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HomeMy WebLinkAboutMinutes 11-23-2015 APPROVED 1/21/2016 MINUTES ORANGE COUNTY BOARD OF COMMISSIONERS QUARTERLY PUBLIC HEARING November 23, 2015 7:00 P.M. The Orange County Board of Commissioners met with the Orange County Planning Board for a Quarterly Public Hearing on November 23, 2015 at 7:00 p.m. at the Whitted Building, in Hillsborough, N.C. COUNTY COMMISSIONERS PRESENT: Chair Earl McKee and Commissioners Barry Jacobs, Mia Burroughs, Mark Dorosin, Bernadette Pelissier and Penny Rich COUNTY COMMISSIONERS ABSENT: Renee Price COUNTY ATTORNEY PRESENT: John Roberts and James Bryan (Staff Attorney) COUNTY STAFF PRESENT: County Manager Bonnie Hammersley and Deputy Clerk to the Board David Hunt (All other staff members will be identified appropriately below) PLANNING BOARD MEMBERS PRESENT: Vice Chair Lydia Wegman and Planning Board members, Herman Staats, Paul Guthrie, Laura Nicholson, Andrea Rohrbacher and H.T. "Buddy" Hartley PLANNING BOARD MEMBERS ABSENT: Tony Blake, James Lea, Maxecine Mitchell, Patricia Roberts and Lisa Stuckey Chair McKee called the meeting to order at 7:12 p.m. A. OPENING REMARKS FROM THE CHAIR Chair McKee welcomed everyone to the meeting. He noted that there were two items for the public hearing, to be followed by one work session item. He noted the following items at the Commissioners' places: - PowerPoint for item C-1: Unified Development Ordinance (UDO) Text Amendment Sexually Oriented Businesses - PowerPoint for item C-2: Unified Development Ordinance (UDO) Text Amendment Display of Vehicles at Motor Vehicle Sales/rental Land Uses B. PUBLIC CHARGE Chair McKee dispensed with the reading of the public charge. C. PUBLIC HEARING ITEMS 1. Unified Development Ordinance (UDO) Text Amendment -To review government- initiated amendments to the text of the UDO regarding sexually oriented businesses. BACKGROUND: As defined within NCGS 14-202.10 a sexually oriented business means, "Any businesses, or enterprises that have as one of their principal business purposes, or as a significant portion of their business, an emphasis on matter and conduct depicting, describing, or related to anatomical areas and sexual activities." The County cannot prohibit sexually oriented businesses outright but is afforded the opportunity to regulate their location and certain operational characteristics in an effort to ensure identified secondary impacts are mitigated. Staff is proposing to amend the UDO to establish locational criteria for such businesses including mandatory setbacks from identified sensitive uses (i.e. church, school, single-family residence, etc.) while allowing for their development consistent with applicable State and Federal requirements and prohibiting the consumption and/or sale of alcohol. In support of recommended land use regulations, staff offers the following information with respect to addressing identified secondary impacts. Staff's review of these studies caused a conclusion that the secondary effects of sexually oriented businesses have negative impacts on the surrounding area, in the form of crime and property devaluation, which will be addressed by the proposed regulations. Planning staff is recommending sexually oriented businesses observe a 1,000 ft. setback from each other as well as identified sensitive uses (i.e. church, residence, playground, etc.). Staff is recommending the setback for several reasons, including: a. Referenced studies have found the clustering of such land uses in a given area could attract an undesirable quantity and quality of transients adversely impacting property values, creating blight for adjacent properties, cause an increase in crime and encourages residents and businesses to move elsewhere. b. Courts have consistently found local communities have the legal ability and interest in promoting stable neighborhoods through requiring a setback. This was viewed as being a substantial government interest and the incidental impact of an ordinance regulating such businesses on protected speech. (United States versus O'Brien — US Supreme Court (1976); Young versus American Movie Theaters Inc. — US Supreme Court (1979) ; City of Renton versus Playtime Theaters — US Supreme Court (1986)). The proposed setback does not restrict the activity that can occur within the business. Planning staff is recommending sexually oriented businesses not be located within a structure or on property where alcohol is allowed to be sold or consumed. Staff is recommending the standard for several reasons including: a. Referenced studies have found such land uses could attract an undesirable quantity and quality of transients adversely impacting property values, creating blight for adjacent properties, and causes an increase in crime (most notably prostitution). In some of these studies alcohol is identified as contributing factor. b. Courts have found local communities have the legal ability to restrict or prohibit the consumption/sale of alcohol (Fay versus State Board of