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Home My WebLink About18023_Zion Avenue_LURUModel_2016_12_20 NC BROWNFIELDS LAND USE RESTRICTIONS (“LUR”) UPDATE Year Certification Made:2017 Name: Zion AvenueAddress: 20030, 20036 & 20042 Zion Avenue Project #: County: 18023-14-060 Mecklenburg Property Owner (In part or whole): ____________________________ Read the following LURs and mark each restriction accordingly. Additional remarks may be added for compliance status clarification. Attach any required or supplemental documentation, sign, notarize and submit to the following address: NC Division of Waste Management Attn: Brownfields Program Staff 1646 Mail Service Center Raleigh, NC 27699-1646 LUR 1:No use may be made of the Brownfields Property other than for commercial, professional office, warehousing and distribution, retail, shopping center, restaurant, bar, brewpub, hotel, multi-unit residential use, greenway trail use, and associated parking, or other uses as approved in advance by the Department of Environmental Quality (“DEQ”). Unless compliance with this restriction is waived in writing in advance by DEQ in relation to particular buildings, no residential use shall be made of the Brownfields Property. For purposes of this restriction, the following definitions apply: a.“Commercial” refers to a business enterprise for wholesale, retail, office, entertainment or services, plus related accessory uses such as storage areas, parking areas, and service drives. b.“Professional office” refers to an establishment primarily engaged in providing services in the fields of engineering, architecture, and surveying; accounting, auditing, bookkeeping, banking, and other financial service; public relations; legal; real estate; insurance; health & fitness; and medical and dental fields. c.“Warehousing and distribution” use refers to the storage of product or merchandise for sale and distribution to retailers. d.“Retail” use refers to the sale of goods, products, or merchandise directly to the consumer. e.“Shopping center” use refers to a group of commercial establishments, planned and developed as a unit, with common parking, pedestrian movement, ingress and egress, and used for the sale of merchandise or services to the public. f.“Restaurant” refers to an establishment where meals are prepared and served to paying customers. g.“Bar” refers to an establishment where alcoholic beverages (beer, wine, or liquor) are served to paying customers. Form revised: 8-1-2016 Zion Avenue (#18023-14-060) LUR Update h.“Brewpub” refers to an establishment for the production and sale of beverages, including beer and ale, in addition to the preparation of meals served to paying customers. i.“Hotel” use refers to a building containing more than four individual rooms that provides overnight lodging and dining facilities, along with reservation, cleaning, and on-site management and reception services for paying customers. j.“Multi-unit residential” use refers to a permanent dwelling such as a condominium, apartment, group home, dormitory or boarding house where residential units are attached to each other with common walls and any property outside the dwelling structure is common to the residents and not privately owned as part of an individual dwelling unit. k.“Greenway trail” use refers to a linear open space along a natural or constructed corridor, which may be used for pedestrian or bicycle passage, and that may link areas of activity, such as parks, cultural features, or historic sites with each other and with populated areas; and l.“Parking” refers to the temporary accommodation of motor vehicles in an area designed for same. In compliance Out of compliance ☐☐ Remarks: ______________________________________________________________ LUR 2:Unless compliance with this LUR is waived in writing in advance by DEQ in relation to particular buildings, demolition of any building on the Brownfields Property shall be in accordance with applicable legal requirements, including without limitation those related to lead and asbestos abatement that are administered by the Health Hazards Control Unit within the Division of Public Health of the North Carolina Department of Health and Human Services. In compliance Out of compliance ☐☐ Remarks: ______________________________________________________________ LUR 3:Physical redevelopment of the Brownfields Property may not occur other than in accord, as determined by DEQ, with an EMP prepared for each phase of redevelopment and as approved in writing by DEQ in advance (and revised to DEQ's written satisfaction prior to each subsequent redevelopment phase) that is consistent with all the other land use restrictions and describes redevelopment activities at the Brownfields Property, the timing of redevelopment phases, and addresses health, safety and environmental issues that may arise from use of the Brownfields Property during construction or redevelopment in any other form, including without limitation: a.soil and water management issues, including without limitation those resulting from contamination identified in the Environmental Reports; Zion Avenue (#18023-14-060) LUR Update b.issues related to potential sources of