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Home My WebLink About10_Ordinance Adoption June 19, 2007June 19, 2007 MINUTES OF THE MEETING OF THE CITY COUNCIL OF THE CITY OF BURLINGTON June 19, 2007 9:00 A.M. The City Council of the City of Burlington held a regularly scheduled meeting in the Council Chamber, Municipal Building, 425 South Lexington Avenue, Burlington, N. C., 27216-1358, on June 19, 2007, at 9:00 a.m. Mayor Stephen M. Ross presided Councilmembers present: Mayor Ross, Councilmembers Jones, Huffman and Starling Councilmembers absent: Wall Harold Owen, City Manager, present Robert M. Ward, City Attorney, present Jondeen D. Terry, City Clerk, present INVOCATION: Councilmember Don Starling RECOGNITION: § Sports Hall of Famers - Allen White and Jack McKeon REPORT: § Piedmont Triad Council of Governments - Mr. Randy Billings, Executive Director, reported that June 15, 2007, marked the start of the 60-day public comment period that will end August 15, 2007. He stressed the importance of attending the Division of Water Quality (DWQ) public hearings that are scheduled for July 12 in Carrboro and July 17 in Elon. He explained that the Jordan Lake rules would impact how residential and commercial development occurs in the Jordan Reservoir watershed. He said the requirements would drive up the cost of homes and property, increase sprawl and possibly steer development to other regions. DWQ estimates the cost to be in excess of $12 million. Mr. Billings said that all local governments (cities and counties) in the watershed would be required to install retrofit stormwater controls on existing developed lands. Additionally, local governments must exceed NPDES Phase II permit requirements to meet nutrient loading reduction targets on new and existing development resulting in substantial cost increases beyond current Phase II program costs. MINUTES Mayor Ross called for approval of the minutes of the special City Council meeting of May 30, 2007, the work session of June 4, 2007, and June 5, 2007, City Council meeting. Upon motion by Councilmember Huffman, seconded by Councilmember Starling, it was resolved unanimously to approve the minutes of the meetings held on May 30, June 4, and June 5, 2007. ADD -ON: Set date of public hearing - July 17, 2007 - Economic Development Incentive Agreement ADOPTION OF AGENDA Upon motion by Councilmember Huffman, seconded by Councilmember Starling, it was resolved unanimously to add the above -referenced item to the agenda. Upon motion by Councilmember Huffman, seconded by Councilmember Jones, it was resolved unanimously to adopt the agenda as amended. CONSENT AGENDA: 1.(A) To adopt a resolution authorizing the sale of certain surplus real property at a private sale at a negotiated price to Habitat for Humanity of Alamance County, North Carolina. The property is identified by ACTM 62-270, Lots 24, 33A, 33, 34 and 26, that was acquired with CDBG funds as part of the Rauhut Street Revitalization Project. 07-14 NOTICE OF INTENT BY THE CITY COUNCIL OF THE CITY OF BURLINGTON, NORTH CAROLINA, PURSUANT TO NORTH CAROLINA GENERAL STATUTE 160A- 279, TO ADOPT A RESOLUTION AUTHORIZING THE SALE OF CERTAIN SURPLUS REAL PROPERTY AT A PRIVATE SALE AT A NEGOTIATED PRICE TO HABITAT FOR HUMANITY OF ALAMANCE COUNTY, NORTH CAROLINA WHEREAS, the City of Burlington, North Carolina, acquired certain real property as shown on Alamance County Tax Map 62-270, Lots 24, 33A, 33, 34 and 26, with Community Development Block Grant Funds as part of the Rauhut Street Revitalization Project; and, WHEREAS, the above -described property was not obtained through the eminent domain process by the City of Burlington; and, WHEREAS, the City Council of the City of Burlington has determined that said property is surplus real property and no longer needed; and, WHEREAS, the City Council of the City of Burlington desires to convey at a private sale at a negotiated price the above -described real property to Habitat for Humanity of Alamance County, NC, a non-profit corporation organized under the laws of the State of North Carolina; and, WHEREAS, Habitat for Humanity of Alamance County will construct single-family residential homes on the above -described property for qualified low-income homebuyers. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BURLINGTON: Section 1: That the appropriate official of the City of Burlington is hereby authorized by the City Council of the City of Burlington to sell at a private sale at a negotiated price that real property as shown on Alamance County Tax Map 62-270, Lots 24, 33A, 33, 34 and 26. Section 2: That the above -described real property shall be conveyed to Habitat for Humanity of Alamance County, NC, to be developed for public use at a private sale at a negotiated price to develop single-family residential homes for low-income qualified homebuyers. Section 3: That the City of Burlington, upon confirmation of this sale, shall convey by Quitclaim Deed all of its rights, title and interest in and to said property, and said property shall be conveyed subject to restrictive covenants and all existing rights - of -way and utility and/or other easements, outstanding liens, judgments and any and all other existing encumbrances. Section 4: That this sale shall be conducted in accordance with North Carolina General Statute 160A-279. Section 5: That this Notice of Intent is adopted this the 5th day of June 2007. (B) To approve the Community Housing Development Organization (CHDO) Agreement between the City of Burlington and Alamance County Community Services Agency, Inc., for the 2007-08 fiscal year. (C) To approve the Residential Treatment Services Hall Avenue Renovations Agreement between the City of Burlington and Residential Treatment Services of Alamance, Inc. The Annual Action Plan included the City's proposed provision of $80,000 of Community Development Block Grant (CDBG) funds to assist with the planned renovations of the Hall Avenue Facility, a treatment and transitional housing center for substance abusers and the mentally ill. (D) To approve an agreement for MPO services with Mobility Solutions Unlimited, LLC. Under this agreement, Mobility Solutions will provide specialized transportation planning services to the Burlington -Graham MPO. (E) To temporarily close Trollinger Street from Plaid Street to Kivett Street on July 21, 2007, from 9:00 a.m. to 5:00 p.m. (F) To consider disposition and disposal of the attached list of plans in the Inspections Division. This request is made pursuant to the North Carolina General Statutes regarding the retention and disposition of municipal records. (G) Budget Amendment - BA2007-37 - Final Budget Amendment - All Funds BA2007-37 General Fund Increase Revenues: 010-32125-0000 010-32115-0000 010-33407-6260 010-34118-0000 010-36100-0000 010-34148-4920 Increase Expenditures: City Council 010-41411-5300 City Manager 010-41421-3300 010-42421-5300 010-42421-7400 Engineering 010-43493-0300 010-43493-0400 Traffic 010-43494-1900 Information Technology 010-46470-7400 General Administration 010-50502-1400 010-50502-2600 010-50502-9100 Police 010-51511-0300 010-51512-1001 010-51515-6003 010-51519-7400 010-51522-1900 010-51522-4500 Public Works Equipment Maintenance 010-55554-4800 Municipal Building 010-55558-1300 May Memorial Library Ala County Fuel Purchases Sales Tax - Local Option Senior Programs/Donations Monopole Rentals Interest on Investments Building Permits Dues & Subscriptions Departmental Supplies Dues & Subscriptions Equipment Personnel Services - O/T Personnel Services - P/T Professional Services Equipment Educ.Incentive/Staff Trng Legal Notices Operating Transfers Out Personnel Services - O/T Separation Allowance Junior Police Academy Equipment Professional Services Contracted Services Purchases for Resale Utilities $ 227,000 500,000 31,083 125,000 250,000 86,539 S 6,000 5,000 5,000 5,000 5,000 25,000 45,000 25,000 25,000 20,000 80,939 125,000 30,000 15,000 4,600 40,000 15,000 010-55559-7200 Buildings 15,000 Cemetery 010-57571-0200 Personnel Services 10,000 Sanitation 010-58581-0400 Personnel Services - P/T 20,000 010-58581-3100 Automotive Expense 5,000 010-58583-4509 Recycling Collection Fee 85,000 Recreation 010-62623-1300 Utilities 30,000 010-62623-4500 Contracted Services 30,000 010-62625-1500 Maint & Rep-Bldgs & Grnds 30,000 010-62626-6011 Special Programs/Trips 31,083 010-62626-7200 Buildings 27,000 010-62630-4800 Purchases for Resale 25,000 010-62634-1500 Maint & Rep-Bldgs & Grnds 5,000 Water & Sewer Fund Increase Revenues: 030-31200-0004 Donations - Lake Programs $ 4,205 030-39398-0000 Appropriated Fund Balance 280,000 Increase Expenditures: Customer Service 030-66663-4517 Fee for Greensboro Sewer $ 70,000 Sewer Lines Maintenance & Repairs 030-73703-3100 Automotive Expenses 30,000 South Burlington Wastewater Treatment Plant 030-85805-3309 Chemicals 50,000 030-85805-4500 Contracted Services 70,000 East Burlington Wastewater Treatment Plant 030-86806-4500 Contracted Services 15,000 Laboratories 030-87807-1600 Maint & Repairs - Equipmt 5,000 Lakes & Marinas 030-90811-1300 Utilities 40,000 030-90811-6011 Special Lake Programs 4,205 Capital Project Funds Increase Revenues: Capital Reserve Fund 015-39398-0000 Appropriated Fund Balance $ 35,450 Building Renovations 665-38000-0000 Operating Transfers In 23,150 Streetscape Capital Project 427-38000-0000 Operating Transfers In 4,000 Springwood Park Recreation Project 449-38000-0015 Operating Transfers In 8,300 Governor's Highway Safety Grant Project 523-39398-0000 Appropriated Fund Balance 23,000 Domestic Violence Grant 522-38390-0000 Operating Transfers In 26,000 Water & Sewer Future Growth Projects 669-38000-0000 Operating Transfers In 584,000 Increase Expenditures: Capital Reserve Fund 015-70700-9100 Operating Transfers Out $ 35,450 Building Renovations 665-38000-0000 Operating Transfers In 23,150 Streetscape Capital Project 427-40000-0000 Professional Services 4,000 Springwood Park Recreation Project 449-60000-7300 Capital -Other Improvmts 8,300 Governor's Highway Safety Grant Project 523-40000-0200 Personnel Services 23,000 Domestic Violence Grant 522-40000-0200 Personnel Services 26,000 Water & Sewer Future Growth Projects 669-60550-7300 Construction 584,000 (H) To set a date of public hearing for July 17, 2007, at 7:30 PM to consider an Economic Development Incentive Agreement. Councilmember Jones inquired about consent agenda Item F. He asked if the City gave individuals an opportunity to pick up the plans before they were destroyed, and Planning Director Harkrader replied that the records were destroyed in accordance with state statutes and that the individuals were not notified. City Manager Owen asked if the individuals would have a copy of the plans, and Chief Inspector Ray Rice replied they should have a copy because after the plans were reviewed, a copy was given back to the individual or contractor. Councilmember Jones suggested that as a courtesy it would be good to let individuals know that the records would be destroyed a year from the date of the application and that they could have them at that time. Mr. Harkrader stated that a note would be added to the permit application informing the petitioners of that information. Councilmember Jones asked if the petitioner that requested to temporarily close Trollinger Street (consent agenda Item E) had notified the business that would be affected. City Clerk Terry replied that the petitioner was not present and she did not know if he had contacted the businesses on Trollinger Street. Upon motion by Councilmember Huffman, seconded by Councilmember Jones, it was resolved unanimously to approve the foregoing consent agenda with the exception of consent agenda Item E. Upon motion by Councilmember Huffman, seconded by Councilmember Jones, it was resolved unanimously to continue consent agenda Item E to the July 17, 2007, City Council meeting to allow time for the petitioner to contact the businesses affected by the temporary street closing on Trollinger Street. PUBLIC HEARINGS: ITEM 2: AMEND CONDITIONAL BUSINESS REZONING - CRENSHAW PROPERTIES, LLC Mayor Ross announced that a public hearing had been scheduled to consider amending a Conditional Business rezoning for Burlington Nissan -Hyundai approved by City Council December 19, 2006. The request is to allow an increase in the building size from 13,500 square feet to 22,500 square feet and to change the name of the dealership from Burlington Hyundai to Carolina Nissan. The property is located on the north side of Huffman Mill Road south of Whitesell Drive approximately 1,300 feet southwest of Kirkpatrick Road and being as shown on Alamance County Tax Map 3-22, a portion of Lots 22 and 51. Mr. Charles Bateman, representing the Crenshaw family who owns the dealership, stated that when the applicant began the design of the new facility, it was decided to move the Nissan dealership to the proposed Huffman Mill Road location and move the Hyundai franchise to the current Nissan location. He stated that the anticipated traffic would be relatively the same and that it would create no additional burden on the neighborhood. He pointed out that there would be 20-foot buffers on each side across the northern border, state-of-the- art box lighting to prevent lighting from infiltrating onto adjacent properties, and no exterior paging. He stated the total uses would be automobile sales, new and used and accessory sales and auto service and repair when conducted completely within an enclosed building. He stated that this matter received the unanimous approval of the Planning and Zoning Commission. He introduced Mr. Charles Crenshaw. Councilmember Jones asked about a body shop, and Mr. Bateman stated there would be no body shop. Mr. Bateman offered that as an additional condition. Mr. Worth Whitesell, 1844 St. Mark's Church Road, expressed concern about water control and the lack of a retention pond. Development and Technical Services Director Jim Lauritsen stated that he would contact Mr. Whitesell and address his concerns. Mr. Bateman stated all impervious surfaces would be handled in strict accordance with existing rules and regulations. Upon motion by Councilmember Huffman, seconded by Councilmember Jones, it was resolved unanimously to close the public hearing. Councilmember Huffman moved the adoption of the following ordinance (including the additional restriction that there would be no body shop allowed): 07-21 ORDINANCE TO AMEND CONDITIONAL BUSINESS REZONING ON HUFFMAN MILL ROAD (Crenshaw Properties) BE IT ORDAINED by the City Council of the City of Burlington, North Carolina: Section 1.That Crenshaw Properties has requested that the Development Conditions previously approved by the Burlington City Council on December 5, 2006, for property located on the north side of Huffman Mill Road south of Whitesell Drive approximately 1,300 feet southwest of Kirkpatrick Road as shown on Alamance County Tax Map 3-22, a portion of Lots 22 and 51, be amended as follows: 1) The size of the building shall be increased from 13,500 square feet to 22,500 square feet. 2) The name of the dealership shall be changed from Burlington Hyundai to Carolina Nissan. 