HomeMy WebLinkAboutAgenda 12-14-21; 5-a - Proposed Unified Development Ordinance Text Amendment – Modification of Enforcement Provisions Addressing Changes in State Law 1
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: December 14, 2021
Action Agenda
Item No. 5-a
SUBJECT: Proposed Unified Development Ordinance Text Amendment — Modification of
Enforcement Provisions Addressing Changes in State Law
DEPARTMENT: Planning and Inspections
ATTACHMENT(S): INFORMATION CONTACT:
1. Excerpt of Session Law 2021-138 Craig Benedict, Director, 919-245-2575
2. November 3, 2021 Approved Ordinance Michael D. Harvey, Planner III, 919-245-2578
Review Committee (ORC) Notes
3. Excerpt of Draft December 1, 2021
Planning Board Minutes and Signed
Statement of Consistency
4. Statement of Consistency
5. Ordinance Amending UDO
PURPOSE: To hold a public hearing, receive the Planning Board/staff recommendation and
public comment, close the public hearing, and consider action on staff initiated amendments to
the Orange County Unified Development Ordinance (UDO) eliminating existing language
allowing criminal penalties for violations of certain land use regulations.
The modification(s) are necessary to address recent changes in State law.
BACKGROUND: On September 2, 2021, Governor Roy Cooper signed Session Law 2021-138.
Portions of the legislation, excerpt contained in Attachment 1, decriminalizes certain types of
ordinances including planning and development regulations. Violation(s) of certain provisions of
the UDO are no longer potential criminal offences. The full version of the law is viewable here:
Session Law 2021-138.
The amendment was reviewed by the Board's Ordinance Review Committee (ORC) at its
November 3, 2021 regular meeting. Agenda materials are available at-
https://www.orangecountVnc.gov/AgendaCenter/ViewFile/Agenda/ 11032021-1326.
Attachment 2 contains the draft ORC meeting notes.
• What the Amendment Does: Eliminates existing language in Section 9.6.5 giving staff
the option of seeking criminal penalties for violations of the UDO. The proposal
renumbers appropriate sections to address the elimination of Section 9.6.5 of the UDO.
• What the Amendment Does Not Do: Eliminate language allowing for potential criminal
penalties for violation(s) of floodplain management (Section 9.7), soil erosion and
sedimentation control (Section 9.8) and stormwater management (Section 9.9)
regulations. The Session Law does not modify enabling authority under which these
provisions were adopted.
2
As previously indicated the amendment(s) are necessary to address the County's compliance
with applicable State law. The County Attorney's office has reviewed the proposal and found it
to be legally sufficient.
Planning Board Recommendation: The Planning Board reviewed this item at its December 1 ,
2021 regular meeting (held via Zoom due to current public health concerns) and voted 9 to 1 to
recommend approval of the amendments. The member voting no indicated they were not
comfortable with the recent State law changes eliminating the County's ability to seek criminal
charges for land use violations.
Excerpt draft minutes from the meeting and the signed statement of consistency are included in
Attachment 3. Agenda materials for the meeting are available at:
http://orangecountync.gov/AgendaCenter/Planning-Board-26.
Planning Director's Recommendation: The Planning Director recommends approval of the
Statement of Consistency, indicating the amendments are reasonable and in the public interest,
contained in Attachment 4 and the proposed ordinance contained in Attachment 5.
Note Regarding Written Public Comments: Session Law 2021-35 (House Bill 812) became
effective on July 1, 2021. A portion of the amended law pertains to written comments for public
hearings held in remote meetings during declared emergencies. The Session Law updated the
parameters for public written comments. Written comments on the subject of the public hearing
can be submitted by interested persons until 24 hours prior to the scheduled time for the
beginning of the public hearing.
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.
ENVIRONMENTAL IMPACT: There is no Orange County Environmental Responsibility Goal
impact associated with this item.
FINANCIAL IMPACT: Existing County staff has and will continue to accomplish the necessary
tasks associated with amending the UDO.
RECOMMENDATION(S): The Manager recommends the Board:
1. Conduct the public hearing and accept the Planning Board recommendation and
staff/public comment(s);
2. Close the public hearing;
3. Deliberate as desired; and
4. Vote to approve the:
i. Statement of Consistency (Attachment 4), and
ii. Ordinance Approving the UDO Text Amendments (Attachment 5).
