NCS000427_Permit Application App C_2016

Appendix C: Town of Cary Land Development Ordinance
Chapter 3.

Review and Approval Procedures

3.12 DEVELOPMENT IN FLOOD HAZARD AREA

3.12.1 Stormwater Engineering Manager
3.12.2 Permit and Approval Requirements
(A) Compliance Required
(B) Development Requiring Other Forms of Town Approval
(C) Development Requiring No Other Forms of Town Approval; Floodplain
Development Permit Required
(D) Additional Requirement for Non-Residential Structures Located within the Flood
Hazard Area
3.12.3 Approval Procedure
3.12.4 Appeals

3.13 GRADING PERMITS

3.13.1 Purpose and Scope
(A) Applicability
(B) Exemptions from All Grading Standards and Permit Requirements
(C) Exemptions from Grading Permit Requirements
3.13.2 Application Requirements
3.13.3 Review and Approval
3.13.4 Approval Criteria
3.13.5 Effect of Approval; Certificate of Erosion Control Compliance
3.13.6 Responsibility for Maintenance and Additional Erosion Control Measures
3.13.7 Changes to Approved Erosion Control Plans
(A) Changes Initiated by Department
(B) Changes Initiated by Applicant

Chapter 4

Overlay Districts

4.4.6 Watershed Protection Overlay
(A) Purpose and Intent
(B) Applicability
(C) Procedures for Development Approval
(D) Overview of High Density and Low Density Development Options
(E) Restrictions on Allowed Uses
(F) Limitations on Impervious Surface Area and Density
(G) Engineered Stormwater Control Structures
(H) Clustered Development Option
(I) Modifications and Variances
(J) Violations Chapter

Chapter 7

Development and Design Standards

7.1 GENERAL PROVISIONS
7.1.1 Purposes
7.1.2 Applicability
7.1.3 Pre-Application Conference
Appendix C: Town of Cary Land Development Ordinance
7.1.4 Community Appearance, Site Design Standards, and other Documents
7.1.5 Limitations on Site Disturbance
(A) Limits of Disturbance
(B) Limited Disturbance or Construction Outside Limits of Disturbance

7.2.14 Urban Transition Buffer Regulations
(A) The Purpose and Intent of Urban Transition Buffers
(B) Establishing General Urban Transition Buffers
(C) Establishing Specialized Urban Transition Buffers
(D) Overlap or Conflict between Urban Transition Buffers established by the Town and
buffers established by State of North Carolina or Federal Regulations
(E) Activities Prohibited and Permitted in Urban Transition Buffers
(F) Description of Buffers on Site and/or Subdivision Plans
(G) Exclusion of Urban Transition Buffer from Lots
(H)Exemption when Existing Uses are Present and Ongoing
(I) Determination of No Practical Alternatives/Request for Authorization Certificate
(J) Modification of Urban Transition Buffers as part of Approving Development Plans
(K) Variances
(L) Mitigation
(M) Site Inspections
(N) Violations; Fines; Enforcement
(O) Delegation of Authority
(P) Definitions

7.3 STORMWATER MANAGEMENT

7.3.1 Purpose and Definitions
7.3.2 Nutrient Reduction Requirements
(A) Nitrogen and Phosphorus Control Plan Required
(B) Exemptions
(C) Calculation of Nitrogen and Phosphorus Export
(D) Nitrogen and Phosphorus Export Standards
7.3.3 Peak Runoff Control
(A) Calculation of Peak Flow
(B) Exceptions to Peak Flow Control
(C) Downstream Impact Analysis
7.3.4 Allowable Best Management Practices
7.3.5 Maintenance of Best Management Practices
7.3.6 Illegal Discharges to the Storm Sewer System
(A) Purpose
(B) Applicability
(C) Responsibility for Administration
(D) Compatibility with other Regulations
(E) Severability
(F) Ultimate Responsibility
(G) Discharge Prohibitions
(H) Watercourse Protection
(I) Industrial or Construction Activity Discharges
(J) Compliance Monitoring
(K) Requirement to Prevent, Control, and Reduce Stormwater Pollutants by the Use of Best
Management Practices
(L) Notification of Spills
(M) Violations, Enforcement, and Penalties
(N) Appeal of Notice of Violation
(O) Enforcement Measures After Appeal
(P) Cost of Abatement of the Violation
Appendix C: Town of Cary Land Development Ordinance
(Q) Violations Deemed a Public Nuisance
(R) Remedies Not Exclusive

7.3.7 Town of Cary NPDES Phase II Post Construction Runoff Controls
7.3.8 Variance

7.4 SOIL EROSION AND SEDIMENTATION CONTROL

7.4.1 Purposes
7.4.2 Permit and Approval Requirements
7.4.3 General Erosion and Sedimentation Control Standards
(A) Conveyance Channels
(B) Slopes Left Exposed
(C) Design Requirements
(D) Protective Cover Required
(E) Activity Near Watercourse
(F) Protection During Construction
(G) Limits on Single-Family Lot Grading
(H) Limit on Grading Area for Medium Density Residential Developments
(I) Installation of Required Landscape After Grading
(J )Compliance with Town Manual
7.4.4 Basic Control Objectives for Erosion Control Plans
(A) Identify Especially Vulnerable Areas
(B) Limit Time of Exposure
(C) Limit Exposed Area
(D) Control Surface Water
(E) Control Sedimentation
(F) Manage Stormwater Runoff
7.4.5 Borrow and Waste Areas
7.4.6 Access and Haul Roads
7.4.7 Operations in Lakes or Natural Watercourses

7.5 FLOOD DAMAGE PREVENTION

7.5.1 Purpose
7.5.2 Applicability
(A) Purpose
(B) Exemptions
7.5.3 Development Restrictions and Related Standards In and Near Special Flood Hazard Areas
and Future Conditions Flood Hazard Areas
(A) Establishment of Floodplain Development Permit
(B) Development Restrictions
(C) Development Standards
(D) Additional Development Standards and Restrictions for Areas with Established Base
Flood Elevation Data
(E) Application Requirements
(F) Additions/Improvements
(G) Additions/Improvements to Existing Structures
(H) Accessory Structures
7.5.4 Limitations on Encroachments in Floodways and Non-Encroachment Areas
7.5.5 Standards for Streams without Established Base Flood Elevations
Appendix C: Town of Cary Land Development Ordinance
7.5.6 Cross Drainage Area Standards and Restrictions
7.5.7 Special Requirements for Manufactured Homes
7.5.8 Special Requirements for Development Proposals Requiring Site and/or Subdivision Plan
Approval

Chapter 11 Enforcement

11.1 GENERAL PROVISIONS
11.1.1 Purpose
11.1.2 Compliance Required
11.1.3 Liability for Violations
11.1.4 Each Day a Separate Violation

11.2 RESPONSIBILITY FOR ENFORCEMENT AND APPEALS
11.2.1 Primary Responsibility
11.2.2 Appeals
(A) Appeals of Building Permit Issues
(B) Appeals of Soil Erosion and Sedimentation Control Decisions Pursuant to Section 7.4
(C) Appeal of Stop Work Orders
(D) Appeal of Notice of Violation Civil Penalties and Fines (Except Pursuant to Section 7.4)
11.2.3 Inspections

11.3 SPECIFIC VIOLATIONS
11.3.1 Land Disturbing Activities Inconsistent with Ordinance
11.3.2 Nonconformities Inconsistent with Ordinance
11.3.3 Increasing Intensity or Density of Use
11.3.4 Making Lots, Setbacks, Buffers, or Open Space Nonconforming
11.3.5 Activities Inconsistent with Conditions of Plan Approval or Permit
11.3.6 Failure to Remove Signs
11.3.7 Removal of, Damage to, Disturbance of and Pruning of Vegetation Inconsistent with Ordinance

11.4 REMEDIES AND PENALTIES FOR EROSION AND SEDIMENTATION CONTROL VIOLATIONS
PURSUANT TO SECTION 7.4
11.4.1 Deny or Withhold Permits
11.4.2 Revoke Permits
11.4.3 Issue Stop Work Order
11.4.4 Notice of Violation Civil Penalties
(A) Process
(B) Amount
11.4.5 Assess Criminal Penalties
11.4.6 Require Restoration of Disturbed Areas
11.4.7 Private Civil Relief

11.5 REMEDIES AND PENALTIES APPLICABLE TO OTHER SECTIONS OF THE LDO
11.5.1 General Remedies and Penalties
(A) Deny or Withhold Permits
(B) Revoke Permits
(C) Assess Civil Penalties
(D) Issue Stop Work Orders
11.5.2 Additional Remedies and Penalties For Certain Violations
(A) Clear Cutting of Trees
(B) Removal or Disturbance of or Damage to Existing Vegetation
(C) Severe Pruning
Appendix C: Town of Cary Land Development Ordinance
(D) Violation of Historic Preservation Ordinance

11.6 ENFORCEMENT PROCEDURES
11.6.1 Notice of Violation Procedure
(A) Notice Required Before Penalty
(B) Notice of Violation and Opportunity to Cure
(C) Written Notice
(D) Content of Written Notice
(E) Extension of Time to Cure
(F) Corrective Action Taken
11.6.2 Citation Procedure
(A) Citation for Violation
(B) Content of Citation
(C) Corrective Action Required
(D) Action for Recovery of Penalty
11.6.3 Summary Removal of Dangerous Signs or Structures
11.6.4 Injunctive Relief and Other Remedies
11.6.5 Private Civil Relief for Violation of Sedimentation and Erosion Control Standards

Appendix C: Town of Cary Land Development Ordinance
3.12 DEVELOPMENT IN FLOOD HAZARD AREA

3.12.1 Stormwater Engineering Manager

The Water Resources Department shall appoint a Stormwater Engineering Manager whose duties
shall include, but are not limited to, the following:

(A) Review all applications for permits and other forms of development approval for compliance
with the provisions in Section 7.5 ("Flood Damage Prevention") of this Ordinance regarding
flood hazards, and to determine whether all necessary permits and approvals have been
obtained from those federal, state or other local governmental agencies from which prior
approval is required;

(B) Review all applications for permits and other forms of development approval for compliance
with the provisions in Section 7.5 of this Ordinance regarding flood hazards, and to determine
whether all necessary permits and approvals have been obtained from those federal, state or
other local government agencies from which prior approval is required;

(C) Notify adjacent communities, the Federal Emergency Management Agency and the N.C.
Department of Environment and Natural Resources prior to any alteration or relocation of a
watercourse, and to assure that the altered watercourse is maintained so that the flood
carrying capacity of the watercourse is not diminished;

(D) Verify and record the actual elevation (in relation to mean sea level) of both the lowest floor
and any flood proofing of all new or substantially improved structures;

(E) Obtain certification from a registered professional engineer or architect when a structure is
flood proofed;

(F) Interpret the exact location of the boundaries of the Flood Hazard Area;

(G) Obtain, review and reasonably utilize any base flood elevation data available from a federal,
state or other source where base flood elevation data has not been provided in accordance
with Section 7.5.2 in order to administer the provisions of Section 7.5, Flood Damage
Prevention;

(H) Provide the N.C. Department of Crime Control and Public Safety, Division of Emergency
Management, State Coordinator for the National Flood Insurance Program with two (2) copies
of the maps delineating new corporate limits within six (6) months from the date of annexation
or change in corporate limits;

(I) Maintain all records pertaining to the provisions of this Section 3.12 and Section 7.5, and to
hold them open for public inspection; and
(J) Review all applications for development and all variances to the required standards and to maintain all of
the records required by Section 7.5.

3.12.2 Permit and Approval Requirements

(A) Compliance Required

No development shall occur in the Flood Hazard Area, unless it complies with the procedures
set forth in this section and the flood damage prevention standards set forth in Section 7.5 of
this Ordinance. In general, no development is allowed in the Flood Hazard Area unless a
Appendix C: Town of Cary Land Development Ordinance
special use is approved; and/or the property/use is exempted from this requirement; and/or
the development is for roads, greenways, pedestrian crossings, park-related equipment, or
public utilities and facilities such as waste water, gas, electrical, and water systems that are
located and constructed to minimize flood damage.

(B) Development Requiring Other Forms of Town Approval

The Town requires no separate permit to demonstrate that the proposed development meets
the flood damage prevention standards set forth in Section 7.5 of this Ordinance when this
Ordinance requires some other form of approval for the proposed development (such as a
building permit, certificate of occupancy, special use permit, site plan approval, or subdivision
plat approval). However, the applications for those other forms of development approval shall
require the submission of additional information relating to flood hazards as part of the
application package. As part of the staff review process for those other forms of development
approval, the Stormwater Services Manager shall review the application to ensure that it
meets the flood damage prevention standards set forth in Section 7.5.

(C) Development Requiring No Other Forms of Town Approval; Floodplain Development
Permit Required

In those cases where no other form of approval is required for the proposed development, the
development shall not proceed until and unless the Water Resources Department issues a
floodplain development permit for the proposed development. The person undertaking such
development shall file an application for a floodplain development permit with the Stormwater
Engineering Manager. The application shall be filed on a form prescribed by the Stormwater
Engineering Manager. The Stormwater Engineering Manager shall review the application and
shall issue the permit only if the proposed development conforms to the flood damage
prevention standards set forth in Section 7.5 of this Ordinance.

(D) Additional Requirement for Non-Residential Structures Located within the Flood
Hazard Area

No non-residential structure or related impervious surface shall be built, expanded, or located
within the Flood Hazard Area until and unless the Town Council has approved a special use
permit for such structure or surface under Section 3.8. The Town Council shall approve such
a structure as part of the site and/or subdivision plan only upon finding that, without this ability,
the owner cannot make a reasonable use of his or her property. In other words, this restriction
causes undue hardship. The Town Council may attach to the approval of the site and/or
subdivision plan such reasonable conditions as it deems necessary to safeguard the public
health, safety, and welfare against any flood hazards that the proposed non-residential
structure may present.

Appendix C: Town of Cary Land Development Ordinance

3.12.3 Approval Procedure

(A) Upon receiving any application for development within the Flood Hazard Area, the
Stormwater Services Manager shall determine whether the proposed development meets the
flood damage prevention standards set forth in Section 7.5.

(B) If the Stormwater Services Manager determines that the proposed development does not
meet these standards, then the Town shall issue no permit, certificate, or other form of
approval for the proposed development.

(C) In those cases where this Ordinance requires some other form of approval for development in
the Flood Hazard Area, the Stormwater Services Manager shall report its determination to the
body or agency responsible for the issuance of that other form of development approval,
within a reasonable amount of time for that body to act accordingly in approving or denying
the proposed development.

(D) In those cases where no other form of approval is required for the proposed development in
an area of special flood hazard, the Stormwater Services Manager shall notify the applicant of
its determination within a reasonable amount of time.

3.12.4 Appeals

(A) All questions on the enforcement of this section shall first be addressed to the Stormwater
Services Manager. The decisions of the Stormwater Services Manager may be appealed by
following the procedure set forth in Section 3.21, but the appeal shall be to the Town Council,
not the Zoning Board of Adjustment.

(B) The Town Council may grant relief from a decision of the Stormwater Services Manager only
if the Town Council finds that the Stormwater Services Manager acted incorrectly in
interpreting or administering any of the duties or functions listed under Section 3.12.1; other
provisions of this Section 3.12; or Section 7.5, Flood Damage Prevention. The Zoning Board
of Adjustment has no authority or power to hear a decision based on this Section 3.12.
(Ord. No. 2011-LDO-01, 1-11-11; Ord. No. 2014-LDO-03, 8-14-14)

3.13 GRADING PERMITS

3.13.1 Purpose and Scope

This section sets forth the procedures for obtaining a grading permit for development and land-
disturbing activities within the Town and its extraterritorial jurisdiction. (The standards for control of
sedimentation and soil erosion appear in Section 7.4.)

(A) Applicability

(1) Except as provided in paragraphs (B) and (C) below, it shall be unlawful to conduct any
land-disturbing activity without first obtaining a grading permit from the Water
Resources Department.

(2) Except where an adopted Town policy allows the issuance of grading permits prior to
final site and/or subdivision plan approval, no application for a grading permit shall be
filed or accepted until the project for which the permit is sought has received all other
necessary approvals required under Chapter 3 of this Ordinance.
Appendix C: Town of Cary Land Development Ordinance

(B) Exemptions from All Grading Standards and Permit Requirements

The requirements of this section and Section 7.4 of this Ordinance shall apply to all land-
disturbing activities undertaken by any person within the Town's corporate limits or
extraterritorial jurisdiction, except for the following:

(1) Agriculture

Land-disturbing activities undertaken on agricultural land that is taxed at the present-
use value standard;

(2) Forestry

Land-disturbing activities undertaken on forest land for the production and harvesting of
timber and timber products and which are conducted in accordance with Forest
Practice Guidelines Related to Water Quality (best management practices) as adopted
by the N.C. Department of Environment and Natural Resources. Within the Watershed
Protection Overlay, however, both a permit and a valid forestry management plan shall
be required from the appropriate federal or state agencies.);

(3) Mining

Land-disturbing activities undertaken by persons, as defined in G.S. 113A-52(8), who
are otherwise regulated by the provisions of the Mining Act of 1971, as amended (G.S.
74-46 through G.S. 74-68);

(4) Fire Fighting

Land-disturbing activities undertaken for the purpose of fighting fires; and

(5) Activities Regulated by Sedimentation Control Commission

The following land-disturbing activities that are regulated by the North Carolina
Sedimentation Control Commission:

(a) Land-disturbing activities conducted by the State, the United States, a unit of local
government, or persons or agencies having the power of eminent domain;

(b) Land-disturbing activities licensed by the State or the United States;

(c) Land-disturbing activities funded in whole or in part by the State or the United
States.

(C) Exemptions from Grading Permit Requirements

The land-disturbing activities set forth below need not obtain a grading permit, yet shall
nevertheless comply with the requirements set forth in Chapter 7 of this Ordinance, including
the soil erosion and sedimentation control requirements of Section 7.4. These activities
include:

(1) Construction of a single-family residence on a single lot, except when the disturbed
area exceeds one (1) acre;
Appendix C: Town of Cary Land Development Ordinance

(2) Land-disturbing activities that do not exceed twelve thousand (12,000) square feet in
surface area, on contiguous lands under single or diverse ownership being developed
as a unit; and

(3) The stockpiling of raw or processed sand, stone, or gravel in material processing plants
and storage yards, provided that the exposed surface area of such materials does not
exceed a contiguous area of twelve thousand (12,000) square feet.

3.13.2 Application Requirements

(A) An application for a grading permit shall be filed with the Water Resources Department. An
application for a grading permit may be filed only by the owner of the property on which the
land-disturbing activity is to occur or a contractor, agent, lessee, or contract purchaser
specifically authorized by the owner to file such application.

(B) The application shall include an erosion control plan that has been designed and signed by a
registered professional engineer or registered landscape architect who is qualified in
hydrology.

(C) Before filing the application, the applicant is strongly encouraged to request a pre-application
conference with the Planning Department. See Section 3.1.5.

3.13.3 Review and Approval

(A) The Water Resources Department shall review
each application and shall act to approve, approve
with modifications, approve with performance
reservations, or deny the application, based on the
criteria set forth in Section 3.13.4. The review shall
be conducted in conjunction with any site and/or
subdivision plan approval that may be required for
the proposed development.

(B) Where the application must be revised in
accordance with any modifications or performance
reservations required by the Water Resources
Department, the applicant shall submit a revised
application to the Water Resources Department.
The Stormwater Engineering Manager shall
approve or deny the revised application.

(C) Upon approval of the application, the Water Resources Department shall issue a grading
permit for the proposed land-disturbing activity. The applicant shall keep a copy of the grading
permit and the approved erosion control plan on file at the job site.

(D) In the event that the Water Resources Department disapproves the application, the Town
shall advise the applicant in writing as to the specific reasons that the plan was disapproved.
The applicant may appeal the Town's decision to deny or modify the proposed application by
following the appeals procedure set forth in Section 3.21, but the appeal shall be to the Town
Council, not the Zoning Board of Adjustment. If the Town Council upholds the denial or
modification of the application, then the applicant may appeal this decision to the North
Carolina Sedimentation Control Commission as provided in G.S. 113A-61(C) and N.C.
Grading Permit
Appendix C: Town of Cary Land Development Ordinance
Administrative Code Title 15, 4B.0018(b). Alternatively, the applicant may appeal the
disapproval of the plan directly to the Commission, in accordance with G.S. 113A-61, without
appeal to the Town Council.

3.13.4 Approval Criteria

(A) The Water Resources Department shall approve only those applications that are shown to
have the potential to control accelerated erosion and prevent off-site siltation at least the
equivalent in effectiveness, safety, quality, and durability of that prescribed in the current
edition of the "Erosion and Sedimentation Control Planning and Design Manual" published by
the North Carolina Sedimentation Control Commission.

(B) The Water Resources Department may deny the application for any of the following reasons,
if the applicant, or any parent or subsidiary corporation (if the applicant is a corporation) meets
any of the criteria set forth below. For purposes of this subsection, an applicant's record may
be considered for only the two (2) years prior to the application date.

(1) The applicant has failed to substantially comply with state rules or local ordinances and
regulation adopted pursuant to the Sedimentation Pollution Control Act;

(2) The applicant is conducting or has conducted land-disturbing activity without an
approved permit, or has received notice of violation of a permit previously approved by
the North Carolina Sedimentation Control Commission, the Town, or another local
government, and has not complied with the notice within the time specified therein;

(3) The applicant has failed to pay a civil penalty assessed pursuant to the Sedimentation
Pollution Control Act or this Ordinance for failure to comply with the applicable
sedimentation and erosion control requirements, where such payment is due and no
appeal is pending regarding the penalty;

(4) The applicant has been convicted of a misdemeanor pursuant to G.S. 113A-64(b), or
any similar provision of this Ordinance, for failure to comply with the applicable
sedimentation and erosion control requirements.

3.13.5 Effect of Approval; Certificate of Erosion Control
Compliance

(A) Following approval of the grading permit application, the
applicant shall install the initial sedimentation and erosion
control measures specified in the approved erosion
control plan.

(B) The land-disturbing activity shall not begin until the
Stormwater Engineering Manager has inspected these
initial measures and issued a certificate of erosion control
compliance indicating that these initial measures conform
to the approved application.

(C) No building permit or certificate of occupancy shall be
issued by the Inspections and Permits Department prior
to the issuance of the certificate of erosion control
compliance.

Appendix C: Town of Cary Land Development Ordinance
(D) The grading permit shall be valid so long as the site and/or subdivision plan to which it refers
remains valid and in effect. When the approval of the site and/or subdivision plan lapses, the
grading permit is null and void.

3.13.6 Responsibility for Maintenance and Additional Erosion Control Measures

(A) During development of a site, the person conducting the land-disturbing activity shall install
and maintain all temporary and permanent erosion and sedimentation control measures as
required by the approved application and any provision of, or order adopted pursuant to, this
Ordinance or the Sedimentation Pollution Control Act (G.S. 113A-50 et seq., as amended).

(B) After development of the site is complete, the landowner or person in possession or control of
the land shall install and/or maintain all necessary permanent erosion and sedimentation
control measures, except for those measures installed within a road or street right-of-way or
easement that a government agency has accepted for maintenance.

(C) Whenever the Town determines that significant sedimentation is occurring as a result of a
land-disturbing activity, despite the application and maintenance of protective practices, the
person conducting the land-disturbing activity or the person responsible for maintenance shall
be required to take additional protective action as the Water Resources Department deems
necessary to control the sedimentation.

(D) All uncovered areas that existed on the effective date of the State rules and resulted from land
disturbing activity, exceed twelve thousand (12,000) square feet, are subject to continued
accelerated erosion, and are causing off-site damage from sedimentation, shall be provided
with a ground cover or other protective measures, structures, or devices sufficient to restrain
accelerated erosion and control off-site sedimentation. The required ground cover shall be
consistent with this Section 3.13 and Chapter 7 of this Ordinance.

3.13.7 Changes to Approved Erosion Control Plans

(A) Changes Initiated by Department

Following commencement of a land-disturbing activity pursuant to an approved grading
permit, if the Water Resources Department determines that the approved application is
inadequate to meet the requirements of this Ordinance, then the Department may require
such revisions to the plan as are necessary to comply with this Ordinance.

(B) Changes Initiated by Applicant

The applicant may apply at any time to amend a grading permit, in written and/or graphic
form, under the same conditions and following the same procedure as the original application.
Until such time as the Water Resources Department approves such an amendment, the land-
disturbing activity shall not proceed except in accordance with the application as originally
approved.
(Ord. No. 2011-LDO-01, 1-11-11; Ord. No. 2014-LDO-03, 8-14-14)

Appendix C: Town of Cary Land Development Ordinance
4.4.6 Watershed Protection Overlay

(A) Purpose and Intent

The intent of the Watershed Protection Overlay is to ensure the availability of public water
supplies at a safe and acceptable level of water quality for present and future residents of the
Town and the surrounding region. Watershed protection measures allowed by this section
include:

(1) Restriction of land uses allowed within water supply basins;

(2) Impervious area and density limitations; and

(3) Engineered stormwater control structures and the best management practices as listed
in the Department of Environment and Natural Resources' State Design Manual.

(B) Applicability

(1) Designated Watersheds

The Watershed Protection Overlay is an overlay district to be applied to all lands lying
within the watershed of a public water supply. The boundaries of the Watershed
Protection Overlay shall be shown on an official map kept in the Planning Department.
The Watershed Protection Overlay consists of three sub-areas:

(a) Swift Creek Watershed;

(b) Jordan Lake Watershed; and

(c) Jordan Lake Watershed Critical Water Quality Area.

(2) Applicability to Development Activity

(a) The following types of development activity are exempt from the requirements of
this Section 4.4.6:

1. Development existing prior to June 30, 1993;

2. Development on vacant lots inside of PDs approved prior to June 30, 1993;

3. Development on vacant lands in subdivisions platted prior to June 30, 1993,
unless such lands have undergone a zoning change after June 30, 1993;
and

4. Redevelopment provided there is no increase in the total amount of
impervious surface for a lot or development site.

(b) The requirements of this Section 4.4.6 shall apply to the following:

1. Vacant land that is rezoned from its designation in place on June 30, 1993;

2. New lands added to a planned development after June 30, 1993, even if
the original planned development was approved prior to June 30, 1993;

3. Development in a planned development if the development had to be
amended after June 30, 1993, to accommodate the development;
Appendix C: Town of Cary Land Development Ordinance

4. Any expansions to existing development in place as of June 30, 1993
(provisions are only applied to the addition, not the impervious surface in
place on June 30, 1993).

(3) Sedimentation and Erosion Control

Responsible control of erosion and sedimentation is crucial to the protection of
stormwater quality and the continued proper function of the measures required in this
section. Requirements pertaining to sedimentation and erosion control are addressed in
Section 7.4 of this Ordinance.

(C) Procedures for Development Approval

(1) Development Review

All development within the Watershed Protection Overlay shall demonstrate compliance
with the requirements of this Section 4.4.6 at the time of approval of a subdivision plan
or site plan. Applicants complying with the standards of this section must also satisfy all
other applicable requirements and obtain all other necessary approvals or permits
under this Ordinance.

(2) Protection Measures Prerequisite to Certificate of Occupancy

A Certificate of Occupancy shall not be issued for any development in the Watershed
Protection Overlay until all of the watershed protection measures required by this
section have been approved and are in place on the property.

(D) Overview of High Density and Low Density Development Options

There are two (2) development options in the Watershed Protection Overlay, a Low Density
Option and a High Density Option, each with different provisions related to either the Swift
Creek Watershed or the Jordan Lake Watershed as well as to sub-areas within either
watershed.

(1) Impervious Surfaces

The maximum allowable amount of impervious surface within a proposed development
is limited based upon the Low or High Density Option, and differs from watershed to
watershed as depicted in Table 4.4-5.

(2) Calculation of Impervious Surfaces

Calculation of impervious surface area shall include the pavement area of all existing
and proposed internal public and private streets, one-half (1/2) of the width of roadways
on the perimeter of the project, driveways, rooftops, parking lots, patios, and all other
impervious surfaces. For the purpose of calculating the impervious surface of roadways
on the perimeter of a project, the ultimate pavement cross section of the roadway based
on the Comprehensive Transportation Plan and any sidewalk(s) or greenway(s) along
the perimeter roadway will be included in the calculation. For purposes of calculating the
percentage of impervious area coverage, the total project area shall be regarded as the
actual area of the property plus the area within the rights-of-way of the internal and
perimeter streets included in the calculation of impervious area.

Appendix C: Town of Cary Land Development Ordinance
(3) Residential Density

In addition to limitations on the amount of impervious surface, the Low and High Density
Development Options limit the gross residential densities of projects based upon the
watershed where they are proposed, with higher densities allowed under the High
Density Option as depicted in Table 4.4-5.

(4) Runoff Control

Engineered stormwater controls intended to contain the runoff from the first one (1) inch
of rainfall are required in any development utilizing the High Density Option in either
watershed.

(E) Restrictions on Allowed Uses

The uses allowed within the Watershed Protection Overlay are the same as the uses
permitted in the general use zoning district within which the land is located, pursuant to Table
5.1-1. However, the following uses are allowed within the overlay district only if they comply
with the performance standards set forth in this Section 4.4.6.

