WSCO_CHER_WSWP Ordinance_20230621

WATERSHED PROTECTION ORDINANCE
FOR
CHEROKEE COUNTY, NORTH CAROLINA
Adopted December 6, 1993
Effective January 1, 1994
And As Most Recently Amended
August 7, 2000
ARTICLE 100: AUTHORITY AND GENERAL REGULATIONS
Section 101. Authority and Enactment.
The Legislature of the State of North Carolina has, in Chapter 153A, Article 6,
Section 121, General Ordinance Authority; and in Chapter 143, Article 21,
Watershed Protection Rules, delegated the responsibility or directed local
governmental units to adopt regulations designed to promote the public health,
safety, and general welfare of its citizenry. The Governing Board of Cherokee
County does hereby ordain and enact into law the following articles as the
Watershed Protection Ordinance of Cherokee County.
Section 102. Jurisdiction.
The provisions of this Ordinance shall apply only in the designated water
supply watershed areas within Cherokee County and shall be defined and
established on the map entitled, "Watershed Protection Map of Cherokee County,
North Carolina" ("the Watershed Map"), which is adopted simultaneously herewith.
The Watershed Map and all explanatory matter contained thereon accompanies and
is hereby made a part of this Ordinance. This Ordinance shall be permanently kept
on file in the office of the County Clerk.
Section 103. Exceptions to Applicability.
A. Nothing contained herein shall repeal, modify, or amend any Federal or
State law or regulation, or any ordinance or regulation pertaining thereto except any
ordinance which these regulations specifically replace; nor shall any provision of
this Ordinance amend, modify, or restrict any provisions of the Code of Ordinances
of Cherokee County; however, the adoption of this Ordinance shall and does amend
any and all ordinances, resolutions, and regulations in effect in Cherokee County at
the time of the adoption of this Ordinance that may be construed to impair or
reduce the effectiveness of this Ordinance or to conflict with any of its provisions.
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B. It is not intended that these regulations interfere with any easement,
covenants or other agreements between parties. However, if the provisions of these
regulations impose greater restrictions or higher standards for the use of a building
or land, then the provisions of these regulations shall control.
C. Existing development is not subject to the requirements of this
ordinance. Expansions to structures classified as existing development must meet
the requirements of this ordinance, however, the built-upon area of existing non-
residential development is not required to be included in the density calculations.
D. If a non-conforming lot of record is not contiguous to any other lot
owned by the same party, then that lot of record shall not be subject to the
development restrictions of this ordinance if it is developed for single-family
residential purposes, but the buffer requirements do apply.
Section 104. Criminal Penalties.
Any person violating any provisions of this Ordinance shall be guilty of a
misdemeanor and, upon conviction, shall be punished in accordance with NCGS
14-4. The maximum fine for each offense shall not exceed $500.00. Each day that
the violation continues shall constitute a separate offense.
Section 105. Remedies.
A. If any subdivision, development and/or land use is found to be in
violation of this Ordinance, the County Governing Board may, in addition to all
other remedies available either in law or in equity, institute a civil penalty in the
amount of $100, action or proceedings to restrain, correct, or abate the violation; to
prevent occupancy of the building, structure, or land; or to prevent any illegal act,
conduct, business, or use in or about the premises. In addition, the N.C.
Environmental Management Commission may assess civil penalties in accordance
with G.S. 143-215.6(a). Each day that the violation continues shall constitute a
separate offense.
B. If the Watershed Administrator finds that any of the provisions of this
ordinance are being violated, he shall notify in writing the person responsible for
such violation, indicating the nature of the violation, and ordering the action
necessary to correct it. He shall order discontinuance of the illegal use of land,
buildings or structures; removal of illegal buildings or structures, or of additions,
alterations or structural changes thereto; discontinuance of any illegal work being
done; or shall take any action authorized by this ordinance to ensure compliance
with or to prevent violation of its provisions. If a ruling of the Watershed
Administrator is questioned, the aggrieved party or parties may appeal such ruling
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to the Watershed Review Board.
Section 106. Severability.
Should any section or provision of this Ordinance be declared invalid or
unconstitutional by any court of competent jurisdiction, the declaration shall not
affect the validity of this Ordinance as a whole or any part thereof that is not
specifically declared to be invalid or unconstitutional.
Section 107. Effective Date.
This Ordinance is hereby adopted on this the 6th day of December, 1993 and
shall take effect and be in force on the lst day of January, 1994.
ARTICLE 200: SUBDIVISION REGULATIONS.
Section 201. General Provisions.
A. No subdivision plat of land within the Public Water Supply Watershed
shall be filed or recorded by the Register of Deeds until it has been approved in
accordance with the provisions of this Article. Likewise, the Clerk of Superior Court
shall not order or direct the recording of a plat if the recording of such plat would be
in conflict with this Article.
B. The approval of a plat does not constitute or effect the acceptance by
Cherokee County or the public of the dedication of any street or other ground,
easement, right-of-way, public utility line, or other public facility shown on the plat
and shall not be construed to do so.
C. All subdivisions shall conform with the mapping requirements
contained in G.S.47-30.
D. All subdivisions of land within the watershed boundaries within the
jurisdiction of Cherokee County after the effective date of this ordinance shall
require a plat to be prepared, approved and recorded pursuant to this ordinance.
Section 202. Subdivision Application and Review Procedures.
A. All proposed subdivisions shall be reviewed prior to recording with the
Register of Deeds by submitting a vicinity map to the Watershed Administrator to
determine whether or not the property is located within the designated Public Water
Supply Watershed. Subdivisions within the designated watershed areas shall
comply with the provisions of this Article and all other state and local requirements
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that may apply.
B. Subdivision applications shall be filed with the Watershed
Administrator. The application shall include a completed application form, two (2)
copies of the plat and supporting documentation deemed necessary by the
Watershed Administrator.
