WSMU_MARI_WSWP Ordinance_20210405

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CITY OF MARION PLANNING & DEVELOPMENT SERVICES
DATE: March 20, 2018
TO: Mayor and City Council
FROM: Heather Cotton, AICP, Planning Director
SUBJECT: WATERSHED PROTECTION ORIDNANCE
The attached ordinance is the proposed Watershed Protection Ordinance, which include
development standards within the Lake James Watershed. Attached is a map showing the
boundaries of the watershed protection area with the City of Marion.
BACKGROUND
McDowell County Government made a request to the N.0 Environmental Management
Commission to reclassify the Lake James Watershed from a WS-V to a more restrictive WS-IV
in order to develop a public water supply system. The Commission approved the County's
request, and the new classification became effective on July 1, 2017.
In accordance with State requirements, the City has until March 28, 2018 to adopt a "Watershed
Protection Map" and "Watershed Protection Ordinance" that guides development in protective
areas in the City.
Pursuant to WS-IV State regulations, the City can allow up to ten percent of the area (166 acres)
to be developed under the State's high density provision, which allows 70% of a parcel to be
developed. This provision is known as the "10/70 rule". Given the potential for future
development, the city reached an agreement with the County to transfer some of their
development rights. The total allocation from the County to the City is 4,834 acres (an area
equivalent to city's current geographic size). This gives the city the ability to apply the "10/70
rule" to a total of 5,000 acres. The joint resolutions agreeing to the TDRs were adopted by both
governing boards, and approved by the State.
Staff is recommending that the attached Ordinance be adopted as Article IX Overlay District,
Division 2 Watershed Protection of Chapter 21 Zoning with the exception of Article 2
Subdivision Regulations, which has been added to the proposed revision of Chapter 16
Subdivision Regulations.
Adoption of the ordinance will also require City Council to appoint a Watershed Administrator
and a Watershed Review Board containing five (5) members and two (2) alternates to oversee the
new provisions. The Watershed Administrator will be responsible for administering and
enforcing the Watershed Protection Ordinance, and the Watershed Review Board will be
responsible for hearing any appeal to the Ordinance. Staff is recommending that the Planning
Board serve as the Watershed Review Board.
RECOMMENDATION
Planning Board voted unanimously at their March 1, 2018 meeting to recommend approval of the
ordinance and for appointing the Planning Board to serve as the Watershed Review Board.

CITY OF MARION
LAKE JAMES WATERSHED
PROTECTION ORDINANCE
WHEREAS, The North Carolina State Legislature has, in Chapter 160A, Article 8,
Section 174, General Ordinance Authority; and in Chapter 143, Article 21, Watershed Protection
Rules, delegated the responsibility of local governmental units to adopt regulations designed to
promote the public health, safety, and general welfare of its citizenry; and
WHEREAS, The provisions of this Ordinance shall apply within the areas designated as
a Public Water Supply Watershed by the N.C. Environmental Management Commission and
shall be defined and established on the map entitled, "Watershed Protection Map of the City of
Marion, North Carolina" ("the Watershed Protection Map"), which is adopted simultaneously
herewith, and as attached hereto as "EXHIBIT A"; and
WHEREAS, The Watershed Map and all explanatory matter contained thereon
accompanies and is hereby made a part of this Ordinance; and
WHEREAS, This Ordinance shall be permanently kept on file in the office of the city
clerk; and
WHEREAS, The Marion City Council finds that the provisions of the Ordinance are
indented to advance the public health, safety, and welfare of the citizens of Marion, and does
hereby ordain and enact into law the following articles as the Watershed Protection Ordinance of
the City of Marion.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
MARION, NORTH CAROLINA AS FOLLOWS:
Section 1. Recitals. The above recitals are true, correct and incorporated herein by this
reference.
Section 2. Watershed Protection Subdivision Standards. Chapter 16 Subdivisions, of the
Code of Ordinances, City of Marion, North Carolina, is amended to add the following:
Sec. 16-1.7. Actions Exempt from Subdivision Requirements.
(B) No approval is required for exempt land divisions; however, subdivision
administrator certification of exempt status is required. Exempt plats, if prepared, must be
certified noting their exemption and signed by the subdivision administrator so that it can
be recorded in the Office of the McDowell County Register of Deeds. Exempt
subdivision status does not constitute an exemption from the Water Supply Watershed
Overlay district requirements.

Sec. 16-2.3. Sketch plan review
(7) Location of water courses, flood hazard boundaries, and/or lands within a watershed
protection including the delineation of critical areas and watershed buffer areas.
Sec. 16-2.4. Minor subdivision review and approval procedures.
(11) Location of water courses, culverts, drainage pipes, flood hazard boundaries, and/or
lands within a public water -supply watershed including the delineation of critical areas and
watershed buffer areas.
Sec. 16-2.8. Wording for plat certificates and statements.
(J) Certificate of approval for recording and watershed protection statement.
The following statement shall be placed on all subdivision plats which include property located
within a watershed protection overlay district:
"All or portions of the property contained in this subdivision are located within a protected
Watershed. Additional development restrictions regarding such matters as residential density,
maximum impervious surface area, and stormwater control measures may apply to this property.
Any engineered stormwater controls shown on this plat are to be operated and maintained by the
property owners and/or a property owners' association pursuant to the Operation and
Maintenance Agreement filed with the Office of McDowell County Register of Deeds in Book
Page "
I certify that the plat shown hereon complies with the Watershed Protection Ordinance and is
approved by the Watershed Review Board for recording in the Office of McDowell County
Register of Deeds.
Watershed Administrator Date
NOTICE: This property is located within a protected Watershed -
Development restrictions may apply.
16.4-4. Coordination with other procedures.
To reduce the time required to attain all necessary approvals and to facilitate the processing of
applications, an applicant may elect, at their own risk, to start the subdivision approval process
simultaneously with applications for grading permits or other applications for approvals required

