HomeMy WebLinkAboutAgenda 6-a - Major Subdivision Preliminary Plat Application – Fairway Hills 1
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: June 4, 2019
Action Agenda
Item No. 6-a
SUBJECT: Major Subdivision Preliminary Plat Application — Fairway Hills
DEPARTMENT: Planning and Inspections
ATTACHMENTS: INFORMATION CONTACT:
1. Application Package with Draft Patrick Mallett, Planner II, (919) 245-2577
Restrictive Covenants Michael D. Harvey, Planner III, (919) 245-2597
2. Vicinity Map and Site Assessment Craig Benedict, Director, (919) 245-2575
3. Staff Generated Correspondence
4. Neighborhood Information Materials
(NIM)
5. Q&A from Topics Discussed
6. Excerpt of April 3 and Draft May 1, 2019
Planning Board Minutes
7. Resolution of Approval
UNDER SEPARATE COVER
8. Full Size Copy of Preliminary Plat
PURPOSE: To receive the Planning Board recommendation, review, and make a decision on a
Major Subdivision Preliminary Plat application proposing a 20 lot single-family residential subdivision
in accordance with the provisions of Section 2.15 Major Subdivisions and Article 7: Subdivisions of
the Unified Development Ordinance (UDO).
BACKGROUND: Fairway Hills was originally submitted as Class A Special Use Permit (SUP) Major
Subdivision application (originally called Occoneechee Hills) proposing the creation of 27 single-
family lots. The proposal was ultimately renamed, revised, and the number of proposed lots was
reduced to 20. This revision removed the SUP requirement for the Major Subdivision and
reclassified the review process in accordance with Section 2.15 of the UDO.
The basic facts concerning the current application are as follows:
Owners: Beth Porter and Thomas Bradford
11810 Wakehurst Drive
North Chesterfield, VA 23236
Applicant(s)/Developers: Old NC 86 Partners, LLC
C/o Jim Parker
504 Meadowland Drive
Hillsborough, NC 27278
Consultants: Summit Design and Engineering Services
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C/o Tim Smith, PE
504 Meadowland Drive
Hillsborough, NC 27278
Location: 2715 US 70 East, Hillsborough, NC 27278. See Attachment 2 for a
general location of the parcel.
Parcel Information: a. PINs: 9884-32-3275; and 9884-31-9874.
b. Size of Parcel: 41.97 acres in area total.
c. Zoning of Parcels: Rural Residential (R-1) and Lower Eno
Protected Watershed Protection Overlay District.
d. Township: Eno.
e. School District: Orange County Schools.
f. Future Land Use Map Designation: Rural Residential.
g. Growth Management System Designation: Rural Designated.
h. Existing Conditions/Physical Features: The property has one
2,286 square foot single-family dwelling built in approximately
1956 and four accessory structures. The site has varying
topography, two stream features, moderate cleared areas near
structures, and woodlands.
i. Roads: Existing vehicular access to the parcel is via a private
drive along US Highway 70 East.
j. Water and Sewer Service: The property is not located within a
primary utility service area. It is designated on the Water and
Sewer Management Planning and Boundary Agreement
(WASMPBA) as Hillsborough Long-term Interest Area. The
existing and proposed homes will utilize individual private wells
and septic systems.
Surrounding Zoning/Land Uses:
a. NORTH: Single-family residences and undeveloped property on
lots ranging from 5 to 99 acres in area. All zoned R-1.
b. SOUTH: Occoneechee Golf Course and Club; Single-family
residences on lots ranging from 1.1 to 131 acres in area. All zoned
R-1.
c. EAST: Single-family residences and undeveloped property on lots
ranging from 0.8 to 5.2 acres in area. All zoned R-1.
d. SOUTHWEST: Occoneechee Golf Course and Club (south of US
Highway 70 East) and undeveloped property. All zoned R-1.
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Development Process, Schedule, and Action: The typical cadence for the review of a Major
Subdivision is as follows:
• FIRST ACTION — Submission of a Concept Plan application containing a proposed
layout for the project based on the "Flexible Development" option as outlined in
Section 7.12 of the UDO.
STAFF COMMENT: As previously indicated the original application for the
project, as a 27 lot major subdivision, was submitted on January 7, 2019 as part
of a Class A Special Use Permit application. After the holding of a neighborhood
information meeting (NIM) a revised Concept Plan was submitted on or about
March 25, 2019 reducing the number of proposed lots to 20 (a 26% reduction in
the number of proposed lots).
• SECOND ACTION — Planning staff schedules a Neighborhood Information Meeting
(NIM) to invite property owners within 1,000 feet of the subject property to review
the proposal.
STAFF COMMENT: Staff held the required meeting on February 13, 2019 to
review the originally proposed 27 lot layout consistent with the requirements of
Section 2.7 of the UDO.
As a result of comments from the public at this meeting, as well as concerns
over finding sufficient soils to support 27 individual septic systems, the applicant
reduced the number of proposed lots.
The submittal of a revised Concept Plan (i.e. 20 proposed lots) did not require
the scheduling/holding of a new NIM under the provisions of the UDO.
• THIRD ACTION — The Planning Board reviews and takes action on the Concept
Plan application approving either the `conventional' or `flexible development' layout.
STAFF COMMENT: The Concept Plan application package was approved at
the April 3, 2019 Planning Board meeting with a `flexible development' layout.
Agenda materials, including approved minutes, for this meeting can be viewed
at: http://www.orangecountVnc.gov/AgendaCenter/Planning-Board-26. An
excerpt of the approved minutes from this meeting are contained in Attachment
6.
• FOURTH ACTION — The Planning Board reviews and makes a recommendation on
the Preliminary Plat application.
STAFF COMMENT.- At its May 1, 2019, regular meeting the Board voted 7-3 to
recommend approval of the Flexible Development option for Fairway Hills.
Agenda materials for his meting can be viewed at:
http://www.orangecountync.gov/AgendaCenter/Planning-Board-26. An excerpt
of the draft minutes from this meeting are contained in Attachment 6.
• FIFTH ACTION — The BOCC reviews and takes action on the Preliminary Plat
application.
STAFF COMMENT. The review and decision to approve or deny the Preliminary
Plat is scheduled for the June 4, 2019 BOCC regular meeting.
If approved, and once all construction activities have been completed or
appropriate financial assurances have been approved, staff will sign off on a
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Final Plat, which will be recorded in the Orange County Registrar of Deeds
Office.
Proposal: The petitioner has submitted a Major Subdivision Preliminary Plat application proposing to
develop 20 single-family residential lots at a density of approximately 1 dwelling unit per 2.1 acres of
gross land area and approximately 15.54 acres of common open space to be held/controlled by a
homeowners association. Proposed lots range in size from 42,785 square feet (smallest) to 125,765
square feet (largest).
Subdivision Type Number Average Lot Area in Open Space
of Lots Size Open Space Percentage
Major Subdivision 20 56,594 sq. ft. 15.54 acres provided 37%
with Flexible (1.3 acres) (33% required)
Development Plan (13.51 acres in HOA
40,000 sq. ft. Common Areas plus
(min. lot size) 2.03 acres held by HOA
in easements)
(13.85 acres required)
In accordance with the provisions of Section 7.12.5 (B) (6), cluster flexible development subdivisions
are permitted to reduce required minimum setbacks (i.e. front, side, and rear) by 25%. As denoted
within the application, and on the preliminary plat, the applicant is proposing to observe:
Front yard setback of 30 ft. (40 ft. typically required) from the front property line/edge of right-
of-way.
STAFF COMMENT: Per the UDO the 30 ft. front yard setback applies to corner lots
(i.e. a parcel fronting on 2 streets) as well.
➢ Side yard setback of 15 ft. (20 ft. typically required); and
➢ Rear yard setback of 15 ft. (20 ft. typically required).
Staff has determined the Preliminary Plat application is consistent with the Concept Plan approved
by the Planning Board at its April 3, 2019 regular meeting.
STAFF COMMENT.- The proposal is in accordance with the anticipated densities,
impervious requirements and minimum lots sizes for parcels located within:
• The Rural Residential land use category as defined within the adopted
Comprehensive Plan,
• Rural Designated areas of the County as denoted on the Growth Management
Systems Map, and
• Lower Eno Protected Watershed Protection Overlay District.
Roads: The proposal involves the creation of two new public roads, constructed to NC Department
of Transportation (NC DOT) standards, serving the proposed lots. Specifically, the project calls for:
• The reservation of 5-feet of additional right-of-way along the frontage of US Highway 70 East
to accommodate future roadway expansion;
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• Construction of a single access road called "Birdie Lane" affording vehicular ingress/egress
from US Highway 70 East located within 50-foot right-of-way, 20-foot improved travel ways
and required ditch sections. Development of the roadway will include construction of right
(westbound) and left (eastbound) turn lanes within the existing 100-foot right-of-way for US
Highway 70 East at the development's entrance; and
• Construction of a roadway called "Bogey Court" within 50-foot right-of-way, 20-foot improved
travel ways, ditch sections, and two terminating in two culs-de-sac with 40-foot radii.
STAFF COMMENT. The applicant has coordinated with the NC DOT District Engineer
regarding the location and design of these road improvements. Staff has determined the
proposed roadway construction and layout is consistent with the requirements of the
UDO.
Staff has determined there was no reasonable opportunity for creation of a `stub out' street
to ensure future roadway connectivity to adjacent parcels due to concerns over potential
impacts to adjacent streams/water features, topography, and potential impacts to existing
development and road networks.
County and NC DOT staff have determined proposed access onto US Highway 70 East is
sufficient for ingress/egress and the provision of County services including emergency
vehicle access.
Utilities —Water and Sewer: The applicant is proposing to serve the project with individual wells
and septic systems developed on each lot. The Preliminary Plat Sheet C-3 denotes suitable soil
locations for septic sites and individual wells for the 20 proposed single-family lots.
STAFF COMMENT.- Orange County Environmental Health has indicated that it does
not foresee problems with the proposed layout with respect to finding suitable soils to
support development of septic tanks and individual well sites. For more information
please refer to Attachment 3.
Individual well and septic permits will be required for each lot as it is developed.
Note: Neither the UDO nor Environmental Health has subdivision standards for the
maximum number of wells in an area. This is due in part to Orange County's
fractured geology and subsurface hydric composition.
Stormwater Drainage: Drainage will be engineered according to applicable County regulations,
as embodied within the UDO, governing the development of Stormwater Control Measures
(SCMs) at the time of permit application/commencement of land disturbing activities.
Stormwater review is required within the Lower Eno Protected Watershed Protection Overlay
district when land disturbance activities exceed 21,780 square feet (one half acre).
Sheet C-4 of the submittal indicates approximately 8.02 acres of initial land disturbance is
proposed for the project. Staff has already determined this project will disturb sufficient land
area to require stormwater review and permitting. Review and permitting of SCMs shall be
administered by the County's Engineering and Erosion Control division.
As indicated on the submitted Preliminary Plat, drainage will be handled through a system of
ditches located within proposed road rights-of-way and Common Open Space. The type of SCM
required shall be determined at the stormwater permitting stage of the project after the
Preliminary Plat has been approved.
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STAFF COMMENT.- The applicant has submitted a preliminary stormwater analysis
for staff review and comment.
Open Space: Open space for the project is broken down on Sheet C-3 of the submittal as follows:
• Primary Open Space (i.e. wetlands, streams, floodplains, slopes greater than 25%, natural
areas/wildlife corridors, etc.)— 6.43 acres (280,082 square feet);
• Secondary Open Space (i.e. Open space access, woodlands, slopes between 15% and 25%,
scenic views, etc.)— 7.08 acres (308,354 square feet); and
• Type "E" Buffer and access areas to Common Open Space (i.e. 75-foot wide buffer along US
Highway 70 East and 20-foot Access Easements along perimeter) — 2.03 acres (88,444
square feet).
The total area reserved as Common Open Space is approximately 15.54 acres (37% of the site).
These areas are composed of lawn, fields and forested areas with existing, mature, vegetation and
trees with an approximate height of between 50 to 80 feet. All 20 lots are adjacent and/or have
access to Primary and/or Secondary Common Open Space areas.
STAFF COMMENT. Staff has determined the proposed open space meets the
requirements of the UDO.
Land Use Buffer: The Preliminary Plat indicates there will be a 75-foot Type "E" land use buffer
along US Highway 70 East. The buffers are comprised of existing, dense, vegetation composed of
existing, mature, shrubs and trees with an approximate height of between 20 to 80 feet. Sheets C-3
and C-9 indicate that the buffer will be augmented when preserved vegetation is not sufficient to
meet the minimum Type "E" landscape requirements (i.e. a minimum of 7-8 canopy trees, 4-13
understory trees and 58-77 shrubs per 100 linear feet of buffer). Additional emphasis will be given to
utilizing the appropriate evergreen trees and shrubs to maximize the opacity of the buffer.
STAFF COMMENT. Section 6.8.6 (D) of the UDO requires that this project maintain a
75-foot land use buffer separating the project from adjacent Arterial Roadways (US
Highway 70 East). Staff has determined the proposed Common Open Space and
land use buffers meet the requirements of the UDO. The minimum landscape
requirements for this Type "E" buffer will also be verified by Staff prior to the
recordation of the Final Plat.
Note: a portion of the buffer allows for individual well and septic areas. If utilized,
however, the pro-rated amount of plantings would be required elsewhere within the
75-foot Type "E" land use buffer.
Park/Recreation Space: Per Section 7.11.6 Payments in Lieu of Dedication of the UDO,
subdivision developments are required to provide recreation amenities for local residents or
make a payment in lieu to the County for future public park development. In this instance the
applicant has indicated there will be trail systems in the open space for residents but there will
not be dedicated public recreation areas (i.e. playground, etc.).
The property in question is located within the R-10 Cheeks park district requiring a payment of
$455 per lot. The applicant has agreed to pay the County $8,645 for the payment in lieu fee.
The County will be able to utilize this money for public parkland development within the vicinity
of the project to benefit all residents.
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STAFF COMMENT. The aforementioned fee gives the applicant credit for the existing
residence thereby reducing the total required fee by $455.
In accordance with Section 7.11.6 (B) of the UDO, staff has determined there is no
recreation and/or open space sites designated within the adopted Comprehensive Plan
for the property and that development of the subdivision will not impede identified
park/recreation projects.
The proposed payment in lieu amount is consistent with the requirements of the UDO.
Attachment 3 contains additional staff comments for this project.
Courtesy Review: While this project is not within a required Courtesy Review area with the
Town of Hillsborough, staff has submitted copies of the Preliminary Plan to Town Staff. To date,
staff has not received any comments from the Town other than the site is in their long-term
interest area, as delineated within WASMPBA, and that no municipal water or sewer services
are nearby or planned in the future.
Analysis: As required under Section 2.15.3 (C) of the LIDO, the Planning Director is required to:
`Determine if the plat and application conform with applicable regulations' and `submit a
recommendation' on the Preliminary Plat to the Planning Board for consideration. In analyzing
this request, the Planning Director offers the following:
1. The application has been deemed complete in accordance with the requirements of
Section 2.2 and 2.15.3 of the UDO.
2. Copies of the materials have been reviewed commented on by parties indicated in
Section 2.15.3 (C) (3) of the UDO.
3. Staff has determined that the property is of sufficient size and design to support the
proposed subdivision.
4. The proposal appears consistent with the various goals outlined within the
Comprehensive Plan concerning development, including:
a. Land Use Overarching Goal: Coordination of the amount, location, pattern, and
designation of future land uses, with availability of County services and facilities
sufficient to meet the needs of Orange County's population and economy
consistent with other Comprehensive Plan element goals and objectives.
b. Land Use Goal 2: Land uses that are appropriate to on-site environmental
conditions and features and that protect natural resources, cultural resources, and
community character.
c. Land Use Goal 3: A variety of land uses that are coordinated within a program
and pattern that limits sprawl, preserves community and rural character, minimizes
land use conflicts, supported by an efficient and balanced transportation system.
5. Staff has determined that the proposed subdivision is consistent with the provisions and
goals of the Comprehensive Plan.
Based on this analysis, the Planning Director recommends the Major Subdivision Preliminary
Plat application for Fairway Hills be approved in accordance with the Resolution of Approval
contained within Attachment 7.
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As a general reminder, the Resolution of Approval contains declarations and conditions of
approval associated with this project. Said conditions are tied to specific subdivision
requirements, as articulated within the UDO, or are directly associated with an applicant's
proposal/design (i.e. percentage of open space, setbacks, minimum to maximum lot size,
passive recreation areas, etc.). These conditions apply to this specific request based on the
requirements of the UDO for major subdivision projects not exceeding 20 proposed lots. These
`conditions' are an attempt to memorialize applicable development standards as they relate to
the project and the enforcement of the UDO. The imposition of these `conditions' should not be
confused with actions the County can take for Conditional Zoning or Special Use Permit
applications, which potentially have broader discretion and scope.
As this project represents a regulated 'by right' subdivision, the applicant can only be held to the
standards contained within the UDO, specifically the provisions of Section 2.15 Major
Subdivisions and Article 7 Subdivisions.
SOCIAL JUSTICE IMPACT: The following Orange County Social Justice Goal is applicable to
this item:
• GOAL: ESTABLISH SUSTAINABLE AND EQUITABLE LAND-USE AND
ENVIRONMENTAL POLICIES
The fair treatment and meaningful involvement of people of all races, cultures, incomes
and educational levels with respect to the development and enforcement of
environmental laws, regulations, policies, and decisions. Fair treatment means that no
group of people should bear a disproportionate share of the negative environmental
consequences resulting from industrial, governmental and commercial operations or
policies.
FINANCIAL IMPACT: Staff has determined the project would not require augmentation of
County budgetary outlays to support services and that anticipated revenues from property taxes
should supplement increases in cost.
RECOMMENDATION: The Manager recommends the Board:
1. Receive the Planning Board and Planning Director's recommendations on the
Preliminary Plat application for the Fairway Hills Subdivision,
2. Discuss the proposal as desired, and
3. Approve the Preliminary Plat and Resolution of Approval contained in Attachment 7.
APPLICATION FOR PRELIMINARY PLAN APPROVAL 9
MAJOR SUBDIVISION
ORANGE COUNTY 5105
PLEASE TYPE OR PRINT(INK ONLY) DATE:
SUBDIVISION NAME:
LOCATION:
OWNERIDEVELOPER:
ADDRESS: TELEPHONE NO.:
AGENTICONTACT:
ADDRESS: TELEPHONE NO.:
A SUMMARY INFORMATION
Orange County Tax Map Block Lot(s) Township
Zoning ❑istrict(s):
Total Number of Acres:
Total Number of Lots_ Average Lot Size: Minimum Lot Size:
NumberlType of Structures. (existing) (proposed)
Linear Feet in Streets: Acres in Open Space:
Water Supply: Public(specify) Community Individual
Wastewater Disposal: Public(specify) Community Individual
School District: Fire District:
General Land Uses in Area:
Critical Areas: streamldrainageways flood prone areas
watershed{specify} historic sites
other(explain)
Is the property to be subdivided currently under"farm use value taxation"?Yes No If"yes,"please
contact the Orange County Tax Office. Subdivision of the property may require payment of deferred taxes under
"farm use value taxation."
S All plats must be submitted on sheet no smaller than one inch equals two-hundred feet(1"=200') and no larger than
one inch equals twenty feet(1"=20')and must contain the following information:
subdivision name zoning of tract and adjacent
properties
name✓t<address of owner(s) building setback lines by notation or
typical lot layout
name&address of subdivider location and width of existing and
(if other than owner) proposed easements(drainage,
utilities,roads,etc.)
name of surveyor,engineer,landscape Existing,proposed and adjoining
architect or architect,address, rights-of-way including dimensions
registration#&seal and street names and State Road
(title)Preliminary Plan numbers. Linear feet of road
scale,north arrow centerlines and approximate acreage
date of plan preparation and revisions of new street rights-of-way
township,tax map-block-lot references existing and proposed utilities,
Parent Parcel Identification# including type,sizes, hydrants,
deed book and page#of property to be valves,manholes
subdivided
boundary described with bearings and existing and proposed curbs, gutters
distances and culverts,including sixes and
grades
total acreage of the tract and acreage of location and width of alleys, 10
lots,Including and excluding area within sidewalks, bike lanes,transit
rights-of-way systems,and bus stops
control corner typical street cross-sections and
Intersection details Including design
and width of travelway and
shoulders
proposed lot lines with dimensions horizontal alignment,centerline
lot&block numbers radius,and general curve data on all
phasing line(s) proposed streets
topography at ten(10)foot intervals permanent features such as
water bodies,streams,floodways and buildings,cemeteries, historic
floodplains landmarks
stream buffers adjoining lot layout names of
location and size of parcels dedicated for adjoining property owners. If
public use,recreational use or reserved subdivided,subdivision plat name,
In common,with purpose noted plat book& page number, and
perimeter lot numbers.
Impervious surface data(if located In location and size of lots of restricted
water supply watershed) development potential and notation
on plat regarding same
vicinity map showing general location of stormwater detention and/or
subdivision with streets and roads retention sites and undisturbed
identified by State Road number and areas for infiltration purposes(if
name located in water supply watershed)
landscaping and buffer requirements
township,corporate and extraterritorial Identified natural areas and wildlife
planning jurisdiction lines which cross corridors
the property
C OTHER SUBMITTAL REQUIREMENTS:
I. Twenty-five(25)copies of the Preliminary Plat.
2. One full size copy of an Orange County Tax Map(with tax parcels involved clearly marked).
3. Where municipal or OWASA sewer is not available,a copy of the Preliminary Plat indicating Health Department
approvalldenial for each lot show thereon.
4. Where a private road is proposed,a written statement by the applicant or his/her authorized representative which
sets for the justification for a private road(see Section IV-B-3-d-1 of the Orange County Subdivision Regulations).
5. Auxiliary documents,in draft form, prepared in accordance with Section VI of this Ordinance which assure
completion and/or maintenance of Improvements required by this Ordinance. Such documents may include, but
not be limited to,a private road maintenance agreement and articles of incorporation and restrictive covenants
pertaining to a homeowners association. These documents may be required as necessary as evidence that the
ordinance requirements are being met.
6. Fee-$500 plus$5.00 per lot(one fee for Preliminary and Final Plat).
7. If the subdivision contains 10 lots or more,the following information shall be submitted with the application:
a. Number of years to buildoul.
b. Number of houses to be built during each year until buildout.
c. Average price of houses Including lots for each year to buildout.
I certify that to the best of my knowledge the information contained above,and in the supporting documents,is a factual representation
of the proposed development. I acknowledge that by signing this application,the Orange County Planning and Inspections Department
is authorized,pursuant to N.C. Gen.Stat.Section 153a-360,to make as many inspections of the subject property as may be necessary
to verify that the proposed work outlined herein is consistent with the provisions of all applicable State and local laws,ordinances and
regulations. By signing this application, I acknowledge and agree that inspectors, zoning officers, erosion control officers, and other
staff of the Orange County Planning & Inspections Department have a right, upon presentation of proper credentials, to enter the
subject property at any r asonabl hour for the purposes of inspection or other enforcement action.
AP15LICANT'S SIGNATURE DATE Q A RE
FEES: Amount Date Paid Receipt fF
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DECLARATION OF COVENANTS,CONDITIONS,
RESTRICTIONS AND EASEMENTS
FOR
E
THIS DECLARATION OF COVENANTS, CONDITIONS,RESTRICTIONS AND
EASEMENTS FOR ("Declaration") is made and executed effective as of the
day of , 2019, by , a North Carolina limited
liability company, 504 Meadowlands Drive,Hillsborough,North Carolina 27278("Declarant").
Recitals
Declarant has acquired the Property (as hereinafter defined) which is located in Orange
County,North Carolina.
Declarant intends to improve and develop the Property as a residential planned
community to be known as IP�W" by subdividing the Property into Lots (as hereinafter
defined) for detached single family residential buildings and Common Elements (as hereinafter
defined) for the common use and enjoyment of the owners of the Lots and their respective family
members,guests,tenants and/or invitees.
In furtherance of its development of the Property as a residential planned community,
Declarant intends to subject the Property to all of the covenants, conditions, restrictions,
easements, liens, charges, assessments and equitable servitudes set forth in this Declaration for
the benefit of the Community (as hereinafter defined), the owners of Lots and their respective
family members,guests,tenants and/or invitees,and the Association(as hereinafter defined).
The recording of the Subdivision Plat(as hereinafter defined) and this Declaration in the
office of the Register of Deeds of Orange County, North Carolina, will create a residential
planned community upon the Property pursuant to the provisions of the Act (as hereinafter
defined).
NOW, THEREFORE, subject to the rights of Declarant established and/or reserved
herein, Declarant hereby declares that all of the Property, including each Lot and all Common
Elements, shall be hereafter owned, held, occupied, improved, used, mortgaged, transferred, sold,
leased, rented and/or conveyed subject to and in accordance with all of the covenants, conditions,
restrictions, easements, liens, charges, assessments and equitable servitudes set forth in this
Declaration to the extent not inconsistent with the provisions of the Act and/or other applicable law.
The purpose of this Declaration shall be to enhance and protect the value, use, enjoyment and
desirability of the Property. This Declaration and all of the covenants, conditions, restrictions,
easements, liens, charges, assessments and equitable servitudes set forth herein shall run with the
Property, including each Lot and all Common Elements, and shall be binding upon and inure to
the use, benefit and enjoyment of each Person (as hereinafter defined) having any right, title
and/or interest in or to the Property, including Declarant, each owner of a Lot, the Association
and their respective heirs, successors and/or assigns.
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ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Each of the following terms shall have the meaning
ascribed to it when and as used in this Declaration:
(a) "Act" shall mean the North Carolina Planned Community Act, Chapter
47F of the General Statutes of North Carolina, as same may be amended, modified and/or
supplemented from time to time.
(b) "Additional Property" shall mean any tract(s) or parcel(s) of land,
exclusive of the Initial Property, that Declarant shall, at any time during the Period of Declarant
Control (as hereinafter defined), make subject to the provisions of this Declaration for the
purpose of creating additional Lots, Common Elements and/or Streets (as hereinafter defined) as
provided in Section 2.02.
(c) "Anrfual Assessment" shall mean an assessment levied each calendar
year by the Board of Directors (as hereinafter defined) against each Lot to pay the Common
Expense Liability (as hereinafter defined) allocated to each such Lot as provided in this
Declaration and in the Bylaws(as hereinafter defined).
(d) "Architectural Control Committee" shall mean a committee established
pursuant to the provisions of ARTICLE XI for the purposes as set forth in ARTICLE XI.
(e) "Articles of Incorporation" shall mean the Articles of Incorporation of
the Association as same may be amended and/or modified from time to time as provided therein.
The initial Articles of Incorporation shall be substantially in the form attached as EXHIBIT B.
(f) "Assessment" shall mean any Annual Assessment or Special Assessment
(as hereinafter defined).
(g) "Association" shall mean Havenstone Homeowners Association, Inc., a
North Carolina nonprofit corporation,its successors and/or assigns.
(h) "Board of Directors" shall mean the board of directors of the Association.
(i) "Building" shall man any residential building, detached garage, non-
residential building(e.g., community center, office and/or recreation building), shed or outbuilding
at any time existing, constructed, erected, installed and/or placed on or upon any Lot or Common
Elements.
(j) "Bylaws" shall mean the initial bylaws of the Association as same may be
amended and/or modified from time to time as provided therein. The initial Bylaws shall be
substantially in the form attached as EXHIBIT C.
(k) "Charge" shall mean any late payment charge, interest on a delinquent
Assessment or any other cost, charge or expense, including reasonable attorneys' fees, incurred by
the Association or its management agent or other representative to collect any delinquent
Assessment and/or foreclose any Assessment lien,as provided in this Declaration.
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(1) "Common Elements" shall mean (i) each Street until it is accepted for
maintenance by the North Carolina Department of Transportation or any municipality having
jurisdiction, and (ii) each tract or parcel of land at any time subdivided from the Property for the
purpose of being conveyed to the Association for the common use and enjoyment of the Members
as provided in this Declaration and as shown on the Subdivision Plat, regardless of whether any
such tract or parcel of land is designated as "common area", "open space" or otherwise on the
Subdivision Plat, and shall include each Building and/or Improvement (as hereinafter defined)
located thereon. The term "Common Elements" shall not include any Lot or any Street that has
been accepted for maintenance by the North Carolina Department of Transportation or any
municipality having jurisdiction.
(m) "Common Expense Liability" shall mean the liability for Common
Expenses (as hereinafter defined) allocated to each Lot as provided in this Declaration and in the
Bylaws.
(n) "Common Expenses" shall mean the actual costs and expenses incurred by
the Association each calendar year to operate the Association and to operate, maintain, repair and
replace the Common Elements, including each Building and/or Improvement located thereon, and
each Trail (as hereinafter defined) as provided in this Declaration. Common Expenses shall
include,without limitation, the annual costs and expenses for service contracts, lighting, removal
of debris from ponds, steams and rivers, snow removal, utility services, taxes and other
governmental charges levied against any Common Elements, casualty insurance, liability
insurance, administration (including compensation of a management agent, if any) and
allocations for reserves.
(o) "Community" shall mean '�", a residential planned community
developed or to be developed upon the Property in accordance with the Subdivision Plat and the
provisions of this Declaration. The Community shall include each Lot, the Common Elements,
each Street, each Building, each Improvement (as hereinafter defined) and each easement
established,conveyed and/or reserved in this Declaration.
(p) "Completion of Sales" shall mean the earlier of(i)the record conveyance
of all Lots in the Community to purchasers other than a builder, Declarant or a successor to
Declarant hereunder, or (ii) Declarant's execution and recording of a Notice of Termination of
Sales in the office of the Register of Deeds of Orange County,North Carolina.
