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HomeMy WebLinkAboutAgenda - 05-20-2003-8rORANGE COUNTY BOARD OF COUNTY COMMISSIONERS CONSENT AGENDA ITEM ABSTRACT Meeting Date: May 20, 2003 Action Agenda Item No. ~" J'~ ~~ ~n IC~`T. C~ro~m rl~ecifiratinn AmPndrrlP.rltS DEPARTMENT: Planning & Inspections PUBLIC HEARING: (YIN) No ATTACHMENT(S): Proposed Ordinance Planning Board Minutes April 2, 2003 Public Hearing Mnts. Feb. 24, 2003 Ordinance Review Min. April 2, 2003 Keith Feather Letter Handouts GIS Sample Maps INFORMATION CONTACT: p. 5 Craig Benedict, Director, ext. 2592 p. 8 Robert P. Davis, Planner II,I ext. 2580 p. 13 Reynolds Ivins, EC Supvr., ext. 2456 p. 16 TELEPHONE NUMBERS: p. 21 Hillsborough 732-8181 p. 22 Chapel HiIN 968-4501 Durham 688-7331 Mebane 336-227-2031 PURPOSE: To close the Public Hearing and to make a decision regarding the proposed Stream Classification Amendments to the Zoning Ordinance. BACKGROUND: The North Carolina Division of Water Quality (DWQ) in the Department of Environment and Natural Resources is the agency responsible for statewide regulatory programs in groundwater and surface water protection. The DWQ mission is to preserve, protect and enhance North Carolina's water and groundwater resources through quality monitoring programs, efficient permitting, responsible management, fair and effective enforcement and excellence in public service. This charge is carried out through resources at both the state and local levels. The statewide watershed protection program is an example of state and local government regulatory powers. The County's watershed protection program requires stream buffers be established and enforced along all solid and intermittent blue line streams as identified on the United States Geological Survey (USGS) topographic maps. Presently, stream buffers within Orange County's zoning jurisdiction are only required along streams identified on USGS topographic maps. The USGS maps do not protect all water features that are important to water quality. The DWQ estimates that streams represented on USGS topographic maps underestimate the actual presence of streams by approximately 25%. These underrepresented types of streams, which have a high level of impact on water quality, are not protected at all under the County zoning stream buffer regulations. Another major shortcoming of the sole use of USGS maps is that the streams, which are identified on the maps, are based on aerial photography with no field verification. This lack of field verifications by the USGS creates problems, acknowledged by the DWQ, with regard to enforcement of the stream buffer regulations on a lot-by-lot basis. Three common problems encountered include, but are not limited to, disputes as to whether a USGS stream actually exists, disputes as to whether the location of :said USGS stream is as shown on the map and disputes concerning whether the floodplain is properly mapped based on the inaccurate location of a USGS stream. The State's original decision to require the use of USGS maps at the time the watershed protection rules were adopted was due to the fact that the USGS maps were available throughout the state while better maps, such as the Soil Survey, were not. Orange County adopted the USGS maps `by reference', as did other jurisdictions throughout the State. Due to the `by reference' adoption of the USGS maps the County's ability to `relocate' the stream is not available and the procedure for correcting an inaccurate stream location on a USGS map at the Federal level is lengthy and expensive. Furthermore, the correction of one inaccurate stream on a USGS map does not necessarily mean that inaccuracies for other streams on the same map are corrected. There are better methods than the use of static maps to protect stream quality and watersheds, the two most notable being DWQ certification of local governmental personnel and delegated authority. Orange County now has staff members trained in identifying surface water features that have a direct impact on water quality. Prior to receiving delegated authority for enforcement of the Neuse River Buffer rules from DWQ, each member of the Orange County Erosion Control staff received 50 hours of field training and classroom testing under the Surface Water Identification Training and Certification (SWITC) program. House Bill 1257 mandated the SWITC certification program to be taught by DWQ staff. This training, which is intended to ensure the enforcement of rules enacted by the N.C. Environmental Management Commission, is deemed sufficient by DWQ for stream identification use and establishing buffers per state-mandated watershed protection rules. The stream identification checklist that County staff uses to identify streams was developed by DWQ. This proposed amendment will allow usage of available, existing methods to protect streams by broadening language in the zoning ordinance that would allow, in addition to the USGS maps, the use of the Soil Survey of Orange County and field identification of water features by County staff. By using these three methods of water feature identification in combination with each other, virtually all streams that affect water quality will be protected. Another derived benefit is that the availability of County staff to do field determinations of streams will provide a service to property owners, more accurate and without cost, that will help them maintain a high quality of stream preservation. Maps showing the difference between the USGS maps and Soil Survey will be presented at the Planning Board meeting. While the new GIS maps are being updated with the soil survey streams, staff will use the soil survey maps as they currently are for Neuse River Buffer Rules. Issues at the Public Hearing (February 24, 2003) • Question regarding these amendments and applicability to Bona Fide Farming activities • Zoning does not apply to bona fide farming activities per State Statutes. Forestry activities are also exempt to the extent they fall under the same bona fide farming provision. However, if a portion of a farm exempt tract were proposed for development in the future (e.g. subdivision, non farm-related home occupation, etc), zoning ordinance provisions, which include stream buffers, would apply to the development proposal. Question regarding impacts of these rules on Orange County citizens • The Neuse River Basin Rules (North Carolina Administrative Code 15A NCAC 026.0100 & .0200) currently in effect in the Neuse River Basin require 50-foot stream buffers along identified