5.7. - Tree protection.

5.7.1 General Provisions.

(a)

Short title. This section shall be known and may be cited as the Chapel Hill Tree Protection Ordinance.

(b)

Purpose. The intent of this section is to preserve, maintain, and increase tree canopy to protect the public health, safety, and welfare and enhance the quality of life in Chapel Hill.

(c)

Applicability and permits. The provisions of this article apply to all land in the town's zoning jurisdiction. For tree canopy coverage standards, see section 5.7.2.

(1)

Activities that require a zoning compliance permit:

i.

All work impacting trees on lots designated for non-residential, multi-family residential, and mixed use, and

ii.

All work impacting trees on lots designated for single- and two-family residential use where total land disturbance exceeds five thousand (5,000) square feet.

(2)

Activities that require review and approval by the town's urban forester:

i.

Private work on public land, and

ii.

The practice of forestry as defined by North Carolina General Statute 105-277.2-.7 which is permitted only after an applicant submits a plan for harvesting and replanting consistent with the most current Forest Practices Guidelines Related to Water Quality published by the N.C. Department of Natural Resources and Community Development, or its successor agency.

(d)

Exceptions not subject to the provisions of this article are:

(1)

Land in the town's Town Center and Office/Institutional-4 zoning districts, provided, however, that subsection 5.7.4 of this article shall apply;

(2)

Routine maintenance of existing trees outside the public right-of-way, including pruning done in a manner consistent with established arboricultural standards;

(3)

The removal of dead, severely damaged or diseased trees that have been diagnosed and, if applicable, determined by a certified arborist to be beyond treatment or recovery, the burden of proof being placed on the remover;

(4)

Land surveying provided no trees greater than six (6) inches dbh are damaged or removed; and

(5)

Eradication of exotic, non-native, and invasive or otherwise undesirable species listed in subsection 5.7.6(d).

(e)

Emergency waiver. The provisions of this section are waived if compliance would impede the rescue of life or property from immediate danger or the repair of utilities in the event of emergencies such as wind storms, ice storms, or other disasters. Any emergency work shall follow as closely as possible the standards outlined in the town's landscape standards and specifications.

5.7.2 Tree Canopy Coverage Standards.

(a)

Minimum canopy coverage standards. The town desires to maintain the maximum practical tree canopy cover across all land uses within the town's jurisdiction.

Tree canopy coverage standards are required for applications proposing tree removal that require council approval, including special use permits and major special use permit modifications.

For residential Neighborhood Conservation Districts, the district may request from the town council that tree protection regulations apply as per section 5.7 using a canopy coverage standard consistent with the existing neighborhood character.

When tree canopy is subject to the provisions of this section, the following minimum tree canopy coverage percentages are required within the zoning lot boundaries exclusive of public right-of-way:

Table 1: Minimum Tree Canopy Coverage
Standards

(b)

Modifications to canopy coverage standards. The town council may allow a modification to these regulations when public purposes are met and canopy removal supports other goals of the town, including but not limited to:

•  Goals of the Comprehensive Plan

•  LEED or "green" building and low impact development, including solar access and "daylighting"

•  Affordable housing

•  Stormwater management

•  Community character of adjoining property, or established managed landscapes, or established streetscapes

(c)

Implementation of standards. The highest priority for all projects shall be the maintenance and replacement of canopy on-site. Mitigation payments shall be used when providing canopy on-site is not practicable.

Compliance with canopy protection and replacement standards of subsection 5.7.2 is demonstrated by the following:

(1)

Approval and implementation of a landscape protection plan prepared in accordance with subsection 5.7.3(b).

(2)

Approval and implementation of a planting plan prepared in accordance with landscape architectural standards and the town's design manual.

(3)

Maintenance of protected and planted trees.

(4)

Tree mitigation payments as per subsection 5.7.2(d)3.

Compliance with the canopy coverage standards in Table 1 shall be accomplished by the following methods:

(1)

Protection of existing tree canopy. The extent of existing tree canopy coverage retained at the time of permit application may be documented by survey or by using current aerial photographs available on the town's web page or similar resource.

i.

Required cleared active recreation areas, water bodies, access easements, public and private right-of-way, stormwater and utility easements shall not be included in the total land area used in the canopy coverage calculation.

ii.

Trees planted in a town right-of-way as part of an approved street tree planting plan may count toward total tree canopy coverage.

(2)

Replacement of canopy. If the existing protected tree canopy is less than the minimum standard as shown in Table 1, the required minimum canopy shall be established. The tree canopy deficit is determined by subtracting the area of retained tree canopy as shown on the landscape protection plan from the minimum area of canopy coverage required in Table 1 in subsection 5.7.2.

i.

One (1) replacement tree per five hundred (500) square feet of tree canopy coverage deficit shall be planted in accordance with an approved planting plan.

ii.

All canopy trees planted in accordance with the town's design manual to meet the town's buffer and parking lot shading standards can all be counted when calculating replacement canopy trees provided.

iii.

Supplemental canopy trees planted to complete the canopy coverage requirements shall be planted no less than twenty (20) feet from any other proposed or existing canopy tree.

iv.

Replacement trees that are planted in an adjacent right-of-way may count toward total tree canopy.

v.

Installation and maintenance.

Plantings. All required plantings shown on an approved planting plan shall be prepared, installed and maintained according to the town's landscaping standards and specifications and must be planted or an accepted performance guarantee placed with the town in order to satisfy compliance with the requirements of this section.

(a)

Replacement tree caliper shall be two and one-half (2.5) inches at installation.

(b)

Upon approval by the town manager, a replacement tree with a caliper of four (4) inches or greater may count for two (2) replacement trees.

Maintenance. The property owner is responsible for assuring that the lot in its entirety will continue to meet minimum tree canopy coverage after issuance of a certificate of occupancy.

Trees that are damaged or decline in health during construction shall be assessed for viability and safety.

(a)

Viable trees shall be treated to promote their continued health and safety.

(b)

If the town manager determines a protected tree in a required buffer or other required planting is dead or dying at the time of the issuance of a certificate of occupancy, replacement of the tree may be required.

(3)

Mitigation. If the applicant chooses not to plant replacement canopy trees, payments to the Town of Chapel Hill Tree Mitigation Fund shall be calculated according to the current development fee schedule approved by the town council.