contamination referenced in paragraph 7 of the Agreement attached as Exhibit A; and c.contingency plans for addressing newly discovered potential sources of environmental contamination (e.g., tanks, drums, septic drain fields). In compliance Out of compliance ☐☐ Remarks: ______________________________________________________________ LUR 4:Each January for as long as each phase of physical redevelopment of the Brownfields Property continues (except that the final deadline shall fall in January after the conclusion of physical redevelopment of each phase separately), the then owner of the Brownfields Property shall provide DEQ a report subject to written DEQ approval on environment-related activities since the last report, with a summary and drawings, that describes: a.actions taken in accordance with the plan required by LUR No. 3 above; b.soil grading and cut and fill actions; c.methodology(ies) employed for field screening, sampling and laboratory analysis of environmental media; d.stockpiling, containerizing, decontaminating, treating, handling, laboratory analysis and ultimate disposition of any soil, groundwater or other materials suspected or confirmed to be contaminated with regulated substances; and e.removal of any contaminated soil, water or other contaminated materials (for example, concrete, demolition debris) from the Brownfields Property ( copies of all legally required manifests shall be included). In compliance Out of compliance ☐☐ Remarks: ______________________________________________________________ LUR 5:No activities that encounter, expose, remove or use groundwater (for example, installation of water supply wells, fountains, ponds, lakes or swimming pools, or construction or excavation activities that encounter or expose groundwater) may occur on the Brownfields Property unless and until DEQ states in writing, in advance of the proposed activity, that said activity may occur if carried out along with any measures DEQ deems necessary to ensure the Brownfields Property will be suitable for the uses specified in LUR No. 1 above while fully protecting public health and the environment. In compliance Out of compliance ☐☐ Remarks: ______________________________________________________________ Zion Avenue (#18023-14-060) LUR Update LUR 6:No activities that use surface water at the Brownfields Property shall be permitted by the owner of the Brownfields Property unless and until DEQ states in writing, in advance of the proposed activity, that said activity may occur if carried out along with any measures DEQ deems necessary to ensure the Brownfields Property will be suitable for the uses specified in Land Use Restriction No. 1 above while fully protecting public health and the environment. This land use restriction does not prohibit the construction of properly permitted construction-related stormwater detention ponds on the Brownfields Property. In compliance Out of compliance ☐☐ Remarks: ______________________________________________________________ LUR 7:After conclusion of each of the separate redevelopment periods referenced in LUR No. 3 above, as determined by DEQ, no activity that disturbs soil on the Brownfields Property may occur unless and until DEQ states in writing, in advance of the proposed activity, that said activity may occur if carried out along with any measures DEQ deems necessary to ensure the Brownfields Property will be suitable for the uses specified in LUR No.1 above while fully protecting public health and the environment except: in connection with de minimis soil removals to depths not exceeding 24 inches; mowing and pruning of above-ground vegetation; and, for emergency repair of underground infrastructure, provided that DEQ shall be given written notice (if only by email) of any such emergency repair no later than the next business day, and that any related assessment and remedial measures required by DEQ shall be taken. In compliance Out of compliance ☐☐ Remarks: ______________________________________________________________ LUR 8:No enclosed building may be constructed on the Brownfields Property described on the plat component in Exhibit B to this Notice of Brownfields Property until: a.it is demonstrated to DEQ's written satisfaction through a site-specific risk assessment that the building is protective of the building's users, public health and the environment from risk of vapor intrusion; b.it is demonstrated, pursuant to a DEQ approved plan, and subject to DEQ's written approval, that the building would be or is sufficiently distant from the Brownfields Property's groundwater and/or soil contamination that the building's users, public health and the environment will be protected from risk from vapor intrusion related to said contamination; or c.a plan for a vapor intrusion mitigation system, approved in writing by DEQ in advance and including a proposed performance assessment for demonstration of the system's protection of the building's users, public health and the environment from risk from vapor intrusion, is implemented to the satisfaction of a North Carolina-licensed professional engineer as reflected by an implementation report, Zion Avenue (#18023-14-060) LUR Update bearing the seal of