C. The Watershed Administrator shall review the completed application
and shall either approve, approve conditionally or disapprove each application
within 30 - 45 working days. The Watershed Administrator may provide public
agencies an opportunity to review and make recommendations. However, failure of
the agencies to submit their comments and recommendations shall not delay the
Administrator's action within the prescribed time limit. Said public agencies may
include, but are not limited to, the following:
1. The district highway engineer with regard to proposed streets
and highways.
2. The director of the Health Department with regard to proposed
private water system or sewer systems normally approved by the Health
Department.
3. The state Division of Water Quality with regard to proposed
sewer systems normally approved by the Division, engineered storm water
controls or storm water management in general.
4. Any other agency or official designated by the Watershed
Administrator.
D. If the Watershed Administrator approves the application, such
approval shall be indicated on both copies of the plat by the following certificate:
Certificate of Approval for Recording
I certify that the plat shown hereon complies with the Watershed
Protection Ordinance and has been approved for recording in the
Register of Deeds office.
Date Watershed Administrator
NOTICE: This property is located within a Public Water Supply
Watershed - development restrictions may apply.
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E. If the Watershed Administrator disapproves or approves conditionally
the application, the reasons for such action shall be stated in writing for the
applicant. The subdivider may make changes and submit a revised plan which
shall constitute a separate request for the purpose of review.
F. All subdivision plats shall comply with the requirements for recording
of the Cherokee County Register of Deeds.
G. The Subdivider shall provide the Watershed Administrator with
evidence the plat has been recorded with the Register of Deeds within five (5)
working days of its being recorded.
Section 203. Subdivision standards and required improvements.
A. All lots shall provide adequate building space in accordance with the
development standards contained in Article 300.
B. For the purpose of calculating built-upon area, total project area shall
include total acreage in the tract on which the project is to be developed.
C. Storm Water Drainage Facilities. The application shall be accompanied
by a description of the proposed method of providing storm water drainage. The
subdivider shall provide a drainage system that diverts stormwater runoff away
from surface waters and incorporates best management practices to minimize water
quality impacts.
D. Erosion and Sedimentation Control. The application shall, where
required, be accompanied by a written statement that a Sedimentation and Erosion
Control Plan has been submitted to and approved by the N.C. Division of Land
Quality.
E. Roads constructed in critical areas and watershed buffer areas. Where
possible, roads should be located outside of critical areas and watershed buffer
areas. Roads constructed within these areas shall be designed and constructed so
to minimize their impact on water quality.
Section 204. Construction Procedures.
A. No construction or installation of improvements shall commence in a
proposed subdivision until a subdivision plat has been approved by the Watershed
Administrator.
B. No building or other permits shall be issued for erection of a structure
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on any lot not of record at the time of adoption of this Ordinance until all
requirements of this Ordinance have been met. The subdivider, prior to
commencing any work within the subdivision, shall make arrangements with the
Watershed Administrator to provide for adequate inspection.
Section 205. Penalties for Transferring Lots in Unapproved Subdivisions.
Any person who, being the owner or agent of the owner of any land located
within Cherokee County, thereafter subdivides his land in violation of this
ordinance or transfers or sells land by reference to, exhibition of, or any other use of
a plat showing a subdivision of the land before the plat has been properly approved
under this ordinance and recorded in the office of the register of deeds, shall be
guilty of a misdemeanor. The description by metes and bounds in the instrument of
transfer or other document used in the process of selling or transferring land shall
not exempt the transaction from this penalty. Cherokee County may bring an
action for injunction of any illegal subdivision, transfer, conveyance, or sale of land,
and the court shall, upon appropriate findings, issue an injunction and order
requiring the offending party to comply with this ordinance.
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ARTICLE 300: DEVELOPMENT REGULATIONS
Section 301. Establishment of Watershed Areas.
The purposes of this Article is to list and describe the watershed areas herein
adopted.
For purposes of this Ordinance the State designated watersheds in Cherokee
County are hereby divided into the following areas, as appropriate:
WS-I
WS-II-CA (Critical Area)
WS-II-BW (Balance of Watershed)
WS-IV-CA (Critical Area)
WS-IV-PA (Protected Area)
Section 302. Watershed Area Described.
A. WS-I Watershed Areas. The intent is to provide maximum protection for
water supplies within essentially natural and undeveloped watershed by allowing
only low intensity uses. No residential or non-residential uses are allowed except
those listed below. Impacts from non-point source pollution shall be minimized.
1. Allowed Uses:
a. Agricultural uses, subject to the provisions of the Food Security Act
of 1985; the Food, Agricultural, Conservation and Trade Act of 1990
and the rules and regulations of the Soil and Water Conservation
Commission.
b. Silvicultural uses, subject to the provisions of the Forest Practices
Guidelines Related to Water Quality (15 NCAC 11.6101-.0209).
c. Water withdrawal, treatment and distribution facilities.
d. Restricted road access.
e. Power transmission and distribution lines.
2. Density and built-upon area limits do not apply.
B. WS-II Watershed Areas - Critical Area (WS-II-CA). In order to maintain a
predominately undeveloped land use intensity pattern, single family residential uses
shall be allowed at a maximum of one dwelling unit per two acres. All other
residential and non-residential development shall be allowed at a maximum six
percent (6%) built-upon area. New residual application sites and landfills are
specifically prohibited.
1. Allowed Uses:
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a. Agricultural uses, subject to the provisions of the Food Security Act
of 1985; the Food, Agriculture, Conservation and Trade Act of 1990
and the rules and regulations of the Soil and Water Conservation
Commission.
b. Silvicultural uses, subject to the provisions of the Forest Practices
Guidelines Related to Water Quality (15 NCAC 11.6101-.0209).
c. Residential development, including both single family and all other
residential.
d. Non-residential development, excluding 1) the storage of toxic and
hazardous materials unless a spill containment plan is
implemented, 2) landfills, and 3) sites for land application of
residuals or petroleum contaminated soils. New industrial
development is required to incorporate adequately designed,
constructed and maintained spill containment structures if
hazardous materials are either used, stored or manufactured on the
premises.
