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HomeMy WebLinkAboutAgenda - 11-30-94 - Ordinance PROPOSED ORDINANCE AMENDMENT ORDINANCE: ZONING ORDINANCE REFERENCE: ARTICLE 6.23 Watershed Protection Overlay Districts (stream and reservoir buffers) ORIGIN OF AMENDMENT: _X Staff Planning Board BOCC Public Other: STAFF PRIORITY RECOMMENDATION: _X_High Middle Low Comment: PUBLIC HEARING DATE: November 30, 1994 PURPOSE OF AMENDMENT: To consider a proposed amendment which would allow for the reduction of setbacks adjacent to streams and reservoirs to the extent necessary to allow development of an existing lot of record. IMPACTS/ISSUES: Attached is a report concerning stream buffer provisions of the Zoning Ordinance,as applied to existing lots of record. There have been a number of complaints concerning the impact of stream and reservoir buffer requirements. In some cases, the required buffers may render an existing lot unbuildable without a variance, since the width of the buffer was not taken into account when the lot was created. This issue creates a particular problem for the existing lots surrounding Lake Orange. On September 6, 1994, the Planning Staff presented to the Board of Commissioners a proposed strategy to address situations which now require a variance of stream or reservoir buffer requirements. The Board of Commissioners referred the proposed strategy to the Planning Board and Ordinance Review Committee for development of an ordinance amendment for the November 28, 1994 public hearing. The proposed strategy included in the attached report would allow the Planning Staff,in consultation with Environmental Health and/or the County Engineer,to issue a zoning compliance permit for development which does not meet the minimum buffer requirements, when specified findings could be documented. In all other cases, a variance request would be presented to the Board of Adjustment according to current procedures. It was also recommended that wells be permitted in stream buffers and that consideration be given to providing greater flexibility in setback requirements in cases where use of a septic pump could be avoided. Planning Staff and the County Attorney met with a group of Lake Orange property owners on September 9 to discuss the proposed strategy. Two major concerns which were expressed involved the classification of existing structures as non-conforming, and the inability to locate a structure in close proximity to the lake, particularly when adjacent houses which existed prior to the regulations are close to the lake. Correspondence which has been received from affected property owners is attached. The proposed amendment is summai rzed as follows: 1) Wells would be allowed in stream buffers; and 2) Nitrification fields would continue to be located 300 feet from reservoirs and outside of stream buffers. Septic tanks and pumps could be located 150 feet from the reservoir or outside of the stream buffer. (The setback for structures is only 150 feet. It is often necessary or preferable to locate the tank in close proximity to the residence.); and 3 3) Existing development would be deemed conforming with respect to watershed standards; and 4) If destroyed, existing structures could be replaced in their current location provided that there is no increase in impervious surface and no increase in any existing encroachment into buffers or setbacks. 5) Setbacks and buffers for development on pre-existing lots could be reduced if all of the following criteria were met: a) The septic system is sized for no more than four bedrooms; and b) septic area and repair can be accommodated on 20,000 square feet or less; and c) encroachment into setbacks is necessary in order to build on the lot; and d) the relative location of the well, septic system and structure maximizes the degree of watershed protection which can be obtained while allowing development of the lot; and e) the amount of encroachment is the minimum that can be obtained while meeting the above criteria; and f) there are no existing water quality problems caused by malfunctioning septic systems within 300 feet of the reservoir. 6) The requirement that the Environmental Management Commission (EMC) approve major exemptions, as required by the State mandate, is clarified. EMC approval of a variance is required only if reduction exceeds 10% of the State minimum. 4 EXISTING AND PROPOSED ORDINANCE PROVISIONS 6.23 EXTRA REQUIREMENTS FOR WATERSHED PROTECTION OVERLAY DISTRICTS 6.23.7 STREAM BUFFERS a) Definition A stream buffer is an area of land adjacent to perennial and intermittent streams which, except as stated below,must remain undisturbed in its natural state. Perennial streams are those streams shown as solid blue lines and intermittent streams as broken blue lines on the USGS Quadrangle maps for Orange County. b) Permitted Uses Within Stream Buffers The following uses are allowed as a matter of right in stream buffers. All other uses are prohibited, except as provided in Article 6.23.10 of this Ordinance. 1) Above-ground and buried utility lines for local distribution of electricity, telephone and cable television service, accessory and appurtenant apparatus such as poles, guy wires, transformers and switching boxes, and individual or community wells. PFivate Individual or community wastewater disposal systems are not permitted in stream buffers. Public water and sewer lines are permitted only as allowed by the Orange County Water and Sewer Policy,and may be located within stream buffers only to the extent necessary to cross the stream buffer as closely as possible to perpendicular. 