Alcoholic Control — NC Court of Appeals (1976). c. State law allows governing bodies to restrict alcohol sales/consumption at sexually oriented businesses. Please refer to Attachment 2. The prohibition on alcohol sales/consumption does not restrict the activity that can occur within the business. Michael Harvey, Orange County Planning, made the following PowerPoint presentation: November 23, 2015 Agenda Item: C-1 Public Hearing-Unified Development Ordinance (UDO) Text Amendment Sexually Oriented Businesses Orange County Planning Department Background: • Local governments cannot prohibit sexually oriented businesses outright. • Courts and State law allow local governments to regulate their location and certain operational characteristics to ensure identified secondary impacts are mitigated. Proposal: • Amend the UDO to allow such businesses within light and medium intensity industrial districts (I-1 and 1-2), — Staff is recommending these districts as there are typically less identified sensitive uses in proximity to industrial developments. • Require mandatory setbacks from identified sensitive uses (i.e. church, school, single- family residence, etc.), and • Prohibit the consumption and/or sale of alcohol. Where Allowed (map) Staff Findings: • Studies have found sexually oriented businesses can have negative secondary impacts on the surrounding area. • Secondary impacts from such businesses can include increased levels of crime, sexual deviance, prostitution, and negative economic impacts. — STAFF COMMENT: These impacts can be addressed by the proposed regulations. • Studies have found consumption of alcohol at sexually oriented businesses contributes to identified secondary impacts including crime, most notably prostitution, and increased blight. — STAFF COMMENT: This impact can be addressed by the proposed regulations. • Proposed regulations are content neutral and do not restrict anyone's rights with respect to engaging in a sexually oriented business activity. Recommendation: Recommendation(s): The Planning Director recommends that the Board: 1. Receive the request. 2. Conduct the Public Hearing and accept public, BOCC, and Planning Board comments. 3. Refer the matter to the Planning Board with a request that a recommendation be returned to the BOCC in time for its February 2, 2016 regular meeting. 4. Adjourn the public hearing until February 2, 2016 in order to receive and accept the Planning Board's recommendation and any submitted written comments. Commissioner Dorosin asked if the Planning Board had done any analysis, within the 1-1 and 1-2 zones, to determine how many parcels of land would meet the requirements of the mandatory setbacks. He asked if there are any locations where these businesses could operate given the restrictions. Michael Harvey said there are currently two properties within Orange County that will allow for the development of sexually oriented businesses. Commissioner Dorosin asked the County Attorney if having only two parcels of available land would survive a legal challenge. James Bryan said it is a risk and the more sites available the less risk there is. He said there is no magic number. He said another variable to consider is the size of the property and whether it could hold only one business, or be subdivided. Michael Harvey said there are currently two properties but that does not prevent more properties from being zoned for the use of sexually oriented businesses. He said existing sexually oriented businesses would still be allowed to operate legally even if future construction were to cause them to fall out of compliance with the required setbacks. Commissioner Dorosin asked if the two currently identified sites could hold more than one business. Michael Harvey said the parcels could be subdivided with two or three businesses. Commissioner Pelissier referred to the risk of alcohol consumption at sexually oriented businesses and asked if there are provisions in place to insure that alcohol is not being consumed in other businesses next door. Michael Harvey said the industrial districts do not allow restaurants or bars as permitted uses of property. Commissioner Rich asked if the wording in the amendment could be changed to "place of worship" rather than "church and/or place of worship". Michael Harvey said yes. Commissioner Rich referred to page 21 and asked for the source of the definition of the "state of nudity". Michael Harvey said from State law and example ordinances throughout the State. Commissioner Rich said the wording of this definition was strange and discriminatory to the female body by identifying the bare female chest as obscene but not the bare male chest as such. Michael Harvey said this stems from the obscenity statute. Commissioner Rich asked if the language must follow the statute. She said the woman's body is constantly being put down and this reinforces that a woman's breasts should not be seen. James Bryan said he could review the issue. Commissioner Rich asked if there could be clarity regarding