2. Density and Built-upon Area Limits:
a. Single family Residential - development shall not exceed one
dwelling unit per two (2) acres on a project by project basis. No
residential lot shall be less than two (2) acres (or 80,000 square feet
excluding roadway right-of-way), except within an approved cluster
development.
b. All Other Residential and Non-Residential - development shall not
exceed six percent (6%) built-upon area on a project by project
basis. For the purpose of calculating built-upon area, total area
shall include total acreage in the tract on which the project is to be
developed.
C. WS-II Watershed Areas - Balance of Watershed (WS-II-BW). In order to
maintain a predominantly undeveloped land use intensity, single family residential
uses shall be allowed at a maximum of one dwelling unit per acre (1 du/ac). All
other residential and non-residential development shall be allowed a maximum of
twelve percent (12%) built-upon area. In addition, new development may occupy
ten percent (10%) of the watershed area which is outside the critical area, with a
seventy percent (70%) built-upon area when approved as a special intensity
allocation (SIA). The Watershed Administrator is authorized to approve SIA's
consistent with the provisions of this ordinance. Projects must, to the maximum
extent practicable, minimize built-upon surface area, direct stormwater away from
surface waters and incorporate Best Management Practices to minimize water
quality impacts. Non-discharging landfills and residuals application sites are
allowed.
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1. Allowed Uses:
a. Agricultural uses, subject to the provisions of the Food Security Act
of 1985; the Food, Agriculture, Conservation and Trade Act of 1990.
b. Silvicultural uses, subject to the provisions of the Forest Practices
Guidelines Related to Water Quality (15 NCAC 11.6101-.0209).
c. Residential development.
d. Non-residential development excluding discharging landfills and the
storage of toxic and hazardous materials unless a spill containment
plan is implemented.
2. Density and Built-upon Area Limits:
a. Single Family Residential - development shall not exceed one
dwelling unit per acre on a project by project basis. No residential
lot shall be less than one acre (or 40,000 square feet excluding
roadway right of way), except within an approved cluster
development.
b. All Other Residential and Non-residential - development shall not
exceed twelve percent (12%) built-upon area on a project by project
basis except that up to ten percent (10%) of the balance of the
watershed may be developed to seventy percent (70%) built-upon
area on a project by project basis. For the purpose of calculating
built-upon area, total project area shall include total acreage in the
tract on which the project is to be developed.
D. WS-IV Watershed Areas - Critical Area (WS-IV-CA). Only new
development activities that require an erosion/sedimentation control plan under
State law or approved local program are required to meet the provisions of this
ordinance when located in the WS-IV watershed. In order to address a moderate to
high land use intensity pattern, single family residential uses are allowed at a
maximum of two (2) dwelling units per acre. All other residential and non-
residential development shall be allowed at a maximum of twenty-four percent
(24%) built-upon area. New residual application sites and landfills are specifically
prohibited.
1. Allowed Uses:
a. Agricultural uses, subject to the provisions of the Food Security Act
of 1985; the Food, Agriculture, Conservation and Trade Act of 1990
and the rules and regulations of the Soil and Water Conservation
Commission.
b. Silvicultural uses, subject to the provisions of the Forest Practices
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Guidelines Related to Water Quality (15 NCAC 11.6101-.0209).
c. Residential development, including both single family and all other
residential.
d. Non-residential development, excluding 1) the storage of toxic and
hazardous materials unless a spill containment plan is
implemented, 2) landfills, and 3) sites for land application of
residuals or petroleum contaminated soils.
2. Density and Built-upon Area Limits:
a. Single family Residential - development shall not exceed two
dwelling units per acre on a project by project basis. No residential
lot shall be less than one-half (1/2) acres (or 20,000 square feet
excluding roadway right-of-way), except within an approved cluster
development.
b. All Other Residential and Non-Residential - development shall not
exceed twenty-four percent (24%) built-upon area on a project by
project basis. For the purpose of calculating built-upon area, total
area shall include total acreage in the tract on which the project is
to be developed.
E. WS-IV Watershed Areas - Protected Area (WS-IV-PA). Only new
development activities that require an erosion/sedimentation control plan under
State law or approved local government program are required to meet the provisions
of this ordinance when located in a WS-IV. In order to address a moderate to high
land use intensity pattern, single family residential uses shall develop at a
maximum of two (2) dwelling units per acre. All other residential and non-
residential development shall be allowed at a maximum of twenty-four percent
(24%) built-upon area. In addition, new development may occupy ten percent (10%)
of the balance of the watershed which is outside the critical area, with a seventy
percent (70%) built-upon area when approved as a special intensity allocation (SIA).
The Watershed Administrator is authorized to approve SIA's consistent with the
provisions of this ordinance. Projects must, to the maximum extent practicable,
minimize built-upon surface area, direct stormwater away from surface waters and
incorporate Best Management Practices to minimize water quality impacts. A
maximum of three (3) dwelling units per acre or thirty-six percent (36%) built-upon
area is allowed for projects without a curb and gutter street system.
1. Allowed Uses:
a. Agricultural uses, subject to the provisions of the Food Security Act
of 1985; the Food, Agriculture, Conservation and Trade Act of 1990.
b. Silvicultural uses, subject to the provisions of the Forest Practices
Guidelines Related to Water Quality (15 NCAC 11.6101-.0209).
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c. Residential development, including both single family and all other
residential.
d. Non-residential development, excluding the storage of toxic and
hazardous materials unless a spill containment plan is
implemented.
2. Density and Built-upon Area Limits:
a. Single family Residential - development shall not exceed two dwelling
units per acre on a project by project basis. No residential lot shall be
less than one-half(1/2) acres (or 20,000 square feet excluding roadway
right-of-way), or one-third (1/3) acre (of 13,000 square feet excluding
roadway right-of-way), except within an approved cluster development.
b. All Other Residential and Non-Residential - development shall not
exceed twenty-four percent (24%) built-upon area on a project by
project basis except that up to ten percent (10%) of the balance of the
watershed may be developed to seventy percent (70%) built-upon area
on a project by project basis. For projects without a curb and gutter
street system, development shall not exceed thirty-six percent (36%)
built-upon area on a project by project basis. For the purpose of
calculating built-upon area, total area shall include total acreage in the
tract on which the project is to be developed.
