HomeMy WebLinkAboutAgenda - 01-23-2014 - 5a 1
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: January 23, 2014
Action Agenda
Item No. 5-a
SUBJECT: Unified Development Ordinance Text Amendment Related to Board of
Adjustment Operation and Procedures — Public Hearing Closure and Action
(No Additional Comments Accepted)
DEPARTMENT: Planning and Inspections PUBLIC HEARING: (Y/N) Yes
ATTACHMENT(S): INFORMATION CONTACT:
1. Comprehensive Plan and Unified Michael D. Harvey, Planner III, (919) 245-2597
Development Ordinance Amendment Craig Benedict, Director, (919) 245-2575
Outline Form (UDO/Zoning 2013-05)
2. UDO Amendment Package
3. Approved November 25, 2013 Quarterly
Public Hearing Legal Ad
4. Excerpt of Draft November 25, 2013
Quarterly Public Hearing Minutes
5. Excerpt of Approved December 4, 2013
Planning Board Minutes
PURPOSE: To receive the Planning Board recommendation, close the public hearing, and
make a decision on a Planning Director initiated text amendment(s) to the Unified Development
Ordinance (UDO) incorporating recent changes in State law related to the Board of Adjustment.
As a reminder, the reconvening of this hearing is solely to receive the Planning Board
recommendation and any additional written evidence submitted since the November 25, 2013
Quarterly Public Hearing. This hearing is not intended to solicit additional input from the public
or the applicant. While the BOCC may ask staff questions related to the review of a given item,
comments from the public shall not be solicited.
BACKGROUND: This item was presented at the November 25, 2013 Quarterly Public Hearing
where staff indicated the amendments were necessary to ensure recent changes to State law
are incorporated into the UDO. The proposed text amendment would:
• Change the votes necessary for the Board to approve a Special Use Permit application
from 4/5t" of members to a simple majority,
• Clarify procedure(s)for requesting and issuing of subpoenas,
• Clarify appeals timeframe for Board of Adjustment decisions to be submitted to Superior
Court, and
• Clarify notification requirements with respect to who is notified of a Board decision.
Agenda packet materials from the hearing can be accessed via the following link-
http://orangecountync.gov/occlerks/1 31125.pd . Please refer to Section C.1 (c) of Attachment 1 for
a synopsis of comments made during the hearing.
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Planning Director's Recommendation: The Planning Director recommends approval of the
proposed UDO amendments based on the following-
i. The UDO amendments are necessary to ensure existing regulations are consistent with
recent changes in State law; and,
ii. The UDO amendments are consistent with the goals and policies of the adopted 2030
Comprehensive Plan.
Planning Board Recommendation: At its December 4, 2013 regular meeting, the Board voted
unanimously to recommend approval of the UDO text amendments consistent with the staff
recommendation. Agenda materials from the December 4, 2013 Planning Board meeting can
be viewed at: http://orangecountync.gov/planning/documents/DecPBPacket-We
refer to Section C.2 (a) in Attachment 1 for additional information. An excerpt of minutes
from the December 4, 2013 meeting are contained within Attachment 5.
Attachment 2 contains the ordinance approving the amendment and the proposed amendments
with additions shown in it d .text and proposed deletions are shown in it d text as
well as footnotes documenting the rationale for the proposed modification.
Procedural Information: In accordance with Section 2.8.8 of the UDO, any evidence not
presented at the public hearing must be submitted in writing prior to the Planning Board's
recommendation. Additional oral evidence may be considered by the Planning Board only if it is
for the purpose of presenting information also submitted in writing. The public hearing is held
open to a date certain for the purpose of the BOCC receiving the Planning Board's
recommendation and any submitted written comments.
FINANCIAL IMPACT: See Section C.3 in Attachment 1.
RECOMMENDATION: The Manager recommends the Board:
1. Receive the Planning Board's recommendation;
2. Close the public hearing; and
3. Approve the text amendment package contained in Attachment 2.
Attachment 1 3
COMPREHENSIVE PLAN / FUTURE LAND USE MAP
AND
UNIFIED DEVELOPMENT ORDINANCE (UDO)
AMENDMENT OUTLINE
UDO / Zoning-2013-05
UDO Text Amendment(s) incorporating recent changes in State law concerning
procedural and notification requirements for the Board of Adjustment
A. AMENDMENT TYPE
Map Amendments
❑ Land Use Element Map-
From-
To:
❑ Zoning Map-
From-
To
❑ Other:
Text Amendments
❑ Comprehensive Plan Text-
Section(s):
❑ UDO Text:
❑UDO General Text Changes
❑UDO Development Standards
❑UDO Development Approval Processes
Section (s)- 1. Section 2.5 4 Site Plan Review_ Procedures and
Timeframes
2. Section 2.10 Variances
3. Section 2.11 Interpretations
4. Section 2.12 Board of Adjustment
5. Section 2.25 Appeals
of the UDO to incorporate recent changes to State law with respect
items tems reviewed and by the Orange County Board of Adjustment
........................................................................................................................................................................................................................................................................................................................................................................................................................................................................
❑ Other:
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B. RATIONALE
1 Purpose/Mission
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In accordance with the provisions of Section 2.8 Zoning Atlas and Unified
Development Ordinance Amendments of the UDO, the Planning Director has
initiated text amendment(s) to incorporate recent changes in State Law, specifically
Session Law 2013-126, related to the processing and review of variance,
interpretation/appeal, and special use permit applications by the Board of Adjustment
(BOA).
The Session Law modifies and updates procedural and notification requirements for the
various applications reviewed by the BOA, including-
1. Allowing for a simple majority vote on appeal and special use permit
applications. The General Statutes previously required a four-fifths vote of
BOA members to grant on all applications before them.
It should be noted variance requests are still required to be approved by a
four-fifths vote.
2. Adds new language spelling out the local government's responsibility for
informing a property owner of public hearings dates/times.
3. Adds new language establishing the manner in which planning decisions can
be advertised. We now have an option of posting a sign on a property where
a zoning decision/determination has been made.
This is in furtherance of allowing for a broader 'notification' of planning
decisions to the general public.
4. Clarifies deadlines for filing appeals of BOA decisions with Superior Court.
5. Modifies language establishing the criteria for the issuance/denial of a
variance.
A copy of the Session Law was provided with the November 25, 2013 quarterly
public hearing packet in Attachment 2. Agenda materials from this meeting can be
viewed utilizing the following link- http://orangecountync.gov/occlerks/131125.pdf.
2. Analysis
As required under Section 2.8.5 of the UDO, the Planning Director is required to:
`cause an analysis to be made of the application and, based upon that analysis,
prepare a recommendation for consideration by the Planning Board and the Board of
County Commissioners'.
The amendments are necessary to ensure our process is consistent with recent changes
in State Law.
It should be noted staff is not proposing modifications of existing notification standards.
State law, for example, requires we notify adjacent property owners of a hearing by the
BOA on a variance, appeal, or special use permit 10 days prior to said meeting via first
class mail.
The County currently sends this notice via certified mail 15 days prior to the hearing. We
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will not be changing this requirement as part of this amendment process.
3. Comprehensive Plan Linkage (i.e. Principles, Goals and Objectives)
N/A
4. New Statutes and Rules
Session Law 2013-126 An Act To Clarify And Modernize Statutes Regarding Zoning
Board of Adjustment
C. PROCESS
1. TIMEFRAME/MILESTONES/DEADLINES
a. BOCC Authorization to Proceed
September 5, 2013
b. Quarterly Public Hearing
November 25, 2013
c. BOCC Updates/Checkpoints
November 5, 2013 — Approved legal advertisement for the November 25, 2013
Quarterly Public Hearing.
October 2, 2013 — Planning Board Ordinance Review Committee (ORC) (BOCC
members can read agenda materials)
November 25, 2013 — Quarterly Public Hearing
This item was reviewed at the November 25, 2013 quarterly public hearing
where there following questions/comment were made-
1. A Board member asked why existing language, as contained in
Section 2.10.3 establishing when a variance is authorized to be
issued, was being modified.
Concern was expressed the new language appeared to make it easier
to obtain a variance as it was no longer required for an applicant to
demonstrate that:
• In absence of the variance, no reasonable use can be made of
the property, or
• That knowledge of an issue, prior to the purchase of property,
no longer constituted a self-created hardship.
