NCS000424_Land Development Code_20200716

Article 6. ENVIRONMENTAL PROTECTION
6.1 Purpose and Intent
A primary and fundamental element of this Article is the protection of our existing
environmental resources including floodplains and other stream corridors, wetlands,
watersheds and groundwater recharge areas, soils, forest stands, specimen trees and other
significant vegetation and wildlife, and navigable airspace. These elements are of economic
value to the Town and make it a desirable place to live and visit.
6.2 Land Suitability
Land subject to flood hazard, improper drainage, erosion or that is for topographical or other
reasons unsuitable for residential use as determined by the Town of Fletcher, shall not be
platted or developed for residential use nor for any other uses that will continue or increase
the danger to health, safety, or property unless the hazards can be and are corrected.
A. Flood Hazard Area Development
1. The land designated within the Areas of Special Flood Hazard the subject to
periodic inundation by 100-year flood as shown on FEMA flood insurance rate
maps for the Fletcher area shall be identified on all plats. Land designated as
Special Flood Hazard Areas shall be built on only in accordance with Section
6.5.
2. No grading, clearing, removal of significant vegetation, the placement of
structures, fill, or any other encroachment activity shall occur within designated
Special Flood Hazard Areas zones which would interfere with the natural water
course without approval from the Administrator based upon certification that
such activity mitigates the potential adverse impact of flood hazard. Streets and
utility lines and structures may be placed within the flood hazard area only if
their elevation is raised above maximum flood heights or if they are otherwise
flood protected.
B. Demolition Landfill Areas
Areas that have been used for the disposal of solid waste shall not be subdivided into
commercial or residential building sites. This includes areas that have been used for the
disposal of trash, demolition waste, construction debris, stumps, and other waste
materials.
6.3 Sedimentation and Erosion Control
A. In order to prevent soil erosion and sedimentation pollution of streams, springs, flat
waterbodies or other drainage networks, and when there are plans for land disturbing
activity of one (1) acre or more, the subdivider shall show proof with the preliminary
plat of an erosion and sedimentation control plan which has been approved by the
state agency having jurisdiction in accordance with the North Carolina Administrative
Code, Title 15, as adopted by the North Carolina Sedimentation Commission, January
11, 1978, as amended.
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B. The developer shall cause all grading, excavations, open cuts, side slopes, and other
land surface disturbances to be mulched, seeded, sodded, or otherwise protected.
Temporary erosion and sedimentation control measures shall be placed in accordance
with the approved Erosion Control Plan prior to any construction.
C. Erosion and sedimentation from land disturbance activities shall be controlled with silt
fencing or any other method approved by the Administrator to prevent siltation of
adjoining parcels, lots, and streets.
6.4 Stormwater Runoff Provisions
A. Affected Property
Any disturbed ground area over 1 acre in size located in a non-residential development
or any development which exceeds 20,000 square feet of impervious area shall adhere
to the following provisions except those properties which are located adjacent to a
perennial stream where a determination has been made by the Administrator that
runoff from the site will not negatively affect downstream property.
B. Provisions
1. A 2-year and 10-year frequency storm, considered individually, shall be used in
determining the amount of storm water runoff.
2. The impoundment of storm water runoff shall be incorporated in the design of
parking lots, loading areas, engineered BMP's, ponds, and lakes, and may be
located on or off site.
In all instances engineered storm water runoff structures and devices shall be
designed to complement a development and surrounding community. If ponds
or lakes are used, such areas shall be landscaped as amenities as prescribed in
Article 8 or hidden from view.
4. The structures, devices, and methods used shall be planned, designed,
constructed, and maintained so as to provide effective protection from peak
runoff rates.
Open drainage channel requirements shall be based upon a 100-year storm and
enclosed systems shall be based upon a ten-year storm for collectors and upon a
25-year storm for street crossing conduits and immediately downstream of such
crossings. The design of storm drainage systems and plans, including
calculations, shall clearly indicate the easements and dedicated areas required for
the construction and maintenance of the drainage system.
During construction and after completion of site improvements, the peak runoff
rates shall approximate those presently existing.
The calculated difference in runoff rate from the site developed, less the site as
it is not developed shall determine the size of the retention area(s).
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All subdivision projects must comply with the North Carolina Sedimentation
Pollution Control Act and all attendant regulations.
6.5 Water Quality Protection
A. Statutory Authorization
The Town of Fletcher is authorized to adopt the requirements of this Section (Section
6.6) pursuant to North Carolina law, including but not limited to Article 14, Section 5
of the Constitution of North Carolina; North Carolina General Statutes 143-214.7 and
rules promulgated by the Environmental Management Commission thereunder;
Session Law 2004-163; Chapter 160A, �§ 174, 185.
B. Findings of Fact
It is hereby determined that:
Development and redevelopment alter the hydrologic response of local watersheds and
increase stormwater runoff rates and volumes, flooding, soil erosion, stream channel
erosion, nonpoint and point source pollution, and sediment transport and deposition,
as well as reducing groundwater recharge. These changes in stormwater runoff
contribute to increased quantities of water -borne pollutants and alterations in
hydrology that are harmful to public health and safety as well as to the natural
environment. These effects can be managed and minimized by applying proper design
and well -planned controls to manage stormwater runoff from development sites.
Further, the Federal Water Pollution Control Act of 1972 "Clean Water Act" and
Federal Phase II Stormwater Rules promulgated under it, as well as rules of the North
Carolina Environmental Management Commission promulgated in response to Federal
Phase II requirements, compel certain urbanized areas, including this jurisdiction, to
adopt minimum stormwater controls such as those included in this Section.
Therefore, the Town of Fletcher establishes this set of water quality and quantity
requirements to meet the requirements of state and federal law regarding control of
stormwater runoff and discharge.