(1) Swift Creek Watershed and the Jordan Lake Watershed

(a) All industrial service uses;

(b) All waste-related uses;

(c) Uses producing and/or storing toxic and/or hazardous materials; and

(d) Any use discharging sewage, industrial waste and/or non-process industrial
waste.

(2) Jordan Lake Watershed Critical Water Quality Area

All uses set forth in paragraph (1) above; and all agricultural uses.

(F) Limitations on Impervious Surface Area and Density

(1) Low Density Option

Maximum impervious surface limits for the Low Density Option are set forth in the table
below. Separate regulations are provided for the Jordan Lake and Swift Creek areas.
The Jordan Lake regulations recognize two (2) sub-areas, the Critical Area and the
remainder of the watershed; while the Swift Creek regulations distinguish between
three (3) different sub-areas: New Suburban, New Urban, and Existing Urban
development. These sub-areas are depicted on the Town's Official Zoning Map and the
Land Use Plan Map.

Appendix C: Town of Cary Land Development Ordinance
TABLE 4.4-4: MAXIMUM IMPERVIOUS SURFACE LIMITS: LOW DENSITY OPTION
Suburban-New Urban-New Existing Urban
Residential Non-Residential Residential Non-Residential Residential and Non-
Residential
Swift Creek Watershed
Two and one-half
(2.5) dwelling units
per acre not to
exceed twelve (12)
percent
impervious surface
area.

Twelve (12)
percent
Six (6.0) dwelling
units per acre east of
Holly Springs and
Jones Franklin
Roads, Greater than
six (6.0) units per
acre west of Holly
Springs and Jones
Franklin Roads, not to
exceed twelve (12)
percent, impervious
surface area.
Twelve (12) percent The impervious
surface of the
underlying zoning of
the property not to
exceed twelve (12)
percent
impervious surface
area.

Jordan Lake Watershed
Impervious surfaces shall not exceed twenty-four (24) percent of the project area, or two (2) dwelling units
per acre; or three (3) dwelling units per acre and thirty-six (36) percent impervious surface area for projects
containing streets built without curbs and gutters.
Jordan Lake Watershed Critical Area
Non-residential and non-single-family residential development's impervious surface ratios shall not
exceed twenty-four (24) percent. The density of single-family residences shall not exceed two (2) dwelling
units per acre.

Appendix C: Town of Cary Land Development Ordinance

(2) High Density Option

High Density Option development proposals may be approved, provided that the
development applications are consistent with the following standards:

TABLE 4.4-5: MAXIMUM IMPERVIOUS SURFACE LIMITS: HIGH DENSITY OPTION
Suburban-New Urban-New Existing Urban
Residential Non-Residential Residential Non-Residential Residential and
Non-Residential
Swift Creek Watershed
Maximum
Impervious
Surface Limits
Two and one-half
(2.5) dwelling
units per acre not
to exceed thirty
(30) percent
impervious
surface area.
The impervious
area allowed
under the
underlying general
use zoning
districts, not to
exceed thirty (30)
percent.
Six (6.0)
dwelling units
per acre east of
Holly Springs
and Jones
Franklin
Roads. Greater
than six (6.0)
units per acre
west of Holly
Springs and
Jones Franklin
Roads, not to
exceed
seventy (70)
percent
impervious
surface area.

The impervious
area allowed
under the
underlying
general use
zoning districts,
not to exceed
seventy (70)
percent.
The impervious
area allowed
under the
underlying general
use zoning
districts, not to
exceed seventy
(70) percent.
Sewer Required
Impoundment
and
Maintenance
Required to contain and treat the runoff from the first one (1) inch of rainfall and to achieve
a minimum of eighty-five (85) percent average annual removal for Total Suspended Solids
(TSS). Public or private maintenance. [Other BMPs besides impoundments may be
available; consult the Department of Environment and Natural Resources' State Design
Manual for Best Management Practices Related to Stormwater Control.]
Jordan Lake Watershed
Where new development exceeds the Low Density Option Standards above, engineered stormwater
controls shall be used to control and treat runoff from the first inch of rainfall and to achieve a minimum of
eighty-five (85) percent average annual removal for Total Suspended Solids (TSS). Development shall not
exceed seventy (70) percent impervious surface area.
Jordan Lake Watershed Critical Area
Where proposed development exceeds the Low Density Option Standards above, engineered stormwater
controls are required to control and treat runoff from the first inch of rainfall and to achieve a minimum of
eighty-five (85) percent average annual removal for Total Suspended Solids (TSS). Development shall not
exceed fifty (50) percent impervious surface area.

Appendix C: Town of Cary Land Development Ordinance

(G) Engineered Stormwater Control Structures

(1) Ownership and Design Requirements

Stormwater control structures shall be owned by a property owner's association, or, for
all properties except single-family residential development, the owner of the property. All
stormwater control structures shall be designed by either a North Carolina registered
professional engineer or landscape architect, to the extent that the N.C. General
Statutes allow. Other stormwater systems shall be designed by a North Carolina
registered professional with qualifications appropriate for the type of system required;
these registered professionals are defined as professional engineers, landscape
architects, to the extent that the N.C. General Statutes allow and land surveyors, to the
extent that the design represents incidental drainage within a subdivision, as provided in
N.C. General Statutes.

(2) Structures Required for High-Density Option

All development under the high-density option shall use engineered stormwater control
structures as a primary treatment system. Engineered stormwater control structures
shall be designed for specific pollutant removal according to modeling techniques
approved by the North Carolina Department of Environment and Natural Resources.
Specific requirements for these systems shall be in accordance with the Standard
Engineering Details and Specifications Manual.

(3) Ground Cover Required

In addition to the vegetative filters required in the Standard Engineering Details and
Specifications Manual, all land areas outside of the engineered stormwater control
structures shall be provided with a ground cover sufficient to restrain erosion within
fifteen (15) days after any land disturbance. Upon completion of the stormwater control
structure, a permanent ground cover shall be established and maintained as part of the
maintenance plan described in Section 4.4.6(G)(9) below.

(4) Legal Description Required

A legal description of the area containing the stormwater control structure shall be
prepared and filed consistent with Section 4.4.6(G)(9) as a separate deed with the
Wake County Register of Deeds along with any easements necessary for general
access to the stormwater control structure. The deeded area shall include sufficient
area to perform inspections, maintenance, repairs and reconstruction. The deeded area
shall include, but is not limited to detention pond, vegetative filters, all pipes and water
control structures, berms and dikes.

(5) Computation of Total Built-Upon Area

Qualifying areas of the stormwater control structure may be considered pervious when
computing total built-upon area. However, if the structure is used to compute the
percentage built-upon area for one (1) site, it shall not be used to compute the built-
upon area for any other site or area.

Appendix C: Town of Cary Land Development Ordinance
(6) Wet Detention Ponds

Wet detention ponds designed following the Standard Engineering Details and
Specifications Manual, properly constructed, with all required financial assurances and
maintenance agreements in place may be regarded as adequate to satisfy the
impoundment requirements of the entire upstream contributory drainage basin.

(7) Posting of Financial Security Required

All engineered stormwater control structures shall be conditioned on the posting of
adequate financial assurance for the purpose of maintenance, repairs, or reconstruction
necessary for adequate performance of the stormwater control structures. Financial
assurance shall be in the form of the following:

(a) Acceptable Forms of Security

Acceptable financial security shall be deposited with the Town to ensure that the
engineered stormwater control structure is adequately maintained. The permit
applicant shall deposit with the Town of Cary either cash or an evergreen letter of
credit as financial security approved by the Town that is readily convertible into
cash at face value. The cash or evergreen letter of credit shall be in an amount
equal to fifteen (15) percent of the total cost of the stormwater control structure or
the estimated cost of maintaining the stormwater control structure over a ten (10)
year period. The estimated cost of maintaining the stormwater control structure
shall be consistent with the approved operation and maintenance plan or manual
provided to the Town by the developer. The amount shall be computed by
estimating the maintenance cost for twenty-five (25) years and multiplying this
amount by two-fifths (2/5) or 0.4.

(b) Operation and Maintenance Agreement

For all development built under the high density development option, the owner
shall enter into a binding Operation and Maintenance Agreement between the
Town and all persons having a freehold estate in the development. Said
Agreement shall require the owning entity to inspect, maintain, repair and, if
necessary, reconstruct the stormwater control structure in accordance with the
operation and management plan or manual provided by the owner. The owner of
the stormwater control structure shall file the Operation and Maintenance
Agreement with the Wake County Register of Deeds.

(c) Default Under the Cash or Evergreen Letter of Credit

Upon default of the owning entity to maintain, repair and, if necessary, reconstruct
the stormwater control structure in accordance with the Operation and
Maintenance Agreement, the Town shall obtain and use all or any portion of the
financial security to make necessary improvements based on an engineering
estimate. Such expenditure of funds shall only be made after exhausting all other
reasonable remedies seeking the owning entity to comply with the terms and
conditions of the Operation and Maintenance Agreement. The Town shall not
return any of the unused deposited cash funds, which shall be retained for
maintenance.

Appendix C: Town of Cary Land Development Ordinance

(8) Inspections for Stormwater Control Structures

(a) The Stormwater Management Engineer shall inspect the stormwater control
structure after the owning entity notifies the Stormwater Management Engineer
that all construction-related work has been completed. At this inspection, the
owning entity shall provide:

1. The executed deed, related easements, operation and maintenance
agreement and survey plat for the stormwater control structure ready for
filing with the Wake County Register of Deeds;

2. A certification sealed by a qualified professional stating that the stormwater
control structure is complete and complies fully with the approved plans and
specifications.

3. Reproducible as built plans showing best management practices.

(b) The Stormwater Management Engineer shall review the documents submitted by
the owning entity and the Town's inspection report.

1. If the Stormwater Management Engineer approves the inspection report,
deed and easements, and accepts the certification, the owning entity shall
file the Operation and Maintenance Agreement, deed and easements with
the Wake County Register of Deeds and provide proof of recordation to the
Stormwater Management Engineer. Upon receipt of proof of recordation,
the Stormwater Management Engineer will issue a Certificate of Watershed
Protection.

2. If deficiencies are found, the Stormwater Management Engineer shall direct
the owning entity to correct the deficiencies, make improvements and
inspections and/or correct documents and resubmit proof of the corrections
and/or improvements to the Stormwater Management Engineer.

(c) A Certificate of Occupancy shall not be issued for any building within the
permitted development until the Town has approved the stormwater control
structure, as provided in Section 4.4.6(G)(8)(b).

(d) The owner of each stormwater control structure shall submit a Maintenance
Inspection Report annually on the anniversary date of the Operation and
Maintenance Agreement recording, to the Stormwater Management Engineer. A
qualified professional, licensed in the state of North Carolina, must conduct the
inspection. Records of inspection shall be maintained on forms approved or
supplied by the North Carolina Division of Environmental Management and shall
be provided to the Stormwater management Engineer in a timely manner.

(e) In the event the annual inspection reveals the need for corrective action or
improvements, the Stormwater Management Engineer shall notify the owning
entity of the needed improvements and the date by which the corrective action is
to be completed. All improvements shall be made consistent with the plans and
specifications of the stormwater control structure and the operation and
maintenance plan or manual as provided by section 4.4.6(G)(7)(b). After all
corrective actions have been taken, the qualified professional shall re-inspect the
stormwater control structure and certify to the town that the appropriate corrective
actions have been taken.
Appendix C: Town of Cary Land Development Ordinance

(f) Appeals of any order, requirement, decision or determination made by the
Stormwater Management Engineer may be made to and decided by the Town
Council.

(9) Maintenance and Upkeep

(a) An operation and maintenance plan or manual shall be provided by the developer
for each stormwater control structure, indicating what operation and maintenance
actions are needed, what specific quantitative criteria will be used for determining
when those actions are to be taken and who is responsible for those actions. The
plan shall clearly indicate the steps that will be taken for restoring a stormwater
control structure to design specifications if a failure occurs.

(b) Landscaping and grounds management shall be the responsibility of the owning
entity. However, vegetation shall not be established or allowed to mature to the
extent that the integrity of the control structure is diminished or threatened, or to
the extent of interfering with any easement or access to the stormwater control
structure.

(c) Except for general landscaping and grounds management, the owning entity shall
notify the Stormwater Management Engineer prior to any repair or reconstruction
of the stormwater control structure. All improvements shall be made consistent
with the approved plans and specifications of the stormwater control structure and
the operation and maintenance plan or manual. After all repairs have been
completed, the owning entity shall engage the services of a qualified professional,
licensed in the state of North Carolina, to inspect said improvements and to issue
a report to the Stormwater Management Engineer. The owning entity shall
perform all additions, changes, or modifications noted in the inspection report
supplied by the qualified professional in a timely manner.

(d) The Stormwater Management Engineer retains the right to perform inspections,
deemed necessary by the Stormwater management Engineer, on any stormwater
control structure.

(e) Amendments to the plans and specifications of the stormwater control structure
and/or the operation and maintenance plan or manual shall be approved by the
Stormwater Management Engineer. Proposed changes shall be prepared by a
qualified professional.

1. If the Stormwater Management Engineer approves the proposed changes,
the owning entity of the stormwater control structure shall file sealed copies
of the revisions with the Office of the Stormwater Management Engineer.

2. If the Stormwater Management Engineer disapproves the changes, the
proposal may be revised and resubmitted to the Town Council as a new
proposal. If the proposal has not been revised and is essentially the same
as that already reviewed, it shall be returned to the applicant.

(f) If the Town Council or Stormwater Management Engineer finds that the operation
and maintenance plan or manual is inadequate for any reason, the Stormwater
Management Engineer shall notify the owning entity of any required changes and
the owning entity shall prepare and file copies of the revised agreement first with
the Wake County Register of Deeds. The owning entity shall
Appendix C: Town of Cary Land Development Ordinance

then file a copy certified by the Register of Deeds with the Office of the
Stormwater Management Engineer.

(H) Clustered Development Option

Clustering of development in the Watershed Protection Overlay may be allowed as an
optional configuration in either Low Density or High Density developments on a project-by-
project basis. Clustering shall follow the procedures and standards set forth in Section 8.4,
and is subject to the following additional criteria:

(1) The overall density and/or impervious surface coverage of the project may not exceed
the density and/or impervious surface coverage allowed under either the Low Density or
the High Density option. At a minimum, lot sizes shall conform to the standards of the
TR district (see Chapter 6) for single-family residential cluster development projects;
however the total number of lots shall not exceed the number of lots allowed for single-
family residential development under any Chapter 4 zoning district; and

(2) Impervious surfaces shall be designed and sited to minimize stormwater runoff impacts
on the receiving waters and to minimize the concentration of stormwater flow; and

(3) The remaining undeveloped portion of the tract shall remain in an undisturbed
vegetated or natural state. Where the development has an established property owner's
association, the title to the open space area shall be conveyed to the association.
Where a property owner's association has not been established, a maintenance
agreement shall be filed with the Wake County Register of Deeds.

(I) Modifications and Variances

Requests for relief from the requirements of this Section 4.4.6 shall be decided either by the
Town Council or by the Environmental Management Commission, depending on the
watershed and the type of standard from which relief is sought.

(1) Variances Granted by the Environmental Management Commission

The Environmental Management Commission shall have the sole authority to grant
major variances from the provisions of this Section 4.4.6 for properties in the Jordan
Lake Watershed and Jordan Lake Watershed Critical Area. For purposes of this
section, a major variance is a variance from the minimum statewide watershed
protection or Jordan Rules (contained in 15A NCAC Chapter 2B) that results in (a) the
relaxation, by factor greater than five percent (5%) of any buffer, density or built upon
area requirement under the high density option; (b) any variation in the design,
maintenance or operation requirements of a wet detention pond or other approved
stormwater management system; or (c) relaxation by a factor greater than ten percent
(10%), of any management requirement under the low density option.

(2) Modifications Granted by the Town Council

The Town Council shall have primary, but not sole, authority to grant modifications from
the provisions of this Section 4.4.6 for properties in the Swift Creek Watershed,
pursuant to this Sub-section.

(a) In the Swift Creek Watershed, the Town Council may modify the standards of
Section 4.4.6(F), Limitations on Impervious Area and Density, where using
perimeter or adjacent roadways in the impervious surface calculation causes a
development to exceed the allowed impervious surface percentage.
Appendix C: Town of Cary Land Development Ordinance

(b) In the Swift Creek Watershed, the Town Council may modify the standards of
Section 4.4.6(F), Limitations on Impervious Area and Density, to allow impervious
surface ratios greater than twelve (12) percent but less than twenty-four (24)
percent. However, requests for relief greater than twenty-four (24) percent shall
be forwarded for review and decision by the Environmental Management
Commission.

(3) Recommendation by Town Council to the Environmental Management
Commission

If an application calls for the granting of a modification as listed in paragraph (2b) or
paragraph (1) above that requires a decision by the Environmental Management
Commission, the Town Council shall first reach a recommendation on the modification
in accord with the requirements of Section 3.19. If the Town Council decides in favor of
granting the modification, the Town Council shall prepare a preliminary record of the
hearing as soon as possible and forward it to the Environmental Management
Commission. The preliminary record of the hearing shall include:

(a) The modification 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.

(4) Decision by the Environmental Management Commission

(a) Approval

If the Commission approves the variance as proposed or with additional
conditions, the Commission shall prepare a decision and send it to the Town
Council. The Town Council shall prepare a final decision in accordance with the
Commission's decision.

(b) Disapproval

If the Commission denies the variance as proposed the Commission will prepare
a decision and send it to the Town Council. The Town Council shall prepare a
final decision in accordance with the Commission's decision.

(J) Violations; Enforcement

This Section 4.4.6 shall be enforced by the Director of Water Resources or his designee. Any
person or association who fails to comply with any provision of this Section 4.4.6, or who fails
to submit a report, or who submits a fraudulent or false report, shall be in violation of this
Ordinance for each occurrence or non-compliance.

Appendix C: Town of Cary Land Development Ordinance
Chapter 7: DEVELOPMENT AND DESIGN STANDARDS

7.1 GENERAL PROVISIONS

7.1.1 Purposes

The purposes of this chapter include:

(A) To encourage the proper use of the land by promoting an appropriate balance between the
built environment and the preservation of open space and natural environmental resources;

(B) To protect private and public investment through preservation of open space, protection of
natural resources including the existing tree canopy; providing buffers between incompatible
uses and along roadways; and encouraging the planting of new vegetation as deemed
appropriate;

(C) To promote water conservation/efficiency through preserving natural areas, encouraging
good soil management, and encouraging the use of native and/or drought tolerant plant
materials.

(D) To provide proper standards that ensure a high quality appearance for Cary and promote
good design while also allowing individuality, creativity, and artistic expression; and

(E) To preserve and protect the identity and character of Cary, and to enhance the business
economy.

7.1.2 Applicability

The requirements of this chapter shall apply to all uses for which site and/or subdivision plan
approval is required pursuant to Section 3.9 of this Ordinance.

7.1.3 Pre-Application Conference

(A) A pre-application conference is required for most subdivisions and site plans submitted under
Chapter 3 of this Ordinance, and thus is required for most development proposals regulated
under this chapter. Pre-application conferences are not required for subdivisions or site plans
that have already been approved and that request changes which amount to less than fifty
(50) percent in non-residential square footage or less than fifty (50) percent increase in the
number of lots/units.

(B) At the pre-application conference, the applicant and Planning Department staff shall discuss
the requirements of this chapter in order to avoid relocation of major site elements after the
plan is submitted for review and approval.

7.1.4 Community Appearance, Site Design Standards, and Other Documents

This chapter contains minimum legal requirements related to site design and layout, appearance,
landscaping, and building design. This chapter shall be used in conjunction with other related
documents including, but not limited to, the Community Appearance Manual, Site Design
Standards, and Downtown Design Guidelines, Standards Specifications and Details, Small Area
Plans, the Transportation Plan, Policy Statements, and Standard Procedures. These documents
express Town policy and contain standards, guidelines, examples, and details needed to make this

Appendix C: Town of Cary Land Development Ordinance

chapter easy to understand and apply in various situations. Some of these documents contain
minimum requirements that may or may not be included within the text of this Ordinance, or may in
some situations differ with this Ordinance; in such cases, the more restrictive of the two (2)
requirements shall apply. The requirements of Chapter 7 may be eligible for Minor Modifications.
(See Section 3.19 for applicability.)

7.1.5 Limitations on Site Disturbance

(A) Limits of Disturbance

This Section is provided for informational purposes as a general guideline about where land
disturbing activities should or should not take place on a development site. On all
development sites subject to this chapter, the following areas shall generally be considered to
be off-limits to development or land-disturbing activities, unless otherwise specified in this
Ordinance:

(1) The Flood Hazard Area;

(2) Required streetscape areas as measured from the ultimate right-of-way;

(3) Undisturbed perimeter buffers, including the Thoroughfare Overlay;

(4) Zones 1, 2, and 3 of all UTBs;

(5) Wetlands under the jurisdiction of the Army Corps of Engineers unless otherwise
permitted by this agency;

(6) Conservation easements;

(7) Preservation areas required by applicable conditional use zoning conditions;

(8) Champion trees and required protection areas associated with such trees (e.g. root
zone); and

(9) Any other areas indicated for protection by the Planning Director.

(B) Limited Disturbance or Construction Outside Limits of Disturbance

In some cases, limited disturbance or land disturbing activities may occur within the areas to
be protected provided all necessary approvals are obtained. Such activities include, but are
not limited to the following:

(1) Mitigation of development activities;

(2) Restoration of previously disturbed or degraded areas;

(3) Personal gardens not operated on a for-profit basis and maintained by individual
homeowners;

(4) Utility installations and emergency public safety activities;

(5) Construction of a trail or pedestrian walkway that will provide public access;
Appendix C: Town of Cary Land Development Ordinance

(6) The enhancement of the habitat values and/or other natural resource values of an
identified natural area;

(7) Landscaping according to an approved landscaping plan; and

(8) Construction of public transit amenities, as required by Section 7.10.6 of this Ordinance.
(Ord. No. 2007-04, 3-22-07; Ord. No. 2010-LDO-05, 12-16-10; Ord. No. 2011-LDO-04, 11-17-11; Ord. No.
2012-LDO-06, 8-9-12)

7.2.14 Urban Transition Buffer Regulations

(A) The Purpose and Intent of Urban Transition Buffers

Urban Transition Buffers (UTBs or “buffers”) provide a transition from waterbodies and
environmentally sensitive areas associated with waterbodies to areas which are less fragile
and appropriate for more intense uses and development. Some of the benefits of UTBs are
minimizing danger to lives and properties from flooding, preserving the water carrying
capacity of the waterbodies, providing open spaces, limiting intense uses adjacent to
waterbodies and environmentally sensitive areas associated with waterbodies, and
maintaining the aesthetic qualities and appearance of the Town. As part of the Town's Land
Development Ordinance, UTBs implement many of the Town's responsibilities under State
and Federal law and regulations regarding stormwater management and watershed
preservation and are designed to work in conjunction with erosion and sedimentation control
regulations. The Town's water utility system uses surface water to provide drinking water to its
citizens and the preservation of this resource is important to the Town and its citizens.
General UTBs are uniform and comprehensive zoning buffers which accomplish these
important benefits and purposes as well as regulating and restricting the location of buildings,
structures and land, providing yards and open spaces, all for the promotion of health, safety
and the general welfare of the Town's citizens. Specialized UTBs exist to address concerns
which are not present in the Town's entire zoning jurisdiction.

(B) Establishing General Urban Transition Buffers

(1) This Section 7.2.14 shall apply to activities conducted within, or outside of with
hydrologic impacts in violation of the diffuse flow requirements set out in Section
7.2.14(B)(3)(a)(3), upon:

(a) Cape Fear Basin/Jordan Watershed

1. A one hundred (100) foot wide buffer directly adjacent to all surface waters
(intermittent streams, perennial streams, lakes, reservoirs and ponds) as
approximately indicated on the most recent version of the 1:24,000 scale
{seven and one-half (7.5) minute} quadrangle topographic maps prepared
by the United States Geological Survey (USGS).

2. A fifty (50) foot wide buffer approximately adjacent to any surface waters
(intermittent streams, perennial streams, lakes, reservoirs and ponds)
shown on the most recent version of the Soil Survey of Wake or Chatham
County, North Carolina prepared by the Natural Resources Conservation
Service of the United States Department of Agriculture and not shown on a
USGS quadrangle topographic map, or shown on a map approved by the
Geographic Information Coordinating Council and by the NC Environmental
Appendix C: Town of Cary Land Development Ordinance
Management Commission pursuant to 15A NCAC .0267.

(b) Neuse River Basin

1. A fifty foot (50') wide buffer beginning at the landward boundary of any
Neuse River Riparian Buffer mandated by regulations adopted by the
Environmental Management Commission of the State of North Carolina
and established adjacent to surface waters (intermittent streams, perennial
streams, lakes, reservoirs and ponds) as approximately indicated on the
most recent version of the 1:24,000 scale {seven and one-half (7.5) minute}
quadrangle topographic maps prepared by the United States Geological
Survey (USGS).

(c) Wetlands adjacent to surface waters or within fifty (50) feet of surface waters shall
be considered as part of the UTB but are regulated pursuant to Rules 15A NCAC
2B .0230 and .0231, Rules 15A NCAC 2H .0500, 15 NCAC 2H .1300, and
Sections 401 and 404 of the Federal Water Pollution Control Act.

(2) General UTBs are applied to specific properties as follows:

(a) Where the specific origination point of a stream regulated under subsection
(B)(1)(a) is in question upon request of the NC Division of Water Resources
("Division") or another party, the Town shall make an on-site determination. A
Town representative who has the training required by 15A NCAC 02B .0267 shall
establish that point using the methods described by 15A NCAC 02B .0267. Any
disputes over said on-site determinations shall be referred to the Director of Water
Resources c/o the 401 Oversight Express Permitting Unit, or its successor, in
writing. The Director's determination is subject to review as provided in Articles 3
and 4 of G.S. Chapter 150B.

(b) When a landowner or other affected party including the Division believes that the
maps referenced in subsection (B)(1)(a) have inaccurately depicted surface
waters, he or she shall consult the Town. Upon request the Town representative
who has the training required by 15A NCAC 02B .0267 shall make an on-site
determination. Any disputes over said on-site determination shall be referred to
the Director of the Division of Water Resources c/o the 401 Oversight Express
Permitting Unit, or its successor, in writing. A determination of the Director as to
the accuracy or application of the maps is subject to review as provided in Articles
3 and 4 of G.S. Chapter 150B. Surface waters that appear on maps shall not be
subject to these requirements if a site evaluation reveals any of the following
cases:

1. Man-made ponds and lakes that are not part of the natural drainage way
that is classified in accordance with 15A NCAC 2B .0100 including ponds
and lakes created for animal watering, irrigation or other agricultural uses.
(A pond or lake is part of a natural drainage way when it is fed by an
intermittent or perennial stream or when it has a direct discharge point to an
intermittent or perennial stream).

2. Ephemeral streams

3. The absence on the ground of a corresponding intermittent or perennial
stream, lake, reservoir or pond.

4. Ditches or other man-made water conveyances, other than modified
streams.
Appendix C: Town of Cary Land Development Ordinance

(3) General UTBs shall have zones as follows:

General UTBs may have as many as three (3) regulatory zones. The purpose of the
different regulatory zones is to provide transition within General UTBs from the most
fragile areas to less fragile areas and to provide some flexibility to the Town in
administering of the UTBs. The regulatory zones shall be:

(a) Cape Fear River Basin/Jordan Watershed

1. UTBs established pursuant to Section 7.2.14(B)(1)(a)(1) shall have three
(3) zones:

a. Zone One shall consist of a stable, vegetated area that is undisturbed
except for uses provided in subsection (E) and Table 7.2-6. The
locations of Zone One shall be as follows: For intermittent and
perennial streams, Zone One shall begin at the top of bank and
extend landward a distance of thirty (30) feet on all sides of the
surface water, measured horizontally on a line perpendicular to a
vertical line marking the top of the bank. For ponds, lakes and
reservoirs located within a natural drainage way. Zone One shall
begin at the normal water level and extend landward a distance of
thirty (30) feet, measured horizontally on a line perpendicular to a
vertical line marking the normal water level.

b. Zone Two shall consist of a stable, vegetated area that is undisturbed
except for uses provided in subsection (E) and Table 7.2-6. Zone
Two shall begin at the outer edge of Zone One and extend landward
twenty (20) feet as measured horizontally on a line perpendicular to
the surface water. The combined width of Zones One and Two shall
be fifty (50) feet on all sides of the surface water.

c. Zone Three shall consist of a stable, vegetated area that is
undisturbed except for uses provided for in subsection (E) and Table
7.2-6. Zone Three shall begin at the outer edge of Zone Two and
extend landward fifty (50) feet as measured horizontally on a line
perpendicular to the surface water. The combined width of Zones
One, Two and Three shall be one hundred (100) feet on all sides of
the surface water.

2. UTBs established pursuant to Section 7.2.14(B)(1)(a)2 shall have two (2)
zones:

a. Zone One shall consist of a stable, vegetated area that is undisturbed
except for uses provided in subsection (E) and Table 7.2-6. The
locations of Zone One shall be as follows: For intermittent and
perennial streams, Zone One shall begin at the top of bank and
extend landward a distance of thirty (30) feet on all sides of the
surface water, measured horizontally on a line perpendicular to a
vertical line marking the top of the bank. For ponds, lakes and
reservoirs located within a natural drainage way, Zone One shall
begin at the normal water level and extend landward a distance of
thirty (30) feet, measured horizontally on a line perpendicular to a
vertical line marking the normal water level.

