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HomeMy WebLinkAboutAgenda 09-07-1993 - VIII-C 1 ORANGE C O U N T Y BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: September 7, 1993 Agenda Abstract Item # 11Lar-L, SUBJECT: PROPOSED ZONING ORDINANCE TEXT AMENDMENT (ARTICLES 6 .23 - 6.25 IMPERVIOUS SURFACE REGULATED) DEPARTMENT: Planning PUBLIC HEARING: Yes X No ATTACHMENT(S) : INFORMATION CONTACT: Proposed Ordinance Amendment Planning Director X2592 Draft 5/24/93 Public Hearing Minutes PHONE NUMBERS: Planning Director 7/28/93 Hillsborough 732-8181 Memorandum Mebane 227-2031 County Attorney 8/9/93 Letter Durham 688-7331 Draft 8/16/93 Planning Board Chapel Hill 967-9251 Minutes PURPOSE: To consider a proposed Zoning Ordinance text amendment which would permit property owners to satisfy impervious surface ratios in protected watersheds through provision of a perpetual conservation easement on adjoining property. BACKGROUND: In November, 1984, Orange County's watershed protection standards were updated. Included among the revisions were changes to required impervious surface ratios. The schedule of ratios adopted in 1984 is shown in Table 6.23.4 and were revised based on the recommendations of TJCOG. One year later, another amendment was adopted to address the difficulties experienced by some property owners in meeting the ratios contained in Table 6 .23.4 . Provisions were added which would permit individual property owners to apply for a modification of the impervious surface ratios. The specific provisions applicable to such situations are contained in Article 8. 8 .26. One situation which prompted the amendment was that of the Orange Grove Volunteer Fire Department. In June of 1985, the Board of Adjustment had denied a request by the Fire Department for a variance of the impervious surface ratio and percentage of undisturbed area applicable in Cane Creek Watershed. The subsequent amendment which added Article 8.8 .26 did nothing to assist the Fire Department in terms of its expansion plans. 2 Near the end of 1990, the situation involving the Orange Grove Fire Department was brought to the attention of the Planning Department again. Representatives of the Fire Department asked the Planning Staff to review its plans to determine if anything could be done which would permit the expansion. After considerable study, two alternatives were suggested. The first alternative involved amending the ordinance provisions to allow a waiver of impervious surface ratios for governmental protective and emergency service agencies. The second involved the granting of a perpetual easement on adjoining property [rather than actual fee simple acquisition] , limiting development and satisfying the impervious surface ratios indirectly. Of the two alternatives, the County Attorney felt that the latter one offered a possible solution to the Fire Department's problem. Although the Fire Department has not actively pursued such an amendment, recent events have suggested that changes be considered again. One situation involved the proposed construction of a new school located on a site partially in University Lake Watershed. To satisfy impervious surface limits and permit construction to proceed, a solution involving collection and disbursement of stormwater outside the watershed was developed. Although not in Orange County's jurisdiction, the school situation highlighted a potential problem for the County, given the approval of bond funding for new school construction. More recently, Orange County has been working toward identifying and constructing sites for recycling centers. The difficulty of installing such centers in watersheds was emphasized when a determination was made that an existing "green box" site could not be used because of insufficient land area being available to satisfy impervious surface ratios. While the site in question is existing, the same concern applies to new sites, several of which are to be located in watershed areas. As an example, recycling centers would have an impervious surface area of approximately one acre. To adhere to a 12 percent impervious surface limit, the total site would have to be slightly more than eight acres in size. While the focus to date has been almost exclusively on public facilities, the same difficulties could just as easily be experienced by privately owned, non-residential development. Examples which come to mind are existing churches, community centers or neighborhood convenience stores wanting to expand 3 but lacking sufficient area to satisfy impervious surface standards. The proposed amendment would permit a land owner to satisfy the impervious surface limitations in protected watersheds through approval and recordation of a conservation agreement. The agreement between Orange County and a land owner would prohibit development of land in a protected watershed in perpetuity. [Note: Orange County would be the owner of the easements. ] In