C. Statement of Purpose
The purpose of these requirements is to protect, maintain and enhance the public
health, safety, environment and general welfare by establishing minimum requirements
and procedures to control the adverse effects of increased post -development
stormwater runoff and nonpoint and point source pollution associated with new
development and redevelopment, as well as illicit discharges into the Town of
Fletcher's municipal stormwater systems. It has been determined that proper
management of construction -related and post -development stormwater runoff will
minimize damage to public and private property and infrastructure; safeguard the
public health, safety, and general welfare; and protect water and aquatic resources.
These requirements establish storm water management requirements and controls to
prevent surface water quality degradation to the extent practicable in the streams and
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lakes within the Town Limits and Extraterritorial Jurisdiction of Fletcher. This Section
seeks to meet this purpose by fulfilling the following objectives:
1. Minimize increases in storm water runoff from new development or
redevelopment to the maximum extent practicable for the applicable design
storm in order to reduce flooding, siltation, streambank erosion, increases in
stream temperature, and to maintain the integrity of stream channels and aquatic
habitats.
2. Minimize increases in non -point and point source pollution caused by storm
water runoff from development or redevelopment that would otherwise degrade
local water quality; Minimize the total volume of surface water runoff that flows
from any specific site during and following development in order to replicate
pre -development hydrology to the maximum extent practicable through the use
of structural and nonstructural stormwater management Best Management
Practices (BMPs).
Establish minimum post -development stormwater management standards and
design criteria for the regulation and control of stormwater runoff quantity and
quality.
4. Establish design and review criteria for the construction, function, and use of
structural stormwater BMPs that may be used to meet the minimum post -
development stormwater management standards.
Ensure that structural and nonstructural stormwater BMPs are properly
maintained and pose no threat to public health or safety.
6. Establishing provisions for the long-term responsibility for and maintenance of
structural and nonstructural stormwater BMPs to ensure that they continue to
function as designed, are maintained appropriately, and pose no threat to public
safety.
Meet the requirements of the National Pollution Discharge Elimination System
(NPDES) Storm Water Permit and other requirements as established by the
Clean Water Act.
D. Applicability and Jurisdiction
1. Applicable Lands
Beginning with and subsequent to its effective date, these requirements are
applicable to all development and redevelopment located within the Town
Limits and Extraterritorial Jurisdiction of Fletcher, including, but not limited
to, site plan applications, subdivision applications, and grading applications,
unless exempt pursuant to Section 6.6.D.2, Exemptions to Applicability.
No building, structure, or land shall be used, occupied or altered, and no
building, structure, or part thereof shall be erected, constructed,
reconstructed, moved, enlarged, or structurally altered, unless in conformity
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with these requirements and all other applicable requirements, except as
otherwise provided in this Section.
Exemptions to Applicability
All development and redevelopment are subject to these requirements, except
those which, as of the effective date of Tune 30,, 2007, fit into one of the
following categories:
a. Cumulatively disturbs less than (1) one acre and is not part of a larger
common plan of development or sale.
i. Development and redevelopment that disturb less than (1) one
acre are not exempt if such activities are part of a larger common
plan of development or sale, even though multiple, separate or
distinct activities take place at different times on different
schedules.
b. Activities that are exempt from permit requirements of Section 404 of the
Federal Clean Water Act as specified in 40 CFR 232 (primarily, ongoing
farming and forestry activities) are exempt from the provisions of this
Section.
c. Have been issued a Certificate of Building Code Compliance.
d. Have a valid building permit.
e. Are included on a valid preliminary subdivision plan.
3. No Development or Redevelopment Until Compliance and Permit
No development or redevelopment shall occur except in compliance with the
requirements of this Section or unless exempted. No development for which a
permit is required pursuant to this Section shall occur except in compliance with
the provisions, conditions, and limitations of the permit.
4. Conflict of Laws
This Section is not intended to modify or repeal any other ordinance, rule,
regulation or other provision of law. The requirements of this Section are in
addition to the requirements of any other ordinance, rule, regulation or other
provision of law. Where any provision of this Section 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 or environmental health, safety, and welfare
shall control.
E. Definitions
Definitions pertaining to this Section are located in Article 18: Definitions.
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F. Administration and Procedures
The Town of Fletcher Planning and Development will administer this Section. The
Director of Planning and Development will designate a Stormwater Administrator. In
addition to the powers and duties that may be conferred, the Stormwater
Administrator shall have the following powers and duties under this Section:
1. To review and approve or disapprove applications for approval of plans
pursuant to the requirements of this Section.
2. To make determinations and render interpretations of the requirements of this
Section.
To establish application requirements and schedules for submittal and review of
applications and appeals, to review and approve applications.
4. To enforce the provisions of this Section in accordance with its enforcement
provisions.
5. To make records, maps, and official materials as relate to the adoption,
amendment, enforcement, or administration of this Section.
6. To provide expertise and technical assistance to the Town of Fletcher.
a. To carry out the technical duties outlined in this Section, the Stormwater
Administrator may contract such services to another local government or
private entity.
7. To designate appropriate other person(s) who shall carry out the powers and
duties of the Stormwater Administrator.
8. To take necessary actions to administer the provisions of this Section.
G. Standards
Design standards are established for the purpose of promoting sound development
practices with respect to minimizing water quality impacts and are not intended to
prohibit the use of innovative and alternative techniques that demonstrate the ability to
successfully achieve the objectives of this Section. Land development activities shall be
performed in such a manner as to minimize the degradation of water quality conditions
through compliance with the Standards listed below.
1. Required for all development and redevelopment which disturbs (1) one -acre
or more.
2. All storm water treatment measures shall control and treat the runofffrom
the 1-year 1-hour storm event for the Town ofFletcher (currently 1.25
inches).
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All storm water treatment measures used to meet the requirements of this
Section shall be designed to have a minimum of85% average annual removal
for Total Suspended Solids (TSS).