STAFF RESPONSE The language was being revised to comply with
revisions to State law as embodied in Session Law 2013-126. While
staff shares the concern we are obligated to ensure our standards
mirror State regulations.
2. A Board member asked staff how the change in voting requirements
for Special Use Permits, specifically allowing for a simple majority
versus a 4/5 1h (i.e. 4 out of 5 members) majority of the Board of
Adjustment to approve a permit, would impact the County.
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The Board member asked if previously denied applications could re-
apply based on the change in voting standards.
STAFF RESPONSE: Section 2.2.8 of the UDO prohibits the submittal
of: 'the same or similar amendment, affecting the same property or a
portion of it' for a period of 1 year from the date of denial.
Applicants who have had their Class B Special Use Permit requests
denied will have to wait the required 1 year to re-file the application,
which would then be subject to these revised voting standards. The
change in voting provisions, however, does not impact the ability of a
`denied' application to be re-filed in advance of established time limits.
This is somewhat of a moot point as there has not been a Class B
Special Use Permit application denied by the Board of Adjustment that
could take advantage of the new voting standard.
3. Both the County Attorney and staff indicated they did not believe the
changes would have a direct impact on the submittal of variance or
special use permit applications.
Staff indicated there had been only 1 variance case reviewed by the
Board of Adjustment in the last 4 years.
Agenda materials from the public hearing can be viewed
at- http://orangecountync.gov/occlerks/131125.pdf.
January 23, 2014 - Receive Planning Board recommendation.
d. Other
2. PUBLIC INVOLVEMENT PROGRAM
Mission/Scope: Public Hearing process consistent with NC State Statutes and
Orange County ordinance requirements
a. Planning Board Review-
October 2, 2013 — Ordinance Review Committee (ORC).
This item was reviewed at the October 2, 2013 ORC meeting where there
were no comments from Board members.
December 4, 2013 — Recommendation
The Planning Board voted unanimously to recommend approval of the
UDO text amendment as proposed by staff.
Agenda materials from this meeting can be viewed utilizing the following
link- http://orangecountync.gov/planning/documents/DecPBPacket-
Web.pdf.
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b. Advisory Boards:
c. Local Government Review:
d. Notice Requirements
Legal advertisement was published in accordance with the provisions of the UDO.
e. Outreach:
❑ General Public:
❑ Small Area Plan Workgroup
❑ Other
3. FISCAL IMPACT
....................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................
Modification of existing language will not require the outlay of additional funds by the
County. Processing of the amendment shall be handled by staff utilizing existing
budgeted funds.
Costs of mailings and/or legal notices shall continue to be offset by application fees
for various projects acted upon by the BOA.
D. AMENDMENT IMPLICATIONS
......................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................
Language within the UDO will be consistent with recent modifications to State law.
......................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................
E. SPECIFIC AMENDMENT LANGUAGE
Please refer to Attachment 2
Primary Staff Contact:
Michael D. Harvey
Planning
(919) 245-2597
mharvey @orangecountync.gov
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Ordinance #:
ORD-2014-001 Attachment 2
AN ORDINANCE AMENDING
THE UNIFIED DEVELOPMENT ORDINANCE OF ORANGE COUNTY
WHEREAS, recent changes in State Law, specifically Session Law 2013-126 signed
into law on June 19, 2013, modified the processing and review of variance,
interpretation/appeal, and special use permit applications by the Board of Adjustment, and
WHEREAS, the County has determined existing language within the UDO needs to
be modified to ensure consistency with these changes, and
WHEREAS, the requirements of Section 2.8 of the Unified Development Ordinance
have been deemed complete, and
WHEREAS, the County has found the proposed text amendments to be reasonably
necessary to promote public health, safety and general welfare arid to achieve the
purposes of the adopted Comprehensive Plan, and
WHEREAS, pursuant to North Carolina General Statute 153A-341 and Section 1.1.7
of the Unified Development Ordinance, the Board of Commissioners of Orange County
has found the proposed text amendments to be consistent with the goals and policies of
the adopted Comprehensive Plan.
BE IT ORDAINED by the Board of Commissioners of Orange County that the Unified
Development Ordinance of Orange County is hereby amended as depicted in the attached
pages.
BE IT FURTHER ORDAINED that this ordinance be placed in the book of
published ordinances and that this ordinance is effective upon its adoption.
Upon motion of Commissioner seconded by
Commissioner , the foregoing ordinance was adopted this
day of , 2014.
I, Donna S. Baker, Clerk to the Board of Commissioners for Orange County, DO
HEREBY CERTIFY that the foregoing is a true copy of so much of the proceedings of said
Board at a meeting held on , 2014 as relates in any way to
the adoption of the foregoing and that said proceedings are recorded in the minutes of the
said Board.
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WITNESS my hand and the seal of said County, this day of
, 2014.
SEAL
Clerk to the Board of Commissioners
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UDO AMENDMENT PACKET NOTES:
The following packet details staff's proposed modifications to existing regulations to incorporate
recent changes in State law with respect to items reviewed and acted upon by the Orange County
Board of Adjustment.
As the number of affected pages/sections of the existing UDO are being modified with this
proposal staff has divided the proposed amendments into the following color coded
classifications:
• Red Underlined Text: Denotes new, proposed text, that staff is suggesting be
added to the UDO
• Red Strikethrough Text:Denotes existing text that staff is proposing to delete
Staff has included footnotes within the amendment package to provide additional
information/rationale concerning the proposed amendments to aid in your review.
Only those pages of the UDO impacted by the proposed modification(s) have been included
within this packet. Some text on the following pages has a large "X" through it to denote that
these sections are not part of the amendments tinder consideration. The text is shown only
because in the full UDO it is on the same page as text proposed for amendment or footnotes from
previous sections `spill over' onto the included page. Text with a large "X" is not proposed for
deletion.
Please note that the page numbers in this amendment packet may or may not necessarily
correspond to the page numbers in the adopted UDO because adding text may shift all of
the text/sections downward.
Users are reminded that these excerpts are part of a much larger document (the UDO) that
regulates land use and development in Orange County. The full UDO is available online at:
http://orangecountync.gov/planning/Ord inances.asp
Article 2: Procedures
Section 2.10: Variances
(G) Effect of Approval
(1) Approval of a CZD is binding on the property and the development an. se of the
subject property shall be governed by the Ordinance requirements - licable to
the specific CZD district and all approved conditions.
(2) The applicant shall comply with all requirements established i r he CZD
Ordinance. Only those uses and structures included in the •ZD Ordinance and
:.proved.site plan shall be allowed on the subject proper .
(H) Zoning Ati. . Designation
Following appro al of the CZD district by the Board of County Commissioners,the
subject property s .II be identified on the Zoning Atlas .y the appropriate district
designation.
(I) Alterations to an Appr• ed CZD
(1) Except as provided 1, Section 6.7.2 .r MPD-CZ projects, changes to approved
plans and conditions o •evelop -nt shall be treated as changes to the zoning
atlas and shall be proces -d a an amendment to such as contained in this
Article.
(2) The Planning Director m-. app .•ve minor changes without going through the
amendment process. he Plannin. Director, at his/her discretion, may elect not
to allow any propos. as a minor cha •e and will forward the detailed application
for changes to t - Planning Board and :oard of County Commissioners for
consideration accordance with the proc_.ures outlined herein.
(3) A minor c :nge is one that will not:
(a) Alter the basic relationship of the propose. development to adjacent
property,
.) Alter the approved land uses,
(c) Increase the density or intensity of development, an or
(d) Decrease the off-street parking ratio or reduce the buffe ards provided
at the boundary of the site.
2.9.3 P blic Hearing and Notification Requirements—CUD and CZD
The requirement for a public hearing shall follow the procedures for a Zoning Atlas Amendm t in
Section 2.8.6. Notice of the public hearing shall follow the procedures in Section 2.8.7.
SECTION 2.10: VARIANCES
2.10.1 Purpose
The procedures of this section authorize the Board of Adjustment to modify or vary regulations of
this Ordinance when strict compliance with the regulation or standard would result in p-rastisal
difficulties or unnecessary hardships upon the subject property.'