Appendix C: Town of Cary Land Development Ordinance

b. Zone Two shall consist of a stable, vegetated area that is undisturbed
except for uses provided in subsection (E) and Table 7.2-6. Grading
and revegetating in Zone Two is allowed provided that the health of
the vegetation in Zone One is not compromised. Zone Two shall
begin at the outer edge of Zone One and extend landward twenty
(20) feet as measured horizontally on a line perpendicular to the
surface water. The combined width of Zones One and Two shall be
fifty (50) feet on all sides of the surface water.

3. Diffuse Flow Requirement: Diffuse flow of runoff shall be maintained in the
UTBs established pursuant to Section 7.2.14(B)(1) by dispersing
concentrated flow prior to its entry into the UTB and reestablishing
vegetation as follows:

a. Concentrated runoff from new ditches or man-made conveyances
shall be converted to diffuse flow at non-erosive velocities before the
runoff enters the UTB.

b. Periodic corrective action to restore diffuse flow shall be taken as
necessary and shall be designed to impede the formation of gullies;
and

c. No new stormwater conveyances are allowed through the UTBs
except for those specified in subsection (E) and Table 7.2-6
addressing stormwater management ponds, drainage ditches,
roadside ditches and stormwater conveyances.

(b) Neuse River Basin

General UTBs established pursuant to Section 7.2.14(B)(1)(b) shall have one (1)
zone: Zone Three. Zone Three shall consist of a stable, vegetated area that is
undisturbed except for uses provided for in subsection (E) and Table 7.2-6. Zone
Three shall begin at the outer edge of the Neuse Riparian Buffer and extend
landward fifty (50) feet as measured horizontally on a line perpendicular to the
surface water. The combined width of the Neuse Riparian Buffer and Zone Three
shall be one hundred (100) feet on all sides of the surface water.

(C) Establishing Specialized Urban Transition Buffers

(1) Property within Watershed Protection Overlay

In addition to the General UTBs established above, Specialized UTBs are required by
the Town's Watershed Protection Overlay (Section 4.4.6). Specialized UTBs shall
overlay General UTBs, as opposed to being situated adjacent to General UTBs. The
Specialized UTBs are as follows:

(a) Low Density Development Option

In the event the Landowner elects to develop his property under the Low Density
Development Option, as provided in Section 4.4.6(F)(1), a Specialized UTB thirty
(30) feet wide shall be established adjacent to all perennial surface waters
including perennial streams, lakes, reservoirs and ponds as approximately
indicated on the most recent versions of USGS 1:24,000 scale {seven and
Appendix C: Town of Cary Land Development Ordinance

one-half (7.5) minute} quadrangle topographic maps prepared by the United
States Geological Survey (USGS).

(b) High Density Development Option

In the event the Landowner elects to develop his property under the High Density
Development Option, as provided in Section 4.4.6(F)(2), a Specialized UTB one
hundred feet (100') wide shall be established adjacent to all perennial surface
waters including perennial streams, lakes, reservoirs and ponds as approximately
indicated on the most recent versions of USGS 1:24,000 scale {seven and one-
half (7.5) minute} quadrangle topographic maps prepared by the United States
Geological Survey (USGS).

(2) Uses Allowed Within Specialized UTBs

The uses allowed within Specialized UTBs are described in Table 7.2-6.

(3) Measurement of Specialized UTBs

Specialized UTBs shall be measured from a point perpendicular to the bank of the
perennial waters.

(D) Overlap or Conflict between Urban Transition Buffers established by the Town and
buffers established by State of North Carolina or Federal Regulations

(1) In the event of an overlap or conflict between a General UTB and a Specialized UTB,
the more restrictive buffer shall govern. It is the intent of the Town that General UTBs
shall provide the minimum urban transition buffer for all properties located in the Town's
zoning jurisdiction.

(2) In the event of an overlap or conflict between any buffer established by this Section
7.2.14 and any buffer or other requirement established by another law, rule or
regulation administered by the State of North Carolina or the Federal Government, the
more restrictive law, rule or regulation shall govern.

Table 7.2-5 below graphically depicts the Town's UTBs and their zones.

Appendix C: Town of Cary Land Development Ordinance

TABLE 7.2-5 TOWN OF CARY GENERAL AND SPECIALIZED UTBs
Type of Buffers General UTBs Watershed Overlay Buffers
Zones of Buffers ZONE 1 ZONE 2 ZONE 3 Low Density
Option
High Density
Option
Cape Fear River Basin
Not in Watershed overlay district
Shown on USGS map Yes Yes Yes N/A N/A
Shown on county soil map Yes Yes No N/A N/A
In watershed overlay district
Shown on USGS map Yes Yes Yes Yes[1] Yes[2]
Shown on county soil map Yes Yes No N/A N/A
Neuse River Basin
Not in Watershed overlay district
Shown on USGS map No[3] No[3] Yes N/A N/A
Shown on county soil map No[3] No[3] No N/A N/A
In watershed overlay district
Shown on USGS map No[3] No[3] Yes Yes[1] Yes[2]
Shown on county soil map No[3] No[3] No No No

[1] Minimum thirty (30) foot wide vegetative buffer and other regulations apply. See Section 4.4.6 of
the LDO.
[2] Minimum one hundred (100) foot wide vegetative buffer and other regulations apply. See Section
4.4.6 of the LDO.
[3] Regulated by State of North Carolina.

(E) Activities Prohibited and Permitted in Urban Transition Buffers

(1) Any activity which disturbs the soil or vegetation within any Urban Transition Buffer is
prohibited unless expressly permitted by this Section 7.2.14(E) and Table 7.2-6. Table
7.2-6 describes the uses permitted in each UTB established by this Section 7.2.14(E).

(2) Uses designated as exempt, allowable, allowable with mitigation and prohibited shall
have the following requirements:

(a) EXEMPT

Uses designated as exempt are allowed within the Urban Transition Buffer
provided that they adhere to the limitations of the activity as defined in subsection
(E)(1) and Table 7.2-6 below. Exempt uses shall be designed, constructed and
maintained to minimize soil disturbance and to provide the maximum water
quality protection practicable including construction, monitoring and maintenance
activities.

Appendix C: Town of Cary Land Development Ordinance

(b) ALLOWABLE

Uses designated as allowable may proceed within the Urban Transition Buffer
provided that there are no practical alternatives to the requested use as
determined pursuant to Section 7.2.14(I). This includes construction, monitoring
and maintenance activities. These uses require written authorization from the
Town of Cary.

(c) ALLOWABLE WITH MITIGATION

Uses designated as allowable with mitigation may proceed within the Urban
Transition Buffer provided that there are no practical alternatives to the requested
use as determined pursuant to Section 7.2.14(I) and mitigation approval has been
obtained pursuant to Section 7.2.14(L). These uses require written authorization
from the Town of Cary.

(d) PROHIBITED

Uses designated as prohibited or not designated as exempt, allowable, or
allowable with mitigation, may not proceed within the Urban Transition Buffer
unless a variance is granted pursuant to this Section 7.2.14.

TABLE 7.2-6 TOWN OF CARY GENERAL AND SPECIALIZED UTBs
Activity Exempt Allowable Allowable
with
Mitigation
Prohibited
Access Trails: Pedestrian access trails leading to the surface water, docks, fishing piers, boat ramps and other water dependent
activities
Pedestrian Access trails that are restricted to the minimum
width practicable and do not exceed four (4) feet in width of
buffer disturbance, and provided that installation and use
does not result in the removal of trees as defined in this
Ordinance and no impervious surface is added to the UTB
X
Pedestrian Access trails that exceed four (4) feet in width of
buffer disturbance, the installation or use results in the
removal of trees as defined in this Ordinance or impervious
surface is added to the UTB
X
Airport facilities:
Airport facilities that impact equal to or less than one
hundred and fifty (150) linear feet of UTB
X
Airport facilities that impact greater than one hundred and
fifty (150) linear feet of UTB
X
Activities necessary to comply with FAA requirements (e.g. radar
uses or landing strips)1
X
Archaeological activities X
Bridges X
Canoe Access provided that installation and use does not result
in the removal of trees as defined in this Ordinance and no
impervious surface is added to the UTB
X
Appendix C: Town of Cary Land Development Ordinance

TABLE 7.2-6 TOWN OF CARY GENERAL AND SPECIALIZED UTBs
Activity Exempt Allowable Allowable
with
Mitigation
Prohibited
Dam Maintenance activities:
Dam maintenance activities that do not cause additional
buffer disturbance beyond the footprint of the existing dam or
those covered under the U.S. Army Corps of Engineers
Nationwide Permit No. 3
X
Dam maintenance activities that do cause additional buffer
disturbance beyond the footprint of the existing dam or those
covered under the U.S. Army Corps of Engineers
Nationwide Permit No. 3
X
Drainage ditches, roadside ditches and stormwater conveyances through buffers:
New stormwater flows to existing drainage ditches, roadside
ditches, and stormwater outfalls provided that flows do not
alter or result in the need to alter the conveyance and are
managed to minimize the sediment, nutrients and other
pollution that convey to waterbodies
X
Realignment of existing roadside drainage ditches retaining
the design dimensions, provided that no additional travel
lanes are added and the minimum required roadway typical
section is used based on traffic and safety considerations
X
New or altered drainage ditches, roadside ditches and
stormwater outfalls provided that a stormwater management
facility is installed to control nitrogen and attenuate flow
before the conveyance discharges through the buffer
X
New drainage ditches, roadside ditches and stormwater
conveyances applicable to linear projects that do not provide
stormwater management facility due to topography
constraints provided that other practicable BMPs are
employed.
X
New Drainage ditches, roadside ditches and stormwater
outfalls that do not provide control for nitrogen before
discharging into the UTB
X
Excavation of the streambed in order to bring it to the same
elevation as the invert of a ditch
X
Driveway crossings of streams and other surface waters subject to this Ordinance:
Driveway crossings on single family residential lots that
disturb equal to or less than twenty-five (25) linear feet of
UTB
X
Driveway crossings on single family residential lots that
disturb greater than twenty-five (25) linear feet of UTB
X
In a subdivision that cumulatively disturb equal to or less
than one hundred and fifty (150) linear feet of UTB
X
In a subdivision that cumulatively disturb greater than one
hundred and fifty (150) linear feet of UTB
X
Appendix C: Town of Cary Land Development Ordinance

TABLE 7.2-6 TOWN OF CARY GENERAL AND SPECIALIZED UTBs
Activity Exempt Allowable Allowable
with
Mitigation
Prohibited
Fences provided that disturbance is minimized and installation
does not result in removal of forest vegetation
X
Fences provided that disturbance is minimized and installation
does result in removal of trees as defined in this Ordinance
X
Forest harvesting [refer to 15A NCAC 02B.0233 (11) and 15A
NCAC 02B .0267(14)]

Fertilizer application:
One-time fertilizer application to establish re-planted
vegetation
X
Ongoing fertilizer application X
Grading and revegetation in Zone 2 and 3 only provided that
diffuse flow and the health of existing vegetation in Zone 1 is not
compromised and disturbed areas are stabilized
X
Greenway/hiking trails designed, constructed and maintained to
maximize nutrient removal and erosion protection, minimize
adverse effects on aquatic life and habitat and protect water
quality to the maximum extent practical
X
Historic preservation X
Landfills as defined by G.S. 130A-290 X
Maintenance Access on modified natural streams: a grassed
travel way on one side of the water body when less impacting
alternatives are not practical. The width and specifications of the
travel way shall be only that needed for equipment access and
operation. The travel way shall be located to maximize stream
shading.
X
Mining activities:
Mining activities that are covered by the Mining Act provided
that new UTBs that meet the requirements of 7.2.14(B)(3)(a)
of this Ordinance are established adjacent to the relocated
channels
X
Mining activities that are not covered by the Mining Act OR
where new UTBs that meet the requirements of
7.2.14(B)(3)(a) of this Ordinance are not established
adjacent to the relocated channels
X
Wastewater or mining dewatering wells with approved
NPDES permit
X
Non-electric utility lines:
Impacts other than perpendicular crossings in Zones 2 and 3
only[3]
X
Impacts other than perpendicular crossings in Zone 1[3] X
Non-electric utility line perpendicular crossing of streams and other surface waters subject to this Ordinance:[3]
Perpendicular crossings that disturb equal to or less than
forty (40) linear feet of UTB with a maintenance corridor
equal to or less than ten (10) feet in width
X
Appendix C: Town of Cary Land Development Ordinance

TABLE 7.2-6 TOWN OF CARY GENERAL AND SPECIALIZED UTBs
Activity Exempt Allowable Allowable
with
Mitigation
Prohibited
Perpendicular crossings that disturb equal to or less than
forty (40) linear feet of UTB with a maintenance corridor
greater than ten (10) feet in width
X
Perpendicular crossings that disturb greater than forty (40)
linear feet but equal to or less than one hundred and fifty
(150) linear feet of UTB with a maintenance corridor equal to
or less than ten (10) feet in width
X
Perpendicular crossings that disturb greater than forty (40)
linear feet but equal to or less than one hundred and fifty
(150) linear feet of UTB with a maintenance corridor greater
than ten (10) feet in width
X
Perpendicular crossings that disturb greater than one
hundred and fifty (150) linear feet of UTB
X
On-site sanitary sewage systems - new ones that use ground
absorption
X
Overhead electric utility lines:
Impacts other than perpendicular crossings in Zones 2 and 3
only[3]
X
Impacts other than perpendicular crossings in Zone 1[1,2,3] X
Overhead electric utility line perpendicular crossings of streams and other surface waters subject to this Ordinance[3]
Perpendicular crossings that disturb equal to or less than
one hundred and fifty (150) linear feet of UTB[1, 3]
X
Perpendicular crossings that disturb greater than one
hundred and fifty (150) linear feet of UTB[1,2, 3]
X
Periodic maintenance of modified natural streams such as canals
and a grassed travelway on one (1) side of the surface water
when alternative forms of maintenance access are not practical
X
Piping of a stream under a permit issued by the US Army Corps
of Engineers
X
Playground equipment:
Playground equipment on single family lots provided that
installation and use does not result in removal of vegetation
X
Playground equipment installed on lands other than single-
family lots or that requires removal of vegetation
X
Ponds created by impounding streams and not used as stormwater BMPs:
New ponds provided that an UTB that meets the
requirements of Section 7.2.14(B)(3)(a) of this Ordinance is
established adjacent to the pond
X
New ponds where an UTB that meets the requirements of
Section 7.2.14(B)(3)(a) of this Ordinance is NOT established
adjacent to the pond
X
Ponds: Drainage of a pond in a natural drainage way provided
that a new riparian buffer that meets the requirements of
7.2.14(B)(1)(a), 7.2.14(B)(1)(c), 7.2.14(B)(2), 7.2.14(B)(3)(a),
7.2.14(E), 7.2.14(H), and Table 7.2-6 of this rule is established
adjacent to the new channel
X

Appendix C: Town of Cary Land Development Ordinance

TABLE 7.2-6 TOWN OF CARY GENERAL AND SPECIALIZED UTBs
Activity Exempt Allowable Allowable
with
Mitigation
Prohibited
Protection of existing structures, facilities and streambanks when
this requires additional disturbance of the UTB or the stream
channel
X
Railroad impacts other than crossings of streams and other
surface waters subject to this Ordinance
X
Railroad crossings of streams and other surface waters subject to this Ordinance:
Railroad crossings that impact equal to or less than forty (40)
linear feet of UTB
X
Railroad crossings that impact greater than forty (40) linear
feet but equal to or less than one hundred and fifty (150) feet
of UTB
X
Railroad crossings that impact greater than one hundred
and fifty (150) linear feet of UTB
X
Recreational and accessory structures in the UTB X
Removal of previous fill or debris provided that diffuse flow is
maintained and any vegetation removed is restored
X
Road impacts other than crossings of streams and other surface
waters subject to this Ordinance
X
Road crossings of streams and other surface waters subject to this Ordinance:
Road crossings that impact equal to or less than forty (40)
linear feet of UTB
X
Road crossings that impact greater than forty (40) linear feet
but equal to or less than one hundred and fifty (150) linear
feet
X
Road crossings that impact greater than one hundred and
fifty (150) linear feet
X
Road Relocation: Road relocation of existing private access roads associated with public road projects where necessary for
public safety:
Relocations that are less than or equal to twenty-five (25)
linear feet of UTB width
X
Relocations that are more than twenty-five (25) linear feet of
UTB width
X
Scientific studies and stream gauging X
Stormwater BMPs:
Wet detention, bioretention and constructed wetlands in
Zone Two and Three if diffuse flow of discharge is provided
X
Wet detention, bioretention and constructed wetlands in
Zone One
X
Stream restoration X
Streambank or shoreline stabilization X

Appendix C: Town of Cary Land Development Ordinance

TABLE 7.2-6 TOWN OF CARY GENERAL AND SPECIALIZED UTBs
Activity Exempt Allowable Allowable
with
Mitigation
Prohibited
Temporary roads:
Temporary roads that disturb less than or equal to twenty-
five (25) linear feet of UTB provided that vegetation is
restored to preconstruction topographic and hydrologic
conditions immediately after construction is complete and
replanted immediately with comparable vegetation, except
that tree planting may occur during the dormant season; at
the end of five (5) years the restored UTB shall comply with
the restoration criteria of section (L) below
X
Temporary roads that disturb greater than twenty-five (25)
linear feet of UTB provided that vegetation is restored to
preconstruction topographic and hydrologic conditions
immediately after construction is complete and replanted
immediately with comparable vegetation, except that tree
planting may occur during the dormant season; at the end of
five (5) years the restored UTB shall comply with the
restoration criteria of section (L) below
X
Temporary roads used for culvert installation or bridge
construction or replacement provided that restoration to
preconstruction topographic and hydrologic conditions
immediately after construction is complete and replanted
immediately with comparable vegetation, except that tree
planting may occur during the dormant season; at the end of
five (5) years the restored UTB shall comply with the
restoration criteria of section (L) below
X
Temporary sediment and erosion control devices:
In Zone 2 and 3 only provided that the vegetation in Zone 1
is not compromised and that discharge is released as diffuse
flow is restored to preconstruction topographic and
hydrologic conditions immediately after construction is
complete and replanted immediately with comparable
vegetation, except that tree planting may occur during the
dormant season; at the end of five (5) years the restored
UTB shall comply with the restoration criteria of section (L)
below
X
In Zones 1, 2, and 3 to control impacts associated with uses
approved by the Town or that have received a variance
provided that sediment and erosion control for upland areas
is addressed to maximum extent practical outside the UTB
and restored to preconstruction topographic and hydrologic
conditions immediately after construction is complete and
replanted immediately with comparable vegetation, except
that tree planting may occur during the dormant season; at
the end of five (5) years the restored UTB shall comply with
the restoration criteria of section (L) below
X
In-stream temporary erosion and sediment control measures
for work within a stream channel that is authorized under
Sections 401 and 404 of the Federal Water Pollution Control
Act
X
In-stream temporary erosion and sediment control measures
for work within a stream channel
X

Appendix C: Town of Cary Land Development Ordinance

TABLE 7.2-6 TOWN OF CARY GENERAL AND SPECIALIZED UTBs
Activity Exempt Allowable Allowable
with
Mitigation
Prohibited
Underground electric utility lines:
Impacts other than perpendicular crossings in Zone 2 and
Zone 3[3]
X
Impacts other than perpendicular crossings in Zone 1[3,4] X
Underground electric utility line perpendicular crossings of streams and other surface waters subject to this Ordinance:[3]
Perpendicular crossings that disturb less than or equal to
forty (40) linear feet of UTB[3,4]
X
Perpendicular crossings that disturb greater than forty (40)
linear feet of UTB[3,4]
X
Vegetation management:
Emergency fire control measures provided that topography
is restored
X
Periodic mowing and harvesting of plant products in Zone 2
and 3 only
X
Planting vegetation to enhance the UTB X
Pruning forest vegetation provided that the health and
function of the forest vegetation is not compromised
X
Removal of individual trees which are in danger of causing
damage to dwellings, other structures or human life or are
imminently endangering stability of the streambank
X
Removal of individual trees which are dead, diseased or
damaged
X
Removal of poison ivy X
Removal of invasive exotic vegetation as defined in: Smith,
Cherri L. 1998. Exotic Plant Guidelines. Department of
Environment and Natural Resources. Division of Parks and
Recreation. Raleigh, NC. Guideline #30
X
Vehicular access roads leading to water-dependent structures as
defined in 15A NCAC 02B .0202, provided they do not cross the
surface water and have minimum practicable width not exceeding
ten (10) feet and where installation and use result in disturbance
of UTB
X
Water-dependent structures as defined in 15A NCAC 02B .0202
where the installation and use result in the disturbance of UTB
X
Water supply reservoirs:
New reservoirs provided that an UTB that meets the
requirements of 7.2.14(B)(3)(a) of this Ordinance is
established adjacent to the reservoir
X
New reservoirs where an UTB that meets the requirements
of 7.2.14(B)(3)(a) of this Ordinance is NOT established
adjacent to the reservoir
X
Single family residential wells X
All other wells X

Appendix C: Town of Cary Land Development Ordinance
TABLE 7.2-6 TOWN OF CARY GENERAL AND SPECIALIZED UTBs
Activity Exempt Allowable Allowable
with
Mitigation
Prohibited
Wetland, stream and buffer restoration that results in impacts to the UTB
Wetland, stream and buffer restoration that requires Division
approval for the use of a 401 Water Quality Certification
X
Wetland, stream and buffer restoration that does not require
approval for the use of a 401 Water Quality Certification
X
Wildlife passage structures X
Wooden slatted decks and associated steps in the UTB, provided the use meets the requirements of Sections 7.2.14 (D) and
7.2.14 (E) of this Ordinance
Deck at least eight (8) feet in height and no vegetation
removed
X
Deck less than eight (8) feet in height or vegetation removed X
[1] Provided that, in Zone 1, all of the following WQBMPs for overhead utility lines are used. If all of these WQBMPs are not used
then the overhead utility lines shall require a no practical alternatives evaluation by the Town (Cape Fear Basin/Jordan
Watershed) or Division of Water Resources (Neuse River Basin).
A minimum zone of ten (10) feet wide immediately adjacent to the water body shall be managed such that only
vegetation that poses a hazard or has the potential to grow tall enough to interfere with the line is removed.
Woody vegetation shall be cleared by hand. No land grubbing or grading is allowed.
Vegetation root systems shall be left intact to maintain the integrity of the soil. Stumps shall remain where trees are cut.
Rip rap shall not be used unless it is necessary to stabilize a tower.
No fertilizer shall be used other than a one (1) time application to re-establish vegetation.
Construction activities shall minimize the removal of woody vegetation, the extent of the disturbed area, and the time in
which areas remain in a disturbed state.
Active measures shall be taken after construction and during routine maintenance to ensure diffuse flow of stormwater
through the buffer.
In wetlands, mats shall be utilized to minimize soil disturbance.
[2] Provided that poles or towers shall not be installed within ten (10) feet of a water body unless the Town (Cape Fear
Basin/Jordan Watershed) or Division of Water Resources (Neuse River Basin) completes a no practical alternatives evaluation.
[3] Perpendicular crossings are those that intersect the surface water at an angle between 75 degrees and 105 degrees.
[4] Provided that, in Zone 1, all of the following WQBMPs for underground utility lines are used. If all of these WQBMPs are not
used then the underground utility line shall require a no practical alternatives evaluation by the Town (Cape Fear Basin/Jordan
Watershed) or Division of Water Resources (Neuse River Basin).
Woody vegetation shall be cleared by hand. No land grubbing or grading is allowed.
Vegetative root systems shall be left intact to maintain the integrity of the soil. Stumps shall remain, except in the trench,
where trees are cut.
Underground cables shall be installed by vibratory plow or trenching.
The trench shall be backfilled with the excavated soil material immediately following cable installation.
No fertilizer shall be used other than a one (1) time application to re-establish vegetation.
Construction activities shall minimize the removal of woody vegetation, the extent of the disturbed area, and the time in
which areas remain in a disturbed state.
Active measures shall be taken after construction and during routine maintenance to ensure diffuse flow of stormwater
through the buffer.
In wetlands, mats shall be utilized to minimize soil disturbance.
Appendix C: Town of Cary Land Development Ordinance

(F) Description of Buffers on Site and/or Subdivision Plans

All UTBs shall be shown on all site plans and subdivision plats submitted for approval within
the Town's planning jurisdiction. In addition to UTBs, State of North Carolina and U.S. Army
Corps of Engineers' jurisdictional wetlands waters and buffers shall be shown on the inventory
of natural resources required as part of site and/or subdivision plan approval.

(G) Exclusion of Urban Transition Buffer and Riparian Buffer from Lots

Generally, no single-family lots created through a site and/or subdivision plan may encroach
upon any required or established riparian buffer or UTB, except that single-family lots platted
prior to July 27, 2000 shall be exempt from Zone Three of the Urban Transition Buffer
requirements. Notwithstanding the foregoing, single-family lots platted after July 27, 2000 may
encroach upon a required or established riparian buffer or UTB when all of the following
conditions are met:

(1) The total area of a parcel under single ownership is not greater than five (5) acres and
the Landowner establishes that he/she is unable to use any cluster development option
that may be available;

(2) The proposed subdivision consists of fewer than ten (10) lots and has no homeowners
association;

(3) There is no other reason for the formation of a homeowners association (e.g., covenant,
other common areas, common facilities, engineered stormwater control structures);

(4) The area of the UTB or riparian buffer is subject to a permanent conservation easement
or other legal instrument dedicated to a not-for-profit conservation entity approved by
the Town. All documents required for such a conveyance to a not-for-profit conservation
entity shall be provided to and approved by the Town, in writing on such instruments,
prior to recording any plat showing property proposed to be conveyed.

(H) Exemption when Existing Uses are Present and Ongoing

This Section 7.2.14 shall not apply to uses that are existing and ongoing; however, this
Section 7.2.14 shall apply at the time an existing, ongoing use is changed to another use.
Change of use shall involve the initiation of any activity that does not meet either of the
following criteria for existing, ongoing activity:

(1) It was present within the UTB as of July 27, 2000 and has continued to exist since that
time. Existing uses shall include agriculture, buildings, industrial facilities, commercial
areas, transportation facilities, maintained lawns, utility lines and on site sanitary
sewage systems any of which involve either specific, periodic management of
vegetation or displacement of vegetation by use is exempt from this Section. Change of
ownership through purchase or inheritance is not a change of use. Activities necessary
to maintain uses are allowed provided that the site remains similarly vegetated, no
impervious surface is added within fifty (50) feet of the surface water where it did not
previously exist as of July 27, 2000 and existing diffuse flow is maintained.

(2) Projects or proposed development that are determined by the Town to meet at least
one (1) of the following criteria:

Appendix C: Town of Cary Land Development Ordinance

(a) Project requires a 401 Certification/404 Permit and these were issued prior to July
27, 2000.

(b) Projects that require a state permit, such as landfills, NPDES wastewater
discharges, land application of residuals and road construction activities, have
begun construction or are under contract to begin construction and received all
required state permits and certifications prior to July 27, 2000.

(c) Projects that are being reviewed through the Clean Water Act Section
404/National Environmental Policy Act Merger 01 Process (published by the US
Army Corps of Engineers and Federal Highway Administration, 2003) or its
immediate successor if a Finding of No Significant Impact has been issued for the
project and the project has written approval of the Town prior to July 27, 2000; or

(d) Projects that are not required to be reviewed by the Clean Water Act Section
404/National Environmental Policy Act Merger 01 Process (published by the US
Army Corps of Engineers and Federal Highway Administration, 2003) or its
immediate successor if a Finding of No Significant Impact has been issued for the
project and the project has written approval of the Town prior to July 27, 2000; or

(I) Determinations of No Practical Alternatives/Request for Authorization Certificate

(1) Persons who wish to undertake uses designated as allowable or allowable with
mitigation shall submit a request for a "no practical alternatives" determination to the
Town. The applicant shall certify that the project meets all the following criteria for
finding "no practical alternatives."

(a) The basic project purpose cannot be practically accomplished in a manner that
would better minimize disturbance, preserve aquatic life and habitat, and protect
water quality;

(b) The use cannot practically be reduced in size or density, reconfigured or
redesigned to better minimize disturbance, preserve aquatic life and habitat, and
protect water quality; and

(c) Best management practices shall be used if necessary to minimize disturbance,
preserve aquatic life and habitat, and protect water quality.

(2) The applicant shall also submit at least the following information in support of its
assertion of "no practical alternatives":

(a) The name, address and phone number of the applicant;

(b) The nature of the activity to be conducted by the applicant;

(c) The location of the activity, including the jurisdiction;

(d) A map of sufficient detail to accurately delineate the boundaries of the land to be
utilized in carrying out the activity, the location and dimensions of any disturbance
in UTBs associated with the activity, and the extent of UTBs on the land;

Appendix C: Town of Cary Land Development Ordinance

(e) An explanation of why this plan for the activity cannot be practically accomplished,
reduced or reconfigured to better minimize disturbance to the UTB, preserve
aquatic life and habitat and protect water quality; and

(f) Plans for any best management practices proposed to be used to control the
impacts associated with the activity.