Section 303. Cluster Development.
Clustering of development is allowed in all Watershed Areas, except WS-I,
under the following conditions:
A. Minimum lot sizes are not applicable to single family cluster
development projects; however, the total number of lots shall not exceed the
number of lots allowed for single family detached developments in Section 302.
Density or built-upon area for the project shall not exceed that allowed for the
critical area or balance of watershed, whichever applies.
B. All built-upon area shall be designed and located to minimize
stormwater runoff impact to the receiving waters and minimize concentrated
stormwater flow.
C. The remainder of the tract shall remain in a vegetated or natural state.
Where the development has an incorporated property owners association, the title
of the open space area shall be conveyed to the association for management. Where
a property association is not incorporated, a maintenance agreement shall be filed
with the property deeds.
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Section 304. Buffer Areas Required.
A. A minimum forty (40) foot vegetative buffer for development activities is
required along all perennial waters indicated on the most recent versions of
U.S.G.S. 1:24,000 (7.5 minute) scale topographic maps or as determined by local
government studies. Desirable artificial streambank or shoreline stabilization is
permitted. (Thirty (30) foot vegetative buffer changed to forty (40) foot buffer on
August 7, 2000 by vote of the Cherokee County Board of Commissioners).
B. No new development is allowed in the buffer except for water
dependent structures and public projects such as road crossings and greenways
where no practical alternative exists. These activities should minimize built-upon
surface area, direct runoff away from the surface waters and maximize the
utilization of stormwater Best Management Practices.
Section 305. Rules Governing the Interpretation of Watershed Area
Boundaries.
Where uncertainty exists as to the boundaries of the watershed areas, as
shown on the Watershed Map, the Following rules shall apply:
A. Where area boundaries are indicated as approximately following either
street, alley, railroads or highway lines or centerlines thereof, such lines shall be
construed to be said boundaries.
B. Where area boundaries are indicated as approximately following lot lines,
such lot lines shall be construed to be said boundaries. However, a surveyed plat
prepared by a registered land surveyor may be submitted to the county as evidence
that one or more properties along these boundaries do not lie within the watershed
area.
C. Where the watershed area boundaries lie at a scaled distance more than
twenty-five (25) feet from any parallel lot line, the location of watershed area
boundaries shall be determined by use of the scale appearing on the watershed
map.
D. Where the watershed area boundaries lie at a scaled distance of twenty-
five (25) feet or less from any parallel lot line, the location of watershed area
boundaries shall be construed to be the lot line.
E. Where other uncertainty exists, the Watershed Administrator shall
interpret the Watershed Map as to location of such boundaries. This decision may
be appealed to the Watershed Review Board
Section 306. Application of Regulations.
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A. No building or land shall hereafter be used and no development shall
take place except in conformity with the regulations herein specified for the
watershed area in which it is located.
B. No area required for the purpose of complying with the provisions of
this ordinance shall be included in the area required for another building.
C. Every residential building hereafter erected, moved or structurally
altered shall be located on a lot which conforms to the regulations herein specified,
except as permitted in Section 307.
D. If a use or class of use is not specifically indicated as being allowed,
such use or class of use is prohibited.
Section 307. Existing Development.
Any existing development may be continued and maintained subject to the
provisions provided herein. Expansions to structures classified as existing
development must meet the requirements of this ordinance, however, the built-upon
area of the existing development is not required to be included in the built-upon
area calculations.
A. Uses of Land. This category consists of uses existing at the time of
adoption of this ordinance where such use of the land is not permitted to be
established hereafter in the watershed area in which it is located. Such uses may
be continued except as follows:
1. When such use of land has been changed to an allowed use, it
shall not thereafter revert to any prohibited use.
2. Such use of land shall be changed only to an allowed use.
3. When such use ceases for a period of at least one year, it shall
not be reestablished.
B. Reconstruction of Buildings or Built-upon Areas. Any existing building
or built-upon area not in conformance with the restrictions of this ordinance that
has been damaged or removed may be repaired and/or reconstructed, except that
there are no restrictions on single family residential development, provided:
1. Repair or reconstruction is initiated within twelve (12) months
and completed within two (2) years of such damage.
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2. The total amount of space devoted to built-upon area may not be
increased.
Section 308. Watershed Protection Permit.
A. Except where a single family residence is constructed on a lot deeded
prior to the effective date of this ordinance, no building or built-upon area shall be
erected, moved, enlarged or structurally altered, nor shall any building permit be
issued nor shall any change in the use of any building or land be made until a
Watershed Protection Permit has been issued by the Watershed Administrator. No
Watershed Protection Permit shall be issued except in conformity with the
provisions of this ordinance.
B. Watershed Protection Permit applications shall be filed with the
Watershed Administrator. The application shall include a completed application
form (see Appendix A) and supporting documentation deemed necessary by the
Watershed Administrator.
C. Prior to issuance of a Watershed Protection Permit, the Watershed
Administrator may consult with qualified personnel for assistance to determine if
the application meets the requirements of this ordinance.
D. A Watershed Protection Permit shall expire if a Building Permit or
Watershed Occupancy Permit for such use is not obtained by the applicant within
twelve (12) months from the date of issuance.
Section 309. Building Permit Required.
No permit required under the North Carolina State Building Code shall be
issued for any activity for which a Watershed Protection Permit is required until that
permit has been issued.
Section 310. Watershed Protection Occupancy Permit.
A. The Watershed Administrator shall issue a Watershed Protection
Occupancy Permit certifying that all requirements of this ordinance have been met
prior to the occupancy or use of a building hereafter erected, altered or moved
and/or prior to the change of use of any building or land.
