1_WQC-Homewood-Jordan Buffer Variance presentation

Request for a Major Variance from the Jordan Lake Riparian Area Protection Rule
January 11, 2023Sue Homewood, Division of Water Resources
Pines at Wake Crossing Subdivision
Toll NC II, LP
Apex NC
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Division of Water Resources
Presentation Outline
Project –Pines at Wake Crossing
Town of Apex Unified Development Ordinance (UDO) Variance Process
Jordan Lake Riparian Buffer Rules Variance Request
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Division of Water Resources
Project Timeline
2007 Pines at Wake Crossing Subdivision Plan Approval
2011 Jordan Lake Riparian Buffer Rules adopted into Town Ordinance
2012-2013 Culvert construction
2017 Final Subdivision Plat recorded
Project –FEMA Violation
•Culvert installed within a regulatory floodway
•Confusion regarding floodplain delineation and mapping
•Did not receive a FEMA Condition Letter of Map Revision (CLOMR) prior to construction FEMA violation
•FEMA
•Does not have a mechanism to consider an “After the Fact” approval
•Applicant and Town of Apex conducted meetings with FEMA to discussion resolution of the violation
•Issued a letter detailing remedial options on December 20, 2021
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Project –Options to Resolve FEMA Violation
1.Remove existing culvert and create two dead end streets
Applicant states this is not a viable option because it would not accommodate first responder vehicle turn arounds and would require re-laying existing utilities. It would also cut off the stormwater drainage from treatment system on the other side of the road.
2.Add another culvert for additional storm capacity
Applicant states this is not a viable option because the culvert installation would require significant trenching and temporary blockage to the roadway, as well as disturb existing utilities within the roadway. Installation of second culvert would disturb existing stream, wetland and buffer.
3.Excavate an area adjacent to the culvert (upstream and downstream) in order to lower the base flood elevation rise created by the culvert
Applicant states this is the only viable option.
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Project –USGS Topographic/Soil Survey Map
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Project -Aerial Map / Culvert Drawing
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Project –Proposed Buffer Impact Map & Impact Amounts
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Project –Existing Conditions
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Division of Water Resources
Town of Apex –Approval Process
•Current Town of Apex Unified Development Ordinance (UDO) adopted March 23, 2021
•Jordan Lake Riparian Buffer Rules incorporated into Section 6.1.11 of the current Town of Apex Unified Development Ordinance
•Toll NC II, LP applied to the Town of Apex for a Major Variance pursuant to the standards set forth in Section 2.3.8(D) of the Town of Apex Unified Development Ordinance on April 11, 2022.
•Board of Adjustment of the Town of Apex made a Findings of Fact and approved the variance application pursuant to the standards set forth in their UDO on June 21, 2022
•Town of Apex’s Findings of Facts were submitted to the Division of Water Resources for review by EMC pursuant to their UDO and the Jordan Buffer Rules
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Town of Apex –Board of Adjustment Findings of Fact
UDO Language Town’s Findings
Unnecessary Hardship.
Unnecessary hardship would result from the
strict application of the Ordinance. It shall
not be necessary to demonstrate that, in the
absence of a Variance Permit, no
reasonable use can be made of the
property.
Strict interpretation of the regulation would restrict any
activity on the subject site. The existing conditions of
the culvert are in violation of FEMA Region IV. If the
violation remains it would risk the status of the National
Flood Insurance Program (NFIP) for the entirety of
Apex and therefore deemed an unnecessary hardship.
Hardship Results from Peculiar Conditions.
The hardship results from conditions that
are peculiar to the property, such as
location, size, or topography. Hardships
resulting from personal circumstances, as
well as hardships resulting from conditions
that are common to the neighborhood or the
general public, may not be the basis for
granting a variance
The existing conditions of the culvert and related
infrastructure within the Watershed Protection Overlay
District limit any activity. The Watershed Protection
Overlay District was applied after initial development
and encompasses the subject property. The FEMA
violation is unique to the subject properties. These
existing conditions are peculiar to the site and deemed
the cause of the hardship.