(3) Within sixty (60) days of a complete submission, the Town shall review the entire
project and make a finding of fact as to whether the criteria of this Section 7.2.14(I) have
been met. A finding of "no practical alternatives" shall result in issuance of an
Authorization Certificate. Failure to act within sixty (60) days shall be construed as a
finding of "no practical alternatives" and an Authorization Certificate shall be issued to
the applicant unless one of the following occurs:

(a) The applicant agrees, in writing, to a longer period;

(b) The Town determines that the applicant has failed to furnish requested
information necessary to the Town's decision;

(c) The final decision is to be made pursuant to a public hearing; or

(d) The applicant refuses access to its records or premises for the purpose of
gathering information necessary to the Town's decision.

(4) The Town may attach conditions to the Authorization Certificate that support the
purpose, spirit and intent of this Section 7.2.14.

(5) Any appeals of determinations regarding Authorization Certificates for activities in
Zones One and Two shall be referred to the Director of the Division of Water
Resources, c/o the 401 Oversight Express Permitting Unit, or its successor. The
Director's decision is subject to review as provided in G.S. Chapter 150B, Articles 3 and
4. Any appeals of determinations regarding Authorization Certificates for activities
taking place only in Zone Three shall be pursuant to Sections 3.21 and 11.2 of this
Ordinance.

(J) Modification of Urban Transition Buffers as part of Approving Development Plans

UTBs are part of the Town's overall zoning, land subdivision and land use regulations. The
Town has collected these regulations together in the Town's Land Development Ordinance
(LDO). UTBs are intended to assist the Town in accomplishing the broad and important
purposes of the LDO stated in 1.3 of the LDO as well as the specific purposes stated in
Sections 1.3.1-1.3.12 and 7.2.14(A). In any specific development plan, the Town reviews the
entire proposed development and determines whether the proposed development in its
entirety satisfies the LDO. The Town recognizes that UTBs will affect different property and
projects differently and that all circumstances or applications of UTBs cannot be foreseen.
Therefore, the Town has established a process by which the width of Zone 3 of the UTB may
be modified in certain limited circumstances based upon review and approval of an applicant's
application for modification which shall include the overall site development plan or
subdivision plan. Any modification granted shall be conditioned upon the implementation of
the related site or subdivision plan and shall be conditioned upon the applicant providing
mitigation as set forth below.

Appendix C: Town of Cary Land Development Ordinance

(1) Procedures for Requesting Modifications to Zone Three

The Town Council, after receiving comment from various Town departments which
review the proposed development plan pursuant to the LDO, may reduce the total area
of Zone Three after establishing the following at a quasi-judicial hearing:

(a) The reduction will have a minimal impact upon the purposes of the General UTBs
stated in Section 7.2.14(A) and is consistent with general purposes of the LDO
stated in Section 1.3; and

(b) The mitigation of impacts offered by the applicant as part of the proposed
development plan significantly outweighs the impacts of the reduction to the
General UTBs proposed by the applicant; and

(c) The impact of the reduction in the General UTB is balanced by mitigation, as
required below:

1. Mitigation on a 1:1 ratio for restoration of a degraded buffer or for protection
of ephemeral streams contiguous to protected streams; or

2. Mitigation on a 3:1 ratio for preservation of an existing buffer; or

3. Mitigation on a 10:1 ratio for preservation of open space.

(d) The requirements of Section 7.2.14(L)(7)(c), (d), (f), (g) and (h) shall apply to any
mitigation required by Section 7.2.14(J)(1)(c) above. In addition, the applicant
shall submit a restoration or enhancement plan meeting the requirements of
Section 7.2.14(L)(7)(e) together with its request for modification.

(e) The preferred mitigation area is off-site. However, in some cases mitigation
requirements may be met by protecting land on-site which would otherwise not be
protected through another avenue such as buffer, wetlands, floodplain or open
space requirements.

(2) In addition to the mitigation required and the considerations provided above, the Town
Council may consider other factors such as the following:

(a) Whether a substantial conflict exists between the General UTBs and other
provisions and provisions of the LDO (e.g., the appropriate layout of streets in a
proposed development conflicts with the location of the General UTBs);

(b) Whether approvals of other governmental agencies impede the effectiveness of
the General UTBs or otherwise impact the layout or development of the proposed
development; or

(c) Any other information which may be relevant to the Town Council's determination
that the development plan otherwise satisfies the purposes and goals of the LDO.

(3) Notwithstanding the foregoing, in the event the applicant provides written evidence that
the State of North Carolina has granted the applicant a variance to the riparian buffer
required by the State of North Carolina, or if the Town has granted a minor variance as
described below in section 7.2.14(K), the Town Council shall grant a modification to the
UTBs applicable to such applicant sufficient to permit such applicant to utilize the State
variance granted.
Appendix C: Town of Cary Land Development Ordinance

(K) Variances

(1) Except where General UTBs are modified pursuant to Section 7.2.14(J) above, General
UTBs shall not be modified or varied unless the applicant is granted a variance
pursuant to this sub-section (K).

(2) Requirements for Variances.

Persons who wish to undertake prohibited uses may pursue a variance. The Town
may grant minor variances. For major variances, the Town shall prepare preliminary
findings and submit them to the Division of Water Resources, 401 Oversight Express
Permitting Unit, or its successor for approval by the Environmental Management
Commission. The variance request procedure shall be as follows:

(a) For any variance request, the Town shall make a finding of fact as to whether
there are practical difficulties or unnecessary hardships that prevent compliance
with the UTB requirements. A finding of practical difficulties or unnecessary
hardships shall require that the following conditions are met:

1. If the applicant complies with the provisions of this Ordinance, he/she can
secure no reasonable return from, nor make reasonable use of, his/her
property. Merely proving that the variance would permit a greater profit
from the property shall not be considered adequate justification for a
variance. Moreover, the Town shall consider whether the variance is the
minimum possible deviation from the terms of this Section 7.2.14 that shall
make reasonable use of the property possible;

2. The hardship results from application of this Section 7.2.14 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, such that compliance with provisions of
this Section 7.2.14 would not allow reasonable use of the property;

4. The applicant did not cause the hardship by knowingly or unknowingly
violating this Section 7.2.14;

5. The applicant did not purchase the property after July 14, 2011 (the
effective date of this Ordinance), and then request a variance; and

6. The hardship is rare or unique to the applicant's property.

(b) The variance is in harmony with the general purpose and intent of the State's
riparian buffer protection requirements and this Ordinance and preserves its spirit;
and

(c) In granting the variance, the public safety and welfare have been assured, water
quality has been protected, and substantial justice has been done.

Appendix C: Town of Cary Land Development Ordinance

(3) Minor Variances

A minor variance request pertains to activities that will impact Zone Two of the UTB.
Minor variance requests shall be reviewed and approved based on the criteria in
Section 7.2.14(K)(2). The Town may attach conditions to the variance approval that
support the purpose, spirit and intent of the UTB program. Request for appeals to
decisions made by the Town shall be made in writing to the Director of Water Quality,
401 Oversight Express Permitting Unit, or its successor. The Directors decision is
subject to review as provided in G.S. Chapter 150B, Articles 3 and 4.

(4) Major Variances

A major variance request pertains to activities that will impact any portion of Zone One
or any portion of both Zones One and Two of UTB. If Town has determined that a
major variance request meets the requirements in Section 7.2.14(K)(2), then it shall
prepare a preliminary finding and submit it to the NC Environmental Management
Commission c/o the Division of Water Resources, 401 Oversight Express Permitting
Unit, or its successor, for approval. Within ninety (90) days after receipt by Town, the
Commission shall review preliminary findings on major variance requests and take one
(1) of the following actions: approve, approve with conditions and stipulations, or deny
the request. Appeals from a Commission decision on a major variance request are
made on judicial review to Superior Court.

(5) Any use allowed by a variance which requires mitigation as a condition of variance
approval shall not be undertaken until a Mitigation Approval is issued pursuant to
Section 7.2.14(L).

(L) Mitigation

(1) This item shall apply to persons who wish to impact a UTB when one (1) of the
following applies:

(a) A person has received an Authorization Certificate pursuant to Section 7.2.14(I)
for a proposed use that is designated as "allowable with mitigation"; or

(b) A person has received a variance pursuant to Section 7.2.14(K) and is required to
perform mitigation as a condition of a variance approval; or

(c) A person has requested a modification pursuant to Section 7.2.14(J).

(2) Issuance of the Mitigation Approval

The Town shall issue a mitigation approval upon determining that a proposal meets the
requirements set out in this Ordinance. The approval shall identify at a minimum the
option chosen, the required and proposed areas, and either the mitigation location or
the offset payment amount as applicable.

(3) Options for Meeting the Mitigation Requirement

The mitigation requirement may be met through one (1) of the following options:

(a) Payment of a mitigation fee pursuant to 15A NCAC 2B .0269 for impacts to Zone
1 and Zone 2 of the UTB only;

Appendix C: Town of Cary Land Development Ordinance

(b) Donation of real property or of an interest in real property pursuant to Section
7.2.14(L)(6); or

(c) Restoration or enhancement of a non-forested riparian buffer pursuant to the
requirements of Section 7.2.14(L)(7).

(4) The Area of Mitigation

The Town shall determine the required area of mitigation, which shall apply to all
mitigation options identified in Section 7.2.14(K)(3) and as further specified in the
requirements for each option set out in this Section, according to the following:

(a) The impacts in square feet to each zone of the UTB shall be determined by the
Town by adding the following:

1. The area of the footprint of the use causing the impact to the UTB;

2. The area of the boundary of any clearing and grading activities within the
UTB necessary to accommodate the use; and

3. The area of any ongoing maintenance corridors within the UTB associated
with the use.

(b) The required area of mitigation shall be determined by applying the following
multipliers to the impacts determined in Section 7.2.14(K)(4)(a) of this Ordinance
to each zone of the UTB:

1. Impacts to Zone One of the UTB shall be multiplied by three (3);

2. Impacts to Zone Two of the UTB shall be multiplied by one and one-half
(1.5); and

3. Impacts to wetlands within the UTB that are subject to mitigation under 15A
NCAC 2H .0506 shall comply with the mitigation ratios in 15A NCAC 2H
.0506.

(5) The Location of Mitigation

For any option chosen for impacts in the Jordan watershed, the mitigation effort shall be
located within the same subwatershed of the Jordan watershed, as defined in 15A
NCAC 02B.0262, and the same distance from the Jordan Reservoir as the proposed
impact, or closer to the Reservoir than the impact, and as close to the location of the
impact as feasible. Alternatively, the applicant may propose mitigation anywhere within
the same subwatershed of the Jordan watershed, as defined in 15A NCAC 02B.0262,
provided that the mitigation proposal accounts for differences in delivery of nutrients to
the affected arm of Jordan Reservoir resulting from differences between the locations of
the impact and mitigation. Additional location requirements for the property donation
option are enumerated in Section 7.2.14(6)(c)1.

(6) Donation of Property

Persons who choose to satisfy their mitigation determination by donating real property
or an interest in real property shall meet the following requirements:
Appendix C: Town of Cary Land Development Ordinance

(a) The donation of real property interests may be used to either partially or fully
satisfy the payment of a mitigation fee to the Riparian Buffer Restoration Fund
pursuant to 15A NCAC 02B .0272 for impacts to Zone 1 and Zone 2. The value
of the property interest shall be determined by an appraisal performed in
accordance with Section 7.2.14(L)(6)(d)4. The donation shall satisfy the
mitigation determination if the appraised value of the donated property interest is
equal to or greater than the required fee. If the appraised value of the donated
property interest is less than the required fee calculated pursuant to 15A NCAC
02B .0272, the applicant shall pay the remaining balance due.

(b) The donation of conservation easements to satisfy mitigation requirements shall
be accepted only if the conservation easement is granted in perpetuity.

(c) Donation of real property interests to satisfy the mitigation determination shall be
accepted only if such property meets all of the following requirements:

1. In addition to the location requirements of Section 7.2.14(L)(5), for impacts
in the Jordan watershed, the property shall be located within an area that is
identified as a priority for restoration in, or is otherwise consistent with the
goals of, the Basinwide Wetlands and Riparian Restoration Plan for the
Cape Fear River Basin developed by NC Division of Water Resources
pursuant to G.S. 143-214.10;

2. The property shall contain riparian buffers not currently protected by the
State's riparian buffer protection program that are in need of restoration as
defined in Section 7.2.14(L)(7);

3. The restorable riparian buffer on the property shall have a minimum length
of one thousand (1000) linear feet along a surface water and a minimum
width of fifty (50) feet as measured horizontally on a line perpendicular to
the surface water;

4. The size of the restorable riparian buffer on the property to be donated shall
equal or exceed the area of mitigation responsibility determined pursuant to
Section 7.2.14(L)(4);

5. Restoration shall not require removal of man-made structures or
infrastructure;

6. The property shall be suitable to be successfully restored, based on existing
hydrology, soils, and vegetation;

7. The estimated cost of restoring and maintaining the property shall not
exceed the value of the property minus site identification and transaction
costs;

8. The property shall not contain any building, structure, object, site, or district
that is listed in the National Register of Historic Places established pursuant
to Public Law 89-665, 16 U.S.C. 470 as amended;

9. The property shall not contain any hazardous substance or solid waste;

10. The property shall not contain structures or materials that present health or
safety problems to the general public. If wells, septic, water or sewer
connections exist, they shall be filled, remediated or closed at owner's
Appendix C: Town of Cary Land Development Ordinance
expense in accordance with state and local health and safety regulations;

11. The property and adjacent properties shall not have prior, current, and
known future land use that would inhibit the function of the restoration effort;
and

12. The property shall not have any encumbrances or conditions on the transfer
of the property interests.

(d) At the expense of the applicant or donor, the following information shall be
submitted to the Town with any proposal for donations or dedications of interest in
real property:

1. Documentation that the property meets the requirements laid out in Section
7.2.14(L)(6)(c);

2. US Geological Survey 1:24,000 {seven and one-half (7.5) minute} scale
topographic map, county tax map, USDA Natural Resource Conservation
Service County Soil Survey Map, and county road map showing the
location of the property to be donated along with information on existing site
conditions, vegetation types, presence of existing structures and
easements;

3. A current property survey performed in accordance with the procedures of
the North Carolina Department of Administration, State Property Office as
identified by the State Board of Registration for Professional Engineers and
Land Surveyors in "Standards of Practice for Land Surveying in North
Carolina." Copies may be obtained from the North Carolina State Board of
Registration for Professional Engineers and Land Surveyors, 3620 Six
Forks Road, Suite 300, Raleigh, North Carolina 27609;

4. A current appraisal of the value of the property performed in accordance
with the procedures of the North Carolina Department of Administration,
State Property Office as identified by the Appraisal Board in the "Uniform
Standards of Professional North Carolina Appraisal Practice." Copies may
be obtained from the Appraisal Foundation, Publications Department, P.O.
Box 96734, Washington, D.C. 20090-6734; and

5. A title certificate.

(7) Riparian Buffer Restoration or Enhancement

Persons who choose to meet their mitigation requirement through riparian buffer
restoration or enhancement shall meet the following requirements:

(a) The applicant may restore or enhance a non-forested riparian buffer if either of
the following applies:

1. The area of riparian buffer restoration is equal to the required area of
mitigation determined pursuant to Section 7.2.14(L)(4); or

2. The area of riparian buffer enhancement is three (3) times larger than the
required area of mitigation determined pursuant to Section 7.2.14(L)(4);

(b) The location of the riparian buffer restoration or enhancement shall comply with
the requirements in Section 7.2.14(L)(5);
Appendix C: Town of Cary Land Development Ordinance

(c) The riparian buffer restoration or enhancement site shall have a minimum width of
fifty (50) feet as measured horizontally on a line perpendicular to the surface
water;

(d) Enhancement and restoration shall both have the objective of establishing a
forested riparian buffer according to the requirements of this Item. Enhancement
shall be distinguished from restoration based on existing buffer conditions.
Where existing trees are sparse, defined as greater than or equal to one hundred
(100) trees per acre but less than two hundred (200) trees per acre, a buffer may
be enhanced. W here existing woody vegetation is absent, defined as less than
one hundred (100) trees per acre, a buffer may be restored;

(e) The applicant shall submit a restoration or enhancement plan for approval by the
Town after receiving an Authorization Certificate for the proposed use according
to the requirements of Section 7.2.14(I); after receiving a variance for the
proposed use according to the requirements of Section 7.2.14(K); or prior to
requesting a modification for the proposed use according to the requirements of
Section 7.2.14(J). The restoration or enhancement plan shall contain the
following:

1. A map of the proposed restoration or enhancement site;

2. A vegetation plan. The vegetation plan shall include a minimum of at least
two (2) native hardwood tree species planted at a density sufficient to
provide three hundred twenty (320) trees per acre at maturity;

3. A grading plan. The site shall be graded in a manner to ensure diffuse flow
through the riparian buffer;

4. A fertilization plan; and

5. A schedule for implementation.

(f) Within one (1) year after the Town has approved the restoration or enhancement
plan, the applicant shall present proof to the Town that the riparian buffer has
been restored or enhanced. If proof is not presented within this timeframe, then
the person shall be in violation of both the State's riparian buffer protection
program and this Section 7.2.14;

(g) The mitigation area shall be placed under a perpetual conservation easement that
will provide for protection of the property's nutrient removal functions; and

(h) The applicant shall submit annual reports for a period of five (5) years after the
restoration or enhancement showing that the trees planted have survived and that
diffuse flow through the riparian buffer has been maintained. The applicant shall
replace trees that do not survive and restore diffuse flow if needed during that five
(5)-year period.

(M) Site Inspections

Agents, officials, or other qualified persons authorized by the Town may periodically inspect
UTBs to ensure compliance with this ordinance. Notice of the right to inspect shall be
included in the letter of approval of each variance and authorization certificate. Authorized
agents, officials or other qualified persons shall have the authority, upon presentation of
proper credentials, to enter and inspect at reasonable times any property, public or private, for
Appendix C: Town of Cary Land Development Ordinance
the purpose of investigating and inspecting the site of any UTB. No person shall willfully
resist, delay, or obstruct an authorized representative, employee, or agent of the Town, while
that person is inspecting or attempting to inspect a UTB nor shall any person obstruct,
hamper or interfere with any such representative while in the process of carrying out their
official duties. The Town shall have the power to conduct such investigations as deemed
reasonably necessary to carry out the duties as prescribed in this Section 7.2.14.

(N) Violations; Fines; Enforcement

(1) This Section 7.2.14 shall be enforced by the Director of Water Resources or his
designee. Any person who fails to comply with any provision of this Section 7.2.14 shall
be in violation of this Ordinance for each occurrence or non-compliance. The
disturbance or damage of vegetation within the UTB shall constitute a violation of this
Ordinance. For purposes of this Section 7.2.14, "disturbance" shall be defined as any
action that results in injury or harm to required trees, shrubbery, or other vegetation. The
owner(s) of the property which term includes their agents, heirs, and assigns, shall be
fined and shall replace the disturbed or damaged vegetation as set forth in subsections
(N)(2) and (N)(3). In addition, the Town of Cary may assess civil penalties in
accordance with Chapter 11 of the LDO. Each day that the violation continues shall
constitute a separate offense.

(2) The area disturbed or damaged shall be revegetated to re-establish the natural
landscape. The person to whom a notice of violation is issued must submit a
vegetation plan which shall include a minimum of at least two (2) native hardwood tree
species planted at a density sufficient to provide three hundred twenty (320) trees per
acre at maturity. In addition, any tree with a dbh of at least six (6) inches that is
damaged or removed shall be replaced with one (1) or more trees that have a caliper of
at least two (2) inches and a cumulative dbh equal to or greater than the original tree.

(3) A fine of between two dollars ($2.00) and four dollars ($4.00) for every square foot area
used by the disturbed or damaged vegetation within the UTB shall be imposed. In
determining the amount of the fine, the Water Resources Director shall consider the
degree and extent of harm caused by the violation, the cost of rectifying the damage,
and whether the violation was committed willfully. Fines imposed pursuant to this
subsection may be appealed pursuant to Section 11.2.2(D).

(O) Delegation of Authority

Any act authorized by this Section 7.2.14 to be carried out by or at the direction of the Town
may be carried out by the Town Manager, Director of Water Resources or designee of either
such official.

(P) Definitions

For the purpose of Section 7.2.14, these terms shall be defined as follows:

"Access Trails" means pedestrian trails constructed of pervious or impervious surfaces and
related structures to access a surface water, including boardwalks, steps, rails and signage.

"Airport Facilities" means all properties, facilities, buildings, structures, and activities that
satisfy or otherwise fall within the scope of one (1) or more of the definitions or uses of the
words or phrases "air navigation facility" , "airport", or "airport protection privileges" under G.S.
63-1; the definition of "aeronautical facilities" in G.S. 63-79(1); the phrase "airport facilities" as
used in G.S. 159-48(b)(1); and the phrase "aeronautical facilities" as defined in G.S. 159-81
and G.S. 159-97; and the phrase "airport facilities and improvements" as used in Article V,
Section 13, of the North Carolina Constitution, which shall include, without limitation, any and
Appendix C: Town of Cary Land Development Ordinance
all of the following: airports, airport maintenance facilities, clear zones, drainage ditches,
fields, hangars, landing lighting, airport and airport-related offices, parking facilities, related
navigational and signal systems, runways, stormwater outfalls, terminals, terminal shops, and
all appurtenant areas used or suitable for airport buildings or other airport facilities, and all
appurtenant rights-of-way; restricted landing areas; any structures, mechanisms, lights,
beacons, marks, communicating systems, or other instrumentalities or devices used or useful
as an aid, or constituting an advantage or convenience to the safe taking off, navigation, and
landing of aircraft, or the safe and efficient operation and maintenance of an airport or
restricted landing area; easements through, or interests in, air space over land or water,
interests in airport hazards outside boundaries of airports or restricted landing areas, and
other protection privileges, the acquisition or control of which is necessary to ensure safe
approaches to the landing areas of airports and restricted landing areas, and the safe and
efficient operation thereof and any combination of any or all of such facilities. Notwithstanding
the foregoing, the following shall not be included in the definition of "airport facilities":

1. Satellite parking facilities

2. Retail and commercial development outside of the terminal area, such as rental car
facilities; and

3. Other secondary development, such as hotels, industrial facilities, free-standing offices
and other similar buildings, so long as these facilities are not directly associated with the
operation of the airport, and are not operated by a unit of government or special
government entity such as an airport authority, in which case they are included in the
definition of "airport facilities".

"Channel" means a natural water-carrying trough cut vertically into low areas of the land
surface by erosive action of concentrated flowing water or a ditch or canal excavated for the
flow of water.

"DBH" means the diameter at breast height of a tree measured at four and one-half (4.5) feet
above ground level surface.

"Development" means the same as defined in Rule 15A NCAC 2B .0202(23).

"Ditch or canal" means a man-made channel other than a modified natural stream
constructed for drainage purposes that is typically dug through inter-stream divide areas. A
ditch or canal may have flows that are perennial, intermittent, or ephemeral and may exhibit
hydrological and biological characteristics similar to perennial or intermittent streams.

"Ephemeral Stream" means a feature that carries only stormwater in direct response to
precipitation with water flowing only during and shortly after large precipitation events. An
ephemeral stream may or may not have a well-defined channel, the aquatic bed is always
above the water table, and stormwater runoff is the primary source of water. An ephemeral
stream typically lacks the biological, hydrological, and physical characteristics commonly
associated with the continuous or intermittent conveyance of water.

"Existing Development" means development, other than that associated with agricultural or
forest management activities that meets one (1) of the following criteria:

1. It either is built or has established a vested right based on statutory or common law as
interpreted by the courts, for projects that do not require a state permit, as of the
effective date of either local new development stormwater programs implemented
under Rule 15A NCAC 2B .0265 (Jordan Water Supply Nutrient Strategy: Stormwater
Management for New Development) or, for projects requiring a state permit, as of the
applicable compliance date established in Rule 15A NCAC 2B .0271 (Jordan Water
Appendix C: Town of Cary Land Development Ordinance
Supply Nutrient Strategy: Stormwater Management for New Development), Items (5)
and (6); or

2. It occurs after the compliance date set out in Sub-Item (4)(d) of Rule .0265 (Jordan
Water Supply Nutrient Strategy: Stormwater Management for New Development) but
does not result in a net increase built-upon area.

"Greenway / Hiking Trails" means pedestrian trails constructed of pervious or impervious
surface and related structures including but not limited to boardwalks, steps, rails, and
signage, and that generally run parallel to the shoreline.

"High Value Tree" means a tree that meets or exceeds the following standards: for pine
species, fourteen (14)-inch DBH or greater or eighteen (18)-inch or greater stump diameter; or
for hardwoods and wetland species, sixteen (16)-inch DBH or greater or twenty-four (24)-inch
or greater stump diameter.

"Intermittent Stream" means a well-defined channel that contains water for only part of the
year, typically during winter and spring when the aquatic bed is below the water table. The
flow may be heavily supplemented by stormwater runoff. An intermittent stream often lacks
the biological and hydrological characteristics commonly associated with the continuous
conveyance of water.

"Jordan Nutrient Strategy" or "Jordan water supply nutrient strategy" means the set of Rules
15A NCAC 2B .0262 through .0273 and .0311(p).

"Jordan Reservoir" means the surface water impoundment operated by the US Army Corps
of Engineers and named B. Everett Jordan Reservoir, as further delineated for purposes of
the Jordan Nutrient strategy rule in Rule 15A NCAC 2B .0262(4).

"Jordan watershed" means all lands and waters draining to B. Everett Jordan Reservoir.

"New Development" means any development project that does not meet the definition of
existing development set out in Section 7.2.14.

"Perennial Stream" means a well-defined channel that contains water year round during a
year of normal rainfall with the aquatic bed located below the water table for most of the year.
Groundwater is the primary source of water for a perennial stream, but it also carries
stormwater runoff. A perennial stream exhibits the typical biological, hydrological, and physical
characteristics commonly associated with the continuous conveyance of water.

"Perennial waterbody" means a natural or man-made basin, including lakes, ponds, and
reservoirs, that stores surface water permanently at depths sufficient to preclude growth of
rooted plants. For the purpose of the State's riparian buffer protection program, the waterbody
must be part of a natural drainage way (i.e., connected by surface flow to a stream).

"Referenced / reference reach" means a stable stream that is in dynamic equilibrium with its
valley and contributing watershed. A reference reach can be used to develop natural channel
design criteria for stream restoration projects.

"Shoreline stabilization" is the in-place stabilization of an eroding shoreline. Stabilization
techniques which include "soft" methods or natural materials (such as root wads, or rock
vanes) may be considered as part of a restoration design. However, stabilization techniques
that consist of "hard" engineering, such as concrete lined channels, riprap, or gabions, while
providing bank stabilization, shall not be considered stream restoration.

"Stream restoration" is defined as the process of converting an unstable, altered or degraded
Appendix C: Town of Cary Land Development Ordinance
stream corridor, including adjacent riparian zone and flood-prone areas to its natural or
referenced, stable conditions considering recent and future watershed conditions. This
process also includes restoring the geomorphic dimension, pattern, and profile as well as
biological and chemical integrity, including transport of water and sediment produced by the
stream's watershed in order to achieve dynamic equilibrium.

"Stream" means a body of concentrated flowing water in a natural low area or natural channel
on the land surface.

"Stump diameter" means the diameter of a tree measured at six (6) inches above the ground
surface level.

"Surface Waters" means all waters of the state as defined in G.S. 143-212 except
underground waters.

"Tree" means a woody plant with a DBH equal to or exceeding five (5) inches or a stump
diameter exceeding six (6) inches.

"Temporary road" means a road constructed temporarily for equipment access to build or
replace hydraulic conveyance structures such as bridges, culverts, pipes or water dependent
structures or to maintain public traffic during construction.
(Ord. No. 04-001, 1-8-04; Ord. No. 04-007, 7-15-04; Ord. No. 05-001, 1-13-05; Ord. No. 06-009, adopted 4-27-
06; eff. 4-27-06; Ord. No. 2007-04, 3-22-07; Ord. No. 2007-21, 12-13-07; Ord. No. 2008-LDO-01, 9-25-08; Ord.
No. 2009-LDO-01, 2-12-09; Ord. No. 2010-LDO-01, 1-14-10; Ord. No. 2010-LDO-02, 1-28-10; Ord. No. 2011-
LDO-01, 1-11-11; Ord. No. 2011-LDO-03, 7-14-11; Ord. No. 2011-LDO-04, 11-17-11; Ord. No. 2011-LDO-05,
12-15-11; Ord. No. 12-LDO-01, 2-23-12; Ord. No. 2012-LDO-06, 8-9-12; Ord. No. 2013-LDO-02, 6-13-13; Ord.
No. 2013-LDO-04, 9-26-13; Ord. No. 2013-LDO-07, 12-19-13; Ord. No. 2014-LDO-01, 1-9-14; Ord. No. 2014-
LDO-03, 8-14-14; Ord. No. 2014-LDO-04, 8-28-14; Ord. No. 2015-LDO-001, 4-21-15; Ord. No. 2015-LDO-003,
7-23-15; Ord. No. 2015-LDO-006, 12-10-15)

7.3 STORMWATER MANAGEMENT

7.3.1 Purpose and Definitions

(A) This section is intended to protect water quality for present and future residents of the Town
and surrounding regions by limiting the amount of pollutants, including but not limited to
nitrogen and phosphorus, in stormwater runoff. Specific objectives include: control of nitrogen
and phosphorus export from development, control of peak stormwater runoff, and the use of
best management practices.

