Administration and Enforcement of Development Regulations-1987

ADMINISTRATION AND ENFORCEMENT OF DEVELOPMENT
REGULATIONS IN NEW HANOVER COUNTY
New Hanover County Planning Dept.
August 16, 1987
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Division of Coastal Management
The preparation of this document was financed, in part,
through a Coastal Area Management Act grant provided by
the North Carolina Coastal Zone Management Act of 1972, as
amended, which is administered by the Office of Ocean
and Coastal Resource Management, National Oceanic and
Atmospheric Administration.

August 26, 1987
ADMINISTRATION AND ENFORCEMENT OF DEVELOPMENT REGULATIONS IN
NEW HANOVER COUNTY
• I' 1 A1:4,
The issue of inadequate implementation of County development
regulations was raised during the recent updating of the Wilmington -New
Hanover Land -Use Plan. In order to address this issue, this report performs
the following tasks:
(1) Evaluates the implementation and enforcement of the County's Zoning
Subdivision, Mobile Home -and Travel Trailer Park, and Sedimentation and
Erosion Control Ordinances;
(2) Summarizes recent efforts by several County departments to improve
enforcement; and
(3) Recommends the following major actions:
- Continue support for adequate manpower and resources to implement
County regulations.
Prepare a unified development ordinance that would result not only in
more effective implementation of County policies but also in a more
streamlined process for developers.
II. EXISTING ORDINANCES
A. Ordinances in the County
Many different ordinances at the Federal, State, and County level
presently regulate development in the County to varying degrees. The
County published in May 1986 a report, "Land Development Permit
Summary," that outlines 19 different types of government permits that
could be required for a residential development.
This report primarily is concerned with the major ordinances
administered by the County. The County recognizes that State and
Federal regulations are generally immune from County influence on their
administration and enforcement. Any effort to amend County regulations,
however, will consider the need to coordinate State and Federal regulations
to the greatest extent possible.
The major County ordinances dealing with development are the
Zoning Ordinance, Subdivision Regulations, Mobile Home and Travel
Trailer Park Ordinance, and Sedimentation and Erosion Control
Ordinance. Although there are other County regulations that
development must comply with, such as the Building Code and the
County's septic tank and well drilling regulations, these other
regulations deal with other subjects besides development and, to a
certain extent, are controlled by the State. The need to reference
these other regulations is recognized, however.
The following discussion analyzes each of the major County
development ordinances in terms of their administration and
enforcement: Administration includes the processes involved in
application review and the method of coordination with other
ordinances and agencies. -Enforcement.involves both monitoring and the
processing of violations.
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B_ New Hanover County Zoning Ordinance
The County Zoning Ordinance is implemented by a variety of
agencies, depending on the functional area of the Zoning Ordinance in
question. The Zoning Ordinance is enforced primarily by the County
Inspections Department through the review of building permit
applications and the issuance of Certificates of Occupancy. The County
Planning Department and Planning Board, however, analyzes site plans
for Performance Residential, High Density Development, and Planned
Development for conformance with the Zoning Ordinance. The Planning
Department also examines all site plans associated with the
Conservation Overlay district (COD - Sec. 59.4). The Building
Inspector then insures that the development is built according to the
plan.
The enforcement of the Zoning Ordinance by the Building Inspector
has become more stringent since a full time Zoning Assistant was hired
in September 1985. Numerous letters and phone calls have been made to
notify persons of violations and to rectify the violations. In
addition, 13 civil citations have been issued since September 1985. No
injunctions or criminal penalties have been pursued.
The following problems are most frequently mentioned in regard to
Zoning Regulations enforcement:
(1) Lack of manpower - The Zoning Assistant presently has a full
workload and must prioritize her pursuits of zoning violations,
with the resolution of complaints being a top priority. Time is
also required for the review of new plans for compliance
Proposals have been made to hire additional staff.
(2) Lack of training for Building Inspectors - The County Building
Inspectors are well trained professionals in the field of building
code inspections. The inspectors, however, tend to be unfamiliar
with certain areas of the Zoning Ordinance, such as the
Conservation Overlay District (COD) and the landscaping
regulations. These deficiencies likely.could be resolved through
limited training. Additional training should also be"supported
for Planning staff.
(3) Lack of communication and coordination between the Inspection and
Planning Departments - Several instances have occurred within the
past year where the Planning and Inspections Departments have had
differing interpretations of certain sections of the Zoning
Ordinance. Although it is recognized that there can always be
several interpretations by.persons with different perspectives,
the problems arise in this case both in the lack of communication
between the two departments and in conflicts concerning the
authority of each to make the interpretation. These problems have
been most prevalent in the review of Performance Residential and
other subdivision activities that are incorporated into the Zoning
Ordinance. The problems are further increased by the Planning
Department's role in preparing and recommending changes to the.
Zoning Ordinance, although the Inspections Department administers
much of the Ordinance.
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C. New Hanover County Subdivision Regulations
New Hanover County Subdivision Regulations are administered by the
County Planning Department. Numerous agencies, however, are involved
in the review and approval procedure for various aspects of the
Regulations. The County Health Department reviews proposed
subdivisions for septic tank suitability, if applicable. County -
Engineering reviews plans for drainage and certain other improvements.