(q) "Declarant" shall mean a North Carolina limited
liability company,its successors and/or assigns.
(r) "Declaration" shall mean this Declaration of Covenants, Conditions,
Restrictions and Easements for Havenstone as amended, modified and/or supplemented by any
Supplemental Declaration(as hereinafter defined).
(s) "Entry Feature" shall mean any permanent identification sign or
monument installed and/or erected on any Common Elements at or near an entrance to the
Community.
(t) "Guidelines" shall mean such architectural and site design guidelines,
standards and/or specifications pertaining to the design, construction, alteration and/or location of
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any Building or Improvement upon any Lot or Common Elements as may be established, amended,
modified, supplemented and/or repealed from time to time by Declarant or the Architectural
Control Committee as provided in ARTICLE XI.
(u) "Improvement"shall mean any improvement,exclusive of any Building or
Street, at any time existing, constructed, erected, installed and/or placed on or upon any Lot or
Common Elements, including,without limitation, any Entry Feature,driveway,parking area,fence,
patio,swimming pool and/or other non-impervious surface area.
(v) "Initial Property" shall mean each of those certain tracts or parcels of land
identified and described on the attached EXHIBIT A.
(w) "Lot" shall mean any tract or parcel of land at any time subdivided from
the Property for separate ownership and residential use as provided in this Declaration and as
shown on the Subdivision Plat. Each Lot shall be assigned a unique identifying number on the
Subdivision Plat. The term "Lot" shall not include any Common Elements or other part of the
Property that has not been subdivided for separate ownership and residential use.
(x) "Member"shall mean any Person who is a member of the Association.
(y) "Owner" shall mean any Person, whether one or more, who holds record
title to any Lot. The term "Owner" shall not include any Person who shall have or acquire (i)an
interest in a Lot merely as security for the performance of an obligation or(ii)a leasehold interest
only in any Lot. The term "Owner"shall include Declarant for so long as Declarant shall own,hold
or retain record title to the Property,or any part thereof,including any Lot.
(z) "Period of Declarant Control' shall mean a period of time commencing
on the date this Declaration is recorded in the office of the Register of Deeds of Orange County,
North Carolina, and continuing thereafter until the earlier of(i) the date of Completion of Sales
or (ii) the date on which Declarant executes and records a Termination of Reserved Declarant
Rights in the office of the Register of Deeds of Orange County,North Carolina for the purpose of
terminating any all rights reserved by Declarant herein (exclusive of any rights that Declarant
may have solely in its capacity as an Owner).
(aa) "Person" or"person" shall mean any natural person, corporation, business
or other trust, partnership, limited liability company, joint venture, association, government,
governmental subdivision or agency,or other legal or commercial entity.
(bb) 'Property" shall mean all of the Initial Property and such Additional
Property, if any, as shall be made subject to the provisions of this Declaration from time to time as
provided in Section 2.02.
(cc) "Rules and Regulations" shall mean such rules and/or regulations
governing access to and/or the use of any Lot, Common Elements, Street and/or Trail as may be
adopted from time to time by Declarant during the Period of Declarant Control or,thereafter,by the
Board of Directors,to the extent not inconsistent with the provisions of this Declaration.
(dd) "Special Assessment" shall mean an assessment levied by the Board of
Directors against any Lot or Lots as provided in Section 8.04 to fund, or to reimburse the
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Association for, without limitation, (i) the costs of any capital improvement to any Common
Elements,and/or(ii)any extraordinary cost or expense incurred by the Association.
(ee) "Street" shall mean any part of the Property identified and described as a
street,road or cul-de-sac on the Subdivision Plat.
(ff) "Subdivision Plat" shall mean that certain plat of survey recorded by
Declarant in the office of the Register of Deeds of Orange County, North Carolina in Plat Book
Pages through , as amended, modified and/or supplemented by any Supplemental
Plat(as hereinafter defined).
(gg) "Supplemental Declaration" shall mean any document executed by
Declarant during the Period of Declarant Control or,thereafter,by the Association,and recorded in
the office of the Register of Deeds of Orange County,North Carolina for the purpose(s)of,without
limitation, (i) amending, modifying and/or supplementing any provision contained in this
Declaration, and/or (ii) subjecting Additional Property, including any Lot(s), Common Elements
and/or Street(s) subdivided therefrom, to the provisions of this Declaration as provided in Section
2.02.
(hh) "Supplemental Plat" shall mean any plat of survey prepared by Declarant
during the Period of Declarant Control or,thereafter, by the Association and each affected Owner,
if any, in the office of the Register of Deeds of Orange County, North Carolina for the purpose(s)
of, without limitation, (i) subdividing, re-configuring, combining, re-combining, consolidating,
removing and/or renumbering any Lot(s), Common Elements and/or Street(s), or any combination
thereof; (ii) adding Additional Property, including any Lot(s), Common Elements and/or Street(s)
subdivided therefrom,to the Community as provided in Section 2.02; and/or(iii)adding,removing
and/or relocating any Trail(s)on any Lot(s)and/or Common Elements.
(ii) "Trail" shall mean any part of any Lot and/or Common Elements
designated as a "Trail" on the Subdivision Plat. Each Trail shall include all of the applicable
easement area described in Section 3.05.
Section 1.02 Rules of Construction.
(a) Gender. When and as used in this Declaration, words of the masculine
gender shall be deemed and construed to include co-relative words of the feminine and neuter
genders and words of the neuter gender shall be construed to include co-relative words of masculine
and feminine genders.
(b) Ca tp ions. The captions or headings in this Declaration are for
convenience only and in no way define, limit or describe the scope or intent of any provision of this
Declaration.
(c) Reference. All references in this Declaration to particular Articles,
Sections or paragraphs are references to Articles, Sections or paragraphs of this Declaration unless
some other reference is established.
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ARTICLE II
THE PROPERTY
Section 2.01 Initial Property. The Property shall consist of all of the Initial Property
as identified and described on the attached EXHIBIT A.
Section 2.02 Additional„Proper tr'. In addition to the Initial Property, the Property shall
also consist of such Additional Property as Declarant, in its sole discretion, shall at any time during the
Period of Declarant Control make subject to the provisions of this Declaration for the purpose of creating
additional Lots,Common Elements,Streets and/or Trails. Declarant hereby reserves the right at any time
or times during the Period of Declarant Control, in its sole discretion and without the consent of the
Members or the Association, to subject Additional Property to this Declaration by recording a
Supplemental Plat and a Supplemental Declaration in the office of the Register of Deeds of Orange
County, North Carolina. Unless otherwise expressly stated therein, each such Supplemental Plat and
Supplemental Declaration shall be effective as of the date and time it is recorded in the office of the
Register of Deeds of Orange County,North Carolina.
All Lots, Common Elements and/or Streets created pursuant to the provisions of this
Section shall be thereafter owned, held, leased, transferred, sold, mortgaged and/or conveyed by
Declarant, each Owner and/or the Association, as applicable, subject to all of the covenants,
conditions, restrictions, easements, liens, charges, assessments and equitable servitudes set forth
in this Declaration. Each Owner of a Lot created pursuant to this provisions of this Section shall
be a member of the Association and shall be subject to all of the covenants, conditions,
restrictions, easements, liens, charges, assessments and equitable servitudes set forth in this
Declaration.
ARTICLE III
EASEMENTS
Section 3.01 Temporary Access Easement. Subject to the covenants, conditions,
restrictions, limitations and other easements set forth in this Section and elsewhere in this
Declaration, Declarant hereby establishes, reserves and conveys, as applicable,for the benefit of(a)
Declarant and its members, managers, employees, contractors and agents during the Period of
Declarant Control, (b) each Owner and each such Owner's family members, tenants, guests,
contractors and invitees, and (c) the Association and its employees, contractors and agents, a non-
exclusive temporary access easement over, upon and across each Street for the purposes of
providing (i) vehicular and pedestrian ingress, egress and regress to and from
and each Lot and Common Elements, and to, from and between each Lot and
Common Elements; and (ii) access to and upon each Street for maintenance, repair and upkeep.
The easement herein established and conveyed shall terminate,with respect to each Street,upon the
acceptance of such Street for maintenance by the
Section 3.02 General Utility Easement. Subject to the covenants, conditions,
restrictions, limitations and other easements set forth in this Section and elsewhere in this
Declaration, Declarant hereby establishes, reserves and conveys,as applicable,for the benefit of(a)
Declarant and its members, managers, employees, contractors and agents during the Period of
Declarant Control,(b)the Association and its employees,contractors and agents,and(c)any public
or private utility and its employees, contractors and agents, a non-exclusive easement over, upon,
across and under each Lot and the Common Elements to the extent reasonably necessary for the
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purposes of constructing, installing, maintaining, repairing and/or replacing any
■MIWM&= storm water drainage line, natural gas line, cable communication transmission,
telephone and/or electric power cable and/or equipment, and/or any other public or private utility
pipe, line, cable, equipment and/or facility servicing any Lot, Common Elements and/or other part
of the Property.
Section 3.03 Eme enc • Services Access Easement. Subject to the covenants,
conditions, restrictions, limitations and other easements set forth in this Section and elsewhere in
this Declaration, Declarant hereby establishes and conveys, as applicable, for the benefit of any
private, county, municipal, state or federal emergency services agency and/or personnel, including,
without limitation, any law enforcement, fire, ambulance, medical and/or rescue service and/or
personnel, a non-exclusive access easement over, upon and across the Common Elements for the
purpose of providing such vehicular and/or pedestrian ingress, egress and regress to and from
and each Lot and Common Elements as shall be reasonably necessary
for any such emergency services agency and/or personnel to respond to, perform its designated
function at,and/or depart from,any apparent or actual emergency upon any Lot,Common Elements
and/or other part of the Property.
Section 3.04 Temporary Non-Emergency Services Access Easement. Subject to the
covenants, conditions, restrictions, limitations and other easements set forth in this Section and
elsewhere in this Declaration, Declarant hereby establishes and conveys, as applicable, for the
benefit of any non-emergency county, municipal, state or federal service provider, or any non-
emergency private service provider contracted by the Association or by any Owner, including,
without limitation, the United States Postal Service, any overnight courier service (e.g. FedEx,
UPS) or any trash removal service, a temporary non-exclusive access easement over, upon and
across each Street for the purpose of providing such vehicular and/or pedestrian ingress,egress and
regress to and from and each Lot and Common Elements as shall be
reasonably necessary for any such service provider to perform its designated and lawful service(s)
for the benefit of (a) Declarant and its members, managers, employees, contractors and agents
during the Period of Declarant Control, (b) the Owners and their respective family members,
tenants,guests and invitees, and(c)the Association and its employees,contractors and agents. The
easement hereinabove established and conveyed shall terminate, with respect to each Street, upon
the acceptance of such Street for maintenance by the North Carolina Department of Transportation
or a municipality having jurisdiction.
Section 3.05 Trail Easements.
(a) Maintenance Repair and Upkeep. Subject to the covenants, conditions,
restrictions, limitations and easements set forth in this Section and elsewhere in this Declaration,
Declarant hereby establishes, reserves and conveys, as applicable, for the benefit of(i) Declarant
and its members, managers, employees, contractors and agents during the Period of Declarant
Control, and (ii) the Association and its employees, contractors and agents, a non-exclusive
easement over, upon and across any part of any Lot, Common Elements and/or other part of the
Property designated on the Subdivision Plat as a Trail for the purposes of maintenance, repair and
upkeep of such Trail. Unless otherwise specified on the Subdivision Plat, the easement herein
established, reserved and/or conveyed for each Trail,regardless of whether such Trail is located on
any Lot,Common Elements and/or other part of the Property, shall be a total of twenty(20)feet in
width, including ten(10) feet on either side of the centerline of any Trail shown on the Subdivision
Plat; provided, however, that an additional construction easement seven and one-half feet(7.5') in
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width located on either side of the boundary of the above-described easement is hereby reserved for,
the limited, purpose of constructing the trail over each such easement, including'the laying of
asphalt.
(b) Pedestrian and Bicycle Use. Subject to the covenants, conditions,
restrictions and limitations set forth in this Section and elsewhere in this Declaration, Declarant
hereby establishes, reserves and conveys, as applicable, to and for the benefit of each Lot, the
Owner of such Lot and each such Owner's family members,tenants,guests and invitees,a perpetual
non-exclusive easement for pedestrian and bicycle use only over, upon and across any part of any
Lot, Common Elements and/or other part of the Property that is designated as a Trail on the
Subdivision Plat, which easement shall be appurtenant to and run with title to each Lot. Unless
otherwise specified on the Subdivision Plat, the easement herein established, reserved and/or
conveyed for each Trail, regardless of whether such Trail is located on any Lot,Common Elements
and/or other part of the Property, shall be a total of twenty(20)feet in width, including ten(10)feet
on either side of the centerline of any Trail shown on the Subdivision Plat.
(c) Assumption of Risk, Release of Liability. Each Owner, by his or her
acceptance of a deed or other instrument conveying record title to any Lot to him or her,
acknowledges, covenants and agrees, for himself or herself and his or her family members,tenants,
guests and invitees, (i) that each Trail may have holes, overhangs, obstructions, snakes, other
wildlife and/or other hazards which may result in injury to any pedestrian and/or bicyclist using
such Trail; (ii)that none of Declarant,the Association or the Owner of any Lot on which a Trail is
located has expressly or impliedly warranted to him or her the safety or condition of such Trail;and
(iii)that he or she accepts and assumes of his or her own free will and volition, and without duress,
any and all risk of loss or damage to personal property, personal injury or death resulting from his
or her use of any Trail for any purpose. Furthermore, and as a condition of the grant of the
foregoing use easement with respect to each Trail, each Owner,for himself or herself and his or her
family members, tenants, guests and invitees, does hereby, to the full extent that he or she may
legally do so pursuant to applicable law,forever release,discharge and hold harmless Declarant,the
Association and each Owner of a Lot upon which a Trail is located from and against,and each such
Owner hereby waives, any right, demand, claim and/or cause of action that he or she and/or his or
her heirs, successors, personal representatives and/or assigns may at any time have or acquire
against any one or more of Declarant,the Association and any Owner of a Lot upon which a Trail is
located arising as a consequence of any loss or damage to personal property, personal injury or
death suffered as a result of his or her use of any Trail for any purpose and/or the use of any Trail
for any purpose by any of his or her family members,tenants,guests and/or invitees.
Section 3.06 Easement of Enjoyment. Subject to the covenants, conditions,
restrictions, limitations and other easements set forth in this Section and elsewhere in this
Declaration, Declarant hereby establishes, reserves and conveys, as applicable, for the benefit of
each Owner and each Owner's family members, tenants, guests and invitees, a perpetual non-
exclusive right and easement to use and enjoy the Common Elements and each Trail for any lawful
purpose not inconsistent with the provisions of this Declaration, the Guidelines and/or the Rules
and Regulations,which right and easement shall be appurtenant to and run with title to each Lot.
TO HAVE AND TO HOLD each of the easements, rights and licenses established,
reserved and/or conveyed pursuant to this Article unto the Person(s)benefited thereby according to
its terms. Notwithstanding any provision contained in this Article to the contrary, each of the
easements established, reserved and/or conveyed to or by the Owners, the Association and/or
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Declarant pursuant to this Article shall benefit and/or burden each Lot, the Common Elements
and/or any other part of the Property, as applicable; shall be appurtenant to and run with the title to
each Lot,the Common Elements and/or any other part of the Property, as applicable; shall inure to
the benefit of each Owner and each Owner's family members, tenants, guests and invitees, the
Association and its employees, contractors and agents and Declarant and its members, managers,
employees, contractors and agents during the Declarant Control Period, as applicable; and shall be
subject to any and all covenants,conditions,restrictions and limitations set forth in this Declaration,
the Guidelines and/or the Rules and Regulations,as applicable.
ARTICLE IV
COMMON ELEMENTS AND TRAILS
Section 4.01 Ownership. The Common Elements and each Building, Entry Feature
and other Improvement located thereon, if any,shall be owned,operated,maintained and insured by
the Association for the use, benefit and enjoyment of the Owners and their respective family
members, tenants, guests and invitees in accordance with the provisions of this Declaration, the
Bylaws, the Guidelines and the Rules and Regulations, as applicable, and shall be subject to the
easements established in ARTICLE III. Declarant shall record a non-warranty deed in the office
of the Register of Deeds of Orange County,North Carolina conveying the Common Elements to the
Association.
Section 4.02 Use. Each Owner and each Owner's family members, tenants, guests
and invitees shall be permitted to access and use the Common Elements and Trails only to the
extent expressly permitted in this Declaration, the Bylaws and/or the Rules and Regulations, as
applicable. The right of each Owner and each Owner's family members, tenants, guests and
invitees to access and use the Common Elements and Trails shall also be subject to each of the
following:
(a) The right of Declarant during the Period of Declarant Control and,
thereafter, the Board of Directors, to promulgate and enforce reasonable Rules and Regulations
governing the use of the Common Elements and Trails to ensure the availability of the Common
Elements and Trails to all Owners and their respective family members, tenants, guests and
invitees and the safety of all Owners and their respective family members, tenants, guests and
invitees using the Common Elements and Trails.
(b) The right Declarant during the Period of Declarant Control and,thereafter,
the Board of Directors,to suspend(i)the right of any Owner and such Owner's family members,
tenants, guests and invitees to use the Common Elements (exclusive of any Street) and/or Trails
for any period during which such Owner has failed to pay any Assessment, and (ii) the right of
any Owner and such Owner's family members, tenants, guests and invitees to use the Common
Elements (exclusive of any Street) and/or Trails for a period not to exceed sixty (60) days as a
consequence of such Owner's infraction of any other provision of this Declaration or the Rules
and Regulations.
(c) The right of Declarant during the Period of Declarant Control and,
thereafter, the Board of Directors, to suspend the right of any Owner or such Owner's family
members,tenants,guests and invitees to use the Common Elements(exclusive of any Street)and/or
Trails in the event such Owner or any of such Owner's family members, tenants, guests and/or
invitees shall have used any Common Elements in violation of the provisions of this Declaration or
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the Rules and Regulations or in any manner which Declarant during the Period of Declarant Control
or, thereafter, the Board of Directors, shall, in its sole discretion, determine to be negligent or
unsafe or to constitute an unreasonable nuisance.
(d) The right of Declarant during the Period of Declarant Control and,
thereafter, the Association,to dedicate or transfer all or any part of the Common Elements to any
public agency, authority or utility for such purposes and subject to such conditions as may be
agreed to by the Members; provided, however, that subsequent to the Period of Declarant
Control, no such dedication or transfer shall be effective unless approved by the affirmative vote
or written agreement of Members eligible to cast not less than sixty-seven percent (67%) of all
votes in the Association. This paragraph shall not, however, preclude the Association,
subsequent to the Period of Declarant Control, by action of the Board of Directors, from granting
such easements for the installation and maintenance of electrical, telephone, cablevision, water
and sewerage utilities and drainage facilities on, over, under and across any Common Elements,
without the assent of the Members, as the Board of Directors, in its sole discretion, shall deem
necessary.
(e) The right of Declarant during the Period of Declarant Control and,
thereafter, the Association, to grant utility, drainage and/or other easements over the Common
Elements.
(f) The right of Declarant during the Period of Declarant Control and,
thereafter, the Board of Directors, to limit the use of the Common Elements and/or Trails to the
Owners and their respective family members,tenants,guests and invitees.
(g) The right of Declarant during the Period of Declarant Control to
reconfigure, expand, add,reduce or eliminate any Common Elements and/or Trails.
Section 4.03 Maintenance of Common Elements and Trails. The Association shall
at all times keep and maintain the Common Elements, including any Building, Entry Feature and/or
other Improvement thereon, and each Trail in a neat, clean, attractive and operable condition so as
to (a) render and maintain the Common Elements and each Building and Improvement thereon, if
any, and each Trail in an accessible and safe condition consistent with the intended use(s) and
purpose(s) thereof as set forth in this Declaration; and(b) enhance and maintain the attractiveness,
desirability and value of the Community. Such maintenance shall include, without limitation, the
repair, maintenance and upkeep of the Common Elements, including any Building, Entry Feature
and/or other Improvement thereon, and each Trail; snow, debris and trash removal; mowing and
trimming of grassed areas;the removal of deadfall, debris and obstructions from rivers,streams and
ponds located on any Common Elements or Trail; the maintenance of water quality in any pond
located on any Common Elements; and the control of silt and erosion from or on any Common
Elements or Trail.
ARTICLE V
RESTRICTIVE COVENANTS
Section 5.01 Rules and Regulations. Declarant during the Period of Declarant
Control and, thereafter, the Board of Directors, shall have the power to formulate, amend,
publish and enforce reasonable rules and regulations concerning the use, enjoyment and/or
occupancy of the Lots and Common Elements to the extent not inconsistent with the provisions
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of this Declaration, the Act and/or any applicable land use ordinance, regulation, statute, law or
condition of approval of the Subdivision Plat.
Section 5.02 Lots, Common Elements and Streets. Except to the limited extent
otherwise expressly provided in this Declaration, all of the Lots, Common Elements and Streets
shall be subject to the following use restrictions:
(a) Subdivision of Lots. No Lot shall be subdivided.
(b) Residential Use of Lots. Each Lot shall be used for single-family
residential purposes only. Notwithstanding the foregoing, neither Declarant nor the Association
shall interfere with any Owner's freedom to determine the composition of his or her household;
provided, however, that Declarant during the Period of Declarant Control and, thereafter, the
Association, may enforce reasonable occupancy limits. No Lot shall contain more than one(1)
primary detached residential building with an attached garage. Each Lot may contain additional
Building(s) and/or Improvements to the extent not inconsistent with the provisions of this
Declaration and the Guidelines. No residential building shall be located on any Common
Elements.
(c) Trailers. Mobile Homes and Modular Homes. No trailer, mobile home
or modular home shall be placed, constructed or installed on any Lot.
(d) Temporary Residences. No tent, garage, barn, outbuilding or Building
other than a residential building constructed on a Lot in accordance with the provisions of this
Declaration shall be occupied as a temporary or permanent residence by any Person.
(e) No above-ground swimming pool is permitted
in-ground swiinming pool on any Lot is permitted on] , i' vnlmg, in
advance, y eriod of Decl iereafter,by the Architectural
Control Committee. Any in;Mrthe
roved as provided above, must be
located in residential building on i _ quately
rom view from each other Lot, the Common Elements and each Street.
(f) Mailboxes. Individual stand-alone mail boxes shall not be permitted.
Declarant shall cause to be constructed one or more mail box kiosks which shall contain secure
mailboxes for the Lots.
(g) Lot Maintenance. Each Owner shall keep his or her Lot in a neat and
orderly appearance and the grass trimmed to a height not to exceed four (4) inches, free of
excessive weeds, dead bushes and trees, and trash. All Lots shall be maintained so as to present
a clean and pleasing appearance. In the event an Owner does not properly maintain his or her
Lot as required by this subsection, Declarant during the Period of Declarant Control and,
thereafter, the Architectural Control Committee or the Board of Directors, shall have the right to
employ such contractor(s)as may be necessary to perform whatever work is required to make the
Lot compliant with the provisions of this subsection, and any and all costs thereof shall be
assessed to the Lot and the Owner(s)thereof as a Special Assessment.
(h) Nuisance. No act shall be done and no activity shall be carried on upon
any Lot that may be or become an annoyance or nuisance to any Person in the Community.
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(i) Pets and Animals. No animal of any kind shall be housed, bred, raised
or otherwise kept by any Person on any Lot unless expressly permitted herein. Dogs, cats and
other domesticated household pets may be kept on each Lot for the sole pleasure and use of the
occupants of such Lot, but not for any commercial use or purpose. Outside housing for dogs and
other pets shall be constructed in such a way that barking dogs or other loud animals shall not be
heard by other Persons within or outside the Community at night. No commercial kennels or
boarding shall be permitted on any Lot.
In addition to the foregoing, each and every pet at any time housed, bred, raised
or otherwise kept on any Lot shall, at all times,be(i)properly housed or contained in compliance
with the provisions of this Declaration, the Guidelines, the Rules and Regulations and any
applicable local, state or federal code, ordinance, regulation, statute or law; (ii) adequately
supervised, contained and controlled by the Owner of such Lot so as not to chase or molest
wildlife or create a nuisance (including any nuisance resulting from noise or odor), menace or
danger to any Person within or outside the Community; and (iii) properly cared for in good
health and condition with all required vaccinations. The health, welfare and condition of each
pet housed, bred, raised or otherwise kept on any Lot is the responsibility of the Owner of such
Lot. No pet housed, bred, raised or otherwise kept on any Lot shall be allowed to run free on any
other Lot or on any Common Elements or Streets.
Declarant during the Period of Declarant Control and, thereafter, the Board of
Directors shall have the power and authority to require any Owner to remove any pet or other
animal from such Owner's Lot in the event such Owner shall fail to comply with the provisions
of this subsection.
0) Hobbies. Any hobby regularly conducted on any Lot shall not be or
become a nuisance to any Person in the Community. A separate Building for a hobby may be
located on a Lot only if approved by Declarant during the Period of Declarant Control or,
thereafter, by the Architectural Control Committee. If a detached Building on a Lot is to be used
primarily for a hobby activity,the Owner of such Lot must deliver written notice of the intended
use to Declarant during the Period of Declarant Control or, thereafter, to the Architectural
Control Committee, prior to commencing the intended hobby activity and may not commence the
hobby activity until such activity is approved by Declarant or the Architectural Control
Committee,as applicable.
(k) Yard Sales. No private yard sale is permitted on any Lot. Not more than
two (2) Community-wide yard sales shall be permitted each calendar year. Each such yard sale
shall not last longer than six(6)hours.
(1) Garb Me, Containers and Removal. No Lot shall be used or maintained
as a dumping ground for garbage, trash or debris. No garbage incinerator shall be placed or
operated upon any Lot. All trash, garbage and waste on any Lot shall be kept in a sanitary
container or receptacle which shall be shielded from view from all other Lots, Common Elements
and Streets in conformity with the requirements of Declarant during the Period of Declarant
Control and, thereafter, the Architectural Control Committee. Each Owner shall use the trash
removal service contracted for by the Association or otherwise provided by any county or
municipal governmental authority. Until such time, if at all, as the Association or any county or
municipal governmental authority shall provide trash removal service for the Community, each
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Owner shall be responsible for the timely removal of all trash,garbage and debris from his or her
Lot.
(m) Motor Vehicles. No motor vehicle of any kind shall be placed, parked or
permitted to remain on any Common Elements, Street or Trail, except that short term visitor
parking for a personal motor vehicle not to exceed six(6)hours in duration shall be permitted on
any Street. No commercial vehicle in excess of one (1) ton capacity or bus, including, but not
limited to, any school bus, shall be placed, parked, stored or permitted to remain on any Lot. No
boat, trailer, camper, recreational vehicle or similar vehicle shall be placed, parked, stored or
permitted to remain on any Lot unless it is kept in an enclosed structure or adequately screened
in a manner approved by Declarant during the Period of Declarant Control or, thereafter, by the
Architectural Control Committee, so as to conceal same from view from all other Lots, Common
Elements, Streets and Trails. No motor vehicle of any kind shall be placed, parked, stored or
permitted to remain on any Lot unless it has a valid and current license plate and registration or it
is stored in a manner approved, in writing, by Declarant during the Period of Declarant Control
or,thereafter,by the Architectural Control Committee.
No unlicensed motor vehicle of any kind shall be operated on any Common Elements,
Street or Trail. Unless otherwise specified by the North Carolina Department of Transportation
or any municipal government having jurisdiction, the speed limit for all automobiles and other
motorized vehicles using any Street shall not exceed twenty-five (25) miles per hour. The use
and operation of all automobiles and other motorized vehicles within the Community shall be in
compliance with all local,state and federal ordinances,regulations,codes, statutes and laws.
(n) Streets. Each Street shall, until it is accepted for maintenance by the
North Carolina Department of Transportation or any municipality having jurisdiction,be used only
for the specific purposes set forth in ARTICLE III or elsewhere in this Declaration. Each
Owner shall have the duty and responsibility to use each Street in a safe and reasonable manner
so as not to create a nuisance or danger to any Person. Until each Street is accepted for
maintenance by the North Carolina Department of Transportation or any municipality having
jurisdiction, each Owner shall be liable to the Association for any damage to any such Street
(including surfaces, entranceways, security facilities, curbing, culverts, bridges and water runoff
systems)caused by any extraordinary(e.g. construction or other over-sized vehicles) or negligent
use of such Street by such Owner or by such Owner's family member,tenant,guest,contractor or
invitee. Each Owner shall observe all speed limit and other restrictions or limitations on the use
of each Street as may set forth this Declaration or in the Rules and Regulations, or as established
by the North Carolina Department of Transportation or any municipality having jurisdiction.
(o) Trails. The Trails shall not be used by or for motorized vehicles except to
the limited extent Declarant, the Association and/or their contractors shall require the use of
motorized vehicles for maintenance or repair purposes or any emergency services agency or
personnel shall require the use of motorized vehicles to respond to any apparent or actual
emergency. Neither the Association nor any Owner shall construct any Building or Improvement or
plant any tree or shrub within the boundaries of any Trail. Each Trail shall at all times be kept free
and clear of any and all obstructions and overhangs that may pose a risk or danger to any pedestrian.
The Association shall have the sole and exclusive duty, obligation and responsibility to at all times
maintain and repair each Trail, regardless of whether such Trail is located on any Lot, Common
Elements or other part of the Property, and shall at all times keep and maintain each Trail in a neat,
attractive, operable and safe condition so as to enhance the attractiveness, desirability and value of
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the Community and the safety of pedestrians and bicyclists using the Trails. At no time shall any
Owner deny, prevent or obstruct access by the Association or its employees or contractors to any
Trail located on such Owner's Lot for the purpose of performing its duties and responsibilities as
set forth in this paragraph and/or in Sections 3.05 and 4.03.