(B) For the purpose of this section 7.3, the following definitions shall apply:

LARGER COMMON PLAN OF DEVELOPMENT OR SALE
Any area where multiple separate and distinct construction or land-disturbing activities will
occur under one (1) plan. For purposes of this definition only, a plan is any announcement or
piece of documentation (including but not limited to a sign, public notice or hearing, sales
pitch, advertisement, loan application, drawing, permit application, zoning request, or
computer design) or physical demarcation (including but not limited to boundary signs, lot
stakes, or survey markings) indicating that construction activities may occur on a specific plot.

REDEVELOPMENT
Any development on previously-developed land.

7.3.2 Nutrient Reduction Requirements

(A) Nitrogen and Phosphorus Control Plan Required
Appendix C: Town of Cary Land Development Ordinance

For purposes of this section, nitrogen and phosphorus control plans shall be required for the
following:

(1) Any activity that, alone or as part of a larger common plan of development or sale,
disturbs greater than one (1) acre of land in order to establish, expand, or modify a
single-family or duplex residential development or a recreational facility.

(2) Any activity that, alone or as part of a larger common plan of development or sale,
disturbs greater than twelve thousand (12,000) square feet of land in order to establish,
expand or modify a multifamily residential development or a commercial, industrial or
institutional facility.

(3) Any grubbing, stump removal, and/or grading activity that disturbs greater than twelve
thousand (12,000) square feet.

(4) Demolition and subsequent construction upon a previously developed site.

(B) Exemptions

(1) For purposes of this section, development or land disturbance shall not include
agriculture, mining, or forestry activities.

(2) Existing development as of March 1, 2001 in the Neuse River Basin, is not subject to
the requirements of this Section. Expansions to existing development must meet the
requirements of this Section. The impervious surface area of the existing development
is not required to be included in the nitrogen load attributed to the site expansion;
nitrogen calculations must follow Town procedures for allocating undeveloped land to
the site.

(3) Redevelopment and/or rebuilding activity which results in no net increase in the built-
upon area from that that previously existed and which provides equal or greater
stormwater control than that provided by previous development.

(4) In the Cape Fear River Basin any proposed new development that would replace or
expand structures or improvements that existed as of December 1, 2001, and that
would not result in a net increase in built-upon area shall not be required to meet the
nutrient loading targets or high-density requirements except to the extent that it shall
provide stormwater control at least equal to the previous development.

7Water Body Development Restrictions
Appendix C: Town of Cary Land Development Ordinance

(C) Calculation of Nitrogen and Phosphorus Export

(1) The nitrogen export from each development in the Neuse River Basin must be
calculated per Town procedures and approved by the Stormwater Manager or his or
her designee. This export will be calculated in pounds per acre per year (lb/ac/yr). For
calculating nitrogen export, refer to Controlling Urban Runoff: A Practical Manual for
Planning and Designing Urban BMPs (Schueler's Simple Method), or to the Neuse
River Basin: Model Stormwater Program for Nitrogen Control Manual (Methods 1 & 2),
or for calculating nitrogen export loading:

(a) Method 1 is intended for residential developments where lots are shown but the
actual footprint of the buildings is not shown on the plans.

(b) Method 2 is for residential, commercial, and industrial developments when the
entire footprint of the buildings, parking lots, road, and any other built-upon area is
shown.

(c) The Scheuler Simple Method may be used for new development on a case-by-
case basis as approved by the Town.

(2) The developer shall determine the need for engineered stormwater controls to meet the
loading rate targets in the Cape Fear River Basin by using the most current approved
accounting tool for nutrient loading approved by the North Carolina Environmental
Management Commission pursuant to 15A NCAC 2B .0265.

(D) Nitrogen and Phosphorus Export Standards

(1) Any activity that is required to submit a nitrogen control plan in the Neuse River Basin
must achieve a nitrogen export of less than or equal to three and six-tenths (3.6)
pounds per acre per year. Any activity that is required to submit a nitrogen and
phosphorus control plan in the Cape Fear River Basin must achieve an export rate of
less than or equal to two and two-tenths (2.2) pounds per acre per year of nitrogen and
eighty-two hundredths (0.82) pounds per acre per year of phosphorus in the Upper New
Hope and four and four-tenths (4.4) pounds per acre per year of nitrogen and seventy-
eight hundredths (0.78) pounds per acre per year in the Lower New Hope. If the
development contributes greater than three and six-tenths (3.6) pounds per acre per
year of nitrogen in the Neuse River Basin, greater than two and two-tenths (2.2) pounds
per acre per year of nitrogen and/or eighty-two hundredths (0.82) pounds per acre per
year of phosphorus in the Upper New Hope, or greater than four and four-tenths (4.4)
pounds per acre per year of nitrogen and/or seventy-eight hundredths (0.78) pounds
per acre per year of phosphorus in the Lower New Hope, then the table below explains
the options available depending whether the development is residential or non-
residential.

(2) Notwithstanding the foregoing, in the Cape Fear River Basin, redevelopment that would
replace or expand existing structures or improvements and would result in a net
increase in built-upon area shall have the option of either meeting the loading standards
identified in section 7.3.2 (D)(1) or meeting a loading rate that achieves the following
nutrient loads compared to the existing development: in the Upper New Hope
Watershed, thirty-five (35) percent reduction in nitrogen and five (5) percent reduction in
phosphorus; and in the Lower New Hope Watershed, no increase for nitrogen or
phosphorus.

(3) Development subject to this section 7.3 shall attain a maximum nitrogen loading rate
on-site of six (6) pounds per acre per year for single family, detached and duplex
Appendix C: Town of Cary Land Development Ordinance
residential development and ten (10) pounds per acre per year for other development,
including multi-family residential, commercial and industrial and shall meet any
requirements for engineered stormwater controls otherwise imposed by the LDO. An
applicant may achieve the additional reductions in nitrogen and phosphorus loading
required by this section by making offset payments to the North Carolina Ecosystem
Enhancement Program contingent upon the acceptance of payments by that program.
An applicant may propose other offset measures, including providing his or her own
offsite offset or utilizing a private seller. All offset measures permitted by this ordinance
shall meet the requirements of 15A NCAC 02B .0273 (2) through (4) and 15A NCAC
02B .0240.

TABLE 7.3 -1: NITROGEN/PHOSPHORUS EXPORT REDUCTION OPTIONS
Residential Commercial/Industrial/Institutional/Local
Government/Multifamily Residential
If the computed export is less than 6.0 lbs/ac/yr,
then the owner may either:
If the computed export is less than 10.0 lbs/ac/yr, then
the owner may either:
Install BMPs to remove enough nitrogen to bring
the development down to 3.6 lbs/ac/yr in the Neuse
River Basin. Install BMPs to bring the nitrogen
down to 2.2 lbs/ac/yr and phosphorus to 0.82
lbs/ac/yr in the Upper New Hope and the nitrogen
down to 4.4 lbs/ac/yr and the phosphorus to 0.78
lbs/ac/yr Lower New Hope in the Cape Fear River
Basin.
Install BMPs to remove enough nitrogen to bring the
development down to 3.6 lbs/ac/yr in the Neuse River
Basin. Install BMPs to bring the nitrogen down to 2.2
lbs/ac/yr and phosphorus to 0.82 lbs/ac/yr in the
Upper New Hope and the nitrogen down to 4.4
lbs/ac/yr and the phosphorus to 0.78 lbs/ac/yr Lower
New Hope in the Cape Fear River Basin.
Pay a one-time offset payment to bring the nitrogen
down to the 3.6 lbs/ac/yr in the Neuse River Basin.
Pay a one-time offset payment to bring the nitrogen
down to 2.2 lbs/ac/yr and phosphorus to 0.82
lbs/ac/yr in the Upper New Hope and the nitrogen
down to 4.4 lbs/ac/yr and the phosphorus to 0.78
lbs/ac/yr Lower New Hope in the Cape Fear River
Basin.
Pay a one-time offset payment to bring the nitrogen
down to the 3.6 lbs/ac/yr in the Neuse River Basin.
Pay a one-time offset payment to bring the nitrogen
down to 2.2 lbs/ac/yr and phosphorus to 0.82
lbs/ac/yr in the Upper New Hope and the nitrogen
down to 4.4 lbs/ac/yr and the phosphorus to 0.78
lbs/ac/yr Lower New Hope in the Cape Fear River
Basin.
Do a combination of BMPs and offset payment to
achieve a 3.6 lbs/ac/yr export in the Neuse, 2.2
lbs/ac/yr nitrogen and 0.82 lbs/ac/yr phosphorus in
the Upper New Hope and 4.4 lbs/ac/yr nitrogen and
0.78 lbs/ac/yr phosphorus in the Lower New Hope.
Do a combination of BMPs and offset payment to
achieve a 3.6 lbs/ac/yr export in the Neuse, 2.2
lbs/ac/yr nitrogen and 0.82 lbs/ac/yr phosphorus in
the Upper New Hope and 4.4 lbs/ac/yr nitrogen and
0.78 lbs/ac/yr phosphorus in the Lower New Hope.
If the computed nitrogen export is greater than 6.0
lbs/ac/yr, the owner must use on-site BMPs to bring
the development's export down to 6.0 lbs/ac/yr.
Then, the owner may use one of the three options
above to achieve the reduction between 6.0 and
3.6 lb/ac/yr in the Neuse River Basin, 2.2 lbs/ac/yr
in the Upper New Hope or 4.4 lbs/ac/yr in the
Lower New Hope of the Cape Fear River Basin.
If the computed nitrogen export is greater than 10.0
lbs/ac/yr, the owner must use on-site BMPs to bring
the development's export down to 10.0 lbs/ac/yr.
Then, the owner may use one of the three options
above to achieve the reduction between 10.0 and 3.6
lb/ac/yr in the Neuse River Basin, 2.2 lbs/ac/yr in the
Upper New Hope or 4.4 lbs/ac/yr in the Lower New
Hope of the Cape Fear River Basin.

Once it has been determined that an offset payment is forthcoming, the owner shall
furnish the Town with evidence that the payment for the reductions in nitrogen and/or
phosphorus has been made prior to the Town's issuance of a grading permit.

(4) The nitrogen and phosphorus export standards in this ordinance are supplemental to,
not replacements for, stormwater standards otherwise required by federal, state or local
Appendix C: Town of Cary Land Development Ordinance
law, including without limitation any riparian buffer requirements applicable to the
location of the development. This includes, without limitation, the riparian buffer
protection requirements of 15A NCAC 2B .0267 and .0268.

7.3.3 Peak Runoff Control

There shall be no net increase in peak stormwater run-off flow leaving a development from pre-
development conditions for the one (1)-year design storm. New developments are required to
minimize damage to subject streams caused by storm flows.

(A) Calculation of Peak Flow

Acceptable methodologies for computing pre- and post-development conditions for the one
(1)-year design storm include:

(1) The Rational Method (used when the drainage area is two hundred (200) acres or less)

(2) The Peak Discharge Method as described in USDA Technical Release Number 55
(TR-55) (drainage area is two thousand (2,000) acres or less)

(3) The Putnam Method (drainage area is greater than two thousand (2,000) acres)

(4) USGS Regression Equations, where applicable

The same method must be used for both the pre- and post-development conditions.

(B) Exceptions to Peak Flow Control

Developments with less than ten (10) percent net increase in peak flow of the one (1)-year
design storm are not required to control peak flow from the site. However, if the net increase
in peak flow from the new development is greater than ten (10) percent, the entire net
increase from pre-development one (1)-year design storm peak flow must be controlled.

(C) Downstream Impact Analysis

A Downstream Impact Analysis shall be supplied for all new proposed developments that
require site/subdivision plan approval. Site/subdivision plans which are not subject to the
stormwater management regulations are exempt from the Downstream Impact Analysis
requirements.

Each development plan shall:

(1) Calculate the pre- and post-development discharges for each discharge point from the
site.

If the post-development calculated discharge is equal to or less than a ten (10) percent
increase for the two (2), five (5) and ten (10)-year peak discharges at each discharge
point, then no further analysis is needed.

If the post-development peak discharge at any discharge point is greater than forty (40)
cubic feet per second (cfs) then further analysis is needed and shall be treated as in
Section 7.3.3(C)(2) below. In lieu of the ten (10) percent increase in off-site run-off the
engineer shall limit run-off to the extent that downstream conveyance systems can
accommodate the run-off increase without causing any property damage.

Appendix C: Town of Cary Land Development Ordinance
(2) If the post-development discharge for the two (2), five (5) and ten (10)-year discharges
at any discharge point is greater than ten (10) percent of the pre-development
discharge, then additional analysis is needed for that discharge point.

Identify the point downstream where the impacts become less than a ten (10) percent
increase.

Analyze the impacts of the increase on the stormwater conveyance system(s) (pipes,
culverts, ditches, swales, etc.) between the discharge point and the point where the
impact becomes less than ten (10) percent.

Identify negative impacts on all improvements (businesses, homes, lawns, streets,
pipes, ditches, swales, etc.) through the use of inlet and outlet control calculations and
backwater analyses for culverts, channel capacity calculations for swales and ditches.

Construct on-site detention, off-site improvements, or make a payment-in-lieu for
inadequate downstream conveyance systems to fully mitigate all impacts created by the
proposed development. Requests for payment-in-lieu must be approved by Town
Council.

Payment-in-lieu shall be based on the sealed, approved estimate of one hundred (100)
percent of the costs to construct the appropriate mitigation facility. Those costs shall
include design, land costs, construction, and a fifty (50)-year cycle of maintenance. The
chosen facility has to be a facility that is capable of obtaining all permits required by all
appropriate state and federal agencies.

(3) If on-site detention is the chosen mitigation, limit the peak discharge at all discharge
points to what would be expected from an R-40 zoning condition for the two (2), five (5)
and ten (10)-year storm events, not to exceed a ten (10) percent increase over the pre-
development conditions.

7.3.4 Allowable Best Management Practices

Neuse River buffers and Jordan Lake Buffers required by the Division of Water Resources may not
be used for compliance with nitrogen reduction requirements; however, additional fifty (50)-foot
buffers (including locally required buffers) may be used as nitrogen control BMPs. All BMPs shall
meet the standards of the most current version of the North Carolina Department of Environment
and Natural Resources Stormwater Best Management Practices Manual ("BMP Manual"). If
specifications or guidelines of the BMP Manual are more restrictive or apply a higher standard than
other laws or regulations, that fact shall not prevent application of the specifications or guidelines in
the BMP Manual. If the standards, specifications, guidelines, policies, criteria, or other information in
the BMP Manual are amended subsequent to the submittal of an application for approval pursuant
to this section 7.3 but prior to approval, the new information shall control and shall be utilized in
reviewing the application and in implementing this section 7.3 with regard to the application.
Whenever an applicant proposes to utilize a practice or practices not designed and constructed in
accordance with the criteria and specifications in the BMP Manual, the applicant shall have the
burden of demonstrating that the practice(s) will satisfy the minimum water quality and quantity
performance standards of this section 7.3. The applicant may be required to provide the
documentation, calculations, and examples necessary to determine whether such an affirmative
showing is made.

If more than one BMP is installed in series on a development, then the removal rate shall be
determined through serial rather than additive calculations. For example, if a wet detention pond
discharges through a UTB, then the removal rate shall be estimated to be forty-seven and five-
tenths (47.5) percent. The pond removes twenty-five (25) percent of the nitrogen and discharges
seventy-five (75) percent into the buffer. The buffer then removes thirty (30) percent of the nitrogen
Appendix C: Town of Cary Land Development Ordinance
discharged from the pond, which is twenty-two and five-tenths (22.5) percent. The sum of twenty-
five (25) and twenty-two and five-tenths (22.5) is forty-seven and five-tenths (47.5). The removal
rate is not twenty-five (25) percent plus thirty (30) percent.

7.3.5 Maintenance of Best Management Practices

All best management practices that are implemented to achieve nitrogen or phosphorus reduction
and flow attenuation will require complete legal documentation and a maintenance plan and must
comply with all requirements of Section 4.4.6(G), Engineered Stormwater Control Structures.

7.3.6 Illegal Discharges to the Storm Sewer System

(A) Purpose

The purpose of this ordinance is to provide for the health, safety, and general welfare of the
citizens of the Town of Cary through the regulation of non-storm water discharges to the
storm drainage system to the maximum extent practicable as required by federal and state
law. This ordinance establishes methods for controlling the introduction of pollutants into the
municipal separate storm sewer system (MS4) in order to comply with requirements of the
National Pollutant Discharge Elimination System (NPDES) permit process. The objectives of
this ordinance are:

(1) To regulate the contribution of pollutants to the MS4 by storm water discharges by any
user.

(2) To prohibit illicit connections and discharges to the MS4.

(3) To establish legal authority to carry out all inspection, surveillance, monitoring, and
enforcement procedures necessary to ensure compliance with this ordinance.

(B) Applicability

This ordinance shall apply to all water entering the storm drain system generated on any
developed and undeveloped lands unless explicitly exempted by the Town of Cary.

(C) Responsibility for Administration

The Town Manager shall administer, implement, and enforce the provisions of this ordinance.
Any powers granted or duties imposed upon the Town Manager may be delegated in writing
by the Town Manager to persons or entities acting in the beneficial interest of or in the employ
of the Town.

(D) Compatibility With Other Regulations

This ordinance is not intended to modify or repeal any other ordinance, rule, regulation, or
other provision of law. The requirements of this ordinance are in addition to the requirements
of any other ordinance, rule, regulation, or other provision of law, and where any provision of
this ordinance imposes restrictions different from those imposed by any other ordinance, rule,
regulation, or other provision of law, whichever provision is more restrictive or imposes higher
protective standards for human health or the environment shall control.

(E) Severability

The provisions of this ordinance are hereby declared to be severable. If any provision, clause,
sentence, or paragraph of this ordinance or the application thereof to any person,
establishment, or circumstances shall be held invalid, such invalidity shall not affect the other
Appendix C: Town of Cary Land Development Ordinance
provisions or application of this ordinance.

(F) Ultimate Responsibility

The standards set forth herein and promulgated pursuant to this ordinance are minimum
standards; therefore this ordinance does not intend or imply that compliance by any person
will ensure that there will be no contamination, pollution, or unauthorized discharge of
pollutants.

(G) Discharge Prohibitions

(1) Prohibition of Illegal Discharges

No person shall throw, drain, or otherwise discharge, cause, or allow others under its
control to throw, drain, or otherwise discharge into the MS4 any pollutants or waters
containing any pollutants, other than stormwater. The commencement, conduct or
continuance of any illegal discharge to the storm drain system is prohibited except as
described as follows:

(a) The following discharges are exempt from discharge prohibitions established by
this ordinance: water line flushing, landscape irrigation, diverted stream flows,
rising ground waters, uncontaminated ground water infiltration, uncontaminated
pumped ground water, discharges from potable water sources, foundation drains,
air conditioning condensation, irrigation water, springs, water from crawl space
pumps, footing drains, lawn watering, individual residential car washing, flows
from riparian habitats and wetlands, dechlorinated swimming pool discharges,
and street wash water.

(b) Discharges or flow from firefighting, and other discharges specified in writing by
the Town Manager or his/her designee as being necessary to protect public
health and safety.

(c) Discharges associated with dye testing; however, this activity requires a verbal
notification to the Town Manager or his/her designee prior to the time of the test.

(d) The prohibition shall not apply to any non-stormwater discharge permitted under
an NPDES permit, waiver, or waste discharge order issued to the discharger and
administered under the authority of the United States Environmental Protection
Agency (EPA), provided that the discharger is in full compliance with all
requirements of the permit, waiver, or order and other applicable laws and
regulations, and provided that written approval has been granted for any
discharge to the storm drain system.

(2) Prohibition of Illicit Connections

(a) The construction, use, maintenance or continued existence of illicit connections to
the storm drain system is prohibited.

(b) This prohibition expressly includes, without limitation, illicit connections made in
the past, regardless of whether the connection was permissible under law or
practices applicable or prevailing at the time of connection.

(c) A person is considered to be in violation of this ordinance if the person connects a
line conveying sewage to the MS4, or allows such a connection to continue.

Appendix C: Town of Cary Land Development Ordinance

(d) Improper connections in violation of this ordinance must be disconnected and
redirected, if necessary, to an approved onsite wastewater management system
or the sanitary sewer system upon approval of the Town Manager.

(e) Any drain or conveyance that has not been documented in plans, maps or
equivalent, and which may be connected to the storm sewer system, shall be
located by the owner or occupant of that property upon receipt of written notice of
violation from the Town Manager requiring that such locating be completed. Such
notice will specify a reasonable time period within which the location of the drain
or conveyance is to be determined, that the drain or conveyance be identified as
storm sewer, sanitary sewer or other, and that the outfall location or point of
connection to the storm sewer system, sanitary sewer system or other discharge
point be identified. Results of these investigations are to be documented and
provided to the Town Manager

(H) Watercourse Protection

Every person owning property through which a watercourse passes, or such person's lessee,
shall keep and maintain that part of the watercourse within the property free of trash, debris,
excessive vegetation, and other obstacles that would pollute, contaminate, or significantly
retard the flow of water through the watercourse. In addition, the owner or lessee shall
maintain existing privately owned structures within or adjacent to a watercourse, so that such
structures will not become a hazard to the use, function, or physical integrity of the
watercourse.

(I) Industrial or Construction Activity Discharges

(1) Submission of Notice of Intent to the Town of Cary

(a) Any person subject to an industrial or construction activity NPDES stormwater
discharge permit shall comply with all provisions of such permit. Proof of
compliance with said permit may be required in a form acceptable to the Town
Manager prior to the allowing of discharges to the MS4.

(b) The operator of a facility, including construction sites, required to have an NPDES
permit to discharge stormwater associated with industrial activity shall submit a
copy of the Notice of Intent (NOI) to the Town Manager at the same time the
operator submits the original Notice of Intent to the EPA as applicable.

(c) The copy of the Notice of Intent may be delivered to the Town Manager either in
person or by mailing it to: Notice of Intent to Discharge Stormwater Stormwater
Services Manager, 316 N. Academy Street, Cary, NC 27513.

(d) A person commits an offense if the person operates a facility that is discharging
storm water associated with industrial activity without having submitted a copy of
the Notice of Intent to do so to the Town Manager.

(J) Compliance Monitoring

(1) Right of Entry: Inspection and Sampling

The Town Manager shall be permitted to enter and inspect facilities subject to
regulation under this ordinance as often as may be necessary to determine compliance
with this ordinance.

Appendix C: Town of Cary Land Development Ordinance
(a) If a discharger has security measures in force which require proper identification
and clearance before entry into its premises, the discharger shall make the
necessary arrangements to allow access to representatives of the Town of Cary.

(b) Facility operators shall allow the Town Manager ready access to all parts of the
premises for the purposes of inspection, sampling, examination and copying of
records that must be kept under the conditions of an NPDES permit to discharge
stormwater, and the performance of any additional duties as defined by state and
federal law.

(c) The Town Manager shall have the right to set up on any permitted facility such
devices as are necessary in the opinion of the Town Manager to conduct
monitoring and/or sampling of the facility's stormwater discharge. The monitoring
and/or sampling of the facility's stormwater shall be at the facilities expense.

(d) The Town of Cary has the right to require the discharger to install monitoring
equipment as necessary. The facility's sampling and monitoring equipment shall
be maintained at all times in a safe and proper operating condition by the
discharger at its own expense. All devices used to measure stormwater flow and
quality shall be calibrated to ensure their accuracy.

(e) Any temporary or permanent obstruction to safe and easy access to the facility to
be inspected and/or sampled shall be promptly removed by the operator at the
written or oral request of the Town Manager and shall not be replaced. The costs
of clearing such access shall be borne by the operator.

(f) Unreasonable delays in allowing the Town of Cary access to a permitted facility is
a violation of a storm water discharge permit and of this ordinance. A person who
is the operator of a facility with an NPDES permit to discharge storm water
associated with industrial activity commits an offense if the person denies the
Town of Cary reasonable access to the permitted facility for the purpose of
conducting any activity authorized or required by this ordinance.

(2) Search Warrants

If the Town Manager has been refused access to any part of the premises from which
stormwater is discharged, and he/she is able to demonstrate probable cause to believe
that there may be a violation of this ordinance, or that there is a need to inspect and/or
sample as part of a routine inspection and sampling program designed to verify
compliance with this ordinance or any order issued hereunder, or to protect the overall
public health, safety, and welfare of the community, then the Town Manager may seek
issuance of a search warrant.

(K) Requirement to Prevent, Control, and Reduce Stormwater Pollutants by the Use of
Best Management Practices

The Town of Cary will adopt requirements identifying Best Management Practices (BMPs) for
any activity, operation, or facility which may cause or contribute to pollution or contamination
of stormwater, the storm drain system, or waters of the United States. The owner or operator
of such activity, operation, or facility shall provide, at their own expense, reasonable protection
from accidental discharge of prohibited materials or other wastes into the municipal storm
drain system or watercourses through the use of these structural and non-structural BMPs.
Further, any person responsible for a property or premise that is, or may be, the source of an
illicit discharge, may be required to implement, at said person's expense, additional structural
and non-structural BMPs to prevent the further discharge of pollutants to the MS4.
Compliance with all terms and conditions of a valid NPDES permit
Appendix C: Town of Cary Land Development Ordinance
authorizing the discharge of storm water associated with industrial activity, to the extent
practicable, shall be deemed in compliance with the provisions of this section. These BMPs
shall be part of a Stormwater Management Plan (SWMP) as necessary for compliance with
requirements of the NPDES permit.

(L) Notification of Spills

Notwithstanding other requirements of law, as soon as any person responsible for a facility or
operation, or responsible for emergency response for a facility or operation has information of
any known or suspected release of materials which are resulting or may result in illegal
discharges or pollutants discharging into storm water, the storm drain system, or waters of the
United States, said person shall take all necessary steps to ensure the discovery,
containment, and cleanup of such release. In the event of such a release of hazardous
materials said person shall immediately notify emergency response agencies of the
occurrence via emergency dispatch services. In the event of a release of non-hazardous
materials, said person shall notify the Town Manager in person or by phone or facsimile no
later than the next business day. Notifications in person or by phone shall be confirmed by
written notice addressed and mailed to the Town Manager within two business days of the
phone notice. If the discharge of prohibited materials emanates from a commercial or
industrial establishment, the owner or operator of such establishment shall also retain an on-
site written record of the discharge and the actions taken to prevent its recurrence. Such
records shall be retained for at least five (5) years. Failure to provide notification of a release
as provided above is a violation of this ordinance.

(M) Violations, Enforcement, and Penalties

(1) Violations

It shall be unlawful for any person to violate any provision or fail to comply with any of
the requirements of this ordinance. Any person who has violated or continues to violate
the provisions of this ordinance, may be subject to the enforcement actions outlined in
this section or may be restrained by injunction or otherwise abated in a manner
provided by law.

In the event the violation constitutes an immediate danger to public health or public
safety, the Town Manager is authorized to enter upon the subject private property,
without giving prior notice, to take any and all measures necessary to abate the violation
and/or restore the property. Town Manager is authorized to seek costs of the
abatement as outlined in Section (P).

(2) Warning Notice

When the Town Manager finds that any person has violated, or continues to violate, any
provision of this ordinance, or any order issued hereunder, the Town Manager may
serve upon that person a written Warning Notice, specifying the particular violation
believed to have occurred and requesting the discharger to immediately investigate the
matter and to seek a resolution whereby any offending discharge will cease.
Investigation and/or resolution of the matter in response to the Warning Notice in no
way relieves the alleged violator of liability for any violations occurring before or after
receipt of the Warning Notice. Nothing in this subsection shall limit the authority of the
Town of Cary to take any action, including emergency action or any other enforcement
action, without first issuing a Warning Notice.

Appendix C: Town of Cary Land Development Ordinance
(3) Notice of Violation

Whenever the Town Manager finds that a person has violated a prohibition or failed to
meet a requirement of this ordinance, the Town Manager may order compliance by
written notice of violation to the responsible person. The Notice of Violation shall
contain:

(a) The name and address of the alleged violator;

(b) The address when available or a description of the building, structure or land
upon which the violation is occurring, or has occurred;

(c) A statement specifying the nature of the violation;

(d) A description of the remedial measures necessary to restore compliance with this
ordinance and a time schedule for the completion of such remedial action;

(e) A statement of the penalty or penalties that shall or may be assessed against the
person to whom the notice of violation is directed;

(f) A statement that the determination of violation may be appealed to the
Stormwater Services Manager by filing a written notice of appeal within thirty (30)
days of service of notice of violation; and

(g) A statement specifying that, should the violator fail to restore compliance within
the established time schedule, the work will be done by a designated
governmental agency or a contractor and the expense thereof shall be charged to
the violator.