4. Areas designated as open space that are not, or will not be disturbed or
developed do not require storm water runoff treatment.
Where any storm water treatment measure utilizes a temporary water quality
storage pool as a part of its treatment system, the drawdown time shall be a
minimum of 48-hours and a maximum of 120-hours. The minimum draw down
orifice size shall be 2-inches or equivalent, even if this results in a drawdown
time faster than 48-hours.
6. All built -upon area shall be at a minimum of 30-feet landward of all perennial
and intermittent surface waters. A perennial or intermittent surface water shall
be deemed present if the feature is approximately shown on either the most
recent version of the soil survey map prepared by the Natural Resources
Conservation Service of the United States Department of Agriculture (USDA)
or the most recent version of the 1:24,000 scale (7.5 minute) quadrangle
topographic maps prepared by the United States Geologic Survey (USGS). An
exception to this requirement may be allowed when site -specific determination
made using NC Division of Water Quality -approved methodology.
H. Water Quality Design Manual
The Town of Fletcher shall utilize the latest edition of the North Carolina North
Carolina Department of Environment and Natural Resources (DENR) Division of
Water Quality (DWQ) Stormwater Best Management Practices Design Manual as the
Stormwater Design Manual. The manual can be viewed at:
http://h2o.enr.state.nc.us/su/Manuals Factsheets.htm
Stormwater management practices that are designed, constructed, or maintained in
accord with the Stormwater Design Manual must be presumed to comply with these
requirements. However, the Stormwater Administrator shall have the right to consult
other engineers and duly qualified professionals, and to impose any conditions or
require any modifications deemed necessary to meet the purpose, intent and
requirements of this Section.
I. Stormwater Permit, Plan Submittal and Review
1. Stormwater Permit
A stormwater permit is required for all development and redevelopment which
disturbs (1) one acre or more, unless exempt pursuant to this Section. For all
activities which are subject to this Section, no person shall initiate, proceed, or
undertake any land disturbing or development activity for which a permit is
required without first being issued a written stormwater control permit.
All other required applications must be received and permits must be obtained
prior to the start of the work. These may include but are not limited to Soil
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Erosion and Sedimentation Control, Flood Damage Prevention, Subdivision,
Building Permits and Inspections, NC Department of Transportation, NC
Division of Water Quality, US Army Corps of Engineers, and NC DENR-Dam
Safety.
A stormwater permit shall govern the design, installation, and construction of
stormwater management and control practices on the site, including structural
BMPs and elements of site design for stormwater management other than
structural BMPs.
The permit is intended to provide a mechanism for the review, approval, and
inspection of the approach to be used for the management and control of
stormwater for the development or redevelopment site consistent with the
requirements of this Section, whether the approach consists of structural BMPs
or other techniques such as low -impact or low -density design. The permit does
not continue in existence indefinitely after the completion of the project; rather,
compliance after project construction is assured by the maintenance provisions
of this Section.
2. Stormwater Permit Application
a. Content
The Stormwater Administrator shall establish requirements for the
content and form of all Stormwater Permit Applications and establish
submittal checklist.
At a minimum, the stormwater permit application shall describe in detail
how post -development stormwater runoff will be controlled and
managed, the design of all stormwater facilities and practices, and how the
proposed project will meet the requirements of this Section.
The submittal shall include all of the information required in the submittal
checklist established by the Stormwater Administrator.
b. Preparer
The stormwater permit application and plans pursuant to this Section
shall be prepared by a qualified registered North Carolina professional
engineer or landscape architect, and the engineer or landscape architect
shall perform services only in their area of competence, and shall verify
that the design of all stormwater management facilities and practices
meets the submittal requirements for complete applications, that the
designs and plans are sufficient to comply with applicable standards and
policies found in the Design Manual, and that the designs and plans
ensure compliance with the requirements of this Section.
Fees
The Stormwater Administrator shall establish permit review fees applicable to
the specific development or redevelopment. Additional permit reviews fees shall
be required for permit reviews that are contracted to another local government
or private entity.
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Schedule
The Stormwater Administrator shall establish a submission and review schedule
for applications. The schedule shall establish deadlines by which complete
applications must be submitted for the purpose of ensuring that there is
adequate time to review applications, and that the various stages in the review
process are accommodated.
Submittal
Applications shall be submitted to the Stormwater Administrator pursuant to
the application submittal schedule in the form established by the Stormwater
Administrator, along with the appropriate fee established pursuant to this sub-
section.
An application shall be considered as timely submitted only when it contains all
elements of a complete application pursuant to this Section, along with the
appropriate fee. If the Stormwater Administrator finds that an application is
incomplete, the applicant shall be notified of the deficient elements and shall be
provided with an opportunity to submit a complete application. However, the
submittal of an incomplete application shall not suffice to meet a deadline
contained in the submission schedule established above.
6. Review
The Stormwater Administrator shall review the application for completeness
and determine whether the application complies with the requirements of this
Section.
a. Approval
If the Stormwater Administrator finds that the application complies with
the requirements of this Section, the Stormwater Administrator shall
approve the application. The Stormwater Administrator may impose
conditions of approval as needed to ensure compliance with this Section.
The conditions shall be included as part of the approval.
b. Failure to Comply
If the Stormwater Administrator finds that the application fails to comply
with the requirements of this Section, the Stormwater Administrator shall
notify the applicant in writing, and shall indicate how the application fails
to comply. The applicant shall have an opportunity to submit a revised
application.