for a particular project. When a watershed development plan approval is required, all portions of
that plan except stormwater control construction plans must be approved prior to Preliminary
Plat approval.
ARTICLE 16-8. WATERSHED PROTECTION STANDARDS
Sec. 16-8.1. General provisions.
(A) No subdivision plat of land within the Protected Watershed shall be filed or recorded
in the Office of McDowell County Register of Deeds until it has been approved in accordance
with the provisions of this Article. Likewise, the Clerk of Superior Court shall not order or direct
the recording of a plat if the recording of such plat would be in conflict with this Article.
(B) The approval of a plat does not constitute or effect the acceptance by the City of
Marion or the public of the dedication of any street or other ground, easement, right-of-way,
public utility line, or other public facility shown on the plat and shall not be construed to do so.
(C) All subdivisions shall conform with the mapping requirements contained in
N.C.G.S.47-30.
(D) All subdivisions of land within the jurisdiction of the City of Marion after the
effective date of this chapter shall require a plat to be prepared, approved, and recorded pursuant
to this chapter.
Sec. 16-8.2. Subdivision application and review procedures.
(A) All proposed subdivisions shall be reviewed prior to recording in the Office of
McDowell County Register of Deeds by submitting a vicinity map to the Watershed
Administrator to determine whether or not the property is located within the designated
Watershed protection. Subdivisions that are not within the designated watershed area shall not
be subject to the provisions of this article and may be recorded provided the Watershed
Administrator initials the vicinity map. In addition, subdivisions within a WS-1V watershed are
subject to the provisions of this article only when an erosion and sedimentation plan is required
under the provisions of State law, or approved local program. Subdivisions within the designated
watershed area shall comply with the provisions of this article and all other state and local
requirements that may apply.
(B) Subdivision applications shall be filed with the Watershed Administrator. The
application shall include a completed application form, two (2) copies of the plat and supporting
documentation deemed necessary by the Watershed Administrator or the Watershed Review
Board.
(C) The Watershed Administrator shall review the completed application and shall either
approve, approve conditionally or disapprove each application. The Watershed Administrator
shall take final action within forty-five (45) days of submission of the application. The

Watershed Administrator or the Board may provide public agencies an opportunity to review and
make recommendations. However, failure of the agencies to submit their comments and
recommendations shall not delay action within the prescribed time limit. Said public agencies
may include, but are not limited to, the following:
(1) The district highway engineer with regard to proposed streets and highways.
(2) The director of the Health Department with regard to proposed private water system or
sewer systems normally approved by the Health Department.
(3) The state Division of Water Quality with regard to proposed sewer systems normally
approved by the Division, engineered storm water controls or storm water management in
general.
(4) Any other agency or official designated by the Watershed Administrator or Watershed
Review Board.
(D) If the Watershed Administrator approves the application, such approval shall be
indicated on both copies of the plat by applying the water supply watershed protection
certificate and having the plat signed by the Watershed Administrator.
(E) If the Watershed Administrator disapproves or approves conditionally the
application, the reasons for such action shall be stated in writing for the applicant and entered in
the minutes. The applicant may make changes and submit a revised plan which shall constitute a
separate request for the purpose of review.
(F) All subdivision plats shall comply with the requirements for recording in the Office
of McDowell County Register of Deeds.
(G) The plat shall be recorded within thirty (30) days of approval. The Applicant shall
provide the Watershed Administrator with evidence the plat has been recorded in the Office of
McDowell County Register of Deeds within five (5) working days.
Sec. 16-8.3. Subdivision standards and required improvements.
(A) Building space. All lots shall provide adequate building space in accordance with
the development standards contained in Article 8 of the Watershed Protection Ordinance. Lots
which are smaller than the minimum required for residential lots may be developed using built -
upon area criteria in accordance with Article 8 of the Watershed Protection Ordinance.
(B) Total project area. For the purpose of calculating built -upon area, total project
area shall include total acreage in the tract on which the project is to be developed.
(C) Storm water drainage facilities. The application shall be accompanied by a
description of the proposed method of providing storm water drainage. The applicant shall
provide a drainage system that diverts stormwater runoff away from surface waters and
incorporates best management practices to minimize water quality impacts.

(D) Erosion and sedimentation control. The application shall, where required, be
accompanied by a written statement that a Sedimentation and Erosion Control Plan has been
submitted to and approved by the N.C. Division of Land Quality.
(E) Roads constructed in critical areas and watershed buffer areas. Where
possible, roads should be located outside of critical areas and watershed buffer areas. Roads
constructed within these areas shall be designed and constructed to minimize their impact on
water quality.
Sec. 16-8.4 Construction procedures.
(A) No construction or installation of improvements shall commence in a proposed
subdivision until a subdivision plat has been approved.
(B) No building or other permits shall be issued for erection of a structure on any lot
not of record at the time of adoption of this chapter until all requirements of this chapter have
been met. The applicant, prior to commencing any work within the subdivision, shall make
arrangements with the Watershed Administrator to provide for adequate inspection.
Sec. 16-8.5 Penalties for transferring lots in unapproved subdivisions.
Any person who, being the owner or agent of the owner of any land located within the
City of Marion, thereafter subdivides his land in violation of this chapter or transfers or sells land
by reference to, exhibition of, or any other use of a plat showing a subdivision of the land before
the plat has been properly approved under this chapter and recorded in the Office of McDowell
County Register of Deeds, shall be guilty of a misdemeanor. The description by metes and
bounds in the instrument of transfer or other document used in the process of selling or
transferring land shall not exempt the transaction from this penalty. The City of Marion may
bring an action for injunction of any illegal subdivision, transfer, conveyance, or sale of land, and
the court shall, upon appropriate findings, issue an injunction and order requiring the offending
party to comply with this chapter.
Section 3. Watershed Protection Development Standards. Chapter 21 Zoning, of the
Code of Ordinances, City of Marion, North Carolina, is amended by replacing in its entirety
Article IX. Overlay Districts with the following:
ARTICLE IX. RESOURCE PROTECTION STANDARDS
Division 21-9.1
Lake James Watershed Protection
Section 21-9.1.1. In General.
A. Authority.
The Legislature of the State of North Carolina has, in Chapter 160A, Article 8, Section