streams (USGS, soil survey, field verified streams). • These proposed stream classification amendments would require that the same type of streams as those listed above have either 65-foot or 80-foot stream buffers. The buffer is dependent on the slope of the land over a 250-foc-t area adjacent to the stream. The 65-foot buffer applies to situations where the slope is 7.5 percent or less. The 85-foot buffer applies where the adjacent slope exceeds 7.5 percent. In rare instances would the buffer exceed 65 feet along soil survey streams due primarily to the minimally sloped areas that usually exist near the headwaters of streams. • There have not been major disputes regarding the enforcement of the Neuse River Basin rules and we would not anticipate an inordinate number of complaints as a result of these ordinance amendments. • These amendments do not `create' streams where none exist. These amendments require that steams that exist or have characteristics of streams be buffered in accordance with the County's stream buffer ordinance. • The variance procedure currently existing in Section 6.23.,,11 of the zoning ordinance for reduction of stream buffers will be fully applicable in situations where relief from the strict enforcement of the ordinance would be needed to prevent a complete taking of property. Process 1) Public Hearing held on February 24, 2003. Referred to Planning Board for recommendation to return to BOCC no sooner than May 20, 2003 2) Ordinance Review Committee reviewed amendments on April 2, 2003 • Referred amendments to Planning Board with no recommendation 3) Planning Board voted 9-0 to recommend approval of the amendments • Issues discussed • Vesting of existing structures • The same procedure in the zoning ordinance now is to be used for vesting. • Variance procedures to avoid complete takings of property • These rules exceed the State minimums, so the County could grant a complete variance on soil survey streams and not violate the State Watershed Rules. • Restoration of piped or destroyed soil survey streams • This may be a possibility on new projects or revisions to existing property, within reasonable limits. • Devaluation of property in general • This argument was used when the original Watershed Rules went into effect. No evidence has been presented proving that property values, in general, plummeted as a result of the watershed protection rules. 4) BOCC to make decision no sooner than May 20, 2003 4 FINANCIAL IMPACT: There is no public financial impact with this decision. RECOMMENDATION: Administration recommends APPROVAL of the proposed amendments. Planning Board recommends APPROVAL of the proposed amendments. Planning Staff recommends APPROVAL of the proposed amendments. Ordinance as Recommended by Administration An Ordinance Amending the Zoning Ordinance Of Orange County Be it ordained by the Board of Commissioners of Orange County that the Orange County Zoning Ordinance is hereby amended as follows: Section 1. Amend Article 22 definition for Stream Buffer to read as follows: Stream Buffer--A stream buffer is an area of land adjacent to a streams or a FEMA-identified floodplains, whichever is greater, which, except as permitted in Article 6.23.7 of this Ordinance, must remain undisturbed in its natural state. °D°'~°*a* Streams are identified as by any of the following means: 1) shown as solid blue lines a~ or as broken blue lines on the USGS Quadrangle maps, 2) shown as a water feature in the Orange County Soil Survey, or 3) a water feature identified by a field determination of County staff trained in surface water identification through the North Carolina Division of Water Quality (NCDWQZ. Stream buffers shall extend around the perimeter of all other water belies-features if any portion of the stream buffer touches the water bedy feature. Disputes pertaining to water feature identification decisions by County staff shall be filed directly to the NCDWQ. Stream buffers for Soil Survey streams shall be calculated using Method A only. Section 2. Amend Stream Buffers definition in Article 6.23.7definition to read as follows: a) Definition---See Article 22 Stream Buffer Section 3. Amend Article 22 to add a new definition for Water Feature to read as follows: Water Feature-A prominent aspect or characteristic of a geographic area that exhibits verifiable evidence of a presence of water in the soil. Examples of water features include, but are not limited to, perennial and intermittent streams, lakes, ponds, reservoirs, springs, artesian wells, irrigation wells, marshes or swamps, wetlands, and natural drainage ditches (non-ephemeral). Section 4: Amend Section 6.23.10 APPLICABILITY to react as follows: a) Existing Development For the purpose of determining compliance with or applicability of Article 6.23 of this Ordinance, existing development is defined as a residential or non-residential structure which: Ordinance as Recommended by Administration 6 1) was constructed prior to January 1, 1994 (October 19, 1999, with respect to the October 19, 1999 amendments related to the CANE-CA and CANE-PW districts; and September 19, 2001 with respect to the Stream Buffer/Usable Lot amendments; and May 20, 2003 with respect to the Stream Classification Amendments), or 2) was constructed in accordance with a valid building permit issued prior to January 1, 1994 (October 19, 1999, with respect to the October 19, 1999 amendments related to the CANE-CA and CANE-PW districts and September 1!~, 2001 with respect to the Stream Buffer/Usable Lot amendments; and May 20, 2003 with respect to the Stream Classification Amendments) or 3) was included as part of a Site Specific Development Plan approved by the Board of Commissioners prior to January 1, 1994 (October 19, 1999 with respect to the October 19, 1999 amendments related to the CANE-CA and CANE-PW districts and September 19, 2001 with respect to the Stream Buffer/Usable Lot amendments and May 20, 2003 with respect to the Stream Classification Amendments); or 4) had otherwise established a vested right under North Carolina Zoning law prior to January 1, 1994 (October 19, 1999 with respect to the October 19, 1999 amendments related to the CANE-CA and CANE-PW districts and September 19, 2001 with respect to the Stream Buffer/Usable Lot amendments and May 20, 2003 with respect to the Stream Classification Amendments). Existing development is hereby deemed to be conforming with respect to requirements of Article 6.23 of this Ordinance. Periodic updates to FEMA maps may affect structures located within the floodplain of