B. A Watershed Protection Occupancy Permit, either for the whole or part
of a building, shall be applied for coincident with the application for a Watershed
Protection Permit and shall be issued or denied within ten (10) days after the
erection or structural alterations of the building.
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C. When only a change in use of land or existing building occurs, the
Watershed Administrator shall issue a Watershed Protection Occupancy Permit
certifying that all requirements of this ordinance have been met coincident with the
Watershed Protection Permit.
D. If the Watershed Protection Occupancy Permit is denied, the
Watershed Administrator shall notify the applicant in writing stating the reasons for
denial.
E. No building or structure which has been erected, moved, or
structurally altered may be occupied until the Watershed Administrator has
approved and issued a Watershed Protection Occupancy Permit.
ARTICLE 400: PUBLIC HEALTH REGULATIONS
Section 401. Public Health, in general.
No activity, situation, structure or land use shall be allowed which poses a
threat to water quality and the public health, safety and welfare. Such conditions
may arise from inadequate on-site sewage systems which utilize ground absorption;
inadequate sedimentation and erosion control measures; the improper storage or
disposal of junk, trash or other refuse within a buffer area; the absence or improper
implementation of a spill containment plan for toxic and hazardous materials; the
improper management of stormwater runoff; or any other situation found to pose a
threat to water quality.
Section 402. Abatement.
A. The Watershed Administrator shall monitor land use activities within
the watershed areas to identify situations that may pose a threat to water quality.
B. The Watershed Administrator shall report all findings to the Watershed
Review Board. The Watershed Administrator may consult with any public agency or
official and request recommendations.
C. Where the Watershed Review Board finds a threat to water quality and
the public health, safety and welfare, the Board shall institute any appropriate
action or proceeding to restrain, correct or abate the condition and/or violation.
ARTICLE 500: ADMINISTRATION, ENFORCEMENT AND APPEALS
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Section 501. Watershed Administrator and Duties thereof.
Cherokee County shall appoint a Watershed Administrator, who shall be duly
sworn in. It shall be the duty of the Watershed Administrator to administer and
enforce the provisions of this ordinance as follows:
A. The Watershed Administrator shall approve, conditionally approve or
deny subdivision plats; issue or deny Watershed Protection Permits and Watershed
Protection Occupancy Permits as prescribed herein. A record of all subdivision
plats and permits shall be kept on file and shall be available for public inspection
during regular office hours of the Administrator.
B. The Watershed Administrator shall serve as clerk to the Watershed
Review Board.
C. The Watershed Administrator shall keep records of all amendments to
the local Water Supply Watershed Protection Ordinance and shall provide copies of
all amendments upon adoption to the Local Government Assistance Unit of the
Division of Water Quality.
D. The Watershed Administrator shall keep records of the jurisdiction's
utilization of the provisions that a maximum of ten percent (10%) of the non-critical
area of WS-II-BW and WS-IV-PA watersheds may be developed up to a maximum of
seventy percent (70%) built-upon surface area. Records for each watershed shall
include the total acres of non-critical watershed area, total acres eligible to be
developed under this option, total acres approved for this development option and
individual records for each project with the following information: location, number
of developed acres, site plan, type of land use, stormwater management plan (if
applicable) and inventory of hazardous materials (if applicable).
E. The Watershed Administrator is granted the authority to administer
and enforce the provisions of this Ordinance, exercising in the fulfillment of his
responsibility the full police power of the county. The Watershed Administrator, or
his duly authorized representative, may enter any building, structure or premises,
as provided by law, to perform any duty imposed upon him by this Ordinance when
enforcing this Ordinance with regard to the designated watersheds within Cherokee
County.
F. The Watershed Administrator shall keep a record of variances to the
local Water Supply Watershed Protection Ordinance. This record shall be submitted
for each calendar year to the Local Government Assistance Unit of the Division of
Water Quality on or before January lst of the following year and shall provide a
description of each project receiving a variance and the reasons for granting the
variance.
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Section 502. Appeal from the Watershed Administrator.
A. Any order, requirement, decision or determination made by the
Watershed Administrator may be appealed to and decided by the Watershed Review
Board.
B. An appeal from a decision of the Watershed Administrator must be
submitted to the Watershed Review Board within thirty (30) days from the date the
order, interpretation, decision or determination is made. All appeals must be made
in writing stating the reasons for appeal. Following submission of an appeal, the
Watershed Administrator shall transmit to the Board all papers constituting the
record upon which the action appealed from was taken.
C. An appeal stays all proceedings in furtherance of the action appealed,
unless the officer from whom the appeal is taken certifies to the Board after the
notice of appeal has been filed with him, that by reason of facts stated in the
certificate, a stay would in his opinion cause imminent peril to life or property. In
such case, proceedings shall not be stayed otherwise than by a restraining order
which may be granted by the Board or by a court of record on application of notice
of the officer from whom the appeal is taken and upon due cause shown.
D. The Board shall fix a reasonable time for hearing the appeal and give
notice thereof to the parties and shall decide the same within ten (10) working days.
At the hearing, any party may appear in person, by agent or by attorney.
Section 503. Changes and Amendments to the Watershed Protection
Ordinance.
A. The Cherokee County Governing Board may, on its own motion or on
petition, after public notice and hearing, amend, supplement, change or modify the
watershed regulations and restrictions as described herein.
B. No action shall be taken until the proposal has been submitted to the
Watershed Review Board for review and recommendations. If no recommendation
has been received from the Watershed Review Board within forty-five (45) days after
submission of the proposal to the Chairman of the Watershed Review Board, the
Cherokee County Governing Board may proceed as though a favorable report had
been received.
C. Under no circumstances shall the county Board adopt such
amendments, supplements or changes that would cause this ordinance to violate
the watershed protection rules as adopted by the N.C. Environmental Management
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Commission. All amendments must be filed with the N.C. Division of Water Quality,
N.C. Division of Environmental Health and the N.C. Division of Community
Assistance.
Section 504. Public Notice and Hearing Required.