(4)

Tree mitigation fund. A primary objective of the tree mitigation fund is to use payments for the installation and maintenance of trees on public property. The town shall also use all such payments for the cost associated with implementation of this ordinance, for town sponsored tree management programs, and for the study, inventory, maintenance or treatment of public trees requiring the services of a certified arborist or other qualified consultant. Mitigation funds will not be used in lieu of general fund support for the existing urban forest management program.

5.7.3 Landscape Protection Plan.

(a)

Activities requiring a landscape protection plan.

(1)

Zoning compliance permit applications, required per subsection 5.7.1(c), shall include a landscape protection plan unless otherwise exempted.

(2)

Work limited to the removal of trees may require a landscape protection plan and shall conform to the required tree replacement and mitigation standards as described in subsection 5.7.2.

(b)

Landscape protection plan standards.

(1)

The town manager shall prescribe the contents of landscape protection plans and the information that may be reasonably required to determine compliance with this article, with sufficient copies for necessary referrals and records. Minimum requirements for the landscape protection plan include the following information:

i.

The size, location, and type of all existing rare and specimen trees as defined in subsection 5.7.6 within fifty (50) feet of proposed land disturbance.

ii.

All significant trees stands, as defined in subsection 5.7.5.

iii.

Areas where trees, vegetation, and soils are to be protected and preserved and areas where trees, vegetation, and soils are to be removed or modified. This includes indicating proposed grading, utilities, and improvements as well as access, staging, and storage areas. The plan shall graphically identify each tree to be saved or removed.

iv.

The critical root zones (CRZ) of all existing rare and specimen trees within or overlapping the disturbed area, and the measures of tree, vegetation, and soil protection and management that will be used before, during, and after all construction activities to promote the survival or retention of such elements. The CRZ is defined as a circular area surrounding a tree, of which the center is the center of the tree trunk and which has a radius of at least one (1) foot for every inch of trunk diameter (dbh) taken at four and one-half (4.5) feet above grade.

CRZ radius = diameter breast height (inches) × one (1) foot

v.

The percentage of the property with tree canopy coverage to be protected, if subject to minimum tree canopy standards. The town manager may require that a certified arborist and/or a licensed landscape architect confirm the accuracy of this information.

vi.

The location of tree protection fencing along the limits of disturbance with a detail of the tree protection fence and a note indicating that a pre-construction meeting with the town's urban forester will be scheduled prior to the start of work.

(c)

Implementation of landscape protection plan.

(1)

Protective fencing. Fences, or other equally effective measures as determined by the town manager, shall be used to protect areas identified on an approved landscape protection plan during demolition and construction activity. Protective fencing shall be installed according to town standards. Field adjustments may be allowed subject to prior approval by the town manager. All land disturbing activity, storage of equipment, building material, soil, and other debris shall be kept outside the protected areas.

(2)

Landscaping activities taking place after the removal of protective fencing shall be accomplished with light machinery or hand labor and in accordance with the town's landscaping standards and specifications. This requirement should be noted on the plans.

(3)

Pre-construction conference. Prior to the commencement of any activities requiring a zoning compliance permit, a pre-construction conference with the town's urban forester or landscape architect shall take place to review procedures for protection and management of all protected landscape elements identified on the landscape protection plan.

(4)

On-site supervision. For all development other than that related to single-family and two-family dwellings on individual zoning lots, the following on-site supervision is required:

i.

The applicant shall designate as landscape protection supervisors one or more persons who have completed instruction in landscape protection procedures with the town.

ii.

It shall be the duty of the landscape protection supervisor to ensure the protection of new or existing landscape elements, as defined in the landscape protection plan. The approved landscape protection supervisor shall supervise all site work to assure that development activity conforms to provisions of the approved landscape protection plan. At least one (1) identified landscape protection supervisor shall be present on the development site at all times when activity that could damage or disturb soil and adjacent landscape elements occurs such as:

•  Clearing and grubbing;

•  Any excavation, grading, trenching or moving of soil;

•  Removal, installation, or maintenance of all landscape elements and landscape protection devices; or

•  Delivery, transporting, and placement of construction materials and equipment on site.

(d)

Public hazard.

(1)

A certificate of occupancy may be denied for any development if the town manager determines that a public hazard as defined in this article exists on said lot, until that public hazard is abated.

(2)

A street dedicated to the town may not be accepted for maintenance at the end of the warranty period until any public hazard related to a tree in the right-of-way is abated.

(e)

Enforcement.

(1)

The town manager shall have development sites inspected frequently to assure that work is conforming to the approved landscape protection plan and the applicable sections of this article.

(2)

Absence of a landscape protection supervisor(s) from the site at times when development activity is taking place that has the potential to adversely affect trees to be preserved may result in the issuance of a stop-work order until a landscape protection supervisor is present.

5.7.4. Trees in Public Rights-of-Way.

(a)

Tree planting.

(1)

Trees may be planted on any public street right-of-way provided they are consistent with plans for public landscaping that have been approved and permitted by the State of North Carolina or the Town of Chapel Hill, they will not hinder the repair or construction of public utilities and a permit has been issued by the town manager when required.

(2)

Trees planted on any public street right-of-way may be of a species and in a location desired by the abutting property owner except that no trees or shrubs shall be planted close enough to any public street intersection to interfere with the sight distance at the intersection or with streets, sidewalks, signs, street lights, or above- and below-ground utility lines as specified in the town's landscaping standards and specifications.

(3)

All planting of trees and shrubs on public property shall be subject to general considerations of public health, safety and convenience, and the material and aesthetic value accruing to the whole community. Planting shall be restricted to the species known to be suited to the local climate and environment and shall be intended to preserve and enhance the beauty and variety of the public landscape as recommended in the town's landscaping standards and specifications.

(b)

Prohibited trees. Notwithstanding subsection 5.7.4.a, it shall be unlawful to plant in any public right-of-way any of the following:

(1)

Any trees which by the nature of their fruit, root system, brittleness of wood, or susceptibility to disease are deemed undesirable as specified in the town's landscaping standards and specifications;

(2)

Any invasive exotic plant materials as identified in the design manual and in subsection 5.7.6(d).

(c)

Public hazards.

(1)

It shall be the duty of the owner of the property wherein or whereupon a public hazard exists, to abate the hazard by removing or trimming the growth.

(2)

Where the roots of a public tree constitute a hazard to private property, or where trees on private property may damage sidewalks, curbs, or public streets or whose roots may enter public sewers or water mains shall be considered a public hazard and shall be pruned or removed by the town's public works department, as deemed necessary by the town manager.