such cases, a modification of the required impervious surface ratios could be approved administratively but only to the extent that additional land in the same watershed is conserved or protected from development. Furthermore, the land which would 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. This item was considered at public hearing on May 24, 1993 . Two persons spoke in favor of the proposal. Copies of the draft public hearing minutes are provided. At the June 21, 1993 meeting of the Planning Board, a question arose about the wording contained in the first sentence of Section 6.24.4, Subsection b. Specifically, the Board focused on the "in perpetuity" provision and the hypothetical case of a farmer who provided a conservation easement. If the impervious surface requirements were eliminated at some future date, could the farmer have the easement dissolved, given the existence of the perpetuity provision? The Board's concern was that Orange County may seek to hold onto such an easment even though the purpose for its creation was no longer valid. The Planning Board also questioned the wording of G.S. 121-38 (c) which states that conservation agreements may be for shorter "stipulated" periods of time. Specifically, must there be a specific ending date or could wording be added [to the ordinance or the agreement] which indicated that the agreement is void if the ordinance provisions were terminated/eliminated? The County Attorney's response to the above questions is provided in his attached August 9, 1993 letter. At its August 16, 1993 meeting, the Planning Board considered the proposed amendment, including the County Attorney's comments, and recommended approval of the proposal as presented at public hearing. The Planning Board vote was 8-1. RECOMMENDATION: The Administration recommends approval of the proposed amendment per the Planning Board recommendation. 4 PROPOSED ORDINANCE/PLAN AMENDMENT ORDINANCE/PLAN: Zoning -Ordinance REFERENCE: Article 6 . 23 . 4 - Impervious Surface Regulated in Protected .Watersheds Article 6 . 24 . 6 - Impervious Surface' Regulated in Water Quality Critical Areas Article 6 . 25. 4 - Impervious Surface Regulated [ULW] ORIGIN OF AMENDMENT: _X_Staff Planning Board BOCC X Citizen Other: STAFF PRIORITY RECOMMENDATION: _X_High Middle Low PUBLIC HEARING DATE: May 24 , 1993 PURPOSE OF AMENDMENT To provide a method of satisfying the impervious surface ratios required in protected watersheds. IMPACTS/ISSUES In November, 1984 , Orange County's watershed protection standards were updated. Included among the revisions were changes to required impervious surface ratios. The schedule of ratios adopted in 1984 is contained in Table 6. 23 . 4 and were revised based on the recommendations of TJCOG. One year later, another amendment was adopted to address the difficulties experienced by some property owners in meeting the ratios contained in Table 6. 23 . 4 . Provisions were added which would permit individual property owners to apply for a modification of the impervious surface ratios. The specific provisions applicable to such situations are contained in Article 8 . 8 . 26 . One situation which prompted the amendment was that of the Orange Grove Volunteer Fire Department. In June of 1985, the Board of Adjustment had denied a request by the Fire Department for a variance of the impervious surface ratio and percentage of undisturbed area applicable in Cane Creek Watershed. The subsequent amendment which added Article 8 . 8 . 26 did nothing to assist the Fire Department in terms of its expansion plans. Near the end of 1990, the situation involving the Orange Grove Fire Department was brought to the attention of the Planning Department again. Representatives of the Fire Department asked the Planning Staff to review its plans to determine if anything could be done which would permit the expansion. After considerable study, two alternatives were suggested. The first alternative involved amending the ordinance provisions to allow a waiver of impervious surface ratios for governmental protective and emergency service agencies. The second 5 involved the granting of a perpetual easement on adjoining property [rather than actual fee simple acquisition] , limiting development and satisfying the impervious surface ratios indirectly. Of the two alternatives, the County Attorney felt that the latter one offered a possible solution to the Fire Department' s problem. Although the Fire Department has not actively pursued such an amendment, recent events have suggested that changes be considered again. One situation involved the proposed construction of a new school located on a site partially in University Lake Watershed. To satisfy impervious surface limits and permit construction to proceed, a solution involving collection and disbursement of stormwater outside the watershed was developed. Although not in Orange County' s jurisdiction, the school situation highlighted