3
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2021
SESSION LAW 2021-138
SENATE BILL 300
AN ACT TO INCREASE PROTECTIONS, TRAINING, AND OVERSIGHT FOR STATE
AND LOCAL LAW ENFORCEMENT OFFICERS; TO CREATE A DECERTIFICATION
DATABASE; TO REQUIRE USE OF THE FEDERAL BUREAU OF INVESTIGATION'S
NEXT GENERATION IDENTIFICATION SYSTEM AND RAP BACK SERVICE FOR
LAW ENFORCEMENT; TO REQUIRE REPORTING RELATED TO GIGLIO
MATERIAL; TO EXPAND TRANSPORTATION OF INVOLUNTARY COMMITMENT
RESPONDENTS; TO STANDARDIZE LAW ENFORCEMENT OFFICER ENTRY
REQUIREMENTS AND ONGOING REQUIREMENTS; TO REQUIRE
PSYCHOLOGICAL SCREENINGS OF LAW ENFORCEMENT OFFICERS PRIOR TO
CERTIFICATION OR EMPLOYMENT; TO EDUCATE LAW ENFORCEMENT
OFFICERS ON MAINTAINING GOOD MENTAL HEALTH, AND TO PROVIDE
INFORMATION TO LAW ENFORCEMENT OFFICERS ON MENTAL HEALTH
RESOURCES AVAILABLE; TO CREATE A PHYSICAL FITNESS STUDY; TO
DECRIMINALIZE CERTAIN LOCAL ORDINANCES AND PROVIDE COMPLIANCE
AS A DEFENSE TO AN ORDINANCE VIOLATION; TO MANDATE MISDEMEANOR
FIRST APPEARANCES WHEN A DEFENDANT IS IN CUSTODY; TO REQUIRE USE
OF THE NATIONAL DECERTIFICATION INDEX MAINTAINED BY THE
INTERNATIONAL ASSOCIATION OF DIRECTORS OF LAW ENFORCEMENT
STANDARDS AND TRAINING IN THE CERTIFICATION PROCESS FOR CERTIFIED
PERSONNEL; TO ESTABLISH A DUTY FOR LAW ENFORCEMENT OFFICERS TO
INTERVENE IN AND REPORT EXCESSIVE USE OF FORCE; TO ADDRESS
CONSTITUTIONAL ISSUES WITH SATELLITE-BASED MONITORING RAISED IN
STATE VERSUS GRADY AND CREATE A PROCESS TO REVIEW WHETHER
OFFENDERS SUBJECT TO THAT CASE WHICH WERE REMOVED FROM
SATELLITE-BASED MONITORING ARE OTHERWISE ELIGIBLE; TO REMOVE THE
STANDARDS COMMISSIONS FROM A NONEXCLUSIVE LIST OF STATE AGENCY
LICENSING BOARDS; TO PROTECT LAW ENFORCEMENT OFFICERS; TO AMEND
THE LAW TO PROVIDE IMMEDIATE DISCLOSURE OF BODY-WORN CAMERA
RECORDINGS RELATED TO DEATH OR SERIOUS BODILY INJURY; AND TO
ESTABLISH THE BIPARTISAN NORTH CAROLINA LEGISLATIVE WORKING
GROUP TO MAKE RECOMMENDATIONS FOR THE RECODIFICATION OF NORTH
CAROLINA'S CRIMINAL LAWS.
The General Assembly of North Carolina enacts:
PART 1. DECERTIFICATION STATEWIDE DATABASE AND PUBLIC LAW
ENFORCEMENT DATABASE REGULATIONS
SECTION 1.(a) Article 1 of Chapter 17C of the General Statutes is amended by
adding a new section to read:
17C-14. Database of law enforcement officer certification suspensions and revocations.
111111111111111111
8 *
4
detention;(ii)best practices for handling incidents involving juveniles;
(iii) adolescent development and psychology; and (iv) promoting
relationship building with youth as a key to delinquency prevention.
C. Ethics.
d. Mental health for justice officers.
e. Community policing_
f Minority sensitivity.
g_ Use of force.
h. The duty to intervene and report.
SECTION IL(c) This section becomes effective January 1, 2022.
PART XII.EXEMPT CHANGES TO LAW ENFORCEMENT IN-SERVICE TRAINING
STANDARDS FROM RULEMAKING
SECTION 12.(a) G.S. 150B-1(d) reads as rewritten:
"(d) Exemptions from Rule Making. — Article 2A of this Chapter does not apply to the
following:
6a The Criminal Justice Education and Training Standards Commission with
respect to establishing minimum standards for in-service training for criminal
justice officers under G.S. 17C-6(a)(141
The Sheriffs' Education and Training Standards Commission with respect to
establishing minimum standards for in-service training for justice officers
under G.S. 17E-4(a)(11).
SECTION 12.(b) This section is effective when it becomes law.
PART XIII. DECRIMINALIZATION OF CERTAIN ORDINANCES
SECTION 13.(a) G.S. 153A-123 reads as rewritten:
"§ 153A-123. Enforcement of ordinances.
(b) Unless the boaof eemmissioner-s has provided other-wi Except for the types of
ordinances listed in subsection (b 1) of this section, violation of a county ordinance may be a
misdemeanor or infraction as provided by G.S.14-4. G.S. 14-4 only if the county specifies such
in the ordinance. An ordinance may provide by express statement that the maximum fine, term
of imprisonment, or infraction penalty to be imposed for a violation is some amount of money or
number of days less than the maximum imposed by G.S. 14-4. Notwithstanding G.S. 153A-45,
no ordinance specifying a criminal penalty may be enacted at the meeting in which it is first
introduced.
bbl) No ordinance of the following types may impose a criminal penalty
(11,) Any ordinance adopted under Article 18 of this Chapter, Planning and
Regulation of Development or, its successor, Chapter 160D of the General
Statutes, except for those ordinances related to unsafe buildings.
Q Any ordinance adopted pursuant to G.S. 153A-134, Regulating and licensing
businesses, trades, etc.
Q) Any ordinance adopted pursuant to G.S. 153A-138, Registration of mobile
homes, house trailers, etc.
Any ordinance adopted pursuant to G.S. 153A-140.1, Stream-clearing
programs.
Any ordinance adopted pursuant to G.S. 153A-143, Regulation of outdoor
advertising or, its successor, G.S. 160D-912, Outdoor advertising_
Senate Bill 300 Session Law 2021-138 Page 11
5
Any ordinance adopted pursuant to G.S. 153A-144, Limitations on re_ug lating
solar collectors or, its successor, G.S. 160D-914, Solar collectors.