2.10.2 Application Requirements
(A) Applications for a Variance shall be submitted on forms provided by the Planning
Department in accordance with Section 2.2 of this Ordinance. Ten copies of the
application and supporting documentation shall be submitted.
(B) Applications shall include:
(1) The section reference, and copy of the existing regulatory language, that is the
subject of the application,
'Language is recommended for deletion in order to be consistent with recent modificaitons to State law.
Orange County, North Carolina—Unified Development Ordinance Page 2-30
Article 2: Procedures 12
Section 2.10: Variances
(2) A description of the specific modification sought by the applicant. For example, if
the request is for a modification of a corner lot setback requirement, the applicant
shall provide the exact reduction of the established corner lot setback requested
as part of the application,
(3) A plot plan, site plan, or other similar document(s)denoting the physical impact
of the proposed request on the parcel,
(4) A narrative outlining the answers to the five required findings detailed within
Section 2.10.3 of the Ordinance justifying the issuance of the variance, and
(5) Copies of any additional information deemed essential by the applicant justifying
the approval of the request.
2.10.3 Authorized Variances
A variance may be approved by the Board of Adjustment in cases involving where astical
difficulties or unnecessary hardships would result from carrying out the strict letter of the
Ordinance,when substantial evidence in the official record of the application supports all of the
following findings:
(A) The alleged hardships or practical difficulties are unique and singular to the-pr-epeFtsof
the applicant and arc not suffered in common with other property similarly
locatedUnnecessary hardship would result from the strict application of the Ordinance. It
shall not be necessary to demonstrate that, in the absence of the variance, no
reasonable use can be made of the property.
{B) The alleged hardships and practical difficulties that would result from failure to grant the
variance extend to the inability-to- se the land in question for any reasonable use in
-- - •• - - - - - £ - - -- - - - -- - - - etho mere
inconvenience and inability to attain a higher financial return.2
{e-}(B) The hardship results from conditions that are preculiar to the property, such as location,
size, or topography. Hardships resulting from personal circumstances, as well as
hardships resulting from personal circumstances, as well as hardships resulting from
conditions that are common to the neighborhood or general public, may riot be the basis
for granting a variance. The variance, if approved, will not substantially interfere with or
injure the rights of others whose property would be affected by approval of the variance.
{0)(C) The variance is in harmony with and serves the general intent and purpose of this
Ordinance and the adopted Comprehensive PlanThe hardship did not result from actions
taken by the applicant or the property owner. The act of purchasing property with
knowledge that circumstances exist that may justify the granting of a variance shall not
������ be regarded as a self-created hardship.•�L.1_` ee - - _ - -- - --- - • - - -- -- •Jering both the
--. _ _--- - _ . .. -_ . e _ -- -*e •- • _•
-al hardships that
- - - - - - - •- _-- - - '- - ---- _ _ _ - - aThe requested
variance is consistent with the spirit, purpose, and intent of the Ordinance, such that
public safety is secured and substantial justice is achieved.3
2 Recent revisions to State Law include language indicating it shall: `not be necessary to demonstrate that, in the
absence of the variance, no reasonable use can be made of the property'. As a result we can no longer have such
language in the UDO to the contrary.
3 Portions of existing subsections(D)and(E)have been combined to reflect wording changes in State law with
respect to the required findings for the granting of a variance. Staff has modified this entire section to ensure
required findings are consistent with new language in State law.
Orange County,North Carolina—Unified Development Ordinance Page 2-31
Article 2: Procedures 13
Section 2.10:Variances
2.10.4 Additional Criteria for Authorized Variances—Special Flood Hazard Area Overlay Zoning
District
In addition to the criteria contained within Section 2.10.3, any application for a variance from the
Special Flood Hazard Area Overlay Zoning District shall abide by the following additional criteria:
(A) Variances may be issued for the repair or rehabilitation of historic structures upon the
determination that the proposed repair or rehabilitation will not preclude the structure's
continued designation as a historic structure and the variance is the minimum necessary
to preserve the historic character and design of the structure.
(B) In considering variances from the requirements of the Special Flood Hazard Area Overlay
Zoning District, the Board of Adjustment shall consider all technical evaluations, all
relevant factors, all standards specified in other sections of this Ordinance, and:4
(1) The danger that materials may be swept onto other lands to the injury of others;
(2) The danger to life and property due to flooding or erosion damage;
(3) The susceptibility of the proposed facility and its contents to flood damage and
the effect of such damage on the individual owner;
(4) The importance of the services provided by the proposed facility to Orange
County;
(5) The necessity to the facility of a waterfront location, where applicable;
(6) The availability of alternative locations, not subject to flooding or erosion
damage, for the proposed use;
(7) The compatibility of the proposed use with existing and anticipated development;
(8) The relationship of the proposed use to the Orange County Comprehensive Plan
and floodplain management program for the area;
(9) The safety of access to the property in times of flood for ordinary and emergency
vehicles;
(10) The expected heights,velocity, duration, rate of rise, and sediment transport of
the flood waters and the effects of wave action, if applicable, expected at the site;
(11) The costs of providing governmental services during and after flood conditions
including maintenance and repair of public utilities and facilities such as sewer,
gas, electrical and water systems, and streets and bridges; and
(12) The request for a variance is not after-the-fact or for a situation of one's own
making.
(C) A written report addressing each of the above factors shall be submitted with the
application for a variance.
(D) Upon consideration of the factors listed above and the purposes of this Ordinance, the
Board of Adjustment may attach such reasonable conditions to the granting of variances
as it deems necessary to further the purposes of this Ordinance.
(E) Variances shall not be issued within any designated floodway or non-encroachment area
if any increase in flood levels during the base flood discharge would result.
(F) Conditions for Variances:
(1) Variances may not be issued when the variance will make the structure in
violation of other Federal, State, or local laws, regulations, or ordinances.
(2) Variances shall only be issued upon a determination that the variance is the
minimum necessary, considering the flood hazard, to afford relief.
4 Standards governing the issuance of a variance within a floodplain are consistent with FEMA requirements.
Applicants are still required to demonstrate compliance with these provisions when requesting a variance.
Orange County,North Carolina—Unified Development Ordinance Page 2-32
Article 2: Procedures 14
Section 2.10:Variances
(3) Variances shall only be issued upon:
(a) A showing of good and sufficient cause;
(b) A determination that failure to grant the variance would result in
exceptional hardship;
(C) A determination that the granting of a variance will not result in increased
flood heights, additional threats to public safety, or extraordinary public
expense, create nuisance, cause fraud on or victimization of the public,
or conflict with existing local laws or ordinances; and,
(d) That the circumstances on the subject property are unique to the subject
property and not to properties in general.
(G) Any applicant to whom a variance is granted shall be given written notice specifying the
difference between the Base Flood Elevation (BFE)and the elevation to which the
structure is to be built and a written statement that the cost of flood insurance will be
commensurate with the increased risk resulting from the reduced reference level
elevation. Such notification shall be maintained with a record of all variance actions.
(H) The Floodplain Administrator shall maintain the records of all appeal actions and report
any variances to the FEMA and the State of North Carolina upon request.
2.10.5 Additional Criteria for Authorized Variances—Watershed Protection Overlay District
(A) Minor variances for dimensional requirements of the Watershed Protection Overlay
District may be approved by the Board of Adjustment in accordance with Section 2.12 of
this Ordinance.
(B) The Board of Adjustment may approve variance applications to allow the use of off-site
septic easements for lots created before January 1, 1994, and for non-conforming lots of
record.
(C) A description of each project receiving a variance and the reason for granting the
variance shall be submitted for each calendar year to the Division of Water Quality on or
before January 1st of the following year.
(D) All other local governments having jurisdiction within the watershed area and the entity
using the water supply for consumption shall be notified of the variance application at
least 15 days prior to action on the application. The Planning Department shall notify
other local governments via first class mail.
(E) Modifications of the Impervious Surface Ratio
Modifications of the Impervious Surface Ratios may be requested through one of the
following provisions:
(1) Through variance procedures of the Board of Adjustment, as described in this
subsection (2.10.5).
(2) Through approval and recordation of a conservation agreement, as provided in
Article 4 of Chapter 121 of the N.C. General Statutes, between Orange County
and a land owner that prohibits development of land in a protected watershed in
perpetuity.