3) The dealership shall not include a body shop. Section 2. That the amendment to the Conditional Business zoning allowing the change in Development Conditions is hereby authorized subject to the property complying with all previously approved Use and Development Conditions. Section 3. This property will be perpetually bound to the uses authorized and subject to such conditions as imposed including site plans and other submissions, unless subsequently changed or amended as provided for in the City of Burlington Zoning Ordinance. Section 4. Any violations or failure to accept any conditions and use limitations imposed herein shall be subject to the remedies provided in the City of Burlington Code of Ordinances and Zoning Ordinance. Section 5. That all ordinances or parts of ordinances inconsistent or in conflict with this ordinance are hereby repealed. Section 6. That this ordinance shall take effect upon passage. The foregoing ordinance was seconded by Councilmember Jones, and after full discussion, the same was voted upon and declared duly adopted, no amendments having been offered and consent having been given to place the same upon its immediate passage. Councilmembers voting in favor of the motion to adopt the foregoing ordinance were Ross, Jones, Huffman and Starling. ITEM 3: AMEND CONDITIONAL REZONING - POWELL MANOR, LLC Mayor Ross announced that a public hearing had been scheduled to consider amending a Conditional Office - Institutional rezoning for a conference center, Powell Manor, LLC, approved by City Council September 19, 2006. The request is to allow the structure to be used also as a bed and breakfast; to remove the proposed ten -foot fence; and to eliminate the proposed improvements to be made to Warren Place. The property is located on the northeast corner of York Road and Warren Place as shown on Alamance County Tax Map 3-11, Lots 5 and 5B. Mr. T. M. Knowles, landscape architect with Borum, Wade and Associates, PA, representing Dr. Beth Powell, requested to move the commercial kitchen to the carriage house on the premises and to widen the existing driveway across the front to give the two entrances that exist two-way traffic, and to eliminate the use of Warren Place for a parking lot. He stated that Dr. James Powell had signed an agreement for the use of adjoining property to the north for overflow parking. Councilmember Huffman referred to a letter (copy below) from Dr. James Powell dated June 4, 2007, to Planning Director Harkrader concerning overflow parking and garbage bins. He asked how Dr. Powell's letter impacted the proposed plan. -ANAFS a PC3VVEi.L t57'7 vey-K -1L01L9m= LAM ,L.P 1;L7-n . nxaa-'H C?F 3k-NXk = W M :uric 4, 1007 Krrhen R. Harkrader- lI l- AICV Dir,-m OfPi"rg An4 C ruit D7--clopmuLt C'ily rrl kiurlir-,M,Lrr PO Bm 1359 rT �rl. r ,. 1!C �7 Dm A}r H�,rkradcr &i ICllrr i : it rvImc ue 113 y,rur Iv.ler 14- nre trf ]-.mt: I. 20-N ..rK! 1Fur rraenl plmrw cmyvcnsmiryn regarding Bctl-- Powrl I's MoPML iaapr+•v,=crVis on Yot4 RC h e%r .-md smtrml ;:urvrr+;1:iini; wrh firi:r regwili-F ^ic r,}K III ?,r'II iir.;IirJ her 1-niI wrI,- and T Lve no pemme.] abjcciinn to ;per jsin8 arts pi%-rcay dot 4verfMY larking as yaKL4 1lhrlcjq I(,t bl:: tltjl. C�J:IlW bl-a Cr-Mri-.jcr.lal of aar:}vx-eid a•i'an,rcq: t:,A. I f01't aL.o explxnerl to Beth that an ease�r ir..p t;la pronl?rlV Kv Y. diiu- tmWks r a''•rs PFOPCFC4' !3 W. PeS�Ibk fQT A N'WklC i Of rti ;;LAU. my Sugge36311 to Beth .a -a r.rzaxpe Lo nc;,r,�s prhape biro %..'i I :;,; irLn t;'eas 4.%vi.T her pvm "erty byaltcArg someofthe pIansthat she Imdraure. es T?. Tk-.wrT Mr. Borum replied that on the previous site plan an area had been designated for a service pathway to the back of the carriage house where the caterers would have delivered; however, he explained that the final site plan has the service drive entering into Beth Powell's property on the northeast corner with the service drive accessing the back of the carriage house and with the turn around as required by the City of Burlington. He stated the service drive will be for the occasional use of the catering trucks to get back to the carriage house and will not have any parking. He pointed out that another change was that an electronic transformer has been moved so that it could be accessed from Warren Place. Councilmember Huffman asked if the latest plan met the approval of the Technical Review Committee. Planning Director Harkrader replied that the final plan had the approval of the Technical Review Committee. Councilmember Jones pointed out that Councilmembers were being asked to vote on something that was not in the packet and that was not a good policy to have, and Mr. Harkrader said that the request had changed. Mr. Borum stated that if overflow parking was needed, a shuttle could be provided to and from the Carolina Biological Supply parking lot on York Road since it would be closed on weekends. Mr. Harkrader stated that staff was okay with the present site plan. He pointed out that the proposed plan does provide for overflow parking. Mr. Borum pointed out that the previously approved site plan had the same 100-car parking lot, that it had not changed whatsoever and that the lease signed by Dr. James Powell had not changed. Councilmember Huffman suggested that something be in the record to say that overflow parking would be provided via a shuttle service from Carolina Biological Supply. Mr. Knowles reviewed the other changes in the site plan which included removing the requirement for a fence, removing the condition of extending the pavement of Warren Place because the parking lot will not be added, add wording of conference center and on -site bed and breakfast, and slight changes to lawn areas and the sidewalk layout. Councilmember Huffman asked for a written agreement or contract concerning overflow parking with Carolina Biological Supply. Dr. Beth Powell stated that parking is a service that could be provided by paying rent to a church or another space within a reasonable driving radius if the space at Carolina Biological Supply was not available. Upon motion by Councilmember Starling, seconded by Councilmember Jones, it was resolved unanimously to close the public hearing. Councilmember Huffman moved the adoption of the following ordinance (including the note on the plan concerning shuttle service to off -site parking): 111 ►0 ORDINANCE TO AMEND CONDITIONAL OFFICE -INSTITUTIONAL REZONING ON YORK ROAD AND WARREN PLACE BE IT ORDAINED by the City Council of the City of Burlington, North Carolina: Section 1. That Dr. Beth Powell has requested that the Use and Development Conditions previously approved for Powell Manor, LLC, located on the northeast corner of York Road and Warren Place as shown on Alamance County Tax Map 3-11, Lots 5 and 5B, be amended as follows: Use Condition That the property shall be used also as a bed and breakfast. Development Conditions 1) That the proposed ten -foot fence be eliminated from the design. 2) That Warren Place shall not be improved because the parking lot has been eliminated from the site plan. Section 2. That the amendment to the Conditional Office - Institutional District allowing the changes in Use and Development Conditions are hereby authorized subject to the property complying with all previously approved Use and Development Conditions. Section 3. This property will be perpetually bound to the uses authorized and subject to such conditions as imposed including site plans and other submissions, unless subsequently changed or amended as provided for in the City of Burlington Zoning Ordinance. Section 4. Any violations or failure to accept any conditions and use limitations imposed herein shall be subject to the remedies provided in the City of Burlington Code of Ordinances and Zoning Ordinance. Section 5. That all ordinances or parts of ordinances inconsistent or in conflict with this ordinance are hereby repealed. Section 6. That this ordinance shall take effect upon passage. The foregoing ordinance was seconded by Counciimember Starling, and after full discussion, the same was voted upon and declared duly adopted, no amendments having been offered and consent having been given to place the same upon its immediate passage. Councilmembers voting in favor of the motion to adopt the foregoing ordinance were Ross, Jones, Huffman and Starling. ITEM 4: AMEND CONDITIONAL BUSINESS REZONING - ALAMANCE CROSSING Mayor announced that a public hearing had been scheduled to consider amending a Conditional Business rezoning for Alamance Crossing approved by City Council April 20, 2004. The request is to modify the size of the project pylon signs. The property is located east of University Drive, south of Garden Road, west of Westview Terrace and south, east and west of St. Mark's Church Road as shown on Alamance County Tax Map 3-24, portions of Lots 11, 27 and 33. Upon motion by Councilmember Huffman, seconded by Councilmember Starling, it was resolved unanimously to allow Councilmember Jones to recuse himself from consideration on this item due to his law partner being involved. Mr. Lawson Brown, representing CBL and Associates, Alamance Crossing LLC introduced Ms. Cindy Henry, Boston, MA, with CBL and Associates. He reminded the City Council that it had previously approved a large pylon sign of 75 feet in height and that the request today was for 55 feet. He stated that it has the approval of the staff and the unanimous recommendation of the Planning and Zoning Commission. He pointed out that there would be two additional pylon signs 25 feet in height. Upon motion by Councilmember Huffman, seconded by Councilmember Starling, it was resolved unanimously to close the public hearing. Councilmember Huffman moved the adoption of the following ordinance: 07-23 ORDINANCE TO AMEND CONDITIONAL BUSINESS REZONING - ALAMANCE CROSSING BE IT ORDAINED by the City Council of the City of Burlington, North Carolina: Section 1. That CBL and Associates and Alamance Crossing have requested that the Development Conditions previously approved by the Burlington City Council on April 24, 2004, and amended June 7, 2005, July 18, 2005, April 18, 2006, May 20, 2006, July 20, 2006, August 1, 2006, September 5, 2006, and April 17, 2007, be amended on property located south of Garden Road, east of University Drive and south, east and west of St. Mark's Church Road as shown on Alamance County Tax Map 3-24, portions of Lots 11, 27 and 33, as follows: Development Condition To allow modification in the size of the pylon signs as shown on a submitted site plan. Section 2. That the amendment to the Conditional Business District allowing the addition in Development Conditions is hereby authorized subject to the property complying with all previously approved Use and Development Conditions. Section 3. This property will be perpetually bound to the uses authorized and subject to such conditions as imposed including site plans and other submissions, unless subsequently changed or amended as provided for in the City of Burlington Zoning Ordinance. Section 4. Any violations or failure to accept any conditions and use limitations imposed herein shall be subject to the remedies provided in the City of Burlington Code of Ordinances and Zoning Ordinance. Section 5. That all ordinances or parts of ordinances inconsistent or in conflict with this ordinance are hereby repealed. Section 6. That this ordinance shall take effect upon passage. The foregoing ordinance was seconded by Councilmember Starling, and after full discussion, the same was voted upon and declared duly adopted, no amendments having been offered and consent having been given to place the same upon its immediate passage. Councilmembers voting in favor of the motion to adopt the foregoing ordinance were Ross, Huffman and Starling. Councilmember Jones abstained. ITEM 5: REZONE PROPERTY - SOUTH CHURCH STREET AND SHADOWBROOK DRIVE - CONSTRUCTION OF WALGREEN'S DRUG STORE Mayor Ross announced that a public hearing had been scheduled to consider rezoning from B-2, General Business District, and R-15, Residential District, to CB, Conditional Business District, to allow for all uses permitted in B-2 zoning excluding the following: adult bookstores, adult video stores, adult cabarets and adult motels. The property is located on the northeast corner of South Church Street and Shadowbrook Drive as shown on Alamance County Tax Map 12-17, Lots 98C, 98D, 187 and 188. Mr. Beau Rodenbough, attorney with Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, appeared on behalf of the owner applicants and the developer, Belleau Wood Development, LLC. He introduced Mr. Tim Jennings, Stimmel Associates, who is the engineer for the project, and Mr. Ed Tam, Belleau Wood Development. Mr. Rodenbough stated that four properties were being considered to be rezoned, two commercial buildings and two residential sites, for the purpose of building a 14,500 square foot Walgreen's Drug Store. He stated the proposal would reduce the driveway entrances onto South Church Street and Shadowbrook from nine to two. He stated that the proposed development includes a substantial landscaping and buffering package. He stated that he had met with the adjoining property owners to the rear, addressed their concerns, and that they support the rezoning. Ms. Debbie Hall stated that she and the McKinney family were in agreement with the proposal. Upon motion by Councilmember Jones, seconded by Councilmember Starling, it was resolved unanimously to close the public hearing. Councilmember Starling moved the adoption of the following ordinance: 07-24 ORDINANCE TO REZONE PROPERTY AT CORNER OF SOUTH CHURCH STREET AND SHADOWBROOK DRIVE FOR WALGREEN'S DRUG STORE BE IT ORDAINED by the City Council of the City of Burlington, North Carolina: Section 1. That the official zoning map, an element of the Burlington Zoning Ordinance, and the Comprehensive Land Use Plan are hereby amended by rezoning from B-2, General Business District, and R-15, Residential District, to CB, Conditional Business District, subject to those conditional uses with limitations as set forth in Sections 2, 3 and 4 of this ordinance the area described as follows: Property located on the northeast corner of South Church Street and Shadowbrook Drive and being as shown on Alamance County Tax Map 12-17, Lots 98C, 98D, 187 and 188. Section 2. That the rezoning from B-2 and R-15 to CB is hereby authorized subject to the following Use and Development Conditions: Use Conditions All uses permitted in B-2, General Business District, excluding the following: adult bookstores, adult video stores, adult cabaret and adult motels. Development Conditions 1) Signage shall meet B-2 minimum standards. 2) Landscaping shall meet City of Burlington Zoning Ordinance requirements for B-2 zoning. 3) Driveways shall comply with NCDOT and City of Burlington requirements. 