Before adopting or amending this ordinance, the Cherokee County Governing
Board shall hold a public hearing on the proposed changes. A notice of the public
hearing shall be given once a week for two successive calendar weeks in a
newspaper having general circulation in the area. The notice shall be published for
the first time not less than ten (10) nor more than twenty-five (25) days before the
date fixed for the hearing.
Section 505. Establishment of Watershed Review Board.
A. There shall be and hereby is created the Watershed Review Board
consisting of five (5) members appointed by the Cherokee County Governing Board.
Three (3) residents of the County shall be appointed for three year terms. Two (2)
residents of the county shall be appointed for two (2) year terms. Thereafter, all new
terms shall be for three (3) years, and members may be re-appointed.
B. Two (2) alternate members shall be appointed to serve on the
Watershed Review Board in the absence of any regular member and shall be
appointed for three (3) year terms. While attending in the capacity of a regular
member, the alternate shall have and exercise all the powers and duties of the
absent regular member.
Section 506. Rules of Conduct for Members.
Members of the Board may be removed by the Cherokee County Governing
Board for cause, including violation of the rules stated below:
A. Faithful attendance at meetings of the Board and conscientious
performance of the duties required of members of the Board shall be considered a
prerequisite to continuing membership on the Board.
B. No Board member shall take part in the hearing, consideration, or
determination of any case in which he is personally or financially interested. A
Board member shall have a "financial interest" in a case when a decision in the case
will: 1) cause him or his spouse to experience a direct financial benefit or loss, or 2)
will cause a business in which he or his spouse owns a 10 per cent or greater
interest, or is involved in a decision-making role, to experience a direct financial
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benefit or loss. A Board member shall have a "personal interest" in a case when it
involves a member of his immediate family (i.e., parent, spouse, or child).
C. No Board member shall discuss any case with any parties thereto prior
to the public hearing on that case; provided, however, that members may receive
and/or seek information pertaining to the case from the Watershed Administrator or
any other member of the Board, its secretary or clerk prior to the hearing.
D. Members of the Board shall not express individual opinions on the
proper judgment of any case prior to its determination on that case.
E. Members of the Board shall give notice to the chairman at least forty-
eight (48) hours prior to the hearing of any potential conflict of interest which he
has in a particular case before the Board.
F. No Board member shall vote on any matter that decides an application
or appeal unless he had attended the public hearing on that application or appeal.
Section 507. Powers and Duties of the Watershed Review Board.
A. Administrative Review. The Watershed Review Board shall hear and
decide appeals from any decision or determination made by the Watershed
Administrator in the enforcement of this ordinance.
B. Variances. The Watershed Review Board shall have the power to
authorize, in specific cases, minor variances from the terms of this Ordinance as
will not be contrary to the public interests where, owing to special conditions, a
literal enforcement of this Ordinance will result in practical difficulties or
unnecessary hardship, so that the spirit of this Ordinance shall be observed, public
safety and welfare secured, and substantial justice done. In addition, Cherokee
County shall notify and allow a reasonable comment period for all other local
governments having jurisdiction in the designated watershed where the variance is
being considered.
1. Applications for a variance shall be made on the proper form
obtainable from the Watershed Administrator and shall include the following
information:
a. A site plan, drawn to a scale of at least one (1) inch to
forty (40) feet, indicating the property lines of the parcel upon which
the use is proposed; any existing or proposed structures; parking areas
and other built-upon areas; surface water drainage. The site plan shall
be neatly drawn and indicate north point, name and address of person
who prepared the plan, date of the original drawing, and an accurate
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record of any later revisions.
b. A complete and detailed description of the proposed
variance, together with any other pertinent information which the
applicant feels would be helpful to the Watershed Review Board in
considering the application.
c. The Watershed Administrator shall notify in writing each
local government having jurisdiction in the watershed. Such notice
shall include a description of the variance being requested. Local
governments receiving notice of the variance request may submit
comments to the Watershed Administrator prior to a decision by the
Watershed Review Board. Such comments shall become a part of the
record of proceedings of the Watershed Review Board.
2. Before the Watershed Review Board may grant a variance, it
shall make the following three findings, which shall be recorded in the
permanent record of the case, and shall include the factual reasons on which
they are based:
a. There are practical difficulties or unnecessary hardships
in the way of carrying out the strict letter of the Ordinance. In order to
determine that there are practical difficulties or unnecessary
hardships, the Board must find that the five following conditions exist:
1. If he complies with the provisions of the Ordinance,
the applicant can secure no reasonable return from, nor make
reasonable use of, his property. Merely proving that the
variance would permit a greater profit to be made from the
property will not be considered adequate to justify the Board in
granting an variance. Moreover, the Board shall consider
whether the variance is the minimum possible deviation from
the terms of the Ordinance that will make possible the
reasonable use of his property.
2. The hardship results from the application of the
Ordinance to the property rather than from other factors such as
deed restrictions or other hardship.
3. The hardship is due to the physical nature of the
applicant's property, such as its size, shape, or topography,
which is different from that of neighboring property.
4. The hardship is not the result of the actions of an
applicant who knowingly or unknowingly violates the Ordinance,
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or who purchases the property after the effective date of the
Ordinance, and then comes to the Board for relief.
5. The hardship is peculiar to the applicants property,
rather than the result of conditions that are widespread. If other
properties are equally subject to the hardship created in the
restriction, then granting a variance would be a special privilege
denied to others, and would not promote equal justice.
b. The variance is in harmony with the general purpose and
intent of the Ordinance and preserves its spirit.
c. In the granting of the variance, the public safety and
welfare have been assured and substantial justice has been done. The
Board shall not grant a variance if it finds that doing so would in any
respect impair the public health, safety, or general welfare.
3. In granting the variance, the Board may attach thereto such
conditions regarding the location, character, and other features of the
proposed building, structure, or use as it may deem advisable in furtherance
of the purpose of this ordinance. If a variance for the construction, alteration
or use of property is granted, such construction, alteration or use shall be in
accordance with the approved site plan.