(a) In such cases, a modification of the required impervious surface ratios
may be approved administratively but only to the extent that additional
land in the same watershed is conserved or protected from development.
In such instances, the land that will be subject to a conservation
agreement must be adjacent to the land proposed for development and
for which a modification of the impervious surface ratios is sought.
Orange County,North Carolina—Unified Development Ordinance Page 2-33
Article 2: Procedures 15
Section 2.10:Variances
(i) As an example, a person owning a 40,000 square foot lot and
subject to a 12% impervious surface ratio would be limited to
4,800 square feet of impervious coverage. If the person's plans
called for 5,500 square feet of coverage (a difference of 700
square feet), the recording of a conservation easement on 5,833
square feet of contiguous property would satisfy the impervious
surface ratio requirements. (12%of 5,833 square feet is 700
square feet.)
(b) The conservation easement shall describe the property restricted in a
manner sufficient to pass title, provide that its restrictions are covenants
that run with the land and, in form, be approved by the County Attorney.
(c) The conservation easement shall, upon its recording, be in the place of a
first priority lien on the property(excepting current ad valorem property
taxes) and shall remain so unless, with the approval of Orange County, it
is released and terminated.
(i) Orange County shall require the priority of the conservation
easement to be certified by and attorney-at-law, licensed to
practice law in the State of North Carolina and approved to
certify title to real property by a lending institution (bank or
savings and loan association)doing business in Orange County.
(d) Orange County approval of a release or termination of the conservation
agreement shall be declared on the document releasing or terminating
the agreement.
(I) The document shall be signed by the Orange County Manager,
upon approval of the Orange County Board of Commissioners.
(ii) No such document shall be effective to release or terminate the
conservation agreement until it is filed for registration with the
Register of Deeds of Orange County.
2.10.6 Procedure for Certain Stream Buffer Variance Requests
Requests for variances from stream buffer requirements within 50-feet from the top of the stream
bank shall abide by the following procedure:
(A) The Erosion Control Officer shall make a finding of fact as to whether the following
requirements have been met:
(1) There are practical difficulties or unnecessary hardships that prevent compliance
with the strict letter of the stream buffer protection requirements. Practical
difficulties or unnecessary hardships shall be evaluated in accordance with the
following:
(a) If the applicant complies with the provisions of the stream buffer
requirements, he/she can secure no reasonable return from, nor make
reasonable use of, his/her property.
(i) Merely proving that the variance would permit a greater profit
from the property will not be considered adequate justification for
a variance.
(ii) Moreover,the Erosion Control Officer shall consider whether the
variance is the minimum possible deviation from the stream
buffer requirements that will make reasonable use of the
property possible.
(b) The hardship results from application of the stream buffer requirements
to the property rather than from other factors such as deed restrictions or
other hardship.
Orange County,North Carolina—Unified Development Ordinance Page 2-34
Article 2: Procedures 16
Section 2.10:Variances
(c) The hardship is due to the physical nature of the applicant's property,
such as its size, shape, or topography, which is different from that of
neighboring property.
(d) The applicant did not cause the hardship by knowingly or unknowingly
violating the stream buffer requirements.
(e) The applicant did not purchase the property after the effective date of the
stream buffer requirements, and then request a variance.
(f) The hardship is unique to the applicant's property, rather than the result
of conditions that are widespread.
(i) If other properties are equally subject to the hardship created in
the restriction,then granting a variance would be a special
privilege denied to others, and would not promote equal justice.
(g) The variance is in harmony with the general purpose and intent of the
State's riparian buffer protection requirements and preserves its spirit;
and
(h) In granting the variance, the public safety and welfare have been
assured, water quality has been protected, and substantial justice has
been done.
(B) If the Erosion Control Officer determines that a variance request meets the requirements
in (A)above,then he/she shall prepare a preliminary finding and submit iit to the State's
Environmental Management Commission.
(C) Preliminary findings on variance requests sent to the State's Environmental Management
Commission shall be reviewed by said Commission within 90 days after receipt by the
Director of the Environmental Management Commission.
(D) The purpose of the State Environmental Management Commission's review is to
determine if it agrees with the Erosion Control Officer's findings regarding whether that
the requirements in subsection (A) have been met.
(E) The following actions shall be taken depending on the State Environmental Management
Commission's decision on the variance request:
(a) Upon the State Environmental Management Commission's approval, the
Erosion Control Officer shall issue a final decision granting the variance.
(b) Upon the State Environmental Management Commission's approval with
conditions or stipulations, the Erosion Control Officer shall issue a final
decision, which includes these conditions or stipulations.
(c) Upon the State Environmental Management Commission's denial, the
Erosion Control Officer shall issue a final decision denying the variance.
(F) Requests for appeals of determinations made by the State's Environmental Management
Commission that the requirements of subsection (A) have not been met shall be made to
the State's Office of Administrative Hearings.
2.10.7 Unauthorized Variances
(A) Other than stream buffer variances outside of the first 50-feet from the centerline of a
stream, the Board of Adjustment is not authorized to grant variances to any of the
standards of:
(1) Article 7-Subdivision Design and Improvements,
(2) Section 6.15 -Erosion and Sedimentation Control,
(3) Section 6.14-Stormwater Management, and
(4) Section 6.16-Environmental Impact Reports
Orange County,North Carolina—Unified Development Ordinance Page 2-35
Article 2: Procedures 17
Section 2.11: Interpretations
(B) The Board of Adjustment is not authorized to grant a variance that would permit a use in
a district where that use is neither a Permitted Use nor a Special Use.
2.10.8 Review Procedures
(A) Applications for a Variance shall be reviewed and acted upon by the Board of Adjustment
in accordance with the procedures contained in Section 2.12 of this Ordinance.
(B) The Planning Director shall complete an assessment of the application and provide a
recommendation on the disposition of the application.
(C) The assessment shall be introduced at the hearing and become part of the record.
2.10.9 Findings of Fact
(A) Required findings of fact, as listed in Section 2.10.3, shall be made in the indicated order
by the Board of Adjustment.
(B) The Board of Adjustment is not empowered to grant a variance without an affirmative
finding of fact supported by substantial evidence in the record of proceedings before the
Board.
2.10.10 Conditions of Approval
The Board of Adjustment may impose r aconablc conditions upon the approval of any variance to
insure that the public h alth, safety, and general welfare arc protected and substantial justice
done-appropriate conditions provided that such conditions are reasonably related to the
variance.
2.10.11 Notice Requirements
Notice of matters before the Board of Adjustment shall follow the procedures in Section 2.12.6.
SECTION 2.11: INTERPRETATIONS
2.11.1 Generally
An appeal from an order, requirement, decision or determination of the Planning Director shall be
decided by the Board of Adjustment based upon its findings of fact and to achieve the intent of
this Ordinance. In exercising this power, the Board of Adjustment shall act in a prudent manner
so that the purposes of this Ordinance shall be served. The effect of the decision shall not be to
vary the terms of this Ordinance nor add to the list of Permitted Uses in the districts.
2.11.2 Application Requirements
(A) Applications for an appeal of an interpretation of a decision, file determination, directive,
Notice of Violation, or other similar determination shall be submitted on forms provided by
the Planning Department in accordance with Section 2.2 of this Ordinance. Ten copies of
the application and supporting documentation shall be submitted.
(B) Applications must be received by the Planning Director no later than 30 days after the
decision, file determination, directive, Notice of Violation, or other similar determination
was made.
2.11.3 Stay on Further Proceedings
(A) An appeal to the Board of Adjustment from a decision or determination of the Planning
Director stays all proceedings in furtherance of the decision or determination appealed
from, except as provided herein.
5 Staff is recommending existing language referencing`public health,safety,general welfare' as well as `substantial
justice' be deleted as this wording does not appear in the Statute.
Orange County,North Carolina—Unified Development Ordinance Page 2-36
Article 2: Procedures 18
Section 2.12: Board of Adjustment
(B) An appeal to the Board of Adjustment of a determination or decision of the Planning
Director shall not stay further proceedings in furtherance of the decision or determination
appealed from, if the Planning Director d s-certifies to the Board of Adjustment in
an affidavidt either:
(1) - , -- -- - - -_ • \ - - -. -. imm n+ ril to
A stay would cause imminent peril to life or property, or,
(2) That thoThe situation appealed from is transitory in nature and, therefore an
appeal would seriously interfere with enforcement of the Ordinance.
f3)(C) In either instance, the Planning Director shall place in the determination facts to support
the conclusion if(B)(1)and/or(B)(2) are invoked.