specific streams. The zoning ordinance text amendments dated September 19, 2001 and May 20, 2003 only affect the Stream Buffer section of the ordinance and are not meant to supersede any FEMA regulations or requirements. Section 5. Amend Article 6.24.1 Additional Requirements for Lots Outside of Watershed Protection Areas to read as follows: In areas not identified on the Official Zoning Atlas as Watershed Protection Overlay Districts, a stream buffer a minimum of 50 feet in width shall be established along both sides of streams s#ewr~ identified as by any of the following means: 1) shown as solid blue lines afld or as broken blue lines on the USGS Quadrangle maps, 2) shown as a water feature in the Orange County Soil Survey, or 3) a water feature identified by a field determination of County staff trained in Ordinance as Recommended by Administration surface water identification through the North Carolina Division of Water Quality (NCDWQ~. Stream buffers shall extend around the perimeter of all other water +es-features if any portion of the stream buffer of a stream touches the water y feature. Disputes pertaining to water feature decisions by County staff shall be filed directly to the NCDWQ. Stream buffers for Soil Survey streams shall be calculated using Method A only. Section 6. That this ordinance be placed in the book of published ordinances. Section 7. This ordinance is effective upon its adoption. NOW THEREFORE BE IT RESOLVED by the Board of Orange County Commissioners that this ordinance entitled "An Ordinance: Amending the Zoning Ordinance of Orange County" be adopted. Upon motion of Commissioner Commissioner seconded by the foregoing ordinance was adopted this day of , 2003. I, Donna S. Baker, 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 _, LUU;s as relates in any way to the adoption of the foregoing and that said proceedings are recorded in the minutes of the said Board. WITNESS my hand and the seal of said County, this day of .2003. SEAL Clerk to the Board of Commissioners 8 MINUTES ORANGE COUNTY PLANNING BOARD APRIL Z, 2003 REGULAR MEETING 7:30-9:30 P.M. MEMBERS PRESENT: Jay Bryan, Chapel Hill at Large; Nicole Gooding;-Ray, Chapel Hill at Large; Craufurd Goodwin, Hillsborough Representative; Dr. Barry Kat:~, Chapel Hill at Large; Sam Lasris, Chapel Hill at Large; Rachel Preston, Eno Representative; :E~enee Price, Chapel Hill at Large; Noah Ranells, Bingham at Large; Hunter Schofield, Cedar Grove Representative; Maria Tadd, Bingham Representative; Theodore Triebel, Little River Representative MEMBERS ABSENT: Howard McAdams, Cheeks Representative STAFF PRESENT: Craig Benedict, Orange County Planning Director; Robert Davis, Current Planning Supervisor, Planner III; Tom Altieri, Comprehensive Planning Supervisor, Planner III; David Lentzer, Planner II; Carla Thames, Planner I; Tom King, Planner II PUBLIC REPRESENTATION: Keith Feather AGENDA ITEM ##1: CALL TO ORDER AND ROLL CALL Chair Nicole Gooding-Ray called the meeting to order. AGENDA ITEM ##2: INFORMATIONAL ITEMS a. April Calendar b. Next Meeting Scheduled -Wednesday, May 7, 2003 in the Food Lab c. JPA Public Hearing - Gooding-Ray: Wednesday, Apri19 at SCHSC. Please e-mail a reminder to everyone if the meeting is held. d. No Board of Adjustment Public Hearing in April. e. Copy of Goals as submitted by Chair of Planning Board for BOCC retreat Gooding-Ray: The list looks incomplete. Craig and I can work together to get the corrected version. AGENDA ITEM #4: APPROVAL OF MINUTES January 22, 2003 MOTION was made by Rachel Preston to accept the minutes. Seconded by Noah Ranells. VOTE: Unanimous March 6, 2003 MOTION was made by Jay Bryan to accept the minutes with minor changes on Pages 85 and 86 of agenda packet. Seconded by Barry Katz. VOTE: Unanimous 8 9 Price: Concerned about the type of contact that is going to be made to inform of violations. Gooding-Ray: There are safety issues to consider. There are places we: wouldn't want to send people. I've been bitten by a dog and threaten with bodily harm. MOTION was made by Barry Katz to change the civil penalties in the Subdivision section up to $500.00, which will accrue daily. Craufurd Goodwin seconded. Friendly Amendment: Nicole Gooding-Ray made a motion that people who maybe illiterate will have the option for the request to be in writing. VOTE: Unanimous .~~ c. Stream Classification and Buffer Amendments Presenter: Robert Davis, Planner III PURPOSE: To make a recommendation to the Board of County Commissioners regarding the proposed Stream Classification and Buffer Amendments to the Zoning Ordinance. BACKGROUND: The North Carolina Division of Water Quality (DV'1Q) in the Department of Environment and Natural Resources is the agency responsible for statewide regulatory programs in groundwater and surface water protection. The DWQ mission is to ;preserve, protect and enhance North Carolina's water and groundwater resources through quality monitoring programs, efficient permitting, responsible management, fair and effective enforcement and excellence in public service. This charge is carried out through resources at both the; state and local levels. The statewide watershed protection program is an example of state anci local government regulatory powers. The County's watershed protection program requires stream buffers bf; established and enforced along all solid and intermittent blue line streams as identified on the United States Geological Survey (USGS) topographic maps. Presently, stream buffers within Orange County's zoning jurisdiction are only required along streams identified on USGS topographic maps. The USGS maps do not protect all water features that are important to water quality. The DWQ estimates that streams represented on USGS topographic maps underestimate the actual presence of streams by approximately 25%. These underrepresented types of streams, which have a high level of impact on water quality, are not protected at all under the County zoning stream buffer regulations. Another major shortcoming of the sole use of USGS maps is that the streams, which are identified on the maps, are based on aerial photography with no fif;ld verification. This lack of field verifications by the USGS creates problems, acknowledged by the DWQ, with regard to enforcement of the stream buffer regulations on a lot-by-lot basis. Three common problems encountered include, but are not limited to, disputes as to whether a USGS stream actually exists, disputes as to whether the location of said USGS stream is as shown on the map and disputes concerning whether the floodplain is properly mapped based on the inaccurate location of a USGS stream. 