the definition of male genitalia. Michael Harvey said he is unsure of her question. Commissioner Rich said she does not understand why male genitalia is listed as obscene, and that her teenage sons were naked in their home. Michael Harvey said these definitions are referring to sexually oriented businesses and an effort to keep these businesses operating appropriately. Commissioner Dorosin said the ordinance is designed to keep actual live sex shows from taking place. Commissioner Rich said is struggling with the definition and she would like it to be more general. Michael Harvey said the specificity insures that some of the concerns expressed by Commissioner Rich do not fall into an over ambiguous category, where unnecessary regulation occurs; while allowing for the regulation of activities that have been deemed to be classified as sexually oriented businesses. Commissioner Dorosin said nude dancing cannot be regulated as it is protected by the first amendment; but actual live sex shows can be regulated. Commissioner Rich said the language requires that a woman, who is dancing nude, must cover her breasts. Michael Harvey said the language says that a woman wearing pasties is not considered to be nude, or in a state of nudity. Commissioner Rich said she would like to see the language include both male and female. Commissioner Jacobs asked if alcohol could be sold if the business is a private club. Michael Harvey said he would refer to the attorney, but added that a private club could serve alcohol but a private club could not be a sexually oriented business as alcohol is being sold and consumed. Commissioner Jacobs gave the example of a country club that served alcohol. He asked if a man swimming topless at the country club pool would be in violation of the ordinance, as alcohol is being served and he is shirtless. Michael Harvey said the man would not be at a sexually oriented business or engaging in a sexual activity. Commissioner Jacobs asked if the country club would be a sexually oriented business if the wait staff were to be topless. Michael Harvey said yes. He said if one is engaging in a business practice or activity where one is enjoying a meal while also ogling naked members of the opposite sex then the nature of the business meets the standard of a sexually oriented business. He said getting out of the pool without a shirt has nothing to do with offering a service for compensation or for any form of pay. Commissioner Jacobs asked what would happen if the wait staff were dressed in bathing suits. Michael Harvey said the line gets crossed when a business model starts providing specific activities that meet the definition of a sexually oriented business. He gave the example that the restaurant Hooters does not meet the definition of a sexually oriented business. Commissioner Jacobs said we get closer and closer to a preposterous line. Commissioner Jacobs asked if there are any qualifying properties in the speedway economic development area. Michael Harvey said this property is not zoned industrial. Commissioner Jacobs asked if this area could be rezoned. Michael Harvey said no, not in his opinion. Commissioner Rich asked if there are currently any sexually oriented businesses in Orange County. Michael Harvey said none of which he is aware. Commissioner Rich asked if there are any businesses that would like to apply to come to Orange County. He said there have been several inquiries during his tenure but no one has followed through. He said these businesses cannot be banned but they can be regulated. Commissioner Dorosin referenced an all-girl staff establishment near 1-85. Michael Harvey said this business closed down, and that property is zoned economic development Hillsborough, medium intensity and would not be allowed to reopen as a sexually oriented business. Commissioner Dorosin asked how the business opened in the first place. Michael Harvey said it probably pre-dated zoning. Commissioner Dorosin said there are a lot of negatives about these businesses, especially how women are exploited, and he is glad that the County is regulating them. He added that he does not support the banning of alcohol in these businesses. Chair McKee said a reason for banning alcohol would be to add one more step in the process of establishing a sexually oriented business, thus making it harder to do so. He said he is in favor of banning the sale of alcohol at sexually oriented businesses. A motion was made by Commissioner Pelissier, seconded by Commissioner Rich to refer the matter to the Planning Board with a request that a recommendation be returned to the BOCC in time for its February 2, 2016 regular meeting and to adjourn the public hearing until February 2, 2016 in order to receive and accept the Planning Board's recommendation and any submitted written comments. VOTE: Ayes, 5; Nayes, 1 (Commissioner Dorosin) MOTION PASSES Chair McKee noted that Commissioner Price was unable to attend the meeting this evening. 