{CND) If(B)(1)and/or(B)(2)are invoked, and approved by the Board of Adjustment
enforcement proceedings shall not be stayed except through the issuance of a restraining
order issued by a court of competent jurisdiction. If enforcement proceedings are not
stayed, the appellant may file a request for an expedited hearing of the appeal.6
2.11.4 Review Procedures
(A) Applications for an appeal of an interpretation shall be reviewed and acted upon by the
Board of Adjustment in accordance with the procedures contained in Section 2.12 of this
Ordinance.
(B) The conduct of the hearing shall be consistent with the provisions of Section 2.12 of this
Ordinance.
(C) The Planning Director shall complete an assessment of the application and provide a
recommendation on the disposition of the application. The assessment shall include all
relevant facts utilized in rendering the disputed decision and the rationale for the
interpretation made by the Planning Director.
(D) The assessment shall be introduced at the hearing and become part of the record.
(E) Upon hearing all evidence associated with the application, the Board of Adjustment shall
close the hearing and render a decision on the matter to affirm, modify, or reverse the
decision of the Planning Director.
2.11.5 Findings of Fact
The Board of Adjustment shall provide a detailed rationale for its decision in the form of an order
to affirm, modify, or reverse the decision of the Planning Director. This order shall provide the
necessary justification for the Board's action based on the testimony and evidence entered into
the record during the hearing.
2.11.6 Notice Requirements
Notice requirements shall follow Section 2.12.6(A). Other subsections of Section 2.2.6 are not
applicable to applications for an appeal of an interpretation.
SECTION 2.12: BOARD OF ADJUSTMENT
2.12.1 General Provisions
(A) The Board shall act on all applications before it.
(B) The Board shall act on any appeal of a Stop Work Order issued by the Planning Director
at its next regularly scheduled meeting or at a special meeting called for that purpose.
6 Staff is adding new language consistent with changes in State law.
Orange County,North Carolina—Unified Development Ordinance Page 2-37
Article 2: Procedures 19
Section 2.12: Board of Adjustment
2.12.2 Quasi-Judicial Proceedings
(A) The Board of Adjustment acts in a quasi-judicial capacity. However, it is not intended
that its proceedings be conducted as formally as those before courts.
(B) The rules of procedure and evidence set forth in this Ordinance shall be followed to
protect the interests of all parties and the public.
(C) The presiding officer shall administer oaths to all witnesses and shall make rulings
necessary to preserve fairness, order, or proper decorum in any matter before the Board
of Adjustment. Any person who, while under bath during a proceeding before the Board,
willfully swears falsely is guilty of a Class I misdemeanor.
(D) Any member of the Board of Adjustment or any interested party may object to, and the
presiding officer may exclude, any evidence, testimony, or statement that is deemed
incompetent, irrelevant, immaterial, or unduly repetitious and therefore fails to reasonably
address the issues before the Board of Adjustment.
2.12.3 Evidence and Testimony
(A) Interested Party
(1) Any interested party may present evidence or testimony, cross-examine
witnesses, inspect documents, and offer evidence or testimony in explanation or
rebuttal.
(2) Any member of the Board of Adjustment may question any interested party.
(3) Persons other than interested parties may make competent, relevant, and
material comments.
(B) Subpoenas
(1) The Board of Adjustment may subpoena witnesses and compel the production of
evidence.
(2) To request issuance of a subpoena, persons with standing as detailed under
NCGS 160A-939 (d), shall make a written request to the chair explaining why it is
• necessary for certain witnesses or evidence to be compelled. The chair shall
issue requested subpoenas in those cases where testimony or evidence is
deemed to be relevant, reasonable in nature and scope, and not oppressive.
(3) The chair shall rule on any motion to quash or modify a subpoena. Decisions
regarding subpoenas made by the chair may be appealed to the full Board.
{24(4) If a person fails or refuses to obey a subpoena issued pursuant to this
subsection,the Board of Adjustment, or the party seeking the subpoena, may
apply to the General Court of Justice for an order requiring that its order be
obeyed, and the Court will have jurisdiction to issue those orders after notice to
all proper parties.
{3)(5) No testimony of any witness before the Board of Adjustment, pursuant to a
subpoena issued in exercise of the power conferred by this subsection, may be
used against the witness in any civil or criminal action, other than a prosecution
for false swearing committed on the examination.
(4)(6) Anyone who,while under oath during a proceeding before the Board of
Adjustment,willfully swears falsely, is guilty of a Class 1 misdemeanor.
2.12.4 Quorum and Vote Required
(A) A quorum of the Board is necessary to conduct any business and shall consist of four
members.
(B) The affirmative vote of four of the members of the Board shall be necessary in order to
effect any variation in this Ordinance:_
Orange County,North Carolina—Unified Development Ordinance Page 2-38
Article 2: Procedures 20
Section 2.13: Exempt Subdivisions
_ - _ -- --•-- _ - _ - .. - _ -
--y administrative
e-- - - - --- --• -• - - --- - ---'red to pass by
-• . - - -- - _e , -- •_ •••• -_ e, •- •
-- _- _ - - s B Special Use
permits, or
(C) A majority of the members shall be required to decide on the issuance of a Class B
Special Use Permit or an appeal application.
2.12.5 Notification of Board Action
(A) Within five working days after Board action, the Planning Director shall have available in
the Planning Department's office a notice of decision of the Board's action.
(B) The Planning Director shall notify the parties to an application or appeal of the Board's
disposition. This includes the applicant, the property owner if different from the applicant,
or any individual who has submitted a written request for a copy prior to the date the
decision becomes effective. $This notice shall be made by registered or certified mail
within five working days of the Board's actions. 9
(C) The Planning Director shall keep a copy of the Board's action on file.
2.12.6 Notice Requirements for Matters Before the Board
(A) The Board shall give notice of matters coming before it by causing notice to be placed in
a newspaper of general circulation in Orange County. The notice shall appear once a
week for two consecutive weeks, the first insertion to be not less than ten days nor more
than 25 days prior to the meeting date. In computing the notice period, the day of
publication is not to be included, but the day of the hearing is to be included.
(B) In the case of application for a Class B Special Use permit or variance the Planning
Director shall give written notice by certified mail to adjacent property owners. This
notice shall be given not less than 15 days prior to the meeting date. Adjacent property
owners are those whose property lies within 500 feet of the affected property and whom
are currently listed as property owners in the Orange County tax records.
(C) The Planning Director shall post on the affected property a notice of the Board meeting at
least ten days prior to the meeting date.
(D) In the case of an appeal of a Stop Work Order issued by the Planning Director, the
Planning Director shall give written notice by certified mail to the property owner, and/or
person(s) engaged in the alleged violation. Notification of adjacent property owners,
posting of property, and publication of a hearing notice is not required.
SECTION 2.13: EXEMPT SUBDIVISIONS IMMO
2.13.1 Generally —"4"4 .1.111
(A) Persons proposing divi • and that so •nstitute a subdivision must request a
determina '•• : -n exempt subdivision status with the - -- • Director. Activities that
e: o constitute a subdivision are found in Section 7.2.1.
Simple majority vote is now all that is necessary to approve a SUP or act on an appeal.
8 State law now allows for individuals to petition the Board of Adjustment requesting notification of any decision.
We are incorporating this allowance with the proposed modification.
9 Staff sends out notice of decisions via certified mail. State law was modified to allow for first-class mail to be
utilized. We are not recommending changing our current procedure as we believe sending decisions via certified
mail ensures we have a record of our actions.
Orange County,North Carolina-Unified Development Ordinance Page 2-39
Article 2: Procedures 21
Section 2.25:Appeals
B) Public Hearing Required
(1) The EIS, along with all comments received during the review period, - all be
presented for public hearing concurrently with the development pr.ect.
(2) If a public hearing before the Board of County Commissioner is not required for
approval of the development project,then a special heari : shall be scheduled.
- hearing shall take place no later than 30 days after e close of the public
revi-. period or receipt of comments from the State •learinghouse, whichever is
later.