10 The State's original decision to require the use of USGS maps at the time the watershed protection rules were adopted was due to the fact that the USGS maps were available throughout the state while better maps, such as the Soil Survey, were not. Orange (:ounty adopted the USGS maps `by reference', as did other jurisdictions throughout the State. Due to the `by reference' adoption of the USGS maps the County's ability to `relocate'' the stream is not available and the procedure for correcting an inaccurate stream location. on a USGS map at the Federal level is lengthy and expensive. Furthermore, the correction of one inaccurate stream on a USGS map does not necessarily mean that inaccuracies for other streams on the same map are corrected. There are better methods than the use of static maps to protect stream quality and watersheds, the two most notable being DWQ certification of local governmental personnel and delegated authority. Orange County now has staff members trained in identifying surface water features that have a direct impact on water quality. Prior to receiving delegated authority for enforcement of the Neuse River Buffer rules from DWQ, each member of the Orange County Erosion Control staff received 50 hours of field training and classroom testing under the Surface Water Identification Training and Certification (SWITC) program. House Bill 1257 mandated the SWITC certification program to be taught by DWQ staff. This training, which is intended to ensure the enforcement of rules enacted by the N.C. Environmental Management Commission, is deemed sufficient by DWQ for stream identification use and establishing buffers per state-mandated watershed protection rules. The stream identification checklist that County staff uses to identify streams was developed by DWQ. This proposed amendment will allow usage of available, existing methods to protect streams by broadening language in the zoning ordinance that would allow, in addition to the USGS maps, the use of the Soil Survey of Orange County and field identification o:f'water features by County staff. By using these three methods of water feature identification in combination with each other, virtually all streams that affect water quality will be protected..Another derived benefit is that the availability of County staff to do field determinations of streams will provide a service to property owners, more accurate and without cost, that will help them maintain a high quality of stream preservation. Maps showing the difference between the USGS maps and Soil Survey will be presented at the Planning Board meeting. Issues at the Public Hearing (February 24, 2003) • Question regarding these amendments and applicability to Bona Fide Farming activities • Zoning does not apply to bona fide farming activities per State Statutes. Forestry activities are also exempt to the extent they fall under the same bona fide farming provision. However, if a portion of a farm exempt tract were proposed. for development in the future (e.g. subdivision, non farm-related home occupation, etc), zoning ordinance provisions, which include stream buffers, would apply to the development proposal. • Question regarding impacts of these rules on Orange County citizens • The Neuse River Basin Rules (North Carolina Administrative Code 15A NCAC 02B.0100 & .0200) currently in effect in the Neuse River Basin require :SO-foot stream buffers along identified streams (USGS, soil survey, field verified streams). 11 These proposed stream classification amendments would require that. the same type of streams as those listed above have either 65-foot or 80-foot stream buffers. The buffer is dependent on the slope of the land over a 250 area adjacent to the stream. The 65-foot buffer is for situations where the slope is 7.5 percent or less. 'The 85-foot buffer is for situations where the adjacent slope exceeds 7.5 percent. It is unlikely that the buffer would exceed 65 feet due to the minimal slope that normally exists near the headwaters of streams. • There have not been major disputes regarding the enforcement of the Neuse River Basin rules and we would not anticipate an inordinate number of complaints as a result of these ordinance amendments. • These amendments do not `create' streams where none exist. These amendments require that steams that exist or have characteristics of streams be buffered in accordance with the County's stream buffer ordinance. Process 1) Public Hearing held on February 24, 2003. Referred to Planning Board for recommendation to return to BOCC no sooner than May 20, 2003 2) Ordinance Review Committee to review amendments Apri12, 2003 3) Planning Board to make recommendation to BOCC 4) BOCC to make decision no sooner that May 20, 2003 FINANCIAL IMPACT: There is no public financial impact with this decision. RECOMMENDATION: Planning Staff recommends APPROVAL of the proposed amendments. Davis: Made Staff presentation. Issues discussed: 1) Vesting of existing structure 2) Variance Procedures to avoid complete taking of property. Ranells: Does this rule cover situations that might arise where there i:; an existing pipe and through some construction and development there is an opportunity to recover that stream. Will this ordinance capture that opportunity? Benedict: If the project comes for our review again by way of subdivision or building permit or special use permit request, we can reevaluate the site and asked that it be returned to our existing standard. Davis: This would not apply unless someone comes in for development like any other rule. Gooding-Ray: Will you update the FEMA Flood Plain maps now? 12 Benedict: Orange County was supposed to have been done in November 2001 and was delayed. Keith Feather (Public): I am in the process of building a minor subdivision. Under the current ordinance, I am required to have a stream buffer on anon-existent stream but until the new ordinance is accepted, the current law will require me to buffer a stream that doesn't exist. MOTION was made by Barry Katz to approve the proposed amendments. Rachel Preston seconded. VOTE: Unanimous ISSUES FOR THE NEXT MEETING 1. E-mail reminder of the JPA Hearing on Apri19, 2003 -Craig Benedict 2. Talk to Nicole regarding training - Craig N. Benedict 3. Get info regarding Board of Adjustment member (Howard McAdams). Renee Price would like to attend. 