a potential problem for the County, given the approval of bond funding for new school construction. More recently, Orange County has been working toward identifying and constructing sites for recycling centers. The difficulty of installing such centers in watersheds was emphasized when a determination was made that an existing "green box" site could not be used because of insufficient land area being available to satisfy impervious surface ratios; While the site in question is existing, the same concern applies to new sites, several of which are to be located in watershed areas. As an example, recycling centers would have an impervious surface area of approximately one acre. To adhere to a 12 percent impervious surface limit, the total site would have to be slightly more than eight acres in size. While the focus to date has been almost exclusively on public facilities, the same difficulties could just as easily be experienced by privately owned, non-residential development. Examples which come to mind are existing churches, community centers or neighborhood convenience stores wanting to expand but lacking sufficient area to satisfy impervious surface standards. The current difficulties are addressed in the State-mandated watershed protection standards which must be implemented by Orange County no later than January 1, 1994 . The original schedule for implementation of the watershed protection standards called for a public hearing in May of 1993 . However, because of pressing nature of other issues, the public hearing was moved back to August 1993 . In the State-mandated standards, localities will have a choice of adopting "low" or "high" density options. The low density option relies on minimum lot sizes or impervious surface limits as the basis for watershed protection. This varies with current County standards which employs both lot size and impervious surface limits. In contrast, the high density option allows greater impervious surface coverage if engineered stormwater controls [wet detention basins] are installed to control the first inch of rainfall. The amount of impervious surface or built upon area is limited to 30 percent for residential development and 70 percent for non-residential in that portion of a watershed beyond a Critical Area. In the case of non- 6 • residential development, the amount of land occupied by such uses may not exceed five percent of the watershed area beyond a Critical Area. In either of the cases cited above, the local government is required to assume ultimate responsibility for operation and maintenance of the stormwater controls, including a requirement to inspect such controls at least once per year to determine whether the controls are performing as designed and intended. Approval of such controls must be conditioned on the posting of adequate financial assurance by the applicant in the form of a cash deposit or security performance bond made payable to the local government. Local governments may also form a stormwater utility as a means of funding the operation and maintenance of stormwater controls which have been dedicated to them. Because of the financial and staffing implications of such requirements, amendments concerning the use of stormwater controls are to be considered at the August public hearing on the State-mandated watershed protection standards. However, a proposal to permit the use of conservation easements has been prepared, since the County has obtained special legislation to acquire a lesser interest to real property by easement for the purpose of preserving open space, including the conservation of watershed areas. EXISTING/PROPOSEED ORDINANCE/PLAN PROVISIONS New wording is highlighted in boldface. Changes recommended by the County Attorney are highlighted in italics. *6. 23 . 4 Impervious Surface Regulated in Protected Watersheds *Amended An impervious surface is a surface composed of any 11-20-84 material which impedes or prevents the natural 11-19-85 infiltration of water into the soil. Such surfaces 1-7-86 shall include any concrete or asphalt surface. These would include, but not be limited to, streets and parking areas, sidewalks, patios and structures which cover the land. As a watershed becomes developed the amount of impervious surface increases causing a decrease in soil absorption of stormwater runoff and an increase in direct runoff to streams and other water bodies resulting in an increase in potential water pollution. In order to promote infiltration of stormwater runoff into the soil and to minimize direct and immediate runoff into streams and water supply impoundments, impervious surface ratios shall be required as provided in the Table of Impervious Surface Ratios Section 6. 23 . 4 . Modifications of the Impervious Surface Ratios may be requested, however, through one of the following provisions: a. As a Class A Special Use in accordance with the provisions of Section 8 of this Ordinance. In no case shall a modification be granted for property located in a 7 designated Water Quality Critical Area, and no modification granted under the provisions of Section 8 shall exceed the ratios established in Section 6. 