2. Unified Development Ordinance (UDO) Text Amendment - To review government- initiated amendments to the text of the UDO regarding car sales and rental operations. Michael Harvey reminded the Board that this is the last item that will be heard under the joint public hearing process. He said the UDO was amended, beginning January 1, 2016, and items will begin in Planning Board Meeting. He said this is the last meeting where an item will be referred to the Planning Board. Michael Harvey noted that page 27 of the abstract provides a background; pages 32 through the 37 show some examples of existing automotive businesses; and page 38 shows the proposed text amendment. BACKGROUND: Staff has seen an increase in the number of automotive sale/rental business operating within the County and has begun receiving complaints related to the storage and display of vehicles (i.e. too many cars being displayed, parking over septic fields, parking in required buffer areas, parking in public road rights-of-way, etc.). Currently, the County limits only the total number of cars that can be parked and/or displayed for an automotive sales business located within the Neighborhood Commercial (NC-2) general use zoning district. Staff is proposing to develop comprehensive regulations designed to limit the overcrowding of automotive sales operations within all general use zoning districts where such land uses are permitted. Staff has also provided pictures of existing motor vehicles sales/rental businesses in Attachment 2 to assist in illustrating the concern(s). Michael Harvey made the following PowerPoint presentation: November 23, 2015 Agenda Item: C-2 Public Hearing-Unified Development Ordinance (UDO) Text Amendment Display of Vehicles at Motor Vehicle Sales/rental Land Uses Orange County Planning Department Background • 2012 text amendment petition by local property owner limited display of cars to 12 within Neighborhood Commercial (NC-2) district, • Staff has seen an increase in number of vehicles stored on sites throughout County, • Believe there is room to increase number of allowable cars and require property owner/applicant to definitively delineate car display areas on a site plan to avoid confusion. Proposal: • Amend the UDO to base number of vehicles stored on property on acreage. — Staff is recommending a limit of 25 cars per acre for property zoned Nc-2, EC-5, E-I to address exiting issues. — Staff is recommending a limit of 45 cars per acre for property in urbanizing areas. • Require mandatory designation of vehicle display area, and • Allow for incidental storage of additional vehicles so long as they are screened from view. Example (aerial photo) Staff Findings: • Proposed amendments will create a distinction between vehicles displayed for sale and stored for other purposes, • Will help to address existing congestion at automotive sales operations, • The proposal will create a necessary distinction between automotive sales/rental businesses within urban and non-urban areas of the County, and • Firms up language requiring display/storage areas to be properly delineated and screened. Recommendation: Recommendation(s): The Planning Director recommends that the Board: 1. Receive the request, 2. Conduct the Public Hearing and accept public, BOCC, and Planning Board comments. 3. Refer the matter to the Planning Board with a request that a recommendation be returned to the BOCC in time for its February 2, 2016 regular meeting. 4. Adjourn the public hearing until February 2, 2016 in order to receive and accept the Planning Board's recommendation and any submitted written comments. Commissioner Dorosin referred to the aerial photo and asked if Michael Harvey could please explain the difference between the shaded areas, the not shaded areas, and the red area. Michael Harvey said the aerial photo is of an existing site which attempts to show what would be allowable. He said the shaded area would allow for the display of cars, the un-shaded area would be for parking, and the red area would be where cars could be stored. Commissioner Dorosin asked if the road could be pointed out in the photo. Michael Harvey did so. Michael Harvey said this photo is just a snap shot in time and there may be several options that could meet the requirements. He said the black line on the photo does not indicate a set back. Commissioner Dorosin asked if the cars in the red area would count towards the 25-car limit. Michael Harvey said no. Commissioner Rich said the image on page 32 looks like a lot more than 25 cars. Michael Harvey said yes that is significantly more than 25 cars, which would not be allowed under the proposed text amendment. Michael Harvey said the only zoning district that has a limit on the number of cars that can be displayed is the neighborhood commercial district. He said the example on page 32 is currently acceptable and the proposed amendment would seek to avoid such examples. Commissioner Rich asked if the proprietor of the site shown on page 32 knows about the proposed amendment. Michael Harvey said yes. Chair McKee asked