4. Goals - Craig N. Benedict & Nicole Gooding-Ray 5. Name tags to be made Benedict: Training will be discussed next month. Gooding-Ray: I would like to review the agenda before the meeting. AGENDA ITEM #11: ADJOURNMENT MOTION was made for Adjournment by Barry Katz and seconded by Craufurd Goodwin. VOTE: Unanimous Meeting adjourned at 9:45 P.M. Nicole Gooding-Ray, Chair Tina L. Owen, Minutes Preparer 13 APPROVED 4115!2003 MINUTES ORANGE COUNTY BOARD OF COMMISSIONERS AN D ORANGE COUNTY PLANNING BOARD JOINT PUBLIC HEARING AGENDA February 24, 2003 The Orange County Board of CommissionersFebruae 024n2003 at 7 301p m in h e F Gordon joint session for a public hearing on Monday, rY Battle Courtroom in Hillsborough, North Carolina. COUNTY COMMISSIONERS PRESENT: Chair Margaret W. Brown, Moses Carey, Jr., Alice M. Gordon, Stephen H. Halkiotis and Barry Jacobs COUNTY ATTORNEY PRESENT: Geoffrey Gledhill and S. Sean Borhanian COUNTY STAFF PRESENT: Counand Clerg to the Boa dI Donria SS Baker (A~ o her staff Managers Rod Visser and Gwen Harvey members will be identified appropriately below) PLANNING BOARD MEMBERS PRES ebel Rachel IP~eston, H ward M Adams, Mariaay Bryan, Barry Katz, Craufurd Goodwin, Ted Tr , Tadd, and Renee Price PLANNING BOARD MEMBERS ABSENT: Vice-Chair Hunter Schofield NOTE: ALL DOCUMENTS REF FRRE N THE CLERK'S O F CE. ARE IN THE PERMANENT AGENDA A. OPENING REMARKS FROM THE CHAIR osed to be addressed at the meeting last Chair Brown said that some items that were supp week (February 17th) ~ould be delayed. Item 9-a regarding the school systems merger will be delayed until March 5 . Also, items 5-a a5d 6-a will be addressed March 5th. The closed session will also be addressed on March B. PUBLIC CHARGE- The Chair dispensed with the reading of the public charge. C. PUBLIC HEARING ITEMS Planning- Board Chair Nicole Gooding-Ray chaired these items. 1.Orange County Zoning Ordinance Text Amendments Verbatim Minutes from audiotape of the Text Amendment regarding Outdoor Lighting. Nicole Gooding-Ray, Chair, Orange County Planning Board: °The first item on the agenda is an Orange County Zoning Ordinance Text Amendment regarding Outdoor Lighting and we are going to hear a presentation from staff." 14 b. Amend Article 6.23.7 Stream Buffers and Article 22 Definitions to broaden the methods for identification of streams that require stream buffers. The specific change is to include a provision allowing use of the Soil Survey of Orange County and field identification by County staff to identify streams subject to stream buffers. Anew definition for Water Feature is added as a part of the amendment. Craig Benedict made this presentation. He said that this is a change from the existing zoning code that talks about the identif uingestionnis to increase theaopportunfees to idelntify streams Geologic Survey maps (USGS). The s gg with two additional methods. The first method is to use the Orange County Soil Survey maps. The Department of Water Quality has also put together a certification program where people can identify streams or identify that something is not a stream based on a list of criteria. The recommendation is to add this provision to the zoning code so that where subdivisions are analyzed, they can take into consideration all of the aspects of a stream. It has also been a goal of Orange County to protect the headwaters because 85% of all areas drained in the County are headwaters. An implication of this provision is that there will be additional stream miles that will be protected. Commissioner Jacobs asked if Mr. Feathers has seen a copy of this and Planner Robert Davis said that he was aware of it. Commissioner Gordon would like to have an estimate of the impact of this provision. She wants to protect streams as much as possible, but she wonders what the impact would be on people's properties since so much of Oran~emC ent might be in this classification. There were no Planning Board c Public Comment There was no one signed up to speak to this item, but Chair Gooding-Ray asked if anyone would like to speak. Robert Nichols, a retired dairy farmer, said that he went to the Planning Department today to ask about this provision. He said that Craig Benedict said in the presentation that the stream buffer would be from 130-170 feet. On his property this would take about 37 acres of his 175 acres. He would like to know what he can and cannot do with this property. He asked if he could harvest the timber. Craig Benedict said that if his property is a bona fide farm and forestry operations is what is planned for the property, then he would be following forestry regulations as sanctioned by the State and it would not fall under these zoning regulations. Bona fide farms are exempt from zoning regulations. Robert Nichols made reference to article 6.23.7 in the zoning ordinance and asked w a this refers to. Craig Benedict said that article 6.23.7 gives a definition of blue line streams and it offers how to determine stream buffers. Chair Gooding-Ray made reference to 6.23.7 and read, "A stream buffer is an area of land adjacent to a stream or a FEMA identified flood plain, whichever is greater, except as permitted in article 6.23.7.° She asked about the exception. Robert Davis said that the exceptions would be utilities, private road crossings, etc. Robert Nichols made reference to rainwater and said that this does not address rainwater. He said that there would be no financial cost to the public for this, but that he would have a large financial cost to take out 37 acres. He asked why his land could not be grandfathered. Chair Brown said that this. provision would not apply to bond fide farms. Commissioner Jacobs said that we should make it clear that i:his does not apply to bona fide farms. 15 County Attorney Geoff Gledhill said that no County zoning regulations apply to bona fide farming operations. Commissioner Halkiotis noted that 17 years ago he and Commissioner Carey had t e opportunity to protect Mr. Nichols'rdtaC rol na Mach eery Act tax collector went after them as manufacturing units under the No John Link said that the staff should respond to Commissioner Cordon's comment about full disclosure and that they pursue due diligence about the impacts on citizens. Under Section 2, where it says, "The stream buffer shall extend around the perimeter of all water bodies including ponds and lakes." He said that theree ndthis will el'minate the poss bility. fThistcou d affect small of land and they want to build a hous landowners. A motion was made by Commissioner Jacobs, seconded by Commissioner Carey o receive the Planning Staff's Recommendation and to refer the proposed amendment and to refer the proposed amendment to the Planning Board for a recommendation to be returned to the BOCC no.later than May 20, 2003. VOTE: UNANIMOUS c. Amend Article 23 (Enforcement) to streamline the citation procedure for zoning violations, to establish procedural guidelines for violation notifications, to allow the Zoning Officer to process civil penalties. An increase in the civil penalty from $100.00 to $500.00 per violation is also a part of the amendment. 