(3)

If the owner of property, after being notified of the existence of a public hazard on their property, fails to abate the hazard within thirty (30) days, the town manager shall have the hazard abated and assess the exact cost to the owner as provided by law in the case of special assessments or liens.

(4)

Where the growth and limbs of public trees constitute a hazard to private property, the town, upon notice, shall correct the condition or permit affected property owners to correct the condition using established arboricultural standards.

(5)

Where the growth of trees interferes with public utilities, such conditions shall be corrected by proper pruning, removal, or replacement of the tree causing the interference. Corrective measures shall be carried out in accordance with the provisions of this article and the town's landscaping standards and specifications.

(d)

Removal of trees.

(1)

Private parties shall not remove trees from public property or public street rights-of-way without approval by the town's urban forester.

(2)

The town may remove dead or diseased trees or trees that interfere with the proper maintenance or improvement of a public street right-of-way, easement owned or maintained by the town or any public street or highway. A tree on the right-of-way line that is half or more than halfway on the right-of-way at its base will be considered to be on the right-of-way and, therefore, a public tree.

(3)

The town retains the right to remove any tree except that no rare tree shall be removed from land or easements owned by the town unless the town manager determines there is no reasonable way the tree can be saved.

5.7.5 Significant Tree Stands.

(a)

Significant tree stand defined. For purposes of this section, a "Significant Tree Stand" means an area of contiguous mature woods greater than five thousand (5,000) square feet in size where over half of the canopy is provided by hardwoods with a diameter breast height (dbh) greater than twenty-four (24) inches.

(b)

Applicability. The provisions of this section apply to any application requiring a landscape protection plan.

(c)

Submittal requirements. A landscape protection plan shall delineate the boundaries of all significant tree stands and describe their dominant plant species. All plans shall also show the proposed clearing limit lines and calculate the percentage of significant tree stand areas that are proposed to be cleared.

(d)

Preservation of significant tree stands. The significant tree stand delineation shall be used during the design review process to determine the most suitable and practical areas for woodland conservation. To the extent practicable, significant tree stands shall be preserved and incorporated into site design. Areas designated for preservation on approved plans shall be protected during construction.

5.7.6 Rare and Specimen Trees.

(a)

Rare and specimen tree defined. With the exception of invasive exotic species listed in subsection 5.7.6.(d),

(1)

A rare tree is:

i.

Any healthy living pine tree that has a trunk diameter of thirty-six (36) inches or more, or any other species that:

ii.

Has a trunk diameter at breast height (dbh) of twenty-four (24) inches or more; or

iii.

Has a trunk dbh of twelve (12) inches or more in the case of North Carolina native species from the list of genera in this section; or

iv.

Is listed as a State or National Champion by the North Carolina Forest Service or the American Forestry Association; or

v.

Provides unique habitat for any endangered or threatened wildlife species protected by federal law; or

vi.

Has been cited by the town council as being historically significant; or

vii.

Represents an uncommon species, such as Long Leaf Pine, Live Oak, or Sequoia Redwood, that the town manager considers to be desirable and not to pose a threat to the local ecological balance.

(2)

A specimen tree is:

i.

Any healthy living pine tree that has a trunk diameter of eighteen (18) inches or more, or any other species that:

ii.

Has a trunk diameter at breast height (dbh) of twelve (12) inches or more; or

iii.

A trunk dbh of six (6) inches or more in the case of the North Carolina native species from a following list of genera:

(3)

North Carolina Native Genera:

Aesculus (Buckeye)

Amelanchier (Serviceberry)

Asimina (Pawpaw)

Carpinus (Hornbeam)

Cercis (Redbud)

Chionanthus (Fringetree)

Cornus (Dogwood)

Crataegus (Hawthorn)

Diospyros (Persimmon)

Fagus (Beech)

Halesia (Silverbell)

Hamamelis (Witch-hazel)

Ilex (Holly)

Juniperus (Cedar)

Ostrya (Hophornbeam)

Oxydendrum (Sourwood)

Sassafras (Sassafras)

Tsuga (Hemlock)

(b)

Rare and specimen trees on developing land.

(1)

Rare and specimen trees shall be shown on all landscape protection plans if such trees are within fifty (50) feet of areas of proposed soil disturbance or construction activity. These trees shall be identified and located by survey on the approved landscape protection plan if such trees are located on the development site or adjacent public property. The town urban forester may visit the site to determine the accuracy of identification.

(2)

Proposed development should maximize the preservation of rare and specimen trees. Flexible approaches such as adjustments to lot layout, placement of buildings and paved surfaces and location of utilities should be pursued in order to save rare and specimen trees.

(3)

Notwithstanding any provision of the Land Use Management Ordinance to the contrary, saving of a rare or specimen tree shall constitute sufficient evidence that subsections 4.12.2(a)—(e) have been met in any variance application.

(4)

No rare tree shall be removed unless the town manager determines there is no reasonable way the property can be otherwise developed, improved or properly maintained, and the tree saved.

(c)

Voluntary protection of rare trees on private land.

(1)

Rare trees shall be protected if voluntarily registered by the property owner.

(2)

Registration of such trees shall survive transfer of ownership if language is contained in the document transferring ownership and shall extend the coverage hereof and render the owner of the lot subject to the following privileges:

i.

The owner shall be entitled to consultation with the town urban forester concerning proper care of the tree at no charge.

ii.

If a permitted auxiliary structure or addition to a house is being planned, notwithstanding any provision of the Land Use Management Ordinance to the contrary, saving of a rare or specimen tree shall constitute sufficient evidence that subsection 4.12.2 of the Land Use Management Ordinance has been met in any variance application.

iii.

Subject to approval by the town manager, the voluntary listing and protection of rare trees on a site may be considered in lieu of all or a portion of the tree canopy mitigation requirements included in this section of the ordinance that may otherwise be required on that site.

(3)

Once so registered, trees may be removed from the register at a later date at the request of the property owner.