23 . 4 for the Protected Watershed (PW-II) District by more than five percent (5%) ; or b. 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. 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 which 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. As an example, a person owning a 40, 000 square foot lot and subject to a 12 percent 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. ) The conservation agreement 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. The conservation agreement 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 or terminated. Orange County shall require the priority of the conservation agreement to be certified by an 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. Orange County approval of a release or termination of the conservation agreement shall be declared on the document releasing or terminating the agreement. The document shall be signed by the Orange County Manager, upon approval of the Orange County Board of Commissioners . 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. 8 Impervious surface calculations for an individual development shall be cumulative for original construction and any subsequent additions and calculations of impervious surface coverage for individual lots shall include that portion of a right-of-way between the center line of the street and the abutting property line of the lot. ********************************************* 6 . 24 . 6 Impervious Surface Regulated in Protected Watersheds Amended 11-19-85 An impervious surface is a surface composed of any material which impedes or prevents the natural - - infiltration of water into the soil. Such surfaces shall include, but not be limited to, streets and parking areas, sidewalks, patios and structures which cover the land. As a watershed becomes developed the amount of impervious surface increases causing a decrease in soil absorption of stormwater runoff and an increase in direct runoff to streams and other water bodies resulting in an increase in potential water pollution. In order to promote infiltration of stormwater runoff into the soil and to minimize direct and immediate runoff into streams and water supply impoundments, impervious surface ratios shall be required as provided in the Table of Impervious Surface Ratios Section 6 . 23 . 4 . Modifications of the Impervious Surface Ratios may be requested, however, in accordance with the provisions of Section 6.23 .4 . Impervious surface calculations for an individual development shall be cumulative for original construction and any subsequent additions and calculations of impervious surface coverage for individual lots shall include that portion of a right-of-way between the centerline of the street and the edge the abutting property line of the lot. ********************************************* *6. 25. 4 Impervious Surface Regulated *Amended An impervious surface is a surface composed of any 4-2-90 material which impedes or prevents the natural infiltration of water into the soil. Impervious surfaces shall include both paved and unpaved surfaces, including, but not limited to, streets and parking areas, driveways, sidewalks, patios, and structures which cover the land. 9 In order to promote the infiltration of stormwater runoff into the soil and to minimize direct and immediate runoff into streams and University Lake reservoir, impervious surface ratios shall be required as provided in the Table of Impervious Surface Ratios for University Lake Watershed - Section 6. 25. 4 . Modifications of the Impervious Surface Ratios may be requested, however, in accordance with the provisions of Section 6.23 .4 . Impervious surface calculations for an individual lot shall be cumulative, including the original construction and any subsequent additions thereto. The calculation of impervious surface coverage for an individual lot shall also include one-half of the street surface on which the lot fronts or abuts; provided, however, the impervious surface calculation will not include the surface of any street existing on April 2, 1990 unless the street is upgraded to a greater width. In such cases, only the additional width shall be included in calculating the 'impervious surface coverage. It is the intent of this section that the impervious surface limitations specified herein shall apply to the entire tract to be developed. Therefore, if the subdivision involves the creation of any street or other impervious surface outside the boundaries of the lots so created, then the total impervious surface allocation may be determined as follows: a. The total area of permissible impervious surface for the entire subdivision shall be calculated, applying the percentage limitations set forth in Table 6. 