if there is a reason that the limit of land covered by vehicles is set at 20 percent. He said it would make more sense to him to have five car lots with 30 or 40 percent coverage, rather than 15 car lots with 20 percent coverage. He said if there is a demand for a certain number of cars, the need could be met by increasing the number of lots or increasing the density on a smaller number of lots. Michael Harvey said there must be a distinction between zoning designations in the predominantly rural areas of the County versus the predominantly urban areas. He noted that 45 cars per acre are permitted in the economic development districts in the general commercial district. He said the proposed amendment is a compromise. Chair McKee said there should be equity between the lots. He referred to the two examples in the packet and said it would seem more reasonable to allow a bit more density in the number of vehicles rather than forcing the owner to go through what he would assume is a Class A special use permit process to change a business to a commercial zone. Michael Harvey said a number limit had to be chosen and if the Board would like to see a higher number, it should direct staff and the Planning Board accordingly. Chair McKee asked if there is an existing commercial property designation. Michael Harvey said yes and would require going through the rezoning process. Chair McKee said this is to what he was referring. Michael Harvey said this would require a property owner to petition for a legislative hearing asking the Board to rezone their property as general commercial. Commissioner Burroughs asked if there are challenges that exist with the lots having excess cars, such as emergency vehicle access or parking cars over septic tanks. Michael Harvey said concerns include access, use of required parking spaces for the display of vehicles, adequate buffering and open space, quantity of impervious surfaces, etc. He said it is a balancing act between allowing a business to flourish and insuring that there is adequate area to support the business. Commissioner Burroughs said the question is to find the right number of vehicles. Michael Harvey said it is more about finding the right percentage of land usage for cars that can allow for the business to safely operate. Chair McKee referred to one of the properties in the PowerPoint presentation and asked if the storage area would be screened. Michael Harvey said yes. He said the cars in the screened area would be those that are not yet ready for sale and would allow them to be screened from view. Chair McKee said he accepted the rationale for the screening but does not necessarily agree with it. Michael Harvey said the goal of the screened area is to provide a space for vehicles that are not counted in the number of allowable allotment of vehicles displayed for sale per site. Commissioner Rich asked if the building on page 36 is a person's home. Michael Harvey said no, it is a commercial business with a residential property next door. Commissioner Dorosin asked if the idea behind this text amendment is that it is currently too difficult to enforce the existing rules to keep people from parking in the right of way or encroaching on neighboring properties. Michael Harvey said no, the problem is two-fold: the first issue is that there is a feeling that the 12-vehicle limit is too arduous; the second issue is to determine what number of vehicles is acceptable. He said staff picked a number that it deemed reasonable which could be more or less. He said a middle ground is being sought. He said it is also important to insure some level of equity across zoning districts. Commissioner Dorosin asked if a complaint came in regarding the number of cars in an area, where is there is currently no regulation on the number of cars, is there an enforcement mechanism by which the County can go out and address the concern. Michael Harvey said yes. Commissioner Dorosin asked if this is being done. Michael Harvey said yes. Commissioner Dorosin asked if it would be easier to have no vehicle limits across the board and simply respond to concerns as they arise. Michael Harvey said easy is a loaded word. He said this idea would help address the equity issue and would be viewed as more reasonable. He said allowing a storage area for vehicles, not included in the permitted amount of vehicles, would also help. He said he feels the Board suggesting that the limit of 25 vehicles may not be viable. Commissioner Dorosin said he is not so interested in the right number but rather understanding the connection between the harms that are seeking to be addressed and this means of addressing them. Commissioner Dorosin asked if these regulations would only apply to commercial businesses. He asked if he were to fix cars at his home, as a side business, would he be subject to these regulations. Michael Harvey said no he would not be subject to these regulations, with one caveat: he said the goal is not to prevent people from selling a car, but there are