Such notice may require without limitation:

1. The performance of monitoring, analyses, and reporting;

2. The elimination of illicit connections or discharges;

3. That violating discharges, practices, or operations shall cease and desist;

4. The abatement or remediation of storm water pollution or contamination
hazards and the restoration of any affected property

5. Payment of a fine to cover administrative and remediation costs; and

6. The implementation of source control or treatment BMPs.

(4) Compensatory Action

In lieu of enforcement proceedings, penalties, and remedies authorized by this
ordinance, the Town of Cary may impose upon a violator alternative compensatory
actions, such as storm drain stenciling, attendance at compliance workshops, creek
cleanup, etc.

(5) Suspension of MS4 Access

(a) Emergency Cease and Desist Orders

When the Town Manager finds that any person has violated, or continues to
Appendix C: Town of Cary Land Development Ordinance
violate, any provision of this ordinance, or any order issued hereunder, or that the
person's past violations are likely to recur, and that the person's violation(s) has
(have) caused or contributed to an actual or threatened discharge to the MS4 or
waters of the United States which reasonably appears to present an imminent or
substantial endangerment to the health or welfare of persons or to the
environment, the Town Manager may issue an order to the violator directing it
immediately to cease and desist all such violations and directing the violator to:

1. Immediately comply with all ordinance requirements; and

2. Take such appropriate preventive action as may be needed to properly
address a continuing or threatened violation, including immediately halting
operations and/or terminating the discharge.

Any person notified of an emergency order directed to it under this
Subsection shall immediately comply and stop or eliminate its endangering
discharge. In the event of a discharger's failure to immediately comply
voluntarily with the emergency order, the Town of Cary may take such
steps as deemed necessary to prevent or minimize harm to the MS4 or
waters of the United States, and/or endangerment to persons or to the
environment, including immediate termination of a facility's water supply,
sewer connection, or other municipal utility services. The Town of Cary may
allow the person to recommence its discharge when it has demonstrated to
the satisfaction of the Town Manager that the period of endangerment has
passed, unless further termination proceedings are initiated against the
discharger under this ordinance. A person that is responsible, in whole or in
part, for any discharge presenting imminent endangerment shall submit a
detailed written statement, describing the causes of the harmful discharge
and the measures taken to prevent any future occurrence, to the Town
Manager within thirty (30) days of receipt of the emergency order. Issuance
of an emergency cease and desist order shall not be a bar against, or a
prerequisite for, taking any other action against the violator.

(a) Suspension due to Illicit Discharges in Emergency Situations

The Town Manager may, without prior notice, suspend MS4
discharge access to a person when such suspension is necessary to
stop an actual or threatened discharge which presents or may
present imminent and substantial danger to the environment, or to the
health or welfare of persons, or to the MS4 or waters of the United
States. If the violator fails to comply with a suspension order issued in
an emergency, the Town Manager may take such steps as deemed
necessary to prevent or minimize damage to the MS4 or waters of
the United States, or to minimize danger to persons.

(b) Suspension due to the Detection of Illicit Discharge

Any person discharging to the MS4 in violation of this ordinance may
have their MS4 access terminated if such termination would abate or
reduce an illicit discharge. The Town Manager will notify a violator of
the proposed termination of its MS4 access. The violator may petition
the Town Manager for a reconsideration and hearing. A person
commits an offense if the person reinstates MS4 access to premises
terminated pursuant to this Section, without the prior approval of the
Town Manager.

Appendix C: Town of Cary Land Development Ordinance
(6) Civil Penalties

In the event the alleged violator fails to take the remedial measures set forth in the
notice of violation or otherwise fails to cure the violations described therein within five
days, or such greater period as the Stormwater Services manager shall deem
appropriate, after the Stormwater Services manager has taken one or more of the
actions described above, the Stormwater Services Manager may impose a penalty not
to exceed one thousand dollars ($1000) (depending on the severity of the violation) for
each day the violation remains unremedied after receipt of the notice of violation.

(7) Criminal Prosecution

Any person that has violated or continues to violate this ordinance shall be liable to
criminal prosecution to the fullest extent of the law, and shall be subject to a criminal
penalty of one thousand dollars ($1000) per violation per day and/or imprisonment for a
period of time not to exceed thirty (30) days. Each act of violation and each day upon
which any violation shall occur shall constitute a separate offense.

(N) Appeal of Notice of Violation

Any person receiving a Notice of Violation may appeal the determination of the Town
Manager. The notice of appeal must be received within five (5) days from the date of the
Notice of Violation and must specify with particularity the grounds for the appeal. Hearing on
the appeal before the court of appropriate jurisdiction shall take place within thirty (30) days
from the date of receipt of the notice of appeal. The decision of the municipal authority or their
designee shall be final.

(O) Enforcement Measures After Appeal

If the violation has not been corrected pursuant to the requirements set forth in the Notice of
Violation, or, in the event of an appeal, within thirty (30) days of the decision of the municipal
authority upholding the decision of the Town Manager, then representatives of the Town of
Cary shall enter upon the subject private property and are authorized to take any and all
measures necessary to abate the violation and/or restore the property. It shall be unlawful for
any person, owner, agent or person in possession of any premises to refuse to allow the
government agency or designated contractor to enter upon the premises for the purposes set
forth above.

(P) Cost of Abatement of the Violation

Within thirty (30) days after abatement of the violation, the owner of the property will be
notified of the cost of abatement, including administrative costs. The property owner may file
a written protest objecting to the amount of the assessment within thirty (30) days. If the
amount due is not paid within a timely manner as determined by the decision of the municipal
authority or by the expiration of the time in which to file an appeal, the charges shall become a
special assessment against the property and shall constitute a lien on the property for the
amount of the assessment. Any person violating any of the provisions of this article shall
become liable to the Town of Cary by reason of such violation. The liability shall be paid in not
more than ten (10) equal payments. Interest at the rate of eight percent per annum shall be
assessed on the balance beginning on the first day following discovery of the violation.

(Q) Violations Deemed a Public Nuisance

In addition to the enforcement processes and penalties provided, any condition caused or
permitted to exist in violation of any of the provisions of this ordinance is a threat to public
health, safety, and welfare, and is declared and deemed a nuisance, and may be summarily
Appendix C: Town of Cary Land Development Ordinance
abated or restored at the violator's expense, and/or a civil action to abate, enjoin, or otherwise
compel the cessation of such nuisance may be taken.

(R) Remedies Not Exclusive

The remedies listed in this ordinance are not exclusive of any other remedies available under
any applicable federal, state or local law and it is within the discretion of the Stormwater
Services Manager to seek cumulative remedies. The Town of Cary may recover all attorney's
fees, court costs and other expenses associated with enforcement of this ordinance, including
sampling and monitoring expenses.

7.3.7 Town of Cary NPDES Phase II Post Construction Runoff Controls

To meet the requirements of the Town of Cary NPDES Phase II Permit any new development or
redevelopment as of July 1, 2005 not exempted pursuant to Section 7.3.2(B) must meet either the
low density or high density option requirements described below. New development or
redevelopment in the Swift Creek or Jordan Lake Watersheds must meet the requirements of
Section 4.4.6 of the LDO. For purposes of this Section 7.3.7, impervious surface area shall be
calculated pursuant to Section 4.4.6(D)(2) of the LDO and the provisions of Section 4.4.6(G) of the
LDO shall apply to all engineered stormwater control structures.

(A) Low Density Projects, having no more than two (2) dwelling units per acre or no more than
twenty-four (24) percent impervious surface area for all residential and non-residential
development, shall transport stormwater runoff by vegetated conveyances to the maximum
extent practicable.

(B) High Density Projects, having more than two (2) dwelling units per acre or more than twenty-
four (24) percent impervious surface area for all residential and non-residential development,
shall implement stormwater control measures that comply with each of the following
standards:

(1) The stormwater control measures shall control and treat the difference between the pre-
development and post-development conditions for the one (1) year twenty-four (24)
hour storm. Runoff volume drawdown shall be a minimum of twenty-four (24) hours, but
not more than one hundred twenty (120) hours.

(2) Engineered stormwater control structures shall be designed to achieve a minimum of
eighty-five (85) percent average annual removal for Total Suspended Solids (TSS).

7.3.8 Variance

To the extent any state or federal law or regulations requires the Town to establish a variance
procedure for any requirement of this section 7.3, excluding section 7.3.6, the variance procedure
established in Section 4.4.6(I) of the LDO shall be utilized. The provisions of section 7.3.6 shall not
be subject to this requirement.
(Ord. No. 05-001, 1-13-05; Ord. No. 05-015, 9-8-05; Ord. No. 06-009, adopted 4-27-06; eff. 4-27-06; Ord. No.
2007-04, 3-22-07; Ord. No. 2008-LDO-01, 9-25-08; Ord. No. 2010-LDO-01, 1-14-10; Ord. No. 2012-LDO-08,
10-11-12; Ord. No. 2013-LDO-02, 6-13-13; Ord. No. 2014-LDO-03, 8-14-14)

Appendix C: Town of Cary Land Development Ordinance
7.4 SOIL EROSION AND SEDIMENTATION CONTROL

7.4.1 Purposes

This section is adopted for the purpose of regulating land-disturbing activities in order to control
accelerated erosion and sedimentation and accordingly to prevent water pollution from
sedimentation, to prevent accelerated erosion and sedimentation of lakes and natural watercourses,
and to prevent damage to public and private property by sedimentation during and after
construction.

7.4.2 Permit and Approval Requirements

Land-disturbing activities shall be subject to the requirements and procedures set forth in Section
3.13 of this Ordinance for obtaining grading permits and the approval of erosion control plans and
required permits by the U.S. Army Corps of Engineers or other federal or state agencies
responsible for regulating development in wetlands. Any required state and/or federal permits must
be obtained prior to the issuance of a grading permit.

7.4.3 General Erosion and Sedimentation Control Standards

All persons conducting land-disturbing activities shall take all reasonable measures to protect all
public and private property from damage by such activities. Any and all state and/or federal
standards apply and must be met. In situations where state and/or federal rules conflict with the
provisions of this section, the more restrictive shall apply. All land-disturbing activities, except for
those exempted by Section 3.13.1 of this Ordinance, shall meet the following standards:

(A) Conveyance Channels

(1) Stream banks and drainageway channels downstream from any land-disturbing activity
shall be protected from increased degradation by accelerated erosion caused by
increased velocity of runoff from the land-disturbing activity. The land-disturbing activity
shall be planned and conducted such that the velocity of stormwater runoff in the
receiving watercourse at the point of discharge resulting from a ten-year storm after
development shall not exceed the greater of:

(a) The velocity as determined from Table 7.4-1 below; or

(b) The velocity in the receiving watercourse determined for the ten-year storm prior
to development.

Appendix C: Town of Cary Land Development Ordinance
TABLE 7.4-1: MAXIMUM PERMITTED VELOCITIES FOR STORMWATER DISCHARGES
Material Feet per Second Meters per Second*
Fine sand (noncolloidal) 2.5 0.8
Sandy loam (noncolloidal) 2.5 0.8
Silt loam (noncolloidal) 3.0 0.9
Ordinary firm loam 3.5 1.1
Fine gravel 5.0 1.5
Stiff clay (very colloidal) 5.0 1.5
Graded, loam to cobbles (noncolloidal) 5.0 1.5
Graded, silt to cobbles (colloidal) 5.5 1.7
Alluvial silts (noncolloidal) 3.5 1.1
Alluvial silts (colloidal) 5.0 1.5
Coarse gravel (noncolloidal) 6.0 1.8
Cobbles and shingles 5.5 1.7
Shales and hard pans 6.0 1.8
* These values are for channels with straight alignment. For sinuous channels: multiply allowable velocity
by 0.95 for slightly sinuous channels; by 0.9 for moderately sinuous channels; and by 0.8 for highly
sinuous channels.

(2) If the requirements of paragraph (1) above cannot be met, then the channel below the
discharge point shall be designed and constructed to withstand the expected velocity.
Any channel stabilization activities involving stream bank stabilization may not be
approved without the required state and/or federal permits.

(3) Alternative and innovative measures to satisfy the intent of this paragraph (A), applied
either alone or in combination, may be used if there are no objectionable secondary
consequences and the applicant can demonstrate to the Stormwater Services Manager
that such measures have the potential to keep stormwater discharge velocities from
creating an erosion problem in the receiving watercourse. Some alternative measures
include:

(a) Avoiding increases in surface runoff volume and velocity by including measures
to promote infiltration to compensate for increased runoff from areas rendered
impervious;

(b) Avoiding increases in stormwater discharge velocities by using vegetated or
roughened swales or waterways in lieu of closed drains and high-velocity paved
sections;

(c) Providing energy dissipators, which may range from simple rip-rapped sections to
complex structures, at the outlets of storm drainage facilities to reduce flow
velocities to the point of discharge; and/or

(d) If the watercourse velocity is greater than 2.0 F.P.S., improving cross-sections
and installing erosion-resistant linings.

Appendix C: Town of Cary Land Development Ordinance
(B) Slopes Left Exposed

Slopes left exposed shall be planted or otherwise provided with ground cover, devices, or
structures sufficient to restrain erosion within fifteen (15) calendar days after completion of any
phase of grading.

(C) Design Requirements

Erosion and sedimentation control measures, structures, and devices shall be planned,
designed, and constructed to provide protection from the calculated maximum peak rate of
runoff from the ten-year storm. Runoff rates shall be calculated in accordance with the Town's
Standard Specifications and Details Manual. Calculations shall be submitted with the plans
and shall be drafted and organized in a neat and readable manner.

(D) Protective Cover Required

All uncovered areas shall be provided with protective cover unless the Planning Director has
granted an extension of time, for good cause shown, upon written request of the developer or
landowner. This cover shall be installed within 15 working days (exclusive of days where
seedbed preparation is not possible due to weather as determined by the Planning Director)
or 90 calendar days following completion of any phase of grading, whichever period is shorter.
Ground cover is not required on cleared land forming the future basin of a planned reservoir.

(E) Activity Near Watercourse

All land-disturbing activities near a lake or natural watercourse shall provide erosion and
sedimentation control measures. An undisturbed buffer may be used as an
erosion/sedimentation control measure, provided that the undisturbed zone shall be of
sufficient width to confine visible siltation within the 25 percent of the undisturbed zone nearer
to the land-disturbing activity. This requirement shall not apply to land-disturbing activities for
the construction of facilities to be located on, over, or under a lake or natural watercourse.

(F) Protection During Construction

During construction, soil erosion and sedimentation control practices and devices shall be
employed that are sufficient to retain the sediment generated by the land-disturbing activity
within the boundaries of the tract during construction upon and development of said tract in
accordance with plans approved by the Town.

(G) Limits on Single-Family Lot Grading

Grading and Erosion Control Plans submitted as part of a site/subdivision plan associated
with residential development that has a gross density of three (3) units per acre or less are
limited to clearing and disturbing only the land area required to install the infrastructure to
serve the development (e.g., sewer and water lines, roads, storm water devices, greenways,
and similar infrastructure). Until a building permit is issued for a lot, each lot must remain
undisturbed, with the exception of portions of a lot impacted by the installation of
infrastructure. Exceptions to grade upon a lot prior to the issuance of a building permit may
be granted as a modification to the original plan approved by the Director of Water
Resources, if there is sufficient justification (e.g.,problematic drainage issues and/or severe
topographic issues).

(H) Limit on Grading Area for Medium Density Residential Developments

Site/subdivision plans containing residential development with a gross density not exceeding
eight (8) units per acre shall not grade more than twenty-five (25) acres per phase or section
Appendix C: Town of Cary Land Development Ordinance
of development. Each twenty-five (25) acre phase or section of development must be
stabilized and seeded meeting the requirements of this ordinance prior to grading an
additional phase or section of development. Exceptions to this requirement may be granted
as a modification to the original plan approved by the Director of Water Resources if
compliance is not practicable due to physical site constraints, such as topography, presence
of stream buffers or other natural features, or lot dimensions; or due to presence of existing
development or infrastructure.

(I) Installation of Required Landscape After Grading

See Section 7.2.3, Requirements for Perimeter Buffers and Landscape Areas, for the specific
requirements.

(J) Compliance with Town Manual

In addition to the standards set forth in this section, all soil erosion and sedimentation control
measures shall conform to the applicable minimum standards set forth in the Town's
Standard Specifications and Details Manual.
(Ord. No. 2009-LDO-01, 2-12-09; Ord. No. 2010-LDO-05, 12-16-10)

7.4.4 Basic Control Objectives for Erosion Control Plans

In addition to meeting the standards of this Section 7.4.3 above, all erosion control plans submitted
for approval under Section 3.13 of this Ordinance shall be developed and implemented in
accordance with the following objectives:

(A) Identify Especially Vulnerable Areas

On-site areas that are subject to severe erosion, and off-site areas that are especially
vulnerable to damage from erosion and/or sedimentation, shall be identified and receive
special attention.

(B) Limit Time of Exposure

All land-disturbing activities shall be planned and conducted to limit exposure to the shortest
feasible time.

(C) Limit Exposed Area

All land-disturbing activities shall be planned and conducted to minimize the size of the area
to be exposed at any one (1) time.

(D) Control Surface Water

Surface water runoff originating upgrade of exposed areas should be controlled to reduce
erosion and sediment loss during the period of exposure.

(E) Control Sedimentation

All land-disturbing activities shall be planned and conducted so as to prevent off-site
sedimentation damage.

(F) Manage Stormwater Runoff

When the increase in the velocity of stormwater runoff resulting from a land-disturbing activity
is sufficient to cause accelerated erosion of the receiving watercourse, erosion control plans
Appendix C: Town of Cary Land Development Ordinance
shall include measures to control the velocity at the point of discharge so as to minimize
accelerated erosion of the site and increased sedimentation of the stream.

7.4.5 Borrow and Waste Areas

When the person conducting the land-disturbing activity is also the person conducting the borrow or
waste disposal activity, areas from which borrow is obtained and which are not regulated by the
Mining Act of 1971 (G.S. 74-46 et seq., as amended), and waste areas for surplus materials other
than landfills regulated by the N. C. Department of Human, Environment, and Natural Resources,
Division of Solid Waste Management, shall be considered as part of the land-disturbing activity from
where the borrow material is being used or from which the waste material originated. When the
person conducting the land-disturbing activity is not the person obtaining the borrow and/or
disposing of the waste, these areas shall be considered a separate land-disturbing activity.

7.4.6 Access and Haul Roads

Temporary access and haul roads, other than public roads, constructed or used in connection with
any land-disturbing activity shall be considered a component of such activity.

7.4.7 Operations in Lakes or Natural Watercourses

Land-disturbing activities for construction in, on, over, or under a lake or natural watercourse shall
be planned and conducted so as to minimize the extent and duration of disturbance of the stream
channel or lakebed. Where relocation of a stream is an essential component of the proposed
activity, the relocation shall be planned and executed so as to minimize changes in the stream flow
characteristics, except where the developer or landowner demonstrates to the Planning Director
that significant alteration to the flow characteristics is justified.
(Ord. No. 2013-LDO-02, 6-13-13; Ord. No. 2014-LDO-03, 8-14-14)

7.5 FLOOD DAMAGE PREVENTION

7.5.1 Purpose; Enforcement

(A) The Flood Hazard Area of the Town is subject to periodic inundation that could result in loss
of life and property, hazards to public health and safety, disruption of commerce and
governmental services, damage to and disruption of public utilities, extraordinary public
expenditures for flood protection and relief, and impairment of the tax base, all of which
adversely affect the public health, safety, and general welfare. These losses and hazards are
caused by the cumulative effect of obstructions in floodplains, which increase flood heights
and velocities, and by the occupancy in flood-prone areas by uses that are vulnerable to
floods, or hazardous to other properties, because they are inadequately elevated, flood
proofed, or otherwise protected from flood damages. Therefore, the regulations set forth in
this section are designed to:

(1) Restrict or prohibit uses that are dangerous to health, safety, and property due to water
or erosion or in flood heights or velocities;

(2) Require that uses that are vulnerable to floods, including facilities that serve such uses,
be protected against flood damage at the time of initial construction;

(3) Control the alteration of natural floodplains, stream channels, and natural protective
barriers that accommodate and restrain floodwaters;

Appendix C: Town of Cary Land Development Ordinance
(4) Prevent or control filling, grading, dredging, and other development that may increase
erosion or flood damage;

(5) Prevent or regulate the construction of flood barriers that will unnaturally divert
floodwaters or that may increase flood hazards to other lands;

(6) To ensure that potential homebuyers are notified that property is in a flood-prone area.

(B) The degree of flood protection required by this section is considered reasonable for regulatory
purposes and is based on scientific and engineering considerations. Larger floods can and
will occur on rare occasions. Flood heights may be increased by manmade or natural causes.
This section does not imply that land outside the Flood Hazard Area will be free from flooding
or flood damages. Neither shall this section create liability on the part of the Town or by any
officer or employee thereof for any flood damages that result from reliance on this section or
any administrative decision lawfully made hereunder.

(C) In the interpretation and application of this section, all provisions shall be considered as
minimum requirements, shall be liberally construed in favor of the Town, and shall be deemed
neither to limit nor repeal any other powers granted to the Town under state statutes.

(D) This Section 7.5 shall be enforced by the Director of Water Resources or his designee. Any
person who fails to comply with any provision of this Section 7.5 shall be in violation of this
Ordinance.

7.5.2 Applicability

(A) Purpose

This section shall apply to all areas of flood hazard including one percent (1%) annual chance
floodplain within the jurisdiction of this Ordinance, and all development in and near such areas
shall comply with the requirements of this section. Areas of one percent (1%) annual chance
floodplain include Special Flood Hazard Areas and Future Conditions Flood Hazard Areas
identified by:

(1) The Federal Emergency Management Agency (FEMA) or produced under the
Cooperating Technical State (CTS) agreement between the State of North Carolina and
FEMA in its Flood Hazard Boundary Map (FHBM) or Flood Insurance Study (FIS) and
its accompanying flood maps such as the Flood Insurance Rate Map(s) (FIRM) and/or
the Flood Boundary Floodway Map(s) (FBFM), for Wake County dated May 2, 2006,
which, are adopted by reference and declared to be a part of this ordinance. The
Special Flood Hazard Areas also include those defined through standard engineering
analysis for private developments or by governmental agencies, but which have not yet
been incorporated in the FIRM.

(2) Residential development that contains a significant watercourse that has a contributory
drainage area of fifty (50) acres or greater shall require the applicant to provide a signed
and sealed engineered study prepared by a qualified professional that determines the
extent of flooding limits experienced by the one percent (1%) annual chance flood
event.

8 Flood Hazard Area
Appendix C: Town of Cary Land Development Ordinance
(B) Exemptions

(1) All new residential construction and substantial residential improvements proposed on a
parcel of land that has no buildable area outside the Special Flood Hazard Area or
Future Conditions Flood Hazard Area, and that was recorded prior to June 1978, shall
be exempt from the requirements for residential construction set forth in this section, but
shall be developed in strict accordance with the requirements for non-residential
construction.

(2) Residential subdivisions submitted for review prior to May 10, 2001, shall be exempted
from the requirements prohibiting the platting of lands located within Special Flood
Hazard Areas and Future Conditions Flood Hazard Areas, provided the section
complies with the requirements in place prior to May 10, 2001.

(3) Site and/or subdivision plans submitted prior to May 10, 2001, and all new residential
construction or substantial residential improvements proposed on a platted lot that is
located within the Special Flood Hazard Area or Future Flood Conditions Hazard Area,
but was not so located at the time it was platted, shall be exempt from the requirement
to obtain a special use permit for filling in the flood fringe portion of the Special Flood
Hazard Area or the Future Conditions Flood Hazard Area but shall submit a floodplain
development permit application. An engineering study must be performed to determine
whether an adverse impact will result from filling in the flood fringe portion of the Special
Flood Hazard Area or Future Conditions Flood Hazard Area and must be submitted
with the floodplain development permit application. For purposes of this Section 7.5.2,
an "adverse impact" includes, but is not limited to, a reduction of floodplain storage
greater than ten (10) percent, an increase in one hundred (100) year average channel
velocities greater than ten (10) percent, or the potential for aggravating a known existing
drainage problem as determined by the Town of Cary Floodplain Administrator. If an
adverse impact will result, the construction or improvements must meet the
requirements for new non-residential construction and substantial improvements to non-
residential construction contained in Section 7.5.3(C) and (D)(2).

7.5.3 Development Restrictions and Related Standards In and Near Special Flood Hazard Areas
and Future Conditions Flood Hazard Areas

(A) Establishment of Floodplain Development Permit

A Floodplain Development Permit shall be required in conformance with the provisions of this
ordinance prior to the commencement of any development activities within Special Flood
Hazard Areas and Future Conditions Flood Hazard Areas determined in accordance with
Section 7.5.2(A) of this ordinance.

(B) Development Restrictions

In general, no development is allowed in Special Flood Hazard Areas or Future Conditions
Flood Hazard Areas unless one or more of the following are met:

(1) A special use is approved;

(2) The property/use is exempted from this requirement; and/or

(3) The development is for roads, greenways, pedestrian crossings, park-related
equipment, or public utilities and facilities such as waste water, gas, electrical, and
water systems that are located and constructed to minimize flood damage.

Appendix C: Town of Cary Land Development Ordinance
Structures for pedestrian crossings (e.g., footbridges, etc.), playground equipment, and other
similar items may be permitted if the applicant provides certification by a professional
registered engineer, architect, or landscape architect that these encroachments will not result
in any increase in flood levels during the base flood.

(C) Development Standards

No structure or land shall hereafter be located, extended, converted, altered, or developed in
any way without full compliance with the terms of this ordinance and other applicable
regulations.

If development or encroachments are permitted, the following standards shall apply in Special
Flood Hazard Areas and Future Conditions Flood Hazard Areas.

(1) All new non-residential construction and substantial improvements to existing non-
residential construction shall be:

(a) Anchored to prevent flotation, collapse, or lateral movement of the structure; and

(b) Constructed with materials and utility equipment resistant to flood damage; and

(c) Constructed by methods and practices that minimize flood damage.

(2) All new and replacement electrical, heating, ventilation, plumbing, air conditioning
equipment, and other service facilities shall be designed and constructed to prevent
water from entering or accumulating in or on the components.

(3) All new and replacement water supply systems shall be designed to minimize or
eliminate infiltration of floodwaters into the system.

(4) New and replacement sanitary sewer systems shall be designed to minimize or
eliminate infiltration of floodwaters into the system and discharges from the system into
flood waters.

(5) On-site waste disposal systems shall be located to avoid impairment to them or
contamination from them during flooding.

(6) Nothing in this ordinance shall prevent the repair, reconstruction, or replacement of a
building or structure existing on the effective date of this ordinance and located totally or
partially within the floodway, non-encroachment area, or stream setback, provided there
is no additional encroachment below the regulatory flood protection elevation in the
floodway, non-encroachment area, or stream setback, and provided that such repair,
reconstruction, or replacement meets all of the other requirements of this ordinance.

(7) New solid waste disposal facilities and sites, hazardous waste management facilities,
salvage yards, and chemical storage facilities shall not be permitted in Special Flood
Hazard Areas or Future Conditions Flood Hazard Areas, except by variance as
specified in Section 3.20. A structure or tank for chemical or fuel storage incidental to an
allowed use or to the operation of a water treatment plant or wastewater treatment
facility may be located in a Special Flood Hazard Area or a Future Conditions Flood
Hazard Area only if the structure or tank is either elevated or floodproofed to at least the
regulatory flood protection elevation and certified according to Section 7.5.2(E)(3)(a) of
this ordinance.

Appendix C: Town of Cary Land Development Ordinance
(D) Additional Development Standards and Restrictions for Areas with Established Base
Flood Elevation Data

(1) Residential Construction

(a) New construction of or substantial improvements to any residential structure shall
be located outside Special Flood Hazard Areas and Future Conditions Flood
Hazard Areas and shall have the lowest floor, including basement, elevated no
lower than the regulatory flood protection elevation as defined. "Substantial
improvement" is defined in Chapter 12.

(b) No proposed building lot that is wholly or partly subject to flooding shall be
approved unless there is established on the final plat a line representing an actual
contour as determined by field survey at elevation of the regulatory flood
protection elevation as determined by the Federal Emergency Management
Agency (FEMA) Flood Insurance Rate Maps, or by other studies approved by the
Town. Such a line shall be known and identified on the site and/or subdivision
plan and final plat as the "Building Restriction Floodline."

(c) Placement of fill within the floodway, non-encroachment area, and/or flood fringe
is prohibited unless such activities are authorized through a Special Use Permit.

(d) Subdivisions submitted after May 10, 2001, may not plat house lots located within
Special Flood Hazard Areas or Future Conditions Flood Hazard Areas unless one
of the following exemptions are met:

1. This requirement does not apply to subdivisions within Planned
Developments provided that the master plan and/or conditions have
exempted lots from this provision.

2. The Town Council may allow these areas to be included in lots only when
all of the following conditions are met:

a. The Special Flood Hazard Area or Future Conditions Flood Hazard
Area impacts a limited section of the subdivision (i.e., less than ten
percent (10%) of the total land area of the subdivision);
9Residential Construction 2'-0" Above Base Flood Elevation
Appendix C: Town of Cary Land Development Ordinance

b. There is no other reason for the formation of a homeowner's
association to retain ownership and maintenance responsibility for the
Special Flood Hazard Area or Future Conditions Flood Hazard Area
(e.g., covenant, other common areas);

c. The Special Flood Hazard Area or Future Conditions Flood Hazard
Area is placed in a permanent maintenance easement prior to plat
recordation.