4) All conditions shall adhere to those submitted in the site plan. Section 3. This property will be perpetually bound to the uses authorized and subject to such conditions as imposed including site plans and other submissions, unless subsequently changed or amended as provided for in the City of Burlington Zoning Ordinance. Section 4. Any violations or failure to accept any conditions and use limitations imposed herein shall be subject to the remedies provided in the City of Burlington Code of Ordinances and Zoning Ordinance. Section 5. That all ordinances or parts of ordinances inconsistent or in conflict with this ordinance are hereby repealed. Section 6. That this ordinance shall take effect upon passage. The foregoing ordinance was seconded by Councilmember Huffman, and after full discussion, the same was voted upon and declared duly adopted, no amendments having been offered and consent having been given to place the same upon its immediate passage. Councilmembers voting in favor of the motion to adopt the foregoing ordinance were Ross, Jones, Huffman and Starling. ITEM 6: APPROVAL OF STORMWATER ORDINANCE Mayor Ross announced that a public hearing had been scheduled to consider approval of a Stormwater Ordinance. Public Works Director Gary Hicks stated that the public hearing was part of the City's NPDES stormwater permit that was granted to the City by the North Carolina Department of Environment and Natural Resources (DENR) two years ago. He explained that part of that permit requirement was to have a post construction and illicit discharge and detection ordinance. He stated that DENR had preliminarily approved the draft ordinance. He explained that after the City Council's approval, the ordinance would be submitted to DENR for its final approval. Mr. Hicks introduced Mr. Bob Patterson, the City's Stormwater Manager. Upon motion by Councilmember Huffman, seconded by Councilmember Starling, it was resolved unanimously to close the public hearing. Councilmember Huffman moved the adoption of the following ordinance: 07-25 ' [RW1] CITY OF BURLINGTON STORMWATER ORDINANCE REV 05/31/2007 Table of Contents SECTION 1: GENERAL PROVISIONS...............................24 1-101 Title...........................................24 1-102 Authority.......................................24 1-103 Findings........................................24 1-104 Purpose.........................................25 (A) General...........................................25 (B) Specific..........................................25 1-105 Applicability and Jurisdiction ..................27 (A) General...........................................27 (B) Exemptions........................................27 (C) No Development or Redevelopment Until Compliance and Permit.................................................27 (D) Map...............................................28 1-106 Interpretation..................................28 (A) Meaning and Intent................................28 (B) Text Controls in Event of Conflict................28 (C) Authority for Interpretation ......................28 (D) References to Statutes, Regulations, and Documents 29 (E) Computation of Time...............................29 (F) Delegation of Authority ...........................29 (G) Usage.............................................29 (H) Measurement and Computation .......................30 1-107 Design Manual...................................30 (A) Reference to Design Manual ........................30 (B) Relationship of Design Manual to Other Laws and Regulations............................................30 (C) Changes to Standards and Specifications ........... 30 (D) Amendments to Design Manual.......................31 1-108 Relationship to Other Laws, Regulations and Private Agreements..............................................31 (A) Conflict of Laws..................................31 (B) Private Agreements................................31 1-109 Severability....................................32 1-110 Effective Date and Transitional Provisions ...... 32 (A) Effective Date....................................32 (B) Final Approvals, Complete Applications ............ 32 (C) Violations Continue...............................33 SECTION 2: ADMINISTRATION AND PROCEDURES ....................33 2-201 Review and Decision -Making Entities.............33 (A) Stormwater Administrator ..........................33 2-202 Review Procedures...............................34 (A) Permit Required; Must Apply for Permit ............ 34 (B) Effect of Permit..................................34 (C) Authority to File Applications ....................34 (D) Establishment of Application Requirements, Schedule, andFees...............................................34 (E) Submittal of Complete Application.................35 (F) Review............................................36 2-203 Applications for Approval .......................37 (A) Concept Plan and Consultation Meeting.............37 (B) Technical Review Committee Submittal and Approval.39 (C) Stormwater Management Permit Application .......... 39 (D) Other Permits.....................................39 2-204 Approvals.......................................40 (A) Effect of Approval................................40 (B) Time Limit/Expiration .............................40 2-205 Appeals.........................................40 (A) Right of Appeal...................................40 2-206 Design Professional's Certificate of Compliance, As - Built Plans and Final Approval ..........................41 SECTION 3: STANDARDS........................................42 3-301 General Standards...............................42 3-302 Development Standards for Low -Density Projects..42 3-303 Development standards for High -Density Projects.43 3-304 Undisturbed Buffer..............................45 (A) Buffer Width general..............................45 (B) Buffer Width - water supply watershed.............45 (C) Exceptions to the Undisturbed Buffer Rules ........ 45 3-305 Standards for Stormwater Control Measures ....... 45 (A) Evaluation According to Contents of Design Manual.45 (B) Determination of Adequacy; Presumptions and Alternatives...........................................46 (C) Separation from Seasonal High Water Table ......... 46 3-306 Dedication of BMPS, Facilities & Improvements ... 46 3-307 Variances.......................................46 (A) Variance Request..................................46 (B) Conditions of Variance ............................47 (C) Statutory Exceptions..............................47 3-308 Additional standards for special situations ..... 48 (A) Animal Waste......................................48 (B) Nutrient Sensitive Waters .........................49 (C) Nutrient Application Management Program ........... 49 (D) Nutrient Management Training ......................51 (E) Nutrient Management Plans .........................52 3-309 Onsite wastewater...............................54 On -Site Wastewater System Permit.......................54 (B) Standards for Operation and Maintenance ........... 54 SECTION 4: MAINTENANCE......................................54 4-401 General Standards for Maintenance...............54 (A) Function of BMPs As Intended ......................54 (B) Annual Maintenance Inspection and Report .......... 55 4-402 Operation and Maintenance Agreement.............56 (A) In General........................................56 (B) Special Requirement for Homeowners' and Other Associations...........................................56 4-403 Inspection Program..............................59 4-404 Performance Security for Installation and Maintenance 59 (A) May Be Required...................................59 (B) Amount............................................60 (C) Uses of Performance Security ......................60 4-405 Notice to owners................................61 (A) Deed Recordation and Indications On Plat .......... 61 (B) Signage...........................................61 4-406 Records of Installation and Maintenance Activities62 4-407 Nuisance........................................62 4-408 Maintenance Easement ............................62 4-409 Existing Structural BMPs........................62 SECTION 5: ENFORCEMENT AND VIOLATIONS .......................62 5-501 General.........................................62 (A) Authority to Enforce..............................62 (B) Violation Unlawful................................63 (C) Each Day a Separate Offense .......................63 (D) Responsible Persons/Entities ......................63 5-502 Remedies and Penalties ..........................64 (A) Remedies..........................................64 (B) Civil Penalties...................................65 (C) Criminal Penalties................................66 5-503 Procedures......................................66 (A) Initiation/Complaint..............................66 (B) Inspection........................................66 (C) Notice of Violation and Order to Correct .......... 66 (D) Extension of Time.................................67 (E) Enforcement After Time to Correct.................67 (F) Emergency Enforcement .............................67 SECTION 6: DEFINITIONS......................................68 6-601 Terms Defined...................................68 Best Management Practice (BMP).......................68 Built -upon area(BUA)................................68 Clean Water Act......................................68 Common Plan of Development ...........................68 Consultant...........................................69 Department...........................................69 Design Manual........................................69 Development..........................................69 Director.............................................69 Division or DWQ......................................69 EMC..................................................69 Grab Sample..........................................69 Hazardous Substance..................................70 High -density project.................................70 Illicit Discharge....................................70 Industrial Activity..................................70 Low -density project..................................70 Municipal Separate Storm Sewer System (MS4).......... 70 Non-structural BMP...................................71 1-year, 24-hour storm................................71 Outfall..............................................71 Owner................................................72 Point Source Discharge of Stormwater.................72 Redevelopment........................................72 Stormwater Runoff....................................72 Structural BMP.......................................72 Substantial progress.................................73 Toxic Pollutant......................................73 SECTION 7: Illicit Discharges...............................73 7-701 Illicit Discharges and Connections..............73 (A) Illicit Discharges................................73 (B) Illicit Connections...............................74 (C) Spills............................................75 (D) Industrial or Construction Activity Discharges .... 76 (E) Right of Entry, Inspection, Sampling, and Testing.76 (F) Enforcement.......................................76 (G) Violations Deemed a Public Nuisance...............77 SECTION 1: GENERAL PROVISIONS 1-101 Title This ordinance shall be officially known as "The City of Burlington Stormwater Ordinance." It is referred to herein as "this ordinance." 1-102 Authority The Burlington City Council is authorized to adopt this ordinance pursuant to North Carolina law, including but not limited to Article 14, Section 5 of the Constitution of North Carolina; the Charter of the City of Burlington; North Carolina General Statutes 143-214.7 and rules promulgated by the Environmental Management Commission thereunder; Session Law 2004-163, Session Law 2006-246; Chapter 160A, §§ 174, 185. 1-103 Findings It is hereby determined that: Development and redevelopment alter the hydrologic response of local watersheds and increases 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 which are harmful to public health and safety as well as to the natural environment; and 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 the minimum stormwater controls such as those included in this ordinance. Therefore, the City Council of the City of Burlington establishes this set of water quality and quantity regulations to meet the requirements of state and federal law regarding control of stormwater runoff and discharge. 1-104 Purpose (A) General The purpose of this ordinance 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 municipal separate 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. (B) Specific This ordinance seeks to meet its general purpose through the following specific objectives and means: (1) Establishing decision -making processes for development that protect the integrity of watersheds and preserve the health of water resources; (2) Requiring that new development and redevelopment maintain the pre -development hydrologic response in their post -development state as nearly as practicable for the applicable design storm to reduce flooding, streambank erosion, nonpoint and point source pollution and increases in stream temperature, and to maintain the integrity of stream channels and aquatic habitats; (3) Establishing minimum post -development stormwater management standards and design criteria for the regulation and control of stormwater runoff quantity and quality; (4) Establishing 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; (5) Encouraging the use of better management and site design practices, such as the use of vegetated conveyances for stormwater and the preservation of greenspace, riparian buffers, and other conservation areas to the maximum extent practicable; (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; (7) Establishing administrative procedures for the submission, review, approval and disapproval of stormwater management plans, for the inspection of approved projects, and to assure appropriate long-term maintenance; (8) Coordinating site design plans that include open space and natural areas with City of Burlington open space and natural area protection plans, policies or ordinances; (9) Controlling illicit discharges into the municipal separate stormwater system; (10) Controlling erosion and sedimentation from construction activities per the City of Burlington Code of Ordinances Chapter 31.5 - Soil Erosion and Sedimentation Control; (11) Assigning responsibility and processes for approving the creation and maintenance of adequate drainage and flood damage prevention measures per the City of Burlington Code of Ordinance Appendix B - Flood Damage Prevention Ordinance. 1-105 Applicability and Jurisdiction (A) General Beginning with and subsequent to its effective date, this ordinance shall be applicable to all development and redevelopment, including, but not limited to, site plan applications, subdivision applications, and land disturbing activity applications, unless exempt pursuant to Subsection (B) of this Section, Exemptions. (B) Exemptions Development that cumulatively disturbs less than one acre and is not part of a larger common plan of development or sale is exempt from the provisions of this ordinance. Redevelopment that cumulatively disturbs less than one acre and is not part of a larger common plan of development or sale is exempt from the provisions of this ordinance. Development and redevelopment that disturb less than 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. 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 ordinance. (C) No Development or Redevelopment Until Compliance and Permit No development or redevelopment shall occur except in compliance with the provisions of this ordinance or unless exempted. No development for which a permit is required pursuant to this ordinance shall occur except in compliance with the provisions, conditions, and limitations of the permit. (D) Map The provisions of this ordinance shall apply within the areas designated on the map titled "Phase II Stormwater Map of City of Burlington, North Carolina" ("the Stormwater Map"), which is being prepared at the time of adoption of this ordinance and shall be presented for adoption at the time of completion. The Stormwater Map and all explanatory matter contained thereon accompanies and is hereby made a part of this ordinance. The Stormwater Map shall be kept on file by the Stormwater Administrator and shall be updated to take into account changes in the land area covered by this ordinance and the geographic location of all structural BMPs permitted under this ordinance. In the event of a dispute, the applicability of this ordinance to a particular area of land or BMP shall be determined by reference to the North Carolina Statutes, the North Carolina Administrative Code, and local zoning and jurisdictional boundary ordinances. 