The School Board reviews proposed subdivisions for possible impacts on
future school needs. The Engineering Department has also seen an
expanded role in the inspection of constructed improvements.
Three state agencies, Department of Transportation (DOT), Division
of Environmental Management (DEM), and Division of Coastal Management
(DCM), review plans for conformance with relevant State regulations.
In addition, the County's Emergency Services/E-911 systems and Southern
Bell are sent copies as a courtesy.
The Planning Department is also responsible for enforcement of the
Subdivision Regulations. The major problem in enforcement has been the
division of parcels of land that has not gone through the process
specified in the Regulations. These illegal subdivisions frequently
result from the parcelling out of one lot at a time from a larger
parcel. These violations generally have been resolved by the submittal
of a letter from the County to the developer, threatening civil or
criminal action if the illegal subdivision is not submitted to the
Planning Department for review. One civil fine has been levied and
subsequently paid. One possible method of preventing the recording of
illegally subdivided lots would be more effective coordination with the
Register of Deeds.
Except during unpredictable peak development times, the.Planning
Department believes it has sufficient manpower to enforce the
Subdivision Regulations. This situation could change, however, if the
Regulations continue to increase in complexity or if new demands are
made on the time of the Planner I presently administering these
Regulations. It should be noted that subdivision activities, as
measured by the recording of final lots, has nearly doubled from 1984
to 1986.
One important recent change to the subdivision review process has
been the formation of the Technical Review Committee (TRC).
Previously, subdivision plans were reviewed once a month by the
entire Planning Board. Now, however, the TRC, which is composed
of three Board members, reviews subdivision twice a month. In
addition, although there are no standing deadlines for submittal of
plat to staff, there are also no more conditional approvals allowed.
This process has streamlined and improved the effectiveness of
subdivision review.
D_ New Hanover County Mobile Home and Travel Trailer Park Ordinance
The Mobile Home and Travel Trailer Park Ordinance, which was
re -written and adopted with major revisions in May 1987, is
administered by the County Planning Department. Numerous
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agencies, however, are involved in the review and approval
procedure for these parks. This procedure is similar to the procedure
followed in the County Subdivision Regulations. In addition, many of
the plan requirements for a park are similar to those required for a
subdivision.
The major problem with enforcement has been the tendency for
illegal parks to occur by the gradual, incremental placing of mobile
homes on a parcel until the total equals three or more, at which point
it is considered a mobile home park. Although efforts are made by the
Inspections and Health Departments to monitor when the number of mobile
homes increases from two to three or more, some illegal parks may slip
through. The Inspections Department is the principal enforcement
agency of this Ordinance.
A previous enforcement problem has been the issuance of occupancy
permits for mobile homes in a park before all of the improvements have
been completed. Recently adopted procedures, however, should prevent
this problem from re -occurring. Efforts should be made to futher
coordinate the review process between the Planning, Inspections, and
Health Departments.
E. New Hanover County Soil Erosion and Sedimentation Control
Ordinance
This Ordinance is based under authority of the North Carolina
Sedimentation Pollution Control Act of 1973 and is administered by the
County Engineering Department. It is applied to the entire County,
including the City of Wilmington and the Beach towns.
The major problem with enforcement in the past has been lack of
manpower. Monitoring reviews by*the State have indicated lack of
enforcement on the part of the County. Until recently, one County
engineer was assigned responsibility for administration of this
Ordinance along with a wide variety of other time-consuming duties.
The County now has one engineer who devotes a large proportion of his
time to review and monitor sedimentation and erosion control plans,
with additional staff available. One indication of improved
administration and enforcement is the much more frequent issuance of
letters of non -compliances and recent fines levied by the County
Commissioners. Further efforts are being made to streamline and make
more effective the enforcement process, particularly the levying of
fines.
Another problem that has arisen in the administration of the Soil
Erosion and Sedimentatiori'Control Ordinance has been a lack of
coordination between the Engineering and Planning Departments. In the
past, grading permits have been issued under this Ordinance which have
resulted in land disturbing activities that have been inconsistent with
requirements of the Subdivision and Zoning Ordinances, such as the
Conservation Overlay District. To a certain extent, however, this
problem has been corrected through more frequent contact between the
two Departments and the recent requirement for developers to obtain
approval from the Planning Department before grading permits can be
issued.
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It is important to note that the Soil Erosion and Sedimentation
Control Ordinance is more difficult to amend than the other discussed
County Ordinances for two reasons. One, this Ordinance applies to all
areas of the County, not just the unincorporated County. Two, the
State has review and approval authority over changes in the Ordinance.
The County's Erosion and Sedimentation Control Ordinance is
administered by the County under State authority, and is closely based
on the State ordinance. Consequently, it may be difficult for the
County to significantly amend the Ordinance or to incorporate it in
other County ordinances. This Ordinance, however, is an important
consideration in any effort to regulate development because the land
disturbing activities permitted under the Ordinance generally precede
any land development activity.