said engineer, that includes photographs and a description of the installation and performance assessment of the mitigation system. In compliance Out of compliance ☐☐ Remarks: ______________________________________________________________ LUR 9:None of the contaminants known to be present in the environmental media at the Brownfields Property, including those appearing in paragraph 7 of the Brownfields Agreement (“Agreement”) attached as Exhibit A to the Notice of Brownfields Property (“Notice”), may be used or stored at the Brownfields Property, without the prior written approval of DEQ, except: a.in de minimis amounts for cleaning and routine housekeeping activities; b.as constituents of fuels, lubricants and oils in in emergency generators, machinery, equipment and vehicles in on-board tanks integral to said equipment or in non- flammable liquid storage containers totaling no more than 25 gallons stored at locations in which releases from these storage areas would be distinguishable with certainty from the subject contaminants from any known release at the property that predates the Agreement; or c.in de minimis amounts as constituents of products and materials customarily used, stored, or sold in those environments connected with uses permitted under this Agreement, provided such products and materials are used, stored, sold and disposed of in accordance with applicable laws. In compliance Out of compliance ☐☐ Remarks: ______________________________________________________________ LUR 10:Known or future discoveries of petroleum UST release(s) at the Brownfields Property shall be addressed to the satisfaction of DEQ. In compliance Out of compliance ☐☐ Remarks: ______________________________________________________________ LUR 11:The Brownfields Property may not be used for agriculture or grazing. In compliance Out of compliance ☐☐ Remarks: ______________________________________________________________ Zion Avenue (#18023-14-060) LUR Update LUR 12:No greenway development or use may be made of any area of the Brownfields Property unless the following conditions are met: a.Greenway trail development will not take place other than within the area delineated on the plat component of the Notice attached as Exhibit B, or as approved in advance by DEQ; b.the parties responsible for the construction of the approved greenway trail on the Brownfields Property are provided a copy of the Agreement attached as Exhibit A to the Notice; c.should the area proposed for greenway trail construction along the alignment transect portions of the Brownfields Property previously used for commercial purposes, the area shall be assessed sufficiently to the anticipated depth of soil disturbance to evaluate whether soil contaminants are present, at what concentrations, and to allow for proper management of disturbed soil in accordance with the EMP required by LUR No. 3 above. d.an environmental professional for the Prospective Developer is consulted prior to the construction activities, and observes greenway construction activities that may impact known or suspected contaminated areas where the greenway trail alignment crosses the Brownfields Property; e.should visual or olfactory evidence of contaminated soil be encountered on the Brownfields Property at any time during the course of the greenway trail construction, the owner of the Brownfields Property must immediately notify the Brownfields Program, conduct sampling and chemical analysis of said soil, and perform other mitigation or remedial actions in accordance with the approved EMP required in LUR No. 3 above, to the written satisfaction of DEQ; and f.when the construction of a greenway trail alignment at the Brownfields Property is completed, a written report verifying said greenway installation, shall be submitted to DEQ no later than 30 days following installation. Any deficiencies DEQ identifies in the report or plan shall be corrected to DEQ's written satisfaction within 30 days after DEQ provides written notice of such deficiencies, by the then owner(s) of affected portions of the Brownfields Property. In compliance Out of compliance ☐☐ Remarks: ______________________________________________________________ LUR 13:The owner of any portion of the Brownfields Property where any existing, or subsequently installed, DEQ-approved monitoring well is damaged by the actions or omissions of such owner, or by its employees, contractors, tenants, or agents shall be responsible for repair of any such wells to DEQ's written satisfaction and within a time period acceptable to DEQ, unless compliance with this LUR is waived in writing by DEQ in advance. In compliance Out of compliance ☐☐ Remarks: ______________________________________________________________ Zion Avenue (#18023-14-060) LUR Update LUR 14:Neither DEQ, nor any party conducting environmental assessment or remediation at the Brownfields Property at the direction of, or pursuant to a permit, order or agreement issued or entered into by DEQ, may be denied access to the Brownfields Property for purposes of conducting such assessment or remediation, which is to be conducted using reasonable efforts to minimize interference with authorized uses of the