174, General Ordinance Authority; and in Chapter 143, Article 21, Watershed Protection Rules,
delegated the responsibility or directed local governmental units to adopt regulations designed to
promote the public health, safety, and general welfare of its citizenry.
B. Jurisdiction.
The provisions of this Chapter shall apply within the areas designated as a Public Water
Supply Watershed by the N.C. Environmental Management Commission and shall be defined
and established on the map entitled, "Lake James Watershed Protection Overlay Map of the City
of Marion, North Carolina". The Map and all explanatory matter contained thereon accompanies
and is hereby made a part of this Chapter. This Ordinance shall be permanently kept on file in
the office of the city clerk.
C. Establishment of Lake James Watershed Area.
The Lake James Watershed is divided into the following areas, as appropriate:
WS-IV-CA (Critical Area)
WS-IV-PA (Protected Area)
D. Watershed Administrator and Duties thereof.
The City of Marion shall appoint a Watershed Administrator, who shall be duly sworn in.
It shall be the duty of the Watershed Administrator to administer and enforce the provisions of
this ordinance as follows:
(1) The Watershed Administrator shall issue Watershed Protection Permits and
Watershed Protection Occupancy Permits as prescribed herein. A record of all permits shall be
kept on file and shall be available for public inspection during regular office hours of the
Administrator.
(2) The Watershed Administrator shall serve as clerk to the Watershed Review Board.
(3) The Watershed Administrator shall keep records of all amendments to the local
Water Supply Watershed Protection Ordinance and shall provide copies of all amendments upon
adoption to the Water Quality Section of the Division of Water Quality.
(4) The Watershed Administrator shall keep records of the jurisdiction's use of the
provision that a maximum of ten percent (10%) of the non -critical area of WS-Hand WS-III
watersheds and, for local governments that do not choose to incorporate the high density option,
ten percent (10%) of the protected area of WS-IV watersheds may be developed with new
development at a maximum of seventy percent (70%) built -upon surface area. Records for each
watershed shall include the total acres of non -critical watershed area, total acres eligible to be
developed under this option, total acres approved for this development option, and individual
records for each project with the following information: location, number of developed acres,
type of land use and stormwater management plan (if applicable).

(5) The Watershed Administrator is granted the authority to administer and enforce the
provisions of this Ordinance, exercising in the fulfillment of his responsibility the full police
power of the City of Marion. The Watershed Administrator, or his duly authorized
representative, may enter any building, structure, or premises, as provided by law, to perform any
duty imposed upon him by this Ordinance.
(6) The Watershed Administrator shall keep a record of variances to the local Water
Supply Watershed Protection Ordinance. This record shall be submitted for each calendar year to
the Water Quality Section of the Division of Environmental Management on or before January
1st of the following year and shall provide a description of each project receiving a variance and
the reasons for granting the variance.
E. Applicability.
(1) No building or land shall hereafter be used and no development shall take place except in
conformity with the regulations herein specified for the watershed area in which it is
located.
(2) No area required for the purpose of complying with the provisions of this ordinance shall
be included in the area required for another building.
(3) If a use or class of use is not specifically indicated as being allowed in a watershed area,
such use or class of use is prohibited.
F. Exceptions to Applicability.
(A) Nothing contained herein shall repeal, modify, or amend any Federal or State law or
regulation, or any ordinance or regulation pertaining thereto except any ordinance which these
regulations specifically replace; nor shall any provision of this Ordinance amend, modify, or
restrict any provisions of the Marion Code of Ordinances; however, the adoption of this
Ordinance shall and does amend any and all ordinances, resolutions, and regulations in effect in
the City of Marion at the time of the adoption of this Ordinance that may be construed to impair
or reduce the effectiveness of this Ordinance or to conflict with any of its provisions.
(B) It is not intended that these regulations interfere with any easement, covenants or
other agreements between parties. However, if the provisions of these regulations impose greater
restrictions or higher standards for the use of a building or land, then the provisions of these
regulations shall control.
(C) Existing development, as defined in this chapter, is not subject to the requirements of
this chapter. Expansions to structures classified as existing development must meet the
requirements of this chapter, however, the built -upon area of the existing development is not
required to be included in the density calculations.
(D) If a nonconforming lot of record is not contiguous to any other lot owned by the same
party, then that lot of record shall not be subject to the development restrictions of this chapter if

it is developed for single-family residential purposes. Any lot or parcel created as part of a
family subdivision after the effective date of these rules shall be exempt from these rules if it is
developed for one single-family detached residence and if it is exempt from local subdivision
regulation. Any lot or parcel created as part of any other type of subdivision that is exempt from
a local subdivision chapter shall be subject to the land use requirements (including impervious
surface requirements) of these rules, except that such a lot or parcel must meet the minimum
buffer requirements to the maximum extent practicable.
G. Existing Development.
Existing development as defined in this ordinance, may be continued and maintained subject to
the provisions provided herein. Expansions to structures classified as existing development must
meet the requirements of this ordinance, however, the built -upon area of the existing
development is not required to be included in the built -upon area calculations.
(1) Uses of Land. This category consists of uses existing at the time of adoption of this
ordinance where such use of the land is not permitted to be established hereafter in the watershed
area in which it is located. Such uses may be continued except as follows:
a. When such use of land has been changed to an allowed use, it shall not
thereafter revert to any prohibited use.
b. Such use of land shall be changed only to an allowed use.
c. When such use ceases for a period of at least one year, it shall not be
reestablished.
(2) Reconstruction of Buildings or Built -upon Areas. Any existing building or built -upon
area not in conformance with the restrictions of this ordinance that has been damaged or removed
may be repaired and/or reconstructed, except that there are no restrictions on single family
residential development, provided:
a. Repair or reconstruction is initiated within twelve (12) months and completed
within two (2) years of such damage.
b. The total amount of space devoted to built -upon area may not be increased
unless stormwater control that equals or exceeds the previous development is provided.
Section 21-9.1.1.2. Watershed Protection Administration.
A. Watershed Protection Permit.
(1) Except where a single family residence is constructed on a lot deeded prior to the
effective date of this ordinance, no building or built -upon area shall be erected, moved, enlarged
or structurally altered, nor shall any building permit be issued nor shall any change in the use of
any building or land be made until a Watershed Protection Permit has been issued by the
Watershed Administrator. No Watershed Protection Permit shall be issued except in conformity