(7) Any ordinance adopted pursuant to G.S. 153A-145, Limitations on regulating
cisterns and rain barrels.
Any ordinance regulating trees.
SECTION 13.(b) G.S. 160A-175 reads as rewritten:
"§ 160A-175. Enforcement of ordinances.
(b) Unlessthe otm^ shall other-wise prevaeExcept for the types of ordinances listed
in subsection (bl) of this section, violation of a city ordinance is-may be a misdemeanor or
infraction as provided by G.S.14-4. G.S. 14-4 only if the city pecifies such in the ordinance. An
ordinance may provide by express statement that the maximum fine, term of imprisonment, or
infraction penalty to be imposed for a violation is some amount of money or number of days less
than the maximum imposed by G.S. 14-4. Notwithstanding G.S. 160A-75, no ordinance
specifying a criminal penalty may be enacted at the meeting in which it is first introduced.
No ordinance of the following types may impose a criminal penalty_
L Any ordinance adopted under Article 19 of this Chapter, Planning and
Regulation of Development, or its successor, Chapter 160D of the General
Statutes, except for those ordinances related to unsafe buildings.
Any ordinance adopted pursuant to G.S. 160A-193.1, Stream-clearing
programs.
Any ordinance adopted pursuant to G.S. 160A-194, Regulating and licensing
businesses, trades, etc.
Any ordinance adopted pursuant to G.S. 160A-199, Regulation of outdoor
advertising or, its successor, G.S. 160D-912, Outdoor advertising
tD Any ordinance adopted pursuant to G.S. 160A-201, Limitations on regulating
solar collectors or, its successor, G.S. 160D-914, Solar collectors.
(66,) Any ordinance adopted pursuant to G.S. 160A-202, Limitations on regulating
cisterns and rain barrels.
(� Any ordinance adopted pursuant to G.S. 160A-304, Regulation of taxis.
U Any ordinance adopted pursuant to G.S. 160A-306, Building setback lines.
(99,) Any ordinance adopted pursuant to G.S. 160A-307, Curb cut regulations.
10 Any ordinance regulatingtrees•
t1 SECTION 13.(c) G.S. 14-4 reads as rewritten:
"§ 14-4. Violation of local ordinances misdemeanor.
(a) Except as provided in subsection ( (b) or c) of this section, if any person shall
violate an ordinance of a county, city, town, or metropolitan sewerage district created under
Article 5 of Chapter 162A, he shall be guilty of a Class 3 misdemeanor and shall be fined not
more than five hundred dollars ($500.00). No fine shall exceed fifty dollars ($50.00) unless the
ordinance expressly states that the maximum fine is greater than fifty dollars ($50.00).
(b) If any person shall violate an ordinance of a county, city, or town regulating the
operation or parking of vehicles,he shall be responsible for an infraction and shall be required to
pay a penalty of not more than fifty dollars ($50.00).
Lc) A person may not be found responsible or guilty of a local ordinance violation
punishable pursuant to subsection (a) of this section if, when tried for that violation, the person
produces proof of compliance with the local ordinance through any of the following_:
(� No new alleged violations of the local ordinance within 30 days from the date
of the initial alleged violation.
Page 12 Session Law 2021-138 Senate Bill 300
6
SECTION 22.(a) If any provision of this act or its application is held invalid, the
invalidity does not affect other provisions or applications of this act that can be given effect
without the invalid provisions or application, and to this end the provisions of this act are
severable.
SECTION 22.(b) Prosecutions for offenses committed before the effective date of
this act are not abated or affected by this act, and the statutes that would be applicable but for
this act remain applicable to those prosecutions.
SECTION 22.(c) Except as otherwise provided,this act is effective when it becomes
law.
In the General Assembly read three times and ratified this the 25th day of August,
2021.
s/ Phil Berger
President Pro Tempore of the Senate
s/ Tim Moore
Speaker of the House of Representatives
s/ Roy Cooper
Governor
Approved 2:47 p.m. this 2nd day of September, 2021
Senate Bill 300 Session Law 2021-138 Page 29
7
Approved December 1, 2021
1
2 Attachment 2
3
4 SUMMARY NOTES
5 ORANGE COUNTY PLANNING BOARD
6 NOVEMBER 3,2021
7 ORDINANCE REVIEW COMMITTEE
8
9 NOTE: A quorum is not required for Planning Board Ordinance Review Committee meetings or Training Sessions.
10
11 Due to current public health concerns, the ORC meeting/training session was virtual. Members of the Planning Board and staff
12 participated in the meeting remotely.
13
14 MEMBERS PRESENT: David Blankfard (Chair), Hillsborough Township Representative;Adam Beeman (Vice-Chair), Cedar
15 Grove Township Representative; Lamar Proctor, Cheeks Township Representative; Kim Piracci, Eno Township
16 Representative; Carrie Fletcher, Bingham Township Representative; Statler Gilfillen,At-Large Representative;
17 Randy Marshall,At-Large Representative; Susan Hunter, Chapel Hill Township Representative; Whitney Watson,At-Large
18 Representative; Melissa Poole, Little River Township Representative; Charity Kirk,At-Large Representative;
19
20 STAFF PRESENT: Perdlta Holtz, Planning Systems Coordinator; Michael Harvey, Current Planning Supervisor;
21 Ashley Moncado, Planner 11; Tina Love,Administrative Support
22
23 AGENDA ITEM 1: CALL TO ORDER
24
25 AGENDA ITEM 2: UNIFIED DEVELOPMENT ORDINANCE (UDO) TEXT AMENDMENTS — DECRIMINALIZATION OF ORDINANCE
26 VIOLATIONS-To review proposed UDO amendments in response to Session Law 2021-138 (Senate Bill
27 300) which decriminalized violations of certain types of ordinances, including ordinance regulating
28 planning and development.