(C) Notice of Public He: ing
(1) Notice of the pub' hearing to review th- IS and receive public comment shall
be published at leas wice in a news•=per of general circulation in the county,
stating the time and pl—e of the h--ring.
(2) Said notice shall appear in -it• newspaper for two successive weeks with the
first notice appearing not le: -n ten nor more than 25 days before the date set
for the public hearing. I computi • the notice period, the day of publication is
not to be included, b . he day of the •earing is to be included.
(D) Board of County Com ' sioners Action
(1) The Board o ounty Commissioners shall rec-'ve the EIS and all comments as
informati. only. The information presented may 6- used only to determine
compl.- ce with specific development standards est-.lished in this Ordinance.
(2) N. action shall be taken on the development project unti : ter the EIS has been
•resented to the Board of County Commissioners.
(E) Ef -ct on Other Permits and Actions
Construction or installation of any major development project shall not comme- e until
subsequent to the filing of a Finding of No Significant Impact or acceptance of th- inal
EIS by the Board of County Commissioners.
10
2.25.12.26.1 Generally
Appeal applications shall be filed in accordance with Section 2.2 within 30 days of the decision
being appealed on forms provided by the Planning Department, if applicable.
2.25.22.26.2 Planning Director Decisions
(A) Site Plans or Other Decision Pertaining to this Ordinance
Any decision of the Planning Director regarding a site plan application or other decision
pertaining to this Ordinance not listed in (B)through (D) below may be appealed to the
Board of Adjustment according to the provisions set forth in Section 2.12 of this
Ordinance.
(1) An appeal to the Board of Adjustment from a decision or determination of the
Planning Director stays all proceedings in furtherance of the decision or
determination appealed from, except:
(a) Situations that, in the opinion of the Planning Director, a stay would
cause imminent peril to life and/or property.
10 The appeals section is proposed to be re-numbered as part of a current amendment proposal associated with
Neighborhood Information meetings for governmental uses. This amendment was heard at the September 9,2013
Quarterly Public Hearing and will be decided upon by the BOCC on November 5,2013.
Orange County,North Carolina–Unified Development Ordinance Page 2-68
Article 2: Procedures 22
Section 2.26:Appeals
(b) That the situation appealed from is transitory in nature and, therefore, an
appeal would seriously interfere with enforcement of the Ordinance.
In either instance in (a) and (b) above, the Planning Director shall place in
certificate the facts to support the conclusion.
(B) Exempt Subdivisions
(1) The decision of the Planning Director regarding an exempt subdivision
application may be appealed to the Board of County Commissioners.
(2) The Board of County Commissioners shall have final approval authority, and,
where applicable, all Final Plats shall contain information and/or conditions
approved by the Commissioners.
(3) The Board of County Commissioners in all such appeals shall make findings of
fact in support of its decision. The subdivider shall be notified, in writing, of the
Board's decision.
(C) Minor Subdivisions
(1) The decision of the Planning Director regarding a minor subdivision application
may be appealed to the Board of County Commissioners.
(2) The Board of County Commissioners shall have final approval authority, and,
where applicable, all Final Plats shall contain information and/or conditions
approved by the Commissioners.
(3) The Board of County Commissioners in all such appeals shall make findings of
fact in support of its decision. The subdivider shall be notified, in writing, of the
Board's decision.
(D) Major Subdivisions— Final Plat
(1) The decision of the Planning Director regarding a Major Subdivision Final Plat
application may be appealed to the Board of Commissioners.
(2) The Board of Commissioners shall have final approval authority, and where
applicable, all Final Plats shall contain information and/or conditions approved by
the Board of Commissioners.
(3) The Board of Commissioners in all such appeals shall make findings of fact in
support of its decision.
(4) The applicant shall be notified, in writing, of the Board of Commissioners'
decision.
2.25.32.26.3 Planning Board Decisions
(A) Major Subdivisions—Concept Plan
(1) The decision of the Planning Board regarding Concept Plan Development
Options may be appealed to the Board of Commissioners.
(2) Any notice of appeal shall be filed, in writing,with the Planning Director within 15
days after the date of the Planning Board's decision.
(3) If the appeal involves a plan/map approval, 16 copies of the plan/map shall be
submitted along with the written appeal.
(4) The Board of Commissioners shall have final approval authority, and, where
applicable, all Concept Plan Development Options shall contain information
and/or conditions approved by the Board of Commissioners.
(5) The Board of Commissioners in all such appeals shall make findings of fact in
support of its decision. The applicant shall be notified, in writing, of the Board of
Commissioners'decision within ten days after said decision is made.
Orange County,North Carolina—Unified Development Ordinance Page 2-69
I
Article 2: Procedures 23
Section 2.26:Appeals
2.25.42.26.4 Board of Adjustment Decisions
(A) Every decision of the Board shall be subject to review at the request of any aggrieved
partyanv person who has standing as detailed within NCGS 160A-393(d)by the Superior
Court by proceedings in the nature of certiorari. The appeal to Superior Court must be
filed within 30 days of the availability of the notice of decision (2.12.5(A)).
2.25.52.26.5 Board of County Commissioners Decisions
(A) Quasi-Judicial Decisions
(1) Quasi-judicial decisions made by the Board of County Commissioners pursuant
to the Ordinance shall be subject to review at the request of any any person who
has standing as detailed within NCGS 160A-393(d)aggricvcd party by the
Superior Court by proceedings in the nature of certiorari.
(2) The appeal to the Superior Court must be filed within 30 days of the filing of the
decision of the Board of County Commissioners by the Planning Director or the
delivery of the notice of the decision to the applicant, whichever is later.
(B) Legislative Decisions
(1) Legislative decisions made by the Board of County Commissioners pursuant to
the Ordinance shall be subject to review at the request of any aggrieved party by
the Superior Court.
(2) The appeal to the Superior Court must be filed from the date of adoption of said
Ordinance within the prescribed period below:
(a) 60 days in cases involving the appeal of an Ordinance amending the
Zoning Atlas,
(b) 1 year(365 days) in cases involving the appeal of an Ordinance
amendment the UDO,
(c) 3 years(1,035 days) in cases involving an appeal based on an alleged
defect in the adoption process of an Ordinance amending the UDO.
2.2562.26.6 Water Supply Watershed Critical Area Boundary Line
Appeal applications disputing the Planning Director's decision regarding the location of a Water
Supply Watershed Critical Area boundary line shall be accompanied by:
(A) A survey prepared by a North Carolina registered land surveyor or professional engineer
depicting the differences between:
(1) The locational criteria in Section 4.2,
(2) The official Watershed map on file in the Planning Department, and
(3) The boundary line the applicant asserts is correct.
(B) A detailed explanation describing the differences in the three boundary lines contained in
(A) above.
2.25.72.26.7 Special Flood Hazard Overlay District
(A) Any property owner who has received an order to take corrective action in accordance
with Section 9.7 may appeal the order to the local elected governing body by giving
notice of appeal in writing to the Floodplain Administrator and the clerk within ten
business days following issuance of the final order.
(B) The local governing body shall hear an appeal within a reasonable time and may affirm,
modify and affirm, or revoke the order.
Orange County, North Carolina—Unified Development Ordinance Page 2-70
Article 2: Procedures 24
Section 2.26:Appeals
'2.26.8 Soil Erosion and Sedimentation Control
(A) Appeal of Erosion Control Plan
Except as provided in subsection (D) below, the appeal of a disapproval, approval with
modifications, or approval with conditions of an Erosion Control Plan shall be governed
by the following provisions:
(1) The disapproval of, modification of, or conditions of approval attached to any
by proposed Erosion Control Plan b the Erosion Control Officer shall entitle the
County
person submitting the plan to an appeal of the decision to the Orange y
Planning Director.
(2) If the Planning Director upholds the decision, the person shall be entitled to a
public hearing if such person submits written demand for a hearing within 15
days after receipt of written notice of disapproval, modification, or conditions of
approval.
(B) Hearings
•
(1) Orange County
(a) This sub-subsection pertains to appeals for land-disturbing activities
occurring outside the corporate limits of the Towns of Chapel Hill,
Carrboro, and Hillsborough, and the City of Mebane.