1-106 Interpretation (A) Meaning and Intent All provisions, terms, phrases, and expressions contained in this ordinance shall be construed according to the general and specific purposes set forth in Section 104, Purpose. If a different or more specific meaning is given for a term defined elsewhere in the Code of Ordinances of the City of Burlington, North Carolina, the meaning and application of the term in this ordinance shall control for purposes of application of this ordinance. (B) Text Controls in Event of Conflict In the event of a conflict or inconsistency between the text of this ordinance and any heading, caption, figure, illustration, table, or map, the text shall control. (C) Authority for Interpretation The Stormwater Administrator has authority to determine the interpretation of this ordinance. Any person may request an interpretation by submitting a written request to the Stormwater Administrator who shall respond in writing within 30 days. The Stormwater Administrator shall keep on file a record of all written interpretations of this ordinance. (D) References to Statutes, Regulations, and Documents Whenever reference is made to a resolution, ordinance, statute, regulation, manual (including the Design Manual), or document, it shall be construed as a reference to the most recent edition of such that has been finalized and published with due provision for notice and comment, unless otherwise specifically stated. (E) Computation of Time The time in which an act is to be done shall be computed by excluding the first day and including the last day. If a deadline or required date of action falls on a Saturday, Sunday, or holiday observed by the City of Burlington, the deadline or required date of action shall be the next day that is not a Saturday, Sunday or holiday observed by the City of Burlington. References to days are calendar days unless otherwise stated. (F) Delegation of Authority Any act authorized by this Ordinance to be carried out by the Stormwater Administrator of the City of Burlington may be carried out by his or her designee. (G) Usage (1) Mandatory and Discretionary Terms The words "shall," "must," and "will" are mandatory in nature, establishing an obligation or duty to comply with the particular provision. The words "may" and "should" are permissive in nature. (2) Conjunctions Unless the context clearly indicates the contrary, conjunctions shall be interpreted as follows: The word "and" indicates that all connected items, conditions, provisions and events apply. The word "or" indicates that one or more of the connected items, conditions, provisions or events apply. (3) Tense, Plurals, and Gender Words used in the present tense include the future tense. Words used in the singular number include the plural number and the plural number includes the singular number, unless the context of the particular usage clearly indicates otherwise. Words used in the masculine gender include the feminine gender, and vice versa. (H) Measurement and Computation Lot area refers to the amount of horizontal land area contained inside the lot lines of a lot or site. 1-107 Design Manual (A) Reference to Design Manual The Stormwater Administrator shall use the policy, criteria, and information, including technical specifications and standards, in the Design Manual as the basis for decisions about stormwater permits and about the design, implementation and performance of structural and non-structural stormwater BMPs. The Design Manual includes a list of acceptable stormwater treatment practices, including specific design criteria for each stormwater practice. Stormwater treatment practices that are designed, constructed, and maintained in accordance with these design and sizing criteria will be presumed to meet the minimum water quality performance standards of the Phase II laws. (B) Relationship of Design Manual to Other Laws and Regulations If the specifications or guidelines of the Design 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 Design Manual. (C) Changes to Standards and Specifications If the standards, specifications, guidelines, policies, criteria, or other information in the Design Manual are amended subsequent to the submittal of an application for approval pursuant to this ordinance but prior to approval, the new information shall control and shall be utilized in reviewing the application and in implementing this ordinance with regard to the application. (D) Amendments to Design Manual The Design Manual may be updated and expanded from time to time, based on advancements in technology and engineering, improved knowledge of local conditions, or local monitoring or maintenance experience. Prior to amending or updating the Design Manual, proposed changes shall be generally publicized and made available for review, and an opportunity for comment by interested persons shall be provided. 1-108 Relationship to Other Laws, Regulations and Private Agreements (A) Conflict of Laws 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. 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 or environmental health, safety, and welfare shall control. (B) Private Agreements This ordinance is not intended to revoke or repeal any easement, covenant, or other private agreement. However, where the regulations of this ordinance are more restrictive or impose higher standards or requirements than such an easement, covenant, or other private agreement, the requirements of this ordinance shall govern. Nothing in this ordinance shall modify or repeal any private covenant or deed restriction, but such covenant or restriction shall not legitimize any failure to comply with this ordinance. In no case shall the City of Burlington be obligated to enforce the provisions of any easements, covenants, or agreements between private parties. 1-109 Severability If the provisions of any section, subsection, paragraph, subdivision or clause of this ordinance shall be adjudged invalid by a court of competent jurisdiction, such judgment shall not affect or invalidate the remainder of any section, subsection, paragraph, subdivision or clause of this ordinance. 1-110 Effective Date and Transitional Provisions (A) Effective Date This Ordinance shall take effect on July 1, 2007. (B) Final Approvals, Complete Applications All development and redevelopment projects for which complete and full applications were submitted and accepted for review by the City of Burlington Technical Review Committee prior to the effective date of this ordinance and which remain valid, unexpired, unrevoked and not otherwise terminated at the time of development or redevelopment shall be exempt from complying with all provisions of this ordinance dealing with the control and/or management of post - construction runoff, but shall be required to comply with all other applicable provisions, including but not limited to illicit discharge provisions. A phased development plan shall be deemed approved prior to the effective date of this ordinance if it has been approved by all necessary government units, it remains valid, unexpired, unrevoked and not otherwise terminated, and it shows: (1) For the initial or first phase of development, the type and intensity of use for a specific parcel or parcels, including at a minimum, the boundaries of the project and a subdivision plan that has been approved. (2) For any subsequent phase of development, sufficient detail so that implementation of the requirements of this ordinance to that phase of development would require a material change in that phase of the plan. (C) Violations Continue Any violation of provisions existing on the effective date of this ordinance shall continue to be a violation under this ordinance and be subject to penalties and enforcement under this ordinance unless the use, development, construction, or other activity complies with the provisions of this ordinance. SECTION 2: ADMINISTRATION AND PROCEDURES 2-201 Review and Decision -Making Entities (A) Stormwater Administrator (1) Designation A Stormwater Administrator shall be designated by the Burlington City Council to administer and enforce this ordinance. (2) Powers and Duties In addition to the powers and duties that may be conferred by other provisions of the Code of Ordinances of the City of Burlington and other laws, the Stormwater Administrator shall have the following powers and duties under this ordinance: (a) To review and approve, approve with conditions, or disapprove applications for approval of plans pursuant to this ordinance. (b) To make determinations and render interpretations of this ordinance. (c) To establish application requirements and schedules for submittal and review of applications and appeals, to review and make recommendations to the City Council on applications for development or redevelopment approvals. (d) To enforce the provisions of this ordinance in accordance with its enforcement provisions. (e) To maintain records, maps, forms, and other official materials relating to the adoption, amendment, enforcement, and administration of this ordinance. (f) To provide expertise and technical assistance to the City Council, upon request. (g) To designate appropriate other person(s) who shall carry out the powers and duties of the Stormwater Administrator. (h) To take any other action necessary to administer the provisions of this ordinance. 2-202 Review Procedures (A) Permit Required; Must Apply for Permit A stormwater permit is required for all development and redevelopment unless exempt pursuant to this ordinance. A permit may only be issued subsequent to a properly submitted and reviewed permit application, pursuant to this section. (B) Effect of Permit 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 ordinance, 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 ordinance. (C) Authority to File Applications All applications required pursuant to this Code shall be submitted to the Stormwater Administrator by the landowner or the landowner's duly authorized agent. (D) Establishment of Application Requirements, Schedule, and Fees (1) Application Contents and Form The Stormwater Administrator shall establish requirements for the content and form of all applications and shall amend and update those requirements from time to time. 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 ordinance. (2) Submission Schedule The Stormwater Administrator shall establish a submission 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. (3) Permit Review Fees The City Council shall establish permit review fees as well as policies regarding refund of any fees upon withdrawal of an application, and may amend and update the fees and policies from time to time. (4) Administrative Manual For applications required under this Code, the Stormwater Administrator shall compile the application requirements, submission schedule, fee schedule, a copy of this ordinance, and information on how and where to obtain the Design Manual in an Administrative Manual, which shall be made available to the public. (E) Submittal of Complete Application 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 section. An application shall be considered as timely submitted only when it contains all elements of a complete application pursuant to this ordinance, 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. (F) Review Within 60 calendar days after a complete application is submitted, the Stormwater Administrator shall review the application and determine whether the application complies with the standards of this ordinance. (1) Approval If the Stormwater Administrator finds that the application complies with the standards of this ordinance, the Stormwater Administrator shall approve the application. The Stormwater Administrator may impose conditions of approval as needed to ensure compliance with this ordinance. The conditions shall be included as part of the approval. (2) Fails to Comply If the Stormwater Administrator finds that the application fails to comply with the standards of this ordinance, the Stormwater Administrator shall notify the applicant and shall indicate how the application fails to comply. The applicant shall have an opportunity to submit a revised application. (3) Revision and Subsequent Review A complete revised application shall be reviewed by the Stormwater Administrator within 30 calendar days 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. One re -submittal of a revised application may be submitted without payment of an additional permit review fee. Any re -submittal after the first re - submittal shall be accompanied by a permit review fee additional fee, as established pursuant to this ordinance. 2-203 Applications for Approval (A) Concept Plan and Consultation Meeting Before a stormwater management permit application is deemed complete, the Stormwater Administrator or developer may request a consultation on a concept plan for the post -construction stormwater management system to be utilized in the proposed development project. This consultation 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. Local watershed plans, open space and natural area protection plans, policies or ordinances, and other relevant resource protection plans should be consulted in the discussion of the concept plan. To accomplish this goal, the following information should be included in the concept plan, which should be submitted in advance of the meeting: (1) Existing Conditions / Proposed Site Plans Existing conditions and proposed site layout sketch plans, which illustrate at a minimum: existing and proposed topography; perennial and intermittent streams; mapping of predominant soils from soil surveys (if available); boundaries of existing predominant vegetation; proposed limits of clearing and grading; and location of existing and proposed roads, buildings, parking areas and other impervious surfaces. Existing and proposed topography shall be shown at two -foot contour intervals on the tract to be developed and a minimum of 100-feet beyond the property lines. All contour information shall be based on mean sea level and accurate to within one-half foot. The benchmark with its description and the datum shall be clearly shown on the plan. (2) Natural Resources Inventory A written or graphic inventory of natural resources at the site and surrounding area as it exists prior to the commencement of the project. This description should include a discussion of soil conditions, forest cover, geologic features, topography, wetlands, and native vegetative areas on the site, as well as the location and boundaries of other natural feature protection and conservation areas such as lakes, ponds, floodplains, stream buffers and other setbacks (e.g., drinking water well setbacks, septic setbacks, etc.). Particular attention should be paid to environmentally sensitive features that provide particular opportunities or constraints for development and stormwater management. (3) Stormwater Management System Concept Plan A written or graphic concept plan of the proposed post -development stormwater management system including: preliminary selection and location of proposed structural stormwater controls; low impact design elements; location of existing and proposed conveyance systems such as grass channels, swales, and storm drains; flow paths; location of floodplain/floodway limits; relationship of site to upstream and downstream properties and drainages; and preliminary location of any proposed stream channel modifications, such as bridge or culvert crossings. (B) Technical Review Committee Submittal and Approval The Stormwater Management System Concept Plan and a separate maintenance plan shall be submitted to the Technical Review Committee (TRC) prior to, or concurrent with, the TRC development plan submittal. The Technical Review Committee shall be authorized to approve the Stormwater Management System Concept Plan and separate maintenance plan if the Concept Plan and maintenance plan are both found to be in conformance with this Ordinance. (C) Stormwater Management Permit Application The stormwater management permit application and Stormwater Management Plan shall detail how post -development stormwater runoff will be controlled and managed and how the proposed project will meet the requirements of this ordinance, including Section 3, Standards. All such plans shall be prepared by a qualified registered North Carolina professional engineer, surveyor, soil scientist or landscape architect, and the engineer, surveyor, soil scientist or landscape architect shall perform services only in their area of competence. The plans shall contain a signed and sealed statement certifying that the design of all stormwater management facilities and practices will control and treat runoff generated from one inch of rainfall over the total drainage area, 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 this ordinance. The submittal of the Stormwater Management Plan and permit application shall occur after approval of the Stormwater Management Concept Plan by the Technical Review Committee. The submittal shall include construction drawings and any other information required in the submittal checklist established by the Stormwater Administrator. Incomplete submittals shall be treated pursuant to Section 2-202(E). (D) Other Permits No certificate of compliance or occupancy shall be issued by the City of Burlington Inspections Department without final as -built plans and a final inspection and approval by the Stormwater Administrator, except when a performance security is posted as allowed by Sections 2-206 and 4-404, or where multiple units are served by the stormwater practice or facilities, in which case the City of Burlington Inspections Department may elect to withhold permits or certificates of occupancy until as -built plans are submitted and final inspection and approval has occurred. 