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Town of Apex –Board of Adjustment Findings of Fact
UDO Language Town’s Findings
Not Result of Action by Applicant.
The hardship did not result from actions taken by the
applicant or the property owner. The act of purchasing
property with knowledge that circumstances exist that
may justify the granting of a Variance Permit shall not
be regarded as a self-created hardship
The FEMA violation was not created by the
initial design and therefore not a result of
actions by the applicant, but rather resulted
from a series of regulations
Consistency with the UDO.
The requested variance permit is consistent with the
spirit, purpose, and intent of the Ordinance, such that
public safety is secured, and substantial justice is
achieved
The applicant has demonstrated that the
remedy is environmentally sensitive and with
the least harm, to provide corrective
measure and maintain the insurance status
Town’s Conclusion:
The applicant did meet the burden of proof and establish facts
that show all of the standards for granting a variance were met.
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Division of Water Resources
Jordan Lake Riparian Buffer Rules Variance Process
15A NCAC 02B .0267(12)
•For any variance request, the local government shall make a preliminary finding of fact as to whether there are practical difficulties or unnecessary hardships that prevent compliance with the riparian buffer protection requirements
•If the local government has determined that a major variance request meets the requirements, then it shall prepare a preliminary finding and submit it to the Commission for approval
•The Commission shall review preliminary findings on major variance request and take one of the following actions: approve, approve with conditions and stipulations, or deny
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Jordan Lake Rule Language Division’s Findings
(a)A finding of practical difficulties or unnecessary hardships shall require that the following conditions
are met:
i.If the applicant complies with the provisions of
this Rule, he/she can secure no reasonable
return from, nor make reasonable use of,
his/her property.
Development of the site has already
occurred. Actions are required to resolve
FEMA violations and are not related to
securing “reasonable return from or
reasonable use of” the property.
ii.The hardship results from application of this
Rule to the property rather than from other
factors such as deed restrictions or other
hardship
The hardship does not result from application
of this Rule.
Jordan Lake Riparian Buffer Rules Variance Process15A NCAC 02B .0267(12)
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Jordan Lake Rule Language Division’s Findings
(a)A finding of practical difficulties or unnecessary hardships shall require that the following conditions
are met:
iii.The hardship is due to the physical nature of
the applicant's property, such as its size,
shape, or topography, such that compliance
with provisions of this rule would not allow
reasonable use of the property
The hardship is not due to the physical
nature of the applicant’s property.
iv.The applicant did not cause the hardship by
knowingly or unknowingly violating this Rule
The applicant has not violated the Rule.
v.The applicant did not purchase the property
after August 11, 2009, the effective date of this
Rule, and then request a variance
The applicant purchased the property after
the effective date of this Rule, however the
project was designed and approved prior to
the effective date of this rule.
vi.The hardship is rare or unique to the
applicant's property
The FEMA violation is unique to the subject
property
Jordan Lake Riparian Buffer Rules Variance Process
15A NCAC 02B .0267(12)
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Jordan Lake Rule Language Division’s Findings
b)For any variance request the local government
shall make a finding of fact as to whether the
variance is in harmony with the general purpose
and intent of the State’s riparian buffer protection
requirements and preserves it’s spirit.
Town of Apex Board of Adjustments
Conclusions of Law states “The applicant
has demonstrated that the remedy is
environmentally sensitive and with the least
harm to provide corrective measure and
maintain insurance status.”
c)For any variance request the local government
shall make a finding of fact as to whether in
granting the variance, the public safety and welfare
have been assured, water quality has been
protected, and substantial justice has been done
This statement is not included within the
Town of Apex Board of Adjustments Finding
of Fact or Conclusion of Law
Jordan Lake Riparian Buffer Rules Variance Process
15A NCAC 02B .0267(12)
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Division of Water Resources
Jordan Lake Riparian Buffer Rules Variance Process
If the Water Quality Committee approves this request, the Division recommends the following conditions or stipulations:
1.Mitigation shall be provided for the impacts in accordance
with the Consolidated Buffer Mitigation Rule 15A NCAC 02B .0295
Questions?
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Division of Water Resources