29 PRESENTER: Michael Harvey, Current Planning Supervisor
30
31 Michael Harvey gave the Planning Board members background and information regarding the need to amend the UDO in
32 response to legislative changes regarding decriminalization of violations as it related to some planning and development land
33 use regulations and answered questions.
34
35 Charity Kirk: We have to do this because the state has made a law change,we don't really have a choice.
36
37 Michael Harvey: Correct, state law now says you can no longer do this(i.e. impose criminal penalties)to enforce a land use
38 regulation. We're engaging in an ordinance amendment to make sure we are consistent with state law.
39
40 Lamar Proctor: You are still permitted to seek criminal charges for some violations, right?
41
42 Michael Harvey: Correct,we still have legal authority to seek a criminal charge for a violation of erosion control and flood plain
43 regulations.
44
45 Statler Gilfillen: This is mostly procedural and you've not had experiences in the past where you've ever had to formally file a
46 criminal charge.
47
48 Michael Harvey: Correct, in 25 years as a planner and being an enforcement officer, I have never filed a criminal charge for
49 violation of land use regulations.
50
51 Statler Gilfillen: As an extreme hypothetical, if someone had 100 acres and decided to bring in truckloads of nuclear waste and
52 dump it in the middle of the property and they do it consciously and willfully,where does something like that fall?
53
1
8
Approved December 1, 2021
54 Michael Harvey: We would seek an order of cessation and abatement through the court system. We could not seek criminal
55 charges any longer. The federal or state governments may be able to seek some sort of criminal redress but we cannot.
56
57 Perdita Holtz: The UDO deals with land use issues and there are other laws that apply to nuclear waste being dumped so 1
58 don't want people to go away thinking this is the only way for recourse.
59
60 Lamar Proctor: As a prosecutor of Orange County for 13 years, I have only had one case referred to me and that was by the
61 Carrboro Planning Department. The criminal court is really poorly equipped to deal with these sorts of cases that deal with
62 injunctions and civil penalties. You are much better off seeking injunctive relief and civil relief. If there's an environmental
63 problem or violation that gets to the level of state statutes,then the State Department of Environment Quality will jump in,the
64 AG's office and I have dealt with that. I had a case once with illegal sewage that was going into a stream. If it gets to a certain
65 level, state authorities would jump in.
66
67 Carrie Fletcher: What initiated this?
68
69 Michael Harvey: I wish I could tell you. I'm sure that local district attorneys did not want to deal with some of the idiosyncrasies
70 of a land use issue through a criminal proceeding. The burden of proof becomes more difficult for criminal proceedings versus
71 seeking an injunction or getting payment for civil penalty. It's probably an attempt to try to guarantee a more effective use of
72 the court's time. This only impacts the methods available with respect to the enforcement of local land use regulations.
73
74 Kim Piracci: Mine is more of a comment than a question. I actually feel better that Lamar feels ok with this because if he didn't
75 feel ok with it I would really feel not ok with it. In my mind there's what's legal and there's what's moral and ethical.Just
76 because the state is saying this, I can imagine a situation where there is a land use violation and it's pretty extreme and this
77 person doesn't care because nothing is really going to happen. Financially, he or she is going to come out ahead by breaking
78 the law so even though we have to do this, I'm going to vote no. I feel like this is a tool that might come in handy sometime
79 somewhere. I'm not trying to convince anybody else that they have to vote my way, I'm not getting it.
80
81 Michael Harvey: I respect your opinion. Unfortunately, this is not something that we're going to have the authority under state
82 law to pursue. I'm not saying that you are not entitled to your opinion and I'm certainly not saying you are wrong in an attempt
83 to diminish the value of your opinion. What I am saying is that the law no longer gives me this as a viable option to address an
84 identified violation of a local land use law. This is what I've been asked to do, state law no longer gives me the authority to do it
85 so we are eliminating it because state law has taken it out of our toolbox.
86
87 Kim Piracci: Right, and it doesn't matter how we vote the County Commissioners are going to do what they need to do
88 anyway.
89
90 Michael Harvey: Where we have violations that transcend land use issues,we've always had willing partnerships at the state
91 level to assist us and we not only involve state offices but also Orange County Solid Waste. I think that we have enough
92 arrows in the quiver to address the problem and effectively guarantee compliance. Yes,there's a component of the
93 enforcement strategy being eliminated, I don't think it's that effective.
94
95 Lamar Proctor: I do think that the State Legislature seems to have streamlined things for developers to make things easier for
96 economic development and I think part of that is because developers and lobbyist didn't want to be subject to criminal penalties
97 if something goes sideways on a land use thing. It could be an attempt to remove any threat for criminal prosecution. I do
98 understand Kim's point. Removing criminal penalties for egregious land use violations feels wrong but I agree with Michael
99 that most DA offices don't want to deal with those sort of cases. This doesn't strike me as giving away the environment.