(p) Construction Damage and Debris. During the construction of any
Building and/or Improvement on any Lot, any damage to any Street or to any Improvement
located on any other Lot or Common Elements caused by such construction must be promptly
remediated by the party responsible for such damage at such party's sole cost and expense. Any
dirt, mud, gravel and/or other debris deposited onto any Street resulting from the construction of
any Building and/or Improvement on any Lot or Common Elements must be cleaned up within
forty-eight (48) hours. During the construction of any Building and/or Improvement on any Lot,
(i)there shall be a gravel entrance from the Street onto such Lot of not less than forty(40)feet in
length for the purpose of reducing the amount of dirt,mud and/or other debris that is tracked onto
the Street from such Lot, and (ii) the Owner of such Lot shall be responsible for keeping all
construction vehicles off any Street, including the shoulder of any Street.
(q) Utilities. All water, electric power, telephone, natural gas, sewage, storm
water drainage and other utility pipes, lines and cables upon any Lot or Common Elements shall be
installed underground. No utility pipe, line or cable upon any Lot or Common Elements shall be
installed above ground, whether on poles,towers or otherwise, except for temporary service during
construction, unless expressly approved, in writing, by Declarant during the Period of Declarant
Control or,thereafter,by the Architectural Control Committee.
(r) Dedication of Public/Private Access. At no time subsequent to the
expiration or any earlier termination of the Period of Declarant Control shall any Lot or part of
any Lot be dedicated or used as a public street or for any public or private access to any other Lot
or any Common Elements without the prior written approval of Declarant during the Period of
Declarant Control or,thereafter,the Association and any affected Owner.
(s) Buildings and Improvements in Easement Areas. No permanent
Building or Improvement shall be permitted within any public or private utility easement if such
Building and/or Improvement may (i) damage or in any manner interfere with the installation,
maintenance, repair and/or replacement of utilities, equipment and/or facilities within such
easement, or (ii) or which may compromise or change the direction and/or rate of flow of
drainage channels within such easement. Appropriate ground cover vegetation within the portion
of any such easement located on any Lot shall be maintained by the Owner of such Lot at his or
her sole cost and expense.
ARTICLE VI
SETBACK AND CONSTRUCTION REQUIREMENTS
Section 6.01 Guidelines. No Building (including any residential building) or
Improvement shall be constructed, erected, placed, altered or permitted to remain on any Lot or
Common Elements unless the plans and specifications for such Building and/or Improvement and
the location of such Building and/or Improvement shall have been approved, in writing, by
Declarant during the Period of Declarant Control or, thereafter, by the Architectural Control
Committee. Each Building and Improvement constructed, erected, placed, altered, existing or
otherwise permitted to remain on any Lot or Common Elements shall comply with the provisions
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of this Declaration,the Subdivision Plat,the Guidelines and all applicable local, state and federal
ordinances, regulations, codes, statutes and laws. The Guidelines are hereby incorporated into
and made a part of this Declaration by this reference; provided, however, that in the event any
provision contained in the Guidelines shall conflict or be inconsistent with any provision
contained in this Declaration, the provision contained in this Declaration shall be paramount and
controlling and the Guidelines shall be construed and enforced consistent therewith.
Each Owner shall submit two (2) sets of plans and specifications to Declarant during the
Period of Declarant Control or, thereafter, to the Architectural Control Committee, for review
and approval before initiating the construction of any Building or Improvement on such Owner's
Lot. Not later than thirty(30) days after its receipt of such plans and specifications, Declarant or
the Architectural Control Committee, as applicable, shall notify such Owner, in writing, whether
Declarant or the Architectural Control Committee has approved such plans and specifications,
disapproved of such plans and specifications or approved such plans and specifications with
conditions. In the event Declarant or the Architectural Control Committee, as applicable, does
not respond, in writing, within such thirty (30) day period, the plans and specifications shall be
deemed to have been approved. Approval by Declarant or the Architectural Control Committee
shall not constitute approval by any local,state or federal governmental authority or agency.
Section 6.02 Building Setbacks. No Building or Improvement shall be constructed,
altered, placed or permitted to remain on any Lot outside the designated building setback lines
shown on the Subdivision Plat unless approved, in writing, by Declarant during the Period of
Declarant Control or, thereafter, by the Architectural Control Committee. No Building or
Improvement shall be located closer to any front, side or rear boundary line of any Lot than the
minimum setback distance required by the applicable zoning or land use ordinance. If two(2)or
more adjoining or contiguous Lots are recombined into a single Lot, or if any recombined Lot is
subsequently subdivided into two (2) or more Lots, the location of any and all Buildings and
Improvements on any such Lot shall be subject to the prior written approval of Declarant during
the Period of Declarant Control or,thereafter,the Architectural Control Committee.
Section 6.03 Vegetative Conditions. No construction, alteration, earth disturbance
or improvement upon, to or on any Lot or Common Elements or any change in its arboreal or
vegetative condition shall be made or begun without the prior written approval of Declarant
during the Period of Declarant Control or,thereafter,the Architectural Control Committee.
Section 6.04 Height Restrictions. No Building (includin T 'lding)
shall - of the Lot or
G 1Fc itis constructed.
Section 6.05 Minimum Square Footage. The heated - area of the main
str orches, ��ara* - ge areas) of the residential building
(exclusive of arm gue thousand four
h q uare feet.
Section 6.06 Driveways. Each Lot shall have a single width driveway with a parking
pad area of sufficient width and/or depth to allow not less than two (2) automobiles to be
simultaneously parked on such pad. Each driveway shall connect to the Street adjoining the Lot
on which such driveway is located only at the designated connection point as shown on the
Subdivision Plat. All driveways shall be paved from the edge of the travel way of the Street to
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any and all Buildings on the Lot and shall otherwise be constructed in compliance with all
applicable Guidelines unless otherwise approved, in writing, by the Declarant during the Period
of Declarant Control or,thereafter,by the Architectural Control Committee.
ARTICLE VII
THE ASSOCIATION
Section 7.01 Membershiu. Each Owner shall automatically be a Member of the
Association at all times during the period of such Owner's ownership of a Lot. Membership in
the Association shall be appurtenant to,and may not be separated from,ownership of a Lot.
Section 7.02 Voting and Votinz Rights. The Association shall have the following
two(2)classes of voting membership:
Class A. The Class A Members shall consist of all of the Owners with the
exception of Declarant; provided,however,that Declarant shall become a Class A Member when
its Class B Membership terminates as provided below. Each Class A Member shall be entitled to
one (1) vote for each Lot owned by him or her. Notwithstanding the foregoing, when a Lot is
owned by more than one(1)Person, all such Persons shall be Members and the vote for such Lot
shall be exercised as they determine; provided, however, that in no event shall more than one(1)
vote be cast with respect to any Lot. Unless, prior to a vote by the Members on any matter, the
Association receives written notification from a co-Owner of a Lot that a dispute exists between
the co-Owners of such Lot regarding their vote, the vote of any co-Owner of such Lot shall be
conclusively presumed to be the vote of the Owners of such Lot.
Class B. The Class B Member shall be Declarant. The Class B Member shall be
entitled to five (5)votes for each Lot owned by it. The Class B membership shall terminate and
the Class B Member shall become a Class A Member on (a) the date of Completion of Sales or
(b) the date which is ten (10) calendar years after the date on which this Declaration is recorded
in the office of the Register of Deeds of Orange County, North Carolina, whichever shall first
occur.
Section 7.03 Suspension of Ri hts. During any period in which a Member shall be
in default in the payment of any Assessment, the voting rights of such Member and/or the
right(s), license(s) and/or privilege(s) of such Member and such Member's family members,
tenants, guests and invitees to use the Common Elements (exclusive of any Street) and/or Trails
may be suspended by the Board of Directors until such Assessment is paid in full. In the event
any Member shall violate any provision of this Declaration or any Rules and Regulations, such
Member's voting rights and/or the right(s), license(s) and/or privilege(s) of such Member and
such Member's family members, tenants, guests and invitees to use the Common Elements
(exclusive of any Street) and/or Trails may, after a hearing as provided below, be suspended by
the Board of Directors for a period not to exceed sixty(60) days. Such hearing shall be held by
the Board of Directors or a committee thereof after giving such Member not less than ten (10)
days prior written notice,which notice shall specify each alleged violation and set the time,place
and date of the hearing. Determination of the violation shall be made by a majority vote of the
Board of Directors or a committee thereof.
Section 7.04 Manasement Atreements. The Association is authorized and
empowered to engage the services of any Person to act as managing agent of the Association and
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to perform all of the powers and duties of the Association. The management agent's
compensation shall be determined by the Board of Directors. The duties, responsibilities,
obligations and compensation of the managing agent shall be set forth in a written management
agreement,the term of which shall not exceed one (1)year and which term may be renewed only
by written agreement of the parties for successive one (1) year terms. Any management
agreement shall be terminable by the Association, with or without cause, upon thirty (30) days
prior written notice to the managing agent without payment of any termination fee or penalty.
Section 7.05 Insurance. The Association shall obtain and maintain, to the extent
available, public liability insurance in such limits as the Board of Directors may, from time to
time, determine to be customary and reasonable for developments similar in construction,
location and use to the Community, insuring each of Declarant (until the date of Completion of
Sales or the date of termination of the Period of Declarant Control, whichever shall first occur),
the Association, each member of the Board of Directors, the managing agent, if any, and each
Owner with respect to its liability arising out of the ownership, maintenance or repair of the
Common Elements; provided, however,that in no event shall the amounts of such public liability
insurance be less than One Million Dollars($1,000,000.00)per occurrence for liability for bodily
injury, including death resulting therefrom, and damage to property, including loss of use
thereof, occurring upon, in or about, or arising from or relating to, the Common Elements and
Trails, or any part thereof. Such insurance shall include endorsements covering cross liability
claims of one insured against another, including the liability of the Owners as a single group to a
single Owner. The Board of Directors shall review such limits annually. Until the first meeting
of the Board of Directors following the initial meeting of the Owners, such public liability
insurance shall be in an amount of not less than One Million Dollars ($1,000,000.00) per
occurrence for claims for bodily injury and property damage.
ARTICLE VIII
ASSESSMENTS
Section 8.01 Creation of Lien and Personal Obligation for Assessments. Each
Owner, by such Owner's acceptance of a deed conveying a Lot to such Owner, whether or not it
shall be so expressed in such deed, covenant and agree to pay to the Association, when and as
due, any and all Annual Assessments, Special Assessments and Charges, including, without
limitation, late payment charges, interest on delinquent Assessments, and collection and
foreclosure costs and expenses, including reasonable attorneys' fees, as hereafter provided. Each
Assessment,together with any Charge incurred or assessed with respect thereto, shall be a charge
on, and shall be a continuing lien upon, each Lot against which each such Assessment is levied.
Each Assessment, together with any Charge incurred or assessed with respect thereto, shall also
be the personal obligation of each Owner of each Lot against which such Assessment is levied at
the time such Assessment is due. An Owner's personal obligation for payment of any delinquent
Assessment, together with any Charge incurred or assessed with respect thereto, shall not pass to
such Owner's successor(s) in title unless expressly assumed by such successor(s)in title.
Section 8.02 Purpose of Assessments. Assessments shall be used (a) to provide
funds for maintenance, upkeep, landscaping and beautification of the Common Elements and
Trails; (b) to provide services and facilities related to the Members' use and enjoyment of the
Common Elements and Trails, including, but not limited to, the cost of repair, replacement
and/or additions thereto; (c) for the payment of taxes assessed against the Common Elements and
insurance related to the Common Elements and Trails; (d) for the employment of attorneys,
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accountants and other professionals to represent the Association when necessary or useful; (e)
for the employment of security personnel; and (f) to provide any service which is not readily
available from any governmental authority related to the use, occupancy and enjoyment of the
Lots and/or Common Elements which the Association shall decide to provide. Assessments may
be levied to pay for any utilities necessary to accomplish any of the above-stated purposes.
Section 8.03 Common. Expense Budget and Annual Assessments,. Not later than
the earlier of December 1 or the date of the annual meeting of the Members, the Board of
Directors shall prepare and deliver to the Members a budget for the operation of the Association
and the maintenance of the Common Elements for the following calendar year, which budget
shall include an estimate of the Common Expenses and Annual Assessments for the following
calendar year, and a statement of the sources and estimated amounts of funds to cover such
Common Expenses, which may include any surplus to be applied from prior years, any income
expected from sources other than Annual Assessments, and the amount to be generated through
the levy of Annual Assessments.
The Board of Directors shall deliver a copy of the final budget and notice of the amount
of the Annual Assessment to be levied to each Owner not later than the earlier of December 1 or
the date of the annual meeting of the Members prior to the beginning of the Annual Assessment
period. The budget shall automatically become effective unless disapproved by (a) the vote of
the Members having not less than two-thirds (2/3) of all votes in the Association who are voting
in person or by proxy at the annual meeting of the Members or at a meeting of the Members duly
called for such purpose, and/or(b)Declarant during the Period of Declarant Control. There shall
be no obligation to call a meeting for the purpose of considering the budget except on petition of
the Members as provided for special meetings in the Bylaws. Any such petition must be
presented to the Board of Directors within ten(10) days after delivery of the budget and notice of
the Annual Assessment.
If any proposed budget is disapproved or the Board of Directors fails for any reason to
determine the budget for any year,then the budget most recently in effect shall continue in effect
until a new budget is determined.
The Board of Directors may revise the budget and adjust the Annual Assessment from
time to time during any calendar year, subject to the notice requirements and the right of the
Members to disapprove the revised budget as set forth above.
The Board of Directors is hereby authorized to levy an Annual Assessment equally
against all Lots to fund Common Expenses and to establish and set the frequency or schedule of
payment of any Annual Assessment(i.e. monthly, quarterly or annually).
Section 8.04 Special Assessments. In addition to Annual Assessments, the Board of
Directors may levy, in any calendar year, a Special Assessment applicable to that calendar year
only for the purpose of defraying, in whole or in part, the cost of any construction,
reconstruction, repair or replacement of a capital improvement owned by the Association;
provided, however, that any such Special Assessment shall require the affirmative vote of not
less than two-thirds(2/3)of the Members of each appropriate and affected class of Members who
are voting in person or by proxy at a meeting of the Members duly called for such purpose. The
Board of Directors shall also have the power, right and authority to make and levy a Special
Assessment on behalf of the Association against any Lot or Lots (and/or the Owner(s) thereof)
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when and to the extent expressly provided in this Declaration. Until the date of termination of
the Class B Membership as provided in Section 7.02, any such Special Assessment shall be in a
ratio of 5:1 for Lots owned by Class the B Member and Class A Members respectively.
Section 8.05 Notice and Quorum for any Action Authorized Under Sections 8.03
and 8.04. Written notice of any meeting of the Members required by Section 8.03 or Section
8.04 (other than a regularly scheduled annual meeting) shall be sent to all Members not less than
ten (10) days nor more than sixty (60) days in advance of the meeting. At the first such meeting
called, the presence of Members and/or of proxies entitled to cast not less than ten percent(10%)
of all the votes in the Association shall constitute a quorum. If the required quorum is not
present, another meeting may be called subject to the same notice requirement, and the required
quorum at the subsequent meeting shall be the Members present in person or by proxy entitled to
votes. No such subsequent meeting shall be held more than sixty (60) days following the
preceding meeting.
Section 8.06 Uniform Rate of Assessment. Unless otherwise expressly provided in
this Declaration, Assessments shall be fixed at a uniform rate for all Lots. Assessments may be
collected on an annual, monthly, quarterly or other basis as determined by the Board of
Directors.
Section 8.07 Commencement of Annual Assessments; Due Dates; Certificate of
Payment. The amount of the initial Annual Assessment for each Lot for the calendar year in
which this Declaration is recorded in the office of the Register of Deeds of Orange County,
North Carolina shall be The Annual
Assessment shall be levied against each Lot at such time as (a) the construction of a residential
dwelling on such Lot is substantially complete and a certificate of occupancy for the residential
building has been issued by the appropriate governmental authority; (b) such Lot and the
residential building thereon have been sold to any Person(s) other than the builder or Declarant;
and (c) the deed conveying such Lot and the residential building thereon to such Person(s) has
been recorded in the office of the Register of Deeds of Orange County, North Carolina. Upon
the initial sale of a Lot and the residential building thereon as provided above,the purchaser(s)of
such Lot and the residential dwelling thereon shall pay to the Association, at closing,the Annual
Assessment for the calendar year in which the closing occurs, prorated as of the date of closing.
Not later than the last day of each calendar year, commencing with the calendar year in which the
first closing of the sale of any Lot and the residential building thereon as provided above occurs,
Declarant shall pay to the Association the Annual Assessment for each Lot owned by Declarant
or any builder at any time during such calendar year, prorated if and as appropriate consistent
with the foregoing provisions of this Section. Unless Declarant during the Period of Declarant
Control or, thereafter, the Board of Directors, shall specify some other frequency or schedule of
payment, the Annual Assessment levied against each Lot which has been sold to any Person(s)
other than a builder or Declarant as provided in(a), (b) and(c)above,shall be due and payable in
full on the first day of each calendar year after the calendar year in which such sale occurred.
The amount of the Annual Assessment due and payable on the first day of each such calendar
year shall be as set forth and established pursuant to this Article.
The Association shall, upon written request from any Owner, and for a reasonable
charge, furnish a certificate to such Owner signed by an officer of the Association setting forth
whether the Assessments on such Owner's Lot have been paid. A properly executed certificate
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issued by a duly authorized officer of the Association as to the status of all Assessments on a Lot
shall be binding upon the Association as of the date of its issuance.
Section 8.08 Effect of Nonpayment of Assessments: Remedies of the Association.
In the event any Owner shall fail to pay any Assessment within thirty (30) days after the due
date, such Assessment shall bear interest from the due date at the rate of eighteen percent(18%)
per annum or the maximum legal rate, whichever is less, and shall be subject to a late payment
charge, in the discretion of the Board of Directors, not to exceed Twenty-Five Dollars ($25.00)
or the maximum legal rate, whichever is less. The Association or its managing agent or other
representative may bring an action or proceeding against the Owner personally obligated to pay
the same to collect such delinquent Assessment, together with any accrued Charges, or to
foreclose the Association's lien against the Lot against which the Assessment was levied. For
purposes of this Section, the amount of any delinquent Assessment, plus accrued Charges, shall
be considered evidenced by this Section and, therefore, evidence of indebtedness shall hereby
exist. No Owner may waive or otherwise escape liability for any Assessment or Charge by non-
use of any Common Elements or by non-use,abandonment, sale or transfer of his or her Lot.
Section 8.09 Subordination of the Association's Lien to Mortp-ages. The
Association's lien for Assessments provided for in this Article shall be subordinate to the lien of
any first priority deed of trust or mortgage. The sale or transfer of any Lot shall not affect or
impair the Association's lien for any Assessment. However, the sale or transfer of any Lot
pursuant to a mortgage foreclosure sale, or transfer of title to the mortgagee in lieu thereof, shall
extinguish the Association's lien for any Assessment and Charge which became due and payable
prior to the date of such foreclosure sale or transfer to a mortgagee in lieu thereof. -No such sale
or transfer shall, however, relieve or release any Lot from liability for any Assessments or
Charges thereafter becoming due or from the lien thereof.
Section 8.10 Exempt Property. The Common Elements shall be exempt from the
lien of any Assessment. Any Lot which Declarant shall hereafter designate for common use as
part of the Common Elements, and any part of the Property granted to or used solely by a utility
for the purpose of providing utility services to the Property, or any part thereof, shall be exempt
from the lien of any Assessment.
Section 8.11 Working Capital Contributions and Working Ca vital Fund. At the
closing of the initial sale of each Lot and the residential building constructed thereon by a builder
to any Person(s) other than such builder or Declarant as provided in Section 8.07, the purchaser
of such Lot and the residential building thereon shall pay to the Association, at closin a one-
time Working Capital Contribution in the amount o
. Each such Working Capital Contribution shall be deposited by the Association into a
Working Capital Fund maintained by the Association. The purpose of the Association's
Working Capital Fund shall be to ensure that the Association shall have adequate cash available
to meet unforeseen expenses and/or acquire additional equipment and/or services as deemed
necessary or desirable by the Board of Directors. Working Capital Contributions shall not be
considered to be advance payments of any Assessments and shall not be credited in reduction of
any Assessments.
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ARTICLE IX
INSURANCE
Section 9.01 Ownership. All insurance policies upon the Common Elements, Trails
and/or any other property of the Association shall be purchased by the Association, or its agent,
for the benefit of the Association,the Owners (including Declarant for so long as Declarant shall
retain title to any Lot or any other part of the Property)and the Owners' respective mortgagees as
their interests may appear. Each Owner may, in his or her sole discretion, obtain additional
insurance coverage upon his or her real and/or personal property at his or her sole expense.
Section 9.02 Proi)ero Insurance. Any and all Buildings and Improvements located
on any Common Elements and any and all personal property belong to the Association shall be
insured in an amount equal to the maximum amount of their insurable replacement value,
excluding foundation and excavation costs, or by ninety percent (90%) co-insurance blanket
coverage or by such other form of policy as the Board of Directors shall deem appropriate. Such
coverage shall afford protection from and against (a) loss or damage by fire or other hazards
covered by a standard extended coverage endorsement, and (b) such other risks as the Board of
Directors shall deem appropriate,including vandalism and malicious mischief.
Section 9.03 Public Liability Insurance. Public liability insurance with respect to
the Common Elements and Trails shall be purchased by the Association, or its agent, in such
amounts and with such coverage as the Board of Directors shall deem appropriate. The Board of
Directors may also purchase, from time to time, such additional types of insurance as it may
deem necessary or desirable. To the extent available, each such policy shall include an
endorsement providing coverage to each Owner and his family members, tenants, guests and
invitees.
Section 9.04 Fidelitv Insurance or Bond. All Persons responsible for or authorized
to expend funds or otherwise deal in the assets of the Association shall be bonded by a fidelity
insurer to indemnify the Association for any loss or default in the performance of their duties in
an amount equal to at least one-half(1/2)the Annual Assessment plus accumulated reserves.
Section 9.05 Premiums. Premiums for contracts of insurance purchased by the
Association shall be paid by the Association and charged ratably to the Owners as a component
of Common Expenses.
Section 9.06 Proceeds. All contracts of insurance purchased by the Association shall
be for the benefit of the Association, the Owners and the Owners respective mortgagees as their
interests may appear. All insurance proceeds shall be payable to the Association as insurance
trustee under this Declaration. The sole duty of the Association as insurance trustee shall be to
receive such proceeds as are paid and to hold the same in trust for the purposes stated herein.
Section 9.07 Distribution of Insurance Proceeds. Proceeds of insurance policies
purchased by the Association shall be payable to the Association, its successors or assigns, as
insurance trustee, and shall be distributed to or for the benefit of the beneficial Owners in the
following manner:
(a) Expenses of the Trustee. All expenses of the insurance trustee shall be
first paid or provisions made therefor.
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(b) Reconstruction or Re air. If the damage or destruction for which the
insurance proceeds are paid is to be repaired or reconstructed, the proceeds, or such portion
thereof as may be required for such purposes, shall be paid to defray the costs thereof. Any
insurance proceeds in excess of the amount required to pay for the costs of repairs or
reconstruction of the insured property, shall be retained by and for the benefit of the Association
and held in a reserve account for capital improvements.
(c) Failure to Reconstruct or Repair. If it is determined that the damage or
destruction for which the insurance proceeds are paid shall not be repaired or reconstructed,then
the said proceeds shall be retained by and for the benefit of the Association and held in a reserve
account for capital improvements.
ARTICLE X
DAMAGE AND DESTRUCTION
Section 10.01 Estimatinp, Cost of Repairs. Immediately after the damage or
destruction of all or any part of the Common Elements and/or Trails covered by insurance
written in the name of the Association, the Association shall file and settle all claims arising
under such insurance policies and obtain detailed estimates of the cost of repair or reconstruction
of the damaged or destroyed Common Elements and/or Trails.
Section 10.02 Property to be Repaired or Reconstructed. Any damage or
destruction to any part of the Common Elements and/or Trails insured by the Association shall
be repaired or reconstructed unless at least seventy-five percent(75%) of the voting Members of
the Association shall vote not to repair or reconstruct the damaged property within ninety (90)
days after the damage or destruction. No mortgage shall have the right to participate in the
determination of whether the damage or destruction shall be repaired or reconstructed.
Section 10.03 Properiv not to be Repaired or Reconstructed. In the event that it is
determined that the damage or destruction of property insured by the Association shall not be
repaired or reconstructed and no alternative improvements are authorized,then, and in that event,
the said property shall be restored to its natural state and maintained as an undeveloped portion
of land by the Association.
Section 10.04 Insufficient Insurance Proceeds. If the damage or destruction for
which the insurance proceeds are paid is to be repaired or reconstructed and if the said proceeds
are insufficient to defray the costs thereof,the Board of Directors may levy a Special Assessment
against all Owners in proportion to the number of Lots owned by such Owners. Additional
Assessments may be made at any time during or following the completion of any repair or
reconstruction to cover the costs of same.
ARTICLE XI
ARCHITECTURAL CONTROL COMMITTEE
Section 11.01 Architectural Control Committee and Guidelines. Declarant during
the Period of Declarant Control or, thereafter, the Board of Directors, may appoint an
Architectural Control Committee each year consisting of not less than one(1)nor more than five
(5) Persons, none of whom need be a Member. In the event the Board of Directors shall fail to
appoint an Architectural Control Committee at any time subsequent to the expiration or
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termination of the Period of Declarant Control, the Board of Directors shall act as the
Architectural Control Committee. Subsequent to the expiration or termination of the Period of
Declarant Control, the Architectural Control Committee shall have the power and authority to
amend, modify, supplement and/or waive any provision of the Guidelines and enforce the
provisions of this Declaration and the Guidelines with respect to the construction or alteration of
any Building or Improvement on any Lot or Common Elements, as well as landscaping, arboreal
and vegetative requirements for the Community. The initial Guidelines shall be established by
Declarant and may be amended, modified, supplemented and/or waived by Declarant from time
to time during the Period of Declarant Control. Declarant shall have the power and authority to
enforce the Guidelines during the Period of Declarant Control but may, in its sole discretion,
delegate such power, in full or in part, to the Architectural Control Committee and/or the Board
of Directors at any time prior to the expiration or termination of the Period of Declarant Control.
Any amendment, modification, supplement or waiver of any provision of the Guidelines shall be
effective upon adoption by Declarant or the Architectural Control Committee, as applicable, and
need not be recorded in the office of the Register of Deeds of Orange County, North Carolina.
Notwithstanding the foregoing, any Building or Improvement constructed, erected or placed on
any Lot or Common Elements in compliance with the provisions of this Declaration and the
Guidelines (or any valid waiver thereof or exemption therefrom) in effect at the time such
Building or Improvement was constructed, erected or placed, shall be permitted to remain in
place, as originally constructed, erected or placed notwithstanding any subsequent amendment,
modification, supplementation or termination of this Declaration or any provision of the
Guidelines (or any valid waiver thereof or exemption therefrom).
Section 11.02 Improvements and Alterations. Unless and until a plan of
construction is approved, in writing, by Declarant during the Period of Declarant Control or,
thereafter, by the Architectural Control Committee, no Building (including any residential
building) or Improvement, whether of a temporary or a permanent nature and whether or not
affixed to the ground, shall be commenced, erected, installed, added or permitted to remain on
any Lot or Common Elements. The plans for any grading and landscaping of any Lot or
Common Elements shall also require the prior written approval of Declarant during the Period of
Declarant Control or,thereafter,the Architectural Control Committee.
Unless and until a plan of alteration is approved, in writing, by Declarant or the
Architectural Control Committee, as applicable, no construction, alteration or repair, including,
but not limited to, a change in exterior color of any Building (including any residential building)
or Improvement, shall be undertaken which affects the external appearance of such Building or
Improvement on any Lot or Common Elements.
No Building or Improvement on any Lot or Common Elements shall be utilized for a
type of use other than that for which it was originally designed without the prior written approval
of Declarant during the Period of Declarant Control or, thereafter, the Architectural Control
Committee. In addition, no mature live trees located outside the building setbacks on any Lot or
Common Elements may be cut down or removed without the prior written approval of Declarant
during the Period of Declarant Control or, thereafter, the Architectural Control Committee,
unless necessary to stop the spread of any disease or abate any dangerous situation.
Nothing contained in this Section shall be construed to limit the right of an Owner to
remodel the interior of his or her home or to paint the interior thereof any color desired.
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Section 11.03 Appeals to Board of Directors. Any Owner may appeal to the Board of
Directors any construction, development, alteration or other decision or determination rendered
by the Architectural Control Committee subsequent to the Period of Declarant Control;provided,
however, that written notice of such appeal of any decision or determination of the Architectural
Control Committee shall be delivered to a member of the Board of Directors not later than thirty
(30) days after the date the written decision or determination of the Architectural Control
Committee from which an appeal is sought was rendered by the Architectural Control
Committee. The Board of Directors shall establish such appeal process as it deems reasonable.
Subsequent to the Period of Declarant Control, the Board of Directors shall have the power and
authority to (a) amend, modify, supplement, terminate and/or waive any provision of the
Guidelines, and (b) review and uphold, amend, modify, supplement or overturn, in whole or in
part, any decision or determination of the Architectural Control Committee. The Board of
Directors shall render and deliver to the appealing Owner its decision on any such appeal, in
writing, and in a prompt manner. The decision of the Board of Directors shall be final and shall
be binding upon the affected Owner, Lot or Common Elements. The provisions of this Section
shall not apply to any decision or determination made or rendered by the Board of Directors
subsequent to the Period of Declarant Control while acting in the capacity of the Architectural
Control Committee.