prohibitions in the UDO that prohibit one from engaging in an automotive repair business from one's property. Thus working on one's own car is not an issue and selling a car on one's property is not an issue but having 30 or 40 cars puts you into a questionably commercial establishment. Commissioner Rich asked if there is currently a limit to the number of vehicles that may be at one household. Michael Harvey said no and the only prohibition is that junked vehicles cannot be stored on one's property. Commissioner Rich asked if one could have 10 cars parked in one's front yard. Michael Harvey said yes, and he said that would not be a land issue, but rather a general ordinance issue should the Board choose to address it. Paul Guthrie asked if there is any distinction in existing zoning regulations between cars for sale on site, cars stored on site for future sale and cars that are stored at another location, but of the same ownership, waiting to be delivered to the original site or shipped out of state. Michael Harvey said the only current regulation regarding display of vehicles is on NC zoned 2 property, and that limit is 12 vehicles. He said if one is selling vehicles, one must be appropriately zoned and display those vehicles consistent with an approved site plan. He said this proposed ordinance memo will establish limits and allowances across the board in every district where car sales are allowed. He said if one is storing vehicles off site, that property must have been recognized and approved through section 2.5, the site plan review process, to establish a recognized legal land use per the Orange County UDO. Michael Harvey asked if the Board of County Commissioners (BOCC) has a specific number of permissible vehicles in mind. Chair McKee said he would like to ask the Planning Board to consider a higher number. He suggested 45 vehicles across the board. A motion was made by Commissioner Rich, seconded by Commissioner Pelissier to refer the matter to the Planning Board with a request that a recommendation be returned to the BOCC in time for its February 2, 2016 regular meeting and to adjourn the public hearing until February 2, 2016 in order to receive and accept the Planning Board's recommendation and any submitted written comments. VOTE: UNANIMOUS D. ADJOURNMENT OF PUBLIC HEARING A motion was made by Commissioner Rich, seconded by Commissioner Pelissier to adjourn the public hearing at 8:11 p.m. VOTE: UNANIMOUS Chair McKee called the BOCC Work Session to order at 8:22 p.m. NOTE: John Roberts replaced James Bryan as County Attorney. E. BOCC WORK SESSION 1. Impact of 2015 Legislative Updates on Orange County's Erosion Control/Stormwater Programs and Riparian Buffer Regulations —To review how legislative changes made in 2015 have or will impact the County's Erosion Control/Stormwater programs and riparian buffer regulations. Craig Benedict, Orange County Planning Director, said this item was a product of work amongst planning staff and the County Attorney's office. He said there have been meetings over the past month regarding legislative changes that have been passed. He said some of these changes would be reviewed this evening, as well as some short-term actions that will help the County adapt to these new regulations. BACKGROUND: • Session Law (SL) 2015-149 (H634) -An act to clarify the definition of built-upon area (BUA) for purposes of stormwater programs. The basic change per this SL is, for the purposes of implementing stormwater programs, "built-upon area" does not include...a surface of number 57 stone, as designated by the American Society for Testing and Materials, laid at least four inches thick over a geotextile fabric; or a trail as defined in G.S. 113A-85 that is either unpaved or paved as long as the pavement is porous with a hydraulic conductivity greater than 0.001 centimeters per second (1.41 inches per hour)."Please refer to Attachment 4 for a copy of the legislation. This only (at this time in our planning opinion) affects the stormwater calculations for runoff retention which would require less storage. This BUA will likely not be widely used. • Session Law 2015-246 (H44) -An act to reform various provisions of the law related to local government including modifications to riparian buffer standards and changes to the enforcement of voluntary State regulations (i.e. stormwater). A copy of the legislation is contained in Attachment 5. An analysis on the legislations impact on the County's stormwater program in contained in Attachment 1 and Attachment 3 contains our assessment of its impacts on our riparian buffer program. This will greatly affect the existing stormwater program in the Jordan Lake watershed where we implemented rules in advance of pending state regulations (which have been delayed). A primary consideration relates to what regulations should be implemented if current ordinances are determined to be non-enforceable? • Session Law 2015-286 (H765) -An act to provide further regulatory relief to the citizens of North Carolina