100
101
102 AGENDA ITEM 4: ADJOURNMENT
103 The ORC session was adjourned at 8:04 p.m.
104
2
3 9
Excerpt of Draft Minutes D R A F T
Attachment
1 MEETING MINUTES
2 ORANGE COUNTY PLANNING BOARD
3 DECEMBER 1,2021
4 REGULAR MEETING
5 (Due to current public health concerns, this meeting was held virtually.
6 Members of the Planning Board, staff and public participated remotely)
7
8 MEMBERS PRESENT: David Blankfard (Chair), Hillsborough Township Representative;Adam Beeman (Vice-Chair), Cedar
9 Grove Township Representative; Lamar Proctor, Cheeks Township Representative; Kim Piracci, Eno Township
10 Representative; Carrie Fletcher, Bingham Township Representative; Statler Gilfillen, At-Large Representative;
11 Randy Marshall,At-Large Representative; Susan Hunter, Chapel Hill Township Representative; Whitney Watson, At-Large
12 Representative; Melissa Poole, Little River Township Representative;Alexandra Allman, At-Large Representative;
13
14 MEMBERS ABSENT: Charity Kirk,At-Large Representative;
15
16 STAFF PRESENT: Craig Benedict, Planning Director; Michael Harvey, Current Planning Supervisor;Ashley Moncado, Planner
17 11; Tina Love, Administrative Support
18
19 AGENDA ITEM 1: CALL TO ORDER AND ROLL CALL
20 Chair David Blankfard called the meeting to order.
21 ***************************************
22
23 AGENDA ITEM 7: UNIFIED DEVELOPMENT ORDINANCE(UDO)TEXT AMENDMENTS—DECRIMINALIZATION OF THE ORDINANCE
24 VIOLATION—To make a recommendation to the BOCC on Planning Director-initiated amendments to the
25 UDO in response to Session Law 2021-138 (Senate Bill 300)which decriminalized violations of certain
26 types of ordinances, including ordinances regulating planning and development. This item was reviewed at
27 the November 3, 2021 ORC meeting and is scheduled for BOCC Public Hearing on December 14, 2021.
28 PRESENTER: Michael Harvey, Current Planning Supervisor
29
30 Michael Harvey reviewed this item and reminded the Board that it was reviewed and discussed at the November 3, 2021 ORC
31 meeting.
32
33 MOTION BY Adam Beeman to approve statement of consistency and recommend approval to the BOCC. Seconded by Melissa
34 Poole.
35
36 ROLLCALL VOTE:
37 Statler Gilfillen Yes
38 Lamar Proctor Yes
39 Susan Hunter Yes
40 Kim Piracci No
41 Carrie Fletcher Yes
42 Adam Beeman Yes
43 Melissa Poole Yes
44 Alexandra Allman Yes
45 Whitney Watson Yes
46 Randy Marshall Yes
47 David Blankfard Yes
48 MOTION PASSED 10—1 (PIRACCI)
49 Randy Marshall was kicked off due to internet issues as he attempted to vote
50
51 Kim Piracci: I did explain that last month why I wasn't going to support it. I know of a developer who has broken so many
52 planning, so many things that he was not allowed to do and as far as I'm concerned, he should be in prison. It looks like there
53 is nothing going to happen to him and so it seems like it is a tool in the toolbox that could be used, maybe not with the current
54 County Staff we have now but in the future. When someone who is oblivious to laws that are in place including planning,
55 that's all.
56 ***************************************
10
STATEMENT OF APPROVAL AND CONSISTENCY
OF A PROPOSED UNIFIED DEVELOPMENT ORDINANCE TEXT AMENDMENT
WITH ADOPTED ORANGE COUNTY PLANS
Orange County has initiated amendments to the Unified Development Ordinance (UDO)
eliminating existing language allowing staff to seek criminal penalties for violations of certain land use
regulations in accordance with recent changes in State law.
The Planning Board hereby recommends approval of the proposed text amendment and
finds:
a. The requirements of Section 2.8 Zoning Atlas and Unified Development Ordinance
Amendments of the UDO have been deemed complete; and,
b. Pursuant to Sections:
■ 1.1.5 Statement of Intent -Amendments, and
■ 1.1.7 Conformance with Adopted Plans
of the UDO and to Section 160D-604(d) Planning Board review and comment — Plan
Consistency and 160D-605(a) Governing Board Statement — Plan Consistency of the
North Carolina General Statutes, the Board finds sufficient documentation within the
record denoting that the amendment is consistent with the adopted 2030
Comprehensive Plan.
1. The amendment is consistent with applicable plans because it supports the
following:
• Land Use Goal 6 of the 2030 Comprehensive Plan — A land use planning
process that is transparent, fair, open, efficient, and responsive.
The amendment is consistent with this goal and objective by
ensuring County regulations are consistent with recent changes in
State law related to the decriminalization of certain types of
ordinances. By adopting the amendment, the County will be
operating in accordance with the authority granted to it by the State.
c. The amendment is reasonable and in the public interest because it:
1. Ensures the legal sufficiency of County regulations with State law.
The Planning Board hereby adopts this Statement of Approval and Consistency as well as the
findings expressed herein.