2-204 Approvals (A) Effect of Approval Approval authorizes the applicant to go forward with only the specific plans and activities authorized in the permit. The approval shall not be construed to exempt the applicant from obtaining other applicable approvals from local, state, and federal authorities. (B) Time Limit/Expiration An approved plan shall become null and void if the applicant fails to make substantial progress on the site within one year after the date of approval. The Stormwater Administrator may grant a single, one-year extension of this time limit, for good cause shown, upon receiving a written request from the applicant before the expiration of the approved plan. In granting an extension, the Stormwater Administrator may require compliance with standards adopted since the original application was submitted unless there has been substantial reliance on the original permit and the change in standards would infringe the applicant's vested rights. 2-205 Appeals (A) Right of Appeal (1) Any aggrieved person affected by any decision, order, requirement, or determination relating to the interpretation or application of this ordinance and made by the Stormwater Administrator may file an appeal to the City Council within 15 days after receipt of said written decision, order, requirement, or determination. (2) A public hearing held pursuant to this section shall be conducted by the City Council within 45 days after the date of appeal or request for a hearing. (3) The City Council will render its final decision on any appeal within 20 days of the date of hearing. (4) The decision of the City Council shall be subject to Superior Court review of the proceedings in the nature of certiorari. All Superior Court review of City Council decisions shall be performed by the Superior Court of Alamance County. Petition for review by the Superior Court of Alamance County shall be filed with the Clerk of Superior Court of Alamance County within 30 days after the latter of the following: (a) The decision of the City Council is filed; or (b) A written copy of the decision is delivered to any aggrieved party that has filed a written request for such copy with the City Council at the time of its hearing of the case. 2-206 Design Professional's Certificate of Compliance, As - Built Plans and Final Approval The construction of all structural stormwater management improvements shown on an approved and permitted Stormwater Management Plan shall be substantially complete prior to final plat recordation or issuance of any certificate of occupancy. Upon approval of the Stormwater Administrator, an installation performance security as specified in Section 4-404 may be submitted prior to substantial completion of all structural stormwater management measures in order to record a final plat. Upon completion of a project and its associated structural stormwater management improvements, and before a certificate of occupancy shall be granted, the Design Professional shall certify, under seal, that the completed project is in accordance with the approved Stormwater Management Plan and design and with the requirements of this ordinance. The Design Professional shall also submit the information required in the As -Built submittal checklist established by the Stormwater Administrator. As -built submittals shall be certified by a qualified, licensed North Carolina professional engineer, surveyor, soil scientist, or landscape architect. The As -Built drawings 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 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 ordinance. Prior to the release of any performance securities required for the installation of structural BMPs as specified in Sections 4-404(A) & 4-404(B) the following conditions must be satisfied: (1) As -Built drawings and submittals must be approved by the Stormwater Administrator; (2) Project must be in compliance with the City's Erosion and Sedimentation Control Ordinance; and (3) Project must pass a final inspection and receive approval by the Stormwater Administrator. SECTION 3: STANDARDS 3-301 General Standards All development and redevelopment to which this ordinance applies shall comply with the standards of this section. 3-302 Development Standards for Low -Density Projects Low -density projects shall comply with each of the following standards: (A) Stormwater runoff from the development shall be transported from the development by vegetated conveyances to the maximum extent practicable. On - site stormwater treatment devices such as infiltration areas, bioretention areas, and level spreaders may also be used as added controls for stormwater runoff. A project with an overall density at or below the low - density thresholds, but containing areas with a density greater than the overall project density, may be considered low density as long as the project meets or exceeds the post -construction model practices for low -density projects and locates the higher density in upland areas and away from surface waters and drainage ways to the maximum extent practicable. (B) All built -upon area shall be at a minimum of 50 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 surface waters are not present in accordance with the provisions of 15A NCAC 2B .0233 (3)(a) or similar site -specific determination made using Division -approved methodology. (C) The approval of the stormwater permit shall require an enforceable restriction on property usage that runs with the land, such as a recorded deed restriction or protective covenants, to ensure that future development and redevelopment maintains the site consistent with the approved project plans. 3-303 Development standards for High -Density Projects High -density projects shall implement stormwater control measures that comply with each of the following standards: (A) The measures shall be designed to control and treat the stormwater runoff generated from all surfaces by the first one inch of rain. (B) Runoff volume drawdown time shall be a minimum of 48 hours, but not more than 120 hours; (C) Discharge the storage volume at a rate equal to or less than the predevelopment discharge rate for the one-year, 24-hour storm; (D) All structural stormwater treatment systems used to meet these requirements shall be designed to have a minimum of 85% average annual removal for Total Suspended Solids (TSS); (E) General engineering design criteria for all projects shall be in accordance with 15A NCAC 2H .1008(c), as explained in the Design Manual; (F) All built -upon area shall be at a minimum of 50 feet landward of all perennial and intermittent surface waters, measured horizontally on a line perpendicular to a vertical line marking the edge of the top of the bank.. A 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 surface waters are not present in accordance with the provisions of 15A NCAC 2B .0233 (3)(a) or similar site -specific determination made using Division -approved methodology. (G) The approval of the stormwater permit shall require an enforceable restriction on property usage that runs with the land, such as recorded deed restrictions or protective covenants, to ensure that future development and redevelopment maintains the site consistent with the approved project plans. 3-304 Undisturbed Buffer (A) Buffer Width general A minimum 30-foot wide undisturbed buffer measured horizontally on a line perpendicular to a vertical line marking the edge of the top of the bank shall be provided directly adjacent to surface waters (intermittent streams, perennial streams, lakes reservoirs and ponds). A surface water shall be deemed present as stated in 3-302(B) and 3-303(E). (B) Buffer Width - water supply watershed In water supply watersheds the minimum undisturbed buffer widths shall be: (1) Lake Buffer - minimum 100-foot wide undisturbed buffer measured horizontally to a line perpendicularly to a line marking the normal pool elevation outward (2) Perennial Stream - minimum 50-foot undisturbed buffer measured horizontally on a line perpendicular to a vertical line marking the edge of the top of the bank. (3) Intermittent Stream - minimum 50-foot undisturbed buffer measured horizontally on a line perpendicular to a vertical line marking the edge of the top of the bank. (C) Exceptions to the Undisturbed Buffer Rules Exceptions to the Undisturbed Buffer requirements may be granted by City Council for public utilities, public roads, greenways, or other uses deemed in the public interest on a case by case basis where no practical alternative exists. 3-305 Standards for Stormwater Control Measures (A) Evaluation According to Contents of Design Manual All stormwater control measures and stormwater treatment practices (also referred to as Best Management Practices, or BMPs) required under this ordinance shall be evaluated by the Stormwater Administrator according to the policies, criteria, and information, including technical specifications and standards and the specific design criteria for each stormwater practice, in the Design Manual. The Stormwater Administrator shall determine whether proposed BMPs will be adequate to meet the requirements of this ordinance. (B) Determination of Adequacy; Presumptions and Alternatives Stormwater treatment practices that are designed, constructed, and maintained in accordance with the criteria and specifications in the Design Manual will be presumed to meet the minimum water quality and quantity performance standards of this ordinance. Whenever an applicant proposes to utilize a practice or practices not designed and constructed in accordance with the criteria and specifications in the Design 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 ordinance. The Stormwater Administrator may require the applicant to provide the documentation, calculations, and examples necessary for the Stormwater Administrator to determine whether such an affirmative showing is made. (C) Separation from Seasonal High Water Table For BMPs that require a separation from the seasonal high-water table, the separation shall be provided by at least 12 inches of naturally occurring soil above the seasonal high water table. 3-306 Dedication of BMPS, Facilities & Improvements Unless otherwise approved by City Council, ownership and maintenance responsibility of any existing or future stormwater management facilities shall remain with the owner of the property or a legally established property owner's association. Such facilities shall meet all the requirements of this ordinance and include adequate and perpetual access and sufficient area, by easement or otherwise, for inspection and regular maintenance. 3-307 Variances (A) Variance Request Any person may petition the City Council for a variance granting permission to use the person's land in a manner otherwise prohibited by this ordinance. To qualify for a variance, the petitioner must show all of the following: (1) Unnecessary hardships would result from strict application of this ordinance. (2) The hardships result from conditions that are peculiar to the property, such as the location, size, or topography of the property. (3) The hardships did not result from actions taken by the petitioner. (4) The requested variance is consistent with the spirit, purpose, and intent of this ordinance; will secure public safety and welfare; and will preserve substantial justice. (B) Conditions of Variance The City Council may impose reasonable and appropriate conditions and safeguards upon any variance it grants. (C) Statutory Exceptions Notwithstanding subdivision (A) of this section, exceptions from the 50-foot landward location of built -upon area requirement as well as deed restrictions and protective covenants requirements shall be granted in any of the following instances: (1) 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. (2) When there is a lack of practical alternatives for a stormwater management facility; a stormwater management pond, or a utility, including, but not limited to, water, sewer, or gas construction and maintenance corridor, as long as it is located 15 feet landward of all perennial and intermittent surface waters and 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. (3) 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 it less adverse impact to surface waters. 