2) Public and private streets, bridges and railroad rights-of-way, provided that they enter and exit the buffer area as nearly perpendicular as possible. 6.23.8 WATER SUPPLY/SEWAGE DISPOSAL FACILITIES DISTRICT WATER SUPPLY/SEWAGE DISPOSAL UNIV-CA Water supply and sewage treatment systems shall be limited to UNIV-PW individual wells and on-site septic tanks systems or individual on-site CANE-PW alternative disposal systems. CANE-CA U-ENO-CA 5 DISTRICT WATER SUPPLY/SEWAGE DISPOSAL All Watershed Overlay No new treatment system will be permitted where effluent disposal Districts occurs on a separate lot from the source of wastewater generation. Repair systems are permitted on a lot other than the lot which is the source of wastewater generation provided that the Orange County Health Department certifies that: 1. The residence or use has a failing system, AND there is not a suitable location for a repair system on the same lot as the residence or use, or 2. In the case of an unimproved lot created by recorded deed, valid probated will or recorded plat prior to 6/15/91 for UNIV-CA and UNIV-PW, and 1/1/94 for all other watershed overlay districts, there is not a suitable location for a repair system on the same lot as the residence or use. UNIV-CA New septic tanks and their nitrification fields shall be located outside of any stream buffers, or 300 feet from a reservoir or perennial or intermittent stream as shown on the USGS Quadrangle maps, whichever is further. CANE-CA New septic tanks, pump tanks and their nitrification fields U-ENO-CA appurtenances shall be located outside of any stream buffers and at least 100 feet from a perennial or intermittent stream as shown on the USGS Quadrangle maps, and at least 388 150 feet from a reservoir. New nitrification fields shall be located outside of any stream buffers and at least 100 feet from a perennial or intermittent stream as shown on the USGS Quadrangle maps, and at least 300 feet from a reservoir. UNIV-PW New septic tanks and their nitrification fields shall be located CANE-PW outside of any stream buffers and at least 100 feet from a perennial U-ENO-PW or intermittent stream as shown on the USGS Quadrangle maps. HYCO-PW LITTLE-PW BACK-PW HAW-PW JORDAN-PW L-ENO-PW 6.23..10 APPLICABILITY a) Existing Development Existing development is not subject to the rcquir-emeate of this Article. Existing under North Carolina zoning law. 6 For the purpose of determining compliance with or applicability of Article 6.23 of this Ordinance,existing development is defined as a residential or non-residential structure which was constructed prior to January 1, 1994; or 2Z was constructed in accordance with a valid building permit issued prior to January 1, 1994; or was included as part of a Site Specific Development Plan approved by the Board of Commissioners prior to January 1, 1994; or had otherwise established a vested right under North Carolina Zoning law prior to January 1, 1994. Existing development is hereby deemed to be conforming with respect to requirements of Article 6.23 of this Ordinance. b) Redevelopment -. - - - - - . -... . _ eater stormwatcr control than the previous development. The rebuilding or replacement of residential or non-residential structures which are defined as existing development according to Article 6.23.11a is allowed,provided that the rebuilding or replacement does not result in an increase in the amount of impervious surface, and does not encroach any farther into stream buffers or setbacks from reservoirs than the previous development. A structure which is rebuilt or replaced in accordance with these provisions is deemed conforming with respect to setbacks from streams and reservoirs required by Articles 6.23.7 and 6.23.8 of this Ordinance. c. Existing Lots An existing lot, for the purpose of determining compliance with Article 6.23, is defined as a lot which was created prior to January 1, 1994. Stream buffers as required by Article 6.23.7, and setbacks for septic systems as required by Article 6.23.8 may be reduced to the extent necessary to allow development of the lot, provided that all of the following criteria are met: 1. The septic system is sized to serve no more than four bedrooms; and 2. The septic tank, drainfield and repair area (where required) can be accommodated on 20,000 square feet of area or less; and 3. The Orange County Planning Staff, in consultation with Orange County Environmental Health and/or the Orange County Engineer has determined that encroachment of the structure into the stream buffer and/or encroachment of the septic system or repair area into the stream buffer or reservoir setback is necessary in order to provide adequate area for septic disposal and repair while maintaining required separations between wells, septic systems, structures and property lines; and 4. The Orange County Planning Staff, in consultation with Orange County Environmental Health and/or the Orange County Engineer,has determined that the 7 relative locations of the well, septic system and structure maximize the amount of watershed shed protection that can be achieved while allowing development of the lot. Generally, an exception to setbacks for repair area is preferable to an exception for the initial septic system,and encroachment of structures or gravity septic systems into the setback is preferable to the installation of a septic system pump. 5. The amount of encroachment into the stream or reservoir buffer is the minimum amount which can be obtained while meeting the above criteria. 