Section 11.04 Limitation. NOTWITHSTANDING ANY PROVISION CONTAINED
IN THIS ARTICLE OR ELSEWHERE IN THIS DECLARATION TO THE CONTRARY,
NONE OF THE PROVISIONS CONTAINED IN THIS ARTICLE SHALL APPLY TO THE
DEVELOPMENT, IMPROVEMENT, MAINTENANCE AND/OR REPAIR OF THE
PROPERTY, OR ANY PART THEREOF, BY DECLARANT, AND NEITHER THE
ARCHITECTURAL CONTROL COMMITTEE NOR THE BOARD OF DIRECTORS SHALL
HAVE ANY POWER OR AUTHORITY PURSUANT TO THIS DECLARATION TO
REVIEW, REQUIRE ANY MODIFICATION TO, OR DISAPPROVE ANY PLANS, PERMITS
OR APPROVALS FOR THE CONSTRUCTION OF ANY STREET, BUILDING OR
IMPROVEMENT BY DECLARANT.
ARTICLE XII
RESERVED DECLARANT RIGHTS
Section 12.01 _Reserved Declarant Rights. Notwithstanding any provision contained
in this Declaration to the contrary, Declarant and its members, managers, employees, contractors
and agents shall not be restricted or prevented by this Declaration from doing, and Declarant and
its members, managers, employees, contractors and agents shall have the right to do such things
and to take such actions as they may deem necessary, advisable or convenient to complete the
development of the Property as a residential planned community consistent with applicable
permits, approvals, ordinances, regulations, statutes and laws, and/or effect the sale or other
disposition of Lots. The rights reserved by Declarant, for itself and its members, managers,
employees, contractors and agents, shall include, without limitation, and without the requirement
of approval or consent by or from the Members or the Association,the rights to:
(a) expand the Property to include Additional Property, including any Lot(s)
and/or Common Elements subdivided therefrom,as provided in Section 2.02;
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(b) subdivide, re-configure, combine, re-combine, consolidate, remove, add
and/or renumber any Lot(s), Common Elements and/or Trails, or any combination thereof, and
record any Supplemental Plat and/or Supplemental Declaration necessary to effect same;
(c) construct or install any Building and/or Improvement upon any Common
Elements;
(d) convey utilities easements over and across any Lot, Common Elements
or other part of the Property;
(e) construct each Street and make an offer of dedication of any such Street
to the North Carolina Department of Transportation or any municipality having jurisdiction;
(f) maintain and/or authorize the maintenance of such sales office(s),
management office(s), signs advertising the Community and/or model homes upon any Lot(s)
and/or Common Elements as Declarant may deem necessary,advisable or convenient;
(g) elect, appoint and/or remove any officer of the Association and/or any
member of the Board of Directors;
(h) elect, appoint and/or remove any member of the Architectural Control
Committee;
(i) amend, modify and/or supplement this Declaration for any purpose by
recording a Supplement Declaration;
0) veto any amendment, modification and/or supplement of or to this
Declaration proposed by the Members and/or the Association;and
(k) exercise any and all other development rights, special declarant rights
and/or other rights permitted by the Act.
Each of the rights reserved by Declarant in this Section or elsewhere in this Declaration
shall exist from and after the date on which this Declaration is recorded in the office of the
Register of Deeds of Orange County, North Carolina and, unless sooner waived or released by
Declarant pursuant to a written Release of Reserved Declarant Rights executed by Declarant and
recorded in the office of the Register of Deeds of Orange County,North Carolina, until the date
of expiration or termination of the Period of Declarant Control.
ARTICLE XIII
GENERAL PROVISIONS
Section 13.01 Enforcement. Subject to the notice requirements stated below, the
Association (including any management entity contracted by the Association) and each Owner
(including Declarant for so long as Declarant shall retain record title to any Lot or any other part
of the Property) shall have the right to enforce or to enjoin the violation of, by any proceeding at
law or in equity, all covenants, conditions, restrictions, reservations, easement, use rights, liens
and charges now or hereafter established, granted or imposed by the provisions of this
Declaration. Subject to the notice requirements stated below, the Association (including its
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employees, contractors, agents and any management entity contracted by the Association) shall
have the further right to enter upon any Lot or Common Elements at any reasonable time and in
any reasonable manner, for the limited purpose of curing a violation of any covenant, condition,
restriction, reservation or easement now or hereafter established, granted or imposed by the
provisions of this Declaration existing on such Lot or Common Elements without liability for
damages for wrongful entry, trespass or otherwise to the Owner of such Lot or any other Person
occupying such Lot. Failure by the Association or any Owner(including Declarant for so long as
Declarant shall retain record title to any Lot or any other part of the Property) to enforce any
covenant, condition, restriction, reservation, easement, use right, lien or charge now or hereafter
established, granted or imposed by the provisions of this Declaration shall not be deemed a
waiver of the right to do so at a subsequent date.
Notwithstanding the foregoing, neither the Association (including its employees,
contractors, agents and any management entity contracted by the Association) nor any Owner
(including Declarant) shall take any legal, equitable or other action against any Lot or the Owner
thereof to enforce any right or remedy or enjoin any violation pursuant to the provisions of this
Section unless and until (a) the Association (or any management entity contracted by the
Association) or the enforcing Owner (including Declarant) shall have delivered to the Owner of
the Lot upon which a violation of any covenant, condition, restriction, reservation or easement
now or hereafter established,granted or imposed by the provisions of this Declaration shall exist,
written notice of such violation and demand for cure, which notice shall state the nature of the
violation with specificity; and (b) the Owner of the Lot upon which the violation exists shall
have failed to cure such violation within a period of not less than thirty (30) calendar days after
the date of delivery of such written notice and demand for cure.
The prevailing party in any legal or equitable action pursuant to this Section shall have
the right to recover from the non-prevailing party, and the non-prevailing party shall be liable to
the prevailing party for the payment of, any and all costs and expenses of such legal or equitable
action incurred by the prevailing party, including, without limitation, court costs and reasonable
attorneys' fees to the full extent permitted by law. In the event the Association shall incur any
costs and/or expenses to enter upon any Lot for the purpose of curing a violation of any
covenant, condition, restriction, reservation or easement now or hereafter established, granted or
imposed by the provisions of this Declaration existing on such Lot as provided above, the total
amount of all such costs and expenses shall be deemed a Special Assessment against such Lot
and the Owner thereof and the Association shall have all corresponding lien, collection and other
rights with respect to such Special Assessment as are provided in this Declaration.
Section 13.02 Limitations. Nothing contained in this Declaration shall be construed
or interpreted to impose any condition, restriction, lien or charge upon any tract or parcel of land
other than the Property.
Section 13.03 Amendment. Except to the extent otherwise expressly provided in this
Declaration or required by the Act or other applicable law, this Declaration may be amended
only by the affirmative vote of or written agreement signed by the Owners of Lots to which not
less than sixty-seven percent(67%)of the votes in the Association are allocated.
With the exception of any amendment to this Declaration adopted by Declarant during
the Period of Declarant Control, any amendment to this Declaration shall be delivered to the
Board of Directors. Thereupon,the Board of Directors shall,within thirty(30)days:
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(a) Reasonably assure itself that the amendment has been validly approved
by the Owners of the required number of Lots. (For this purpose, the Board of Directors may
rely on its roster of Members and shall not be required to cause any title to any Lot to be
examined).
(b) Attach to the amendment a certification as to its validity, which
certification shall be executed by the Association in the same manner that deeds are executed.
The following form of certification is suggested:
CERTIFICATION OF VALIDITY OF AMENDMENT TO DECLARATION OF
COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR
By authority of its Board of Directors�e Homeowners Association,
Inc. hereby certifies that the foregoing instrument has been duly approved by the
affirmative vote or written agreement signed by the Owners of Lots to which not less
than sixty-seven percent (67%) of the votes in the Association are allocated and is,
therefore, a valid amendment to the Declaration of Covenants, Conditions, Restrictions
and Easements forte.
This the day of ,
Association,
Inc.,a North Carolina nonprofit
corporation
By:
Name:
Title:
(c) Immediately, and within the thirty (30) day period aforesaid, cause the
amendment to be recorded in the office of the Register of Deeds of Orange County, North
Carolina.
All amendments shall be effective from the date of their recordation in the office of the
Register of Deeds of Orange County,North Carolina; provided,however,that no such instrument
shall be valid until it has been indexed in the name of the Association. When any instrument
purporting to amend this Declaration has been certified by the Board of Directors, recorded and
indexed as provided by this Section, it shall be conclusively presumed that such instrument
constitutes a valid amendment as to each Person thereafter purchasing any Lot.
Section 13.04 Termination. Except to the extent otherwise expressly required by the
Act or other applicable law, unless and until this Declaration is terminated pursuant to the
affirmative vote or written agreement signed by the Owners of Lots to which not less than eighty
percent (80%) of the votes in the Association are allocated, all of the covenants, conditions,
restrictions, easements, liens, charges, assessments and equitable servitudes set forth in this
Declaration shall run with and bind the Property for a term of twenty (20) years from the date
this Declaration is recorded in the office of the Register of Deeds of Orange County, North
Carolina, after which time they shall be automatically extended for successive periods of ten(10)
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years each. Any instrument terminating this Declaration shall state the effective date of
termination of this Declaration, shall provide that the responsibility for the maintenance and
upkeep of the Common Elements shall remain with the Owners in perpetuity, and shall be
recorded in the office of the Register of Deeds of Orange County,North Carolina
Section 13.05 Lender's Notice. Upon written request to the Association identifying
the name and address of the holder, insurer or guarantor and the Lot number or address, any
mortgage holder, insurer or guarantor will be entitled to timely written notice of-
(a) Any condemnation or casualty loss that affects either a material portion
of any Lots and/or Common Elements securing its mortgage.
(b) Any sixty (60)day delinquency in the payment of any Assessment owed
by the Owner of the Lot on which it holds the mortgage.
(c) A lapse, cancellation or material modification of any insurance policy or
fidelity bond maintained by the Association.
(d) Any proposed action that requires the consent of a specified percentage
of mortgage holders.
(e) The Association's financial statement for the immediately preceding
fiscal year.
Section 13.06 Exhibits. Whenever reference is made to any exhibit attached to this
Declaration, such exhibit shall be deemed to be incorporated herein as fully as if set forth verbatim
herein.
Section 13.07 Inconsistent Provisions. In the event any provision contained in this
Declaration is contrary to or inconsistent with any mandatory provision contained in the Act, the
mandatory provision contained in the Act shall prevail and this Declaration shall be deemed to be
amended and/or modified consistent therewith. In the event any provision contained in the Articles
of Incorporation, Bylaws, Guidelines and/or Rules and Regulations is contrary to or inconsistent
with any provision contained in this Declaration, the provision contained in this Declaration shall
prevail and the Articles of Incorporation, Bylaws, Guidelines and/or Rules and Regulations, as
applicable, shall be deemed to be amended and/or modified consistent herewith.
Section 13.08 Notices. Any notices provided for in this Declaration shall be in writing
and shall be deemed sufficiently given to (a) any Owner when delivered personally at or mailed to
the address shown on any recorded instrument conveying a Lot to such Owner, or at any other
address that such Owner may designate to the Association in writing; (b) Declarant when delivered
personally at or mailed to 504 Meadowlands Drive, Hillsborough,North Carolina 27278, or to any
other address that Declarant may designate to the Association in writing; (c)the Association when
delivered personally at or mailed to the address of the registered agent or any officer of the
Association; and (d) any management entity contracted by the Association when delivered
personally at or mailed to the address designated in any management agreement. Any notice
properly addressed,bearing proper postage and deposited in the United States mail shall be deemed
to have been received by the recipient five (5) days (exclusive of any Sunday or federal holiday)
after the date of the postmark.
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Section 13.09 No Liability. in no event shall Declarant, the Association or the any
management entity contracted by the Association be liable to any Owner with respect to any dispute
which may arise solely among or between any two (2) or more Owners, nor shall Declarant, the
Association or any management entity contracted by the Association be responsible or liable for
any act, omission, conduct or breach of any obligation imposed by this Declaration by any Owner
or any family member,guest,tenant,licensee or invitee of any Owner.
Section 13.10 Governing Laws. The interpretation and construction of this Declaration
and the enforcement of any right or remedy conferred upon Declarant,the Association, any Owner
or any other Person pursuant to any provision of this Declaration shall be governed by the laws of
the state of North Carolina.
IN WITNESS WHEREOF, Declarant has caused this Declaration to be executed by its
duly authorized Managers as of the day and year first above written.
a North Carolina limited
liability company
By: Wa North
Carolina limited liability company, its Manager
By: (Seal)
low
By: (Seal)
STATE OF NORTH CAROLINA
COUNTY OF
I, the undersigned Notary Public of the State and County aforesaid, do hereby certify that
and each personally appeared before
me this day and ac[mowledged that he is a Manager
a North Carolina limited liability company and the sole Manager of
a North Carolina limited liability company; and that, by authority
duly given, he voluntarily signed the foregoing instrument for and on behalf of
in his capacity as a Manager
thereof.
Witness my hand and official stamp or seal,this the_day of ,2019.
Signature of Notary Public
(Stamp-Seal)
Printed or Typed Name of Notary Public
My Commission Expires:
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EXHIBIT A
INITIAL PROPERTY
i
i
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t
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EXHIBIT B
ARTICLES OF INCORPORATION
OF
HOMEOWNERS ASSOCIATION,INC.,
a North Carolina Nonprofit Corporation
The undersigned does hereby make and acknowledge these Articles of Incorporation for the
purpose of forming a nonprofit corporation under and by virtue of the North Carolina Nonprofit
Corporation Act,N.C.G.S. §55A-1-01 et sec.
ARTICLE I
NAME
The name of the corporation ism Homeowners Association,Inc.
ARTICLE II
INITIAL REGISTERED OFFICE AND AGENT
The street and mailing address and county of the initial registered office of the corporation
are 504 Meadowlands Drive, Hillsborough, Orange County, North Carolina 27278. The name of
the initial registered agent of the corporation at that address is James W. Parker,Jr.
ARTICLE III
INCORPORATOR
The name and address of the incorporator are James W. Parker, Jr., 504 Meadowlands
Drive,Hillsborough,North Carolina 27278.
ARTICLE IV
MEMBERSHIP
Each Person who holds record title to any Lot in JN�W a residential planned
community located in Orange County, North Carolina as provided in that certain Declaration of
Covenants, Conditions, Restrictions and Easements for�recorded or to be recorded in
the office of the Register of Deeds of Orange County,North Carolina,as amended,modified and/or
supplemented from time to time(the "Declaration") and as shown on the recorded plat(s) of survey
referenced therein, as same may be amended, supplemented and/or modified from time to time,
shall be and remain a member ("Member") of the corporation for so long as Person shall hold
record title to such Lot. No lienholder,judgment creditor, trustee or other person or entity holding
legal or beneficial title to,or any other interest in,any Lot merely as security for an obligation,or a
leasehold interest only in any Lot, shall be qualified for or entitled to membership in the
corporation. All defined terms in the Declaration shall have the same meanings in these Articles of
Incorporation as are ascribed to them in the Declaration unless otherwise expressly defined herein.
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ARTICLE V
DISTRIBUTION OF ASSETS UPON DISSOLUTION
Any assets of the corporation shall, upon dissolution of the corporation, be distributed in
accordance with the applicable provisions of the North Carolina Planned Community Act and/or the
North Carolina Nonprofit Corporation Act,as applicable.
ARTICLE VI
PRINCIPAL OFFICE
The initial street and mailing address of the principal office of the corporation is 504
Meadowlands Drive, Hillsborough, North Carolina 27278. The principal office may, however, be
located at such other place(s) as may be designated from time to time by the corporation's Board of
Directors.
ARTICLE VII
PURPOSES
The corporation does not contemplate pecuniary gain or profit to its Members and is
formed solely for the purposes for which a nonprofit corporation may be formed and operated
pursuant to the North Carolina Planned Community Act and the North Carolina Nonprofit
Corporation Act. The specific purposes for which the corporation is formed are as follows:
(a) to have and exercise any and all powers, rights and privileges granted to
the corporation by the Declaration, to perform the functions and duties set forth in the Declaration
and to enforce any valid restriction, condition and covenant set forth in the Declaration, all to the
full extent not inconsistent with the North Carolina Planned Community Act and/or the North
Carolina Nonprofit Corporation Act,as applicable;
(b) to receive, acquire, hold, retain, encumber, sell, transfer and/or convey
legal or beneficial title to the Common Elements,or any part thereof, and any tangible or intangible
personal property,as provided in the Declaration;
(c) to exercise all powers deemed by the Board of Directors of the corporation
to be necessary to the corporation's objectives and purposes or which reasonably may be implied
therefrom, including, but not limited to, the power to solicit, collect, receive, administer and
disburse funds and file liens in such manner as, in the sole discretion of the Board of Directors of
the corporation, will operate most effectively to further the mutual benefit of the members of the
corporation consistent with the applicable provisions of the Declaration,the North Carolina Planned
Community Act and the North Carolina Nonprofit Corporation Act;and
(a) to have and exercise any and all other powers, rights and privileges which
a corporation organized pursuant to the North Carolina Planned Community Act and the North
Carolina Nonprofit Corporation Act may by law now or hereafter have or exercise.
ARTICLE VIII
INITIAL DIRECTORS
The corporation's initial Board of Directors shall consist of three(3)directors. The names
and addresses of the corporation's initial directors are as follows:
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Owffft6m
winboft
410&"60�6�
ARTICLE IX
BYLAWS
The initial Bylaws of the corporation shall be adopted by the corporation's initial Board of
Directors. The Members shall have the power to amend or repeal the initial Bylaws or to adopt new
Bylaws. The Bylaws may contain any provisions for the regulation and management of the
corporation which are not inconsistent with the Declaration, these Articles of Incorporation, the
North Carolina Planned Community Act and/or the North Carolina Nonprofit Corporation Act, as
applicable.
ARTICLE XI
TAX EXEMPT STATUS
The corporation shall have all the powers granted non-profit corporations under the laws
of the State of North Carolina. Notwithstanding any other provision of these Articles of
Incorporation, the corporation hereby elects tax-exempt status under Section 528 of the Internal
Revenue Code of 1986. The corporation shall not carry on any activities prohibited by a
corporation electing tax-exempt status under Section 528, or any corresponding sections or
provisions of any future United States Internal Revenue law or of any analogous law of the State
of North Carolina. No part of the net earnings of the corporation shall inure to the benefit of its
Members, directors, officers or other persons except that the corporation shall be authorized and
empowered to pay reasonable compensation for services rendered and to make payments and
distributions in furtherance of the exempt purposes of the corporation.
ARTICLE XI
AMENDMENT
These Articles of Incorporation may be amended at any annual or special meeting of the
Members duly held in accordance with the provisions of the Bylaws of the corporation with respect
to which notice of such purpose has been given, and at which a quorum is present, by the
affirmative vote of Members entitled and qualified to vote present at such meeting in person or by
proxy who represent(a)not less than two-third(2/3)of all votes cast at such meeting,or(b)not less
than a majority of the total number of votes allocated to all of the Lots as provided in the
Declaration, whichever is less. These Articles of Incorporation may also be amended, without a
meeting, by written consent of Members entitled and qualified to vote who represent the total
number of votes allocated to all Lots as provided in the Declaration. In the event there are no
Members entitled and qualified to vote, these Articles of Incorporation may be amended as
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provided by the applicable provisions of the North Carolina Planned Community Act and/or the
North Carolina Nonprofit Corporation Act.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this the _ day of
12019.
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EXHIBIT C
INITIAL BYLAWS OF
HAVENSTONE HOMEOWNERS ASSOCIATION,INC.,
a North Carolina Nonprofit Corporation
ARTICLE I
NAME
Section 1.01 Name. The name of the corporation is � Homeowners
Association, Inc.(the "Corporation").
ARTICLE II
OFFICES
Section 2.01 Principal Office. The principal office of the Corporation shall be located
at the address provided in the Articles of Incorporation or at such other place in the State of North
Carolina as may be designated from time to time by the Board of Directors.
Section 2.02 Registered Office. The registered office of the Corporation required by
law to be maintained in the State of North Carolina may be, but not need be, identical with the
principal office.
Section 2.03 Other Offices. The Corporation may have offices at such other places,
either within or without the State of North Carolina as the Board of Directors may from time to time
determine or as the affairs of the Corporation may require.
ARTICLE III
MEMBERSHIP
Section 3.01 Membership. Any Person who holds record title to any Lot located in
11MMINuM a residential planned community located in Orange County, North Carolina as
provided in the Declaration of Covenants, Conditions, Restrictions and Easements for�
recorded or to be recorded in the office of the Register of Deeds of Orange County,North Carolina,
as same may be amended,supplemented and/or modified from time to time(the"Declaration'),and
the recorded plat(s) of survey referenced therein shall be and remain a member("Member") of the
Corporation for so long as such Person shall hold record title to such Lot. No lienholder,judgment
creditor, trustee or other Person holding legal or beneficial title to, or other interest in, any Lot
merely as security for an obligation, or holding only a leasehold interest in any Lot, shall be
qualified for or entitled to membership in the Corporation. All defined terms in the Declaration
shall have the same meanings in these Bylaws unless otherwise defined herein.
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ARTICLE IV
MEETINGS OF MEMBERS
Section 4.01 Annual Medin). A meeting of the Members shall be held at least once
each calendar year on such date as may be designated by the Board of Directors for the purpose of
transacting any business authorized to be transacted by the Members.
Section 4.02 Substitute Annual Meeting. If the annual meeting of the Members is not
held as provided in Section 4.01, any business, including the election of Directors, which might
properly have been acted upon at the annual meeting may be acted upon at any subsequent meeting
of the Members held pursuant to these Bylaws or pursuant to a court order requiring a substitute
annual meeting.
Section 4.03 Special Meetings. In addition to the annual meeting as provided in
Section 4.01, a special meeting of the Members may be called at any time by the President, a
majority of the Board of Directors, or upon written request of Members having not less than ten
percent(10%)of all the votes in the Corporation as provided in the Declaration.
Section 4.04 Notice of Meetings. Written notice of each meeting of the Members shall
be given by, or at the direction of, the Secretary or other person authorized to call the meeting by
mailing a copy of such notice, postage prepaid,not less than ten(10)days nor more than sixty(60)
days in advance of any annual or special meeting to each Member entitled and qualified to vote
thereat, addressed to each such Member's address last appearing on the books of the Corporation or
supplied by such Member to the Corporation for the purpose of the notice. Such notice shall
specify the place, day and hour of the meeting and, in the case of a special meeting,the purpose of
the meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United
Stated mail,addressed as provided above,with postage thereon prepaid.
Section 4.05 Qualification to Vote. Any Person who does not hold record title,
individually or with others, to any Lot shall not be entitled or qualified to vote on any action taken
by the Members unless such person is given the authority to vote for and on behalf of a Member by
written proxy complying with the provisions of Section 4.08. No Member who is delinquent in the
payment of any Annual Assessment, Special Assessment, Charge or other assessment, fee, cost,
charge or other expense, or any part thereof, levied by the Board of Directors shall be entitled or
qualified to vote on any action taken by the Members at any time during which any such Annual
Assessment, Special Assessment, Charge or other fee, cost, charge or other expense, or any part
thereof,is delinquent.
Section 4.06 Voting List. At least five (5) days before each meeting of the Members
the Secretary shall prepare an alphabetical list of the Members entitled and qualified to vote at such
meeting,which list shall be kept on file at the principal office of the Corporation for a period of five
(5) days prior to such meeting,and shall be subject to inspection by any Member at any time during
usual business hours. This list shall also be subject to inspection by any Member during the whole
of the meeting. Any Member otherwise entitled and qualified to vote at any meeting shall be
entitled to vote; provided, however, that the owner(s) of each Lot shall not cast more than the
number of votes allocated to such Lot by the Declaration on any action taken by the Members,
regardless of the number of record owners of such Lot.
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Section 4.07 Quorum. The presence at any meeting in person or by proxy of Members
entitled and qualified to vote who represent not less than ten percent(10%)of the votes allocated to
all Lots as provided in the Declaration shall constitute a quorum for any action; provided,however,
that no Lot may be represented by more than one (1) Member for the purpose of determining
whether a quorum is present, regardless of the number of record owners of such Lot. If a quorum
shall not be present or represented at any meeting, the Members entitled and qualified to vote
thereat shall have power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum as aforesaid shall be present or be represented. The
presence of a Member at the beginning of a meeting, in person or by proxy, shall constitute the
presence of that Member for the duration of such meeting for the purpose of determining whether a
quorum is present for any action.
Section 4.08 Proxies. At all meetings of the Members, each Member may vote in
person or by proxy; provided, however, that the record owner(s) of each Lot, whether one (1) or
more, shall not be entitled to cast more than one (1) vote per Lot as provided in the Declaration,
regardless of the number of record owners of such Lot. All proxies shall be in writing and filed
with the Secretary. Every proxy shall be revocable and shall automatically cease upon expiration or
termination of the Member's membership in the Association or suspension of his or her eligibility to
vote.
Section 4.09 Order. The order of business at annual meetings of the Members, and, as
far as practical,at all other meetings of the Members,shall be:
a. Calling of the roll and certifying of proxies.
b. Proof of notice of meeting or waiver of notice.
C. Reading and disposal of any unapproved minutes.
d. Unfinished business.
e. Committee reports.
f. New business.
g. Adjournment.
Section 4.10 Conduct of Meetings. The President shall preside over all meetings of the
Members. The Secretary shall keep a minute book with all resolutions adopted by the Members,
minutes of all meetings,and all written consents to actions taken without a meeting. Robert's Rules
of Order(latest edition)shall govern the conduct of each meeting.
Section 4.11 Adjournments. Any meeting of the Members at which a quorum is present
may be adjourned by a majority of the Members present at such meeting, in person or by proxy,to
reconvene at a specific time and place. It shall not be necessary to give any notice of the
reconvened meeting or of the business to be transacted if the time and place of the reconvened
meeting are announced at the meeting which was adjourned. Any business may be transacted
which could have been transacted at the meeting which was adjourned if a quorum is present at the
reconvened meeting. The presence of a Member at the beginning of a meeting, in person or by
proxy, shall constitute the presence of that Member for the duration of such meeting for the purpose
of determining whether a quorum is present for any action.
Section 4.12 Action of Members without a Meeting. Any action which may be taken at
a meeting of the Members may be taken without a meeting if a written consent setting forth with
reasonable detail the action authorized is signed by Members then entitled and qualified to vote
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who represent not less than the minimum number of votes necessary to approve such action at a
special meeting of the Members. Facsimile signatures shall be permitted and shall have the same
validity and effect as original signatures. The consent shall be filed in the minute book or other
appropriate records of the Corporation by the Secretary. It shall then have the same effect as a vote
of such Members at a special meeting called for the purpose of considering the action authorized.
Section 4.13 Vote Required for Action. The total number of votes that may be cast by
the membership on any action which may be taken by the Members,whether at an annual or special
meeting or by written consent without a meeting, shall not exceed the total number of votes
allocated to all Lots as provided in the Declaration. The record owner(s) of each Lot, whether one
(1)or more,shall cast not more than one(1)vote for such Lot as provided in the Declaration on any
action taken by the Members. Any vote cast or a written consent signed by a record owner of any
Lot having more than one(1)record owner shall be deemed to be a vote cast or a written consent
signed by all record owners of such Lot and shall be binding upon each of them as fully and to the
same extent as if each of them had voted on such action or signed such written consent. Except as
otherwise provided by law, the Declaration, the Articles of Incorporation or these Bylaw, and
subject to the above-stated voting provisions,the act of Members entitled and qualified to vote who
represent not less a majority of the total number of votes present in person or by proxy at any
meeting of the Members at which a quorum is present,shall be the act of all of the Members.
ARTICLE V
BOARD OF DIRECTORS
Section 5.01 General Powers. The business and affairs of the Corporation shall be
managed by the Board of Directors. The Board of Directors shall have all powers of the
Corporation that are not required by law, the Declaration, the Articles of Incorporation or these
Bylaws to be exercised by the Members. The powers of the Corporation include those set forth in
Article 3 of the North Carolina Planned Community Act, in Article 3 of the North Carolina
Nonprofit Corporation Act and in the Declaration not inconsistent therewith.
Section 5.02 Number, Termand Qualifications. The number of Directors shall be not
less than one (1) nor more than nine (9). Except to the extent otherwise provided in the
Declaration, each Director shall serve a term of two (2) years and, subject to removal,
disqualification or resignation, until his successor has been elected and qualified. Any natural
person shall be eligible for election or appointment as a Director.
Section 5.03 Nomination. Nominations for election of Directors by the Members shall
be accepted by the Secretary, in writing, not more than thirty(30) days prior to the annual meeting
of the Members. Nominations may also be made orally by any Member at the annual meeting of
the Members. Nominations for election of Directors shall be made and accepted according to
procedures adopted by the Board of Directors.
Section 5.04 Election. Directors shall be elected as provided in Section 5.02. Those
persons who receive the highest number of votes shall be deemed to be elected. If any Member so
demands,the election of Directors by the Members shall be by written ballot.
Section 5.05 Removal. Any Director may be removed from office, with or without
cause, by a vote of the Members at any annual or special meeting of the Members duly held in
accordance with the provisions of these Bylaws with respect to which notice of such purpose has
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been given and at which a quorum is present by the aftinnative vote of Members present in person
or by proxy who are entitled and qualified to vote and who represent not less than a majority of all
votes allocated to all Lots as provided in the Declaration.
Section 5.06 Vacancies. Any vacancy occurring on the Board of Directors may be
filled by a majority of the Directors remaining in office though less than a quorum of the Board of
Directors. Any Director so elected by the remaining Directors to fill the vacancy of a removed
Director shall, subject to removal, disqualification or resignation, serve the remaining term of such
removed Director and until his or her successor has been elected and qualified.