3-308 Additional standards for special situations (A) Animal Waste (1) It shall be unlawful for the owner or custodian of any animal to take it off the owner's own property limits without the means to properly remove and dispose of the animal's feces from any public property. (2) It is the responsibility of the animal's owner or custodian to clean up the animal's feces from any public property outside of the animal owner's own property limits. Such property includes, but is not limited to, parks, rights - of -way, paths, and public access areas. (3) "Means to properly remove and dispose of feces" shall consist of having on or near one's person a device such as a plastic bag, or other suitable plastic or paper container that can be used to clean up and contain animal waste until it can be disposed of in an appropriate container. Such a device must be produced and shown, upon request, to anyone authorized to enforce these ordinances. (4) This provision shall not apply to handicapped persons assisted by trained guide or assistant dogs, or other animals trained to assist handicapped persons. (5) "Public nuisance" is defined to include "an animal which deposits feces on public property, and the person owning, possessing, harboring of having the care, charge, control or custody of the animal fails to remove the feces so deposited. Provided, however, this definition shall not apply to any animal assisting a handicapped person. (B) Nutrient Sensitive Waters In addition to the standards for stormwater handling set out in the design manual, development and redevelopment that drains in whole or part to class NSW waters shall design and implement the best stormwater practices that reduce nutrient loading, while still meeting the other requirements of this ordinance. (C) Nutrient Application Management Program (1) The purpose of this provision is to protect water quality by managing the application of nutrients, both inorganic fertilizer and organic nutrients, to lands in the region. This provision requires nutrient application in keeping with the most current state -recognized technical guidance on proper nutrient management in order to help protect water quality in the region. (2) This Program shall apply to the following persons within the corporate limits and extraterritorial jurisdiction of the City of Burlington as follows: (a) Persons who own or manage cropland areas for commercial purposes; (b) Persons who own or manage commercial ornamental and floriculture areas and greenhouse production areas; (c) Persons who own or manage golf courses, grassed public recreational lands, grassed road or utility rights -of -way, or other institutional lands totaling at least five acres in size; (d) Persons hired to apply nutrients to the lands described in Sub -Items (a) through (c) above or to residential, commercial, industrial or institutional properties, if the total area of the properties served exceeds 10 acres. This shall not apply to residential, commercial, or industrial landowners who apply nutrients to their own property. (e) Nutrient management consultants hired by persons listed in this Item to provide nutrient management advice for lands in the City's jurisdiction. (3) Persons to whom this Ordinance applies shall meet the following requirements: (a) Any person subject to this rule who applies nutrients to, or who is hired to provide nutrient management advice for, land within the City's jurisdiction shall either: i. Attend and complete nutrient management training pursuant to Item (D) of this Section; or ii. Complete and properly implement a nutrient management plan for all lands to which they apply or manage the application of nutrients, or for which they provide nutrient management advice, pursuant to Item (E) of this Section. (b) Persons who hire an applicator to apply nutrients to the land that they own or manage shall either: i. Ensure that the applicator they hire has attended and completed nutrient management training pursuant to Item (D) of this Section; or ii. Ensure that the applicator they hire has completed a nutrient management plan for the land that they own or manage pursuant to Item (E) of this Section; or iii. Complete a nutrient management plan for the land that they own or manage pursuant to Item (E) of this Section and ensure that the applicator they hire follows this plan. (D) Nutrient Management Training Persons who choose to meet this requirement by completing nutrient management training shall meet the following requirements: (1) Persons who are subject to this Ordinance as of its effective date, and persons who become subject to this Ordinance after its effective date, shall complete training provided by either the Cooperative Extension Service or the North Carolina Department of Environment and Natural Resources - Division of Water Quality within five years and obtain a certificate from the training entity to that effect. Training shall be sufficient to provide participants with an understanding of the value and importance of proper management of nitrogen and phosphorus, and the water quality impacts of poor nutrient management, and the ability to understand and properly carry out a nutrient management plan. (2) Persons who become subject to this Ordinance after its effective date shall complete the training provided by either the Cooperative Extension Service or the North Carolina Department of Environment and Natural Resources - Division of Water Quality and obtain a certificate to that effect from the training entity within one year from the date that they become subject verifying completion of training that addresses the elements identified in Sub - Item (D) (1) . (3) Persons who fail to obtain the nutrient management certificate within the required timeframes or who are found by the Stormwater Administrator to have knowingly failed to follow nutrient management requirements as referenced in Sub -Items (E) (1) (a) through (E) (1) (c) of this section shall develop and properly implement nutrient management plans pursuant to Item (E) of this Section. (4) Training certificates must be kept on -site, at the job site, or be produced within 24 hours of a request by the City of Burlington. (E) Nutrient Management Plans Persons who choose to meet the nutrient application requirement by completing and implementing a nutrient management plan shall meet the following requirements: (1) Persons who are subject to this Ordinance as of its effective date and persons who become subject to this Ordinance after its effective date shall develop and implement a nutrient management plan that meets the following standards within five years of the effective date or within 6 months from the date that they become subject, whichever is later. (a) Nutrient management plans for cropland shall meet the standards and specifications adopted by the NC Soil and Water Conservation Commission, including those found in 15A NCAC 06E .0104 and 15A NCAC 06F .0104, which are incorporated herein by reference, including any subsequent amendments and additions to such rules that are in place at the time that plans are approved by a technical specialist as required under Sub -Item (E)(2) of this section. (b) Nutrient management plans for turfgrass shall follow the North Carolina Cooperative Extension Service guidelines in "Water Quality and Professional Lawn Care" (NCCES publication number WQMM-155), "Water Quality and Home Lawn Care" (NCCES publication number WQMM-151), or other equivalent or more stringent guidance distributed by land-grant universities for turfgrass management. (c) Nutrient management plans for nursery crops and greenhouse production shall follow the Southern Nurserymen's Association guidelines promulgated in "Best Management Practices Guide For Producing Container -Grown Plants" or guidelines distributed by land-grant universities. The materials related to nutrient management plans for turfgrass, nursery crops and greenhouse production are hereby incorporated by reference including any subsequent amendments and editions and are available for inspection at the Department of Environment and Natural Resources Library, 512 North Salisbury Street, Raleigh, North Carolina. (2) The person who writes the nutrient management plan shall have the plan approved in writing by a technical specialist. Appropriate technical specialists shall be as follows: (a) Nutrient management plans for cropland using either inorganic fertilizer or organic nutrients shall be approved by a technical specialist designated pursuant to the process and criteria specified in Rules adopted by the Soil and Water Conservation Commission for nutrient management planning, including 15A NCAC 06F .0105, excepting Sub -Item (a)(2) of that Rule. (b) Nutrient management plans for turfgrass and nursery crops and greenhouse production shall be approved by a technical specialist designated by the Soil and Water Conservation Commission pursuant to the process and criteria specified in 15A NCAC 06F .0105, excepting Sub -Item (a)(2) of that Rule. If the Soil and Water Conservation Commission does not designate such specialists, then the Environmental Management Commission shall do so using the same process and criteria. (3) Nutrient management plans and supporting documents must be kept on -site or be produced within 24 hours of a request by the City. 3-309 Onsite wastewater (A) On -Site Wastewater System Permit For new development and redevelopment that utilize the use of on -site wastewater treatment systems, a copy of the approved on -site wastewater system permit issued by the Alamance County Environmental Health Department shall be provided to the Stormwater Administrator as part of the Stormwater Management Permit Application. (B) Standards for Operation and Maintenance Onsite systems for domestic wastewater shall be operated and maintained so as to avoid adverse effects on surface water and groundwater, including eutrophication of surface water and microbial or nitrate contamination of groundwater. Septic tank residuals shall be pumped whenever necessary to assure the proper operation of the system to meet these standards, and the septage shall be reused or disposed of in a manner that does not present significant risks to human health, surface water or groundwater. SECTION 4: MAINTENANCE 4-401 General Standards for Maintenance (A) Function of BMPs As Intended The owner of each structural BMP installed pursuant to this ordinance 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. (B) Annual Maintenance Inspection and Report The person responsible for maintenance of any structural BMP installed pursuant to this ordinance 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, surveyor, landscape architect, soil scientist, aquatic biologist, 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: (1) The name, address and telephone number of the landowner; (2) The recorded book and page number and the Parcel Identification Number (PIN) or Parcel Number as assigned by Alamance County or Guilford County respectively of the lot of each structural BMP; (3) A statement that an inspection was made of all structural BMPs; (4) The date the inspection was made; (5) 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 (6) The original signature and seal of the engineer, surveyor, or landscape architect. 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. 4-402 Operation and Maintenance Agreement (A) In General Prior to the conveyance or transfer of any lot or building site to be served by a structural BMP pursuant to this ordinance, and prior to issuance of any permit for development or redevelopment requiring a structural BMP pursuant to this ordinance, 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. 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 to the City of Burlington 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 City of Burlington 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 within fourteen (14) days following its recordation. (B) Special Requirement for Homeowners' and Other Associations For all structural BMPs required pursuant to this ordinance and that are to be or are owned and maintained by a homeowners' association, property owners' association, or similar entity, the required operation and maintenance agreement shall include all of the following provisions: (1) Acknowledgment that the association shall continuously operate and maintain the stormwater control and management facilities. (2) Establishment of an escrow account, which can be spent solely for sediment removal, structural, biological or vegetative replacement, major repair, or reconstruction of the structural BMPs. If structural BMPs are not performing adequately or as intended or are not properly maintained, the City of Burlington, in its sole discretion, may remedy the situation, and in such instances the City of Burlington shall be fully reimbursed from the escrow account. Escrowed funds may be spent by the association for sediment removal, structural, biological or vegetative replacement, major repair, and reconstruction of the structural BMPs, provided that the City of Burlington shall first consent to the expenditure. (3) The escrow account shall be funded to a level suitable to conduct the activities listed in Section 4-402(B)(2), which shall be based upon a submittal of construction costs and anticipated maintenance costs prepared and sealed by the design professional, and approved by the City of Burlington. Both developer contribution and annual sinking funds shall fund the escrow account. Prior to plat recordation or issuance of construction permits, whichever shall first occur, the developer shall pay into the escrow account an amount equal to fifteen (15) per cent of the initial construction cost of the structural BMPs. Two-thirds (2/3) of the total amount of sinking fund budget shall be deposited into the escrow account within the first five (5) years and the full amount shall be deposited within ten (10) years following initial construction of the structural BMPs. Funds shall be deposited each year into the escrow account. A portion of the annual assessments of the association shall include an allocation into the escrow account. Any funds drawn down from the escrow account shall be replaced in accordance with the schedule of anticipated work used to create the sinking fund budget. (4) The percent of developer contribution and lengths of time to fund the escrow account may be varied by the City of Burlington depending on the design and materials of the stormwater control and management facility. (5) Granting to the City of Burlington a right of entry to inspect, monitor, maintain, repair, and reconstruct structural BMPs. (6) Allowing the City of Burlington to recover from the association and its member's any and all costs the City of Burlington expends to maintain or repair the structural BMPs or to correct any operational deficiencies. Failure to pay the City of Burlington all of its expended costs, after forty-five days written notice, shall constitute a breach of the agreement. In case of a deficiency, the City of Burlington shall thereafter be entitled to bring an action against the association and its members to pay, or foreclose upon the lien hereby authorized by the agreement against the property, or both. Interest, collection costs, and attorney fees shall be added to the recovery. (7) A statement that this agreement shall not obligate the City of Burlington to maintain or repair any structural BMPs, and the City of Burlington shall not be liable to any person for the condition or operation of structural BMPs. (8) A statement that this agreement shall not in any way diminish, limit, or restrict the right of the City of Burlington to enforce any of its ordinances as authorized by law. (9) A provision indemnifying and holding harmless the City of Burlington for any costs and injuries arising from or related to the structural BMP, unless the City of Burlington has agreed in writing to assume the maintenance responsibility for the BMP and has accepted dedication of any and all rights necessary to carry out that maintenance. 4-403 Inspection Program Inspections and inspection programs by the City of Burlington may be conducted or established on any reasonable basis, including but not limited to routine inspections; random inspections; inspections based upon complaints or other notice of possible violations; and joint inspections with other agencies inspecting under environmental or 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; and evaluating the condition of BMPs. If the owner or occupant of any property refuses to permit such inspection, the Stormwater Administrator shall proceed to obtain an administrative search warrant pursuant to G.S. 15-27.2 or its successor. No person shall obstruct, hamper or interfere with the Stormwater Administrator while carrying out his or her official duties 4-404 Performance Security for Installation and Maintenance (A) May Be Required The City of Burlington may, at its discretion, require the submittal of a performance security or bond with surety, cash escrow, irrevocable letter of credit or other acceptable legal arrangement prior to issuance of a permit in order to ensure that the structural BMPs are (1) installed by the permit holder as required by the approved stormwater management plan, and/or (2) maintained by the owner as required by the operation and maintenance agreement. (B) Amount (1) Installation The amount of an installation performance security shall be the total estimated construction cost of the BMPs approved under the permit, plus 25%. The estimate of construction cost shall be prepared by a qualified registered North Carolina Professional Engineer, Surveyor, Soil Scientist, or Landscape Architect. (2) Maintenance 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. (C) Uses of Performance Security (1) Forfeiture Provisions 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 or owner in accordance with this ordinance, approvals issued pursuant to this ordinance, or an operation and maintenance agreement established pursuant to this ordinance. (2) Default Upon default of the owner to construct, maintain, repair and, if necessary, reconstruct any structural BMP in accordance with the applicable permit or operation and maintenance agreement, 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 owner to comply with the permit or maintenance agreement. In the event of a default triggering the use of installation performance security, the City of Burlington shall not return any of the unused deposited cash funds or other security, which shall be retained for maintenance. (3) Costs in Excess of Performance Security If the City of Burlington takes action upon such failure by the applicant or owner, the City of Burlington may collect from the applicant or owner the difference between the amount of the reasonable cost of such action and the amount of the security held, in addition to any other penalties or damages due. (4) Refund Within sixty 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 25%) 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. 