2. Orange County Subdivision Regulations Text Amendments a. Amend Section VII (Legal Status Provision), Sub-section VII-E (Penalties for Violation), to identify the citation procedure for violations, and establish procedural guidelines for violation notification, to allow the Planning Director to make assessments for civil penalties, and increases the civil penalty from $50.00 to $500.00 per violation. Craig Benedict said that within this ordinance is how the County identifies with recurring violations and how to provide notices. The County still plans to have personal delivery with registered and certified mail. Civil penalties are suggested to increase from $100 to $500 per day. Presently the demand for payment occurs from the County Commissioners. The recommendation is that the demand for payment occurs with the staff and the courts. The definition of a violation and a violator has been enhanced. The attorney's office has worked closely with the zoning staff to examine the ways to bring violations to a faster conclusion that is fair with full notification and disclosure. He showed a procedural chart of the process of civil penalties. He said that presently there is a backlog of zoning compliance issues because they do not proceed past a certain point and there is no expeditious manner to bring them to a conclusion. John Link assured the Board that before the matters are carried to court that the person involved will know exactly what is involved. Commissioner Jacobs made reference to 23.2.2 and said that the person can be given notice in person or by certified mail. He would like to be assured that there is a personal documented visit first. He made reference to 23.2.3 and read, "a notice of violation is not required where a notice of the same violation has been issued to the same violator at the same 16 MINUTES ORANGE COUNTY PLANNING BOARD APRIL 2, 2003 ORDINANCE REVIEW 6:00-7:30 P.M. ORDINANCE REVIEW MEMBERS PRESENT : Nicole Gooding-Ray, Chapel Hill at Large; Hunter Schofield, Cedar Grove Representative PLANNING BOARD MEMBERS PRESENT: Jay Bryan, Chapel Hill at Large; Craufurd Goodwin, Hillsborough Representative; Dr. Barry Katz, Chapel Hill at Large; Rachel Preston, Eno Representative; Noah Ranells, Bingham at Large; Theodore Triebel, Little River Representative STAFF PRESENT (ORDINANCE REVIEW): Craig Benedict, Orange County Planning Director; Robert Davis, Current Planning Supervisor, Planner III; Tom Altieri, Comprehensive Planning Supervisor, Planner III; David Lentzer, Planner II; Carla Thames, Planner I; Tom King, Planner II AGENDA ITEM #1: APPROVAL OF MINUTES a. December 18, 2002 -Ordinance Review MOTION was made by Hunter Schofield to accept the minutes. Seconded by Nicole Gooding- Ray. VOTE: Consensus AGENDA ITEM #2: ITEMS HEARD AT THE FEBRUARY 24, 2003 PUBLIC HEARING a. Outdoor Lighting Standards Text Amendments Presenter: Carla Thames PURPOSE: To provide a recommendation to the Board of County Commissioners regarding Outdoor Lighting Standards. BACKGROUND: Presently, the Orange County Zoning Ordinance does not have any oul:door lighting standards for new or existing development. Generally, the lighting information that the County reviews has been submitted as part of the site plan approval, limiting oversight to those projects requesting a construction authorization. As development and population numbers increase in the County an effective lighting standards ordinance that reflects community values c;an be an important component in helping to maintain a high quality of life. On occasion, the Planning Department receives complaints that specific lights exceed the brightness necessary to accomplish a particular task. Without clear standards, enforcement action is limited. In these cases, persuasion is the chief enforcement tool and generally has a low rate of success. More recently, there have been concerns about the general loss of darkness during the nighttime hours. `Light Pollution', the common term for sky glow, adversely affects astronomical 17 Gooding-Ray: There was concern about the amount of the civil penalties at the Public Hearing. The County Commissioners expressed a concern about individuals having an opportunity to come before them. Why does the extension of time limit have to be in writing? There are quite a few members in the community that can't write. If you could ask therm for the information over the phone I believe that would be better. Davis: I'm not sure that would be the best avenue since the document would be posted several different places. King: We could develop a simple form with the technical information already completed and they could sign it. c. Stream Classification Text Amendments PURPOSE: To make a recommendation to the Board of County Commissioners regarding the proposed Stream Classification and Buffer Amendments to the Zoning Ordinance. BACKGROUND: The North Carolina Division of Water Quality (DV'JQ) in the Department of Environment and Natural Resources is the agency responsible for statewide regulatory programs in groundwater and surface water protection. The DWQ mission is to preserve, protect and enhance North Carolina's water and groundwater resources through quality monitoring programs, efficient permitting, responsible management, fair and effective enforcement and excellence in public service. This charge is carried out through resources at both the state and local levels. The statewide watershed protection program is an example of state and local government regulatory powers. The County's watershed protection program requires stream buffers be; established and enforced along all solid and intermittent blue line streams as identified on the iJnited States Geological Survey (USGS) topographic maps. Presently, stream buffers within Grange County's zoning jurisdiction are only required along streams identified on USGS topographic maps. The USGS maps do not protect all water features that are important to water quality. The DWQ estimates that streams represented on USGS topographic maps underestimate thE; actual presence of streams by approximately 25%. These underrepresented types of streams, which have a high level of impact on water quality, are not protected at all under the County zoning stream buffer regulations. Another major shortcoming of the sole use of USGS maps is that the streams, which are identified on the maps, are based on aerial photography with no field verification. This lack of field verifications by the USGS creates problems, acknowledged by the DWQ, with regard to enforcement of the stream buffer regulations on a lot-by-lot basis. Three common problems encountered include, but are not limited to, disputes as to whether a USGS stream actually exists, disputes as to whether the location of said USGS stream is as shown on the map and disputes concerning whether the floodplain is properly mapped based on the inaccurate location of a USGS stream. 