(b) Hearings held pursuant to this sub-subsection shall be conducted by the
Orange County Planning Board within 30 days after receipt of written
demand, as provided for in (A)(2) above.
(c) The Orange County Planning Board shall make recommendations to the
Board of County Commissioners within 30 days after the date of the
hearing on such Erosion Control Plan.
(d) The Board of County Commissioners will render its final decision on any
Erosion Control Plan appeal within 30 days of receipt of the Planning
Board recommendation.
(2) Other than Orange County
(a) This sub-subsection pertains to appeals for land-disturbing activities
occurring within the corporate limits of the Towns of Chapel Hill,
Carrboro, and Hillsborough, and the City of Mebane.
(b) Hearings held pursuant to this sub-subsection shall be conducted by a
designated agency of the appropriate town or city board within 30 days
after receipt of written demand, as provided for in (A)(2) above.
(c) The said designated agency shall make recommendations to the
appropriate town or city board within 30 days after the date of the
hearing on such Erosion Control Plan.
(d) The said appropriate town or city board will render its final decision on
any Erosion Control Plan appeal within 30 days of the receipt of the
recommendations from the said designated agency conducting the
hearing.
(C) Appeal from Local Government's Decision
If the local governing body upholds the disapproval, modification, or conditions of
approval of a proposed Erosion Control Plan following the public hearing, the applicant
shall be entitled to appeal the local government's action to the North Carolina
Sedimentation Control Commission as provided in Section 113A-61(c) of the General
Statutes and Title 15A NCAC 4B.0118.
(D) Appeal of Erosion Control Plan if Disapproval Based on Applicant's Past
Performance
Orange County, North Carolina—Unified Development Ordinance Page 2-71
Article 2: Procedures 25
Section 2.26:Appeals
The applicant may appeal disapprovals issued under the provisions of Section 2.19.11 of
this Ordinance directly to the North Carolina Sedimentation Control Commission.
(E) Appeal of Land-Disturbing Stop Work Order
(1) The person conducting the land-disturbing activity may appeal a stop work order
to the Board of County Commissioners within a period of five days after the order
is issued.
(2) Notice of the appeal shall be given in writing to the Board of County
Commissioners, with a copy to the Erosion Control Officer.
(3) The Board of County Commissioners shall conduct a hearing at their next
scheduled regular meeting at which the appellant and the Erosion Control Officer
or Inspector shall be permitted to submit relevant evidence, and shall rule on the
appeal as expeditiously as possible.
(4) Pending the ruling by the Board of County Commissioners on an appeal, no
further work shall take place in violation of a stop work order.
2.25.92.26.9 Stormwater Management Plan
(A) Appeals of the Erosion Control Officer's decision on a Stormwater Management Plan
shall be made to the Orange County Planning Director.
(B) If the Planning Director upholds the decision, the applicant shall be entitled to a public
hearing if the applicant submits written demand for a hearing within 15 days after receipt
of written notice of disapproval, modification, or conditions of approval.
(C) The hearing shall be conducted by the Orange County Planning Board within 30 days
after receipt of written demand for a hearing.
(D) The Orange County Planning Board shall make recommendations to the Board of County
Commissioners within 30 days after the date of the hearing.
(E) The Board of County Commissioners shall render its final decision on any stormwater
management plan upon which a hearing is requested within 30 days of receipt of the
recommendations from the Planning Board.
2454E12.26.10 Appeal of Stop Work Orders Regarding Stormwater Management Provisions
(A) The person conducting the development activity may appeal a stop work order to the
Board of County Commissioners within a period of five days after the order is issued.
(B) Notice of the appeal shall be given in writing to the Board of County Commissioners, with
a copy to the Erosion Control Officer.
(C) The Board of County Commissioners shall conduct a hearing at their next scheduled
regular meeting at which the appellant and the Erosion Control Officer or Inspector shall
be permitted to submit relevant evidence, and shall rule on the appeal as expeditiously as
possible.
(D) Pending the ruling by the Board of County Commissioners on an appeal, no further work
shall take place in violation of a stop work order.
I2.25.112.26.11 Appeals from Final Decisions Regarding Soil Erosion and Sedimentation Control
Civil Penalties
(A) Appeal from Board of County Commissioners or Other Governing Body Decisions
Appeal from the final decision of the governing body regarding civil penalties assessed
for violations of the soil erosion and sedimentation control provisions of this Ordinance
shall be to the Superior Court of the county where the violation occurred, or in the county
where the violator's residence or principal place of business is located.
Orange County, North Carolina—Unified Development Ordinance Page 2-72
26
Attachment 3
NOTICE OF JOINT PUBLIC HEARING
ORANGE COUNTY BOARD OF COMMISSIONERS
ORANGE COUNTY PLANNING BOARD
A joint public hearing will be held at the Department of Social Services, Hillsborough
Commons, 113 Mayo St., Hillsborough, North Carolina, on Monday, November 25, 2013
at 7:00 PM for the purpose of giving all interested citizens an opportunity to speak for or
against the following items:
1. Unified Development Ordinance (UDO) Text Amendment: In accordance with
the provisions of Section 2.8 Zoning Atlas and Unified Development Ordinance
Amendments of the Unified Development Ordinance, the Planning Board and
Planning Director have initiated an amendment to the text of the Unified
Development Ordinance (UDO).
Text amendments are proposed to Sections 2.22 Home Occupations, 5.4.3
Special Events, and 5.5.3 Home Occupations. The purpose of the amendments
is to change the existing standards to allow for an increase in the number of
square feet that can be used for home occupation purposes, increase the
number of allowable onsite employees, permit larger scale home occupations in
the Agricultural Residential (AR) and Rural Residential (R-1) zoning districts, and
allow for the exemption of special events organized or affiliated with a
governmental or non-profit agency. Proposed amendments will also modify and
clarify existing regulations and definitions associated with home occupations. The
amendments also seek to fund a balance between the trend for small home
based businesses and the typical character and enjoyment of residential
neighborhoods.
Purpose: To review the item and receive public comment on the proposed
amendment.
2. Unified Development Ordinance (UDO) Text Amendment: In accordance with
the provisions of Section 2.8 Zoning Atlas and Unified Development Ordinance
Amendments of the Unified Development Ordinance, the Planning Director has
initiated an amendment to the text of the Unified Development Ordinance (UDO).
Text amendments are proposed to Section 2.7.14 Changes to Approved Plans
and Section 5.10 Standards for Telecommunication Facilities to incorporate
recent changes in State law with respect to the review and processing of
applications proposing the development or modification of telecommunication
facilities.
Session Law 2013-185, adopted June 26, 2013, established new criteria related to
the processing of applications, including:
27
a. Prohibition on requiring information related to the specific need for a
proposed telecommunication facility, including the addition of additional
wireless coverage or capacity, as part of the application package.
b. Local governments cannot require `proprietary, confidential, or other
business information' to justify the need for a new telecommunication
facility.
c. Limits the fee local governments can collect for a third party consultant to
review applications for co-locations.
d. Mandatory review timelines/deadlines for local governments to act on co-
location applications.
The amendments are necessary to ensure Orange County's regulations and
processes are consistent with these changes.
Purpose: To review the item and receive public comment on the proposed
amendment.
3. Unified Development Ordinance (UDO) Text Amendment: In accordance with
the provisions of Section 2.8 Zoning Atlas and Unified Development Ordinance
Amendments of the Unified Development Ordinance, the Planning Director has
initiated an amendment to the text of the Unified Development Ordinance (UDO).
Text amendments are proposed to Section(s) 2.5.4 Site Plan Review —
Procedures and Timeframes; 2.10 Variances; 2.11 Interpretations; 2.12 Board of
Adjustment; and 2.25 Appeals to incorporate recent changes in State law with
respect to items reviewed and acted upon by the Orange County Board of
Adjustment.
Session Law 2013-126, adopted June 19, 2013, modified and updated procedural
and notification requirements for the various applications reviewed by the Board of
Adjustment, including:
1. Changing the votes necessary for the Board to approve a Special Use Permit
application from 415th of members to a simple majority,
2. Clarifying the procedure(s) for requesting and issuing of subpoenas,
3. Clarifying the appeals timeframe for Board of Adjustment decisions to be
submitted to Superior Court, and
4. Clarifying notification requirements with respect to who is notified of a Board
decision.