4-405 Notice to owners (A) Deed Recordation and Indications On Plat The applicable operations and maintenance agreement pertaining to every structural BMP shall be referenced on the final plat and shall be recorded with the county Register of Deeds upon final plat approval. If no subdivision plat is recorded for the site, then the operations and maintenance agreement, shall be recorded with the county Register of Deeds so as to appear in the chain of title of all subsequent purchasers under generally accepted searching principles. (B) Signage Where appropriate in the determination of the Stormwater Administrator to assure compliance with this ordinance, structural BMPs shall be posted with a conspicuous sign stating who is responsible for required maintenance and annual inspection. The sign shall be maintained so as to remain visible and legible. 4-406 Records of Installation and Maintenance Activities The owner of each structural BMP shall keep records of inspections, maintenance, and repairs for at least five years from the date of creation of the record and shall submit the same upon reasonable request to the Stormwater Administrator. 4-407 Nuisance The owner of each Stormwater BMP, whether structural or non- structural BMP, shall maintain it so as not to create or result in a nuisance condition. 4-408 Maintenance Easement Every structural BMP installed pursuant to this ordinance shall be made accessible for adequate maintenance and repair by a maintenance easement. The easement shall be recorded and its terms shall specify who may make use of the easement and for what purposes. Dedicated access and/or maintenance easements for structural BMPs on private property are for the use of the owner of the structural BMP(s). Dedication of access and/or maintenance easements for structural BMPs in no way binds or requires the City of Burlington to perform maintenance on structural BMPs on private property. 4-409 Existing Structural BMPs Sections 4-401, 4-403, 4-404, 4-405(B), 4-406 and 4-407 of this Ordinance shall also apply to structural BMPs that were installed prior to the effective date of this ordinance. At the time of subdivision, recombination, development or redevelopment of property having structural BMPs installed prior to the effective date of this ordinance Sections 4-402, 4-405(A), and 4-408 shall also apply. SECTION 5: ENFORCEMENT AND VIOLATIONS 5-501 General (A) Authority to Enforce The provisions of this ordinance shall be enforced by the Stormwater Administrator, his or her designee, or any authorized agent of the City of Burlington. Whenever this section refers to the Stormwater Administrator, it includes his or her designee as well as any authorized agent of the City of Burlington. (B) Violation Unlawful Any failure to comply with an applicable requirement, prohibition, standard, or limitation imposed by this ordinance, or the terms or conditions of any permit or other development or redevelopment approval or authorization granted pursuant to this ordinance, is unlawful and shall constitute a violation of this ordinance. (C) Each Day a Separate Offense Each day that a violation continues shall constitute a separate and distinct violation or offense. (D) Responsible Persons/Entities Any person who erects, constructs, reconstructs, alters (whether actively or passively), or fails to erect, construct, reconstruct, alter, repair or maintain any structure, BMP, practice, or condition in violation of this ordinance shall be subject to the remedies, penalties, and/or enforcement actions in accordance with this section. Persons subject to the remedies and penalties set forth herein may include any architect, engineer, landscape architect, soil scientist, surveyor, builder, contractor, developer, agency, or any other person who participates in, assists, directs, creates, causes, or maintains a condition that results in or constitutes a violation of this ordinance, or fails to take appropriate action, so that a violation of this ordinance results or persists; or an owner, any tenant or occupant, or any other person, who has control over, or responsibility for, the use or development of the property on which the violation occurs. For the purposes of this article, responsible person(s) shall include but not be limited to: (1) Person Maintaining Condition Resulting In or Constituting Violation An architect, engineer, landscape architect, soil scientist, surveyor, builder, contractor, developer, agency, or any other person who participates in, assists, directs, creates, causes, or maintains a condition that constitutes a violation of this ordinance, or fails to take appropriate action, so that a violation of this ordinance results or persists. (2) Responsibility For Land or Use of Land The owner of the land on which the violation occurs, any tenant or occupant of the property, any person who is responsible for stormwater controls or practices pursuant to a private agreement or public document, or any person, who has control over, or responsibility for, the use, development or redevelopment of the property. 5-502 Remedies and Penalties The remedies and penalties 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. (A) Remedies (1) Withholding of Certificate of Occupancy The Stormwater Administrator or other authorized agent may refuse to issue a certificate of occupancy for the building or other improvements constructed or being constructed on the site and served by the stormwater practices in question until the applicant or other responsible person has taken the remedial measures set forth in the notice of violation or has otherwise cured the violations described therein. (2) Disapproval of Subsequent Permits and Development Approvals As long as a violation of this ordinance continues and remains uncorrected, the Stormwater Administrator or other authorized agent may withhold, and the Planning and Zoning Board and/or City Council may disapprove, any request for permit or development approval or authorization provided for by this ordinance or the zoning, subdivision, and/or building regulations, as appropriate for the land on which the violation occurs. (3) Injunction, Abatements, etc. The Stormwater Administrator, with the written authorization of the City Manager, may institute an action in a court of competent jurisdiction for a mandatory or prohibitory injunction and order of abatement to correct a violation of this ordinance. Any person violating this ordinance shall be subject to the full range of equitable remedies provided in the General Statutes or at common law. (4) Correction as Public Health Nuisance, Costs as Lien, etc. If the violation is deemed dangerous or prejudicial to the public health or public safety and is within the geographic limits prescribed by North Carolina G.S. § 160A-193, the Stormwater Administrator, with the written authorization of the City Manager, may cause the violation to be corrected and the costs to be assessed as a lien against the property. (5) Stop Work Order The Stormwater Administrator may issue a stop work order to the person(s) violating this ordinance. 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. (B) Civil Penalties Violation of this ordinance may subject the violator to a civil penalty to be recovered in a civil action in the nature of a debt if the violator does not pay the penalty within 30 days after notice of the violation is issued by the Stormwater Administrator. Civil penalties may be assessed up to the full amount of penalty to which the City of Burlington is subject for violations of its Phase II Stormwater permit or if no Phase II Stormwater permit violation exists for the jurisdiction, civil penalties may be assessed up to the full amount allowed by law. (C) Criminal Penalties Violation of this ordinance may be enforced as a misdemeanor subject to the maximum fine permissible under North Carolina law. 5-503 Procedures (A) Initiation/Complaint Whenever a violation of this ordinance occurs, or is alleged to have occurred, any person may file a written complaint. Such complaint shall state fully the alleged violation and the basis thereof, and shall be filed with the Stormwater Administrator, who shall record the complaint. The complaint shall be investigated promptly by the Stormwater Administrator. (B) Inspection The Stormwater Administrator 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. (C) Notice of Violation and Order to Correct When the Stormwater Administrator finds that any building, structure, or land is in violation of this ordinance, the Stormwater Administrator shall notify, in writing, the property owner or other person violating this ordinance. The notification shall indicate the nature of the violation, contain the address or other description of the site upon which the violation is occurring, order the necessary action to abate the violation, and give a deadline for correcting the violation. If civil penalties are to be assessed, the notice of violation shall also contain a statement of the civil penalties to be assessed, the time of their accrual, and the time within which they must be paid or be subject to collection as a debt. The Stormwater Administrator may deliver the notice of violation and correction order personally, by the Burlington Police Department, by certified or registered mail, return receipt requested, or by any means authorized for the service of documents by Rule 4 of the North Carolina Rules of Civil Procedure. If a violation is not corrected within a reasonable period of time, as provided in the notification, the Stormwater Administrator may take appropriate action under this ordinance to correct and abate the violation and to ensure compliance with this ordinance. (D) Extension of Time A person who receives a notice of violation and correction order, or the owner of the land on which the violation occurs, may submit to the Stormwater Administrator a written request for an extension of time for correction of the violation. On determining that the request includes enough information to show that the violation cannot be corrected within the specified time limit for reasons beyond the control of the person requesting the extension, the Stormwater Administrator may extend the time limit as is reasonably necessary to allow timely correction of the violation, up to, but not exceeding 14 days. The Stormwater Administrator may grant 7-day extensions in addition to the foregoing extension if the violation cannot be corrected within the permitted time due to circumstances beyond the control of the person violating this ordinance. The Stormwater Administrator may grant an extension only by written notice of extension. The notice of extension shall state the date prior to which correction must be made, after which the violator will be subject to the penalties described in the notice of violation and correction order. (E) Enforcement After Time to Correct After the time has expired to correct a violation, including any extension(s) if authorized by the Stormwater Administrator, the Stormwater Administrator shall determine if the violation is corrected. If the violation is not corrected, the Stormwater Administrator may act to impose one or more of the remedies and penalties authorized by this ordinance. (F) Emergency Enforcement If delay in correcting a violation would seriously threaten the effective enforcement of this ordinance or pose an immediate danger to the public health, safety, or welfare, then the Stormwater Administrator may order the immediate cessation of a violation. Any person so ordered shall cease any violation immediately. The Stormwater Administrator may seek immediate enforcement, without prior written notice, through any remedy or penalty authorized by this article. SECTION 6: DEFINITIONS 6-601 Terms Defined When used in this Ordinance, the following words and terms shall have the meaning set forth in this section, unless other provisions of this Ordinance specifically indicate otherwise. Applicator Person who applies fertilizer to the land or the immediate supervisor of such person. Best Management Practice (BMP) Measures or practices used to reduce the amount of pollution entering surface waters. BMPs can be structural or non- structural and may take the form of a process, activity, physical structure or planning. Built -upon area (BUA) That portion of a development project that is covered by impervious or partially impervious surface including, but not limited to, buildings; pavement and gravel areas such as roads, parking lots, and paths; and recreation facilities such as tennis courts. "Built -upon area" does not include a wooden slatted deck, the water area of a swimming pool, or pervious or partially pervious paving material to the extent that the paving material absorbs water or allows water to infiltrate through the paving material. Clean Water Act The Federal Water Pollution Control Act, also known as the Clean Water Act (CWA), as amended, 33 USC 1251, et. Seq. Common Plan of Development A construction or land disturbing activity is part of a larger common plan of development if it is completed in one or more of the following ways: In separate stages In separate phases In combination with other construction activities It is identified by the documentation (including but not limited to a sign, public notice or hearing, sales pitch, advertisement, loan application, drawing, plats, blueprints, marketing plans, contracts, permit application, zoning request, or computer design) or physical demarcation (including but not limited to boundary signs, lot stakes, or surveyor markings) indicating that construction activities may occur on a specific plot. It can include one operator or many operators. Consultant Person who is hired to provide professional advice to another person. Department The North Carolina Department of Environment and Natural Resources. Design Manual The stormwater design manual approved for use in Phase II jurisdictions by the Department for the proper implementation of the requirements of the federal Phase II stormwater program. All references herein to the Design Manual are to the latest published edition or revision. Development Any land -disturbing activity that increases the amount of built - upon area or that otherwise decreases the infiltration or precipitation into the