C. Revision and Subsequent Review
A complete revised application shall be reviewed by the Stormwater
Administrator after its re -submittal and shall be approved, approved with
conditions or disapproved. If a revised application is not re -submitted
within thirty (30) calendar days from the date the applicant was notified,
the application shall be considered withdrawn, and a new submittal for
the same or substantially the same project shall be required along with the
appropriate fee for a new submittal.
d. Concept Plan and Pre -submittal Meeting
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Before a Stormwater Permit Application is deemed complete, the
Stormwater Administrator or developer may request a pre -submittal
meeting on a concept plan for the post -construction stormwater
management system to be utilized in the proposed development or
redevelopment project. This pre -submittal meeting should take place at
the time of the preliminary plan of subdivision or other early step in the
development process. The purpose of this meeting is to discuss the post -
construction stormwater management measures necessary for the
proposed project, as well as to discuss and assess constraints,
opportunities and potential approaches to stormwater management
designs before formal site design engineering is commenced.
To accomplish this goal, the following information should be included in
the concept plan, which should be submitted in advance of the meeting:
i Existing conditions / proposed site plans.
ii Natural resources inventory.
iii Stormwater management system concept plan.
J. Variances
Conditions
The Town of Fletcher may impose reasonable and appropriate conditions and
safeguards upon any variance it grants. Additional fees shall be required for the
technical evaluation of variances that are contracted to another local government
or private entity.
2. Applicability
Any person may petition the Town of Fletcher for a variance granting
permission to use the person's land in a manner otherwise prohibited by this
Section. To qualify for a variance, the petitioner must show all of the following:
a. Unnecessary hardships would result from strict application of the
requirements of this Section.
b. The hardships result from conditions that are peculiar to the property,
such as the location, size, or topography of the property.
C. The hardships did not result from actions taken by the petitioner.
d. The requested variance is consistent with the spirit, purpose, and intent of
this Section; will secure public safety and welfare; and will preserve
substantial justice.
Statutory Exceptions
Notwithstanding 6.6.D.2, , Exemptions to Applicability, exceptions from the
30-foot landward location of built -upon area requirement of all perennial and
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intermittent surface waters as well as the deed restrictions and protective
covenants requirements shall be granted in any of the following instances:
a. When there is a lack of practical alternatives for a road crossing, railroad
crossing, bridge, airport facility, or utility crossing as long as it is located,
designed, constructed, and maintained to minimize disturbance, provide
maximum nutrient removal, protect against erosion and sedimentation,
have the least adverse effects on aquatic life and habitat, and protect water
quality to the maximum extent practicable through the use of BMPs.
b. When there is a lack of practical alternatives for a stormwater treatment
measures.
i These measures shall be located, designed, constructed, and
maintained to minimize disturbance, provide maximum nutrient
removal, protect against erosion and sedimentation, have the least
adverse effects on aquatic life and habitat, and protect water quality
to the maximum extent practicable.
ii The implementation of the stormwater treatment measures shall
not disturb existing vegetation.
iii Minor understory may be disturbed in order to accommodate these
measures. Trees and shrubs shall be placed to maximize screening
where the encroachment takes place.
C. When there is a lack of practical alternatives for utilities, including, but
not limited to, water, sewer, or gas construction and maintenance
corridor, as long as it is located, designed, constructed, and maintained to
minimize disturbance, provide maximum nutrient removal, protect
against erosion and sedimentation, have the least adverse effects on
aquatic life and habitat, and protect water quality to the maximum extent
practicable through the use of BMPs.
d. A lack of practical alternatives may be shown by demonstrating that,
considering the potential for a reduction in size, configuration, or density
of the proposed activity and all alternative designs, the basic project
purpose cannot be practically accomplished in a manner which would
avoid or result in less adverse impact to surface waters.
K. Operations and Maintenance Agreement
1. Private Development
Prior to the conveyance or transfer of any private lot or building site to be
served by a structural BMP pursuant to this Section, and prior to issuance of any
permit for development or redevelopment requiring a structural BMP pursuant
to this Section, the applicant or owner of the site must execute an operation and
maintenance agreement that shall be binding on all subsequent owners of the
site, portions of the site, and lots or parcels served by the structural BMP. Until
the transference of all property, sites, or lots served by the structural BMP, the
original owner or applicant shall have primary responsibility for carrying out the
provisions of the maintenance agreement.
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2. Public Development
BMPs that are constructed on public land within public rights -of -way, and/or
within public easements shall be maintained by the public body with
ownership/jurisdiction of the subject property.
3. Agreement Requirements
The operation and maintenance agreement shall require the owner or owners to
maintain, repair and, if necessary, reconstruct the structural BMP, and shall state
the terms, conditions, and schedule of maintenance for the structural BMP. In
addition, it shall grant The Town of Fletcher a right of entry in the event that the
Stormwater Administrator has reason to believe it has become necessary to
inspect, monitor, maintain, repair, or reconstruct the structural BMP; however,
in no case shall the right of entry, of itself, confer an obligation on The Town of
Fletcher to assume responsibility for the structural BMP.
The operation and maintenance agreement must be approved by the Stormwater
Administrator prior to plan approval, and it shall be referenced on the final plat
and shall be recorded with the County Register of Deeds upon final plat
approval. A copy of the recorded maintenance agreement shall be given to the
Stormwater Administrator following its recordation.
L. Construction of Stormwater Management Measures
Stormwater management facilities shall be constructed in accordance with approved
plans and maintained in proper working condition. The applicant/property owner is
responsible for ensuring that the construction of drainage structures and stormwater
management measures are completed in accordance with the approved plan and
specifications.
Inspections which may be performed by the Town of Fletcher during construction will
not relieve the developer of the responsibility to install stormwater management and
drainage facilities in accordance with the approved plan.
Revisions which affect the intent of the design or the capacity of the system shall
require prior written approval by the Stormwater Administrator.
M. As -Built and Final Plat Requirements
1. As -Built Requirements
Upon completion of a project, and before a certificate of occupancy shall be
granted, the applicant shall certify that the completed project is in accordance
with the approved stormwater management plans and designs, and shall submit
actual "as built" plans for all stormwater management measures after final
construction is completed.