Brownfields Property. In compliance Out of compliance ☐☐ Remarks: ______________________________________________________________ LUR 15:Any deed or other instrument conveying an interest in the Brownfields Property executed by an owner of any interest in the Brownfields Property shall contain the following notice: “The property which is the subject of this instrument is subject to the Brownfields Agreement attached as Exhibit A to the Notice of Brownfields Property recorded in the Mecklenburg County land records, Book 31047, Page 496 .” A copy of any such instrument shall be sent to the persons listed in Section XVI (Notices and Submissions), though financial figures related to the conveyance may be redacted. An owner may use the following mechanisms to comply with the obligations of this paragraph, subject to the following terms and conditions: 1) If every lease and/or rider is identical in form, the owner may provide DEQ with copies of a form lease or rider evidencing compliance with this paragraph, in lieu of sending copies of actual, executed leases, to the persons listed in Section XVI (Notice and Submissions); or 2) the owner may provide abstracts of leases, rather than full copies of said leases, to the persons listed in Section XVI. Instruments which convey leasehold interests shall remain subject to the record keeping requirements of paragraph 32 of the Agreement attached as Exhibit A. In compliance Out of compliance ☐☐ Remarks: ______________________________________________________________ LUR 16:During January of each year after the year in which the Notice is recorded, the st owner of any part of the Brownfields Property as of January 1 of that year shall submit a notarized Land Use Restrictions Update (“LURU”) to DEQ, and to the chief public health and environmental st officials of Mecklenburg County, certifying that, as of said January 1, the Notice of Brownfields Property containing these land use restrictions remains recorded at the Mecklenburg County Register of Deeds office and that the land use restrictions are being complied with, and stating: a.the name, mailing address, telephone and facsimile numbers, and contact person's email address of the owner submitting the LURU if said owner acquired any part of the Brownfields Property during the previous calendar year; ______________________________________________________________ Zion Avenue (#18023-14-060) LUR Update b.the transferee's name, mailing address, telephone and facsimile numbers, and contact person's e-mail address, if said owner transferred any part of the Brownfields Property during the previous calendar year; and ______________________________________________________________ c.whether any vapor barrier and/or mitigation systems installed pursuant to Land Use Restriction No. 8. above are performing as designed, and whether the uses of the ground floors of any buildings containing such vapor barrier and/or mitigation systems have changed, and, if so, how. ______________________________________________________________ d.An LURU submitted for rental units shall include the rent roll and enough of each lease entered into during the previous calendar year to demonstrate compliance with lessee notification requirements in LUR No. 15 and paragraphs 21 and 22 of the Agreement attached as Exhibit A. ______________________________________________________________ e.Alternatively, a property owners' association or other entity may perform the LUR No. 15 duties, on behalf of some or all owners of the Brownfields Property, if said association or entity has accepted responsibility for such performance pursuant to a notarized instrument satisfactory to DEQ that includes, at a minimum, the name, mailing address, telephone and facsimile numbers, and e-mail address of each owner on whose behalf the LURU is proposed to be submitted. In compliance Out of compliance ☐☐ Remarks: ______________________________________________________________ Notarized signing and submittal of this Land Use Restrictions Update constitutes certification that the Notice of Brownfields Property remains recorded at the Mecklenburg County Register of Deeds office and that the Land Use Restrictions are being complied with. This Land Use Restrictions Update is certified by _____________, owner of at least part of the Brownfields Property on this ___day of _________, 20__. Name typed or printed of party making certification: __________________ \[Note: additional entities or owners may be added if appropriate (i.e. multiple managing members/entities)\] By: __________________________ (signature) Name typed or printed: __________________ Title typed or printed: ___________________ NORTH CAROLINA __________ COUNTY Zion Avenue (#18023-14-060) LUR Update I certify that the following person(s) personally appeared before me this day, each acknowledging to me that he or she voluntarily signed the foregoing document for the purpose stated therein and in the capacity indicated: ______________________. Date: ____________ ___________________________________ Official Signature of Notary ____________________________________ Notary’s printed or typed name, Notary Public (Official Seal) My commission expires: _________________