6. All of the above criteria are met and the lot is located adjacent to a water supply reservoir, and Orange County Environmental Health has determined that there are no existing water quality problems in that reservoir which can be attributed to malfunctioning septic systems within 300 feet of the normal pool elevation. 6.23.11 ADMINISTRATION a) Appeals Decisions of the Zoning Officer and County Engineer in the implementation of this Article may be appealed to the Orange County Board of Adjustment in accordance with Article 2.3.7 of this Ordinance. b) Variances Development activities may be granted minor variances by the Board of Adjustment in accordance with Article 2.3.6 of this Ordinance. A variance which results in one or more of the following shall be considered a major exemption, requiring approval by the Environmental Management Commission. 1. the complete waiver of a management requirement; 2. the relaxation by more than ten percent of any management requirement that take° the form of a numerical standard; and the relaxation of any management requirement that takes the form of a numerical standard to less than 90% of the minimum required by State mandate. 3. the relaxation of any management requirement that applies to a development project requiring construction of a BMP. A description of each project receiving a variance and the reason for granting the variance shall be submitted to the Commission on an annual basis. All other local governments having jurisdiction within the watershed area and the entity using the water supply for consumption shall be notified of the proposed exemption. ********************************** ORDINANCE REVIEW SUBCOMMITTEE: October 10, 1994 PLANNING BOARD REVIEW: BOCC REVIEW: 8 APPLICATION OF STREAM BUFFER PROVISIONS ON EXISTING LOTS OF RECORD DESCRIPTION OF PROBLEM Article 6.23.7b of the Zoning Ordinance requires that new structures and septic systems be located outside of stream buffers. Outside of watershed critical areas, the width of the buffer ranges from 50 feet to 150 feet, depending on slope, and is measured from the edge of the floodplain. Within watershed critical areas, there is no upper limit on the width of the buffer. Article 6.23.7e of the Zoning Ordinance requires that new structures be located at least 150'from a reservoir, or outside of the stream buffer, whichever is greater. Article 6.23.8 of the Zoning Ordinance requires that septic systems be located at least 300'from a reservoir, 100' from a stream, or outside of the stream buffer, whichever is greater. The current watershed regulations, which implemented the State mandate, became effective on January 1, 1994. At that time, the Orange County portions of the Lower Eno,South Hyco Creek, Haw River and Jordan Lake Watersheds were designated as protected watersheds for the first time. Also, the portions of the Back Creek, Upper Eno, Flat River, South Hyco Creek and Little River Watersheds in Cedar Grove and Little River Townships, which were previously designated as protected watersheds only in the Comprehensive Plan, were made subject to requirements of the watershed protection overlay districts through the zoning of those townships. As a result, existing lots on which a stream is located, in most of Little River, Cedar Grove and Eno Townships and a small portion of Chapel Hill and Bingham Townships, have recently (as of 1/1/94) been made subject to stream buffer requirements. In some cases,the application of these setbacks may render an existing lot unbuildable without a variance, since the width of the buffer was not taken into account when the lot was created. For example, the Bellechene East Subdivision, located adjacent to Lake Orange, was approved prior to the zoning of Cedar Grove Township and the application of watershed protection standards. Eighteen of the 30 lots are located entirely or almost entirely within 300 feet of Lake Orange, and would be unbuildable if the 300' septic system setback were applied. Most of the lots surrounding Lake Orange are now non-conforming and may be unbuildable without a variance if the 300' septic setback and 150' building setback are applied. The same problem can arise with regard to stream buffers in cases where the lot was created prior to the current stream buffer requirements. The extent of potential problems adjacent to streams is difficult to identify because the lots which could potentially be impacted cover a large geographic area. The remedy available at this time is for the property owner to seek a variance of the setback requirements to the extent necessary to develop the property. An amendment to the Zoning Ordinance was presented for public hearing on February 28, 1994 and would have allowed a reduction in the septic and building setbacks on lots adjacent to reservoirs which were created prior to January 1, 1994 to the extent necessary to build on the property, provided that septic systems and structures remained outside of