The "as built" plans shall show the final design specifications for all stormwater
management facilities and practices and the field location, size, depth, and
planted vegetation of all measures, controls, and devices, as installed. The
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designer of the stormwater management measures and plans shall certify, under
seal, that the as -built stormwater measures, controls, and devices are in
compliance with the approved stormwater management plans and designs and
with the requirements of this Section. A final inspection and approval by the
Stormwater Administrator shall occur before the release of any performance
securities.
2. Final Plat Requirements
The exact boundary of all stormwater management BMPs shall be shown on
final plats prepared by a registered surveyor. These plats shall contain the
following statement: "This lot contains a stormwater management measure that
must be maintained in accordance with the recorded Operations and
Maintenance Agreement."
N. Performance Security for Installation and Maintenance
Purpose
The Town of Fletcher may, at its discretion, require the submittal of a
performance security or bond with surety, cash escrow, letter of credit or other
acceptable legal arrangement prior to issuance of a permit in order to ensure
that stormwater BMPs are installed as required by the approved stormwater
management plan, and/or are maintained by the owner as required by the
operation and maintenance agreement.
Amount
The amount of an installation performance security shall be the total estimated
construction cost of the BMPs approved under the permit, plus 50%.
The amount of a maintenance performance security shall be the present value of
an annuity of perpetual duration based on a reasonable estimate of the annual
cost of inspection, operation and maintenance of the BMPs approved under the
permit, at a discount rate that reflects the jurisdiction's cost of borrowing minus
a reasonable estimate of long-term inflation.
3. Forfeiture
The performance security shall contain forfeiture provisions for failure, after
proper notice, to complete work within the time specified, or to initiate or
maintain any actions which may be required of the applicant in accordance with
the requirements of this Section.
4. Default
Upon default of the applicant to construct, maintain, repair, and if necessary
reconstruct any stormwater device in accordance with the applicable permit, the
Stormwater Administrator shall obtain and use all or any portion of the security
to make necessary improvements based on an engineering estimate. Such
expenditure of funds shall only be made after requesting the applicant to comply
with the permit. In the event of a default triggering the use of installation of
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performance security, the Town of Fletcher shall not return any of the unused
deposited cash funds or other security, which shall be retained for maintenance.
Costs in Excess of Performance Security
If the Town of Fletcher takes action upon such failure by the applicant, the
Town may collect the difference should the amount of the reasonable cost of
such action exceed the amount of the security held. This difference will be
collected from the applicant.
6. Refund
Within sixty (60) days of the final approval, the installation performance security
shall be refunded to the applicant or terminated, except any amount attributable
to the cost (plus 50%) of landscaping installation and ongoing maintenance
associated with the BMPs covered by the security. Any such landscaping shall be
inspected one (1) year after installation with replacement for compliance with
the approved plans and specifications and, if in compliance, the portion of the
financial security attributable to landscaping shall be released.
O. Inspections
1. Function of BMP as Intended
The owner of each structural BMP installed pursuant to this Section shall
maintain and operate it so as to preserve and continue its function in controlling
stormwater quality and quantity at the degree or amount of function for which
the structural BMP was designed.
2. Right of Entry for Inspection
When any new BMP is installed on private property, the property owner shall
grant to the Stormwater Administrator the right to enter the property at
reasonable times and in a reasonable manner for the purpose of inspection.
Inspections may be conducted by the Stormwater Administrator on any
reasonable basis, including but not limited to: routine inspections; random
inspections; inspections based upon complaints or other notice of possible
violations; inspections of drainage basins or areas identified as higher than
typical sources of sediment or other contaminants or pollutants; inspections of
businesses or industries of a type associated with higher than usual dischargers
of contaminants or pollutants; inspections of discharges of a type which are
more likely than the typical discharge to cause violations of state or federal water
quality standards or the NPDES Storm Water Permit; and joint inspections with
other agencies inspecting under environmental and safety laws. Inspections may
include, but are not limited to: reviewing maintenance and repair records;
sampling discharges, surface water, groundwater, and material or water in BMPs;
evaluating the condition of BMPs and storm water management practices.
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ARTICLE 6: ENVIRONMENTAL PROTECTION
Annual Maintenance Inspections
Inspections shall be conducted as prescribed by the Operations and
Maintenance Agreement. The person responsible for maintenance of any
structural BMP installed pursuant to this Section shall submit to the Stormwater
Administrator an inspection report from one of the following persons
performing services only in their area of competence: a qualified registered
North Carolina professional engineer, landscape architect or person certified by
the North Carolina Cooperative Extension Service for stormwater treatment
practice inspection and maintenance. The inspection report shall contain all of
the following:
a. The name and address of the land owner;
b. The recorded book and page number of the lot of each structural BMP;
C. A statement that an inspection was made of all structural BMPs;
d. The date the inspection was made;
e. A statement that all inspected structural BMPs are performing properly
and are in compliance with the terms and conditions of the approved
maintenance agreement required by this ordinance; and
f. Signature and seal of a registered engineer, landscape architect or person
certified by the North Carolina Cooperative Extension Service for
stormwater treatment practice inspection and maintenance.
All inspection reports shall be on forms supplied by the Stormwater
Administrator. An original inspection report shall be provided to the Stormwater
Administrator beginning one year from the date of as -built certification and each
year thereafter on or before the date of the as -built certification.
P. Enforcement and Violations
Authority to Enforce
The requirements of this Section shall be enforced by the Stormwater
Administrator, his or her designee, or any authorized agent of the Town of
Fletcher.