12.03.2021
David Blankfard, Chair Date
11
Attachment 4
STATEMENT OF APPROVAL AND CONSISTENCY
OF A PROPOSED UNIFIED DEVELOPMENT ORDINANCE TEXT AMENDMENT
WITH ADOPTED ORANGE COUNTY PLANS
Orange County has initiated amendments to the Unified Development Ordinance (UDO)
eliminating existing language allowing staff to seek criminal penalties for violations of certain land use
regulations in accordance with recent changes in State law.
The Board of County Commissioners (BOCC) hereby approves the proposed text
amendment and finds:
a. The requirements of Section 2.8 Zoning Atlas and Unified Development Ordinance
Amendments of the LIDO have been deemed complete; and,
b. Pursuant to Sections:
■ 1.1.5 Statement of Intent -Amendments, and
■ 1.1.7 Conformance with Adopted Plans
of the LIDO and to Section 160D-604(d) Planning Board review and comment — Plan
Consistency and 160D-605(a) Governing Board Statement — Plan Consistency of the
North Carolina General Statutes, the Board finds sufficient documentation within the
record denoting that the amendment is consistent with the adopted 2030
Comprehensive Plan.
1. The amendment is consistent with applicable plans because it supports the
following:
• Land Use Goal 6 of the 2030 Comprehensive Plan — A land use planning
process that is transparent, fair, open, efficient, and responsive.
The amendment is consistent with this goal and objective by
ensuring County regulations are consistent with recent changes in
State law related to the decriminalization of certain types of
ordinances. By adopting the amendment, the County will be
operating in accordance with the authority granted to it by the State.
c. The amendment is reasonable and in the public interest because it:
1. Ensures the legal sufficiency of County regulations with State law.
The BOCC hereby adopts this Statement of Approval and Consistency as well as the findings
expressed herein.
Chair Date
Attachmen�5 ]
12
Ordinance # ORD-2021-030
AN ORDINANCE AMENDING THE
UNIFIED DEVELOPMENT ORDINANCE OF ORANGE COUNTY
Whereas, on September 2, 2021, Governor Cooper signed Session Law 2021-138,
portions of which decriminalize certain types of ordinances including planning and development
regulations, and
Whereas, a review of Orange County's Unified Development Ordinance (UDO)
determined certain amendments were necessary to conform the County's regulations to the
newly signed State law and County staff has completed the necessary amendments to the
UDO, and
Whereas, the requirements of Section 2.8 Zoning Atlas and Unified Development
Ordinance Amendments of the Unified Development Ordinance have been deemed complete,
and
Whereas, the Orange County Planning Board has recommended approval of the proposed
text amendments, and
Whereas, the County has held the required public hearing and has found the proposed
text amendments are consistent with the goals and policies of the adopted Comprehensive
Plan.
Be it ordained by the Board of Commissioners of Orange County that the Unified
Development Ordinance is hereby amended as depicted in the attached pages.
Be it further ordained that this ordinance be placed in the book of published ordinances
and that this ordinance is effective upon its adoption.
Upon motion of Commissioner seconded by Commissioner
, the foregoing ordinance was adopted this day of
, 2021.
I, Laura Jensen, Clerk to the Board of Commissioners for Orange County, DO HEREBY
CERTIFY that the foregoing is a true copy of so much of the proceedings of said Board at a
meeting held on , 2021 as relates in any way to the adoption of the
foregoing and that said proceedings are recorded in the minutes of the said Board.
13
WITNESS my hand and the seal of said County, this day of ) 2021.
SEAL
Clerk to the Board of Commissioners
14
UDO AMENDMENT PACKET NOTES:
The following pages contain UDO amendments eliminating existing language within
Section 9.6.5 allowing staff to seek criminal penalties for violations of certain land use
regulations in accordance with recent changes in State law.
Within this amendment package:
• Red Underlined Text: Denotes new, proposed text that staff is suggesting
be added to the UDO
• Red Strikethr h Text: Denotes existing text that staff is proposing to
delete
Only those pages of the UDO impacted by the proposed modifications have been
included within this packet. Some text on the following pages has a large "X" through it
to denote that these sections are not part of the amendments under consideration. The
text is shown only because in the full UDO it is on the same page as text proposed for
amendment or footnotes from previous sections `spill over' onto the included page. Text
with a large "X" is not proposed for deletion.
Please note that the page numbers in this amendment packet may or may not necessarily
correspond to the page numbers in the adopted UDO because adding text may shift all
of the text/sections downward.
Users are reminded that these excerpts are part of a much larger document (the UDO)
that regulates land use and development in Orange County. The full UDO is available
online at:
http://www.orangecountync.gov/DocumentCenter/View/8305/Unified-
Development-Ordinance-PDF
Article 9: Enforcemlrg
Section 9.5: Enforcement Procedure
If the violation has been corrected, the Planning Director shall take no further action
against the alleged violator. If the violation has not been corrected, the Planning Director
may act to impose one or more of the remedies and penalties specified in the notice of
violation, correction order, or Stop Work Order.
(F) If delay in correcting a violation would seriously threaten the effective enforcement of this
Ordinance or pose a danger to the public health, safety, or welfare, the Planning Director
may seek immediate enforcement without prior written notice through any of the
remedies or penalties detailed herein.
9.5.6 Final Notice of Violation and/or Correction Order
(A) The Planning Director's final written notice of violation (which may be the initial notice)
shall also order correction of the violation, If the identified violation is not corrected within
the timeframe stated in the Initial Notice of Violation or the decision is not appealed to the
Board of Adjustment within the specified timeframes identified in the Initial Notice, a final
written notice of violation shall be issued ordering the correction of the violation. This
final notice shall:
(1) Specify a reasonable time period in which the violation must be corrected, and
(2) State the remedies and penalties authorized within this Ordinance that the
Planning Director may pursue if the violation is not corrected within the specified
time limit.