(d)

Invasive exotic species. The following invasive exotic species are not required to be shown on proposed landscape protection plans, regardless of size. These species cannot be planted in a public right-of-way or to satisfy any town landscaping requirements and are recommended for removal and replacement, should they be identified on developing property:

Acer platanoides (Norway Maple)

Alianthus altissima (Tree of Heaven)

Albizia julibrissin (Mimosa)

Broussonetia papyrifera (Paper Mulberry)

Melia azadarach (Chinaberry)

Morus alba (White Mulberry)

Paulownia tomentosa (Princess Tree)

Populus alba (White Poplar)

Pyrus calleryana (Callery/Bradford Pear)

Quercus accutissima (Sawtooth Oak)

Ulmus pumilia (Siberian Elm)

5.7.7 Administrative Mechanisms.

(a)

Fees. Reasonable fees sufficient to cover the costs of administration, inspection, appraisal, and publication of notice shall be charged to applicants for zoning compliance permits established by this article. The amount of such fees shall be fixed by the town council.

(b)

Penalties.

(1)

In the event that other mitigation measures contained herein are determined by the town manager to be insufficient, any act constituting a violation of this article resulting in the loss or destruction of trees may subject the landowner to a civil penalty up to one and one-half (1.5) times the monetary value of the trees removed or destroyed up to a maximum of twenty thousand dollars ($20,000.00). For purposes of such determination, the town manager shall apply the most current formula of the council of tree and landscape appraisers, or a similar method in common use and accepted by courts of law.

(2)

Development activity which has taken place in compliance with conditions of the zoning compliance permit issued for that activity shall establish a presumption that the property owner has met the requirements of this section. It shall be the duty of the permit holder to demonstrate that the activity was in compliance with the issued permit.

(3)

Unless otherwise specified in this article, the Town of Chapel Hill shall enforce the provisions of this article in accordance with procedures, penalties, and remedies described in article 4 of the Land Use Management Ordinance.

(c)

Appeals. Unless otherwise specified in this article, interpretations, appeals, and variances of or from provisions of this article shall be pursuant to the provisions of article 4 of this chapter.

(Ord. No. 2007-06-11/O-7, §§ 1, 2; Ord. No. 2010-12-06/O-9, § 1)

5.8. - Access and circulation.

5.8.1. External Circulation.

(a)

All development shall have access to a publicly maintained street. No zoning compliance permit or building permit shall be issued for any structure absent evidence of access to a publicly maintained street. Access may include direct access to a publicly maintained street or access via a recorded access easement across intervening property.

Every subdivided lot shall front on a public street meeting the standards of this section and of the design manual, including all required improvements such as sidewalks, curbs and gutters. (Ord. No. 2004-02-23/O-2)

(b)

The type and arrangement of streets, driveways and public alleys within a development shall be in compliance with and coordinate to Chapel Hill's Transportation Plan.

(c)

Principal vehicular access points to the development shall be designed to encourage smooth traffic flow with minimum hazards to pedestrian, bicycle, and other vehicle traffic. Accommodations for controlled turning movements into and out of the development and improvement of the approach street shall be provided where existing or anticipated heavy traffic flows indicate need.

(d)

Whenever appropriate to the type, size, and location of development, the site shall be so arranged as to facilitate the future utilization or accommodation of public transportation.

(e)

Bicycle and pedestrian systems in the vicinity of the development site shall be extended to the site to the extent practicable. Access to the site shall be in compliance with and coordinate to existing and future town bicycle and pedestrian systems and the systems of adjacent developments. Bicycle, pedestrian and transit improvements shall be installed along all public streets within and on the external street frontage of the development, to the extent practicable, in accordance with provisions in the Chapel Hill Design Manual.

(f)

Access for cyclists and pedestrians shall be by safe and convenient routes which need not be limited to the vicinity of vehicular access points. Accommodations for safe intersections of bicycle and/or pedestrian routes with adjacent vehicular routes shall be provided where existing or anticipated heavy traffic flows indicate need.

(g)

Traffic impacts of proposed new development and redevelopment shall be considered in the review of applications. A traffic impact analysis is required to identify and quantify the traffic impacts of proposed developments, and to identify facility improvements necessary to maintain acceptable levels of service. A traffic impact analysis is required for the following applications, unless affirmatively exempted by the town manager: major subdivision, special use permit, special use permit modification, and site plan review. Guidelines and requirements for conducting traffic impact analyses are available in the town engineering department. The guidelines provide a standard process, set of assumptions, set of analytical techniques, and presentation format to be used in an analysis. A set of criteria for exempting an application from the analysis requirement is included in the guidelines. Traffic impact analyses will be prepared by consultants under contract with the town and the costs of the analyses will be included in the development application fees. (Ord. No. 2004-02-23/O-2)

5.8.2. Internal Circulation.

Purpose statement: The provisions of this section are designed to ensure that internal circulation systems provide the types, amounts, and locations of accessibility appropriate to the type and size of the development, are designed so as to facilitate the movement of persons, goods, services, and waste products in a safe and efficient manner, maximize pedestrian and bicycle orientation with a minimum of impermeable surface, and provide safe and convenient vehicular access for emergency and service vehicles.

(a)

Generally.

(1)

Streets, public alleys, bicycle circulation systems and bike lanes, pedestrian circulation systems and sidewalks, and bus stop amenities shall be provided and designed in accordance with the design manual.

(2)

The integration or separation of circulation systems and patterns shall be provided as appropriate to the type and size of the development and to the existing or anticipated traffic flows, as defined in the design manual.

(b)

Projecting streets.

Where adjoining areas are not subdivided, the arrangement of streets in the subdivision shall provide for the projection of streets into such unsubdivided areas. Parcels shall be arranged to allow the opening of future streets and logical further subdivision. Where necessary to the neighborhood pattern, existing streets in adjoining areas shall be continued and shall be at least as wide as such existing streets and in alignment therewith. Where streets change design in alignment and width, the applicant shall provide transition sufficient to ensure safe and efficient traffic flow. This section is not intended to require local designated streets to project into floodplains, bluffs or other natural features or existing development that has not made accommodations for connection.

(c)

Reserve strips prohibited.

There shall be no reserve strips controlling access to land dedicated or intended to be dedicated to public use.

(d)

Non-access easement.

When deemed necessary, a vehicular non-access easement may be required on a lot(s) for the purpose of controlling ingress and egress to vehicular traffic.

5.8.3. Sight line triangle easements.

(a)

Where necessary to ensure proper visibility for the safe flow of vehicular traffic at street intersections and major driveway intersections with streets, sight line triangle easements shall be provided at the corners of such intersections in accord with the standards set forth in the design manual. Major driveways are considered to be those serving multifamily or non-residential developments.

(b)

No structure or planting that would interfere with safe sight lines shall be permitted within the sight line triangle easement.

5.9. - Parking and loading.