2. Civil Penalties
Civil penalties may be imposed as follows:
a. Any person who violates any of the requirements of this Section, or rules
or orders adopted or issued pursuant to this Section, or who initiates or
continues a development for which a stormwater plan is required, except
in accordance with the terms, conditions and provisions of an approved
plan, is subject to a civil penalty. The maximum civil penalty for a
violation of this Section is $5,000 per day. Each day of a continuing
violation shall constitute a separate violation. Additional fees may be
charged for remedies and enforcement of this Section.
b. No penalty shall be assessed until the applicant has been notified of the
violation by registered or certified mail, return receipt requested, or other
means reasonably calculated to give actual notice. The notice shall
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ARTICLE 6: ENVIRONMENTAL PROTECTION
describe the violation with reasonable particularity, specify a reasonable
time period within which the violation can be corrected, and warn that
failure to correct the violation within the time period will result in the
assessment of a civil penalty or other enforcement action.
If the violation has not been corrected within the designated time period,
a civil penalty may be assessed from the date the violation is detected.
d. Refusal to accept the notice or failure to notify the Stormwater
Administrator of a change of address shall not relieve the violator's
obligation to pay such a penalty.
The Stormwater Administrator or other authorized agent may implement
the following enforcement actions question until the applicant has taken
the remedial measures set forth in the notice of violation and cured the
violations described therein:
Issue a stop work order to the person(s) violating the requirements
of this Section. The stop work order shall remain in effect until the
person has taken the remedial measures set forth in the notice of
violation or has otherwise cured the violation or violations
described therein. The stop work order may be withdrawn or
modified to enable the person to take the necessary remedial
measures to cure such violation or violations.
ii Refuse to issue a certificate of occupancy for any building or other
improvements constructed or being constructed on the site and
served by the stormwater practices.
iii Disapprove or withhold subsequent permits and development
applications.
iv Institute an action in a court of competent jurisdiction for a
mandatory or prohibitory injunction and order of abatement to
correct a violation of the requirements of this Section. Any person
violating this Section shall be subject to the full range of equitable
remedies provided in the General Statutes or at common law.
£ It is unlawful for a property owner to fail to meet the requirements of the
Operations and Maintenance Agreement. Any person or association that
fails to meet the requirements of the Maintenance Covenant shall be
subject to a civil penalty payable to the Town of Fletcher of not more
than $500. Each day that the violation continues shall constitute a
separate violation.
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ARTICLE 6: ENVIRONMENTAL PROTECTION
6.6 Illicit Discharges
A. Prohibited Discharges
No person shall cause or allow the discharge, emission, disposal, pouring, or pumping
directly or indirectly to any stormwater conveyance, the waters of the State, or upon the
land in manner and amount that the substance is likely to reach a stormwater
conveyance or the waters of the State unless permitted by an NPDES Permit.
Prohibited substances and discharges include but are not limited to:
1. Wastewater lines (such as from washing machines)
2. Sanitary sewer lines
3. Food waste
4. Oil
5. Grease
6. Household, industrial and chemical waste
7. Anti -freeze
8.
Animal waste
9.
Paints
10.
Paint wash water
11.
Garbage
12.
Litter
13.
Swimming pool discharges
14.
Leaves
15.
Grass clippings
16.
Dead plants.
B. Allowable Discharges
Non-stormwater discharges associated with the following activities are allowed
provided that they do not significantly impact water quality:
1. Drinking water line flushing
2. Discharge from emergency fire fighting activities
3. Irrigation water
4. Diverted stream flows
5. Uncontaminated ground water
6. Uncontaminated pumped ground water
7. Discharges from potable water sources
8. Residential foundation/footing drains
9. Air conditioning condensation
10. Uncontaminated Springs
11. Water from crawl space pumps
12. Individual non-commercial car washing operations
13. Flows from riparian habitats and wetlands
14. Street wash water
15. Other non-stormwater discharges for which a valid NPDES discharge permit
has been authorized and issued by the U.S. Environmental Protection Agency or
by the State of North Carolina, and provided that any such discharges to the
municipal separate storm sewer system shall be authorized by the Town of
Fletcher.
C. Illicit Connections
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ARTICLE 6: ENVIRONMENTAL PROTECTION
Connections to a stormwater conveyance or stormwater conveyance system that allow
the discharge of non-stormwater, other than the exclusions described in Section 6.7.13,
are unlawful.
Prohibited connections include, but are not limited to: Industrial/commercial floor
drains, waste water or sanitary sewers, wash water from commercial vehicle washing or
steam cleaning, and waste water from septic systems.
1. Grace Period
Where such connections exist in violation of this section and said connections
were made prior to the adoption of this provision or any other ordinance
prohibiting such connections, the property owner or the person using said
connection shall remove the connection within (1) one-year following the
effective date of this ordinance.
However, the one-year grace period shall not apply to connections which may
result in the discharge of hazardous materials or other discharges which pose an
immediate threat to health and safety, or are likely to result in immediate injury
and harm to real or personal property, natural resources, wildlife, or habitat.
Where it is determined that said connection:
a. May result in the discharge of hazardous materials or may pose an
immediate threat to health and safety, or is likely to result in immediate
injury and harm to real or personal property, natural resources, wildlife, or
habitat, or
b. Was made in violation of any applicable regulation or code, other than
this Section.
2. Time Period of Removal
The Stormwater Administrator shall designate the time period within which the
connection shall be removed. In setting the time limit for compliance, the
Stormwater Administrator shall take into consideration:
a. The quantity and complexity of the work,
b. The consequences of delay,
The potential harm to the environment, to the public health, and to
public and private property, and
d. The cost of remedying the damage.
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ARTICLE 6: ENVIRONMENTAL PROTECTION
D. Spills/ Accidental Discharges
In the case of accidental discharges, the responsible party shall immediately begin to
collect and remove the discharge and restore all affected areas to their original
condition. The responsible party shall immediately notify the Town of Fletcher of the
accidental discharge including the location of the discharge, type of pollutant, volume
or quantity discharges, time of discharge and the corrective actions taken.
Notification shall not relieve any person of any expenses related to the restoration, loss,
damage, or any other liability which may be incurred as a result of said spill or leak, nor
shall such notification relieve any person from other liability which may be imposed by
State or other law.