(B) The final written notice of violation shall be served upon the responsible person(s), either
in person, posting the notice at the property in violation, or by certified or registered mail,
return receipt requested. When service is made by certified mail, a copy of the notice
shall also be sent by regular mail. Service shall be deemed sufficient if the notice by
certified mail is unclaimed or refused, but the notice by regular mail is not returned by the
post office within ten days after mailing, provided that a final notice of violation is posted
in a conspicuous place on the premises affected.
(C) A notice is also not required where action is taken under 9.6.2, 9.6.3, and/or 9.6.65.'
9.5.7 Recurring Violations
A new initial notice of violation is not required where a notice of a violation of the same kind has
been issued to the same violator at the same property within the previous two years. In such
cases, the violator may be charged with a continuing violation without further notice, as provided
in this Section.
9.5.8 Performance Standards
(A) Planning Director Determination
Where the Planning Director determines that there is a violation of performance
standards relating to emission of smoke, odor and explosive hazards influence, he/she
shall take or cause to be taken lawful action to cause correction to within the limits set by
such performance standards. Failure to obey lawful orders concerning such correction
shall be punishable as provided herein.
(B) Technical Determinations
If the Planning Director believes there is a violation but is unable to make a final
determination due to insufficient evidence, the following procedures shall apply:
1 The section number referenced is changing. The amendment is intended to reference this change.
Orange County, North Carolina—Unified Development Ordinance Page 9-4
Article 9: Enforcem1r6
Section 9.6: Penalties, Remedies, and Enforcement Powers
(1) The Planning Director shall give written notice, by certified mail, to the person or
persons responsible for the alleged violation. The notice shall describe the
particulars of the alleged violation and the reasons why the Planning Director
believes there is a violation, and shall require an answer or correction of the
alleged violation within a specified time limit. The notice shall state, and it is
hereby declared, that failure to reply or to correct the alleged violation within the
specified time limit set constitutes admission of violation of the terms of this
Ordinance.
The notice shall further state that upon request of those to whom it is directed,
technical determinations as described in this Ordinance will be made, and that if
violations as alleged are found, costs of such determinations shall be charged
against those responsible for the violation, in addition to such other penalties as
may be appropriate. If it is determined that no violations exist, the cost of the
determination will be paid by the County.
(2) If there is no reply within the specified time limit, and the alleged violation is
corrected, it shall be noted, "violation corrected"on the copy of the notice, and
shall be retained among the official records, taking such other action as may be
warranted.
(3) If there is no reply within the specified time limit, thus establishing admission of
violation(s)as provided within (1) above and the alleged violation is not corrected
within the specified time limit, action shall be taken as is warranted by
continuation of a violation after notice to cease.
(4) If a reply is received within the specified time limit indicating that the alleged
violation will be corrected, but additional time is requested, the Planning Director
may grant an extension, if it is deemed warranted in the circumstances of the
case and if the extension will not cause imminent peril to life, health or property.
(5) If reply is received within the specified time limit requesting technical
determinations, as provided in this Ordinance, and if the alleged violations
continue, the Planning Director may call in properly qualified experts to make the
determinations. If expert findings indicate violations of the performance
standards, the costs of the determinations shall be assessed against the
properties or persons responsible for the violation, in addition to such other
penalties as may be appropriate under the terms of this Article. If no violation is
found, the costs of the determinations shall be paid by the County, without
assessment against the properties or persons involved.
9.5.9 Failure to Comply
If a violator does not comply with a notice of violation, correction order, or Stop Work Order,
which has not been appealed, or with a final decision of the Board of Adjustment, the violator
shall be subject to enforcement action as prescribed by State law or by this Ordinance.
MTA=o • - - •
9.6.1 In General
(A) The Planning Director may pursue one or more of the remedies and penalties described
herein or otherwise authorized by common law or statute to prevent, correct, or abate a
violation of this Ordinance.
(B) Use of one of the authorized remedies and penalties does not preclude the use of any
other authorized remedies or penalties, nor does it relieve any party to the imposition of
one remedy or penalty from imposition of any other authorized remedies or penalties.
9.6.2 Permit Revocation
(A) In accord with the provisions of this Ordinance, the Planning Director, upon a written
determination, may revoke any permit, certificate, or other authorization granted under
Orange County, North Carolina—Unified Development Ordinance Page 9-5
Article 9: Enforcem jnr
Section 9.6: Penalties, Remedies, and Enforcement Powers
this Ordinance for failure to comply with the provisions of this Ordinance or the terms and
conditions of a permit or authorization granted under this Ordinance.
(1) Revocation of any permit or authorization shall follow the same development
review and approval process required for issuance of the development approval,
including any required notice or hearing.
(B) Any permit, certificate, or authorization mistakenly issued in violation of State law or local
ordinance, or issued on the basis of misrepresentations by the applicant, owner, or
owner's agent may be revoked without such written determination.
9.6.3 Permit Denial or Conditioning
(A) As long as a violation of this Ordinance remains uncorrected, the Planning Director may
deny or withhold approval of any permit, certificate, or other authorization provided for in
this Ordinance that is sought for the property on which the violation occurs.