4. The Watershed Review Board shall refuse to hear an appeal or
an application for a variance previously denied if it finds that there have been
no substantial changes in conditions or circumstances bearing on the appeal
or application.
5. A variance issued in accordance with this Section shall be
considered a Watershed Protection Permit and shall expire if a Building
Permit or Watershed Occupancy Permit for such use is not obtained by the
applicant within six (6) months from the date of the decision.
6. If the application calls for the granting of a major variance, and
if the Watershed Review Board decides in favor of granting the variance, the
Board shall prepare a preliminary record of the hearing with all deliberate
speed. The preliminary record of the hearing shall include:
a. The variance application;
b. The hearing notices;
c. The evidence presented;
d. Motions, offers of proof, objections to evidence, and
rulings on them;
e. Proposed findings and exceptions;
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f. The proposed decision, including all conditions proposed
to be added to the permit.
The preliminary record shall be sent to the Environmental Management
Commission for its review as follows:
a. If the Commission concludes from the preliminary record
that the variance qualifies as a major variance and that (1) the property
owner can secure no reasonable return from, nor make any practical
use of the property unless the proposed variance is granted, and (2)
the variance, if granted, will not result in a serious threat to the water
supply, then the Commission shall approve the variance as proposed
or approve the proposed variance with conditions and stipulations.
The Commission shall prepare a Commission decision and send it to
the Watershed Review Board. If the Commission approves the variance
as proposed, the Board shall prepare a final decision granting the
proposed variance. If the Commission approves the variance with
conditions and stipulations, the Board shall prepare a final decision,
including such conditions and stipulations, granting the proposed
variance.
b. If the Commission concludes from the preliminary record
that the variance qualifies as a major variance and that (1) the property
owner can secure a reasonable return from or make a practical use of
the property without the variance or (2) the variance, if granted, will
result in a serious threat to the water supply, then the Commission
shall deny approval of the variance as proposed. The Commission
shall prepare a Commission decision and send it to the Watershed
Review Board. The Board shall prepare a final decision denying the
variance as proposed.
C. Public Health. See Article 400.
Section 508. Appeals from the Watershed Review Board.
Appeals from the Watershed Review Board must be filed with the Superior
Court within 30 days from the date of the decision. The of decisions by the Superior
Court will be in the manner of certiorari.
ARTICLE 600: DEFINITIONS
Section 601. General Definitions.
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Agricultural Use. The use of waters for stock watering, irrigation and other farm
purposes.
Best Management Practices (BMP). A structural or nonstructural management-
based practice used singularly or in combination to reduce non-point source inputs
to receiving waters in order to achieve water quality protection goals.
Buffer. An area of natural or planted vegetation through which stormwater runoff
flows in a diffuse manner so that the runoff does not become channelized and which
provides for infiltration of the runoff and filtering of pollutants. The buffer is
measured landward from the normal pool elevation of impounded structures and
from the bank of each side of streams or rivers.
Building. Any structure having a roof supported by columns or by walls, and
intended for shelter, housing or enclosure of persons, animals or property. The
connection of two buildings by means of an open porch, breezeway, passageway,
carport or other such open structure, with or without a roof, shall not be deemed to
make them one building.
Built-upon area. Built-upon areas shall include that portion of a development
project that is covered by impervious or partially impervious cover including
buildings, pavement, gravel areas (e.g. roads, parking lots, paths), recreation
facilities (e.g. tennis courts), etc. (Note: Wooden slatted decks and the water area of
a swimming pool are considered pervious).
Cluster Development. The grouping of buildings in order to conserve land
resources and provide for innovation in the design of the project including
minimizing stormwater runoff impacts. This term includes nonresidential
development as well as single-family residential and multi-family developments. For
the purpose of this ordinance, planned unit developments and mixed use
development are considered as cluster development.
Critical Area. The area adjacent to a water supply intake or reservoir where risk
associated with pollution is greater than from the remaining portions of the
watershed. The critical area is defined as extending either one-half mile from the
normal pool elevation of the reservoir in which the intake is located or to the ridge
line of the watershed ( whichever comes first); or one-half mile upstream from the
intake located directly in the stream or river (run-of-the-river), or the ridge line of
the watershed (whichever comes first). Since WS-I watershed are essentially
undeveloped, establishment of critical area is not required. Local governments may
extend the critical area as needed. Major landmarks such as highways or property
lines may be used to delineate the outer boundary of the critical area if these
landmarks are immediately adjacent to the appropriate outer boundary of one-half
mile.
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Customary Home Occupations. Any use conducted entirely within a dwelling and
carried on by the occupants thereof, which use is clearly incidental and secondary
to the use of the dwelling for residential purposes and does not change the
character thereof. Provided further that no mechanical equipment is installed or
used except as is normally used for domestic or professional purposes, and that not
over twenty-five percent (25%) of the total floor space of any structure is used for
the occupation. No home occupation shall be conducted in any accessory building
except for the storage and service of a vehicle that is driven off site, such as a
service repair truck, delivery truck, etc.
Development. Any land disturbing activity which adds to or changes the amount
of impervious or partially impervious cover on a land area or which otherwise
decreases the infiltration of precipitation into the soil.
Discharging Landfill. A landfill which discharges treated leachate and which
requires a National Pollution Discharge Elimination System (NPDES) Permit.
Dwelling Unit. A building, or portion thereof, providing complete and permanent
living facilities for one family.
Existing Development. Those projects that are built or those projects that at a
minimum have established a vested right under North Carolina zoning law as of the
effective date of this ordinance based on at least one of the following criteria:
(1) substantial expenditures of resources (time, labor, money) based on a
good faith reliance upon having received a valid local government
approval to proceed with the project, or
(2) having an outstanding valid building permit as authorized by the
General Statutes (G.S. 153A-344.1 and G.S. 160A-385.1), or
(3) Having an approved site specific or phased development plan as
authorized by the General Statutes (G.S. 153A-344.1 and G.S. 160A-
385.1).