stream buffers, and the septic system remained at least 100 feet from the reservoir (as required by the State mandate). The amendment was proposed in an effort to address the concerns expressed by many of the property owners surrounding Lake Orange. The amendment was not approved due, at least in part, to opposition from OWASA. OWASA was concerned that the proposed amendment would be perceived as a relaxation of Orange County's commitment to watershed protection in the Cane Creek watershed. The Board of Commissioners directed staff to develop a process by which variances could be considered in a more expedient and inexpensive manner, and suggested that a window of time be established within which multiple variances could be considered with elimination or reduction of fees. The Planning Staff has talked with a number of property owners around Lake Orange and explained that option. Only one variance request has been received, since it is generally not until the owner is ready to build that the septic system is designed and laid out. The Planning Staff has also been contacted by several potential buyers expressing concern with purchasing property with restrictions which could prohibit development of the property, and uncertainly as to whether or not a variance would be approved. II. INFORMATION REGARDING SEPTIC SYSTEM DESIGN AND LOCATION A. SQUARE FOOTAGE REQUIRED FOR SEPTIC SYSTEMS According to Environmental Health, about 130 linear feet of drainfield line is needed per bedroom. Trenches must have a separation of at least 10 feet. Under normal circumstances, this translates to about 2,000 square feet of area per bedroom for the septic system, and an additional 2,000 square feet of repair area. Environmental Health has estimated that an additional 20% of area is generally sufficient to accommodate site constraints. Normal circumstances would include suitable soils, gentle topography, and limited presence of trees or other physical constraints. The Rules of Sewage Disposal for Orange County require that septic systems be designed for at least three bedrooms. Under this provision, a two-bedroom house would still be required to have a septic system sized for a three bedroom house. Using the rule of thumb of 2,000 square feet per bedroom for the septic system, 2,000 square feet for repair area, and an additional 20% to accommodate site constraints, septic systems require the following land area: Number of Capacity Minimum Area Required for Septic System Bedrooms Required and Repair Area (gallons per day) Without Site With Site Constraints Constraints square feet acres square acres feet 2 360 12,000 .26 14,400 .33 3 360 12,000 .26 14,400 .33 4 480 16,000 .37 19,200 .44 5 600 20,000 .46 24,000 .55 Lots approved by Environmental Health during the subdivision approval process generally have adequate soil to accommodate a four-bedroom house. B. EXCEPTIONS TO REPAIR AREA REQUIREMENTS In order for an improvements permit to be issued by Environmental Health, repair area adequate to install a replacement system in the event of failure of the initial system is generally required. If sufficient repair area is not available within the boundaries of the lot, then an easement may be needed to reserve a repair area on adjacent property. Section.1945 of"Laws and Rules for Sanitary Sewage Collection,Treatment,and Disposal 15 NCAC As Amended by the Orange County Board of Health (also referred to as"Rules of Sewage Disposal for Orange County") states the following: "(c) The repair area requirement shall not apply to a lot or tract of land: (1) which is specifically described in a document on file with the local health department on July 1, 1982, or which is specifically described in a recorded deed or recorded plat on January 1, 1983; and (2) which is of insufficient size to satisfy the repair requirement ... as determined by the local health department; and (3) on which a ground absorption sewage treatment and disposal system with a design daily flow of: (A) no more than 480 gallons is to be installed; or (B) more than 480 gallons is to be installed if application for an improvements permit is received by the local health department on or before April 1, 1983. (d) Although a lot or tract of land is exempted under paragraph (c)from the repair area requirement , the maximum feasible area, as determined by the local health department, shall be allocated for repair area." C. STREAM CLASSIFICATION Planning The Orange County Zoning Ordinance requires that septic systems be located at least 300 feet from a reservoir, and at least 100 feet from a perennial or intermittent stream within a protected watershed. Perennial and intermittent streams are identified by a solid or dotted blue line on the USGS quadrangle maps. Environmental Health The Rules of Sewage Disposal for Orange County require a 100-foot setback for septic systems adjacent to classified reservoirs and adjacent to streams classified as WS-I, and a 50-foot setback adjacent to streams in which flow for at least 50% of the year. Whether or not a particular stream flows at least 50% of the year is determined on a case by case basis in the field. D. SETBACKS AND SEPARATIONS Septic systems must be located at least 15 feet from a structure. Wells are required to be at least 100 feet from any part of a septic system and 40 feet from property lines. All components of