18 The State's original decision to require the use of USGS maps at the time the watershed protection rules were adopted was due to the fact that the USGS maps were available throughout the state while better maps, such as the Soil Survey, were not. Orange County adopted the USGS maps `by reference', as did other jurisdictions throughout the State. Due to the `by reference' adoption of the USGS maps the County's ability to `relocate' the stream is not available and the procedure for correcting an inaccurate stream location on a USGS map at the Federal level is lengthy and expensive. Furthermore, the correction of one inaccurate stream on a USGS map does not necessarily mean that inaccuracies for other strearris on the same map are corrected. There are better methods than the use of static maps to prot~;ct stream quality and watersheds, the two most notable being DWQ certification of local governmental personnel and delegated authority. Orange County now has staff members trained in identifying surface water features that have a direct impact on water quality. Prior to receiving delegated authority for enforcement of the Neuse River Buffer rules from DWQ, each member of the Orange County Erosion Control staff received 50 hours of field training and classroom testing under the Surface Water Identification Training and Certification (SWITC) program. House Bill 1257 mandated the SWITC certification program to be taught by DWQ staff. This training, which. is intended to ensure the enforcement of rules enacted by the N.C. Environmental Management Commission, is deemed sufficient by DWQ for stream identification use and establishing buffers per state-mandated watershed protection rules. The stream identification checklist that County staff uses to identify streams was developed by DWQ. This proposed amendment will allow usage of available, existing methods to protect streams by broadening language in the zoning ordinance that would allow, in addition to the USGS maps, the use of the Soil Survey of Orange County and field identification of'water features by County staff. By using these three methods of water feature identification in combination with each other, virtually all streams that affect water quality will be protected. Another derived benefit is that the availability of County staff to do field determinations of streams will provide a service to property owners, more accurate and without cost, that will help them maintain a high quality of stream preservation. Maps showing the difference between the USGS maps and Soil Survey will be presented at the Planning Board meeting. Issues at the Public Hearing (February 24, 2003) • Question regarding these amendments and applicability to Bonn Fide Farming activities • Zoning does not apply to bona fide farming activities per State Statutes. Forestry activities are also exempt to the extent they fall under the same bona fide farming provision. However, if a portion of a farm exempt tract were proposed for development in the future (e.g. subdivision, non farm-related home occupation, etc), zoning ordinance provisions, which include stream buffers, would apply to the development proposal. • Question regarding impacts of these rules on Orange County cil:izens 19 The Neuse River Basin Rules (North Carolina Administrative Code 15A NCAC 02B.0100 & .0200) currently in effect in the Neuse River Basin require 50-foot stream buffers along identified streams (USGS, soil survey, field verified streams). These proposed stream classification amendments would require that the same type of streams as those listed above have either 65-foot or 80-foot stream buffers. The buffer is dependent on the slope of the land over a 250 area adjacent to the stream. The 65- foot buffer is for situations where the slope is 7.5 percent or less. The 85-foot buffer is for situations where the adjacent slope exceeds 7.5 percent. It is unlikely that the buffer would exceed 65 feet due to the minimal slope that normally exists near the headwaters of streams. • There have not been major disputes regarding the enforcement of the Neuse River Basin rules and we would not anticipate an inordinate number of complaints as a result of these ordinance amendments. • These amendments do not `create' streams where none exist. These amendments require that steams that exist or have characteristics of streams be buffered in accordance with the County's stream buffer ordinance. Process 1) Public Hearing held on February 24, 2003. Referred to Planning Board for recommendation to return to BOCC no sooner than May 20, 2003 2) Ordinance Review Committee to review amendments Apri12, 2003 3) Planning Board to make recommendation to BOCC 4) BOCC to make decision no sooner that May 20, 2003 FINANCIAL IMPACT: There is no public financial impact with this decision. RECOMMENDATION: Planning Staff recommends APPROVAL of the proposed amendments. Davis presented the staff report. Davis: The County enforces stream buffers under the State Watershed Rules, which basically state that buffering is required along streams, intermittent and solid line. We know streams in the County that are not reflected on the USGS maps. This amendment will allow Erosion Control staff, which has been certified by the State, to identify the strearris using the soil survey maps on site, field identification, as well as using the USGS map. Staff proposes to apply the County buffer standard to soil survey streams. In most cases those streams are on the ground but are not protected now. The impact to property owners is that there will be streams that actually exist that will be buffered, the benefit is that you do not have streams eliminated or piped or graded over that aren't protected right now. If the slope is 7.5% you apply a 