Section 5.07 Compensation. Directors shall not receive compensation for their services
on the Board of Directors. A Director may serve the Association in another capacity and receive
compensation,if disclosed to the Board of Directors in advance in writing.
Section 5.08 Committees. The Board of Directors may, by resolution adopted by a
majority of the Directors,establish such committees and the terns,purposes and authorities thereof,
as it may,in the exercise of its sole discretion,deem appropriate. Each such committee shall consist
of at least one (1) Member, but need not consist of a Director unless so provided by the Board of
Directors. Non-Members may serve on any committee unless expressly prohibited by the Board of
Directors. No committee may exercise the authority of the Board of Directors in the conduct of the
business or affairs of the Corporation.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 6.01 Place of Meetings. The Board of Directors may hold its meetings at any
place as the Board of Directors by resolution may establish.
Section 6.02 Regular Meetings. A regular meeting of the Board of Directors shall be
held at least once each year at such time(s)as the Board of Directors by resolution may provide.
Section 6.03 Special Meetings. Special meetings of the Board of Directors may be
called by the President,the Secretary or any Director.
Section 6.04 Notice of Meetings. No notice shall be required for regularly scheduled
meetings. Notice of each special meeting shall be given to each Director stating the time,place and
purpose of the meeting. The notice of any special meeting shall be given by mail deposited at least
five (5)days before the meeting or by telephone, telegram, cablegram, or personal delivery at least
three (3) days before the meeting. Notice by telegram or cablegram shall be deemed delivered at
the time the notice is filed with the transmitting agency. Notice by telephone or personal delivery
shall be deemed effective only when actually communicated to the Director.
Section 6.05 Quorum. A quorum shall be deemed present throughout any meeting of
the Board of Directors when a majority of all Directors then holding office are present in person or
by proxy at the beginning of the meeting.
Section 6.06 Voting. Except as otherwise provided by law or these Bylaws,the act of a
majority of the Directors present at a meeting at which a quorum is present shall be the act of the
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Board of Directors. Each Director shall have one (1) equal vote on all matters considered and/or
voted upon by the Board of Directors.
Section 6.07 Adjournments. Any meeting of the Board of Directors, whether or not a
quorum is present, may be adjourned by a majority of the Directors present to reconvene at a
specific time and place. It shall not be necessary to give notice of the reconvened meeting or of the
business to be transacted, other than by announcement at the meeting which was adjourned. Any
business may be transacted which could have been transacted at the meeting which was adjourned,
if a quorum is present at the reconvened meeting.
Section 6.08 Action by Board of Directors without a Meetin , Any action required or
permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if a
written consent is signed by all Directors and is filed with the minutes of the Board of Directors.
Facsimile signatures shall be permitted and shall have the same validity and effect as original
signatures. The consent shall have the same force and effect as a unanimous vote of the Board of
Directors.
Section 6.09 Conduct of Meetin . The President shall preside over all meetings of the
Board of Directors. The Secretary shall keep a minute book with all resolutions adopted by the
Board of Directors, minutes of all meetings,all written consents to actions taken without a meeting,
all memoranda of emergency actions taken without a meeting,and proceedings occurring at all such
meetings. Robert's Rules of Order(latest edition)shall govern the conduct of the meetings.
ARTICLE VII
POWERS AND DUTIES OF THE BOARD OF DIRECTORS
Section 7.01 Powers. The Board of Directors shall have power to:
(a) levy,assess or charge Annual Assessments, Special Assessments and other
Charges against or to the Lots in accordance with the provisions of the Declaration;
(b) suspend the voting rights of any Member during any period in which such
Member shall be delinquent in the payment an Annual Assessment, Special Assessment or other
Charge levied, assessed or charged by the Association to or against any Lot owned by such
Member;
(c) suspend the privileges of any Member to use the Common Areas
(exclusive of any Street) and/or Trails during any period in which such Member shall be (i)
delinquent in the payment an Annual Assessment, Special Assessment or other Charge levied,
assessed or charged by the Corporation to or against any Lot owned by such Member, or (ii) in
material violation of any provision of the Declaration,the Guidelines or the Rules and Regulations.
(d) file a lien on behalf of the Corporation against any Lot in the event the
payment of any Annual Assessment, Special Assessment or other Charge levied, assessed or
charged by the Corporation to or against such Lot shall become delinquent, and/or commence
appropriate legal action to enforce such lien and/or effect collection of any such Annual
Assessment,Special Assessment or other Charge;
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(e) declare the office of a Director to be vacant in the event such Director
shall be absent from three(3)consecutive meetings of the Board of Directors;
(f) elect and employ a President, who shall be the chief executive officer of
the Corporation,and such other employees as they deem necessary,and to prescribe their duties;
(g) elect such other Officers of the Corporation as it may deem necessary;
(h) elect a successor Director to fill the vacancy of any Director removed by
the Members or declared vacant by the Board of Directors;
(i) establish such committees as it may deem appropriate;and
0) exercise for the Corporation any and all other powers, duties and authority
vested in, conferred upon or delegated to the Corporation pursuant to the North Carolina Planned
Community Act, the North Carolina Nonprofit Corporation Act, the Declaration, the Articles of
Incorporation and/or these Bylaws, as applicable, and not expressly reserved to the Members by the
North Carolina Planned Community Act, the North Carolina Corporation Act, the Declaration, the
Articles of Incorporation and/or these Bylaws,the Declaration,as applicable.
Section 7.02 Duties. It shall be the duty of the Board of Directors to:
(a) cause to be kept a complete record of all its acts and corporate affairs and
to present a statement thereof to the Members at the annual meeting of the Members, or at any
special meeting which such statement is requested in writing any Member;
(b) supervise all Officers,agents and employees of the Corporation,and to see
that their duties are properly performed;
(c) issue, or to cause an appropriate Officer to issue, upon demand by any
Member, a certificate setting forth whether any Annual Assessment, Special Assessment or other
Charge required to be paid by any Member has been paid. Such certificate shall be conclusive
evidence of such payment;
(d) cause all Officers or employees having fiscal responsibilities to be bonded,
as it may deem appropriate;
(e) cause any property of the Corporation to be properly maintained and
insured;
(f) cause any and all necessary registrations, licenses and permits to be
obtained and maintained by the Corporation;
(g) submit a proposed annual budget, including any proposed Common
Expenses, to the Members for their consideration and approval at the annual meeting of the
Members;
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(h) submit a proposed special assessment or other charge and justification
therefore to the Members for their consideration and approval when and as the Board of Directors
may deem necessary;
(i) pay any license fees or governmental charges levied or imposed against
any property of the Corporation;and
0) perform such other duties as are imposed by the North Carolina Planned
Community Act, the North Carolina Nonprofit Corporation Act, the Declaration, the Articles of
Incorporation and/or these Bylaws,as applicable.
ARTICLE VIII
OFFICERS
Section 8.01 Number. The Officers of the Corporation shall consist of a President, one
(1) or more Vice Presidents as designated by the Board of Directors, a Secretary, a Treasurer and
one (1) or more Assistant Secretaries and Treasurers as designated by the Board of Directors. The
Corporation shall not be required to have at any time any Officers other than a President, Secretary
and Treasurer. Any two (2) or more offices may be held by the same person, except the offices of
President and Secretary. Any natural person shall be eligible for election or appointment as an
Officer.
Section 8.02 Election and Term. All Officers shall be elected by the Board of Directors
and shall serve at the pleasure of the Board of Directors.
Section 8.03 Compensation. Any compensation of Officers shall be fixed by the Board
of Directors.
Section 8.04 Removal. Any Officer or agent elected by the Board of Directors may be
removed by the Board of Directors, with or without cause, at any meeting with respect to which
notice of such purpose has been given to the Directors.
Section 8.05 President. The President shall be a Director and the chief executive officer
of the Corporation and shall have responsibility for the general supervision of the business of the
Corporation. The President shall see that all orders and resolutions of the Board of Directors are
carried into effect. The President shall perform such other duties as may from time to time be
assigned or delegated to him or her by the Board of Directors. The President shall have all the
general powers and duties which are incident to the office of the president of a corporation
organized under the North Carolina Planned Community Act and/or the North Carolina Nonprofit
Corporation Act,as applicable.
Section 8.06 Vice Presidents. The Vice President shall be a Director and, in the
absence or disability of the President, or at the direction of the President, shall have the duties and
powers of the President. If the Corporation has more than one Vice President, the Board of
Directors shall designate one of them to act for the President. Each Vice President shall have
whatever additional duties and powers as may from time to time be assigned or delegated to him or
her by the Board of Directors or which are incident to the office of the vice president of a
corporation organized under the North Carolina Planned Community Act and/or the North Carolina
Nonprofit Corporation Act, as applicable.
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Section 8.07 Secretary. The Secretary shall keep accurate and complete records of all
meetings of Members and Directors, including minutes of the meetings, all resolutions adopted and
all consents to actions without a meeting. The Secretary shall have authority to give all notices
required by law or these Bylaws. The Secretary shall be custodian of the corporate books, records,
contracts and other documents. The Secretary may affix the corporate seal to any lawfully executed
documents requiring it and shall sign such instruments as may require his signature. The Secretary
shall have whatever addition duties and powers as may from time to time be assigned or delegated
to him or her by the Board of Directors or which are incident to the office of the secretary of a
corporation organized under the North Carolina Planned Community Act and/or the North Carolina
Nonprofit Corporation Act,as applicable.
Section 8.08 Treasurer. The Treasurer shall have custody of all funds and securities
belonging to the Corporation and shall receive, deposit or disburse them under the direction of the
Board of Directors. The Treasurer shall keep full and true accounts of all receipts and
disbursements and shall make reports to the Board of Directors and President upon request. The
Treasurer shall perform all duties as may be assigned to him or her from time to time by the Board
of Directors. The Treasurer shall prepare or cause to be prepared all required financial statements,
tax returns and budgets. If the Corporation employs an accountant, attorney or other agent, the
duties may be delegated to the agent. However, the Treasurer shall remain responsible for
supervising the agent. The Treasurer shall have whatever addition duties and powers as may from
time to time be assigned or delegated to him or her by the Board of Directors or which are incident
to the office of the treasurer of a corporation organized under the North Carolina Planned
Community Act and/or the North Carolina Nonprofit Corporation Act,as applicable.
Section 8.09 Assistant Secretary and Assistant Treasurer. The Assistant Secretary and
Assistant Treasurer shall, in the absence or disability of the Secretary of the Treasurer,respectively,
have the duties and powers of those offices. They shall, in general, perform any other duties
assigned to them by the Board of Directors. Specifically, the Assistant Secretary may affix the
corporate seal to all necessary documents and attest the signature of any Officer.
Section 8.10 Bonds. The Board of Directors may require any or all of the Officers,
agents or employees of the Corporation to give bonds to the Corporation, with sufficient surety,
conditioned on the faithful performance of the duties of their respective offices or positions.
ARTICLE IX
PROHIBITION AGAINST SHARING IN CORPORATE EARNINGS
Section 9.01 Prohibition. No Director, Officer, Member, employee, agent, committee
member, Person connected with the Corporation or other Person shall receive at any time any of the
net earnings or pecuniary profit from the operations of, or any other distribution from, the
Corporation; provided, however, that any such Person may receive payment of reasonable
compensation for services rendered to or for the Corporation in effecting any of its purposes as shall
be fixed by the Board of Directors, or a distribution of the assets of the Corporation upon the
dissolution or winding up of the affairs of the Corporation, whether voluntary or involuntary,to the
extent such distribution is mandated or permitted by the North Carolina Planned Community Act
and/or the North Carolina Nonprofit Corporation Act,as applicable.
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ARTICLE X
PROHIBITED ACTIVITIES
Section 10.01 Prohibition. Notwithstanding any other provision of these Bylaws to the
contrary, no Director, Officer, Member, employee, agent, committee member or other
representative of the Corporation shall take any action or carry on any activity by or on behalf of the
Corporation not permitted to be taken or carried on by the Corporation pursuant to the North
Carolina Planned Community Act and/or the North Carolina Nonprofit Corporation Act, as
applicable.
ARTICLE XI
MISCELLANEOUS
Section 11.01 Fiscal Year. The fiscal year of the Corporation shall begin on or the first
(1 st)day of January and end on the thirty-first(31 st)day of December of each calendar year.
Section 11.02 Seal. The corporate seal of the Corporation shall be in circular form
having within its circumstance the words: � Homeowners Association, Inc. Corporate
Seal.
Section 11.03 Inspection of Books and Records. All accounts, books and records of the
Corporation shall be open to inspection by the Members during normal business hours subject to
such reasonable rules as the Board of Directors may establish.
Section 11.04 Indemnification. Each Director and Officer shall be indemnified by the
Corporation against those expenses which are allowed by the laws of North Carolina and which are
reasonably incurred in connection with any action, suit or proceeding, whether completed, pending
or threatened, in which such Person may be involved by reason of his or he being or having been a
Director and/or an Officer. Indemnification shall be made only in accordance with the laws of the
State of North Carolina. The Corporation may purchase and maintain insurance on behalf of any
such Directors and/or Officers against any liabilities asserted against them whether or not the
Corporation would have the power to indemnify the Directors and/or Officers against the liability
under the laws of the State of North Carolina. If any expense or other amounts are paid by way of
indemnification, other than by court order,by action of the Members or by an insurance carrier,the
Corporation shall provide notice of such payment to the Members in accordance with the laws of
the State of North Carolina.
Section 11.05 Waiver of Notice. Whenever any notice is required to be given to any
Member or Director, a waiver signed by the Member or Director entitled to such notice, whether
before or after the meeting to which the waiver pertains, shall be deemed equivalent to proper
notice. Attendance at a meeting, whether in person or by proxy, shall be a waiver of notice of the
time and place unless specific objection to improper notice is made when the meeting is called to
order. Attendance shall also be a waiver as to all business transacted unless specific objection is
made before the objectionable business is put to vote.
Section 11.06 Amendment. These Bylaws may be amended(a) at any annual or special
meeting of the Members duly held in accordance with the provisions of these Bylaws with respect
to which notice of such purpose has been given, and at which a quorum is present, by the
affirmative vote of Members entitled and qualified to vote present at such meeting in person or by
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proxy who represent not less than a majority of the total number of votes allocated to all Lots as
provided in the Declaration, or (b) by written consent of Members entitled and qualified to vote
who represent not less than a majority of the total number of votes allocated to all Lots as provided
in the Declaration. In the event there are no Members entitled and qualified to vote,these Bylaws
may be amended as provided by the applicable provisions of the North Carolina Planned
Community Act and/or the North Carolina Nonprofit Corporation Act.
Section 11.07 Self-Dealiny-, Each Director, Officer and agent of the Association shall
disclose in the written minutes of the Board of Directors any contract or agreement of any kind
between the Corporation and any person or entity to which he is related by blood or marriage or in
which he has an interest,whether direct or indirect.
Section 11.08 Conflicts. In the event of any conflict between any mandatory provision
contained in the North Carolina Planned Community Act and/or the North Carolina Nonprofit
Corporation Act and any provision contained in the Declaration, the Articles of Incorporation
and/or these Bylaws,the mandatory provision contained in the North Carolina Planned Community
Act and/or the North Carolina Nonprofit Corporation Act,as applicable, shall control. In the event
of any conflict between any provision contained in the Declaration and any provision contained in
the Articles of Incorporation and/or these Bylaws, the provision contained in the Declaration shall
control. In the event of any conflict between any provision contained in the Articles of
Incorporation and any provision contained in these Bylaws, the provision contained in the Articles
of Incorporation shall control.
Section 11.09 Effective Date. The effective date of these Bylaws shall be the date of
approval and adoption set forth below.
APPROVED AND ADOPTED BY THE UNDERSIGNED INITIAL DIRECTORS
OF THE CORPORATION THIS_DAY OF ,2019.
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58
Patrick R. Mallett
From: Jeff Scouten
Sent: Monday, April 22, 2019 9:39 AM
To: Patrick R. Mallett
Cc: Tim Smith
Subject: Fairway Hills Subdivision Preliminary Plans Review Comments - Plans Dated 4/16/19
Importance: High
Pat,
As a follow up to our telephone conversation of this morning and as a point of clarification,please be advised that the 40'radius
(to EP)for the cul-de-sacs that 1 approved in the previous submission is the minimum acceptable radius.
Ideally and preferably,we ask for the 44' radius since the outside turning radius of our standard recycling collection truck is 43'
6".
If the applicant's design won't allow for a larger radius,40' (as show on the current plan)will be acceptable.
Let me know if you have any questions or wish to discuss this matter further.
Jeff Scouten
Environmental Enforcement Supervisor
Orange County Solid Waste Management
P.O. Box 17177
3-207 Eubanks Road
Chapel Hill, NC 2753-6-7177
919--768—278 8 (Office)
Pursuant to North Carolina General Statute 132, correspondence sent and received from this account is a public record and may
be disclosed to third parties.
t
59
PLANNING & INSPECTIONS DEPARTMENT
Craig N. Benedict, AICP, Director
Engineering / Erosion
Control / Stormwater 131 W. Margaret Lane
(919) 24 - ORANGE COUNTY P. O. Box 8181
www.orangecountync.gov Suite 201
644-3002 3002 (FAX) NORTH CAROLINA Hillsborough, NC 27278
www
MEMORANDUM
TO: Michael Harvey
COPY TO: Patrick Mallett and Wesley Poole
FROM: Howard W. Fleming, Jr., PE, Engineering/Stormwater Supervisor
DATE: 04/18/19
PROJECT: Fairway Hills Major Subdivision, SUB19-0005
PIN's: 9884323275 and 9884319874
SUBJECT: Preliminary Plat Review, plans dated 04/16/19
EROSION & SEDIMENTATION CONTROL / STORMWATER MANAGEMENT COMMENTS:
These comments are relative to a major subdivision preliminary plat submitted for the
Fairway Hills Subdivision, Hillsborough, NC by Summit Design and Engineering
Services. (Summit). Erosion & Sedimentation Control / Stormwater staff members
understand this project must proceed through certain discretionary actions in order to
determine functional and economic viability, prior to the developers investing in more
detailed design and subsequent jurisdictional submittals for compliance reviews and
permits. This Division takes no exception to an approval of this Preliminary Plat
application, as long as the following is taken into account.
Erosion Control Plan and Stormwater Management Plan Required:
Both parcels proposed for this development are located in the Lower Eno Protected
Watershed. Therefore, this development must satisfy the provisions contained in
Sections 6.14 and 6.15 of the Orange County Unified Development Ordinance (UDO), if
land disturbance exceeds the following thresholds:
• Erosion & Sedimentation Control — 20,000 SF
• Stormwater — 21 ,780 SF (Cumulative Disturbance)
Stormwater Management Concerns with the Proposed Plan
There are two (2) structural stormwater control measures (SCM's) proposed in the
current site plan.
1 . Northern Watershed — An SCM is proposed between proposed lot 3 and the
proposed open-space lot between lot 3 and 4.
2. Southern Watershed — An SCM is proposed between proposed lots 16 & 17.
S15_Erosion Control and Water Quality\Correspondence\HWFIDAC\FairwayHillsSub\20190418_HWF-OC-E&SC_DAC-Memo(FairwayHillsSUB19-0005).docx
60
04/18/19 Page 2 of 2
Preliminary Plat DAC Comments — Fairway Hills Subdivision, SUB19-0005
Our primary stormwater management concerns for this common plan of development
are as follows:
1 . Ensuring that sufficient areas are reserved for stormwater control measures
(SCM's). The SCM's need to be large enough to accommodate stormwater
treatment for all proposed development. It appears the proposed lots may be
developed individually over time. Therefore, we encourage Summit to assume
some conservative percentage of development on each lot (following
consultation with Orange County Current Planning and Environmental Health)
and perform preliminary calculations to size the SCM's to treat all proposed
development (build-out condition), accommodate associated grading, secondary
SCM's (if necessary), and outlet velocity attenuation measures.
2. Being assured that those areas that do not appear to be easily routed to the two
proposed SCM's, specifically lots 1-3, 17-20, and perhaps others, will be properly
managed for stormwater, as required by Section 6.14 of UDO.
CONCLUSION
We find the project to be suitable with the following condition-
1 . Based upon the information received to date, we cannot state with any certainty
that the proposed development will be able to comply with Section 6.14 of the
UDO. We believe the challenges can be overcome but, if time allows, we
recommend more detailed study before seeking discretionary approvals. Should
the developer choose to proceed with the current preliminary plat, all need to be
aware that complying with UDO Section 6.14 may have significant effects on the
proposed subdivision plans. In addition to potential geometric effects, the
developer should be prepared to accept that some of the proposed lots may
require individual SCM's to meet the requirements of the UDO.
I understand that the engineer of work has already been in touch with Wesley Poole,
Erosion Control Officer II [(919) 245-2587]. I encourage continued consultation for
guidance as this project moves forward into the construction document phase.
SA5_Erosion Control and Water Quality\Correspondence\HWF\DAC\FaimayHillsSub\20190418_HWF-OC-E&SC_DAC-Memo(FairwayHillsSUB19-0005).docx
61
Patrick R. Mallett
To: Peter Sandbeck
Cc: Kim Livingston
Subject: Fairway Hills
From: Peter Sandbeck
Sent: Monday, April 22, 2019 9:00 AM
To: Patrick R. Mallett
Cc: Kim Livingston
Subject: RE: Fairway Hills
Patrick,
We here at DEAPR NCR have no comments or issues with this request.
Thanks, Peter
Peter Sandbeck, Cultural Resources Coordinator
Orange County
Department of Environment, Agriculture, Parks and Recreation
306A Revere Rd/PO Box 8181/Hillsborough NC 27278/919-245-2517/http://www.co.orange.nc.us
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62
Patrick R. Mallett
To: Gail Hughes; Peter Sandbeck
Cc: Kim Livingston
Subject: RE: Fairway Hills
From: Gail Hughes
Sent: Monday, April 22, 2019 9:13 AM
To: Patrick R. Mallett; Peter Sandbeck
Cc: Kim Livingston
Subject: RE: Fairway Hills
Patrick,
Sorry for the delay. I was very surprised when I saw the email, since soil and water has not gotten any subdivision reviews in
years.
do not have any concerns about the project; and no comments or issues with this request.
On a personal note: traffic is going to be a nightmare in and around town even more so. O but how many times have you
heard that.
Gail M. Hughes
Resource Conservation Coordinator
Orange Soil and Water Conservation District
Department of Environment,Agriculture,Parks and Recreation
306 Revere Rd.,Hillsborough,NC 27278 Phone:919-245-2753
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Patrick R. Mallett
To: Edwards, Charles N; DAC; patricia.coleman@orange.kl2.nc.us; Gail Hughes
Cc: Molly Boyle;Jones, DeAngelo J
Subject: RE: [External] RE: Fairway Hills
From: Edwards, Charles N [mailto:cnedwards@ncdot.gov]
Sent: Monday, April 22, 2019 9:15 AM
To: Patrick R. Mallett; DAC; patricia.coleman(a)orange.kl2.nc.us; Gail Hughes
Cc: Molly Boyle; Jones, DeAngelo J
Subject: RE: [External] RE: Fairway Hills
Pat,
I have reviewed the preliminary plan dated 04/16/19. Based on the information provided,the subdivision streets, proposed
access and road improvements to US 70 can be approved and permitted subject to submittal of final plans meeting all NCDOT
design requirements. Engineering review comments are forthcoming and will be shared with DAC and the Applicant. It is not
anticipated that any needed design corrections will result in substantial changes to the configuration of the subdivision streets
or lots. Feel free to contact me if you have any questions.
C. N. Edwards Jr., PE (Chuck)
District Engineer
North Carolina Department of Transportation
Division of Highways
Division 7, District 1
336 570 6833
cnedwards(a)ncdot.gov
115 East Crescent Square Drive
P. O. Box 766
Graham, NC 27253
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Patrick R. Mallett
From: Edwards, Charles N <cnedwards@ncdot.gov>
Sent: Monday, April 22, 2019 10:09 AM
To: Patrick R. Mallett
Cc: Molly Boyle; Tim Smith, PE, PLS;Jones, DeAngelo J
Subject: Proposed Fairway Hills Subdivision
I have reviewed the preliminary plan dated 04/16/19. Based on the information provided, the subdivision streets, proposed
access and road improvements to US 70 can be approved and permitted subject to submittal of final plans meeting all NCDOT
design requirements. While the plans are understandably incomplete at this time, I am providing the following comments to
DAC and the Applicant.
Horizontal and Vertical Alignment:
• Some centerline radii and vertical K values do not meet NCDOT requirements. Please refer to NCDOT Subdivision Road
Minimum Construction Standards
Mail Kiosk:
• Locate mail kiosk outside of NCDOT R/W. Provide internal accommodation for backout of parking stall. Provide driveway
connection to proposed subdivision street meeting NCDOT minimum design requirements. Refer to NCDOT CBU policy
and guidelines for other requirements and acceptable alternate designs. Consult with local Postmaster for any additional
requirements and acceptability for service.
https://connect.ncdot.gov/resources/safety/Teppl/TEPPL%20AI1%20Documents%20LibrarV/M01 CBU.pdf
Drainage:
• Provide drainage design per NCDOT requirements
US 70 Improvements:
• Is proposed widening to be asymmetrical or near-side?There is conflicting information on the plan
• Refer to NCDOT Policy on Street and Driveway Access to North Carolina Highways ( pg. 78 and 79)for minimum
geometric requirements for turn lanes and associated transitions. Adjust design accordingly
• Provide pavement marking plan per requirements of NCDOT Roadway Standards Drawings. Install snowplowable
markers if existing.
• Retain existing width for lanes, and paved and unpaved shoulders
• Minimum pavement design in widening to be 5" B25.00, 4" 119.00 and 1.5" S9.5C with additional 1.5" S93C full width
overly within construction limits.
C. N. Edwards Jr., PE (Chuck)
District Engineer
North Carolina Department of Transportation
Division of Highways
Division 7, District 1
336 570 6833
cnedwards(ab_ncdot.gov
115 East Crescent Square Drive
P. O. Box 766
Graham, NC 27253
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Patrick R. Mallett
To: Phil Vilaro
Cc: David Ward
Subject: RE: Fairway Hills
From: Phil Vilaro
Sent: Monday, April 22, 2019 12:04 PM
To: Patrick R. Mallett
Cc: David Ward
Subject: RE: Fairway Hills
Dear Patrick:
Dear Patrick:
EH has no prima facie objection to this subdivision proposal. Feasibility of proposed home sites, septic system/repair areas, and
well locations will be evaluated for individual lots, commencing with the Improvement Permit site/soil evaluation process.
Thanks,
Phil
Please tell us how we are doing by taking this very quick survey. We appreciate your comments.
https://www.surveymonkey.com/r/EHSURVEY2018-2019
Philip R. Vilaro, PhD, REHS
Environmental Health Supervisor
Onsite Water Protection Section
Environmental Health Services Division
Orange County Health Department
131 W. Margaret Lane, Suite 100
Hillsborough, NC 27278
Phone—919-245-2362
Fax—919-644-3006
http://www.co.orange.nc.us/envhIth/index.asp
HEALTH DEPARTMENT
+A graving hwl& Inspirfng change.
93 13
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66
Patrick R. Mallett
To: James Baxter
Subject: RE: Fairway Hills
From: James Baxter
Sent: Monday, April 22, 2019 11:24 AM
To: Patrick R. Mallett
Subject: RE: Fairway Hills
Pat Mallett,
Fairway Hills
No comments or issues with the request from a building standpoint.
James Baxter
OC Building Imspections
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®�po9t 1 �o4h!-0
Orange County,NC
" a2 School Adequate Public Facilities Ordinance (SAPFO)
Certificate of Adequate Public Schools (CAPS)
School District:Orange County Schools
CAPS Certificate Number: OC19-11-19
Development/Subdivision : Fairway Hills
Legal Description : PIN 9884323275; 9884319
Review of a Preliminary Plat proposing a 20-lot subdivision on US 70 E
Projected Student Growth
Phase 1 Units Elementary Middle High
SF Detached 0-3 Bedrooms 0 0 0 0
SF Detached 4 Bedrooms 20 5.6 2.8 3
SF Detached 5+Bedrooms 0 0 0 0
SF Attached 0-2 Bedrooms 0 0 0 0
SF Attached 3+Bedrooms 0 0 0 0
Multifamily 0-2 Bedrooms 0 0 0 0
Multifamily 3+Bedrooms 0 0 0 0
Manufactured Homes 0-2 Bedrooms 0 0 0 0
Manufactured Homes 3+Bedrooms 0 0 0 0
PlanningZJ *sdictio; Orange County Date of Submital: 04/18/20191
Date of Approval : F-_ J
Signature : Agenda/Ordinance Number:
'This document certifies that the above school district has (or anticipates future) capacity to
accommodate the projected number of students to be created from the above development/subdivision
in the years as noted.
-This certificate is required after final government approval but before final plat recordation can be
performed or as deemed by the specific local ordinance.
-Any residential structure on a lot in the above development/subdivision may not receive a certificate
of occupancy until or after the date of effect and/or the phasing proposed as shown in the table, unless
modified by local government action.
-This CAPS expires pursuant to the timing specified in the local government for the validity period of
the respective development permit.
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Date of Issue: Date of Effect(School Year) : 2018-2019
Signature,Developer Date
Signature,Developer Date
Signature, School Board OfficiV Seal Date
Note: The original is forwarded to the local government, one copy is forwarded to Orange County,
one copy is retained by the school district, and one copy is retained by the developer.