5.9.1. Off-Street Parking and Loading Required.

(a)

Off-street bicycle and vehicular parking shall be provided for all uses of land, structures, and buildings as well as for any expansion of such uses or increase in the intensity of use in accord with the requirements of this section. (Ord. No. 2004-02-23/O-2)

(b)

Except within the town center districts, off-street loading space shall be provided for all retail business, wholesale, and industrial uses as well as for any expansion of such uses or change in use requiring the regular delivery or shipping of goods, merchandise or equipment to site by semi-trailer trucks, in accord with the requirements of this section. Loading required by development within the town center districts shall be provided through access to approved on-street loading spaces and/or public alleys provided in conformance with Chapel Hill's adopted plan for town center loading access.

(c)

In the case of mixed uses, the total requirements for off-street parking or loading space shall be the sum of the requirements for the various uses computed separately.

5.9.2. Methods of Providing Required Parking and Loading.

(a)

All required parking or loading space shall be located on the same zoning lot as the principal use(s) it serves, except as provided for below. (Ord. No. 2004-02-23/O-2)

(b)

In lieu of actual construction of required on-site parking spaces, all or any portion of the off-street parking required in this section may be provided by the following means.

(1)

Required parking for a use on a zoning lot may be located on another zoning lot, either by itself or combined with parking for other uses, subject to certification by the town manager that the following requirements have been met:

A.

The use being served by the off-site parking shall be a permitted principal use, as established in section 3.7 in the zoning districts within which the zoning lot containing such parking is located;

B.

The off-site parking spaces shall be located within twelve hundred (1,200) feet walking distance of a public entrance to the structure or land area containing the use for which such spaces are required. A safe, direct, attractive, lighted and convenient pedestrian and bicycle route shall exist or be provided between the off-site parking and the use being served;

C.

The continued availability of off-site parking spaces necessary to meet the requirements of this section shall be ensured by an appropriate restriction on the title to the land providing the off-site parking spaces, in the form of a declaration, covenant, or contract;

D.

For purposes of determining applicable minimum and maximum land use intensities, the land area devoted to off-site parking shall be added to the gross land area of the zoning lot containing the use being served by such parking and shall be subtracted from the gross land area of the zoning lot containing the off-site parking; and

E.

For places of worship upon appropriate findings by the town council, off-site parking may be used to provide required parking without obtaining a restriction on the title to the land providing the off-site parking spaces. Appropriate findings shall include reasonable assurance of the continued availability of off-site parking and that sufficient space exists on the church's zoning lot to provide the required off-street parking should the off-site parking become no longer available.

(2)

For uses located within either town center zoning district, compliance with parking requirements may be achieved by making payments to the Town of Chapel Hill Parking Fund in accord with Chapter 11A of the Chapel Hill Code of Ordinances.

(3)

For uses located within either town center zoning district, compliance with parking requirements may be achieved by providing a transportation management plan subject to approval by the town manager or subject to approval by the town council if the proposed use requires town council approval. The transportation management plan shall identify efforts to promote the use of alternate modes of transportation and may include required parking and/or payment to the Town of Chapel Hill Parking Fund in accord with Chapter 11A of the Chapel Hill Code of Ordinances for a portion of the required spaces.

5.9.3. Shared Parking .

Up to one-half (½) of the parking spaces required for one use may be used to satisfy the parking requirements for either a second use on the same zoning lot or a use for which the provisions of subsection 5.9.2, above are utilized, subject to certification by the town manager that such joint usage of parking complies with the following provisions:

(a)

The peak usage of the parking facility by one use will be at night or on Sundays (such as with theaters, assembly halls, or places of worship), and the peak usage of the parking facility by the second use will be at other times, as provided below; or

(b)

The second use is an ancillary use to the first use, such as restaurants and meeting rooms to hotels and motels.

5.9.4. Use of Required Parking and Loading Space.

(a)

Required parking areas shall be available for the parking of operable vehicles of residents, customers, and employees, and shall not be used for the storage of vehicles or materials, or for the parking of vehicles used for loading or unloading, or in conducting the use.

(b)

Required loading space shall be available for the loading and unloading of vehicles, and shall not be used for the storage of vehicles or materials, or to meet off-street parking requirements, or in conducting the use.

5.9.5. Parking Design Standards.

All parking areas shall meet the following minimum design requirement:

(a)

Ingress to and egress from parking areas shall conform to the design manual.

(b)

In the town center, TND or TOD districts, if a setback is provided between a principal structure and a street, such setback shall not be used for off-street parking.

(c)

Except for single- or two-family dwellings, all parking spaces and maneuvering space shall be surfaced with an all-weather material or gravel, which shall be maintained in a safe and sanitary condition.

(d)

No parking area or maneuvering space shall be located within a public street right-of-way. Parked vehicles in off-street parking spaces shall be prevented from intruding on travel lanes, walkways, public streets, or adjacent properties by means of walls, curbs, wheel stops, or other appropriate means.

(e)

The size of parking spaces shall be adequate for the safe parking of vehicles and maneuvering space shall be provided so that parking and unparking can be accomplished in one continuous maneuver. Parking facilities designed to accommodate five (5) or more vehicles shall be designed in accord with the standards for stalls and aisles as set forth in the standard details and specifications.

(f)

Curbed islands shall be required at the ends of or between parking aisles where necessary for traffic control or drainage control.

(g)

Except for single- or two-family dwellings, parking spaces shall be provided with adequate aisles or turnaround areas so that all vehicles may enter adjacent streets in a forward manner.

(h)

Parking facilities shall be designed to connect with parking facilities on adjacent zoning lots where appropriate to eliminate the need to use the abutting street(s) for cross movements.

(i)

All off-street parking facilities shall be provided with a drainage system meeting the design standards contained in section 5.4.

(j)

All lighting of and within parking facilities shall conform to the lighting design standards contained in section 5.11

(k)

Adequate provision shall be made for the ventilation, dispersion, and removal of smoke and gases from above-ground and below-ground parking structures.

(l)

Parking facilities designed to accommodate five (5) or more vehicles shall provide areas as necessary for the parking of motorcycles, mopeds, and bicycles. Such areas shall be clearly defined and reserved for the exclusive use by motorcycles, mopeds, and bicycles.

(m)

Parking facilities designed with the appropriate number, size and type of handicapped parking spaces, ramps, crosswalks and associated infrastructure to comply the Americans With Disabilities Act standards, North Carolina Accessibility Code, and town standard. Such spaces shall be clearly defined and reserved for the exclusive use by handicapped persons.