(B) The Planning Director may also condition a permit, certificate, or authorization on the
correction of the violation and/or payment of a civil penalty, and/or posting of a
compliance security.
9.6.4 Injunctive and Abatement Relief in Superior Court
(A) A violation may be corrected by any appropriate equitable remedy, a mandatory or
prohibitory injunction, or an order of abatement as authorized by NCGS 153A-123.
(B) The Planning Director shall have the authority to execute an order of abatement if the
violator does not comply with such order, and the costs of the execution shall be
recovered by a lien on the property in the nature of a mechanic's or materialman's lien.
9-6.5 Criminal Penalties
(A) Any perSOR, fiRn OF GOrporatien who vielates the provisiens of this QrdinanGe or fails to
Gernply with aRY Of its requirements shall, upen GeRViGtien, be guilty ef a Gla
mosderneaner and shall be fiRed net mere than a maximurn ef$500.00, imprisonment e
up to 30 days er both fer eachy elatienas previded in NIGGS Sen+ien 14_1
criminal n nUMien of the alleged velater 2
9-.69.6.5 Stop Work Order
(A) If a building or structure is erected, constructed, reconstructed, altered, repaired,
converted, moved or maintained, or any building, structure or land is used in violation of a
Stop Work Order, the Planning Director, in addition to other remedies, may institute any
appropriate action or proceedings to prevent the unlawful erection, construction,
reconstruction, alteration, repair, conversion, moving, maintenance or use, to restrain,
correct or abate the violation, to prevent occupancy of the building, structure or lands, or
to prevent any illegal act, conduct, business or use in or about the premises.
(B) Notice of a Stop Work Order shall be in writing, directed to the person(s)conducting the
violating activity and/or the property owner, and shall state the reasons for the issuance
of the Order, and the conditions under which activity may be resumed. Notice shall be
given by registered or certified mail, return receipt requested. A copy of the notice shall
also be sent by regular mail. Service shall be deemed sufficient if the notice by certified
mail is unclaimed or refused, but the notice by regular mail is not returned by the post
office within ten days after mailing. Upon issuance of such Order, and posting of same
on the site of the violation, all work on the site of the violation shall cease, except those
activities necessary to bring the site into compliance with this Ordinance.
z Recent changes in State law,specifically Session Law 2021-138,decriminalizes certain ordinances including land
use regulations. As a result,a violation of County land use regulations is no longer considered to be a criminal
offence. Accordingly,staff is required to modify our existing regulations to address the changes in State law.
Orange County, North Carolina—Unified Development Ordinance Page 9-6
Article 9: Enforcemgrg
Section 9.6: Penalties, Remedies, and Enforcement Powers
(C) The person(s)conducting the violating activity and/or the property owner may appeal the
Stop Work Order to the Board of Adjustment pursuant to Section 2.27 of this Ordinance.
99.6.6 Civil Penalty
(A) The Planning Director may impose one or more civil penalties and issue one or more
Civil Penalty Citations for a violation as provided in this subsection. If the violator does
not pay the penalty, the Planning Director may collect it in a court through a civil action in
the nature of a debt.
(B) Notice
The Planning Director shall give the responsible person(s) and the landowner, if the
landowner is not the responsible person(s), written notice of the civil penalty citation,
either by personal delivery, electronic delivery, or first class mail. The notice shall include
a copy of the notice of violation, the amount of the penalty, information about where to
pay the penalty, the deadline for payment, which shall be ten days from the date of the
notice, and the possibility of civil enforcement. The Planning Director
shall certify that the notice was provided. a
(C) Penalty Amount
The Planning Director may impose a penalty of$500.00 per day of violation.
(1) For purposes of assessing the amount of a civil penalty, each day the violation
remains uncorrected after receipt of the final notice of violation, correction order,
Stop Work Order, or the receipt of the Civil Penalty Citation itself in the case of
emergency enforcement, shall constitute a separate violation that subjects the
violator to additional civil penalties.
(D) Settlement of Claims
The Planning Director is authorized to determine the amount of payment that will be
accepted in full and final settlement of some or all of the claims the governing body may
have in connection with the violation. The Planning Director shall indicate in writing the
claims from which the violator is released. If the violation has not been remedied,
payment shall not release a violator from potential Griminal preseGutien or a claim for
injunctive relief and/or an order of abatement._4
(E) Continuing Violations
(1) The Planning Director may issue a Civil Penalty Citation for a violation that
continues without being corrected. The violator in such cases may be assessed
a penalty for each day of the continuing violation.
(2) An initial Civil Penalty Citation for a single violation must be issued before a Civil
Penalty Citation for a continuing violation is issued.
(3) If the violator has failed to pay the penalty and correct the violation after the initial
Civil Penalty Citation, the violator is subject to a Civil Penalty Citation for a
continuing violation with a daily penalty.
(4) An initial Civil Penalty Citation is not required if the Department has previously
issued a Civil Penalty Citation to the violator for the same violation at the same
location within the previous two years.
(5) The Planning Director may give a single notice of a Civil Penalty Citation for a
continuing violation. The notice must contain a copy of the notice of violation and
must state that the violation is continuing, that a daily penalty of a specified
amount is being imposed, and that the penalty is cumulative.
(F) Judicial Action to Collect Civil Penalty
3 As land use regulations are no longer criminal matters,staff is eliminating language indicating same.
4IBID.
Orange County, North Carolina—Unified Development Ordinance Page 9-7