E. Notice of Violation
When the Town Manager, Stormwater Administrator or authorized representative finds
that a discharge or disposal violates any provisions of this Section, the Town Manager,
Stormwater Administrator or authorized representative may issue a Notice of
Violation. The Notice of Violation shall identify the nature of the violation, amount of
penalty (if applicable), set forth the measures necessary to comply with this Section and
provide a specific time period for compliance.
The Notice may be served by registered or certified mail, hand delivery or any other
means determined to give actual notice. Refusal to accept the notice shall not relieve
the violator's obligation to comply with this Section or to pay such penalty.
F. Enforcement and Penalties
Any person that violates the provisions of this Section is subject to a civil penalty. A
civil penalty may be assessed from the date the violation first occurs.
1. No penalty shall be assessed until the person alleged to be in violation has been
notified of the violation.
2. The maximum civil penalty for each violation of this Section is $5,000. Each day
of violation shall constitute a separate violation.
3. The Town Manager, Stormwater Administrator or authorized representative
shall determine the amount of the civil penalty assessment. In determining the
amount of a civil penalty, all relevant mitigating and aggravating factors shall be
considered including, but not limited to the following:
a. Degree and extent of harm caused by the violation
b. Cost of rectifying the damage
C. Whether the violator saved money through noncompliance
d. Whether the violator took reasonable measures to comply with this
Ordinance
e. Whether the violator voluntarily took reasonable measures to restore any
areas damages by the violation
£ Whether the violation was committed willfully
g. Whether the violator reported the violation
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ARTICLE 6: ENVIRONMENTAL PROTECTION
h. Prior record of the violator in complying or failing to comply with this
Code or any other local or State water pollution control rule or regulation.
In addition to the civil penalty, penalties for costs to restore damaged property
may be assessed based on restoration costs, which include but are not limited to,
clean up costs, devaluation of the property, and value of animal and plant life
damaged.
5. If an alleged violator does not pay a civil penalty assessed within 30 days after it
is due, or does not appeal a civil penalty assessment as provided in 6.7.G,
Appeals Process, the Director shall request the Division of Water Quality to
administer the penalty.
Violation of this ordinance shall not constitute a misdemeanor or infraction
punishable under the criminal laws of North Carolina.
G. Appeals Process
Any person who desires to appeal a demand for payment of the civil penalty shall have
thirty (30) days from said demand of payment to appeal in writing to the Town
Manager, Stormwater Administrator or authorized representative.
1. The Town of Fletcher shall then grant an appeal hearing before the Town
Council within thirty (30) days after receipt of the appeal.
2. The Town of Fletcher shall provide the appellant a minimum of ten (10) days
notice of the time and place of the hearing.
Thereafter, the appellant shall have thirty (30) days to comply with the final
decision of the appeal hearing.
6.7 Steep Slopes
This section regulates development on mountains and hillsides to ensure growth occurs in a
manner that will preserve the Town's visual character, protect the public health, safety and
welfare, and promote environmentally sound design and planning. The regulations
established in this section recognize development in hilly or mountainous areas involves
special considerations due to the slope of the land. The following objectives serve as general
guidelines to fulfill the purpose of this section.
• To reduce the likelihood of slope failures by promoting safe and stable slopes on
developed or disturbed land
• To prevent inappropriate development and to protect life and property from
potentially hazardous conditions
• To protect the quality of wetlands and watercourses from increased sedimentation
• To minimize grading, cut and fill operations, and impervious surfaces
• To protect plant and animal habitat from disturbance, development, and the
removal of vegetation
• To preserve the aesthetic and qualities of the natural terrain and to respect the
exiting topography and natural conditions
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ARTICLE 6: ENVIRONMENTAL PROTECTION
• To require disclosure of landslide hazards to purchasers of properties located in
area vulnerable to landslides as indicated on maps prepared by the North Carolina
Geological Survey (NCGS)
A. Definition
Slope shall be defined as an inclined ground or earth material surface, the inclination of
which is expressed as a ratio of horizontal distance to vertical distance. Slope
calculations shall be sealed by a licensed surveyor, engineer, or landscape architect.
Steep slope areas shall be defined as any lot, parcel, or tract of land which a) has an
average slope of thirty-three percent (33%) or more, or b) is designated with a slide
hazard ranking of `moderate' or `high' on a Stability Index Map prepared by the NCGS.
Steep slope areas refer to natural grades and shall not include man-made grades. Steep
slope areas shall be determined irrespective of tract boundaries.
B. Application
The provisions of this section apply in the following circumstances.
Any portion of a lot, parcel, or tract of land which has been approved for
development or subdivision after the date of adoption of this section shall be
required to comply with the provisions of this section.
Additions to structures greater than 600 square feet of disturbed area.
Site disturbances encompassing more than 600 square feet of disturbed area.
C. Exemptions
The following land uses or activities are exempt from the requirement of this section
provided they comply with any limitations or conditions specified herein and all other
articles of the LDC.
• Agricultural and forestry uses or activities consistent with all state and. federal
laws and the latest Best Management Practices for those activities
• Landscape maintenance activities, including the removal of diseased, dead or
damaged trees.
• Previously approved developments are exempt for a period of two years
subsequent to the effective date of this article.
• Any legally non -conforming lots of record, referring to the owner or any
successor in interest of a vacant lot of record existing as of the effective date of
this section, shall be entitled to build one single-family home thereon, provided
the development of such residence shall be done in compliance with the LDC
and the following Sections: 6.8.D.5 — Land Disturbance, 6.8.D.6 — Impervious
Surface Area, 6.8.D.7 — Structure Height/Ridgeline Protection, and 6.8.D.8 —
Partial Screening.
• Non -regulatory lots containing an average natural slope of less than thirty-
three percent (33%).