a conventional septic system must be located at least 10 feet from property lines. All components of a low-pressure pipe system must be located at least 12 1/2 feet from property lines. Trenches for line in the drainfield must be at least ten feet apart for a conventional system and five feet apart for a low-pressure pipe system. E. PUMPS In some cases, septic setbacks can be met only if a pump system is installed. Use of a pump provides more flexibility in the location of the drainfield relative to the septic tank, and could allow the drainfield to be located farther from the stream or reservoir. However, a pump system is more complex, and could cause problems with a back up of septage in the septic tank in the event that the pump failed. These two factors shouldbe balanced. For example, a minor encroachment into the buffer may be preferable to installing a pump system, whereas a pump system may be preferable to a substantial encroachment into the buffer. III. PROPOSED REVIEW AND APPROVAL PROCEDURE It is recommended that the Board of Commissioners reconsider possible alternatives to variance requests for stream and reservoir buffers on lots which existed before January 1, 1994. One option would be to allow the Planning Staff, in consultation with Environmental Health, and the County Engineer, to issue a zoning compliance permit when specified findings could be documented. In all other cases,a variance request would be presented to the Board of Adjustment according to current procedures. Below is a proposed list of findings to be met in order for Staff to issue a zoning compliance permit where the stream or reservoir buffer is less than required by Article 6.23.7 or 6.23.8. FINDINGS REQUIRED FOR STAFF REDUCTION OF SEPTIC SYSTEM SETBACK REQUIREMENTS 1. The lot was created prior to January 1, 1994; and 2. The septic system is sized to serve no more than four bedrooms; and 3. The septic tank, drainfield and repair area (where required) can be accommodated on 20,000 square feet of area or less; and 4. Environmental Health has determined that there is not a sufficient amount of suitable soil beyond the required setback or buffer to accommodate a septic system and any required repair area for the proposed residence while maintaining the separation required by Environmental Health between wells, septic systems, structures and property lines; OR Environmental Health has determined that although there is a sufficient amount of suitable soil beyond the required setback or buffer to design a septic system and required repair area while maintaining the separation required by Environmental Health between wells, septic systems, structures and property lines,utilization of those soils would trigger the use of a septic pump. In addition, the amount of encroachment into the buffer is less than 10% of the required buffer or setback width, and placement of a gravity system which encroached into the buffer would have a lesser potential impact on water quality than,would the installation and use of the septic pump; and 5. The location of the proposed septic system,well and structures meets all requirements of Environmental Health, including distances for setbacks and other separations. 6. Where possible,the exception is to be granted for repair area,and the initial septic system is to be installed outside of the required buffer or setback. 7. The amount of encroachment into the stream or reservoir buffer is the minimum amount which can be obtained while meeting the above criteria. FINDINGS REQUIRED FOR STAFF REDUCTION OF BUILDING SETBACK REQUIREMENTS 1. The lot was created prior to January 1, 1994. 2. The location of the septic system and repair area (where required) has been established in accordance with requirements of Environmental Health and the Orange County Zoning Ordinance; and 3. The residence contains no more than four bedrooms,as defined by Environmental Health; and 4. Due to the location of suitable soils, slope, floodplain, or other features or constraints, Environmental Health and the Planning Staff have determined that there is not a location outside of the stream or reservoir buffer which on which a residence can be constructed. OR Environmental Health and the Planning Staff have determined that although the residence could be constructed outside of the buffer, such location would require the use of a pump. In addition, the amount of encroachment into the buffer is less than 10% of the total buffer width, and encroachment of the structure into the buffer would have a lesser potential impact on water quality than would the installation and use of the pump system; and 5. The amount of encroachment into the stream or reservoir buffer is the minimum amount which can be obtained while meeting the above criteria. It is also recommended that wells be permitted in stream buffers in cases where the additional flexibility in well location could eliminate the need for an exception to or variance of setback requirements for structures or septic systems. Another issue which should be addressed is the possibility of providing greater flexibility in setback requirements in cases where use of a pump could be avoided. Implementation of a review and approval process which incorporates the above findings and other recommendations would require an amendment to the Zoning Ordinance through the public hearing process.