25. 4 . b. From the total area calculated pursuant to a. above, there shall be subtracted the impervious surface area within streets and other areas outside of the individual lot boundaries. c. Following the calculation set forth in b. above, the remaining permissible impervious surface shall be allocated equally to each lot by the subdivider or as may be approved by the Zoning Officer. The allocation shall be indicated on a separate document recorded together with the final subdivision plat. For conventional subdivisions to be developed in accordance with the provisions of Article 6 . 25. 1 and cluster subdivisions 'to be developed in accordance with the provisions of Article 6. 25 . 3 , 10 an impervious surface limitation of six percent (6%) shall apply to the entire tract to be developed. • For an existing lot of record to be developed in accordance with the provisions of Article 6. 25. 2b. , the full range of impervious surface ratios specified in Table 6. 25. 4 is applicable. ********************************************* ORDINANCE REVIEW COMMITTEE: PLANNING BOARD REVIEW: BOARD OF COMMISSIONERS REVIEW: 11 5 1 :} 12 d. Impervious Surface Standards Planning Director Marvin Collins presented this item to receive public comment. The purpose of this amendment would add a provision to Article 6 of the Zoning Ordinance which would permit property owners to satisfy impervious surface ratios in protected watersheds through provision of a perpetual conservation easement on adjoining property. This particular amendment was generated by a request from the Orange Grove Volunteer Fire Department and has implications for the County's recycling- center sites and it may have implications for other rural fire departments or similar public uses. It does allow conservation easements for meeting the requirements of the impervious surface standards . QUESTIONS OR COMMENTS FROM THE COUNTY COMMISSIONERS OR MEMBERS OF THE PLANNING BOARD Commissioner Gordon questioned how this would work and Mr. Collins referred to an example in the agenda abstract and explained how this amendment would apply to a parcel of land. THE PUBLIC HEARING WAS OPEN FOR CITIZEN COMMENTS Mr. Edward S. .Johnson, President of the Orange Grove Volunteer Fire Company, stated that the zoning requirements have put the Fire Company in a box for about eight years. They wanted to expand eight years ago and asked for a variance which was denied. The fire station is beyond capacity at this time and they urgently need to expand. The only other alternative is for them to purchase additional land. They plan to purchase some additional land but do not want to buy two acres. Charles Snipes explained that he is willing to give up a small parcel of land for the expansion of the fire station but does not want to give up two acres. A motion was made by Commissioner Willhoit, seconded by Commissioner Insko to refer this item to the Planning Board and to adjourn the public hearing until 7 : 30 p.m. on August 4 , -1993 to receive the Planning Board recommendations. VOTE: UNANIMOUS D. ADJOURNMENT With no further items to be considered by the Board, Chair Carey adjourned the public hearing. The next regular meeting of the Board of County Commissioners will be held on May 27 , 1993 at 7 :30 p.m. in Superior Courtroom, Hillsborough, North Carolina. Moses Carey, Jr. , Chair Debra Graham, Acting Clerk Beverly A. Blythe, Clerk 12 ARTICLE 4. Conservation and Historic Preservation .Agreements Act. § 121-34. Short title. The title of this Article shall be known as the "Historic Preserva- tion and Conservation Agreements Act." (1979, c. 747, s. 1.) Legal Periodicals. — For an article For an article entitled, "Preservation entitled, "A Decade of Preservation and Law 1976-1980: Faction, Property Preservation Law," see 11 N.C. Cent. Rights and Ideology," see 11 N.C. Cent. L.J. 214 (1980). For an article entitled,"Reaffirmation L.J. 276 (1980). of Local Initiative: North Carolina's For an article entitled, The North 1979 Historic Preservation Legislation," Carolina Historic Preservation and Con- see 11 N.C. Cent. L.J. 243 (1980). servation Agreements Act: Assessment For an article entitled, "Revolving and Implications for Historic Preserve- Funds:In the Vanguard of the Preserva- tion,"see 11 N.C. Cent. L.J. 362 (1980). tion Movement," see 11 N.C. Cent. L.J. 256 (1980). § 121-35. Definitions. Subject to any additional definitions contained in this Article, or unless the context otherwise requires: (1) A "conservation agreement" means a right, whether or not stated in the form of a restriction, reservation, easement, covenant or condition, in any deed, will or other instru- ment executed by or on behalf of the owner of land or improvement thereon or in any order of taking, appropri- ate to retaining land or water areas predominantly in their natural, scenic or open condition or in agricultural, horti- cultural, farming or forest use, to forbid or limit any or all (1) construction or placing of buildings, roads, signs, billboards or other advertising, utilities or other structures on or above the ground, (ii) dumping or placing of soil or other substance or material as landfill, or dumping or plac- ing of trash, waste or unsightly or offensive materials, (iii) removal or destruction of trees, shrubs or other vegetation, (iv) excavation, dredging or removal of loam, peat, gravel, soil, rock or other mineral substance in such manner as to affect the surface, (v) surface use except for agricultural, farming, forest or outdoor recreational purposes or pur- poses permitting the land or water area to remain predom- inantly in its natural condition; (vi) activities detrimental to drainage, flood control, water conservation, erosion con- trol or soil conservation, or (vii) other acts or uses detri- mental to such retention of land or water areas. (2) "Holder" means any public body of this State, including the State, any of its agencies, any city, county, district or other political subdivision or municipal or public corporation, or any instrumentality of any of the foregoing, any nonprofit corporation or trust, or any private corporation or business entity whose purposes include any of those stated in (1) and (3), covering the purposes of preservation and conser- vation agreements. (3) A "preservation agreement" means a right, whether or not stated in the form of a restriction, reservation, easement, covenant, condition or otherwise, in any deed, will or other instrument executed by or on behalf of the owner of the land or any improvement thereon, or in any other [order) of taking, appropriate to preservation of a structure or site historically significant for its architecture, archaeology or 13 historical associations, to forbid or limit any or all (i) alter- ation, (ii) alterations in exterior or interior features of the • structure, (iii) changes in appearance or condition of the site, (iv) uses not historically appropriate, or (v) other acts or uses supportive of or detrimental to appropriate preser- - vation of the structure or site. (1979, c. 747, s. 2.) Legal Periodicals. — For an article Carolina Historic Preservation and Con- entitled, "Preservation Law 1976-1980: servation Agreements Act: Assessment Faction, Property Rights and Ideology," and Implications for Historic Preserve- see 11 N.C. Cent, L.J. 276 (1980). Lion," see 11 N.C. Cent. L.J. 362 (1980). For an article entitled, The North § 121-36. Applicability. (a) This Article shall apply to all conservation and preservation agreements falling within its terms and conditions. (b) This Article shall not be construed to make unenforceable any restriction, easement, covenant or condition which does not comply with the requirements of this Article. (c) This Article shall not be construed to diminish the powers of any public entity, agency, or instrumentality to acquire by pur- chase, gift. devise, inheritance, eminent domain or otherwise and to use property of any kind for public purposes. (1979, c. 747, s. 3.) Legal Periodicals. — For an article ments Act:Assessment and Implications entitled, "The North Carolina Historic for Historic Preservation," see 11 N.C. Preservation and Conservation Agree- Cent. L.J. 362 (1980). § 121-37. Acquisition and approval of conservation and preservation agreements. Subject to the conditions stated in this Article, any holder may, in any manner, acquire, receive or become a party of a conservation agreement or a preservation agreement. (1979, c. 747, s. 4.) § 121-38. Validity of agreements. (a) No conservation or preservation agreement shall be unen- forceable because of (1) Lack of privity of estate or contract, or (2) Lack of benefit to particular land or person, or (3) The assignability of the benefit to another holder as defined in this Article. (b) Such agreements are interests'in land and may be acquired by any holder in the same manner as it may acquire other interests in land. (c) Such agreements may be effective perpetually or for shorter stipulated periods of time. (d) Such agreements may impose present, future, or continuing obligations on either party to the agreement, or their successors, in furtherance of the purposes of the agreement. (1979, c. 747, s. 5.) § 121-39. Enforceability of agreements. (a) Conservation or preservation agreements may be enforced by the holder by injunction and other appropriate equitable relief ad- ministered or afforded by the courts of this State. Where appropri- ate under the agreement, damages, or other monetary relief may also be awarded either to the holder or creator of the agreement or either of their successors for breach of any obligations undertaken by either. 