(n)

Parking facilities shall be designed with walkways and lighting to facilitate safe walking movements to and from parked vehicles.

5.9.6. Parking Landscaping Standards.

Purpose statement: It is the intent of this subsection to protect and promote the public health, safety, and general welfare by requiring the landscaping of parking areas which will serve to reduce radiant heat from surfaces, to reduce wind and air turbulence, to reduce noise, to reduce the glare of automobile lights, to ameliorate stormwater drainage problems, and to protect and preserve the appearance, character, and value of adjacent properties.

Except for one- or two-family dwellings, all parking facilities, unless located entirely underground, shall meet the following minimum landscaping requirements:

(a)

Parking facilities, unless located on or within a structure, shall be separated from the exterior wall of a structure, exclusive of paved pedestrian and bicycle entrance ways or loading areas, by a buffer strip at least five (5) feet in width, which shall be landscaped in accord with town landscaping standards.

(b)

Entryways into parking facilities shall be bordered by a buffer strip a minimum of eight (8) feet in width, which shall be landscaped in accord with town landscaping standards.

(c)

Ground-level parking facilities and the ground level of parking structures shall be screened from adjacent streets by means of an effective screening device which is at least three (3) feet in height above the grade of the edge of the parking area. Ground-level parking facilities and the ground level of parking structures shall be screened from adjacent properties zoned Residential by means of an effective screening device which is at least six (6) feet in height above the grade of the edge of the parking area. Appropriate screening devices may include solid decorative brick walls, wood fences, berms, tight evergreen hedges which shall reach the required height within two (2) years of planting, or any combination of the above.

(d)

Vegetation shall be provided within and adjacent to ground-level parking areas which will, in the opinion of the town manager, be sufficient to achieve shading of at least thirty-five (35) per cent of the parking area surface on noon on August 21 when the vegetation matures. The applicant shall be responsible for maintaining such vegetation in a safe and sanitary condition.

(e)

In providing the vegetation required herein, the retention of existing significant vegetation shall be encouraged.

5.9.7. Minimum and Maximum Off-Street Parking Space Requirements.

The following minimum and maximum vehicular parking requirements shall apply for the appropriate use and zoning district. Vehicular parking requirements shall not apply for uses located within the Office/Institutional-3 or Office/Institutional-4 Districts.

A reduction of up to twenty (20) percent of the minimum number of required vehicular parking spaces may be permitted through the granting of a minor variance by the board of adjustment if, based on substantial evidence in the record of its proceedings, the board finds that compliance with the full minimum off-street vehicular parking space requirements of this section would necessitate the removal of or would seriously endanger significant specimen trees on or adjacent to the zoning lot on which such parking is required.

* Minimum vehicular and bicycle parking requirements shall not apply for uses located within the Office/Institutional-3 or Office/Institutional-4 Districts.

** For a duplex, no minimum vehicular parking requirement shall apply and for the purposes of calculating the maximum number of vehicular parking spaces, garage spaces and the driveway are not to be counted.

*** See section 4.11 Bicycle Parking in the Town of Chapel Hill 2005 Design Manual.

Note: The minimum number of parking spaces required for elderly or handicapped dwellings may be reduced to one (1) per two (2) dwelling units upon findings made by the town council that (1) reasonable assurances exist that the dwelling units served by the parking spaces will be maintained for occupancy by the elderly or handicapped and/or (2) that sufficient space exists on the property to ensure that should the units be converted to another form of occupancy or use, that sufficient parking can be provided on the site to satisfy the parking requirements of the new use, without violating the land use intensities of Table 3.8-1.

In the case of a use not listed above, the minimum and maximum bicycle and vehicular parking space requirements shall be determined by the town manager. In making such determinations, the town manager shall be guided by the requirements for similar uses, the number and kind of bicycles and vehicles likely to be attracted to the use, and studies of minimum parking space requirements for such use in other jurisdictions.

Minimum vehicular parking requirements for an individual site may be reduced by the town council in the context of a special use permit approval, or the planning board in the context of a site plan review approval, if evidence is submitted to demonstrate and the town council, or planning board, finds that:

(a)

Sidewalks, bicycle facilities, transit service and transit amenities are in place such that, together with the number of vehicular parking spaces that are proposed, transportation needs are adequately served; or

(b)

The particular use that would be specified in the special use permit is of a nature that generates lower-than-average trips, and that the special use permit would limit use of the property to what is specified; or

(c)

Arrangements for shared parking with nearby facilities is ensured.

(Ord. No. 2004-02-23/O-2; Ord. No. 2007-02-26/O-5, § 10; Ord. No. 2007-06-11/O-8a, § 1; Ord. No. 2008-10-27/O-3, §§ 1, 2; Ord. No. 2010-10-11/O-7, § 1)

5.9.8. Loading Space Design Standards.

All loading spaces shall meet the following minimum design requirements:

(a)

Off-street loading spaces shall be located and arranged so that a semi-trailer truck (WB 43 Design Vehicle) shall be able to gain access to and use such spaces by means of one (1) continuous parking maneuver.

(b)

Loading space shall observe the minimum street and interior setbacks established for structures in section 3.8 of this appendix.

(c)

All loading space and maneuvering space shall be surfaced with an all-weather material which shall be maintained in a safe and sanitary condition.

(d)

No loading space shall be located so that a vehicle using such space intrudes on travel lanes, walkways, public or private streets, or adjacent properties.

(e)

Each required off-street loading space shall have a minimum width of twelve (12) feet, a minimum depth of fifty-five (55) feet, and a vertical clearance of fourteen (14) feet above finished grade of the space.

(f)

Loading areas shall be screened from adjacent streets and adjacent properties by means of an effective screening device which is at least six (6) feet in height above the grade of the loading area. Appropriate screening devices may include solid decorative brick walls, wood fences, berms, tight evergreen hedges which shall reach the required height within two (2) years of planting, or any combination of the above.

5.9.9. Parking in Front Yards.

(a)

Applicability.

The restrictions of this section shall apply to single-family and two-family dwellings in all zoning districts.

(b)

Generally.

Parking and drive areas located in front yards (between the street and a line drawn parallel to the street from the point of the house that is closest to the street) shall be maintained in a safe and sanitary condition, shall not contribute to soil erosion or to tree damage, and shall be clearly designated and covered with an all weather surface or gravel.