with the provisions of this ordinance.
(2) Watershed Protection Permit applications shall be filed with the Watershed
Administrator. The application shall include a completed application form and supporting
documentation deemed necessary by the Watershed Administrator.
(3) Prior to issuance of a Watershed Protection Permit, the Watershed Administrator may
consult with qualified personnel for assistance to determine if the application meets the
requirements of this ordinance.
(4) A Watershed Protection Permit shall expire if a Building Permit or Watershed
Occupancy Permit for such use is not obtained by the applicant within twelve (12) months from
the date of issuance.
B. Building Permit Required.
No permit required under the North Carolina State Building Code shall be issued for any activity
for which a Watershed Protection Permit is required until that permit has been issued.
C. Watershed Protection Occupancy Permit.
(1) The Watershed Administrator shall issue a Watershed Protection Occupancy Permit
certifying that all requirements of this ordinance have been met prior to the occupancy or use of a
building hereafter erected, altered or moved and/or prior to the change of use of any building or
land.
(2) A Watershed Protection Occupancy Permit, either for the whole or part of a building,
shall be applied for coincident with the application for a Watershed Protection Permit and shall
be issued or denied within ten (10) days after the erection or structural alterations of the building.
(3) When only a change in use of land or existing building occurs, the Watershed
Administrator shall issue a Watershed Protection Occupancy Permit certifying that all
requirements of this ordinance have been met coincident with the Watershed Protection Permit.
(4) If the Watershed Protection Occupancy Permit is denied, the Watershed
Administrator shall notify the applicant in writing stating the reasons for denial.
(5) No building or structure which has been erected, moved, or structurally altered may
be occupied until the Watershed Administrator has approved and issued a Watershed Protection
Occupancy Permit.
Section 21-9.1.1.3. Watershed Protection Development Standards.
A. Development Standards within Designated Watershed Protection Areas
(1) WS-IV Watershed Areas - Protected Area (WS-IV-PA). Only new development

activities that require an erosion/sedimentation control plan under State law or approved local
government program are required to meet the provisions of this ordinance when located in a
WS-IV watershed. In order to accommodate moderate to high land use intensity, single family
residential uses shall develop at a maximum of two (2) dwelling units per acre (2 du/acl. All
other residential and non-residential development shall be allowed at a maximum of twenty-four
percent (24%) built -upon area. A maximum of three (3) dwelling units per acre (3 du/ac) or
thirty-six (36%) percent built -upon area is allowed for projects without a curb and gutter street
system.
(a) Uses Allowed:
1. Agriculture, subject to the provisions of the Food Security Act of 1985 and the
Food, Agricultural, Conservation and Trade Act of 1990.
2. Silviculture, subject to the provisions of the Forest Practices Guidelines Related to
Water Quality (15 NCAC 11.0101-.0209).
3. Residential development.
4. Non-residential development.
(b) Density and Built -upon Limits:
1. Single Family Residential --development shall not exceed two (2) dwelling units
per acre, as defined on a project by project basis. No residential lot shall be less than
one-half (1/2) acre (or 20,000 square feet excluding roadway right-of-way), or one-
third (1/3) acre for projects without a curb and gutter street system, except within an
approved cluster development.
2. All Other Residential and Non -Residential --development shall not exceed twenty-
four percent (24%) built -upon area on a project by project basis. For projects without
a curb and gutter street system, development shall not exceed thirty-six percent (36%)
built -upon area on a project by project basis. For the purpose of calculating built -
upon area, total project area shall include acreage in the tract on which the project is
to be developed.
3. In addition to the development allowed under paragraphs (a) and (b) above, new
development and expansions to existing development may occupy up to ten percent
(10%) of the protected area with up to seventy percent (70%) built -upon area on a
project by project basis, when approved as a special intensity allocation (SIA). The
Watershed Administrator is authorized to approve SIAs consistent with the provisions
of this ordinance. Projects must, to the maximum extent practicable, minimize built -
upon surface area, direct stormwater away from surface waters and incorporate Best
Management Practices to minimize water quality impacts. For the purpose of
calculating built -upon area, total project area shall include total acreage in the tract on
which the project is to be developed.

(2) WS-IV Watershed Areas - Critical Area (WS-IV-CA). Only new development
activities that require an erosion/sedimentation control plan under State law or approved local
program are required to meet the provisions of this ordinance when located in a WS-IV
watershed. In order to address a moderate to high land use intensity pattern, single family
residential uses are allowed at a maximum of two (2) dwelling units per acre. All other
residential and non-residential development shall be allowed at a maximum of twenty-four
percent (24%) built -upon area. New residuals application sites and landfills are specifically
prohibited.
(High density development using engineered stormwater control devices is permitted in this
district. Ultimate responsibility for the operation and maintenance of these controls will rest with
the local government. Please refer to Appendix C for a more detailed explanation of this topic.)
(a) Allowed Uses:
1. Agriculture subject to the provisions of the Food Security Act of 1985 and the
Food, Agriculture, Conservation and Trade Act of 1990 and the rules and
regulations of the Soil and Water Conservation Commission.
2. Silviculture, subject to the provisions of the Forest Practices Guidelines
Related to Water Quality (15 NCAC 11.0101-.0209).
3. Residential.
4. Non-residential development, excluding: 1) landfills and 2) sites for land
application of residuals or petroleum contaminated soils.
(b) Density and Built -upon Limits:
1. Single Family Residential --development shall not exceed two dwelling units
per acre on a project by project basis. No residential lot shall be less than one-half
(1/2) acre (or 20,000 square feet excluding roadway right-of-way), except within
an approved cluster development.
2. All Other Residential and Non -Residential --development shall not exceed
twenty-four percent (24%) built -upon area on a project by project basis. For the
purpose of calculating the built -upon area, total project area shall include total
acreage in the tract on which the project is to be developed.
B. Cluster Development.
Cluster development is allowed in the WS-IV Watershed Area under the following
conditions:
(1) Minimum lot sizes are not applicable to single family cluster development projects;
however, the total number of lots shall not exceed the number of lots allowed for
single family detached developments in Section 302. Density or built -upon area for