14 (b) Such agreements shall entitle representatives of the holder to enter the involved land or improvement in a reasonable manner and at reasonable times to assure compliance. (1979, c. 747, s. 6.) § 121-40. Assessment of land or improvements sub- ject to• agreement. For purposes of taxation, land and improvements subject to a conservation or preservation agreement shall be assessed on the basis of the true value of the land and improvement less any reduc- tion in value caused by the agreement. (1979, c. 747, s. 7.) Legal Periodicals. — For an article For an article entitled, "The North entitled, "Preservation Law 1976-1980: Carolina Historic Preservation and Con- Faction, Property Rights and Ideology," ser'ation Agreements Act: Assessment see 11 N.C. Cent. L.J. 276 (1980). and Implications for Historic Preserva- tion,"see 11 N.C. Cent. L.J. 362 (1980). CASE NOTES To find the true value of property the conservation easements. Determin- subject to conservation easements, ing the highest and best use of the prop- the State Property Tax Commission erty prior to the granting of the ease- must determine the market value prior ment is a critical part of the appraisal to the granting of the easements and process.Rainbow Springs Partnership v. then reduce that value by applying a County of Macon, — N.C. App. —, 339 damage factor caused by the granting of S.E.2d 681 (1986). § 121-41. Public recording of agreements. (a) Conservation agreements shall be recorded in the office of the Register of Deeds of the county or counties in which the subject land or improvement is located, in the same manner as deeds are now recorded. (b) Releases or terminations of such agreements shall be re- corded in the same waiver. Releases or terminations, or the record- ing entry, shall appropriately identify by date, parties, and book and pages of recording, the agreement which is the subject of the release or termination. (1979, c. 747, s. 8.) Legal Periodicals. — For an article ments Act:Assessment and Implications entitled, "The North Carolina Historic for Historic Preservation," see 11 N.C. Preservation and Conservation Agree- Cent. L.J. 362 (1980). § 121-42. Citation of Article. This Article shall be known and may be cited as "Uniform Con- servation and Historic Preservation Agreement Act." (1979, c. 747, s. 9.) ORANGE COUNTY PLANNING DEPARTMENT 15 306F REVERE ROAD HILLSBOROUGH, NORTH CAROLINA 27278 ,. e q MEMORANDUM TO: Geofrey Gledhill, Co nt Attorney FROM: Marvin Collins, P anning Director SUBJECT: Proposed Zoning Ordinance Text Amendment - Impervious Surface Ratios/Protected Watersheds DATE: July 28 , 1993 COPIES: Mary Willis, Planner III/Current Planning At the May 24 , 1993 public hearing, a proposed Zoning Ordinance text amendment was presented which would, if adopted, allow property owners to satisfy impervious surface requirements in protected watersheds through the approval and recording of a conservation agreement. A copy of the proposed amendment is attached as well as supporting documentation. At the June 21, 1993 meeting of the Planning Board, a question arose about the wording contained in the first sentence of Section 6 .24 .4 , Subsection b. Specifically, the Board's concern focused on the "in perpetuity" provision, and the hypothetical case of a farmer who provided a conservation easement. If the impervious surface requirements were eliminated at some future date, could the farmer have the easement dissolved, given the existence of the perpetuity provision? The Board's concern was that Orange County may seek to hold onto such an easment even though the purpose for its creation was no longer valid. My response to the Planning Board was that G.S. 121-38 (c) allowed conservation agreements to be effective in perpetuity or for a shorter period of time. The Board then questioned the wording of that statute which states that such agreements may be for shorter stipulated periods of time. My question to you is, must there be a specific ending date or could wording be added [to the ordinance or the agreement] which indicated that the agreement is void if the ordinance provisions were terminated/eliminated? My goal is to take the amendment back to the Planning Board at its August 16, 1993 meeting. Could you provide me answers to the above questions by August 10? 16 LAW OFFICES COLEMAN, GLEDHILL & HARGRAVE ALONZO BROWN COLEMAN,JR. A PROFESSIONAL CORPORATION GEOFFREY E.GLEDHILL 129 E.TRYON STREET DOUGLAS HARGRAVE P.O.DRAWER 1529 3M K.STEFFAN HILLSBOROUGH,NORTH CAROLINA 27278 JANET B.DUTTON (919)732.2196 FAX(919)732.7997 _ • August 9 , 1993 - Mr. Marvin Collins Planning Director ._ Orange County Planning Department � _:. � 4 Post Office Box 8181 =: Hillsborough, North Carolina 27278 RE: Proposed Zoning Ordinance Text Amendment - Impervious Surface Ratios/Protected Watersheds - _ . Dear Marvin: I have reviewed your July 28, 1993 letter regarding the Planning Board's concern about Orange County holding "onto [a - - -' conservation) easement even though the purpose for its creation was no longer valid. " I do not share the Planning Board's concern about Orange County's motivation in obtaining conservation easements. I, therefore, will