(c)

Coverage.

Parking and drive areas shall be limited to forty (40) per cent of the front yard area of any zoning lot. Access to front yard parking shall be limited to properly approved curb cuts or other approved access points.

(d)

Exceptions.

The town manager may grant an exception to subsection (c) where he/she finds all of the following conditions to exist on the property:

(1)

The parking area is clearly defined and or marked; and

(2)

The parking area is maintained in a safe and sanitary condition; and

(3)

The parking area does not contribute to soil erosion or tree damage; and

(4)

Access to front yard parking shall be limited to properly approved curb cuts or other approved access points; and

(5)

The location and dimension of such parking area is traditionally and customarily associated with the subject structure; and

(6)

If the parking lot is located in the historic district, the historic district commission grants a certificate of appropriateness for the parking area.

The town manager may grant an exception to subsection (c) where he/she finds that environmental constraints preclude parking elsewhere.

5.9.10. Minimum Off-Street Loading Space Requirements.

The following minimum loading space requirements shall apply for the appropriate use:

5.10. - Disability Access.

Except for single- and two-family dwellings, all buildings and facilities shall be accessible to and usable by the physically handicapped in accordance with the building code provisions contained in chapter 5 of the Town Code of Ordinances.

5.11. - Lighting Standards.

Purpose statement: This section provides standards for lighting that shall be designed to minimize spillover of light onto adjacent property, glare that could impair vision, and/or other conditions that deteriorate normally accepted qualities and uses of adjacent property.

5.11.1. Applicability.

The provisions of this section apply to any outside lighting used around buildings, recreation areas, parking areas, walkways, drives, or signs.

Lighting sources shall be shielded or arranged so as not to produce within any public right-of-way glare that interferes with the safe use of such right-of-way and so as not to constitute a nuisance to the occupants of adjacent properties.

5.11.2. Mounting Heights.

Outdoor lighting, except sports and athletic field lighting, shall be mounted at heights no greater than fifteen (15) feet for non-cutoff lights; and no greater than thirty-five (35) feet for full cutoff lights.

5.11.3. Sports Fields.

Lighting for sports and athletic fields must include glare control features and must be designed so that primary illumination is directed onto the play area and ancillary areas such as bleachers, stands, and similar areas. All lighting fixtures for sports fields shall be equipped with a glare control package including louvers, shields, or similar devices). The fixtures must be aimed so that their beams are directed and fall within the primary playing or performance area.

5.11.4. Offsite Illumination.

Increases in illumination on off-site property shall not result in lighting levels in excess of 0.3 foot-candles, measured at ground level. Where existing ambient off-site lighting levels are in excess of 0.3 foot-candles, no increase in measurable off-site lighting levels will be allowed as a result of outdoor lighting in the development.

5.11.5. Buildings, Streets, Driveways and other Passageways.

Except for single- and two-family dwellings, all streets, driveways, bikeways, sidewalks, pedestrian paths, parking areas, and other common areas and facilities shall be lighted where necessary to ensure the security of property and the safety of persons using such streets, driveways, bikeways, sidewalks, pedestrian paths, parking areas, and other common areas and facilities. Specific standards for and restrictions on lighting are included in the town's design manual.

All principal entrances and exits to principal buildings used for nonresidential purposes or containing more than five (5) dwelling or lodging units shall be sufficiently lighted to ensure the safety of residents and the security of the building.

5.11.6. Submittals.

Each application for a zoning compliance permit for development other than a single-family or two-family dwelling shall include a lighting plan that shows existing and proposed lighting fixture types and locations. The plan shall indicate, by isolux contour diagram and grid points, the measured and calculated pre-development and post-development foot-candles at grade both on the development site and on adjacent property where lighting impacts are expected. The lighting plan must be sealed by a professional engineer with demonstrable expertise in lighting design and mitigation strategies, or a lighting specialist who is lighting certified (LC) by NCQLP (National Town Council on Qualifications for the Lighting Professions).

5.12. - Utilities.

5.12.1. Water and Sewerage.

(a)

Service by public systems.

(1)

All development within the boundaries of Chapel Hill's Urban Services Area, as defined in the comprehensive plan, shall be served by a public water supply and a public sanitary sewer system. No zoning compliance permit or building permit shall be issued for any structure within the town's urban services area (as defined in the comprehensive plan), absent evidence that the structure can be served by public water and sewer facilities. Existing development not served by public water and sewer shall not be considered as nonconforming within the meaning of article 7 of this chapter. Provided however that permits may be issued to authorize the reconstruction, rehabilitation, renovation, or expansion of a development existing on or before January 27, 2003, whether or not such development is served by a public water supply and a public sanitary sewer system, subject to applicable regulations, including demonstration of compliance with county health department regulations. (Ord. No. 2003-09-22/O-2, § 1)

(2)

Fire hydrants of sufficient water pressure to provide adequate fire protection shall be provided where necessary, as determined by the town manager.

(3)

All proposed public water and sanitary sewer installations shall be approved by the Orange Water and Sewer Authority (OWASA). Certification of such approval shall be submitted to the town manager prior to issuance of any zoning compliance permit for the development being served.

(4)

No building permits shall be issued until all required water mains and fire hydrants are installed and operational. For purposes of this subsection, "operational" means that the water mains and fire hydrants are capable of delivering sufficient water to meet domestic and fire fighting needs.

(5)

No certificate of occupancy for a structure shall be issued until the following documents have been submitted to the town manager:

A.

Certification from the Orange Water and Sewer Authority that all water and/or sewer facilities necessary to serve such structure have been completed to the Orange Water and Sewer Authority standards; and

B.

As-built construction drawings of those completed water and/or sewer facilities located within a public right-of-way or easement.

(b)

Service by individual systems.

(1)

Individual water supply systems intended to provide potable water are permitted outside of the urban services area, subject to approval by the appropriate county health department. Certification of such approval shall be submitted to the town manager prior to issuance of any zoning compliance permit for the development being served.

(2)

Individual subsurface sewage disposal systems are permitted outside of the urban services area, subject to approval by the appropriate county health department. Certification of such approval shall be submitted to the town manager prior to issuance of any zoning compliance permit for the development being served. A lot with an individual subsurface sewage disposal system shall also have a replacement filed location approved by the appropriate county health department. (Ord. No. 2004-02-23/O-2)

5.12.2. Other Utilities.

(a)

All utility lines other than lines used only to transmit electricity between generating stations or substations shall be placed underground, and all surface disruptions required for installation shall be rehabilitated to the original or an improved condition. Three-phase electric power distribution lines are not required to be placed underground except as provided in subsection (b), below.