(2) Non-Residential Construction Approved within Special Flood Hazard Areas and
Future Conditions Flood Hazard Areas

(a) New construction of or substantial improvements to any commercial, industrial, or
other non-residential structure shall have the lowest floor, including basement,
elevated no lower than the regulatory flood protection elevation as defined in
Chapter 12, with attendant utilities and sanitary facilities flood-proofed.

(b) For all new construction and substantial improvements, fully enclosed areas
below the lowest floor that are subject to flooding shall be designed to
automatically equalize hydrostatic flood forces on the exterior walls by allowing for
the entry and exit of floodwaters. Designs for meeting this requirement must be
certified by a registered Professional Engineer or architect, or must meet or
exceed the following minimum criteria:

1. A minimum of two (2) openings having a total net area of not less than one
(1) square inch for every square foot of enclosed area subject to flooding
shall be provided;

2. The bottom of all openings shall be no higher than one (1) foot above
grade;

3. Openings may be equipped with screens, louvers, or other coverings or
devices, provided that they permit the automatic entry and exit of
floodwaters; and

4. A registered professional engineer or architect shall certify to the Town
Manager that the standards of this section are satisfied.

(E) Application Requirements

(1) Application for a floodplain development permit shall be made to the floodplain
administrator prior to any development activities located within Special Flood Hazard
Areas and Future Conditions Flood Hazard Areas. The following items shall be
presented to the floodplain administrator to apply for a floodplain development permit:

(a) A plot plan drawn to scale which shall include, but shall not be limited to, the
following specific details of the proposed floodplain development:

1. the nature, location, dimensions, and elevations of the area of
development/disturbance; existing and proposed structures, utility systems,
grading/pavement areas, fill materials, storage areas, drainage facilities,
and other development;

2. the boundary of the Special Flood Hazard Area or Future Conditions Flood
Hazard Area as delineated on the FIRM or other flood map as determined
Appendix C: Town of Cary Land Development Ordinance
in Section 7.5.2(A), or a statement that the entire lot is within the Special
Flood Hazard Area or Future Conditions Flood Hazard Area;

3. flood zone(s) designation of the proposed development area as determined
on the FIRM or other flood map as determined in Section 7.5.2(A);

4. the boundary of the floodway(s) or non-encroachment area(s) as
determined in Section 7.5.2(A);

5. the Base Flood Elevation (BFE) or Future Conditions Flood Elevation
where provided as set forth in Section 7.5.2(A), Section 7.5.4;

6. the old and new location of any watercourse that will be altered or relocated
as a result of proposed development;

7. certification of the plot plan by a registered land surveyor or professional
engineer.

(b) Proposed elevation, and method thereof, of all development within a Special
Flood Hazard Area or Future Conditions Flood Hazard Area including but not
limited to:

1. Elevation in relation to mean sea level of the proposed reference level
(including basement) of all structures;

2. Elevation in relation to mean sea level to which any non-residential
structure in Zone AE, A or X (Future) will be flood-proofed; and

3. Elevation in relation to mean sea level to which any proposed utility
systems will be elevated or floodproofed;

(c) If floodproofing, a Floodproofing Certificate (FEMA Form 81-65) with supporting
data and an operational plan that includes, but is not limited to, installation,
exercise, and maintenance of floodproofing measures.

(d) A Foundation Plan, drawn to scale, which shall include details of the proposed
foundation system to ensure all provisions of this ordinance are met. These
details include but are not limited to:

1. The proposed method of elevation, if applicable (i.e., fill, solid foundation
perimeter wall, solid backfilled foundation, open foundation on
columns/posts/piers/piles/shear walls);

2. Openings to facilitate equalization of hydrostatic flood forces on walls in
accordance with Section 7.5.3(D)(2)(b)1 4, when solid foundation
perimeter walls are used in Zones A, AE and X (future);

(e) Usage details of any enclosed areas below the regulatory flood protection
elevation.

(f) Plans and/or details for the protection of public utilities and facilities such as
sewer, gas, electrical, and water systems to be located and constructed to
minimize flood damage;

(g) Copies of all other Local, State and Federal permits required prior to floodplain
development permit issuance (Wetlands, Endangered Species, Erosion and
Appendix C: Town of Cary Land Development Ordinance
Sedimentation Control, Mining, etc.)

(h) Documentation for placement of Recreational Vehicles and/or Temporary
Structures, when applicable, to ensure Section 7.5.3(G)(5)(b) ordinance are met.

(i) A description of proposed watercourse alteration or relocation, when applicable,
including an engineering report on the effects of the proposed project on the
flood-carrying capacity of the watercourse and the effects to properties located
both upstream and downstream; and a map (if not shown on plot plan) showing
the location of the proposed watercourse alteration or relocation.

(2) Permit Requirements

The floodplain development permit shall include, but not be limited to:

(a) A description of the development to be permitted under the floodplain
development permit.

(b) The Special Flood Hazard Area or Future Conditions Flood Hazard Area
determination for the proposed development per available data specified in
Section 7.5.3(A).

(c) The regulatory flood protection elevation required for the reference level and all
attendant utilities.

(d) The regulatory flood protection elevation required for the protection of all public
utilities.

(e) All certification submittal requirements with timelines.

(f) A statement that no fill material or other development shall encroach into the
floodway or non-encroachment area of any watercourse, as applicable.

(g) The flood openings requirements, if in Zones A, AE or X (Future).

(3) Certification Requirements

(a) Elevation Certificates

1. An Elevation Certificate (FEMA Form 81-31) is required prior to the actual
start of any new construction. It shall be the duty of the permit holder to
submit to the floodplain administrator a certification of the elevation of the
reference level, in relation to mean sea level. The floodplain administrator
shall review the certificate data submitted. Deficiencies detected by such
review shall be corrected by the permit holder prior to the beginning of
construction. Failure to submit the certification or failure to make required
corrections shall be cause to deny a floodplain development permit.

2. An Elevation Certificate (FEMA Form 81-31) is required after the reference
level is established. Within seven (7) calendar days of establishment of the
reference level elevation, it shall be the duty of the permit holder to submit
to the floodplain administrator a certification of the elevation of the reference
level, in relation to mean sea level. Any work done within the seven (7) day
calendar period and prior to submission of the certification shall be at the
permit holder's risk. The floodplain administrator shall review the certificate
data submitted. Deficiencies detected by such review shall be corrected by
Appendix C: Town of Cary Land Development Ordinance
the permit holder immediately and prior to further work being permitted to
proceed. Failure to submit the certification or failure to make required
corrections shall be cause to issue a stop-work order for the project.

3. A final as-built Elevation Certificate (FEMA Form 81-31) is required after
construction is completed and prior to Certificate of Compliance/Occupancy
issuance. It shall be the duty of the permit holder to submit to the floodplain
administrator a certification of final as-built construction of the elevation of
the reference level and all attendant utilities. The floodplain administrator
shall review the certificate data submitted. Deficiencies detected by such
review shall be corrected by the permit holder immediately and prior to
Certificate of Compliance/Occupancy issuance. In some instances, another
certification may be required to certify corrected as-built construction.
Failure to submit the certification or failure to make required corrections
shall be cause to withhold the issuance of a Certificate of
Compliance/Occupancy.

(b) Floodproofing Certificate

If non-residential floodproofing is used to meet the regulatory flood protection
elevation requirements, a Floodproofing Certificate (FEMA Form 81-65), with
supporting data and an operational plan, is required prior to the actual start of any
new construction. It shall be the duty of the permit holder to submit to the
floodplain administrator a certification of the floodproofed design elevation of the
reference level and all attendant utilities, in relation to mean sea level.
Floodproofing certification shall be prepared by or under the direct supervision of
a professional engineer or architect and certified by same. The floodplain
administrator shall review the certificate data and plan. Deficiencies detected by
such review shall be corrected by the applicant prior to permit approval. Failure to
submit the certification or failure to make required corrections shall be cause to
deny a floodplain development permit. Failure to construct in accordance with the
certified design shall be cause to withhold the issuance of a Certificate of
Compliance/Occupancy.

(c) If a manufactured home is placed within Zone A, AE or X (Future) and the
elevation of the chassis is more than thirty-six (36) inches in height above grade,
an engineered foundation certification is required per Section 7.5.7(A), (B) and
(C).

(d) If a watercourse is to be altered or relocated, a description of the extent of
watercourse alteration or relocation; a professional engineer's certified report on
the effects of the proposed project on the flood-carrying capacity of the
watercourse and the effects to properties located both upstream and
downstream; and a map showing the location of the proposed watercourse
alteration or relocation shall all be submitted by the permit applicant prior to
issuance of a floodplain development permit.

(e) Certification Exemptions

The following structures, if located within Zone A, AE or X (Future), are exempt
from the elevation/floodproofing certification requirements specified in items (a)
and (b) of this subsection:

1. recreational Vehicles meeting requirements of Section 7.5.4(F);

2. temporary Structures meeting requirements of Section 7.5.4(F); and
Appendix C: Town of Cary Land Development Ordinance

3. accessory Structures less than one hundred fifty (150) square feet meeting
requirements of Section 7.5.3(H).

(F) Additions/Improvements

(1) Elevated Buildings

Fully enclosed area, of new construction and substantially improved structures, which is
below the lowest floor:

(a) shall not be designed or used for human habitation, but shall only be used for
parking of vehicles, building access, or limited storage of maintenance equipment
used in connection with the premises. Access to the enclosed area shall be the
minimum necessary to allow for parking of vehicles (garage door) or limited
storage of maintenance equipment (standard exterior door), or entry to the living
area (stairway or elevator). The interior portion of such enclosed area shall not be
finished or partitioned into separate rooms, except to enclose storage areas;

(b) shall be constructed entirely of flood resistant materials below the regulatory flood
protection elevation;

(c) shall include, in Zones A, AE and X (Future), flood openings to automatically
equalize hydrostatic flood forces on walls by allowing for the entry and exit of
floodwaters. To meet this requirement, the openings must either be certified by a
qualified professional or meet or exceed the following minimum design criteria;

1. a minimum of two (2) flood openings on different sides of each enclosed
area subject to flooding;

2. the total net area of all flood openings must be at least one (1) square inch
for each square foot of enclosed area subject to flooding;

3. if a building has more than one (1) enclosed area, each enclosed area must
have flood openings to allow floodwaters to automatically enter and exit;

4. the bottom of all required flood openings shall be no higher than one (1)
foot above the adjacent grade;

5. flood openings may be equipped with screens, louvers, or other coverings
or devices, provided they permit the automatic flow of floodwaters in both
directions; and

6. enclosures made of flexible skirting are not considered enclosures for
regulatory purposes, and, therefore, do not require flood openings. Masonry
or wood underpinning, regardless of structural status, is considered an
enclosure and requires flood openings as outlined above.

(G) Additions/Improvements to Existing Structures

(1) For additions and/or improvements to pre-FIRM structures located within the Special
Flood Hazard Area or Future Flood Conditions Hazard Area when the addition and/or
improvements in combination with any interior modifications to the existing structure
are:

Appendix C: Town of Cary Land Development Ordinance
(a) not a substantial improvement, the addition and/or improvements must be
designed to minimize flood damages and must not be any more non-conforming
than the existing structure.

(b) a substantial improvement, both the existing structure and the addition and/or
improvements must comply with the standards for new construction contained in
Section 7.5.3(C) and (D).

(2) Additions to post-FIRM structures located within the Special Flood Hazard Area or
Future Flood Conditions Hazard Area with no modifications to the existing structure
other than a standard door in the common wall shall require only the addition to comply
with the standards for new construction contained in Section 7.5.3(C) and (D).

(3) Additions and/or improvements to post-FIRM structures located within the Special Flood
Hazard Area or Future Flood Conditions Hazard Area when the addition and/or
improvements in combination with any interior modifications to the existing structure
are:

(a) not a substantial improvement, the addition and/or improvements only must
comply with the standards for new construction contained in Section 7.5.3(C) and
(D).

(b) a substantial improvement, both the existing structure and the addition and/or
improvements must comply with the standards for new construction contained in
Section 7.5.3(C) and (D).

(4) For either a pre-FIRM or post-FIRM structure located within the Special Flood Hazard
Area or Future Flood Conditions Hazard Area, where an independent perimeter load-
bearing wall is provided between the addition and the existing building, the addition(s)
shall be considered a separate building and only the addition must comply with the
standards for new construction contained in Section 7.5.3(C) and (D).

(5) Recreational Vehicles

Recreational vehicles shall either:

(a) be on site for fewer than one hundred and eighty (180) consecutive days and be
fully licensed and ready for highway use (a recreational vehicle is ready for
highway use if it is on its wheels or jacking system, is attached to the site only by
quick disconnect type utilities, and has no permanently attached additions); or

(b) meet all the requirements for new construction.

(6) Temporary Non-Residential Structures

Prior to the issuance of a Floodplain Development Permit for a temporary structure, the
applicant must submit to the Floodplain Administrator a plan for the removal of such
structure(s) in the event of a hurricane, flash flood or other type of flood warning
notification. The following information shall be submitted in writing to the floodplain
administrator for review and written approval;

(a) a specified time period for which the temporary use will be permitted. Time
specified may not exceed three (3) months, renewable up to one (1) year;

(b) the name, address, and phone number of the individual responsible for the
removal of the temporary structure;
Appendix C: Town of Cary Land Development Ordinance

(c) the time frame prior to the event at which a structure will be removed (i.e.,
minimum of seventy-two (72) hours before landfall of a hurricane or immediately
upon flood warning notification);

(d) a copy of the contract or other suitable instrument with the entity responsible for
physical removal of the structure; and

(e) designation, accompanied by documentation, of a location outside the Special
Flood Hazard Area or Future Conditions Flood Hazard Area, to which the
temporary structure will be moved.

(H) Accessory Structures

When accessory structures (sheds, detached garages, etc.) are to be placed within a Special
Flood Hazard Area or Future Conditions Flood Hazard Area, the following criteria shall be
met:

(1) Accessory structures shall not be used for human habitation (including working,
sleeping, living, cooking or restroom areas);

(2) Accessory structures shall not be temperature-controlled;

(3) Accessory structures shall be designed to have low flood damage potential;

(4) Accessory structures shall be constructed and placed on the building site so as to offer
the minimum resistance to the flow of floodwaters;

(5) Accessory structures shall be firmly anchored in accordance with Section 7.5.3(C)(1);

(6) All service facilities such as electrical shall be installed in accordance with Section
7.5.3(D)(2)(a);

(7) Flood openings to facilitate automatic equalization of hydrostatic flood forces shall be
provided below regulatory flood protection elevation in conformance with Section
7.5.3(D)(2)(b)1—4.

An accessory structure with a footprint less than one hundred fifty (150) square feet that
satisfies the criteria outlined above does not require an elevation or floodproofing
certificate. Elevation or floodproofing certifications are required for all other accessory
structures in accordance with Section 7.5.3(E)(3).

7.5.4 Limitations on Encroachments in Floodways and Non-Encroachment Areas

Floodways and non-encroachment areas, located within the Special Flood Hazard Area or Future
Conditions Flood Hazard Areas, are extremely hazardous areas due to the velocity of flood waters
that carry debris, potential projectiles, and the potential for erosion. Therefore, encroachments,
including fill, in floodways or non-encroachment areas are permitted only in limited circumstances
and only under the following restrictions:

(A) There shall be no encroachment, including fill, unless the applicant has received a Special
Use Permit (see Section 3.8) or the use is permitted (see Section 7.5.3(A). The applicant for a
special use involving the floodway portion of a Special Flood Hazard Area or Future
Conditions Flood Hazard Area shall provide certification by a professional registered
engineer, architect, or landscape architect that the encroachment will not result in any
increase in flood levels during the discharge of the base flood or provide a Conditional Letter
Appendix C: Town of Cary Land Development Ordinance
or Map Revision issued by the Federal Emergency Management Agency.

(B) Once paragraph (A) above is satisfied, all new construction and substantial improvements
shall comply with all applicable flood hazard reduction requirements of this section.

7.5.5 Standards for Streams without Established Base Flood Elevations

Located within Special Flood Hazard Areas are small streams where no base flood data has been
provided. The following provisions apply within such areas:

(A) No encroachments, including fill, new construction, substantial improvements, or new
development, shall be permitted within a distance of the stream bank equal to five (5) times
the width of the stream at the top of the bank or twenty (20) feet each side from the top of the
bank, whichever is greater, unless a special use is approved or the use is permitted.

LDO 7-105
New Construction near Streams
Standards for Streams without Established Base Flood
Elevations
Appendix C: Town of Cary Land Development Ordinance

(B) In cases where the streams lacking base flood data are USGS or County Soils Map streams,
then the limitations upon encroachments shall apply to the entire area within the associated
UTBs, or an area five (5) times the width of the stream at the top of the bank, whichever is
greater.

(C) If paragraph (A) above is satisfied, and base flood elevation data is available from other
sources, all new construction and substantial improvements within such areas shall comply
with all applicable flood hazard ordinance provisions of this Section and shall be elevated or
flood-proofed in accordance with elevations established under Section 7.5.2. When base
flood elevation data is not available from a federal, state, or other source, the lowest floor,
including basement, shall be elevated to or above the regulatory flood protection elevation as
defined in Chapter 12.

7.5.6 Cross Drainage Area Standards and Restrictions

For any new proposed development subject to flooding which includes, but is not limited to, those
lots along any significant watercourse, whether or not the stream or water course is enclosed with a
pipe or culvert; the applicant shall make a determination of the crest elevation of the flood expected
to be equaled or exceeded that has a one (1) percent chance of annual occurrence in accordance
with generally accepted engineering practice, which is to be submitted with the seal and signature of
a Professional Engineer to the Director of Water Resources. Any new construction of, or substantial
improvements (see Chapter 12, Definitions) to, any residential or non-residential structure shall
comply with Section 7.5.3(C).

7.5.7 Special Requirements for Manufactured Homes

(A) No manufactured home shall be placed in Special Flood Hazard Areas or Future Conditions
Flood Hazard Areas, except when located within an existing manufactured home park. In
existing manufactured home parks, all manufactured homes to be placed or substantially
improved within Zones A1-30, AH and AE, as indicated on the Flood Insurance Rate Map,
shall be elevated on a permanent foundation such that the lowest floor of the manufactured
home is no lower than the regulatory flood protection elevation as defined in Chapter 12 and
shall be securely anchored to an adequate foundation system in accordance with the most
current edition of the State of North Carolina Regulations for Manufactured Homes adopted
by the Commissioner of Insurance pursuant to G.S. 143-143.15.

(B) Manufactured homes may not be placed in the floodway.

(C) All manufactured homes within Special Flood Hazard Areas or Future Conditions Flood
Hazard Areas shall be anchored to resist flotation, collapse, or lateral movement in
accordance with the Regulations for Mobile Homes and Modular Housing adopted by the
Commissioner of Insurance pursuant to G.S. 143-15. Where the required elevation can be
met by elevating the chassis no more than thirty-six (36) inches above grade at the site, the
chassis shall be supported by reinforced piers or other foundation of equivalent strength.
When the elevation of the chassis is above thirty-six (36) inches in height an engineering
certification is required.

7.5.8 Special Requirements for Development Proposals Requiring Site and/or Subdivision Plan
Approval

For purposes of this section only, the boundaries of the Special Flood Hazard Area or Future
Conditions Flood Hazard Area for a subdivision or a discrete phase of a subdivision are established
if all of the following conditions are met:
Appendix C: Town of Cary Land Development Ordinance

(A) The subdivision is approved for construction through approval of a preliminary subdivision
plan and all other applicable permits;

(B) A substantial investment is made in constructing the subdivision.

(C) In addition to satisfying the other requirements of this Ordinance, all proposals for subdivisions
and site plans shall:

(1) Be consistent with the need to minimize flood damage;

(2) Have public utilities and facilities, such as wastewater, gas, electrical, and water
systems, located and constructed so as to minimize flood damage;

(3) Have all proposed residential structures located outside the Special Flood Hazard Area
or Future Conditions Flood Hazard Area, with the lowest floor, including basement,
elevated at least two feet above the base flood elevation;

(4) Have all proposed non-residential structures located outside of the Special Flood
Hazard Area or Future Conditions Flood Hazard Area, with the lowest floor, including
basement, located at least two (2) feet above the base flood elevation. (Note that an
approved special use may permit structures in a flood fringe - see Section 3.12.3).

(5) Have all drainage structures located within the Flood Hazard Area designed to
accommodate the one percent (1%) annual chance flood without causing increased
base flood elevations on properties other than that for which development approval is
being requested;

(6) Shall provide base flood elevation data along with the subdivision plan or site plan,
which is submitted to the Town for approval.
(Ord. No. 06-009, adopted 4-27-06; eff. 4-27-06; Ord. No. 2007-04, 3-22-07; Ord. No. 2007-21, 12-13-07; Ord.
No. 2008-LDO-01, 9-25-08; Ord. No. 2010-LDO-01, 1-14-10; Ord. No. 2013-LDO-02, 6-13-13; Ord. No. 2014-
LDO-03, 8-14-14)

Chapter 11: ENFORCEMENT

11.1 GENERAL PROVISIONS

11.1.1 Purpose

This chapter establishes procedures through which the Town seeks to ensure compliance with the
provisions of this Ordinance and obtain corrections for Ordinance violations. The provisions of this
chapter are intended to encourage, to the greatest degree possible, the voluntary correction of
violations.

11.1.2 Compliance Required

Within the Town or its ETJ, it shall be a violation of this Ordinance to erect, construct, reconstruct,
remodel, alter, demolish (in part or whole), maintain, expand, move, or use any land, building,
structure, or sign, or engage in development or subdivision of land in violation of the zoning,
subdivision, historic preservation, erosion control, sign, and other land use regulations contained in
this Ordinance.

Appendix C: Town of Cary Land Development Ordinance
11.1.3 Liability for Violations

Any person who erects, constructs, reconstructs, alters, repairs, converts, or maintains any building,
structure, or sign or part thereof in violation of this Ordinance, and any person who uses any
building, structure, or land in violation of the Ordinance, shall be subject to civil penalties and
enforcement action in accordance with this Chapter.

11.1.4 Each Day a Separate Violation

Each day that a violation continues shall constitute a separate and distinct violation or offense.
(Ord. No. 2015-LDO-003, 7-23-15)

11.2 RESPONSIBILITY FOR ENFORCEMENT AND APPEALS

11.2.1 Primary Responsibility

Except as specified elsewhere in this Ordinance, the Planning Director shall have primary
responsibility for enforcing the provisions of this Ordinance.

11.2.2 Appeals

(A) Appeals of Building Permit Issues

Any appeals of North Carolina State Building Code issues (including revocation of building
permits) must be made to the North Carolina Building Code Council.

(B) Appeals of Soil Erosion and Sedimentation Control Decisions Pursuant to Section 7.4

(1) Civil Penalties

Civil penalty assessments related to soil erosion and sedimentation control may be contested
within thirty (30) calendar days of the assessment by filing an appeal with the Zoning
Board of Adjustment in accordance with Section 3.21.

(2) Other Decisions

Other decisions rendered pursuant to Section 7.4 of this Ordinance may be appealed to the
North Carolina Sedimentation Control Commission in accordance with G.S. 113A-61.

(C) Appeal of Stop Work Orders

Appeals of stop work orders involving violation of the North Carolina State Building code shall
be made to the Commissioner of Insurance pursuant to G.S. 160A-421. Appeals of all other
stop work orders except those issued pursuant to Section 7.4 of this Ordinance shall be made
to the Zoning Board of Adjustment in accordance with Section 3.21.

(D) Appeal of Notice of Violation Civil Penalties and Fines (Except Pursuant to Section 7.4)

Appeal of a Notice of Violation issued pursuant to Section 11.6 of this Ordinance, or appeal of a civil
penalty or fine (except those issued pursuant to Section 7.4), shall be made to the Zoning
Board of Adjustment pursuant to Section 3.21 of this Ordinance. Appeals of civil penalties
must be made within thirty (30) days of receipt of the first citation issued for the violation.

Appendix C: Town of Cary Land Development Ordinance
11.2.3 Inspections

The Directors of Planning, Transportation and Facilities, Water Resources, and/or Inspections and
Permits or their designees shall have the authority, upon presentation of proper credentials, to enter
and inspect any land, building, structure, or premises to ensure compliance with this Ordinance.
(Ord. No. 04-001, 1-8-04; Ord. No. 04-007, 7-15-04; Ord. No. 05-001, 1-13-05; Ord. No. 2007-21, 12-13-07;
Ord. No. 2010-LDO-01, 1-14-10; Ord. No. 2011-LDO-04, 11-17-11; Ord. No. 2014-LDO-03, 8-14-14; Ord. No.
2015-LDO-001, 4-21-15; Ord. No. 2015-LDO-003, 7-23-15)

11.3 SPECIFIC VIOLATIONS

11.3.1 Land Disturbing Activities Inconsistent with Ordinance

It shall be a violation of this Ordinance to excavate, grade, cut, clear, or undertake any other land-
disturbing activity contrary to the provisions of this Ordinance, including, but not limited to:

(A) Failure to install or maintain protection measures; or

(B) Initiating or continuing a land-disturbing activity for which an erosion control plan is required
either in violation of the erosion control plan or by failing to obtain a valid erosion control plan.

11.3.2 Nonconformities Inconsistent with Ordinance

It shall be a violation of this Ordinance to create, expand, replace, or change any nonconformity
except in compliance with this Ordinance.

11.3.3 Increasing Intensity or Density of Use

It shall be a violation of this Ordinance to increase the intensity or density of use of any land or
structure except in compliance with this Ordinance.

11.3.4 Making Lots, Setbacks, Buffers, or Open Space Nonconforming

It shall be a violation of this Ordinance to reduce or diminish the lot area, setbacks, buffers, or
required open space to a size, proportion or amount which is smaller than required under this
Ordinance.

11.3.5 Activities Inconsistent with Conditions of Plan Approval or Permit

It shall be a violation of this Ordinance to engage in any development, use of land, construction,
remodeling, or other activity contrary to the terms and conditions of any plan approval, permit, or
other form of authorization required to engage in such an activity.

11.3.6 Failure to Remove Signs

It shall be a violation of this Ordinance to fail to remove any sign installed, created, erected, or
maintained in violation of this Ordinance, or for which the sign permit has lapsed.

11.3.7 Removal of, Damage to, Disturbance of and Pruning of Vegetation Inconsistent with
Ordinance

It shall be a violation of this Ordinance to remove, damage, disturb or prune vegetation contrary to
Appendix C: Town of Cary Land Development Ordinance
the provisions of this Ordinance, including, but not limited to the following. For the purposes of this
Section 11.3.7, "disturbance" shall be defined as any action that results in injury or harm to required
trees, shrubbery or other vegetation.

(A) Disturbance of existing grade beyond the proposed limits of grading as indicated on the
approved landscaping plan so as to disturb the root zone within the drip line of any significant
vegetation indicated for preservation;

(B) Exposure of plants to severe hydrologic changes, damaging fumes or chemicals, or
excessive temperatures, such as from fire;

(C) Cutting or wounding of plants, including severe pruning;

(D) Damaging and/or destroying the interior significant vegetation, interior specimen significant
vegetation, buffers or tree save areas that are required to be protected based upon an
approved site/subdivision plan.
(Ord. No. 2015-LDO-003, 7-23-15)

11.4 REMEDIES AND PENALTIES FOR EROSION AND SEDIMENTATION CONTROL VIOLATIONS
PURSUANT TO SECTION 7.4

The Town shall have the following remedies and enforcement powers to prevent, correct, stop, abate, or
penalize a violation of Section 7.4 of this Ordinance. The remedies provided for violations of this
Ordinance, whether civil or criminal, shall be cumulative and in addition to any other remedy provided by
law, and may be exercised in any order.

11.4.1 Deny or Withhold Permits

The Director may deny or withhold all permits, certificates, or other forms of authorization to use or
develop any land, structure, or improvements until an alleged violation and associated civil penalty
related to such property, use, or development is corrected. This provision shall apply whether or not
the current owner or applicant for the permit or other approval is responsible for the violation.

11.4.2 Revoke Permits

Any development permit, certificate, or other form of authorization required under this Ordinance
may be revoked when the Director determines that:

(1) There is a departure from the approved plans, specifications, or conditions as required under
the permit;

(2) The development permit was procured by false representation;

(3) The development permit was issued in error; or

(4) There is a violation of any provision of this Ordinance.

Written notice of revocation shall be served upon the property owner, agent, applicant, or other
person to whom the permit was issued, or such notice may be posted in a prominent location at the
place of violation. No work or construction shall proceed after service of the revocation notice.

Appendix C: Town of Cary Land Development Ordinance
11.4.3 Issue Stop Work Order

A stop work order may be issued in accordance with Section 11.5.1(D) of this Ordinance.

11.4.4 Notice of Violation Civil Penalties

Any person who knowingly or willfully violates Section 7.4 of this Ordinance, or who initiates or
continues a land-disturbing activity for which an erosion control plan is required other than in
accordance with the terms, conditions and provisions of an approved erosion control plan, is subject
to a civil penalty as provided in G.S. 113A-64, as amended, the provisions of which are incorporated
herein by reference.