soil. Director The Director of the Division of Water Quality is the North Carolina Department of Environment and Natural Resources. Division or DWQ The Division of Water Quality in the Department. EMC The North Carolina Environmental Management Commission. Grab Sample An individual sample collected instantaneously. Grab samples that will be directly analyzed or qualitatively monitored must be taken within the first 30 minutes of discharge. Hazardous Substance Any substance designated in 40 CFR Part 116 pursuant to Section 311 of the Clean Water Act. High -density project Any project that exceeds the low -density threshold for dwelling units per acre or built -upon area. Illicit Discharge Any discharge to a MS4 that is not composed entirely of stormwater except discharges pursuant to an NPDES permit (other than the NPDES MS4 permit), allowable non-stormwater discharges, and discharges resulting from fire -fighting activities. Industrial Activity For the purposes of this permit, industrial activities shall mean all industrial activities as defined in 40 CFR 122.26. Low -density project A project that has no more than two dwelling units per acre or twenty-four percent built -upon area (BUA) for all residential and non-residential development. A project with an overall density at or below the relevant low - density threshold, but containing areas with a density greater than the overall project density, may be considered low -density as long as the project meets or exceeds the post - construction model practices for low -density projects and locates the higher density in upland areas and away from surface waters and drainageways to the maximum extent practicable. Municipal Separate Storm Sewer System (MS4) Pursuant to 40 CFR 122.26(b)(8) means a conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, manmade channels, or storm drains): (i) Owned or operated by the United States, a State, city, town, county, district, association, or other public body (created by or pursuant to State law) having jurisdiction over disposal of sewage, industrial wastes, stormwater, or other wastes, including special districts under State law such as a sewer district, flood control district or drainage district, or similar entity, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved management agency under Section 208 of the Clean Water Act (CWA) that discharges to waters of the United States or waters of the State. (ii) Designed or used for collecting or conveying stormwater; (iii) Which is not a combined sewer; and (iv) Which is not part of a Publicly Owned Treatment Works (POTW) as defined in 40 CFR 122.2. Non-structural BMP Non-structural BMPs are preventive actions that involve management and source controls such as: (1) Policies and ordinances that provide requirements and standards to direct growth to identified areas, protect sensitive areas such as wetlands and riparian areas, maintain and/or increase open space, provide buffers along sensitive water bodies, minimize impervious surfaces, and/or minimize disturbance of soils and vegetation; (2) policies or ordinances that encourage infill development in higher density urban areas, and areas with existing storm sewer infrastructure; (3) education programs for developers and the public about minimizing water quality impacts; (4) other measures such as minimizing the percentage of impervious area after development, use of measures to minimize directly connected impervious areas, and source control measures often thought of as good housekeeping, preventive maintenance and spill prevention. 1-year, 24-hour storm The surface runoff resulting from a 24-hour rainfall of an intensity expected to be equaled or exceeded, on average, once in 12 months and with a duration of 24 hours. For design purposes, the 1-year, 24-hour storm produces approximately 3.0 inches of rain in the Burlington Area. Outf all The point of wastewater or stormwater discharge from a discrete conveyance system. See also point source discharge of stormwater. Owner The legal or beneficial owner of land, including but not limited to a mortgagee or vendee in possession, receiver, executor, trustee, or long-term or commercial lessee, or any other person or entity holding proprietary rights in the property or having legal power of management and control of the property. "Owner" shall include long-term commercial tenants; management entities, such as those charged with or engaged in the management of properties for profit; and every person or entity having joint ownership of the property. A secured lender not in possession of the property does not constitute an owner, unless the secured lender is included within the meaning of "owner" under another description in this definition, such as a management entity. Point Source Discharge of Stormwater Any discernible, confined and discrete conveyance including, but not specifically to, any pipe, ditch, channel, tunnel, conduit, well, or discrete fissure from which stormwater is or may be discharged to waters of the state. Redevelopment Any development on previously developed land, other than a rebuilding activity that results in no net increase in built - upon area and provides equal or greater stormwater control than the previous development. Stormwater Runoff The flow of water which results from precipitation and which occurs immediately following rainfall or as a result of snowmelt. Structural BMP A physical device designed to trap, settle out, or filter pollutants from stormwater runoff; to alter or reduce stormwater runoff velocity, amount, timing, or other characteristics; to approximate the pre -development hydrology on a developed site; or to achieve any combination of these goals. Structural BMP includes physical practices such as constructed wetlands, vegetative practices, filter strips, grassed swales, and other methods installed or created on real property. "Structural BMP" is synonymous with "structural practice", "stormwater control facility," "stormwater control practice," "stormwater treatment practice," "stormwater management practice," "stormwater control measures," "structural stormwater treatment systems," and similar terms used in this ordinance. Substantial progress For the purposes of determining whether sufficient progress has been made on an approved plan, one or more of the following construction activities toward the completion of a site or subdivision plan shall occur: obtaining a grading permit and conducting grading activity on a continuous basis and not discontinued for more than thirty (30) calendar days; or installation and approval of on -site infrastructure; or obtaining a building permit for the construction and approval of a building foundation. "Substantial progress" for purposes of determining whether an approved plan is null and void is not necessarily the same as "substantial expenditures" used for determining vested rights pursuant to applicable law. Toxic Pollutant Any pollutant listed as toxic under Section 307(a)(1) of the Clean Water Act. SECTION 7: Illicit Discharges 7-701 Illicit Discharges and Connections (A) Illicit 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, any liquid, solid, gas, or other substance, other than stormwater; provided that non-stormwater discharges associated with the following activities are allowed and provided that they do not significantly impact water quality: (1) Water line flushing; (2) Landscape irrigation; (3) Diverted stream flows; (4) Rising ground waters; (5) Uncontaminated ground water infiltration (as defined at 40 CFR 35.2005(20)); (6) Uncontaminated pumped ground water; (7) Discharges from potable water sources; (8) Foundation drains; (9) Air conditioning condensation; (10) Irrigation water; (11) Springs; (12) Water from crawl space pumps; (13) Footing drains; (14) (Lawn watering; (15) (Individual residential car washing; (16) (Flows from riparian habitats and wetlands; (17) Dechlorinated swimming pool discharges; (18) Street wash water; and (19) Flows from emergency firefighting (20) Other non-stormwater discharges for which a valid NPDES discharge permit has been approved and issued by the State of North Carolina, and provided that any such discharges to the municipal separate storm sewer system shall be authorized by the City of Burlington. Prohibited substances include but are not limited to: oil, anti -freeze, chemicals, animal waste, paints, garbage, and litter. (B) Illicit Connections (1) Connections to a stormwater conveyance or stormwater conveyance system that allow the discharge of non-stormwater, other than the exclusions described in section (a) above, are unlawful. Prohibited connections include, but are not limited to: floor drains, waste water from washing machines or sanitary sewers, wash water from commercial vehicle washing or steam cleaning, and waste water from septic systems. (2) 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 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. 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. (3) 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 ordinance, other than this section; the Stormwater Administrator shall designate the time within which the connection shall be removed. In setting the time limit for compliance, the Stormwater Administrator shall take into consideration: i. The quantity and complexity of the work, ii. The consequences of delay, iii. The potential harm to the environment, to the public health, and to public and private property, and iv. The cost of remedying the damage. (C) Spills Spills or leaks of polluting substances released, discharged to, or having the potential to released or discharged to the stormwater conveyance system, shall be contained, controlled, collected, and properly disposed. All affected areas shall be restored to their preexisting condition. Persons in control of the polluting substances immediately prior to their release or discharge, and persons owning the property on which the substances were released or discharged, shall immediately notify the Emergency Management Coordinator or the Fire Chief of the release or discharge, as well as making any required notifications under state and federal law. 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. (D) Industrial or Construction Activity Discharges Any person subject to an industrial or construction activity NPDES stormwater discharge permit shall comply with provisions of such permit. Proof of compliance with said permit may be required in a form acceptable to the City of Burlington prior to authorization of discharges to the MS4. (E) Right of Entry, Inspection, Sampling, and Testing (1) Authority to Inspect - Whenever necessary to make an inspection to enforce any provision of this Ordinance, or whenever the Stormwater Administrator has cause to believe that there exists, or potentially exists, in or upon any premise any condition which constitutes a violation of this Ordinance, the Stormwater Administrator may enter such premises at all reasonable times to inspect the same and to inspect and copy records related to stormwater compliance. In the event the owner or occupant refuses entry after a request to enter and inspect has been made, the City of Burlington is hereby empowered to seek assistance from any court of competent jurisdiction in obtaining such entry. (2) Authority to Sample, Establish Sampling Devices, and Test - During any inspection as provided herein, the Stormwater Administrator may take any samples and perform any testing deemed necessary to aid in the pursuit of the inquiry or to record site activities. (F) Enforcement Whenever the Stormwater Administrator finds that a person has violated a prohibition or failed to meet a requirement of this Ordinance, the Stormwater Administrator may order compliance by written notice of violation to the responsible person and/or the property owner. Such notice may require without limitation: (1) The performance of monitoring, analysis, 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 stormwater 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 BMPs. If abatement of a violation and/or restoration of affected property is required, the notice shall set forth a deadline within which such remediation or restoration must be completed. Said notice shall further advise that, should the violator fail to remediate or restore within the established deadline, the work will be done by the City of Burlington or a contractor designated by the Stormwater Administrator and the expense shall be charged to the violator. (G) Violations Deemed a Public Nuisance Illicit discharges and illicit connections which exist within the City Limits and the City's Extraterritorial Jurisdiction are hereby found, deemed, and declared to be dangerous or prejudiced to the public health or public safety and are found, deemed, and declared to be public nuisances. Such public nuisances shall be abated in accordance with the procedures set forth in the City of Burlington Code of Ordinances Chapter 22. The foregoing ordinance was seconded by Councilmember Starling, and after full discussion, the same was voted upon and declared duly adopted, no amendments having been offered and consent having been given to place the same upon its immediate passage. Councilmembers voting in favor of the motion to adopt the foregoing ordinance were Ross, Jones, Huffman and Starling. NEW BUSINESS: ITEM 7: APPOINTMENTS TO ADVISORY BOARDS AND COMMISSIONS Mayor Ross announced that the City Council would consider appointments to the Advisory Boards and Commissions. City Manager Owen stated the appointments would be effective July 1, 2007. Councilmember Huffman suggested waiting until the next City Council meeting so Councilmember Wall would be present to make the appointments. Councilmember Starling pointed out that it was continued from the work session to this City Council meeting and suggested making the appointments. Councilmember Huffman replied that Councilmember Wall had a conflict that prevented his attending the City Council meeting. Councilmember Huffman made a motion that the appointments be continued to the July 17, 2007, City Council meeting and that an effort me made to find people who would be interested in serving on the boards and commissions. Councilmember Jones seconded the motion. The motion passed by a vote of three to one with Councilmember Starling voting against the motion. City Attorney stated that the present members would serve until their successors were appointed. PUBLIC COMMENT PERIOD: There were no public comments. ADJOURN: Upon motion by Councilmember Starling, seconded by Councilmember Huffman, it was resolved unanimously to adjourn. Jondeen D. Terry City Clerk ' [Rwl]Revision history — Changes from 7/l/05 draft: Corrected reference to the Code of Federal Regulations (CFR) in XX-105(B), Exemptions (p. 12 of the 7/1/05 pdf file) —reference should read "40 CFR 232" rather than "40 CFR 302." changes from 5/19/05 draft. -§ 105(D) added reference to local zoning and jurisdictional boundary ordinances as potentially important authority for determinations about site - specific applicability. § 108(A) Comment --added reference to nuisance code provisions as potentially conflicting with Phase II stormwater § 203 - removed a stray right bracket. § 306 Comment --added cautionary note about accepting BMPs for maintenance. § 402(B)--in light of concerns about failure of BMPs owned by homeowners' associations, added hold harmless clause for local governments that must take over BMP maintenance due to failure of the homeowners' association to keep a BMP functioning correctly. § 503(C)--added comment noting potential need for enhanced notice and opportunity to correct violations if the stormwater ordinance is enacted and administered as an exercise of the unit's planning and zoning authority.