Existing Lot (Lot of Record). A lot which is part of a subdivision, a plat of which
has been recorded in the Office of the Register of Deeds prior to the adoption of this
ordinance, or a lot described by metes and bounds, the description of which has
been so recorded prior to the adoption of this ordinance.
Family. One or more persons occupying a single dwelling unit, provided that
unless all members are related by blood or marriage or adoption, no such family
shall contain over five persons, but further provided that domestic servants
employed or living on the premises may be housed on the premises without being
counted as a family or families.
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Hazardous Material. Any substance listed as such in: SARA section 302,
Extremely Hazardous Substances, CERCLA Hazardous Substances, or Section 311
of CWA (oil and hazardous substances).
Industrial development. Any non-residential development that requires an NPDES
permit for an industrial discharge and/or requires the use or storage of any
hazardous material for the purpose of manufacturing, assembling, finishing,
cleaning or developing any product or commodity.
Landfill. A facility for the disposal of solid waste on land in a sanitary manner in
accordance with Chapter 130A Article 9 of the NC General Statutes. For the
purposes of this ordinance this term does not include composting facilities.
Lot. A parcel of land occupied or capable of being occupied by a building or group
of buildings devoted to a common use, together with the customary accessories and
open spaces belonging to the same.
Major variance. A variance from the minimum statewide watershed protection
rules that results in any one or more of the following:
(1) the relaxation, by a factor greater than ten percent (10(3/0), of any
management requirement under the low density option;
(2) the relaxation, by a factor of more than five percent (5%), of any buffer,
density or built-upon area requirement under the high density option;
(3) any variation in the design, maintenance or operation requirements of
a wet detention pond or other approved stormwater management
system.
Minor variance. A variance from the minimum statewide watershed protection
rules that results in a relaxation, by a factor of up to ten percent (10%) of any
management requirement under the low density option.
Non-conforming Lot of Record. A lot described by a plat or a deed that was
recorded prior to the effective date of this ordinance (or its amendments) that does
not meet the minimum lot size or other development requirements of this ordinance.
Non-residential Development. All development other than residential
development, agriculture and silviculture.
Plat. A map or plan of a parcel of land which is to be, or has been subdivided.
Protected Area. The area adjoining and upstream of the critical area of WS-IV
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watersheds. The boundaries of the protected area are defined as within five miles of
and draining to the normal pool elevation of the reservoir or to the ridgeline of the
watershed; or within 10 miles upstream and draining to the intake located directly
in the stream or river or to the ridgeline of the watershed.
Residential Development. Buildings for residence such as attached and detached
single-family dwellings, apartment complexes, condominiums, townhouses,
cottages, etc. and there associated outbuildings such as garages, storage buildings,
gazebos, etc. and customary home occupations.
Residuals. Any solid or semi-solid waste generated from a wastewater treatment
plant, water treatment plant or air pollution control facility permitted under the
authority of the Environmental Management Commission.
Single Family Residential. Any development where: 1) no building contains more
that one dwelling unit, 2) every dwelling unit is on a separate lot, and 3) where no
lot contains more than one dwelling unit.
Street (Road). A right-of-way for vehicular traffic which affords the principal means
of access to abutting properties.
Structure. Anything constructed or erected, including but not limited to buildings,
which requires location on the land or attachment to something having permanent
location on the land.
Subdivider. Any person, firm or corporation who subdivides or develops any land
deemed to be a subdivision as herein defined.
Subdivision. All divisions of a tract or parcel of land into two or more lots, building
sites, or other divisions for the purpose of sale or building development (whether
immediate or future) and shall include all division of land involving the dedication of
a new street or a change in existing streets; but the following shall not be included
within this definition nor be subject to the regulations authorized by this ordinance:
1. The combination or recombination of portions of previously
subdivided and recorded lots where the total number of lots is not increased
and the resultant lots are equal to or exceed the standards of this ordinance;
2. The division of land into parcels greater than 10 acres where no
street right-of-way dedication is involved;
3. The public acquisition by purchase of strips of land for the
widening or opening of streets;
4. The division of a tract in single ownership whose entire area is
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no greater than two acres into not more than three lots, where no street right-
of-way dedication is involved and where the resultant lots are equal to or
exceed the standards of the this ordinance;
5. The division of a tract into plots or lots used as a cemetery.
Toxic Substance. Any substance or combination of substances (including disease
causing agents), which after discharge and upon exposure, ingestion, inhalation, or
assimilation into any organism, either directly from the environment or indirectly by
ingestion through food chains, has the potential to cause death, disease, behavioral
abnormalities, cancer, genetic mutations, physiological malfunctions (including
malfunctions or suppression in reproduction or growth) or physical deformities in
such organisms or their off spring or other adverse health effects.
Variance. A permission to develop or use property granted by the Watershed
Review Board relaxing or waiving a water supply watershed management
requirement adopted by the Environmental Management Commission that is
incorporated into this ordinance.
Water Dependent Structure. Any structure for which the use requires access to or
proximity to or citing within surface waters to fulfill its basic purpose, such as boat
ramps, boat houses, docks and bulkheads. Ancillary facilities such as restaurants,
outlets for boat supplies, parking lots and commercial boat storage areas are not
water dependent structures.
Watershed. The entire land area contributing surface drainage to a specific point
(e.g. the water supply intake.)
Watershed Administrator. An official or designated person of Cherokee County
responsible for administration and enforcement of this ordinance.
Section 602. Word Interpretation.
For the purpose of this ordinance, certain words shall be interpreted as
follows:
Words in the present tense include the future tense.
Words used in the singular number include the plural, and words used in the
plural number include the singular, unless the natural construction of the
wording indicates otherwise.
The word "person" includes a firm, association, corporation, trust, and
company as well as an individual.
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The word "structure" shall include the word "building."
The word "lot" shall include the words, "plot," "parcel," or "tract."
The word "shall" is always mandatory and not merely directory.
The word "will" is always mandatory and not merely directory.
28