69
PLANNING & INSPECTIONS DEPARTMENT
Craig N. Benedict, AICP, Director
Administration 131 W. Margaret Lane
(919) 644-3002 FAX ORANGE COUNTY P. O. Box 8181
www.orangecountync.gov NORTH CAROLINA Hillsborough, NC 27278
®® ®ANI
04004M
11 MT
NOTICE OF NEIGHBORHOOD INFORMATION MEETING (NIM) NOTES
CLASS A SPECIAL USE PERMIT APPLICATION AND MAJOR SUBDIVISION
FAIRWAY HILLS (FORMERLY OCCONEECHEE HILLS)
Wednesday, February 13, 2019 6:30-8:00 pm
West Campus Office Building (Planning Conference Room)
131 West Margaret Lane
Meeting Notes
In Attendance
Patrick Mallett, Planner II(Current Planning Staff
Tim Smith, PE Summit Design (Project Engineer)
Randy Hall, Summit Design (Project Coordinator)
William Wirt, Summit Design (Civil Designer)
Patrick Cummings (Civil Designer)
Mark O Neal(Broker for Seller)
Lina Natherson (Resident)
Alyson Miller(Resident)
Dale Roe (Resident)
Kristin Douglas-Roe (Resident)
Kristin Douglas-Roe (Resident)
Craig Carter(Resident)
Zelda Lockhart(Resident)
Jenny Williams (Resident)
Ken Sykes (Resident)
Lovandra Sykes (Resident)
Donna Ray(Resident)
Jim Ray (Resident)
Scott Ray(Resident)
Steve Kovacs (Resident)
Patricia Catto (Resident)
Michelle Campbell(Resident)
Tammie Carter-Frazier(Resident)
Staff Introduction
■ Staff welcomed attendees to the meeting.
■ Staff, explained that the Neighborhood Information Meeting (NIM) was designed to be an
introductory dialogue about the application for a Major Subdivision with a Class A Special Use
Permit. Staff outlined the process, general timeline, and Unified Development Ordinance
requirements for such a request. Staff also explained that NIMs allow neighboring property
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owners ask questions about the project outside of the formal, legal constraints of a Planning
Board meeting or a Board of County Commissioners(BOCC)public meeting.
■ Staff explained that the BOCC meeting is a quasi-judicial process. It is similar to a legal
proceeding in that evidence is entered into the record, those giving testimony are sworn in, and
hear-say is not admissible.
■ Staff briefly reviewed the application materials, staff analysis, plan requirements, and the site
characteristics and dialogue with the applicants thus far.
■ Staff reviewed the tentative schedule for the request.
Presentation from Summit Design
■ The Applicant introduced the project team.
■ The Applicant reviewed the major elements of the project as well as the overall vision for the
project.
■ The Applicant reviewed the site constraints for the project including environmental constraints
such as stream buffers.
■ The Applicant reviewed their work to date with NCDOT regarding the projects public roads and
interface with US highway 70.
■ The applicant then opened up the meeting for residents to ask questions and/or raise concerns
they may have about the project.
Questions/Topics from residents
Water
■ What is the potential impact on area well/septic systems?
■ Is there a potential for water/well contamination?
■ Will out well water run out?
■ Will construction and land disturbance muddy our water?
■ Can led and other ground contaminants be released into the water table?
■ What is the potential impact on streams?
■ Is there potential for Hillsborough water and/or sewer?
Staff reviewed the applicable UDO standards and regulations regarding wells, land disturbing activity and
stream buffers. Staff also noted the results of the NC State Clearinghouse, which did not reveal any
known nearby contaminants or brownfield sites.
The applicant reviewed their plans for individual well and septic systems, the fractured nature of geology
and subsurface water in Orange County, and the fact that the wells and septic systems are regularly
inspected by EH.
Note- Staff followed up with the Town of Hillsborough regarding for potential for public water/sewer
services. The Town indicated that the area is not in their short term service area and there are no plans to
serve this area with municipal water or sewer.
Traffic
■ What is the traffic impact?
■ What is the impact on rush hour commute times?
■ How does this relate to US 70 and road improvements?
Staff reviewed the submitted traffic counts from the submitted ITE trip generation estimates submitted by
the client. Staff also noted how to process for public road construction works, the proposed turn lanes,
right-of-way dedication, and the planned NCDOT road improvements along US70W.
The applicant reviewed the road design, work thus far with the NCDOT District Engineer and anticipated
US70W road improvements.
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Construction
■ What is the potential noise and visual impact?
■ What about Construction Debris?
■ Will the site be able to be seen?
■ What is the timeframe of construction?
■ What is the extent of land clearing for the roads and the lots?
■ Potential for stormwater run-off, mud and silt?
Staff reviewed the process and typical timeframes for this type of project. Staff also reviewed additional
plan requirements and ordinance provisions that deal with construction, noise and erosion
controUstormwater measures.
The Applicant reviewed the general development plans and noted that the initial infrastructure for the
project will be done in one phase. Individual homes will be built as lots are sold, but the roads and
stormwater features will be installed prior to plat recordation for the single-family lots.
Buffers and Common Open Space
■ What types of Open Space are provided?
■ How will it be controlled?
■ Will this help preserve wildlife and the nearby Eno?
■ What are the building setbacks?
■ With the subdivision be visible from adjacent properties and/or US70?
■ What can be located within the Common Open Space?
Staff reviewed UDO requirements for Flexible development and types of Open Space and gave an
overview of Common Open Space held by a neighborhood Homeowner's Association. Staff also
reviewed the basic elements from various NC Agencies that reviewed the project under the State Clearing
house system.
The Applicant reviewed their vision for the perimeter setbacks, landscaping buffers and tree preservation.
Lighting
■ Will there be lighting with the project?
Staff reviewed the basic elements of UDO Section 6.11: Outdoor Lighting.
The Applicant indicated that no street lights are proposed with this development.
Neighborhood Involvement
■ How will we keep up to date about the project?
■ Will we get notices?
■ Can we speak with Planning Board and BOCC?
Staff reviewed the notification requirements for mailing, signs and legal ads for the project. Staff also
reviewed the SUP fact sheet.
The Applicant indicated they would work with any resident who had questions or wanted additional
information as the project moves forward.
Harmony
Will this impact our property values and/or the rural character?
Staff and the Applicant reviewed the basic elements required for a SUP including potential impact on the
surrounding character and property values.
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PLANNING & INSPECTIONS DEPARTMENT
Craig N. Benedict, AICP, Director
Administration.".. 131 W. Margaret Lane
(919) 245-2575 �""' � Suite 201
(919) 644-3002 (FAX) ORANGE COUNTY P. O. Box 8181
www.orangecountync.gov NORTH CAROLINA Hillsborough, NC 27278
t o
January 29, 2019
. ... ,. .NOTIC.E.-OF;NEIGHBORHOOD INFORMATION MEETING (NIM)
TO REVIEW A CLASS A SPECIAL USE PERMIT APPLICATION AND MAJOR SUBDIVISION
CALLED
"OCCONEECHEE HILLS"
To Whom It May-Concern:•
You are receiving this letter because you are listed as an owner of property within 1,000
feet of two parcels of land totaling approximately 41.97 acres located along US Highway 70, The
properties are further identified by Orange County Property Identification Numbers (PINs) 9884-
32-3275 and. 98.84-..31,987.4.. . The properties are zoned Rural Residential (R-1), lie within the
Upper.Eno,Protected.Watershed,and located in the Eno Township of. Orange'County.
Beth Porter and Thomas Bradford (owners of the properties) and Old NC 86 Partners, LLC
(contract purchasers of the properties) are proposing to develop a 27 lot single-family subdivision
with Common Open Space. Project highlights are outlined below. Please refer to the attached
Subdivision Plans for additional details.
Occoneechee.Hills Plan.Summ ary:.
■ Minimum Single-family Lot Size: 30,000 square feet
■ Total Single-family Lots: 27
■ Proposed Common Open Space: 18.82 acres (43.7% of site)
■ Proposed Perimeter Building Setback: 100 feet
■ Proposed individual Lot Setbacks: 40 feet front and 20 feet side/rear lot lines
■ Proposed Density,
:6:4:dwelling units per acre
■ Proposed Utilities: Individual well and septic systems
■ Proposed Roads: Public with 20 foot wide pavement within a 50 foot wide right-of-way
The Orange County Unified Development Ordinance (UDO) Sections 2.15: Major
Subdivisions; '2.7:' Special Use Permits; and 7.23: Classification of Subdivisions — Major
Subdivisions; 'classify this request as a Major Subdivision with a Class A Special Use Permit
subject to the review, approval, and issuance of a Class B Special Use Permit (SUP) by the
Orange County Board of County Commissioners (BOCC).
UDO Section 2.7.5 also requires that a Neighborhood Information Meeting (NIM) be held
prior to the BOCC Public Hearing and that notices be sent.to property owners within 1,000 feet of
the subject property. This NIM meeting is intended to allow property owners and applicants an
opportunity to review and discuss the proposal with the area's residents. It is also designed to
give participants an understanding of the Major Subdivision and SUP requirements and the review
process. The NIM for this case will be held on Wednesday, February 13, 2019. See below for the
location and additional details.
73
Additional notices shall be sent to you confirming the date/location/time of the required
Planning Board meeting (tentatively scheduled for March 6, 2019), and BOCG,Publiq Hearing
(tentatively scheduled for April 2, 2019).
The review of all SUP applications are carried out in a quasi-judicial format meaning that
decisions relating to the approval or denial of an application are based solely on the sworn
testimony of all parties involved with the case, both those for and against an application, as well
as the review of competent material and substantial evidence submitted during fhe,.Rublic
Hearing.
Quasi-judicial hearings and decisions require a `fair trial standard' including accepting only
competent, material, and substantial evidence. Public comments in the form of sworn testimony
that meets evidentiary standards can be accepted. Personal, anecdotal, or hearsay comments,
however, shall not be accepted as they do not represent `competent, material, and substantial
evidence'.
While County regulations and State law do not require that parties be represented by an
attorney, it may be in your best interests to secure legal counsel to represent your interests at the
Public Hearing.
Further, the applicant has the burden of establishing, by the submission'ofi'cornpetent
material, and substantial evidence, the existence of facts and conditions that demonstrate the
project's compliance with the various requirements and standards detailed within the UDO.
Those opposing approval of the application shall have the burden of establishing, also through the
submission of competent, material, and substantial evidence, the specific manner.,in. which the
proposal does not satisfy the requirements for approval of the application.
Staff has included a Special Use Permit Fact Sheet to provide additional understanding of
the process.
The Neighborhood Information Meeting (NIM) has been scheduled as follows:-'
Date: Wednesday, February 13, 2019
Time: 6:30-8:00 p.m.
Location: Planning Department Main Conference (Room 204 on 2 d Floor)
West Campus Office Building (W.C.O.B.)
131 West Margaret Lane
Hillsborough, North Carolina 27278
If you have questions, or require additional assistance, please contact a Current Planning
staff member at (919) 245-2575. Thank you for your attention to this matter.
Sincerely, �.
�atr�cl2 R. MaL�ett
Patrick R. Mallett, Planner II
CC: File; Michael D. Harvey, Current Planning Supervisor
Enclosures: Vicinity Map for NIM showing building/parking;
Major Subdivision Plans; and
Special Use Permit Fact Sheet.
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75
PLANNING & INSPECTIONS DEPARTMENT
Craig N. Benedict, AICP, Director
Administration 131 W. Margaret Lane
(919) 245-2575 Suite 201
(919) 644-3002 (FAX) ORANGE COUNTY P. O. Box 8181
www.orangecountync.gov NORTH CAROLINA Hillsborough, NC 27278
CERTIFICATION OF MAILING - NEIGHBORHOOD INFORMATION
MEETING
FAIRWAY HILLS (FORMERYL OCCONEECHEE HILLS)
US HIGHWAY 70 (PIN 9884-32-3275; and 9884-31-9874)
ORANGE COUNTY, NORTH CAROLINA
I, Patrick Mallett, Planner II with Orange County, North Carolina, DO HEREBY CERTIFY
that in accordance with the provisions of Section 2.7 and 2.15 of the Orange County Unified
Development Ordinance (UDO) I have mailed, or caused to be mailed, via first class mail a
Neighborhood Information Meeting notice.
This notice informed those property owners within 1,000 of the subject property of the
processing of a Class A Special Use Permit application, submitted Old NC 86 Partners,
LLC, seeking to develop a 27 Lot Major Subdivision with a SUP on parcels of property off of
US Highway 70.
The owners were identified according to the Tax Records and as required by the UDO.
The mailed notice specified the date, time, place and subject of the neighborhood meeting
and provided information on the Special Use Permit review.process.
WITNESS my hand, this 29t" day of January 2019.
Patrick Mallett
Planner 11
76
PLANNING & INSPECTIONS DEPARTMENT
Craig N. Benedict, AICP, Director
Administration 131 W. Margaret Lane
(919) 644-3002 FAX ORANGE COUNTY P. O. Box 8181
www.orangecountync.gov NORTH CAROLINA Hillsborough, NC 27278
IN1
CERTIFICATION OF SIGN POSTING - NEIGHBORHOOD
INFORMATION MEETING
FAIRWAY HILLS (FORMERYL OCCONEECHEE HILLS)
US HIGHWAY 70 (PIN 9884-32-3275; and 9884-31-9874)
ORANGE COUNTY, NORTH CAROLINA
I, Patrick Mallett, Planner II with Orange County, North Carolina, DO HEREBY CERTIFY
that in accordance with the provisions of Section 2.7 and 2.15 of the Orange County Unified
Development Ordinance (UDO) I posted a sign on the subject property indicating the
Neighborhood Information Meeting (NIM). The NIM sign notice specified the date, time,
place and subject of the meeting.
WITNESS my hand, this 29t" day of January 2019.
Patrick Mallett
Planner II
77
ORANGE COUNTY PLANNING & INSPECTIONS DEPARTMENT
bps fi„ Neighborhood Information Meeting Sign-In Sheet
Project/Plan: Occoneechee Hills Subdivision (now called Fairway Hills Subdivision)
Date &Time: 6:30-8:OOPM / Wednesday, 13FEB2019
Name Address Telephone Number Email Address
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ORANGE COUNTY PLANNING & INSPECTIONS DEPARTMENT
,�� fi,►,# Neighborhood Information Meeting Sign-In Sheet
Project/Plan: Occoneechee Hills Subdivision (now called Fairway Hills Subdivision)
Date &Time: 6:30-8:OOPM / Wednesday, 13FEB2019
Name Address Telephone Number Email Address
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Q*Qig of ORANGE COUNTY PLANNING & INSPECTIONS DEPARTMENT
Neighborhood Information Meeting Sign-In Sheet
Project/Plan: Occoneechee Hills Subdivision (now called Fairway Hills Subdivision)
Date &Time: 6:30-8:OOPM / Wednesday, 13FEB2019
Name Address Telephone Number Email Address
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PLANNING & INSPECTIONS DEPARTMENT
Craig N. Benedict, AICP, Director
Administration 131 W. Margaret Lane
(919) 245-2575 Suite 201
(919) 644-3002 (FAX) ORANGE COUNTY P. O. Box 8181
www.orangecountync.gov NORTH CAROLINA Hillsborough, NC 27278
FAIRWAY HILLS SUBDIVISION QUESTIONS AND ANSWERS
1. How will the proposed project impact the water quality and capacity of surrounding and
area private wells?
Residents expressed concerns over the current state of their well capacity and water quality
with some residents indicating there wells had contamination issues. They also expressed
concerns that new development might damage their systems both during construction and
for the long-term and lead to further contamination issues.
Staff Response: The applicant and Planning Staff have reviewed the applicant's plans for
individual well and septic systems with Environmental Health. Per Sections 2.15 and 7.12 of
the UDO, Preliminary Plats are required to provide documentation denoting the suitability
of the site for the proposed development (i.e. allow for development of septic systems and
wells). This work requires both soil and water analysis to determine the viability of the
proposed lots and their associated well and septic systems. In addition to subdivision
approval, all 20 lots must obtain also individual well and septic system permits (Well System
Permits; Septic Improvements Permits or IPs; and Septic Construction Authorization or CAs)
These permits will be submitted prior to the recordation of the final plat.
If property owners adjacent to this project are already experiencing water quality issues,
Orange County Environmental Health can assist those property owners ascertain if the wells
need to be re-drilled. Staff cannot recommend denying any project based on the
assumption/assertion that future problems will exacerbate existing issues.
While staff is sympathetic, and encouraged adjacent property owners with well concerns to
contact Orange County Environmental Health for assistance, there was insufficient
evidence indicating the Fairway Hills subdivision project would have a negative impact on
water quality or lead to contamination of surrounding wells.
Applicant Response: The proposed project will create 20-lots with an average lots size of
approximately 1.3 acres. The size of these lots is more than adequate to support a standard
well that meets the standards required by Orange County and more specifically the Well
Construction standards set forth in Title 15A, Section 2C.001 of the North Carolina
Administrative Code. This is per the Department of Environment and Natural Resources,
Division of Water Quality. Per these standards, we anticipate that there will be no impact
1
81
to the water quality and capacity of the private wells adjacent to the development project.
Orange County Environmental Health has also given testimony supporting this response
based upon historical data of wells throughout the county.
2. Can the developer be required to post a Bond or Guarantee for the condition of the
surrounding wells?
Staff Response: The UDO does not have a requirement or mechanism to require a bond for
wells. Likewise, it does not have a means to require additional testing beyond the limits of
the proposed subdivision.
Under current policy, administered by the Orange County Environmental Health
Department, all individual wells are subject to periodic testing either by County or the State
environmental health staff. Many of the surrounding wells are older (in some cases
decades) and were built to a standard that would not be permitted today. Likewise, testing
by the County or State may ultimately reveal existing deficiencies with area wells that could
force action and/or remediation of the existing wells. This could theoretically cause some
wells to have to be condemned.
Again, staff is sympathetic but if existing wells are already impaired it would behoove the
property owner to work with local environmental health to address the matter through
existing testing and permitting processes.
Applicant Response: Based upon the response from Staff, it is our understanding that there
is no regulatory mechanism to require such a financial guarantee. It has also been our
experience following decades of projects similar in nature to Fairway Hills that this has
never been done before. As noted in the response to Question #1, all regulatory guidelines
and standards will be adhered to in the strictest form. This is the best guarantee that we
can legally offer to safeguard the wells of the adjacent properties.
3. What is the potential run-off impact on the water quality of surrounding streams and the
Eno area?
Staff Response: If approved, the initial and subsequent lots clearing project would require
the issuance of an Erosion Control and Stormwater Permit. This permit would require
refinement of the applicant's initial stormwater calculations in order to adhere to the
standards as set forth in Section 6.15 of the UDO. These permits require the applicant to
evidence, design and construct temporary erosion control and stormwater measures during
construction and complete permanent Stormwater Control Measures (SCMs) to serve the
subdivision. Both permits would ensure that run-off is controlled for water quantity and
treated for water quality prior to entering any streams and/or adjacent properties. These
systems would also be designed to attain the first inch of stormwater run-off for pre-post
development.
Applicant Response: As noted by the response from staff, we will provide Erosion Control
and Stormwater Management design to fully comply with the requirements of Section 6.15
of the UDO. These requirements are very stringent in nature and in some cases exceed what
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is required by NCDEQ. During construction the erosion control measures will be carefully
inspected and monitored by Orange County, the design engineer and the contractor. All
Erosion Control devices are designed for the 25-year storm event and will provide good
protection for minimizing any impacts to the water quality of the surrounding streams
within this Lower Eno Watershed. Sediment runoff is the primary pollutant of our
surrounding streams (including farming operations) and once the subdivision streets are
constructed and all adjacent slopes fully stabilized with vegetation, sediment runoff will be
very minimal. Following stabilization of the site, the permanent Stormwater Control
Measures will provide continued protection for the surrounding streams, with control of the
runoff rate, volume and water quality.
4. Is there any potential for Hillsborough water and/or sewer?
Staff Response: Staff has contacted the Town of Hillsborough regarding the potential for
municipal water/sewer services. The Town indicated that the area is not in their primary
utility service area and there are no immediate or long-term plans to serve this area with
municipal water or sewer.
Applicant Response: The project site is currently not within the service area for public
water and sewer from the Town of Hillsborough. We have also investigated the potential
for the Town of Hillsborough to extend their current water and sewer systems to this area
and were given the same response as noted by staff. The Town has no short or long-term
Capital Improvement Programs to serve this area with water and sewer. As such, the project
is designed to install private well and septic systems on each lot.
5. What is the potential impact to surrounding natural habitats and environmentally
sensitive areas?
Staff Response: Staff has submitted this project to the NC State Clearinghouse, which did
not reveal any threatened habitats, wildlife corridors or brownfield sites in the area. Per
Section 7.12 of the UDO, Flexible Development subdivisions are required to preserve on-site
environmentally sensitive areas such and streams and steep slopes. The plan is also
required to preserve Primary and Secondary Common Open Space in a manner that
preserves habitats and sensitive areas. With this proposal the subdivision is surrounded by
Open Space held in ownership and/or easement by the HOA.
Applicant Response: As noted by staff, the project is designed under the Flexible
Development option of the UDO and preserves as much Open Space as possible. (33% of
the site) There are two regulated streams that cross the property and these streams are
preserved with an 80-ft. wide buffer on either side of the stream bank. (160-ft. total
minimum width) There will be no direct impact to any surrounding natural habitats or
environmentally sensitive areas (ie. Woodlands, grasslands, streams, etc.) and following
completion of the project the buffer areas and Open Space will continue to provide a
habitat for native species of this area.
6. What is the potential impact to Traffic along US Highway 70?
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Staff Response: The proposal includes the construction of two public roads and right/left
turn lanes into the subdivision from US Highway 70. These designs were dimensioned and
located in consultation with the NC DOT District Engineer. The applicant has also agreed to
reserve 5 feet of additional right-of-way along the frontage of US Highway 70, which will
accommodate planned NC DOT road improvements along US highway 70.
Applicant Response: The project will include a street connection on the north side of US
Highway 70, which will accommodate the traffic entering and leaving the development. Per
the Orange County UDO, Section 6.17, subdivisions with 80 or more units or that generate
more than 800 trips per day are required to provide a Traffic Impact Analysis. The Fairway
Hills Subdivision is below the threshold of these requirements and as such should have
minimal impact to the traffic along US Hwy 70. The biggest impact will be at the new
intersection with the highway. However, this impact will be minimized per the
improvements required to be installed as set forth by NCDOT. Our design will be in full
compliance with these requirements.
7. What is the timeframe for construction?
Staff Response: The applicant has indicated that the project will be developed with the
initial infrastructure (roads, landscaping and SCMs) with one phase. Individual homes will
be built as lots are sold, but the roads and stormwater features will be installed prior to plat
recordation for the single-family lots.
Applicant Response: As noted by staff, the entire infrastructure for the project will be
constructed in one phase. It is anticipated that this will be done in late 2019 or during the
first quarter of 2020. Following completion of the infrastructure, construction on the lots is
anticipated to be completed over a period of 2-4 years, depending on the real estate
market.
8. What is the potential visual impact to adjacent properties and US Highway 70?
Staff Response: The development is required to conform with Section 6.8 of the UDO,
which requires the preservation and/or installation of landscape materials within Land Use
Buffers (e.g. the 75-foot wide buffer along US Highway 70), along streets and individual lots
and jurisdictional streams. The applicant has also provided a 120-foot wide building setback
along US Highway 70 and a 100-foot wide building setback along the perimeter. Along US
Highway 70 the applicant has also proposed to preserve as much existing vegetation as
possible and augment the 75-foot wide buffer with evergreen plant materials.
Applicant Response: Per the required and proposed landscape buffers as noted, the visual
impact to the adjacent properties will be minimal or no different than the current existing
conditions. The four lots that are adjacent to US Hwy 70 will be screened as much as
possible with preservation of the existing trees within the buffer, as well as additional
plantings to be installed for further screening. Adjacent to the other properties, the 100-ft.
building setback, Open Space preservation and stream buffers will provide for the least
amount of visual impact as possible.
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9. Can the developer be required to develop as Low Impact Design (LID) and/or LEED
Certified?
Staff Response: Leadership in Energy and Environmental Design (LEED), is a private building
certification program for "green" or environmentally sensitive buildings. There are
numerous levels and ratings within this certification program that recognize best-in-class
building strategies for homes and various types of non-residential construction. While it is
possible for the applicant and/or subsequent builders to pursue LEED certifications, it is not
a required element of the subdivision process.
Low-impact development (LID) is a term used in Canada and the United States to describe a
land planning and engineering design approach to manage stormwater runoff as part of
"green" infrastructure. LID emphasizes conservation and use of on-site natural features to
protect water quality.
In Orange County, LID is also a classification or category for stormwater permitting. It
determines the permit cost and many of the water quality requirements for stormwater
treatment. With this request the amount of land disturbance for the roads and initial
clearing would prohibit this stormwater classification. However, the applicant can utilize
basic LID principles as part of the subdivision's lot and overall subdivision design.
Applicant Response: Regarding the LEED program and its applicability to site development,
there are basic items that fall within the recommended guidelines that this project will
provide. These include preservation of open space areas and buffers, rainwater/stormwater
management and minimizing the amount of impervious surface areas. For the construction
of the houses themselves, application of any LEED design or construction methods will be
up to the contractor and the individual home buyers.
Regarding the LID principles related to stormwater design, while the project does not meet
the Stormwater LID classification within the parameters of the LIDO, the design of the
proposed stormwater management system utilizes these principles. The proposed
stormwater management control measures are derived from the LID principles and are also
required to be used in some form or another as set forth in the NCDEQ Stormwater BMP
Manual. The project will use a combination of grass swales, level spreaders, bioretention
basins and/or constructed wetlands.
10. Can the developer be required to provide affordable housing?
Staff Response: This request is for a major subdivision, which does not allow or require
price controls to ensure affordable housing.
Applicant Response: The current Orange County UDO does not include provisions to
address an affordable housing component for a major subdivision. As such the pricing of the
houses to be built within this development will be controlled by the current real estate
market within this geographical area. Also, since there are only 20 lots proposed within this
subdivision, it does not lend itself to provide for a mix of price ranges for affordable
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housing. A development with a larger number of units would be more suitable to meet that
criteria.
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ATTACHMENT 6
EXCERPT MEETING MINUTES
ORANGE COUNTY PLANNING BOARD
APRIL 3,2019
REGULAR MEETING
*NOTE: Due to equipment failure there is no audio of the meeting and the minutes were prepared by staff notes and
recollections
MEMBERS PRESENT: Lydia Wegman (Chair), At-Large Chapel Hill Township Representative; David Blankfard (Vice-
Chair), Hillsborough Township Representative; Randy Marshall, Bingham Township Representative; Kim Piracci, Eno
Township Representative;Adam Beeman, Cedar Grove Township Representative; Hunter Spitzer,At-Large Chapel
Hill Township, Carrie Fletcher, Bingham Township Representative;
MEMBERS ABSENT: Patricia Roberts, Cheeks Township Representative; Buddy Hartley, Little River Township
Representative; Paul Guthrie,At-Large Chapel Hill Township;Vacant, Chapel Hill Township Representative; Vacant,
At-Large;
STAFF PRESENT: Pat Mallett, Planner ll; Michael Harvey, Current Planning Supervisor; Phil Vilaro, Environmental
Health Supervisor; Tina Love,Administrative Assistant III
OTHERS PRESENT: Tim Smith, Summit Engineering; Mark O'Neal, Picket-Sprouse; Paul Noe; Craig Carter; Patricia
Catto; Cyrus Griswold; Marie Huskett; Linda Nathansen;
HANDOUT: Handout LID Savings Comparing to Traditional Stormwater Management (Low Impact Development)
submitted by Linda Nathansen to the Board
AGENDA ITEM 8: MAJOR SUBDIVISION CONCEPT PLAN REVIEW-To review and take action on a Concept Plan
application for a Major Subdivision called Fairway Hills. The proposal is for a 20 lot single-family Flexible
Development subdivision on 41.97 acres (PINs 9884-32-3275 and 9884-31-9874) located in Eno Township on the
north side of US Highway 70 across from Occoneechee Golf Club.
PRESENTER: Patrick Mallett, Planner II
Patrick Mallett reviewed the case history and changes since the original application, presented a PowerPoint
presentation and reviewed the abstract including attachments.
The project, originally proposed as a 27 lot Class A Special Use Permit Major Subdivision project, had been revised
by the applicant. Now, Fairway Hills is proposed to be a 20 lot Flexible Development Cluster Major Subdivision. As
a result, the review of the project would follow standards established within Section 2.15 of the UDO rather than the
Special Use Permit process as contained in Section 2.7. Further, the applicant was no longer required to abide by
standards contained in Section 5.17.6 of the Unified Development Ordinance as the project is no longer classified as
requiring a Special Use Permit. The applicant was still obligated, however, to demonstrate compliance with the
provisions of Article 7 of the UDO, which establishes the development standards for subdivision projects.
The proposal will still involve creation of individual single-family residential lots for future development,proposed to
be served by roadways constructed to applicable NC Department of Transportation guidelines. The proposed lots
range in size from 42,785 square feet(smallest) to 125,765 square feet(largest). The Gross density is one dwelling
unit per 2.1 acres, which is consistent with applicable Comprehensive Plan land use designations and the Lower Eno
Protected Watershed Protection Overlay district. The applicant was proposing the creation of approximately 37%of
open space area, which will be managed by a local homeowners association.
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The applicant is proposing to serve the project with individual wells and for septic systems developed on each lot.
The Concept Plan denotes anticipated areas for septic sites. The applicant has also conducted more detailed well
and septic analysis and submitted documents as part of their application.
Overall drainage will be engineered according to applicable standards at the time of permit application for
construction. The property is subject to adopted erosion control and stormwater management guidelines. The
Concept Plan currently anticipates improving drainage using mostly Common Open Space Areas.
The Concept Plan denotes a 75 foot wide Type E natural/constructed landscape buffer along US Highway 70 East.