by providing for various administrative reforms, by eliminating certain unnecessary or outdated statutes and regulations and modernizing or simplifying cumbersome or outdated regulations, and by making various other statutory changes. A copy of the legislation is contained in Attachment 6. An analysis on the legislations impact on the County's stormwater program in contained in Attachment 2. Craig Benedict made the following Power Point presentation: November 23, 2015 Work Session Item E-1 Synopsis of Impact(s) of 2015 State Legislation on Orange County's Erosion Control/Stormwater Program and Land Use Program Orange County Planning Department Nutrient Rules Nutrient Rules Stream Buffer Neuse River Basis - Falls Lake New Dev. Implemented No Issue Under OC Study Existing Dev. Under (UNRBA) Study Cape Fear Basin - Jordan Lake Questionable - Haw River SL (2015-246) (H44) Under OC Study Existing Orange County New Dev. Reg's Implemented Under Study Rules June 1, 2012 Decision Under Review case-by-case January 2017 deadline w/ prior EMC Submittal Orange County Watersheds (map) Area of County Impacted (map) Session Laws: • Session Law (SL) 2015-149 (H634) — Clarifies built-upon area (BUA) RE: Stormwater Permitting. (i.e. 1" Affects design calcs.) — Number 57 ASTM stone with at least four inches over a geotextile fabric is not considered BUA. — Certain trails can also be exempt NOTE: Orange County zoning (Current Planning enforced), still recognizes all gravel/stone as an `IMPERVIOUS SURFACE'area. • Session Law 2015-246 (H44) — Reforms laws related to enforcement of voluntary State regulations (i.e. stormwater nutrient rules) and riparian buffer standards STORMWATER IMPACTS: — North Carolina Department of Environment and Natural Resources Energy Mineral and Land Resources (DEMLR) comprehensive re-review and of stormwater regulations. — County stormwater management program enforces 2012 state suggested Jordan Lake nutrient load thresholds. — However, due to state implementation delays our `Advanced UDO' rules may be subject to review and amendment. Land Disturbance Thresholds (chart) • Session Law 2015-286 (H765)—Omnibus legislation; most impactive language is in paragraph (d) of NCGS 143-214.7, Stormwater Runoff Rules and Programs, is the striking of two words "or exceed". (d) The Commission shall review each stormwater management program submitted by a State agency or unit of local government and shall notify the State agency or unit or local government that submitted the program that the program has been approved, approved with modifications, or disapproved. The Commission shall approve a program only if it finds that the standards of the program equal ord-those of the model program adopted by the Commission pursuant to this section. • Section 4.20.(c) No later than March 1, 2016, a State agency or local government that implements a stormwater program approved pursuant to subsection (d) of G.S. 143- 214.7 shall its current stormwater management program or a revised stormwater management program to the Environmental Management Commission. No later than December 1, 2016, the Environmental Management Commission shall review and act on each of the submitted stormwater management programs with subsection (d) of G.S. 143-214.7, as amended by this section. Streams (map) Michael Harvey continued the PowerPoint presentation: Session Laws • Session Law 2015-246 (H44) RIPARIAN BUFFER IMPACTS: — Local governments are prohibited from adopting, implementing, and enforcing riparian buffer (i.e. stream buffer) regulations that exceed State requirements. Unless... — If a local government wants to be more restrictive, then: • Represents a condition of a permit, certificate, or other approval issued by a Federal or State agency - STAFF COMMENT: Does not apply. • Was enacted prior to August 1, 1997 and meets specific criteria - STAFF COMMENT: Our regulations were not adopted using that criteria. However.... "Submission of a scientific study providing documentation on the need for increased/more restrictive standards based on local physical and environmental conditions." STAFF IS WORKING ON FINALIZING A PROPOSAL ON THE SCIENTIFIC STUDY. STAFF IS ALSO REVIEWING OTHER OPTIONS WITH STATE OFFICIALS TO DEMONSTRATE OUR ORDINANCE IS ALREADY COMPLIANT WITH THE LAW UDO amendments may be inevitable to ensure compliance with new State Law. Recommendation: The Manager recommends that the Board receive the information and provide comments: • Stormwater Rules: Collaborate with the Attorney's Office and seek guidance from NC DEMLR and DEQ as to what "rules Orange County should default to, if we need to amend present UDO Jordan Lake nutrient regulations • Riparian Buffers: Proceed with study to justify present standards. Commissioner Dorosin asked if there were some typical uses for the number 57 ASTM stone. Craig Benedict said it could be used for a temporary parking area, with very intermittent driving. He said this type of gravel is so loose that it would fall out of location if driven upon. He