" be
defined as it is used in this agreement.
Geoff Gledhill indicated that the definition would need to be in the Planning
Agreement. He also mentioned that alternatives listed on on page 11 of the Draft
Agreement could conceiveably limit the elected boards choices. It is not legal to use
this agreement in any way to limit the ability of government to use its tax dollars.
Chair Carey suggested proceeding with a simple boundary agreement while also
proceeding with land use planning amendments with Hillsborough and Chapel
Hill/Carrboro. The land use issues could be postponed and the boundary issues could
be decided upon.
Pat Davis felt that Alternative #1 on page 11 would provide greater flexibility for
the County.
Barry Jacobs suggested that an OWASA/Hillsborough service area agreement
be addressed first.
Jay Bryan stated that he did not agree with the attorney's assessment. He felt
that the boundary and land use issues could be resolved in this document. He felt that
the issues are connected and should not be separated.
Chair Carey felt that the Boundary Agreement would give leverage toward
resolving the land use planning issues.
Pat Davis agreed that the OWASA/Hillsborough Boundary Agreement is an
important first step and would establish a foundation of trust.
Council Member Capowski felt that the resolution of the Boundary Agreement
would not compromise the elected boards in terms of the equity issue. He requested
that the Task Force consider adopting the boundary map prior to resolving the other
issues.
Commissioner Gordon stated that it was more likely that the land use issues
would be compromised than the equity issues.
Chair Carey commented that there was value in formally agreeing on those
areas where consensus could be reached and reaping the benefits of that consensus
while going through the joint planning process.
Barry Jacobs requested that the Task Force continue to work on the water and
sewer boundary issue while continuing to work on the other issues at the next meeting.
Commissioner Gordon indicated that she would be willing to continue working on
the water and sewer issue and if it was resolved to then proceed to the correlative
objectives at the next meeting.
Alderman Bryan mentioned that Geoff Gledhill had suggested that having a
separate agreement be incorporated in the Joint Planning Agreement would be a good
idea.
The meeting was adjourned at 9:30 p.m. The next meeting of the Water and
Sewer will be held on Wednesday, January 22, 1997 at 7:30 p.m. in the Government
Services Center, 200 Cameron Street, Hillsborough, North Carolina.
Respectfully submitted,
Kathy Baker