65-foot stream buffer and if it's greater than or equal to 7.5%, you apply an 80-foot stream buffer. This ordinance provides relief where there is an inaccurate map showing a stream that does not exist. Triebel: This zoning does not apply to bonafide farming land? Davis: No. ,~ 20 Benedict: If one came in for a subdivision we would protect those strez~ms. Existing private lots are not affected. Ranells: Agricultural is exempt, is that existing and future use? It's not a situation where existing uses are okay, new uses or not. Gooding-Ray: New farms would be exempt. Ordinance Review was adjourned at 7:30 P.M. Nicole Gooding-Ray, Chair Tina L. Owen, Minutes Preparer 21 03/13/03 Mr. Keith A. Feather 3017 Hwy 70A East Hillsborough, NC 27278 Mr. Robert P. Davis Orange County Planning Board P.O. Box 8181 Hillsborough, NC 27278 Dear Mr. Davis: I regret my inability to attend the public hearing on February 24~' during which stream classification and buffer amendments were under discussion. As a landowner in Orange County who would be directly affected by the proposed ordinance, I would like to state my concerns here so thhat they may be conveyed to the Planning Board and County Commissioners, who, as I understand, will ultimately decide on the matter. My situation is as follows. I own 23 acres approximately three miles east of Hillsborough, just south of Highway 70, this property being held in my family since 1964. I am currently in the process of a minor subdivision, and on one of the proposed lots the USGS map indicates a stream. where, in fact, there is none. County staff has visited the site and to my knowledge agree that there is not a stream, or creek, or channel or any other indication of surface water, intermittent or perennial, at this location. Nonetheless, the current Orange County planning rules require that I have a stream buffer surveyed and. placed on the final plat simply because the USGS map incorrectly illustrates a stream as being there. Given the established fact that USGS maps are often in error, I think it prudent that the County allow itself the flexibility to ascertain the actual existence of these water features utilizing its own trained staff. This would relieve landowners of the illogical burden of creating stream buffers for non-existent streams and water features. Of equal, or greater importance, the proposed ordinance would also allow the County to protect bona fide streams and water features that erroneously do not appear on the static USGS maps. This ordinance, then, would have the effect of freeing landowners of unnecessary rE;straints, unintended bathe existing ordinances, while allowing the County to more effectively fulfill its goal of protecting the County's watershed under its existing protection program. In light of these considerations, Iimplore the County government to adopt the proposed ordinance. Sincerely Yours, -, Keith A. Feather February 24, 2003 Public Hearing; Stream Classification Amendments CURRENT STREAMS PROTECTED • Only those streams identified on USGS 7.5-Minute Quadrangle Topographic Maps (underestimate stream lengths by 25%) • Solid blue line streams • Intermittent blue line streams • Current Stream Buffers in State Classified Watersheds • 65 feet from top of bank or floodplain edge (7.5%~ or less slope) • 80 feet from top of bank or floodplain edge (greater than 7.5% slope) • Current Stream Buffers not in State Classified Watersheds • 50 feet from top of bank or floodplain edge PROPOSED STREAMS TO PROTECT • USGS solid and intermittent blue line streams (same) • Orange County Soil Survey identified streams • Field Verification by Erosion Control staff (only when a challenge is lodged disputing the stream location as identified on maps) 22 February 24, 2003 Public Hearin; IMPLICATIONS • Increases the total stream miles protected • Stream Protection at the Headwaters • Water quality most sensitive at headwaters • Flow regime for higher order streams is most affected by what happens at the headwaters • Approximately 85 % of the land area in a watershed drains within the vicinity of the headwaters GRANDFATHER OPTIONS OUt_ion 1: Grandfather all lots of record lots, all existing structures and all projects with valid Preliminary Plan approval as of date of ordinance adoption. Option 2: No grandfather provision with all appeals processed through the Board of Adjustment • Board of Adjustment, under State rules, can reduce buffers on these type of streams completely • BOCC can set parameters in the ordinance limiting the amount of stream buffer reduction that the Board of Adjustment has authority to approve. 23 L'1 Andytle and maPP~B b9 ~' BBB (Peb 1~l, 2004) ck.~ cc~wy r a: hrp«Nai. NOTY A Ntlly~ YP~ s+e dat~rnihrd by ~~Y ~~*D a P~ M Ms ralrtiMd ad wruYg nA00 frt radFS tr+»r'rda. katlan Qi~ rye wHNn Ms wlw+drd Mridd h srpk mrn ~s Totd Mopped Stmm~ lagths (k 10.8 sq. mtk wmpls m+enj - U565 shrair = approx. M mils - SaN S~rvaY •hren =approx. 6l mIM NOTE L uscs,,...aa,alea taoe uscs s.o-.len. *av~vl~ v~ eapa. SeiM xlraena er rheas ahsrar an Oronpa GeaMy ~ ~'~N ~• NOTE 2: ArialyW wryls era dehnaNrd by rondsdp wMatNg a paixt M fM aaRraalyd aid aaaaauiy >1POO fret rodNr frae 1hs orders bratkn ONy ers oMNn Me rahraMsd YsYdsd M ssspM and 2000 0 2000 4000 Feet Upper Eno Watershed Mapped Streams Analysis I~range County NC February 2003 Andyaia and mappitag by WP 9ugg (Peb 1'6 4005) Orange Canmty Planntrf6 k InapaYae ~1( Total Mopped Strcam Lengths (in 10.4 sq. mile sample or•sa) - U565 strums = ogmox. 37 miles W E - Shc Survry streams = approx. 59 miles NOTE L U565 strooms token from U565 7.5-minute topographic quad maps. S Soils strums arc ihox shown on Orange CauMy Sal SurKy maps. v NOTE 2: Analysis aompk area dstamined by randomly selecting a point in the watershed and measuring 11,000 fut radius from }hc random loutian. o,uy area witiun the watershed included in sample area. 2000 0 2000 4000 Feet Malysis and mapping by W P Sugg (Feb 14, 2004) Orange County Planning & Inspections ~~ Totd Mappad StKmn Lagths (in 13.5 sq. la(le w~lpls ona) uses n"ne. _ ~. v, mri.. -Sell Su'vay eheaee = apP'o+~. 60 Mles NO'iE a uses rr..e. ~ fine uses ~.o-~nwen. teoey'ephte we+ ~ 5eile ekeaee en ~hees dieew ew o'sga t.o+y seH srrn wep.• NOTE ~ Mdyr4 wlgls area dshiwiud M radaJy wNetNg a oMet M eha ..r..tie.ia..r~rYg nano f«r.adwr H.e «,. n.d.e lea.rfa. Qiy area rNNn Mu ~elerehW Yclud~a In replsann 2000 0 2000 4000 Feet Cane Creek Watershed Mapped Streams Analysis Orange County NC February 2003 AiulyW and mapping b9 NIP BBB Q'eb 14, 7D04) Orange Coanty >~g ~