III. EFFORTS TO IMPROVE
Efforts have been made in recent years to improve the County's
capability to pursue violations of the County's Ordinances. Both the
Inspections and Planning Departments have prioritized different types
of violations in terms of which ones should be pursued first.
A. Inspections Department
The Inspections Department has listed the following aggravating
and mitigating factors for consideration in pursuing violations:
Aggravating Factors
1. Danger to life and property
2. Willful disregard of ordinance
a. Ignoring stop work order
b. Long duration of violation
C. Multiple violations
d. Belligerence toward enforcement officials
3. Adverse impact on neighborhood
a. Number of complaints
b. Neighbors willing to testify
C. Intent of ordinance not to encourage continuance of
non -conforming use
Mitigating Factors
1. Good faith effort to comply
2. Lack of neighborhood opposition
3. Pending rezoning or other corrective action
The Inspections Department has stated that primary consideration
will be given to those factors effecting public health and safety. The
Department has further stated that the objective in all enforcement
cases is providing the quickest, most effective elimination of the
violation, either through civil or criminal proceedings.
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B. Planning Department
The Planning Department has developed similar guidelines for
pursuing violations._ The Planning Department has listed the following
mitigating factors:
1. Good faith effort to comply
2. Lack of neighborhood opposition -
3. Violation not intentional
4. Personal circumstances
The Planning Department also had indicated that it would more
likely use simple civil citations for minor violations but pursue
injunctive relief and criminal prosecution for major violations.
C. County Attorney's Office
The County Attorney's Office recently prepared a draft manual that
should significantly aid the different County departments' efforts to
enforce land development ordinances. This manual clearly details the
steps necessary to assess and collect civil penalties from persons
violating ordinances. The manual not only provides sample forms and
letters, but also discusses how to present the County's case in Small
Claims Court with regard to such matters as entering evidence and cross
examining witnesses. The issue has not yet been fully resolved
concerning which County office will pursue the matter in court.
IV. RECOMMENDATIONS
The County has developed significant substantive ordinances that
generally have resulted in the effective regulation of land development
activities. The administration and enforcement of these ordinances,
however, could be further improved by means of the following suggestions:
(1) Drafting of a Unified Development Ordinance - The previous
discussion of the various ordinances pointed out certain problems
concerning both lack of coordination between departments and
occasional confusion regarding departmental responsibilities.
A possible solution for these problems would be the creation
of a Unified Development Ordinance that would combine the Zoning
Ordinance, Subdivision Regulations, Flood Plain Ordinance and
Mobile Home and Travel Trail Park Ordinance. This approach not
only would improve coordination and decision making, but also
would simplify the permitting process for developers._ Numerous
sections -of the three ordinances are repetitive, and could be
eliminated in a Unified Development Ordinance. References to
other ordinances, particularly to the Sediment and Erosion Control
Ordinance, would be incorporated. This action would aid in the
establishment of a generally desirable "one -stop" permitting
approach.

Creation of a Unified Development Ordinance also would allow
for more consistent regulations of similar projects. A standard
procedural process, for instance, for review and approval would be
applied for such projects as Performance Residential, as presently
regulated in the Zoning Ordinance, and conventional subdivision,
as presently regulated in the Subdivision Regulations. To a great
extent, this review and approval process has been unified by the
administration through the creation of a Technical Review
Committee that now reviews both types of development.
One possible related action that could be pursued would be
the combination of all land development activities into a single
department that would bring development permitting and planning
functions under one roof. These functions include the present
Planning and Inspections Departments and certain Engineering
Department functions, such as sedimentation and erosion control.
Certain Health Department activities could also be involved.
Although other local governments have organized in this manner,
this major action in New Hanover County may involve significant
ramifications for other County functions and would require further
study.
(2) Continued support for manpower and resources for enforcement - In
recent years, the County has made a significant commitment to
providing additional manpower, particularly for the Engineering
and Inspections Department. It is suggested that this commitment
be continued, not only as the amount of development increases but
also as development regulations become more complex as a
demanded by the urbanizing nature of the County.
Additional training may be necessary for enforcement and
administrative staff. County Inspectors, for instance, may
benefit from short workshops on the Conservation Overlay District
and the landscaping regulations of the Zoning Ordinance. '
Continued preparation of support materials and possibly workshops
from the County Attorney's Office would also be of benefit.
(3) Continued efforts in public education - The County has developed
several valuable documents that outline necessary steps to take in
obtaining appropriate County, State, and Federal permits. It is
recommended that these documents be continuously updated. In
addition, the County may consider providing short workshops for
developers and other interested persons regarding development
regulations and processes. It is anticipated that a grant will be
available from the State through the Coastal Area Management Act
(LAMA) to develop such a workshop this coming year.
(4) Improved coordination with the Register of Deeds - Presently,
illegal subdivisions are occasionally recorded because the
Register's office is unaware that the subdivision was not
processed by the County Planning Department. This potential for
illegal subdivisions could be reduced through development of a
review, or sign -off, process with the Planning Department.
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