the project shall not exceed that allowed for the critical area, balance of watershed or
protected area, whichever applies.
(2) All built -upon area shall be designed and located to minimize stormwater runoff
impact to the receiving waters and minimize concentrated stormwater flow, maximize
the use of sheet flow through vegetated areas, and maximize the flow length through
vegetated areas.
(3) Areas of concentrated density development shall be located in upland area and away,
to the maximum extent practicable, from surface waters and drainageways.
(4) The remainder of the tract shall remain in a vegetated or natural state. The title to the
open space area shall be conveyed to an incorporated homeowners association for
management; to a local government for preservation as a park or open space; or to a
conservation organization for preservation in a permanent easement. Where a
property association is not incorporated, a maintenance agreement shall be filed with
the property deeds.
(5) Cluster developments that meet the applicable low density requirements shall
transport stormwater runoff by vegetated conveyances to the maximum extent
practicable.
C. Buffer Areas Required.
(1) A minimum one hundred (100) foot vegetative buffer is required for all new
development activities that exceed the low density option; otherwise, a minimum thirty (30) foot
vegetative buffer for development activities is required along all perennial waters indicated on
the most recent versions of U.S.G.S. 1:24,000 (7.5 minute) scale topographic maps or as
determined by local government studies. Desirable artificial streambank or shoreline
stabilization is permitted.
(2) No new development is allowed in the buffer except for water dependent structures,
other structures such as flag poles, signs and security lights which result in only diminutive
increases in impervious area and public projects such as road crossings and greenways where no
practical alternative exists. These activities should minimize built -upon surface area, direct
runoff away from the surface waters and maximize the utilization of stormwater Best
Management Practices.
Section 21-9.1.1.4. Watershed Review Board.
(A) There shall be and hereby is created the Watershed Review Board consisting of five
(5) members appointed by the city council.
Three (3) residents of the city shall be appointed for three year terms. Two (2) residents
of the city shall be appointed for two (2) year terms. Thereafter, all new terms shall be

for three (3) years, and members may be reappointed.
(B) Two (2) alternate members shall be appointed to serve on the Watershed Review
Board in the absence of any regular member and shall be appointed for three (3) year terms.
While attending in the capacity of a regular member, the alternate shall have and exercise all the
powers and duties of the absent regular member.
Section 21-9.1.1.5. Rules of Conduct for Members.
Members of the Board may be removed by the city council for cause, including violation
of the rules stated below:
(A) Faithful attendance at meetings of the Board and conscientious performance of the
duties required of members of the Board shall be considered a prerequisite to continuing
membership on the Board.
(B) No Board member shall take part in the hearing, consideration, or determination of
any case in which he is personally or financially interested. A Board member shall have a
"financial interest" in a case when a decision in the case will: 1) cause him or his spouse to
experience a direct financial benefit or loss, or 2) will cause a business in which he or his spouse
owns a 10 per cent or greater interest, or is involved in a decision -making role, to experience a
direct financial benefit or loss. A Board member shall have a "personal interest" in a case when
it involves a member of his immediate family (i.e., parent, spouse, or child).
(C) No Board member shall discuss any case with any parties thereto prior to the public
hearing on that case; provided, however, that members may receive and/or seek information
pertaining to the case from the Watershed Administrator or any other member of the Board, its
secretary or clerk prior to the hearing.
(D) Members of the Board shall not express individual opinions on the proper judgement
of any case prior to its determination on that case.
(E) Members of the Board shall give notice to the chairman at least forty-eight (48) hours
prior to the hearing of any potential conflict of interest which he has in a particular case before
the Board.
(F) No Board member shall vote on any matter that decides an application or appeal
unless he had attended the public hearing on that application or appeal.
Section 21-9.1.1.6. Powers and Duties of the Watershed Review Board.
A. Administrative Review. The Watershed Review Board shall hear and decide appeals
from any decision or determination made by the Watershed Administrator in the enforcement of
this ordinance.
B. Variances. The Watershed Review Board shall have the power to authorize, in
specific cases, minor variances from the terms of this Ordinance as will not be contrary to the
public interests where, owing to special conditions, a literal enforcement of this Ordinance will
result in practical difficulties or unnecessary hardship, so that the spirit of this Ordinance shall be

observed, public safety and welfare secured, and substantial justice done. In addition, the city
shall notify and allow a reasonable comment period for all other local governments having
jurisdiction in the designated watershed where the variance is being considered.
(1) Applications for a variance shall be made on the proper form obtainable from
the Watershed Administrator and shall include the following information:
(a) A site plan, drawn to a scale of at least one (1) inch to forty (40) feet,
indicating the property lines of the parcel upon which the use is proposed; any
existing or proposed structures; parking areas and other built -upon areas; surface
water drainage. The site plan shall be neatly drawn and indicate north point, name
and address of person who prepared the plan, date of the original drawing, and an
accurate record of any later revisions.
(b) A complete and detailed description of the proposed variance, together
with any other pertinent information which the applicant feels would be helpful to
the Watershed Review Board in considering the application.
(c) The Watershed Administrator shall notify in writing each local
government having jurisdiction in the watershed and the entity using the water
supply for consumption. Such notice shall include a description of the variance
being requested. Local governments receiving notice of the variance request may
submit comments to the Watershed Administrator prior to a decision by the
Watershed Review Board. Such comments shall become a part of the record of
proceedings of the Watershed Review Board.
(2) Before the Watershed Review Board may grant a variance, it shall make the
following three findings, which shall be recorded in the permanent record of the
case, and shall include the factual reasons on which they are based:
(a) There are practical difficulties or unnecessary hardships in the way of
carrying out the strict letter of the Ordinance. In order to determine that there are
practical difficulties or unnecessary hardships, the Board must find that the five
following conditions exist:
(1) If he complies with the provisions of the Ordinance, the
applicant can secure no reasonable return from, nor make reasonable use
of, his property. Merely proving that the variance would permit a greater
profit to be made from the property will not be considered adequate to
justify the Board in granting an variance. Moreover, the Board shall
consider whether the variance is the minimum possible deviation from the
terms of the Ordinance that will make possible the reasonable use of his
property-
(2) The hardship results from the application of the Ordinance to
the property rather than from other factors such as deed restrictions or
other hardship.