said it is sometimes used where someone may want to have a reservoir underneath sub-grade. Chair McKee added that some agricultural operations, for feeding cattle, use this type of stone to prevent erosion and mud build up and run off. Chair McKee asked if there are regulations that the County may need to adjust. Craig Benedict said amendments or defense of existing practices might be needed. He said stream buffers are one example where this may occur. He said there are some unknowns at this time. Craig Benedict said the cities and counties must explain their stormwater program to the State no later than March 1, 2016. He said the County has asked for guidance from the State regarding this matter. Michael Harvey spoke regarding the riparian buffers, saying the State currently recognizes a 50-foot buffer. He said Orange County enforces a 50-foot buffer with an additional 15 to 30 being added depending on the slope of a property. Michael Harvey said staff is investigating several options of how to proceed next. He said the two options are a scientific study, which will require a budget amendment to complete or proof that the current UDO is in compliance with the State's regulations. He said there has been a comingling of regulations over the last 10 years and resolving these issues will not be straightforward. He said it is the hope that the majority of the County's current buffer program can be maintained as a watershed protection standard. Commissioner Dorosin clarified that the two options are to have a scientific study that vindicates everything or shows proof that these are not riparian buffers, but rather are part of a watershed management program. He asked if the latter option were possible, would only a portion of the current stream buffers be protected. Michael Harvey said yes, it would only protect portions of streams located in a protected or critical watershed boundary. He said the State law allows for certain encroachments and certain clearing of the mandated 50-foot buffer. He said the County's stream buffer regulations allow for certain types of development in a stream buffer, but there is not the overall reaching list that the State currently recognizes. Commissioner Rich asked if any other counties are involved in this process. Michael Harvey said Orange County would probably be the first. He said Orange County is unique in the methodic nature that it took in the 1980s and 1990s to link a lot of protections to the watershed program. Commissioner Rich asked if the cost of the study is known. Michael Harvey said it would cost between $40,000 to $75,000, due to the scientific specificity of the study. He said his reading of the statute shows the requirement of scientific evidence. Commissioner Pelissier asked if much of the justification for the buffers being related to watershed management is due to Orange County being a headwaters county. Michael Harvey said yes. Commissioner Pelissier asked if there are other headwaters counties in the State, and, if so, what is their status. She said perhaps such counties could team up and present a united front to the State. Michael Harvey said there are other counties, but he is unsure which ones they are. He said the Upper Neuse River Basin Association (UNRBA) would be consulted for assistance, as it is coordinating with all of its member counties. He said many other agencies will be partnered with as well, and the hope is that Orange County will not even need to conduct a study. Commissioner Jacobs asked if staff had a chance to get copies of the University Lake Watershed study or the Cane Creek Watershed study. Michael Harvey said these have not been fully read. Commissioner Jacobs suggested that these studies might have some useful information. Chair McKee asked if County Attorney or Manager had any comments. John Roberts said there are appeal procedures in place, and if there is concern that Orange County is exceeding its authority, there is an avenue of appeal. He said the issue is still being studied for full clarity and to insure the County is in full compliance. Chair McKee clarified that the two options he sees are to form a reasonable defense of the County's regulations or to assume the State's standards. He asked if there is a third option. John Roberts said where the state law is not clear, there will be a reasonable defense made to any challenges. He said staff is working on being as prepared as possible. He said the UDO could be amended if necessary. Bonnie Hammersley said staff would continue to rely on the County Attorney's office as the legislation is reviewed and recommendations made. She said budget amendments would be considered if, and when, they are deemed necessary. Chair McKee said the will of the Board seems to be for creating a reasonable defense of the County's current position and regulations. A motion was made by Commissioner Dorosin, seconded by Commissioner Burroughs to adjourn the meeting at 8:53 p.m. VOTE: UNANIMOUS Earl McKee, Chair David Hunt, Deputy Clerk to the Board