(A) Process

If the Director determines that a person engaged in a land-disturbing activity has failed to
comply with Section 7.4, the Director shall serve a notice of violation upon that person. The
notice may be served by any means authorized under G.S. 1A-1, Rule 4, and shall specify a
date by which the person must come into compliance and shall inform the violator of the
actions that need to be taken to comply. Any person who fails to comply within the time
specified is subject to additional civil and criminal penalties of a continuing violation. The
Director shall notify the person who is assessed the civil penalty of the amount of the penalty
and the reason for assessing the penalty. The notice of assessment shall be served by any
means authorized under G.S. 1A-1, Rule 4 and shall direct the violator to either pay the
assessment or contest the assessment within thirty (30) days by filing an appeal with the
Zoning Board of Adjustment. An assessment that is not contested is due when the violator
is served with a notice of assessment. If a violator does not pay the penalty assessed within
thirty (30) days after it is due the town may institute a civil action to recover the amount of the
assessment. Civil penalties collected under the authority of G.S. 113A-64(a) shall be
accredited to the general fund of the Town as non-tax revenue as provided in G.S. 113A-64.

(B) Amount

The Stormwater Services Manager may assess civil penalties as provided in Table 11.4-1.
Each day of a continuing violation shall constitute a separate violation which may be
assessed from the date the notice of violation is served, except where specified as a one-
time-only penalty. In determining the amount of the penalty, the Director shall consider the
maximum penalty allowed per Table 11.4-1, as well as the following: the degree and extent of
harm caused by the violation; the cost of rectifying the damage; the amount of money the
violator saved by noncompliance; whether the violation was committed willfully; and the prior
record of the violator in complying or failing to comply with Section 7.4.

Appendix C: Town of Cary Land Development Ordinance
TABLE 11.4-1 CIVIL PENALTIES FOR VIOLATION OF SEDIMENTATION AND EROSION CONTROL REQUIREMENTS OF
SECTION 7.4
ACTION DESCRIPTION MAXIMUM PENALTY
Penalty for Willful
Violation
One-time-only civil penalty for the day a willfull violation of the
requirements of Section 7.4 is detected, based upon whether the
violation has resulted in off-site sedimentation.
$5,000
Penalty for Violation of
Stop Work Order
One-time civil penalty for violation of a stop-work order issued pursuant to
the authority contained in G.S. 113A-65.1
$5,000
Grading Without a Plan Failure to secure a valid required grading permit prior to conducting a
land disturbing activity
$5,000 per day
Failure to Protect Failure to take all reasonable measures to protect public property or
private property from damage caused by failure to retain sediment on
site.
$5,000 per day
Failure to Follow Plan Failure to conduct a land disturbing activity in accordance with the
provisions of an approved erosion and sedimentation control plan.
$2,500 per day
Failure to Install Devices Failure, when twelve thousand (12,000) sq. ft. or more is disturbed, to
install erosion and sedimentation control devices sufficient to retain the
sediment generated by the land disturbing activity within the boundaries
of the tract(s) and prevent off-site sedimentation.
$5,000 per day
Failure to Maintain
Permanent and/or
Temporary Measures
Failure to maintain adequate erosion control measures. $2,500 per day
Failure to Protect
Exposed Slopes
Failure, within fifteen (15) calendar days of completion of any phase of
grading, whichever period is shorter, to plant or otherwise provide
exposed, graded slopes or fills with ground cover, devices, or structures
sufficient to restrain erosion.
$2,500 per day
Failures to Provide
Adequate Cover
Failure on a tract where more than twelve thousand (12,000) sq. ft. is
disturbed, to plant or otherwise provide ground cover sufficient to restrain
erosion within fifteen (15) working days or sixty (60) calendar days,
whichever period is shorter, following completion of construction of
development.
$2,500 per day
Failure to Revise Plan Failure to file an acceptable, revised erosion and sedimentation control
plan within the established deadline after being notified of the need to do
so
$2,500 per day
Failure to Keep Dirt and
Mud Off Public Streets
Failure to prevent the accumulation of more than an inch of dirt or mud
on public streets, plus
$1,000 per day plus $1.00
per every six linear feet of
street cleaned by the city,
its employees, or its
contractor.
Failure to Maintain
Slopes
Failure on cut, graded, of fill slopes to maintain an angle sufficient to
prevent slump, creep or other slope failures.
$2,500 per day
Any Other Action or Failure to Act That Constitutes a Violation of This Chapter $2,500 per day

Appendix C: Town of Cary Land Development Ordinance

11.4.5 Assess Criminal Penalties

Unless otherwise specifically provided, in addition to, or in lieu of, such civil penalties or other
remedies, violations of the sedimentation requirements set forth in this Ordinance shall constitute a
misdemeanor, pursuant to G.S. 160A-175 and G.S. 14-4, as amended, punishable for each day the
violation continues by a fine the maximum amount of which exceeds fifty dollars ($50.00) and/or
incarceration for up to thirty (30) days. Furthermore, any person who knowingly or willfully violates
the soil erosion and sedimentation control provisions in Section 7.4 of this Ordinance, or who
initiates or continues a land-disturbing activity for which an erosion control plan is required other
than in accordance with the terms, conditions and provisions of an approved erosion control plan,
shall be guilty of a misdemeanor, pursuant to G.S. 113A-64(b), as amended, punishable for each
day the violation continues by a fine of up to five thousand dollars ($5,000.00) and/or by
incarceration for up to ninety (90) days.

11.4.6 Require Restoration of Disturbed Areas

The Water Resources Director may require a person who engaged in a land-disturbing activity
regulated under Section 7.4 and failed to retain sediment generated by the activity as required by
G.S. 113A-57(3) to restore the waters and lands affected by the failure so as to minimize the
detrimental effects of the resulting pollution by sedimentation. This authority is in addition to any
other civil or criminal penalty or injunctive relief authorized under this chapter or the General
Statutes.

11.4.7 Private Civil Relief

(A) Any person who is injured by a violation of the soil erosion and sedimentation control
provisions in Section 7.4 of this Ordinance, or who is injured by the initiation or continuation of
a land-disturbing activity for which an erosion control plan is required other than in accordance
with the terms, conditions and provisions of an approved erosion control plan, may bring a
civil action against the person alleged to be in violation. The action may seek:

(1) Injunctive relief;

(2) An order enforcing the regulation, order or erosion control plan which is being violated;

(3) Compensation for damages caused by the violation;

(4) Both damages and injunctive relief;

(5) Both damages and an enforcement order.

(B) If the amount of actual damages, as found by the court or jury in suits brought under this
section, is five hundred dollars ($500.00) or less, then the plaintiff shall be awarded double the
amount of actual damages. If the amount of actual damages, as found by the court or jury, is
greater than five hundred dollars ($500.00), then the plaintiff shall receive damages in the
amount so found.

(C) Civil actions brought under this section shall be brought in the Superior Court of Wake
County. In issuing a final order in such an action, the court may award litigation costs to any
party, including reasonable attorney fees and expert witness fees, whenever it determines
that such an award is appropriate. Where the plaintiff seeks a temporary restraining order or
Appendix C: Town of Cary Land Development Ordinance

preliminary injunction, the court may require the filing of a bond or other security as
determined by the court in its discretion.

(D) Nothing in this section shall restrict any right which any person or class of persons may have
under any statute or common law to seek injunctive or other relief.
(Ord. 2015-LDO-003, 7-23-15)

11.5 REMEDIES AND PENALTIES APPLICABLE TO OTHER SECTIONS OF THE LDO

The Town shall have the following remedies and enforcement powers to prevent, correct, stop, abate, or
penalize a violation of a Section of this Ordinance other than Section 7.4. The remedies provided for
violations of this Ordinance, whether civil or criminal, shall be cumulative and in addition to any other
remedy provided by law, and may be exercised in any order.

11.5.1 General Remedies and Penalties

(A) Deny or Withhold Permits

The Director may deny or withhold all permits, certificates, or other forms of authorization to use or
develop any land, structure, or improvements until an alleged violation and associated civil
penalty related to such property, use, or development is corrected. This provision shall apply
whether or not the current owner or applicant for the permit or other approval is responsible
for the violation.

(B) Revoke Permits

Any development permit, certificate, or other form of authorization required under this Ordinance
may be revoked when the Director determines that:

(1) There is a departure from the approved plans, specifications, or conditions as required
under the permit;

(2) The development permit was procured by false representation;

(3) The development permit was issued in error; or

(4) There is a violation of any provision of this Ordinance.

Written notice of revocation shall be served upon the property owner, agent, applicant, or
other person to whom the permit was issued, or such notice may be posted in a prominent
location at the place of violation. No work or construction shall proceed after service of the
revocation notice.

Appendix C: Town of Cary Land Development Ordinance
(C) Assess Civil Penalties

Except where otherwise specified, violations of this Ordinance shall subject the offender to the
following civil penalties:

1st day of violation $100
2nd day of violation $200
3rd day of violation $300
Each day thereafter that violation continues $400

Such penalties may be recovered by the Town in a civil action in the nature of debt if the offender
does not pay the penalty within the prescribed period of time after he or she has been cited for
violation. Pursuant to G.S. 160A-175(b) and G.S. 14-4, violation of this Ordinance, with the
exception of stormwater related enforcement, shall not constitute a misdemeanor or infraction.
Proceeds from civil penalties collected under this Section 11.5 shall go to the State of North
Carolina's school system.

(D) Issue Stop Work Orders

Whenever any building or structure or part thereof is being demolished, constructed, reconstructed,
altered or repaired in a hazardous manner; in substantial violation of any state building law or
this Ordinance (including violations of approved site and/or subdivision plans or permits or
failures to secure necessary approvals or permits); or in a manner that endangers life or
property, the Director, or the appropriate inspector, has the authority to issue a stop work
order for the specific part of the work that is in violation or presents the hazard. Violation of a
stop work order shall constitute a Class I misdemeanor. The following is the procedure for
issuing a stop work order.

(1) A stop work order may be issued by the Director or appropriate staff member (e.g.,
erosion control officer, site inspector, zoning compliance officer, building inspector, code
enforcement officer) for the site on which the violation has occurred.

(2) The stop work order shall be in writing directed to the person doing the work, and shall
state the specific work to be stopped, the specific reasons therefor, and the conditions
under which the work may be resumed.

(3) Notice shall be served on the person doing the work or conducting the violation activity
by personal delivery or by certified or registered mail or any of the methods for service
of process set forth in G.S. 1A-1, Rule 4 and shall be posted on the site. Notice may
also be served by registered or certified mail to the financially responsible person for the
project or upon the property owner, if they are to be held responsible for stopping work.

(4) Upon receipt of such an order on site, the person shall immediately stop that work
described in the stop work order.

(5) The Director shall monitor compliance with the stop work order and shall determine if
the conditions for resumption of the work have been met.

(6) Once conditions for resumption of the work have been met, the Director shall rescind
the stop work order.
Appendix C: Town of Cary Land Development Ordinance
11.5.2 Additional Remedies and Penalties For Certain Violations

(A) Clear Cutting of Trees

Failure to comply with the provisions of Section 3.22 shall constitute a violation of this Ordinance,
and shall subject an offending party to a series of actions, including the payment of fines,
delay in site and/or subdivision plan approval or building permit issuance, and the requirement
to double the amount of required vegetation as would typically be required during the site
and/or subdivision plan review and approval process. Table 11.5-1 below describes the
penalties for non-compliance with this section. An "X" in a particular cell indicates the
associated penalty which applies:

TABLE 11.5-1: PENALTIES FOR NON-COMPLIANCE
Type of Violation Payment of
Fines
Review of All
Subsequent Site
and/or Subdivision
Plans by Town
Council
Five Year Delay in
Approval of a
Building Permit or
Site and/or
Subdivision Plan*
Landscaping
Requirements
Doubled During
Site and/or
Subdivision Plan
Review
Property is exempt from Tree Clearing
Certificate requirements, but all or
substantially all** vegetation within
required buffers and/or vegetation
protection areas is removed
X X X
Property owner obtains a Tree Clearing
Certificate, but removes some of the
vegetation within a required buffer and/or
tree protection area
X X
Property is not exempt from Tree Clearing
Certificate requirements; but property
owner obtains no Certificate, and removes
some of the vegetation within a required
buffer and/or tree protection area
X X X
Property is not exempt from Tree Clearing
Certificate requirements; but property
owner obtains no Certificate, and removes
all or substantially all** of the vegetation
within a required buffer and/or tree
protection area
X X X X
* In determining penalties for noncompliance of tree removal, the Town Council may consider, after conducting a quasi-judicial hearing,
reducing the five (5) year delay in permit/plan approval. Consideration should be given to how much vegetation was illegally removed,
was the vegetation specimen size or greater, what was the proximity of the disturbed area to existing residential dwellings, was the
buffer willfully disturbed, etc. The Town Council may uphold the entire five (5) year delay, reduce, or remove this enforcement measure
based on the criteria mentioned above.
** "All or substantially all" shall mean 75 percent or more of the existing trees with a caliper of four inches or greater.

(B) Removal or Disturbance of or Damage to Existing Vegetation

The property owner and/or any person, including the developer, responsible for the removal
or disturbance of or damage to vegetation in any required landscape areas as prohibited in
Section 7.2.13(B) shall also be responsible for replacement of vegetation and payment of
fines as provided below.
Appendix C: Town of Cary Land Development Ordinance

(1) Replacement of Vegetation

The disturbed area shall be revegetated as provided below. For purposes of this
Section 11.5.2(B), "disturbed area" shall be defined as land that has been subjected to
the removal of trees, shrubs, or vegetative cover, or land that has been subjected to
earthmoving activities, including the addition of fill or installation of impervious surface.

(a) Replacement Planting Plan Required

Prior to replacement of damaged or removed vegetation, a replacement planting
plan shall be submitted for review and approval by the Planning Director. The
site shall be revegetated in conformance with the approved replacement planting
plan.

(b) Maintenance Plan Required

Where existing vegetation is in poor health or has died as a result of neglect or of
poor maintenance practices, a landscape maintenance plan shall be submitted
and approved in accordance with this Section 11.5.2(B)(1) in order to remedy the
violation. In cases where there is an existing landscape maintenance plan, such
plan shall be reviewed and modified as necessary to address specific issues that
may have created the violation. In addition, the responsible party shall provide
such documentation as is available (e.g. invoices, contracts, etc.) to provide proof
that the landscape maintenance plan will be implemented as approved.

(c) Baseline Replacement Standards

Where vegetation has been damaged or removed in violation of this Ordinance,
replacement vegetation shall be installed in an amount that meets or exceeds the
requirements of subsection 1) and/or 2) below. Where both individual trees and
area of disturbance can be documented for all or part of the affected area, the
calculation of required plant material may include a combination of the two (2)
calculation methods, provided that the combination used results in the maximum
amount of required plan material.

1) Individual Trees Documented

Where the caliper and quantity of damaged, removed or disturbed
vegetation can be documented, an equal amount of new vegetation ("inch
for inch") shall be installed to replace the damaged vegetation.

Appendix C: Town of Cary Land Development Ordinance
2) Area of Disturbance Documented

The following plantings shall be installed for each two thousand (2,000)
square feet of disturbed area:

TABLE 11.5-2 BASELINE REPLANTING REQUIREMENTS PER 2,000 SQ. FT. OF DISTURBED AREA
Plant Type Number Minimum Caliper Container Size Minimum Height
Trees Upperstory 2 2" -- 8'
Understory 2 2" -- 8'
Evergreen 1 6 2" -- 8'
Shrubs Evergreen 7 2" -- 18"
Deciduous 8 -- -- 18"
Groundcover Plants
(applicable only where slope is 2.5:1 or
greater)

22

--

1 gal.

--
1 Where an opaque performance standard is required, evergreen trees shall provide foliage from ground level up, and shall be
planted in staggered double rows.

(d) Adjustments to Baseline Replacement Standards

1) Intent

Natural forested areas, or certain planted areas that have reached maturity, form
a balanced system where screening may be achieved through a variety of
tree and shrub types and sizes. Trees and shrubs within such systems
naturally compete for sunlight and nutrients. While individual plants do not
typically achieve an ideal symmetrical canopy or form, the overall
performance standard of the buffer is achieved as available gaps are filled
in with plant material suitable for the specific site conditions.

In recognition of challenges encountered in recreating a buffer, streetscape,
or other landscape area that has been totally or partially removed or
damaged, the intent of this Section 11.5.2(B)(1)(d) is to allow modification,
by the Planning Director, of baseline replacement standards and other
related standards of this Ordinance where appropriate, taking into account
site-specific conditions and other factors affecting plant growth and health,
so as to achieve and maintain to the extent possible the greater of the
required performance standard of the LDO or the actual performance
standard of the buffer area prior to its unauthorized disturbance.

2) Factors for Consideration

The following factors shall be taken into account in making adjustments to
baseline replacement standards and related landscape planting
requirements to maximize the potential for the re-vegetated buffer,
streetscape or other landscape area to achieve the required performance
standard and meet the intent expressed in Section 11.5.2(B)(1)(d)(1)
above:
Appendix C: Town of Cary Land Development Ordinance

(a) type and conditions of significant vegetation remaining within the
landscape area or buffer,

(b) availability of sunlight;

(c) dimension of required planting area;

(d) separation between plants;

(e) impact of installation of new plant material on root zones of any
remaining material;

(f) topography;

(g) proximity of man-made features such as utilities, buildings, sidewalks and
retaining walls; and

(h) other unique site factors or conditions affecting plan growth and long-
term health of the buffer, streetscape or landscape area.

Such adjustment may include either reduction or increase in the minimum
number or caliper of trees or shrubs and/or the total number of caliper
inches of tree replacement otherwise required by this Ordinance.

In the case of a reduction in the number of replacement tree or shrubs, and/or the
number of caliper inches of replacement trees, fines and/or off-site
installation of plant material shall be required in accordance with Section
11.5.2(B)(2)(d). The applicant or owner must coordinate with Town staff to
design and implement a plan to plant the balance of the required vegetation
on town properties, town-maintained properties, and/or other public
property within the Town's jurisdiction.

Features such as fences and berms may be approved where appropriate to
achieve the required performance standard.

(e) Standard Replanting Requirement for Perimeter Buffers on Individual
Residential Lots

Perimeter buffers within the boundaries of individual residential lots shall be
planted and/or installed to a Type "B" buffer standard.

(2) Fines

Fines shall be imposed concurrently, and in addition to revegetation requirements of
Section 11.5.2(B)(1), as provided below:

(a) Applicability

Fines imposed by this Section shall not apply to disturbance of required landscape
areas, buffers, and/or streetscapes located on individual residential lots.

(b) Base Fine for Unauthorized Disturbance
Appendix C: Town of Cary Land Development Ordinance

A fine of two thousand dollars ($2,000) shall be imposed for any unauthorized
disturbance, excluding excessive pruning, within the boundaries of a tree
protection area.

(c) Calculated Fine Based on Area Disturbed

A fine of four dollars ($4.00) shall be imposed for every square foot of area disturbed or
from which vegetation was removed or damaged within a required landscape
area.

(d) Fine for Caliper Inches Not Replaced

Where it is determined in accordance with Section 11.5.2(B)(1)(d) that the required
number of caliper inches cannot be accommodated on the site with replacement
vegetation, then a fine shall be imposed in the amount of one hundred dollars
($100) per caliper inch that is not replaced. The applicant or owner may
coordinate with Town staff to design and implement a plan to plant the balance of
the required vegetation on town properties, town-maintained properties, and/or
other public property within the Town's jurisdiction in lieu of the fine. If the Town
determines that replanting on Town or public properties is not feasible or
desirable, then the fine shall not be abated.

(3) Civil Penalties

Civil penalties shall be imposed for failure to comply with requirements of this Section
11.5.2(B).

(C) Severe Pruning

(1) If the planning staff determines that plants have been pruned in violation of Section
7.2.13(B), then the property owner shall be required to replace the damaged plant
material in accordance with Section 11.5.2(B)(1).

(2) If the planning staff determines that the severe pruning has not compromised the
lifespan or structural integrity of the plants, then the severely pruned material shall
remain in place and supplemental plant material may be required by the planning staff
to compensate for the reduced screening.

(3) In addition, fines shall be assessed as follows:

Violation Amount of Fines
1st violation $50 per shrub; and
$50 per caliper inch for trees
Subsequent violations $1,000 base fine plus:
$100 per shrub; and
$100 per caliper inch for trees

(D) Violation of Historic Preservation Ordinance

Failure to comply with the provisions of Section 3.27 shall constitute a violation of this
Appendix C: Town of Cary Land Development Ordinance
Ordinance, and shall subject an offending party to the following:

(a) In addition to any other authorized remedies, in case any building, structure, site, area
or object designated as a historic landmark or located within a historic district is about to
be demolished, materially altered, remodeled, removed or destroyed, except in
compliance with this Ordinance, the Town or county, the Historic Preservation
Commission, or other party aggrieved by such action may institute any appropriate
action or proceedings to prevent such unlawful demolition, destruction, material
alteration, remodeling or removal, to restrain, correct or abate such violation, or to
prevent any illegal act or conduct with respect to such building, structure, site, area or
object.

(b) In addition to any other authorized remedies, in case any building, structure, site, area
or object designated as a historic landmark or located within a historic district is
demolished, materially altered, remodeled, removed or destroyed, except in compliance
with this Ordinance, no redevelopment plans may be submitted for the property for
forty-eight (48) months from the date of notice of the violation. The waiting period
required by this section may be waived in an individual case, for good cause shown, by
the affirmative vote of three-fourths (3/4) of the Town Council. The decision of the
Historic Preservation Commission may be appealed by following the procedure set forth
in Section 3.21, but the appeal shall be to the Town Council, not the Zoning Board of
Adjustment.

(c) The Town Council may consider amending or repealing an ordinance designating a
historic landmark.
(Ord. No. 2015-LDO-003, 7-23-15)

11.6 ENFORCEMENT PROCEDURES

11.6.1 Notice of Violation Procedure

Except as otherwise provided, the following notice procedure shall be used to enforce the provisions
of this Ordinance. The notice of violation and assessment procedure for violations of the soil erosion
and sedimentation control provisions in Section 7.4 of this Ordinance are set forth in Section 11.4.4.

(A) Notice Required Before Penalty

No penalty shall be assessed pursuant to this chapter unless and until the person alleged to
be in violation has been notified of the violation in accordance with this section, with the
exception of a violation of a stop work order, illegal placement of a temporary sign or violation
of the soil erosion and sedimentation control provisions in Section 7.4. In the case of stop
work orders, violations shall subject the violator to immediate imposition of a penalty. In the
case of an illegal temporary sign, the Director shall be authorized to remove such sign
immediately without notice.

(B) Notice of Violation and Opportunity to Cure

Whenever the Director has reasonable cause to believe that a person is violating any of the
provisions of this Ordinance or any plan, order, or condition which has been approved, issued,
or imposed pursuant to this Ordinance, the Director shall notify that person of the violation.

(C) Written Notice

Appendix C: Town of Cary Land Development Ordinance
Such notice of violation shall be in writing and shall be served by personal delivery or by
certified or registered mail, return receipt requested. A copy of the notice may also be sent by
regular mail. Service shall be deemed sufficient if the registered or certified mail is unclaimed
or refused, and the regular mail is not returned by the post office within ten (10) days after the
mailing.

(D) Content of Written Notice

The notice of violation shall describe the violation, shall identify the provision or provisions of
this Ordinance that are being violated, shall specify what actions must be taken to correct the
violation (including an order to stop any and all work which violates this Ordinance), shall
direct the person to correct the violation within a specified reasonable time period (beginning
on the date such notice is received), and shall warn that more severe measures (such as a
civil penalty or criminal prosecution) may be assessed or brought against the person if he or
she fails to take appropriate action to cure or correct the violation. If the violator cannot be
ascertained, then the notice of violation shall be sent to the record owner of the land on which
the violation occurs.

(E) Extension of Time to Cure

Upon receipt of a written request from the alleged violator or the property owner for an
extension of time to cure or correct the violation, the Director may grant a single extension of
time, not to exceed a period of thirty (30) days, in which the alleged violator may cure or
correct the violation before the Director issues a citation pursuant to Section 11.6.2. Such
extension of time shall not be granted unless the alleged violator or the property owner can
demonstrate to the Director that the violation cannot be cured or corrected within the time
period specified in the notice of violation because the labor or materials needed to take
appropriate action are unavailable due to circumstances beyond the control of the alleged
violator or the property owner.

(F) Corrective Action Taken

If the violation is cured or corrected within the time period specified in the notice of violation, or
extension of time granted in Section 11.6.1(E), then the Town shall take no further action
against the person.

11.6.2 Citation Procedure

Any person who, after being given a notice of violation pursuant to Section 11.6.1, does not comply
with this Ordinance within the time period set forth in the notice of violation, and who continues such
violation, or who violates a stop work order, shall be subject to the penalties and remedies set forth
in Section 11.6. The following citation procedure shall be used to enforce the provisions of this
Ordinance except that the assessment procedure for violations of Section 7.4 are set forth in
Section 11.4.3.

(A) Citation for Violation

The Director shall serve a written citation on the alleged violator by any of the methods
specified in Section 11.6.1. If the violator cannot be ascertained, then the notice of violation
shall be sent to the record owner of the land on which the violation occurs.

(B) Content of Citation

Appendix C: Town of Cary Land Development Ordinance
The citation shall again describe the nature of the violation and any actions that the alleged
violator must take to cure or correct the violation, and shall specify the amount of any civil
penalty that shall be levied against the alleged violator.

(C) Corrective Action Required

The civil penalty shall be paid and the violation shall be cured or corrected, within seventy-two
(72) hours of receipt of the citation by the alleged violator, or such other time period, not to
exceed thirty (30) days, as the citation may specify.

(D) Action for Recovery of Penalty

If payment is not made, or the violation is not cured or corrected, within that time, then the
matter shall be referred to the Town Attorney for institution of a civil action in the name of the
Town, in a court of competent jurisdiction, for recovery of the penalty. Any sums recovered in
such actions shall be used to carry out the purposes and requirements of this Ordinance.
Additionally, if any person against whom a civil penalty has been finally assessed under this
Ordinance seeks a Certificate of Occupancy; an environmental, grading or building permit; a
special use permit; or final approval of any plat, subdivision plan, site plan or erosion control
plan, such Certificate of Occupancy, permit or final approval may not be granted until such
time as the civil penalty has been paid or arrangements satisfactory to the Town have been
made providing for its payment.

11.6.3 Summary Removal of Dangerous Signs or Structures

In the case of a sign or sign structure that the Director reasonably deems to be in danger of falling or
otherwise creating an immediate safety hazard, the Director is hereby authorized to immediately
remove such sign or sign structure, at the expense of the property owner.

11.6.4 Injunctive Relief and Other Remedies

(A) This Ordinance also may be enforced by revocation of permits or by any appropriate
equitable remedy issuing from a court of competent jurisdiction. In any event where a building
or structure is erected, constructed, reconstructed, altered, repaired, converted, or
maintained, or any building, structure, or land is used in violation of the Ordinance, any
appropriate agency of the Town, or any adjacent or nearby property owner who would be
affected by such violation, in addition to other remedies, may institute an injunction action,
mandamus action, or other appropriate proceeding to prevent the completion or occupation of
such building, structure, or land and/or to stop any development or other activity that violates
this Ordinance. Such actions shall be brought in a court of competent jurisdiction.

(B) Upon determining that an alleged violation is occurring or is threatened, the court shall enter
such orders and/or judgments as are necessary to abate or prevent the violation.

(C) The institution of an action for injunctive or other relief under this section shall not relieve any
party to such proceeding from any civil or criminal penalty prescribed by this chapter for
violations of this Ordinance.

11.6.5 Private Civil Relief for Violation of Sedimentation and Erosion Control Standards

(A) Any person who is injured by a violation of the soil erosion and sedimentation control
provisions in Section 7.4 of this Ordinance, or who is injured by the initiation or continuation of
a land-disturbing activity for which an erosion control plan is required other than in accordance
Appendix C: Town of Cary Land Development Ordinance
with the terms, conditions and provisions of an approved erosion control plan, may bring a
civil action against the person alleged to be in violation. The action may seek:

(1) Injunctive relief;

(2) An order enforcing the regulation, order or erosion control plan which is being violated;

(3) Compensation for damages caused by the violation;

(4) Both damages and injunctive relief;

(5) Both damages and an enforcement order.

(B) If the amount of actual damages, as found by the court or jury in suits brought under this
section, is five hundred dollars ($500.00) or less, then the plaintiff shall be awarded double the
amount of actual damages. If the amount of actual damages, as found by the court or jury, is
greater than five hundred dollars ($500.00), then the plaintiff shall receive damages in the
amount so found.

(C) Civil actions brought under this section shall be brought in the Superior Court of Wake
County. In issuing a final order in such an action, the court may award litigation costs to any
party, including reasonable attorney fees and expert witness fees, whenever it determines
that such an award is appropriate. Where the plaintiff seeks a temporary restraining order or
preliminary injunction, the court may require the filing of a bond or other security as
determined by the court in its discretion.

(D) Nothing in this section shall restrict any right which any person or class of persons may have
under any statute or common law to seek injunctive or other relief.
(Ord. No. 06-009, 4-27-06; Ord. No. 2007-04, 3-22-07; Ord. No. 2007-21, 12-13-07; Ord. No. 2013-LDO-02,
passed 6-13-13; Ord. No. 2015-LDO-003, 7-23-15)