recommend against any amendment language which does not require the easement to be one in perpetuity. As a practical matter, the purpose of the - - easement ever becoming "invalid" is not great. Further, as a - -_=- -- practical matter, if for some reason impervious surface :" - =1 requirements in protected watersheds are ever.. slackened to the point where the easement is no longer necessary-for that: purpose, - Orange County would be in a position to and would have no reason_- __ not to release the property from the easement._. In this regard,: =: _ - it is important to remember that the purpose for the proposed -_ amendment and the conservation easement is to allow private land owners the right to develop land more intensely than the Watershed Protection Regulations otherwise provide. . As a strictly "legal" matter, - conveyance of property for an indefinite period of time, for example, until an ordinance is changed, creates an uncertainty in the ."estate" granted -that risks _the validity of the conveyance itself That is -the reason _ ---why the conservation easement enabling legislation requires that an easement be in perpetuity or for "stipulated" periods of time. • Very truly yours, -offre , - . Gledhill GEG/lsg DRAFT PLANNING BOARD MINUTES AUGUST 16, 1993 17 responded lots less than two acres prior to the new standards can be -built on but will be considered non-conforming lots. It is not really a vesting issue but, 'rather if a lot exists at the time the new regulations become effective, that lot can be built on, but any new lots created after that time would have to be two acres in size. Mac Jordan, developer, made a statement regarding the water quality issue. He stated that the large lots that bordered the Eno and the areas that would affect water quality are much larger than the new standards would recommend. He felt that there would be ample amount of undisturbed area to protect the river and any water problems that might occur because of the development. VOTE: 8 in favor. 2 opposed (Eidenier & Reid - both concerned with the area of the Eno River being developed for a possible reservoir. As a representative of Hillsborough, Eidenier noted concern with the area being developed. ) Burklin stated that he was influenced by the lack of comment and concern from the Town of Hillsborough. He suggested again that the Town be encouraged to be more active in such concerns . AGENDA ITEM #8: MATTERS HEARD AT PUBLIC HEARING (5/24/93) a. Zoning Ordinance Text Amendment ( 1) Articles 6.23, 6 .24 & 6 . 25 - Impervious Surface Regulated Presentation by Marvin Collins. At the June 21, 1993 meeting of the Planning Board, a question arose about the wording contained in the first sentence of Section 6.24 .4 , Subsection b. Specifically, the Board focused on the "in perpetuity" provision and the hypothetical case of a farmer who provided a conservation easement. If the impervious surface requirements were eliminated at some future date, could the farmer have the easement dissolved, given the existence of the perpetuity provision? The Board's concern was that Orange County may seek to hold onto such an easement even though the purpose for its creation was no longer valid. 18 The Planning Board also questioned the wording of G.S. 121-38 (c) which states that conservation agreements may be for shorter "stipulated" periods of time. Specifically, must there be a specific ending date or could wording be added (to the ordinance or the agreement) which indicated that the agreement is void if the ordinance provisions were terminated/eliminated? Collins read the County Attorney's response to the concerns in a letter dated August 9, 1993. (A copy of the letter is an attachment to these minutes on page . ) The Planning Staff recommends approval of the proposed amendment as presented at public hearing. Walters again stated that she felt this did not address the issue of dump sites. Collins responded that the new watershed regulations allow only 5% of the total watershed land area to be occupied by such uses and up to 70% impervious surface ratio. With the recycling centers being located in rural watershed areas, the 70% impervious surface ratio should give the County sufficient flexibility to develop them and comply with the watershed standards. MOTION: Burklin moved approval as recommended by the Planning Staff. Seconded by Waddell. VOTE: 8 in favor. 1 opposed (Walters - concerns previously stated) Boland out of the room during this vote. AGENDA ITEM #9: MATTERS SCHEDULED FOR PUBLIC HEARING (8/23/93) a. Comprehensive Plan Text Amendments ( 1) CP-3-93 Bobby Kirk Sr. & Jr. Presentation by David Stancil. The proposed amendment would affect a 1/4 mile radius at the intersection of Orange Grove Road and Bradshaw Quarry Road (Arthur Minnis Road) in Bingham Township. Part or all of 16 lots fall within this radius. The proposal requests creation of a Rural Neighborhood Activity Node at the intersection of