This area will be planted with additional materials and landscaped(e.g. berms/fencing) to augment preserved
existing vegetation. The 75 foot buffer will meet the required Type E Buffer, as outlined in Section 6.8.6(F) of the
UDO. The applicant has proposed a 50 foot perimeter well and septic setback and a 100 foot building setback, which
would limit structures, clearing and utilities along the perimeter and US Highway 70 East.
Tim Smith of Summit Engineering presented a PowerPoint presentation and provided additional project details.
Lydia Wegman asked Tim about the additional set-backs and about the wells and septic.
Tim Smith confirmed that the building set-backs on US 70 would be 125 feet and 50 feet for well and septic. He also
advised that they have hired a consultant for the express purpose of studying the water and septic requirements
needed.
Adam Beeman questioned the expected size of the homes.
Tim Smith related that they expect to build 4 to 5 bedroom homes depending on the individual lot soils and sizes.
Randy Marshall asked if the project would be adding stub outs for future development
Tim Smith responded that they would not be adding them because the adjacent properties were not likely to be
developed.
Pat Mallett indicated the County staff was not recommending creation of stub outs to serve adjacent properties. This
was due to a combination of factors, most notable surrounding development patterns, topography, and concerns over
impacting existing water features.
There was general discussion on the potential environmental impacts of roadways crossing water features.
Hunter Spitzer asked if they would consider making the internal road into a complete loop for the convenience of the
property owners.
Tim Smith replied that the topography and reduction to the size of the lots made it undesirable. To do a loop street
system would actually require more land disturbing activity and impact the existing grade potentially creating
stormwater control issues.
Lydia Wegman asked if the open space was going to be available to the property owners to use.
Tim Smith asserted that all the open space was available for all of the residents who would own property within
Fairway Hills and that for the most part it is wooded and would remain so with mulch paths etc. Mr. Smith stressed
any trails development within the open space would not be available for non-property owner access.
David Blankford asked if staff and Mr. Smith could provide additional details on the potential stormwater needs for the
project.
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Pat Mallett reminded the Board the property was located within the Lower Eno Protected Watershed Protection
Overlay district. Project disturbing more than 20,000 square feet of land area are required to submit and receive
approval of an erosion control plan. Projects disturbing more than 21,780 square feet of land area are required to
submit and receive approval of a stormwater plan. Fairway Hills will require both erosion control and stormwater
permit review and approval. The Concept Plan denotes the location of anticipated stormwater facilities. Mr. Mallet
reminded the Board erosion control and stormwater plans would be submitted prior to the commencement of land
disturbing activity assuming the project was, ultimately, approved.
Tim Smith indicated the project involved centrally located stormwater facilities. These stormwater control measures
would address the overall development of the project. Development on individual parcels may also require the
property owner to develop appropriate stormwater control measures as well.
There was general discussion.
Lydia Wegman asked if there were any comments or questions from the public.
Linda Nathansen expressed concerns on multiple issues regarding the development and request that there be testing
of the wells done for the neighbors that could potentially be negatively impacted so that if in the future there is a
problem the property owners have proof that it was not a problem before the development. She requested that no
use of round-up or similar pesticides be allowed to be used and expressed concerns about run off and stormwater
issues. She requested that the use of Low Impact Design (LID)stormwater management be considered and handed
out a paper that compared the system to traditional systems. She related that there was an underground tank on the
property and that there was the potential of contamination from it to the adjacent properties.
Michael Harvey reminded the Board that the County has some of the most restrictive stormwater regulation in the
area. Developers were required to address both water quantity, specifically how much water was leaving the site,
and water quality, specifically the removal of nutrients from the project. This project would also have to abide what is
known as pre and post stormwater runoff conditions. What this means is that under current conditions if there was
approximately 1 inch of water running off the property in its pre-development state,there can be no more than 1 inch
of runoff generated by the property in its developed state. Mr. Harvey further reminded the Board they could not
compel or require the applicant to adhere to a specific stormwater design standard. That would be addressed during
the stormwater permitting stage based on applicable County and State regulations. While he appreciated Ms.
Nathansen's suggestion that the project use low impact design principles,there was no guarantee the project would
qualify for same.
Michael Harvey reminded the Board that is surrounding wells were already experiencing issues, it would be prudent
for those property owners to contact Orange County Environmental Health to ascertain if the wells need to be re-
drilled. Testing of wells to try and establish a baseline of existing issues, in the hopes of holding property owners
within Fairway Hills accountable for potential impacts,was not practical. The assumption that future problems will be
the direct impact of this project represented a false premise as development/redevelopment of surrounding lots could
also lead to the problems Ms. Nathansen was concerned about.
Craig Carter expressed concern on the well water table and contamination. He related that several properties had
contaminated wells and had to have then drilled deeper and that there had been 3 gas stations there in the past.
Mark O'Neal of Pickett-Sprouse addressed the concern and advised that the tank had been for heating oil and had
been removed,the soil around it was also removed and the remaining soil has been tested and cleared by an expert.
There was additional, general, discussion on contamination issues.
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Michael Harvey reminded the Board of existing wells were contaminated,then property owners should take action to
work with the Health Department to address those issues. That was a separate issue from the review of this project
however.
Paul Noe addressed the Board to second the comments made by Linda Nathansen and potential impacts to area
wells.
Randy Marshall asked if there was a precedence to require the developer to pay a bond to be used if there was a
negative impact on the wells in order to protect the current residents of the area.
Adam Beeman expressed that if you couldn't determine exactly which property was the straw that broke the system
and if a bond was required it would then become even more difficult to have any kind of development in Orange
County than it is now and all development would cease.
Michael Harvey addressed the Board and advised that he could not legally require any type of bond to address
potential well impacts and that it wasn't possible for the Board to require same. He further reminded the Board that
the presumption this project would be the genesis of future problems was based on flawed logic. There was no way
to determine what could or could not happen. From a liability standpoint it would be difficult to determine this project
was the sole cause of contamination.
Randy Marshall said he understood a bond was not prudent or legally permissible, but wanted to make sure there
was an answer on the record of this fact.
Michael Harvey indicated Mr. Phil Vilaro of Orange County Environmental Health was in the audience and would like
to address the Board concerning well and septic issues.
Phil Vilaro spoke to Board to address concerns about well safety and water table issues. He reassured the Board
that it standard practice to have wells on multiple lots similar to the size proposed within this project and that it is not
an issue in his mind to have 20 individual wells created to serve these lots. M.Vilaro did not believe development of
this project would impact water pressure or the water capacity of surrounding wells. Mr.Vilaro reminded the Board
Orange County does not have a true aquifer/water table. This is why you have such a disparity in well depth,water
quality, and generated gallons per minute from property to property in any given area. In discussing surface water
contamination he expressed the rarity of that happening in Orange County because of the standards required by the
County for every new well drilled. Mr.Vilaro said County requirements,with respect to the drilling and installation of
wells,were amongst the strictest in the State. Mr.Vilaro agreed older wells, installed prior to the adoption of local
comprehensive regulations in the mid 1980's,were indeed subject to potential impacts from runoff given how they
were constructed (i.e. depth, casing,etc.). Such wells need to be replaced as they are not suited to address such
contaminant issues.
Craig Carter thanked Mr. Vilaro for his explanation and provided some history on the well his grandparents installed
on their property to provide additional context on his concerns with respect to well impacts and contamination issues.
The well was constantly providing `muddy'water and there were issues with contaminants at times.
Phil Vilaro indicated he believed Mr. Carter and suggested part of the problem was the well was not installed deep
enough to avoid subsurface silt runoff and contamination. Current practice requires wells to be dug deep to address
this issue and to be properly incased/grouted to protect the integrity of the well. Mr.Vilaro reminded the Board
approximately 80%of the County was intended to be served by private wells and septic systems as there were no
plans by the County to extend/develop public utility systems.
There was lengthy discussion amongst the Board and Mr.Vilaro on septic and well permitting.
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An unknown individual asked if there was an opportunity for this project to tie into public water from the Town of
Hillsborough. Pat Mallet indicated the property was not in a designated public utility service area,which meant there
was no opportunity for the project to be served by public utilities.
Patricia Catto indicated she had the same concerns about stormwater runoff and well contamination as previous
speakers and further expressed disappointment in the notification process for this project. Ms. Catto indicated
property owners need to be kept notified whenever a development is proposed in the Town of Hillsborough so they
can have a voice in the process.
Michael Harvey indicated the County had the most rigorous notification requirements in the region,well exceeding
State requirements. Mr. Harvey reminded the Board a neighborhood information meeting was held for this project,
with property owners within 1,000 feet of the parcel being notified of the date and time of the meeting via letters sent
first class mail. Staff posted signs on the property advertising the neighborhood meeting 10 days prior to the event.
Michael Harvey said the agenda for this meeting was advertised in 2 local newspapers and additional notice was
sent to adjacent property owners of the meeting date and time via first class mail. Information on the project was
also posted on the County website with a detailed explanation of what the project entailed. Staff also posted signs on
the property advertising the date and time of this meeting where the Concept Plan was to be reviewed. Mr. Harvey
said he could not address Ms. Catto's concerns about other projects in the Town of Hillsborough as the County did
not manage the Town's planning program and suggested she make contact with the Town to address her issues.
Michael Harvey asked Ms. Catto where she lived. Ms. Catto responded she lived approximately 5 miles away from
the proposed subdivision. Mr. Harvey reiterated the notification requirements as contained within the UDO and
indicated Ms. Catto was not notified of meetings via first class mail due to the location of her residence but that the
County takes additional steps with the posting of signs, advertisement of meetings in 2 newspapers, and posting
project updates on the County website for the interested to obtain proper notice of projects and meeting dates.
There was additional discussion on meeting notification and on County standards well exceeding State minimum
requirements.
MOTION by Randy Marshall to approved the Flexible Development option Concept Plan and allow the applicant to
proceed with the development and submittal of a Preliminary Plan and application utilizing this layout. Seconded by
Adam Beeman.
VOTE: Unanimous
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EXCERPT MEETING MINUTES
ORANGE COUNTY PLANNING BOARD
MAY 1,2019
REGULAR MEETING
MEMBERS PRESENT: David Blankfard (Vice-Chair), Hillsborough Township Representative; Hunter Spitzer,At-Large;
Jessica Aguilar; At-Large; Hathaway Pendergrass, At-Large; Susan Hunter, Chapel Hill Township Representative;
Adam Beeman, Cedar Grove Township Representative; Patricia Roberts, Cheeks Township Representative; Randy
Marshall, Bingham Township Representative; Melissa Poole, Little River Township Representative; Kim Piracci, Eno
Township Representative;
MEMBERS ABSENT: Carrie Fletcher, Bingham Township Representative; Lydia Wegman (Chair), At-Large Chapel Hill
Township Representative;
STAFF PRESENT: Craig Benedict, Planning & Inspections Director; Michael Harvey, Current Planning Supervisor; Pat
Mallett, Planner Il;Tina Love,Administrative Assistant III
OTHERS PRESENT: Tim Smith, Summit Engineering; Stan Lawton; Property Owner; Jim Parker, Owner-Developer;
Mark O'Neal, Pickett-Sprouse; Cyrus Griswold, Linda Nathansen, Jim & Donna Ray, Zelda Lockhart; Alois & Kim
Callemyn
AGENDA ITEM 8: MAJOR SUBDIVISION PRELIMINARY PLAT—To review and take action on a preliminary plat application
for a Major Subdivision called Fairway Hills. The proposal is for a 20-lot single-family Flexible Development
subdivision on 41.97 acres (PINs 9884-32-3275 and 9884-31-9874) located in Eno Township on the north side of US
Highway 70 across from the Occoneechee Golf Club. The Concept Plan request for this subdivision was approved
by the Planning Board at its April 3, 2019 meeting.
PRESENTER: Patrick Mallett, Planner II
Patrick Mallett:You have your staff report which we call an abstract which this case starts on page 31. This has four
attachments: An application package;Vicinity map; Site assessment; Staff generated correspondents; and Excerpts
from the Planning Board case last month in April. Under a separate cover, you also have the plan. Some you have
large plans. Some have small plans. This case was heard last month as a concept plan approval request. This
request was originally submitted as a 27-lot subdivision under a different name called Occoneechee Hills. As it
started moving through the process,the applicant changed the request to go from 27 lots down to 20 lots which
removed the requirement for a Special Use Permit in addition to the major subdivision approval. It changes the
cadence of how the case is processed. Last month the consideration was for the Concept Plan. We are at Part Two
of the process. They basically had already done a significant amount of the Preliminary Plat work, so they were able
to get the final touches in and then get on to the agenda for this month, so the Planning Board is hearing this case in
back-to-back months.
Patrick Mallett: Reviewed a PowerPoint presentation on Fairway Hill's preliminary plat review. The flexibility design
option requires you to share the existing additions namely the stream buffer's steep slope,vegetated areas and
existing structures. This is the preliminary plat subplan,very similar to what was reviewed with the concept plan that
added more details in terms of Storm Water Control measures, or BMP, storm water devices. With the Concept
Plan, it shows treatment for lot clearing, street trees along the two public streets, and then landscaping preserved
areas and they're additional plantings along the 75-foot buffer along US 70. It also shows theoretical plantings for
both either a cleared lot or a preserved lot within the subdivision. The Plan summary including the two parcels is
41.97 acres,and the total number of proposed lots is 20. The average lot size is 56,594 square feet, 1.3 acres. The
area and open space is 15.54 acres. It's 37 percent of the site. This is just a summary of the same attributes with
breakouts on the primary and secondary open space. Around the perimeter of the project there's a hundred-foot
building set back. Along US 70 they have 120-foot building set back and they also reserved a five-foot area along
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US 70 anticipating unrelated to this project a NCDOT right of way, road improvements that would theoretically require
five feet of additional right of way. The planning director recommends that the Planning Board receive the
Preliminary Plat application,discuss the proposal as desired and then recommend approval of the plat. The way this
process would work is you would make a recommendation either way. You would consider the case or continue the
case. Ultimately, it would have to go to the Board of Commissioners for a final determination, and they would make a
vote on the major subdivision. After that,there many other steps, certifications, permits that have to be obtained;well
permits, septic permits, road construction,coordinating with DOT, and the right of way has to be dedicated and
accepted by DOT. There would be a storm water permit, a land disturbance permit. It would be reviewed and
approved in terms of erosion control and water quantity, and water quality. As part the project, all of those things
would basically have to occur prior to the reggeridation of the lots.
Adam Beeman: Can you just give me a reference as to where the existing driveway is;to where Birdie Lane is? Are
they on top of each other?
Patrick Mallett: They actually moved. The existing driveway,there's an area where they are proposing to plug in that
existing hole with some evergreen trees and shrubs. This public road is further north and west. The reason being is
both the applicant and NC DOT wanted to avoid this box culvert.
Adam Beeman: Is that just short of that grade change that you were showing in the pictures?
Patrick Mallett: That's roughly in that general area, but I think they've spent a significant amount of time trying to
properly locate where that road should go in terms of site distance,with minimal disturbance to the existing right of
way and meeting with NC DOT standards for the roads. I think that also involved discussions and meetings with
Chuck Edwards the NC DOT engineer.
Tim Smith: Looking at the site again,you can see it highlighted here. It is adjacent to across the street off Highway
70 from the golf course and it's in between Palmer's Grove Church Road and Lawrence Road on the north side of
Highway 70. Highlighted in red on the exhibit you will see the surrounding area and what's there now. There's
several very similar developments in the area. One acre, plus or minus, lots that are on well and septic up along
Palmar Grove Church Road. There's several little pockets of subdivisions that have one acre lots with well and
septic. Off of Lawrence Road there is also a woodland trailer park that has 23 trailer sites on that property,and that's
served by well and septic although they do have a community well for that site. Back in February of this year,we had
neighborhood information meeting for the public to come. This shows the limits of the notification of a thousand feet
around the property. Those property owners were notified of the development and were sent letters to the
neighborhood meeting. We met and discussed and heard their concerns and so forth, and their comments. We've
taken all those into consideration as we've continued to adjust and work with the layout and the proposal for the
subdivision. As Pat mentioned,the existing conditions of the site and showed you some pictures along the frontage
the property. Patrick also went over most of the site data for the property,the zoning, the density, all those numbers
are the same here. We are proposing about 2,300 linear feet of roads for the two cul-de-sac roads including the
entrance coming up off Highway 70, and we are at 17 percent impervious proposed right now. That's for the road
construction and the proposed houses an estimate of what would be on each lot. Out on Highway 70 as we
mentioned,there is a 75-foot type E buffer required out there. It is rural, but we're proposing to add additional
plantings along highway 70 to increase the opprosity of that buffer to give more screening for that area that will
include the area where the existing driveway is now. As Pat mentioned,we are proposed well sites on each lot. We
have laid out a potential well site for each lot that meets the setback requirements for the property lines per the code
with Orange County environmental health. Again,the shaded areas with the hatching lines is where we're identified
some suitable Soils for the property.
Hunter Spitzer:Are wells permitted within the Type E buffer?
Tim Smith: They are not permitted within the Type E buffer. We are showing some that are right on the line, but
they're not propose to be in the type E buffer.
Tim Smith: Back on Highway 70, per our conversation back and forth with NCDOT regarding what they want to
require for this entrance off Highway 70,we are showing a symmetrical widening of Highway 70 as you're headed
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east. There would be a left turn lane to get into the subdivision. As your headed west, there will be what we call a
deceleration lane or a right-turn lane to get traffic off of the through lane and able to turn into the entrance. NC DOT
has approved this layout as we continue on we'll be adding the grading for that and all the details that go with it. As
Pat mentioned,we did keep the entrance location far enough west so that none of the widening would impact this
box culvert that crosses under Highway 70. We are staying far enough west that our widening will not impact any of
that box culvert. Since last month,we've continued on and added the required landscaping to show on our
landscape plan for you. As Pat mentioned,we have the required street trees that would be planted along each of the
streets. This is per the ordinance requirements that you have to have a street tree spaced primarily every 100 feet
with other small plantings between. This is a rendering of how we feel it would look once all is in place. The primary
goal would be the preserve all the trees that are out there now along that buffer. To go over the stormwater
managements for Orange County,this is Section 6.14 from the ordinance,we have to follow and meet the guidelines
for Orange County which are all based on state regulations. We would need to protect the repairing areas, monitor
the nitrogen and phosphorous load contributions that are proposed based on the development, and attenuate the
flow which means we can't have any more flow leaving the site than prior to the development. Our devices need to
manage that stormwater runoff and control the first inch of rainfall from all the project areas on the site. To treat the
nitrogen and phosphorous we have to have a 85 percent TSS,total suspended solids, removal achieved through the
devices that we install. These are the standards pretty much state wide. Orange County implements these same
standards based on where they are in each river basin and each watershed. In that regard,we are proposing a
multiple attack on stormwater. One would be disconnected impervious services on each lot which kind of covers the
runoff from each roof, having treatment swells in areas where the runoff can't get to our primary stormwater devices,
and level spreader filter strips used in connection with other stormwater devices including in buyer retention basins.
Some folks were concerned about the stormwater and had discussed low impact development. We approach every
project with a low impact development, approach. If we can meet stormwater requirements and treat stormwater
based on a low impact design,this is our primary goal. In a true sense of a Lid analysis,you check your site prior to
development, see how much trees are there, how much open areas there are, how much pasture,the types of land
cover, and then you look at it again after proposed development with the houses,yard areas, in preserving tree areas
and so forth. You check and see what the differences are in the different rates and these involve: infiltration of water
into the ground; and then the runoff that occurs from the impervious that's added. We run it for this site, and it did
not meet the percentage threshold for a true Lid design. In the rural design requirements, per this manual that was
started back in 2009,they referred to the Best Management Practices to use devices like infiltration devices, level
spreaders, sand filters, pocket wetland, and permeable pavers to manage stormwater in a low impact manner.
Hunter Spitzer:You said for the Lid on the water treatment that you did not meet the percent required.
Tim Smith: The LID manual is not a regulated booklet. It's a guideline for how you would do a LID analysis. It was
just a little over the threshold of what it needed to be. If it met the requirements,we wouldn't have to do anything.
Because of the type of development it is,we are above that threshold and so we have to implement stormwater
control per the UDO.
Patrick Mallett: Low impact design in terms of Orange County and stormwater and erosion control is a classification.
By virtue of the amount of land disturbance just for the roads, it brings it out of that category in terms of the
stormwater classification. In Orange County,whether you are a low impact designer or not, determines the cost per
acre for your stormwater permits and how you are classified. There is also a difference between low-impact design
as it's classified, required, or evaluated which causes the requirements for your stormwater and erosion control. You
can still do low impact principals. Two points I would like to clarify. When I discussed the building setbacks around
the perimeter,that's the perimeter setback which is 100-feet around the perimeter of the project. You also have an
offered 120-foot building setback along US 70. You have single family lots;those also have building setbacks.
They're proposing you have 30-foot front set back, and 15-foot side and rear setbacks. There are four lots along US
70 that technically could have a well as close to 50 feet to the right of way, but you still have to meet the landscape
requirements so in essence they would tread lightly and use that as a last resort, because if you take out a tree or
don't meet the landscape requirements, and you put in a well or a septic system that you can't put landscaping in,
you have to find some other place to put it. That can eventually become mathematically impossible.
Tim Smith: We are looking to approach to our stormwater management where we'll have multiple treatments from
several different types of devices which are all in the realm of low impact devices with how we treat the water. I just
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wanted to go over this to give you a further perspective on how we propose to finish our design with regards to
stormwater.
Adam Beeman: Are there any sidewalks proposed inside this development?
Tim Smith: There are not sidewalks proposed. I know they're required, and we're not proposing to do any.
Sidewalks would be added impervious so we're trying to minimize impact from impervious.
Hunter Spitzer: I see you have a 20-foot storm easement running between the upper cul-de-sac and the lower
between lots 13, 14, 7 and 6. Have you considering make any sort of pedestrian access between these two ends?
Tim Smith: We sure could do that.
Kim Piracci: I'm asking for clarity. I think I read that your stormwater control measures are for one inch of rainfall in
24 hours and that's the regulation; is that correct?
Tim Smith: That's correct. That's one of the goals we have the meet per the ordinance. There are different
intensities for different storm events. This is a one year 24-hour storm event, so one year of rainfall intensity over 24
hours that volume of water we have the attenuate and not release any more than what would occur prior to our
construction.
Kim Piracci: Okay, so it's one inch in 24 hours and that's the minimum? Have you given any thought to building for
more than that because of this recent rainfall we had? What we're building for isn't going to accommodate that so
there's going to be flooding, right?
Tim Smith: Potentially,yes. This is what the ordinance regulations require and it's what we designed to. We
followed Orange County's regulations. We run analysis and check what other storm events would do, but we're
required to submit to them and to get proof as to what's here in the ordinance.
Kim Piracci: I have one more concern. My house is right near the corner of Route 70 and University Station. You
take your life in your hands to turn left on Route 70 and there are accidents weekly. I'm wondering what happens
when they want to turn left out of this? I might be the person heading east that they hit. Is any consideration being
given to that?
Tim Smith: For this project we're doing what is done on all projects similar in nature. They have the analysis of the
thresholds, based on the use and the number of trips to be generated. Orange County has a pretty high threshold for
requiring a transportation impact analysis which would be a full-blown study. In this case, Highway 70 needs
improvements and DOT does have on the books in the future to do things to Highway 70. In the meantime,we are
doing what DOT requires for us to put in this road for this development to provide as safe as we can access lanes for
each direction to get in and out.
Kim Piracci: I'm not allowed to vote against this because he's acting within their parameters even though I don't have
to use much imagination and see problems in the future.Technically, I'm not allowed to say,this doesn't sound good,
but because they're meeting the requirements.
Michael Harvey: Well, they are meeting the UDO and the department of transportation has indicated that these are
the necessary improvements to accommodate the traffic flow. You as a board member can vote your conscience in
whatever way, manner, shape or form but without any direct evidence to prove that DOT's recommendation with
respect to access is flawed, a decision to deny this project based on roadway access issues is not based on the
information was have available and is inconsistent with the provisions of the UDO. The practical reality is that without
any documented evidence proving that it's a faulty model, the staff can't take that position because DOT has already
certified that this is an acceptable proposal. They have already required them to do offsite improvements consistent
with their model and data.
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Jessica Aguilar: I wanted to applaud you for looking at how this would affect the school system. I see a lot of these
new developments and they're posting price range of these homes in the$300s to$700s. What population are you
looking to populate this area?
Tim Smith: I apologize. I forgot to introduce the developer who is here tonight, Mr. Jim Parker. I'm not sure there's
any direct market that they're targeting.
Jim Parker: The builder for these lots will be Drees Homes who has built a lot of homes in Orange County. The
homes will be similar to those that they have been building here. I would estimate your price range is about right.
Jessica Aguilar:That's my concern. People in my situation, my socio-economic strata, are being edged out. We're
looking for a home right now and we can't find anything affordable in this area. We are at risk of having to move after
being here for almost two decades because these kinds of developments are coming in and taking up lands that we
can't even dream of being a part of.
Patrick Mallett: I would like to add on to the school comments. We have a fairly regimented system, database, and
tracking system to verify if a project will or will not have an impact on school capacity issues. Our system, a copy of
the report is contained within your packet, tells us if we are getting close to having a capacity issue. In this case,that
CAPS form, and data is submitted to the school board for their review and processing as well. Bottom line is this
project does not increase school capacity beyond what can be handled within existing facilities. There is no
anticipated impact to the Orange County school system. We've done this prematurely to let them know this is being
moved through the process and as they move through,this would get adjusted and tracked over time. The main
point is the dashboard isn't showing a red light or even yellow light yet.
Randy Marshall: Is there anything in the Orange County UDO that requires affordable housing since I don't see any
reference to it?
Patrick Mallett: No,we don't. What we're focused on at this level is the process for the subdivision part of it. We
cannot compel a developer to develop what is defined as affordable housing. There are incentive programs in the
UDO to encourage the development of affordable housing, primarily through increases in allowable density, but this
is not applicable to this project.
Randy Marshall: Municipalities often require payment in lieu of recreational facilities. I don't see any mini play
grounds or recreational facilities within this development.
Patrick Mallett: That we can require and we do collect. We still collect a Park and Recreation fee based on the park
district that they are in. It's in the$455 range times each lot. Most jurisdictions have realized that it doesn't pay in
the public sense to put hundreds of little parks that are public parks within smaller subdivisions. Park districts have
been created and then that money is collected. You would have the open space for the project and then you have
public recreation which is the park fee.
Michael Harvey: I wanted to expand on the answer of affording housing. Orange County does indeed have a
program that allows for density bonuses for projects that provide affordable housing units. The problem is those
density bonuses are not applicable in watershed protection overlay districts. We establish density limitations as part
of our watershed management program to control overall development of property and to ensure we are effective
with managing water quality issues. You will recall from the concept plan meeting where we had discussed that the
applicant had investigated the potential to maximize the total number of lots that could be developed on these
properties,which would have been 27. The chief factors leading to the developer choosing not to develop the 27
individual lots were concerns about well and septic system development, potential traffic impacts, the preservation of
open space,and adjacent property owners concerns that 27 lots was too intensive of a development for the area.
From my standpoint all of these factors go into the development cost and the ultimate price point for the homes that
will be developed on this property. There is not a lot of opportunity in the rural areas of the County where there's not
easy access to water, sewer, public utilities to have intensely developed projects that might be able to have a price
point that could be construed as affordable based on applicable guidelines. Part of the duality in Orange County's
planning program is the need to properly manage or protect the natural environment and the tradeoff for that
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sometimes does result in projects that may not necessarily focus or factor on an addressing an affordability concern.
Ultimately this property will not yield sufficient density to make development of what some might construe an
affordable housing project viable but this project does focus more on the preservation and protection of the
environmental components related to the property.
David Blankfard: In the packet on-pages 40 and 41,you have a memo from Mr. Fleming, the stormwater supervisor.
Can you explain what his conclusions were?
Michael Harvey: I can try. I'll remind you about what I told you last month when the concept plan was reviewed. This
project will have to go through a stormwater permitting process. The process will have to demonstrate that proposed
stormwater facilities will not only comply with our code, but also address nutrient reduction requirements. I think that
what Mr. Fleming is attempting to identify is that he would like to see the SCM, stormwater control measure,to
accommodate more of the potential development on the housing side not just the roadways and overall land
disturbance activity for the project. Mr. Smith has indicated this evening that they are going to be looking at each
individual lot in terms of some disconnected stormwater flow feature to address on lot development activities,so you
don't have to over design the stormwater feature which actually incorporates some of the low impact design
elements. This is an attempt to try to address some of the duality of the ordinance with respect to how do we comply
with the stormwater standard, and at the same time, how do we achieve reasonable development of property.
David Blankfard:What I'm understanding is you are going to take care of some of the runoff on the individual pieces
of property.
Tim Smith: The ones we can,yes.
David Blankfard: If you can't take care of it on the property you're going to pipe it over to the SCM.
Tim Smith: Since this letter,we've done more in regard to what his concerns were, and we're headed in the direction
that we need to be for the overall project. We're increasing the size of our primary device areas,so they have more
capacity and we're also incorporating a tiered approach to stormwater to obtain the treatment required for the entire
property.
Michael Harvey: Just to reiterate, Mr. Smith has gone through a rather detailed recitation of the various techniques
they're looking at. As part of your recommendation, you can ask the Board to consider that if they choose to adopt
this project,that those suggestions be incorporated in the resolution of approval and that these are the steps that the
applicant will take in terms of addressing and incorporation of low impact design elements. This project cannot be a
process of low impact design development because it exceeds thresholds. I think it's perfectly reasonable for this
Board to recommend to the County's Commissioners to consider making that a requirement as part of the resolution
of approval if it gets approved.