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ARTICLE 6: ENVIRONMENTAL PROTECTION
D. General Regulations for All Development and Other Land -Disturbing Activity
1. Plan Requirements
Steep slope areas shall be clearly indicated on all site plans, development plans,
preliminary plats, final plats, major special use permits and minor special use
permits. When a property owner or developer believes the presence or location
of a steep slope area is different than what is shown on the appropriate
topographic map, the discrepancy shall be documented by a licensed surveyor,
engineer, or landscape architect and submitted to the Administrator for approval
pursuant to the requirements of the following section (Section 6.2.13.2).
2. Requirements for Roads and Driveways
a. All new public and private roads and driveways shall be designed and
constructed to minimize the potential for landslides, erosion and runoff.
b. Roads and driveways shall be located to preserve the maximum number
of existing trees on the site.
Roads and driveways shall be designed to create the minimum feasible
amounts of land coverage and the minimum feasible soil disturbance.
Variations in road design and construction specified by the Town in its
LDC regulations shall be permitted, as approved by the Administrator, to
prevent the dedication of unnecessarily large amounts of land to such
roads or driveways.
Development Limitations
Development and land disturbance on steep slope areas shall be conducted in
accordance with the following requirements. Compliance with these
requirements shall be determined by the approving authority.
a. Artificial or reconstructed slopes shall not exceed fifty percent (50%) or
2H:1V. All fill shall be stabilized in conformance with generally accepted
engineering standards, including a compacted density of at least ninety-
five percent (95%). Non -load bearing retaining walls shall be encouraged
to reduce the amount of disturbance to the natural slope.
b. To accommodate building placement on steep slope areas, front and side
yard setbacks on interior lots of the development may be reduced by up
to 50 percent (50%) at the discretion of the Administrator or appropriate
review board. Where appropriate, buildings and structures should be
located as close to the road as possible to preserve the natural terrain and
to minimize disturbance and the length of driveways.
C. Sedimentation and erosion control shall be provided during and after
construction consistent with the requirements of Section 6.3 and
Henderson County's Erosion and Sedimentation Control Program.
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ARTICLE 6: ENVIRONMENTAL PROTECTION
Density and Lot Size
Densities of residential development shall be reduced in steep slope areas to
support the goals and objectives of this section. Development on lands subject
to this article shall meet the density requirements shown below in the table.
Maximum Density by Existing Slope
Existing Slope
Minimum Lot Size
(Acres)
Maximum Density
(units per acre)
33.00% - 44.99%
0.5
1.00
45.00% - 59.99%
2.0
1.00
60.00% +
4.0
1.00
5. Land Disturbance and Impervious Surfaces
Development shall be designed and constructed to minimize land disturbance
and impervious surface areas to the greatest extent possible. On any tract
proposed for construction, the maximum land disturbance and maximum
impervious surface areas will be established by the average steep slope area of
the tract. The maximum allowable land disturbance and impervious surface area
shall be as follows.
Maximum Disturbance by Existing Slope
Existing Slope
Maximum Land
Disturbance (%)
Maximum Impervious
Surface (%)
33.00% - 44.99%
50.0
25.0
45.00% - 59.99%
40.0
20.0
60.00% +
30.0
15.0
Structure Height/Ridgeline Protection
The maximum height of any building shall not extend closer than 15 feet to the
any point of a mountain ridge on which said building is constructed. For the
purposes of this article mountain ridge refers to geological formations and not
vegetation.
Partial Screening
A portion of natural on -site vegetation shall be retained sufficient to partially
screen at least fifty percent (50%) of the building, structure, use, or activity from
views along public roads not serving the property. If sufficient screening from
natural on -site vegetation can not be achieved, landscaping shall be designed and
installed to partially screen the building, structure, use, or activity from views
along public roads not serving the building. View corridors from the proposed
development to surrounding areas may be provided, but such corridors shall not
extend for more than fifty percent (50%) of the width of building face.
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ARTICLE 6: ENVIRONMENTAL PROTECTION
6.8 Navigable Airspace
A. Affected Properties
Any property located within or underneath the boundaries of the airspace of the
Asheville Regional Airport, as defined by Federal Aviation Regulation Part 77, upon
which it is determined that a proposed object or structure may impact navigable
airspace.
B. Limitations
The allowable height of an object or structure shall not be permitted to encroach into
the airspace of the Asheville Regional Airport, unless it is determined that it is not a
hazard to air navigation through an Aeronautical Study performed by the Federal
Aviation Administration.
C. Procedure
a. Prior to zoning approval, and/or issuance of a building permit, the landowner,
developer, contractor, or other responsible party (collectively referred to as the
Responsible Party), shall submit to the Federal Aviation Administration a
request for the conduct of an Aeronautical Study on the object or structure
being proposed on the property, utilizing FAA Form 7460-1 "Notice of
Proposed Construction or Alteration". In the event that multiple objects or
structures are proposed for the same property, multiple submittals may be
required. The Responsible Party shall include all information required on the
appropriate forms in order for the study to be undertaken.
Copies of the FAA Form 7460-1 may be obtained at http://oeaaa.faa.gov.
b. Aeronautical Study requests to the Federal Aviation Administration shall be
submitted no less than 30 days in advance of the scheduled start of any
construction on the property.
c. Cranes and other temporary objects that may themselves encroach into
navigable airspace shall require individual and separate Aeronautical Study
submittals.
d. The Responsible Party shall be required to follow any and all reporting
instructions determined necessary by the Federal Aviation Administration
during construction of the structure or placement of the object if identified as a
result of the Aeronautical Study.
D. Lighting and Marking
All objects and structures that are determined through an Aeronautical Study by the
Federal Aviation Administration that lighting or marking is required or recommended, shall
light and mark the object or structure in accordance with FAA Advisory Circular 70/7460-
1K "Obstruction Marking or Lighting" (or current version).
6-24 FLETCHER, NC LAND DEVELOPMENT CODE