The amendments are necessary to ensure Orange County's regulations and
processes are consistent with these changes.
Purpose: To review the item and receive public comment on the proposed
amendment.
28
Substantial changes in items presented at the public hearing may be made following the
receipt of comments made at the public hearing. Accommodations for individuals with
physical disabilities can be provided if the request is made to the Planning Director at
least 48 hours prior to the Public Hearing by calling the one of the phone numbers
below. The full text of the public hearing items may be obtained no later than November
15, 2013 at the County website www.co.orange.nc.us at the Meeting Agendas link.
Questions regarding the proposals may be directed to the Orange County Planning
Department located on the second floor of the County Office Building at 131 West
Margaret Lane, Suite 201, Hillsborough, North Carolina. Office hours are from 8:00 a.m.
to 5:00 p.m. Monday through Friday. You may also call (919) 245-2575 or 245-2585 and
you will be directed to a staff member who will answer your questions.
PUBLISH: The Herald Sun News of Orange
November 13, 2013 November 13, 2013
November 20, 2013 November 20, 2013
1 29
• Attachment 4—Excerpt of Draft
BOCC November 25, 2013
1 DRAFT Quarterly Public Hearing Minutes
2 MINUTES
3 ORANGE COUNTY BOARD OF COMMISSIONERS
4 QUARTERLY PUBLIC HEARING
5 November 25, 2013
6 7:00 P.M.
7
8 The Orange County Board of Commissioners and the Orange County Planning Board
9 met for a Quarterly Public Hearing on Monday, November 25, 2013 at 7:00 p.m. at the DSS
10 Office, Hillsborough, N.C.
11
12 COUNTY COMMISSIONERS PRESENT: Chair Barry Jacobs and Commissioners Mark
13 Dorosin, Alice M. Gordon, Bernadette Pelissier, Renee Price and Penny Rich
14 COUNTY COMMISSIONERS ABSENT: Earl McKee
15 COUNTY ATTORNEY PRESENT: John Roberts
16 COUNTY STAFF PRESENT: Interim County Manager Michael Talbert and Deputy Clerk to the
17 Board David Hunt (All other staff members will be identified appropriately below)
18 PLANNING BOARD MEMBERS PRESENT: Chair Pete Hallenbeck, and Planning Board
19 members Maxecine Mitchell, Lisa Stuckey, Paul Guthrie, Herman Staats, Tony Blake, Andrea
20 Rohrbacher, and H.T. "Buddy" Hartley
21 PLANNING BOARD MEMBERS ABSENT: Johnny Randall, James Lea, Stephanie O'Rouke
22
23 3. Unified Development Ordinance (UDO) Text Amendment—To review government-
24 initiated amendments to the Unified Development Ordinance (UDO) to incorporate recent
25 changes in State law with respect to items reviewed and acted upon by the Orange County
26 Board of Adjustment.
27
28 Michael Harvey referred to page 87 of the packet. He reviewed the attachments and the
29 following session law changes:
30
31 • Changing the votes necessary for the Board to approve a Special Use Permit application from
32 4/5th of members to a simple majority,
33 • Clarifying the procedure(s)for requesting and issuing of subpoenas,
34 • Clarifying the appeals timeframe for Board of Adjustment decisions to be submitted to
35 Superior Court, and
36 • Clarifying notification requirements with respect to who is notified of a Board decision. Voting
37 Procedures changed
38
39 Michael Harvey said the language regarding issuance of subpoenas is now detailed in
40 the code.
41 He said the appeals timeframe allows 30 days from the filing of a decision to the filing of
42 an appeal.
43 He said these changes are intended to create consistency with state law, and there is no
44 modification of the operational characteristics of the Board of Adjustment. He said the voting
45 change for special use permits brings it in line with existing County Commissioner's
46 requirements.
47 Commissioner Gordon referred to page 102, section 10.3 and asked why these are
48 necessary. She read the following section: "It shall not be necessary to demonstrate that, in the
49 absence of the variance, no reasonable use can be made of the property."
2 30
1 Michael Harvey said the statute no longer permits this. He assumes this is because
2 people found it difficult to prove no reasonable use of the property. He said applicants now
3 simply have to claim that the desired use is being impeded.
4 Commissioner Gordon referred to item 10.3 C.
5 Michael Harvey said this is direct language from the state law.
6 Commissioner Gordon referred to page 10, and conditions of approval. She said the
7 public health safety and general welfare language has been eliminated.
8 Michael Harvey said that language has been removed from the statute.
9 Commissioner Gordon asked if this means the public safety and general welfare could
10 then be not protected.
11 Michael Harvey said he would not go that far. He said the rationalization could no longer
12 be used to justify the imposition of the condition.
13 Tony Blake asked if this state law applies to existing matters.
14 Michael Harvey said thankfully there are no cases before the Board that pre-date this.
15 He said if there were, this rule would apply. He said there is no grandfathering with this session
16 law.
17 Commissioner Price asked if a person could reapply if they had been previously been
18 denied a special use permit on a 2-3 vote.
19 Michael Harvey said the person would have to wait one calendar year. He said there
20 have been no denials in the past year.
21 Commissioner Dorosin asked what the anticipated impact of this will be.
22 Michael Harvey said he foresees no major impact; it just changes the nature of the
23 game.
24 John Roberts said it is not going to have a substantial impact on Orange County, though
25 it does substantially change the ordinance and the statute.
26 Tony Blake asked if this is about the Hwy 751 development.
27 Michael Harvey said he will not speculate on this. He thinks the changes with respect to
28 voting were intended to bring this in line with what the County Commissioners are already
29 doing.
30
31 A motion was made by Commissioner Pelissier, seconded by Commissioner Price to:
32
33 1. Receive the proposed text amendment(s).
34 2. Conduct the Public Hearing and accept public, BOCC, and Planning Board comment on the
35 proposed amendment.
36 3. Refer the matter to the Planning Board with a request that a recommendation be returned to
37 the Board of County Commissioners in time for the January 23, 2014 BOCC regular meeting.
38 4. Adjourn the public hearing until January 23, 2014 in order to receive and accept the
39 Planning Board's recommendation and any submitted written comments.
40
41 VOTE: UNANIMOUS
42
31
Approved 1/8/2014 Attachment 5—Excerpt of
Approved Planning Board Minutes
1
2 MINUTES
3 ORANGE COUNTY PLANNING BOARD
4 DECEMBER 4,2013
5 REGULAR MEETING
6
7
8 MEMBERS PRESENT: Lisa Stuckey, Chapel Hill Township Representative; James Lea, Cedar Grove Township
9 Representative; Herman Staats, At-Large, Cedar Grove Township; Paul Guthrie, At-Large Chapel Hill Township;
10 Buddy Hartley, Little River Township Representative;Tony Blake, Bingham Township Representative;
11
12 MEMBERS ABSENT: Johnny Randall, At-Large Chapel Hill Township; Andrea Rohrbacher, At-Large Chapel Hill
13 Township; Stephanie O'Rourke, Eno Township Representative; Maxecine Mitchell, At-Large Bingham Township;
14 Peter Hallenbeck(Chair), Cheeks Township Representative; Vacant-Hillsborough Township Representative;
15
16 STAFF PRESENT: Craig Benedict, Planning Director; Michael Harvey, Current Planning Supervisor; Perdita Holtz,
17 Special Projects Coordinator;Ashley Moncado, Special Projects Planner; Tina Love,Administrative Assistant II
18
19 OTHERS PRESENT:Jay Hitchens
20
21 Agenda Item 10: Unified Development Ordinance (UDO) Text Amendment - Board of Adjustment
22 Operation: To make a recommendation to the BOCC on government-initiated amendments
23 to the Unified Development Ordinance(UDO)to incorporate recent changes in State law with
24 respect to items reviewed and acted upon by the Orange County Board of Adjustment. This
25 item was heard at the November 25,2013 quarterly public hearing.
26 Presenter: Michael Harvey,Current Planning Supervisor
27
28 Michael Harvey: Reviewed item.
29
30 MoTIoN by Herman Staats to recommend to the BOCC the proposed amendments for the UDO Text Amendment
31 related to the Board of Adjustment operation and procedures as amended. Seconded by James Lea.
32
33 VOTE: UNANIMOUS
34
1