Kim Piracci: Even if they build in three,four, different ways to control flooding, it's still only stormwater
measurements of one inch of rainfall in 24 hours. They don't have to accommodate three inches of rainfall.
Michael Harvey: No, that's the minimum base standard as currently contained within the UDO.
Hunter Spitzer: Is that standard set by the state or can we change that?
Michael Harvey: The State establishes minimum guidelines and requirements. If we choose to be more restrictive we
can do that, but the State would have to give us the authorization to do that. If this Board is interested, it could
request the County Commissioners to study whether or not there's an opportunity to implement a higher stormwater
management standard that should be adopted recognizing that there are impacts. Of course with more restrictive
standards comes higher development costs,which can translate to more expensive homes.
David Blankfard:Tim, if you did treat it more than one inch,what would that impact be on your SCMs?
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Tim Smith: It would be bigger SCMs, more disturbance area. We're trying to do low impact, minimize our
disturbance, minimize our impervious areas. We would have to cut more trees and make a bigger space to provide
that control.
Patricia Roberts: If you have a lot of pervious ground,then you are not going to need as much as you think. You've
got the natural way for water to be a absorbed into the ground and you're just trying to take over probably what you
have made impervious. The tradeoff, I would rather have more trees.
Tim Smith: With the one inch,they also call it water quality also. They call it the first flush. That first hard one inch
of rain hits all the pavement areas where all the nasty stuff is and that's what runs off first and that's what we're
required to treat first for nutrients and water quality.
Kim Piracci: Is the impervious, pervious areas taken into consideration when you decide how much?
Tim Smith: the project as a whole,we're very low on total amount of impervious. The allowed maximum for this
property is 36 percent and we're only proposing about 17 percent.
Kim Piracci: What would happen if you made 15 units instead of 20;would you then still have the cut down as many
trees?
Tim Smith: Potentially not, but that's all a balance of everything else we've talked about.
Patrick Mallett: The way this typically works for a single-family residential subdivision is it's a bit of a calculated right
sizing in terms of runoff and stormwater. Looking back at the layout. You want to put your open space and the
devices in the right place and then routing stormwater that would go through ditches into pipes. A big part of their
design and a analysis is to locate them in the right place, right size them, and assume that they built it and designed
it and located it appropriate for the initial clearing,the initial impervious to carry the freight for the public roads, and
then assume a theoretical clearing and an impervious amount for each of the lots. Part of the analysis is to factor in
the impervious water quality,water quantity and then the rate of runoff.
Jim Ray: My name is Jim Ray. I'm Occoneechee Golf Club. We were the ones going to get the water. I just want
to ask Tim how much more water are we actually going to get then we're getting now? If you can get the state to
build a culvert the first one west of where you all going to build, that would solve a whole lot of our problem.
Tim Smith: It's hard to say. The intent is always in following the guidelines that we have the follow. To keep it
basically as it was before the development was there.
Jim Ray: That's too much.
Tim Smith: The numbers that we are required to adhere to are no more post development than predevelopment.
Jim Ray: I'm not against the development, but I would like to have as much help as we can to stop the water.
The left turn lane, how much more pavement is going on our side of the road and where is the ditch line going to be
then?
Tim Smith: We don't have the final design. We're doing a proposed symmetrical widening. On your side right now,
the pavement will get about three feet wider than where it is right now. If it looks like it's going to be a problem on
your side of the road,we can shift the widening to be more on the project side with less impact on your side so we're
not having to push ditches and that sort of thing.
Jim Ray: We don't need to lose anymore property.
Tim Smith: Everything we do has to be within DOT's right of way. It's not going to be on your property. Hearing your
concern,we want to keep everything we can away from you.
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Zelda Lockhart: Good evening, I would like to read a letter that I'd like to have entered into the public record. Ms.
Lockhart read her letter to the public.
Linda Nathansen: Good evening. Tim, as they are doing the work in a protected watershed area, is there going to
be any type of safe guard? Will there be certain precautions set up to be able to halt the work at a stage so there's
not any endangerment to the Eno or to residents with the stormwater runoff or for flooding in general?
Tim Smith: Yes,we monitor that and when we know something significant is going to happen we instruct contractors
to make adjustments to what's in place on site.
David Blankfard: How soon after a weather event do your erosion control measures get inspected?
Tim Smith: They are required to be inspected after, I think, it's every significant rainfall event which is like a one inch.
They get inspected interim on a daily,weekly basis.
David Blankfard: If they find problems what do they do?
Tim Smith: They instruct the contractor to fix them or else they're done with the job.
Adam Beeman: Do you have to put up silt fence and if so how much do you have to put up?
Tim Smith: A silt fence is used almost every project for land disturbance areas to prevent runoff. When you have
bigger areas that are disturbed,you have to put in a sediment pond which is an erosion control pond.
Melissa Poole: Going back to the well issue. Are they testing wells around where they're going to subdivide this?
Tim Smith: At the concept Planning Board meeting we discussed this very extensively. We had testimony from the
Phil Valero from the environmental health department as to what the County does for testing of wells. I think they do
test on an interim basis. To respond to Zelda's letter, it's the same issues we discussed last meeting. Phil's
testimony in the record sets the stage for how that's done. This is not an out of the ordinary development in Orange
County. One acre lots are created on a regular basis with wells and septic. You go through the permitting process
the County,that's required. I know there's concerns about the neighboring properties as far as what their conditions
are now and the way the aquifers and so forth. On behalf of the developer,we can't make any promises that nothing
is going to happen. Based on standard procedure and what is done on a regular basis through the County if we're
issuing permits for wells, this is done every day.
Jessica Aguilar: Is there some sort of good faith kind of agreement or offering that the developer could make
asserting that any fall out that is definitely from the construction of this thing that does hit existing properties will be
addressed. Just out of respect for the people who have already been there for decades.
Tim Smith: When you say fallout, are you speaking of something specific?
Jessica Aguilar: Such as the wells being contaminated or somebody downhill getting a whole bunch of construction
runoff. Just a good faith that we won't deliberately destroy your property, but if we did and it's obviously us then we
will assist in undoing the damage.
Tim Smith: I would let the develop respond if he may or not. No response.
Linda Nathansen: That was brought up at the last meeting,and I would like to respond to what happened. The
possibility of having some type of bond was brought up which would ensure that if anything happened to the drinking
water that there would be some kind of assurance from the developer. Michael brought up that no developer would
be able to agree to something like that, and it was an unreasonable request. Along with that question, the HOA is
going to be responsible for this subdivision. Directed to Mr. Smith, if an event happens ten years from now or less,
who do we contact,the County or the Board who has approved it?
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Michael Harvey: I think that the minutes are very clear, and I think they can be read. The mischaracterization of my
comments I will address. The first issue that we have is there was a lot of comments at the last meeting that there's
existing wells in this area that are already impaired. Individuals that have well concerns or impaired wells need to
contact the Orange County health department and address those issues regardless of whether this development is or
is not approved. There are issues with wells that were installed inconsistent with current practice that are old and
they need to be redrilled. That is a reality for a county that is going to rely on individual wells and septic system to
address potable water and the treatment of waste water. With respect to stormwater, developers are required to post
sureties to deal with pre and post construction issues. As a developer is constructing the stormwater features for this
project, he is obligated and required by the ordinance to post a bond with Orange County erosion control engineering
division, so those stormwater features is installed per an approved plan. The second thing to keep in mind is that the
developer is responsible for posting what is known as a maintenance bond that exists in perpetuity. As the Home
owner's association assumes the responsibility for maintenance of the stormwater on site they're obligated to submit
biannual reports demonstrating the viability and continued effectiveness of the stormwater feature because that is the
required under the UDO and is part of the requirement of ensuring the perpetual responsibility for maintenance of the
stormwater system. If they fail in their obligations to maintain the system,we (the County)cash in the bond and bring
the feature back into compliance with applicable standards. Local home owner's associations are obligated by an
operations and maintenance plan that is approved (by the County)to abide by the perpetual maintenance and up
keep of the stormwater feature. That includes individual property owners who have to get stormwater features on
their property to support development of their lot. You are looking at two different systems,the communal system
and systems per individual lot. There are mechanisms in place to address concerns over stormwater. As it relates to
well and septic or specifically a well, if you already have impaired wells in the area, prior to this development coming
online, it's going to be difficult for the County or the resident's to prove it's Fairway Hills that created the problem. I
also think that if Fairway Hills were somehow required to go test wells on adjacent parcels,and if the wells are
contaminated and have to be condemned,what happens then? The project is not built and the applicant is not
responsible for the damage. There is a lot of talk about what liabilities the developer should accept in order to get
this project approved. My problem is that if there are already well issues, the liability falls to the current property
owner and the applicant for Fairway Hills should not be expected to fix wells that are already broken.
Hathaway Pendergrass:You mentioned that in conjunction with the stormwater requirements I think that is what we
were talking about earlier.
Michael Harvey: I think that one of the things that you had expressed interest in is to make a recommendation that
the developers'commit to following to ....... adhering to low impact design practices for stormwater features if the
County Commissioners see fit to approve this project. Staff suggested that language be included within the
resolution of approval to compel the developer to abide by the various practices he identified during the preliminary
plat review articulated in his PowerPoint. You can piece meal this to say your first motion is to say that regardless of
what else happens,you are recommended that the developer be held to his offer to incorporate low impact design
elements consistent with his presentation at this Planning Board meeting.
MOTION by Hunter Spitzer to adopt Michael's statement to require that the developer utilize the low impact design
elements he has recommended. Randy Marshall: Seconded.
VOTE: 9-1 Passed; (Piracci)
Kim Piracci: Well, I understand he was going to do that anyway. He was talking about low impact strategies anyway,
so this is almost like going through the motions of something that was already there.
David Blankfard:This is more of making sure that they were going to do it.
Kim Piracci: They were going to do it.
David Blankfard:They weren't required to do it.
Kim Piracci: That's what they were talking about. They were planning to do it.
David Blankfard: Right,and this way it's written down that they are going to do it.
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Kim Piracci: I would like to make a little speech to the Planning Board. I know there's a question of legality, but I also
have a conscious. If there's one thing I'm conversant on is climate mitigation. This development is everything that
doesn't address what we need addressed moving forward. Any language,that I have in quotes"properly protect the
environment"are hollow words. This area except for that original homestead area is completely wooded and it's the
very definition of urban sprawl. One inch of rain in 24 hours is something in the past year we've probably gotten once
a week or more. Who is going to get hurt from that? Are people going to start being hurt? Mr. Smith admitted that
the intersection will be dangerous, not his word, mine, but I think his word was difficult. Turning left out of that
development, not so good. There's no affordable housing and that's for reasons beyond our discussion, but it's not
good. It's not a good thing to be building so much expensive housing in this one area without building the other kind
of housing. There's no mention of green building strategies of any kind, lead building or solar panels. I'm going to
vote no on this.
Hunter Spitzer: Michael, you said that we could recommend to the Board of County Commissioners that they
investigate increasing the one inch in 24 hours rainfall requirement that they also be required to mitigate a more
extreme event. How would be go about making such a request?
Michael Harvey: I think you would do it after you have made some sort of motion (on this application). The motion
can be made that the County Commissioners be asked to initiate a study on the impacts of increasing the stormwater
design threshold for developments. I'm going to remind you that that's not just new development that's any existing
property owner who exceeds the established thresholds would then have to abide by that standard. Be forewarned
of some of the issues that we're going to be bringing back to you in terms of the pros and cons because as I
indicated there's opportunities and constraints, but I think that once you've concluded action on this particular project,
someone can make a motion to ask the County Commissioners to direct staff to begin a comprehensive assessment
of additional stormwater opportunities.
Patrick Mallett: If you start evaluating the existing wells around the perimeter and you find things that would cause
them to have to be modified,these would have to be enforced. You could be looking at wells that are condemned. I
would also reiterate his analogy with regard to the difference in standards over time.
Zelda Lockhart: As a person who is being spoken about who might therefore be further impacted. If my well is
inspected now and then hypothetically needs work,that's still a win,win for everybody. Let's say that the drinking
water isn't as great as I think it is. If the developer has to pay for that to see the condition of my well, and they find
out it's not in as great condition as they thought, I don't lose. I'm good with that.
David Blankfard: So you would have to pay for your own well to be upgraded if found deficient.
Zelda Lockhart: If it was found deficient. I think that argument is being put over as almost a shadow over the
concern that I have. That is not a concern. So, if I understand what Michael is saying, he is saying that if there was
something put in place to assure that the development, the construction of the development, and the digging of the
wells in some way condemned my well,that that's not something similar as to who could know what condemned my
well. I think that's what the argument is. That doesn't take away my concern. If I have my tap on today and then
tomorrow begins the pounding into the wells, I think it is a pretty good legal argument that there's a cause and effect.
The aquafers don't just run one day and go dry the next. What I'm saying is that that secondary argument of now
you wouldn't want those citizens to have to go paying for better drinking water now;would you? That's a shadow on
top of the issue that I'm raising.
Kim Piracci: I'm kind of agreeing with her. I was thinking, there's a downside to knowing if I have bad water? If I had
bad water I would want to know about it.
Patrick Mallett: What I'm saying is that Michael and Phil and the discussion last month pointed out that part of that
investigation could reveal deficiencies that have to be resolved.
Kim Piracci: And what's the downside of that?
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Patrick Mallett: There isn't a downside, but his point is they would be forced to possibly condemn some wells. Also I
think the message here is that there is already a mechanism to get wells inspected to address this issue even before
the project is developed, if approved. If wells are already impaired, they are impaired prior to this project being
approved. I do not think we can compel a developer to pay for well testing where property owners have already
admitted there are problems. Why should they pay for such an evaluation if the issues are already known?
Kim Piracci: So people would dig deeper at their cost. In my opinion,that's better than drinking bad water.
Adam Beeman: If you condemn my well, and I had to drill another$3,000 well, I'm going to be mad.
Kim Piracci: But you'd rather drink water with GenX in it?
Adam Beeman: If that's what was in my water then I would redrill because the water was contaminated. If they came
out and said that there was a reason my well would need to be condemned, and I need to spend 3 to$4,000 to drill a
new one, I'm going to be mad. If you increase your one inch for 24 hours to two inches,you're rippling everything
and now everybody else has to abide by this which could put a huge financial burden on any number of land owners
in this place and that all of a sudden,their well is no good.
David Blankfard: They are already saying that these new wells are not going to impact the aquifers of their
neighbors.
Adam Beeman:The restrictions that Orange County has in putting a well and septic in are so high that as the
likelihood of putting the straw in the same aquifer isn't going to happen. By forcing a developer to put money up front
and say, if I cause any problems to you guys,they're not going to develop. They're just going to go on to the next
county. You have to realize that the$300,000 to$700,000 home range is what it costs to buy the land,to develop it,
and everything else because they have to put separate septic systems and separate wells. There are all those costs
associated so if you make it more and more difficult the developer is going walk away and this county is going to die.
No one is going to want to pay that money.
David Blankfard: If you look that record, Mr.Valero did not believe development of this project would impact water
pressure or the water capacity of the surrounding wells.
Kim Piracci: For me personally, the wells are not by biggest concern, but I agree with Zelda.
Patrick Mallett: I want to clarify. Either way, good water quality is what everyone wants. I'm just pointing out what
was said that last meeting for the benefit of those who were not here and the implications.
Randy Marshall: The other comment that I will make based on some of the things that you suggested is that all of
these issues come up after the fact. If these are issues that we're concerned about,we need to be proactive. Get
them into an ordinance or get them into a state law or federal law so they are considered before developments come
in.
Kim Piracci: It starts pretty easy by introducing a resolution to your county. However,there is a such a thing that
developers developing above lowest minimum standards, and I don't think there's anything wrong with developers
doing that.
Randy Marshall: But there's a cost to doing that. That's going to raise the cost of the houses even further.
Patricia Roberts: Didn't we have this discussion about the burden of proof. I think they've met the burden of proof.
Jessica Aguilar: My concern is that the current residents are going to have to have to deal with any fallout there may
be. Not to mention they are going to be surrounded by this project that brings gentrification into their lives. That's a
big deal for a person who has been in their home for 15-20 years.
David Blankfard:This project allowed in this zoning district.
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Jessica Aguilar:That's the question of meeting standards versus best practice.
David Blankfard: I don't think this Board can dictate everyone going above and beyond what is stated in the code
that's already been voted for and approved by multiple agencies.
Jessica Aguilar: I understand that the project is going to happen. I think that maybe it would be possible for some
sort of conversation for the developers to be somehow aimable in accommodating to the current residents as a show
of good faith and show of appreciation for changing the nature of their day. You can say it's just a new gated
community but that's going to change the nature of the school. Sixty new kids in the school system is going to
change the tone of their schools. Especially if 60 new kids are from$300,000 homes going to school with kids who
are from$100,000 homes. That's a social divide and it's going to happen, and it's going to affect things in the
community. It's something that needs to be thought of.
David Blankfard:Thank you for the comment. There's nothing else I can say about that.
MOTION by Randy Marshall to recommend approval that the Fairway Hills development go to the County
Commissioners as a major subdivision preliminary plot application proposing a 20-lot single family residential
subdivision in the Eno Township of the County in accordance with the provision to Section 2.15 In Article 7
subdivisions of the Unified Development Ordinance. Adam Beeman seconded.
VOTE: Passed (7-3) (Spitzer, Piracci,Aguilar)
Craig Benedict: Before we adjourn, regarding the topics addressed,we can bring material to you that's independent
of a project and if we have the opportunity for new and old members to explain some of the science behind these
issues. We went through an orientation tonight about the background and planning. The topics of what you can
issues are permitted by right,what regulations we have, and can you exceed them or not. Those are all topics that
we need to get to so that everybody understand how a development process is reviewed. As was suggested tonight,
if the Board as an idea to raise a standard up,they can vote to have us bring something forward to the
Commissioners. We might forward it to another advisory board. If we get authorization from the Board to move
forward with this that's what we do. Once those standards are established,that's what we hold the development
community to and then we move forward on known information with clarity.
Hathaway Pendergrass:That first I had, I said the word abstain I meant to say recuse just because of the potential
conflict that I would have. That's why I didn't vote.
Michael Harvey: Those with an interest in having a motion made to ask the County Commissioners to direct to staff to
initiate a comprehensive discussion of the existing stormwater standards.
Kim Piracci: I feel like the staff like Brennen Bouma, I would like to see these people involved in this.
Michael Harvey: That's up to the County Commissioners to decide.
David Blankfard: Do we have a recommendation to send that to the Board of the County Commissioners?
Kim Piracci: I don't know. I just feel like the Planning Board has a different agenda than an environmental board.
MOTION by Hunter Spitzer to request the Board of Orange County Commissioners to commission a study within the
planning department to review the existing stormwater standards. Hathaway Pendergrass seconded.
Craig Benedict: I mean the Board would have to have consensus to at least make that suggestion. What we'll do if
the Board does so vote on that to move it forward you can have us in advance of that provide where those standards
come from,what other standards are just so you have an idea of the context of where the standard came from and
then if you decide to move forward you can still do that. We'll bring in the experts and things like that, so everybody
has the context of where existing standards came from.
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Hunter Spitzer: I would like to request that, please,the bringing forward of experts to better explain the current
standards.
Craig Benedict:We'll bring back kind of a white paper on where the standard came from and you can decide. If the
Board wants to vote on that motion now,we have a first and second to have staff bring back a report.
Hunter Spitzer: Motion.
MOTION by Hunter Spitzer to request the Planning Department staff to do a study to review the existing stormwater
standards. Hathaway Pendergrass seconded.
VOTE: Unanimous.
Attachment 7 104
Resolution #:
RESOLUTION
OF THE
ORANGE COUNTY BOARD OF COUNTY COMMISSIONERS
Date: June 4, 2019
Name of Subdivision: Fairway Hills
Owners: Beth Porter and Thomas Bradford
11810 Wakehurst Drive
North Chesterfield, VA 23236
Applicant(s)/Developers: Old NC 86 Partners, LLC
C/o Jim Parker
504 Meadowland Drive
Hillsborough, NC 27278
Consultants: Summit Design and Engineering Services
C/o Tim Smith, PE
504 Meadowland Drive
Hillsborough, NC 27278
The Board of County Commissioners hereby approves the Fairway Hills Preliminary
Subdivision Plat, dated April 24, 2019, containing the following:
• 20 lots slated for single-family residential development with a gross density of
one (1) dwelling unit per every 2.1 acres of land area;
• Two paved public roadways, tentatively named "Birdie Lane" and "Bogie Court"
Court" constructed to NC DOT standards;
• The preservation of 15.54 acres of Primary and Secondary Common Open
Space as denoted on the Preliminary Plat;
• A 75-foot wide Type "E" landscaped buffer along US Highway 70 East;
• A 100-foot wide perimeter building setback around the northern, eastern and
western exteriors of the project;
• A 120-foot wide building setback along frontage with US Highway 70 East;
• 30-foot front and 20-foot side/rear setbacks for individual lots;
• Two Stormwater Control Measures (SCMs);
• A 50-foot well and septic setback around the exterior of the project; and
• A 5-foot wide right-of-way reservation along the existing right-of-way of US
Highway 70 East;
Per the Orange County Unified Development Ordinance (UDO), the applicant shall
construct, maintain and/or improve all Common Open Space areas until such time as it
is accepted for ownership and maintenance by a Homeowner's Association (HOA).
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Before the Final Plat of Fairway Hills can be approved by the Planning Department and
recorded within the Orange County Registrar of Deeds office the following conditions
shall be addressed:
A. Declaration of Restrictions
1. The Orange County Planning Department shall author a Declaration of
Restrictions (hereafter `the document') establishing and describing the
various development restrictions, standards, conditions, and requirements
associated with development of, and within, the project.
The document shall be recorded concurrently with the Final Plat and
approved, as to form and content, by the applicant and the County
Attorney.
2. The document is not intended to serve, supplant, or take the place of any
document recorded by the applicant establishing local homeowner
covenants, or deed restrictions enforced by either the applicant or an
established homeowners association.
B. Sewage Disposal
1. Residential lots shall contain adequate reserved areas for individual on-
site or off-site septic disposal and repair areas. These areas shall
ultimately be reviewed, approved and permitted by the Orange County
Division of Environmental Health.
2. The septic system locations may restrict the size and location of
improvements.
The document shall contain this statement and further indicate information
regarding the tentative location of septic systems is available from the
Orange County Health Department, Division of Environmental Health.
Each lot that does not contain a suitable building site shall be designated
both on the Final Plat and by instrument recorded in the Orange County
Registrar of Deeds as restricted for development potential as set forth in
the UDO.
3. The owner/applicant shall not destroy trees located within identified
stream buffers, Primary Common Open Space areas, or tree protection
areas denoted on the Final Plat for the installation of on-site or off-site
waste disposal systems or repair fields.
4. No septic system shall be located within a required stream buffer as
detailed within the UDO.
5. The Owners shall include in the restrictive covenants provisions requiring
each lot owner to have the septic system serving their lot inspected by a
licensee of the North Carolina On-Site Wastewater Contractors and
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Inspectors Certification Board, who is properly registered to perform such
inspections within Orange County, no less than one (1) time in every five
(5) year period (unless inspections are required more often by rule or
regulation of the Orange County Health Department) and to have the
system pumped if recommended by the inspector.
Payment for the inspections required under this condition shall be the
responsibility of the individual lot owner or the homeowner's association
as established by the governing Homeowner's Association declaration.
These provisions shall be in a form approved by the County Attorney.
C. Wells
1. Each residential lot shall contain an adequate area reserved for the
development of a well to provide potable water supporting development of
the property as ultimately reviewed, approved and permitted by the
Orange County Division of Environmental Health.
D. Roads and Access
1. The roads Birdie Lane and Bogey Court shall be a minimum of 20 feet
wide and paved to NC DOT standards.
Each public roadway, as well as the proposed stormwater management
system to support the roads, shall be located within a minimum 50-foot
right-of-way. Construction shall be inspected and approved by NCDOT.
OR
A Letter of Credit or escrow agreement shall be submitted to secure
construction of the aforementioned roadways to the standards Section 7.4
of the UDO.
An estimate of the construction cost must be prepared by a
certified/licensed engineer or grading contractor and submitted to the
Planning and Inspections Department. The financial guarantee must
reflect 110% of that estimate and be issued by an accredited financial
institution licensed to do business in North Carolina.
In this instance, the document shall state posted financial guarantee(s)
will not be released until the road construction has been inspected and
approved by Orange County.
2. All lots shall receive access from the above public roads. No driveway
access for any of the lots shall be permitted off of US Highway 70 East.
3. The approved Erosion Control and Stormwater Management Plan for
construction for the aforementioned roadways shall be continued and
coordinated with the Orange County Erosion Control Division to ensure
the appropriate design, requirements and standards are met.
4. Approved double-bladed street name signs shall be bonded for or erected
at the intersections of public streets prior to Planning Department
signatures on the Final Plat or prior to issuance of any building permit if
road construction is secured by letter of credit as described herein.
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5. The Owner/Applicant shall submit a copy of the NC DOT-approved permit
and NC DOT approval letter to the Planning Department prior to, or at the
same time as, the request for a grading permit is made, or before
Planning Department signatures are affixed on the Final Plat, whichever is
first.
6. Sight triangles (10' x 70') shall be shown on the Final Plat at the
intersection with each of the aforementioned roadways and US Highway
70 East.
E. Land Use Buffers and Landscaping
1. The 75-foot wide "Type E" land use buffer along US Highway 70 East, as
identified on the approved Preliminary Plat. These buffers shall be
maintained and/or preserved in perpetuity in accordance with the
provisions of Section 6.8 of the UDO. Existing vegetation credited toward
the required buffer rates shall be inspected by Planning Staff prior to
recordation of the Final Plat/
2. Trees within the tree protection area(s) denoted on the approved
Preliminary Plat shall be preserved as proposed by the applicant.
3. Provisions for the protection of existing trees shall be included in the Final
Plat, as well as the recorded Declaration of Restrictions as prepared by
the Orange County Planning Department.
4. Clear cutting or other removal of any trees or other vegetation on
individual lots is prohibited as specified within the UDO. This requirement
shall be further evidenced within the subdivision's recorded Declaration of
Restrictions and the Final Plat.
5. The Landscape Plan shall detail required tree plantings along common
property lines for each of the 20 proposed lots. Development of each
individual lot shall necessitate the submittal of a landscape plan providing
documentation on the installation and/or preservation of existing
vegetation to comply with established landscaping requirements detailed
within the UDO.
6. The stream buffer areas denoted on the approved Preliminary Plat shall
be left in an undisturbed, natural state with the exception of approved
utilities, pedestrian bridge(s) and accompanying pedestrian pathway(s)
installed consistent with the parameters of the UDO.
F. Drainage
1. The applicant shall finalize its approved stormwater management and
erosion control permits.
2. Drainage easements shall be located on the Final Plat as required
following review and approval of the stormwater management plan by
Erosion Control staff.
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3. Drainage culverts shall be sized and located appropriately, as required by
Orange County.
G. Emergency Services
1. The developer shall continue work between property owners, NCDOT and
the Orange County Fire Marshal to ensure that adequate
access/maintenance of fire water source(s) and suppression devices (e.g.
fire hydrants) has been obtained.
H. Parkland
1. At the time of recordation of the Final Plat, the applicant shall pay to
Orange County $8,645.00 ($455.00 times 20 lots with credit for one
existing lot/residence given) payment-in-lieu-of-parkland dedication fee.
I. Construction Waste
1. Per Orange County Ordinance, clean wood waste, scrap metal and
corrugated cardboard and all present construction waste, must be
recycled.
2. Per Orange County Ordinance, all haulers of construction waste must be
properly licensed.
3. Prior to any demolition or construction activity on the site the applicant
shall hold a pre-demolition/pre-construction conference with the County's
Solid Waste staff. This may be the same meeting held with other
development officials.
J. Miscellaneous
1. The Final Plat shall contain a title block and vicinity map in accordance
with the UDO.
2. The open space shall be conveyed into the Homeowner's Association
before Planning Department signatures are affixed to the final plat.
3. If street lighting is proposed, then a lighting plan shall be submitted to the
Planning Department for review and approval prior to purchase of lighting
fixtures from the utility provider.
Any lighting shall meet the Outdoor Lighting Standards as set forth in the
UDO.
4. Methods of disposal of trees, limbs, stumps and construction debris
associated with construction activity shall be by some method other than
open burning as required in the UDO.
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K. Certifications
1. A Certificate of Survey and Accuracy signed by a Professional Land
Surveyor shall be notarized on the face of the Final Plat.
2. A Certificate of Declaration and Maintenance in the form provided in the
UDO signed by the landowner and developer shall be on the face of the
plat and included in a document describing development restrictions to be
recorded concurrently with the Final Plat.
3. A licensed Civil Engineer shall certify that the public roads were built as
generally indicated on the Preliminary Plat.
4. A Certificate of Approval signed by the Orange County Planning and
Inspections Department shall appear on the face of the Final Plat.
5. All other required certificates detailed within the UDO, applicable to the
project, shall be placed on the Final Plat for signature.
NOW THEREFORE BE IT RESOLVED by the Board of Orange County
Commissioners that the Preliminary Plat for Fairway Hills is approved in accordance
with the above mentioned conditions and attached Preliminary Plat dated April 24,
2019.
Upon motion of Commissioner seconded by Commissioner
, the foregoing resolution was adopted this the day of ,
2019.
I, Donna S. Baker, Clerk to the Board of Commissioners for the County of
Orange, North Carolina, DO HEREBY CERTIFY that the foregoing is a true copy of so
much of the proceedings of said Board at a meeting held on , 2019 as
relates in any way to the adoption of the foregoing and that said proceedings are
recorded in Minute Book No. of the minutes of said Board.
WITNESS my hand and the seal of said County, this day of , 2019.
Clerk to the Board of Commissioners