(3) The hardship is due to the physical nature of the applicant's
property, such as its size, shape, or topography, which is different from
that of neighboring property.
(4) The hardship is not the result of the actions of an applicant
who knowingly or unknowingly violates the Ordinance, or who purchases
the property after the effective date of the Ordinance, and then comes to
the Board for relief.
(5) The hardship is peculiar to the applicant's property, rather than
the result of conditions that are widespread. If other properties are equally
subject to the hardship created in the restriction, then granting a variance
would be a special privilege denied to others, and would not promote
equal justice.
(b) The variance is in harmony with the general purpose and intent of the
Ordinance and preserves its spirit.
(c) In the granting of the variance, the public safety and welfare have been
assured and substantial justice has been done. The Board shall not grant a
variance if it finds that doing so would in any respect impair the public health,
safety, or general welfare.
(3) In granting the variance, the Board may attach thereto such conditions
regarding the location, character, and other features of the proposed building, structure, or
use as it may deem advisable in furtherance of the purpose of this ordinance. If a
variance for the construction, alteration or use of property is granted, such construction,
alteration or use shall be in accordance with the approved site plan.
(4) The Watershed Review Board shall refuse to hear an appeal or an application
for a variance previously denied if it finds that there have been no substantial changes in
conditions or circumstances bearing on the appeal or application.
(5) A variance issued in accordance with this Section shall be considered a
Watershed Protection Permit and shall expire if a Building Permit or Watershed
Occupancy Permit for such use is not obtained by the applicant within six (6) months
from the date of the decision.
(6) If the application calls for the granting of a major variance, and if the
Watershed Review Board decides in favor of granting the variance, the Board shall
prepare a preliminary record of the hearing with all deliberate speed. The preliminary
record of the hearing shall include:
(a) The variance application;
(b) The hearing notices;
(c) The evidence presented;
(d) Motions, offers of proof, objections to evidence, and rulings on

them;
(e) Proposed findings and exceptions;
(f) The proposed decision, including all conditions proposed to be
added to the permit.
The preliminary record shall be sent to the Environmental Management Commission for
its review as follows:
(a) If the Commission concludes from the preliminary record that the
variance qualifies as a major variance and that (1) the property owner can secure
no reasonable return from, nor make any practical use of the property unless the
proposed variance is granted, and (2) the variance, if granted, will not result in a
serious threat to the water supply, then the Commission shall approve the variance
as proposed or approve the proposed variance with conditions and stipulations.
The Commission shall prepare a Commission decision and send it to the
Watershed Review Board. If the Commission approves the variance as proposed,
the Board shall prepare a final decision granting the proposed variance. If the
Commission approves the variance with conditions and stipulations, the Board
shall prepare a final decision, including such conditions and stipulations, granting
the proposed variance.
(b) If the Commission concludes from the preliminary record that the
variance qualifies as a major variance and that (1) the property owner can secure a
reasonable return from or make a practical use of the property without the
variance or (2) the variance, if granted, will result in a serious threat to the water
supply, then the Commission shall deny approval of the variance as proposed.
The Commission shall prepare a Commission decision and send it to the
Watershed Review Board. The Board shall prepare a final decision denying the
variance as proposed.
C. Subdivision approval pursuant to Chapter 16 of the Marion City Code.
D. Public Health pursuant to section 21-9.1.1.9 below.
E. Approval of all development greater than the low density option.
Section 21-9.1.1.7. Appeal from the Watershed Administrator.
Any order, requirement, decision or determination made by the Watershed Administrator
may be appealed to and decided by the Watershed Review Board.
An appeal from a decision of the Watershed Administrator must be submitted to the
Watershed Review Board within thirty (30) days from the date the order, interpretation, decision
or determination is made. All appeals must be made in writing stating the reasons for appeal.
Following submission of an appeal, the Watershed Administrator shall transmit to the Board all
papers constituting the record upon which the action appealed from was taken.

An appeal stays all proceedings in furtherance of the action appealed, unless the officer
from whom the appeal is taken certifies to the Board after the notice of appeal has been filed with
him, that by reason of facts stated in the certificate, a stay would in his opinion cause imminent
peril to life or property. In such case, proceedings shall not be stayed otherwise than by a
restraining order which may be granted by the Board or by a court of record on application of
notice of the officer from whom the appeal is taken and upon due cause shown.
The Board shall fix a reasonable time for hearing the appeal and give notice thereof to the
parties and shall decide the same within a reasonable time. At the hearing, any party may appear
in person, by agent or by attorney.
Section 21-9.1.1.8. Appeals from the Watershed Review Board.
Appeals from the Watershed Review Board must be filed with the Superior Court within
30 days from the date of the decision. Decisions by the Superior Court will be in the manner of
certiorari.
Section 21-9.1.1.9. Public Health, in general.
No activity, situation, structure or land use shall be allowed within the watershed which
poses a threat to water quality and the public health, safety and welfare. Such conditions may
arise from inadequate on -site sewage systems which utilize ground absorption; inadequate
sedimentation and erosion control measures; the improper storage or disposal of junk, trash or
other refuse within a buffer area; the improper management of stormwater runoff, or any other
situation found to pose a threat to water quality.
Section 21-9.1.1.10. Abatement.
(A) The Watershed Administrator shall monitor land use activities within the watershed
areas to identify situations that may pose a threat to water quality.
(B) The Watershed Administrator shall report all findings to the Watershed Review
Board. The Watershed Administrator may consult with any public agency or official and request
recommendations.
(C) Where the Watershed Review Board finds a threat to water quality and the public
health, safety and welfare, the Board shall institute any appropriate action or proceeding to
restrain, correct or abate the condition and/or violation.
Section 21-9.1.1.11. Changes and Amendments to the Watershed Protection Ordinance.
(A) The Marion City Council may, on its own motion or on petition, after public notice
and hearing, amend, supplement, change or modify the watershed regulations and restrictions as
described herein.
(B) No action shall be taken until the proposal has been submitted to the Watershed
Review Board for review and recommendations. If no recommendation has been received from

the Watershed Review Board within forty-five (45) days after submission of the proposal to the
Chairman of the Watershed Review Board, the city council may proceed as though a favorable
report had been received.
(C) Under no circumstances shall the City adopt such amendments, supplements or
changes that would cause this ordinance to violate the watershed protection rules as adopted by
the N.C. Environmental Management Commission. All amendments must be filed with the N.C.
Division of Water Quality, N.C. Division of Environmental Health, and the N.C. Division of
Community Assistance.
Section 21-9.1.1.12. Criminal Penalties.
Any person violating any provisions of this Chapter shall be guilty of a misdemeanor and,
upon conviction, shall be punished in accordance with NCGS 14-4. The maximum fine for each
offense shall not exceed $500.00. Each day that the violation continues shall constitute a
separate offense.
Section 21-9.1.1.13. Remedies.
(A) If any subdivision, development and/or land use is found to be in violation of this
Chapter, the city council may, in addition to all other remedies available either in law or in
equity, institute a civil penalty pursuant to Sec. 1-10.9 of the Marion Code of Chapters, action or
proceedings to restrain, correct, or abate the violation; to prevent occupancy of the building,
structure, or land; or to prevent any illegal act, conduct, business, or use in or about the premises.
In addition, the N.C. Environmental Management Commission may assess civil penalties in
accordance with G.S. 143-215.6(a). Each day that the violation continues shall constitute a
separate offense.
(B) If the Watershed Administrator finds that any of the provisions of this chapter are
being violated, he shall notify in writing the person responsible for such violation, indicating the
nature of the violation, and ordering the action necessary to correct it. He shall order
discontinuance of the illegal use of land, buildings or structures; removal of illegal buildings or
structures, or of additions, alterations or structural changes thereto; discontinuance of any illegal
work being done; or shall take any action authorized by this chapter to ensure compliance with or
to prevent violation of its provisions. If a ruling of the Watershed Administrator is questioned,
the aggrieved party or parties may appeal such ruling to the Watershed Review Board.
Section 21-9.1.1.14. Rules Governing the Interpretation of Watershed Area Boundaries.
Where uncertainty exists as to the boundaries of the watershed areas, as shown on the
Watershed Map, the following rules shall apply:
(1) Where area boundaries are indicated as approximately following either street, alley,
railroad or highway lines or centerlines thereof, such lines shall be construed to be said
boundaries.

(2) Where area boundaries are indicated as approximately following lot lines, such lot lines
shall be construed to be said boundaries. However, a surveyed plat prepared by a
registered land surveyor may be submitted to the city as evidence that one or more
properties along these boundaries do not lie within the watershed area.
(3) Where the watershed area boundaries lie at a scaled distance more than twenty-five (25)
feet from any parallel lot line, the location of watershed area boundaries shall be
determined by use of the scale appearing on the watershed map.
(4) Where the watershed area boundaries lie at a scaled distance of twenty-five (25) feet or
less from any parallel lot line, the location of watershed area boundaries shall be
construed to be the lot line.
(5) Where other uncertainty exists, the Watershed Administrator shall interpret the
Watershed Map as to location of such boundaries. This decision may be appealed to the
Watershed Review Board.
Section 21-9.1.1.15. Word Interpretation.
For the purpose of this ordinance, certain words shall be interpreted as follows:
Words in the present tense include the future tense.
Words used in the singular number include the plural, and words used in the plural
number include the singular, unless the natural construction of the wording indicates
otherwise.
The word "person" includes a firm, association, corporation, trust, and company as well
as an individual.
The word "structure" shall include the word "building."
The word "lot" shall include the words, "plot," "parcel," or "tract."
The word "shall" is always mandatory and not merely directory.
The word "will" is always mandatory and not merely directory.
Section 21-9.1.1.16. Definitions.
Agricultural Use. The use of waters for stock watering, irrigation, and other farm purposes.
Best Management Practices (BMP). A structural or nonstructural management -based practice
used singularly or in combination to reduce nonpoint source inputs to receiving waters in order to
achieve water quality protection goals.
Buffer. An area of natural or planted vegetation through which stormwater runoff flows in a

diffuse manner so that the runoff does not become channelized and which provides for
infiltration of the runoff and filtering of pollutants. The buffer is measured landward from the
normal pool elevation of impounded structures and from the bank of each side of streams or
rivers.
Building. Any structure having a roof supported by columns or by walls, and intended for
shelter, housing or enclosure of persons, animals or property. The connection of two buildings
by means of an open porch, breezeway, passageway, carport or other such open structure, with or
without a roof, shall not be deemed to make them one building.
Built -upon area. Built -upon areas shall include that portion of a development project that is
covered by impervious or partially impervious cover including buildings, pavement, gravel areas
(e.g. roads, parking lots, paths, recreation facilities (e.g. tennis courts), etc. (Note: Wooden
slatted decks and the water area of a swimming pool are considered pervious.)
Cluster Development. Cluster development means the grouping of buildings in order to conserve
land resources and provide for innovation in the design of the project including minimizing
stormwater runoff impacts. This term includes nonresidential development as well as single-
family residential and multi -family developments. For the purpose of this ordinance, planned unit
developments and mixed use development are considered as cluster development.
Critical Area. The area adjacent to a water supply intake or reservoir where risk associated with
pollution is greater than from the remaining portions of the watershed. The critical area is
defined as extending either one-half mile from the normal pool elevation of the reservoir in
which the intake is located or to the ridge line of the watershed (whichever comes first); or one-
half mile upstream from the intake located directly in the stream or river (run -of -the -river), or the
ridge line of the watershed (whichever comes first). Local governments may extend the critical
area as needed. Major landmarks such as highways or property lines may be used to delineate the
outer boundary of the critical area if these landmarks are immediately adjacent to the appropriate
outer boundary of one-half mile.
Customary Home Occupations. Any use conducted entirely within a dwelling and carried on by
the occupants thereof, which use is clearly incidental and secondary to the use of the dwelling for
residential purposes and does not change the character thereof. Provided further that no
mechanical equipment is installed or used except as is normally used for domestic or professional
purposes, and that not over twenty-five percent (25%) of the total floor space of any structure is
used for the occupation. No home occupation shall be conducted in any accessory building
except for the storage and service of a vehicle that is driven off site, such as a service repair
truck, delivery truck, etc.
Development. Any land disturbing activity which adds to or changes the amount of impervious
or partially impervious cover on a land area or which otherwise decreases the infiltration of
precipitation into the soil.
Dwelling Unit. A building, or portion thereof, providing complete and permanent living facilities
for one family.

Existing Development. Those projects that are built or those projects that at a minimum have
established a vested right under North Carolina zoning law as of the effective date of this
ordinance based on at least one of the following criteria:
(1) Substantial expenditures of resources (time, labor, money) based on a good faith
reliance upon having received a valid local government approval to proceed with
the project, or
(2) Having an outstanding valid building permit as authorized by the General Statutes
(G.S. 153A-344.1 and G.S. 160A-385.1), or
(3) Having an approved site specific or phased development plan as authorized by the
General Statutes (G.S. 153A-344.1 and G.S. 160A-385.1).
Existing Lot (Lot of Record). A lot which is part of a subdivision, a plat of which has been
recorded in the Office of the Register of Deeds prior to the adoption of this ordinance, or a lot
described by metes and bounds, the description of which has been so recorded prior to the
adoption of this ordinance.
Family. One or more persons occupying a single dwelling unit, provided that unless all members
are related by blood or marriage or adoption, no such family shall contain over five persons, but
further provided that domestic servants employed or living on the premises may be housed on the
premises without being counted as a family or families.
Family Subdivision. Family subdivision means a division of a tract of land: (a) to convey the
resulting parcels, with the exception of parcels retained by the grantor, to a relative or relatives as
a gift or for nominal consideration, but only if no more than one parcel is conveyed by the
grantor from the tract to any one relative; or (b) to divide land from a common ancestor among
tenants in common, all of whom inherited by intestacy or by will.
Industrial Development. Any non-residential development that requires an NPDES permit for an
industrial discharge and/or requires the use or storage of any hazardous material for the purpose
of manufacturing, assembling, finishing, cleaning or developing any product or commodity.
Landfill. A facility for the disposal of solid waste on land in a sanitary manner in accordance
with Chapter 130A Article 9 of the N.C. General Statutes. For the purpose of this ordinance this
term does not include composting facilities.
Lot. A parcel of land occupied or capable of being occupied by a building or group of buildings
devoted to a common use, together with the customary accessories and open spaces belonging to
the same.
Major Variance. A variance from the minimum statewide watershed protection rules that results
in any one or more of the following:
(1) The relaxation, by a factor greater than ten (10) percent, of any management
requirement under the low density option;

(2) The relaxation, by a factor greater than five (5) percent, of any buffer, density or
built -upon area requirement under the high density option;
(3) Any variation in the design, maintenance or operation requirements of a wet
detention pond or other approved stormwater management system.
Minor Variance. A variance from the minimum statewide watershed protection rules that results
in a relaxation, by a factor of up to five (5) percent of any buffer, density or built -upon area
requirement under the high density option; or that results in a relaxation, by a factor of up to ten
(10) percent, of any management requirement under the low density option.
Nonconforming Lot of Record. A lot described by a plat or a deed that was recorded prior to the
effective date of local watershed protection regulations (or their amendments) that does not meet
the minimum lot size or other development requirements of the statewide watershed protection
rules.
Non-residential Development. All development other than residential development, agriculture
and silviculture.
Plat. A map or plan of a parcel of land which is to be, or has been subdivided.
Protected Area. The area adjoining and upstream of the critical area of WS-IV watersheds. The
boundaries of the protected area are defined as within five miles of and draining to the normal
pool elevation of the reservoir or to the ridgeline of the watershed; or within 10 miles upstream
and draining to the intake located directly in the stream or river or to the ridgeline of the
watershed.
Residential Development. Buildings for residence such as attached and detached single-family
dwellings, apartment complexes, condominiums, townhouses, cottages, etc. and their associated
outbuildings such as garages, storage buildings, gazebos, etc. and customary home occupations.
Residuals. Any solid or semi -solid waste generated from a wastewater treatment plant, water
treatment plant or air pollution control facility permitted under the authority of the
Environmental Management Commission.
Single Family Residential. Any development where: 1) no building contains more that one
dwelling unit, 2) every dwelling unit is on a separate lot, and 3) where no lot contains more than
one dwelling unit.
Street (Road). A right-of-way for vehicular traffic which affords the principal means of access to
abutting properties.
Structure. Anything constructed or erected, including but not limited to buildings, which
requires location on the land or attachment to something having permanent location on the land.
Subdivider. Any person, firm or corporation who subdivides or develops any land deemed to be

a subdivision as herein defined.
Subdivision. All divisions of a tract or parcel of land into two or more lots, building sites, or
other divisions for the purpose of sale or building development (whether immediate or future)
and shall include all division of land involving the dedication of a new street or a change in
existing streets; but the following shall not be included within this definition nor be subject to the
regulations authorized by this ordinance:
(1) The combination or recombination of portions of previously subdivided and
recorded lots where the total number of lots is not increased and the resultant lots
are equal to or exceed the standards of this ordinance;
(2) The division of land into parcels greater than 10 acres where no street right-of-
way dedication is involved;
(3) The public acquisition by purchase of strips of land for the widening or opening of
streets;
(4) The division of a tract in single ownership whose entire area is no greater than two
acres into not more than three lots, where no street right-of-way dedication is
involved and where the resultant lots are equal to or exceed the standards of the
this ordinance;
(5) The division of a tract into plots or lots used as a cemetery.
Toxic Substance. Any substance or combination of substances (including disease causing
agents), which after discharge and upon exposure, ingestion, inhalation, or assimilation into any
organism, either directly from the environment or indirectly by ingestion through food chains,
has the potential to cause death, disease, behavioral abnormalities, cancer, genetic mutations,
physiological malfunctions (including malfunctions or suppression in reproduction or growth) or
physical deformities in such organisms or their off spring or other adverse health effects.
Variance. A permission to develop or use property granted by the Watershed Review Board
relaxing or waiving a water supply watershed management requirement adopted by the
Environmental Management Commission that is incorporated into this ordinance.
Water Dependent Structure. Any structure for which the use requires access to or proximity to or
citing within surface waters to fulfill its basic purpose, such as boat ramps, boat houses, docks
and bulkheads. Ancillary facilities such as restaurants, outlets for boat supplies, parking lots and
commercial boat storage areas are not water dependent structures.
Watershed. The entire land area contributing surface drainage to a specific point (e.g. the water
supply intake.)
Watershed Administrator. An official or designated person of the city responsible for
administration and enforcement of this ordinance.

Section 4 Codification. The provisions of Section I of this Ordinance shall be published as
appropriate in the Marion Code of Ordinances.
Section 5. Severability Should any section or provision of this Ordinance be declared invalid or
unconstitutional by any court of competent jurisdiction, the declaration shall not affect the
validity of this Ordinance as a whole or any part thereof that is not specifically declared to be
invalid or unconstitutional.
Section 6. Effective Date. This Ordinance shall take effect and be in force on March 28, 2018.
Adopted this the 20th day of March, 2018.
Stephen R. Little
Mayor
ATTEST:
J. Robert Boyette
City Manager/ Clerk
Ordinance Number: 0-18-03-20