(b)

Three-phase electric power distribution lines.

(1)

Three-phase electric power distribution lines shall be placed underground if:

A.

Duke Energy agrees in a written statement to provide utilities underground; and

B.

Three-phase lines shall be placed underground by the applicant where:

1.

There is a rational nexus between the impact of the proposed development and the proposed utility requirement; and

2.

The costs of placing the utilities underground are roughly proportionate to the impacts of the development on adjoining properties or the town; and

3.

Placing the utility underground does not violate any provision of the electrical code or other relevant safety standard; and

4.

The applicant has the legal right to place the lines underground where they are located off-site.

(2)

Three-phase lines are not required to be placed underground if the applicant or Duke Energy demonstrates that the burial would create economic hardship or a danger to public health or safety as it relates to the size, nature, timing, and scope of the proposed development.

(c)

A letter or letters certifying the availability of immediate service from each of the other utilities (electric, gas, telephone, cable television) serving a structure shall be submitted to the town manager prior to issuance of a zoning compliance permit for such structure.

(d)

No certificate of occupancy for a structure shall be issued until the following documents or certifications from the appropriate utilities that all facilities necessary to provide electric, gas, telephone, and/or CATV service to such structure have been completed to the standards of the appropriate utilities have been submitted to the town manager.

5.13. - Solid waste collection and recycling.

(a)

All developments shall provide a detailed solid waste management plan, including a recycling plan and a plan for managing and minimizing construction debris, subject to approval by the town manager.

(b)

All developments shall provide secure, safe, and sanitary facilities for the storage and pickup of solid waste and recyclables. Such facilities shall be convenient to collection and shall be appropriate to the type and size of the development being served.

(c)

Except for single- and two-family dwellings, all solid waste and recyclables storage facilities shall be screened by a solid wall, fence, tight evergreen hedge, or combination of the above. Such screening shall be of sufficient height and design to effectively screen the facility from the view from adjacent residential uses and streets, and from adjacent properties.

5.14. - Signs.

5.14.1. Intent.

It is the intent of this section to authorize the use of signs with regard to size, layout, style, typography, legibility, and arrangements compatible with their surroundings; appropriate to the identity of individual properties, occupants, or of the community; and as appropriate to traffic safety.

5.14.2. Signs Subject to Control.

Unless specifically exempted, no sign visible from the public right-of-way, whether exterior to or interior to a structure, shall be erected, displayed, or substantially altered except in accord with the provisions of this appendix and until a zoning compliance permit has been issued therefore.

5.14.3. Signs Exempt from Regulation.

The following signs are exempt from regulation and permit requirements under this section provided such signs comply with the provision of subsection 5.14.4 and provided that neon tube and like illumination shall be prohibited except as permitted in subsection 5.14.8.

(a)

Signs bearing only property identification numbers and names, post office box numbers, names of occupants of the premises on which the signs are located, or other identification of premises not of a commercial nature, provided such signs are not illuminated and do not exceed two (2) signs per zoning lot nor two (2) square feet in area per display surface.

(b)

Flags and insignia of a government, when not displayed in connection with a commercial promotion.

(c)

Legal notices, identification and informational signs, and traffic directional or regulatory signs erected by or on behalf of a governmental body.

(d)

Memorial signs or tablets, and names and construction dates of buildings when cut into any masonry surface.

(e)

Signs directing and guiding traffic and parking on private property on which the signs are located, provided such signs are not illuminated, bear no advertising matter, and do not exceed four (4) square feet in area per display surface.

(f)

Real estate signs advertising the sale, rental, or lease of the premises on which said signs are located, provided such signs do not exceed one sign per street frontage and four (4) square feet in area per display surface for property zoned residential; sixteen (16) square feet per display surface for property zoned non-residential or located within an approved planned development other than a PD-H; and are removed immediately after sale, rental, or lease of the premises.

(g)

Construction site identification signs whose message is limited to project name, identification of architects, engineers, contractors, and other individuals or firms involved with the construction, the name of the building, the intended purpose of the building, and the expected completion date. Construction site identification signs may not exceed four (4) square feet in area per display surface and six (6) feet in height for single family or duplex construction; and thirty-two (32) square feet in area per display surface and eight (8) feet in height for multifamily or non-residential construction. Such signs shall be non-illuminated and consist of light letters on a dark background. Construction site identification signs may not exceed one sign per construction site, and are not to be erected prior to the issuance of a building permit, and are to be removed within seven (7) days of issuance of a certificate of occupancy.

(h)

Temporary political signs advertising candidates or issues, provided such signs do not exceed four (4) square feet in area per display surface, and provided that any such signs, on private property, are removed within seven (7) days after the election; and provided further that any such signs in the public right-of-way are not erected prior to forty-five (45) days before the date of the appropriate election and are removed within twelve (12) days after the election.

(i)

Yard or garage sale signs announcing yard or garage sales, provided such signs do not exceed one sign per site of such sale nor four (4) square feet in area per display surface, and are removed within seven (7) days of erection.

(j)

Public event announcements by public or non-profit organizations of special events or activities of interest to the general public, provided such signs do not exceed one sign per site of such events or activities nor twelve (12) square feet in area per display surface, and are removed within fourteen (14) days of erection.

(k)

Temporary signs announcing grand openings of new businesses only, provided such signs are attached to the building in which the business is located, do not exceed thirty-two (32) square feet of display area per business site, and are displayed for a period not to exceed twenty-one (21) days.

(l)

Signs in the neighborhood commercial, community commercial, town center, and mixed use districts that are no more than six (6) square feet in area per display surface. This provision applies only to changeable or moveable signs that are:

(1)

Limited to one (1) sign per business;

(2)

Located in front of the business identified on the sign;

(3)

Located on a street with sidewalks on both sides, for those areas outside the Town Center zoning districts;

(4)

Adjacent to roadways only if speed limits are at thirty-five (35) mph or lower, where pedestrian movement is not restricted; and

(5)

Displayed only during business hours.

Changeable or moveable signs are those non-illuminated signs that change or are moved on a daily basis.

(m)

Information kiosks or bulletin boards erected by or on behalf of a governmental body on public property or rights-of-way in the town center districts for the display of handbills or posters of community interest, provided such kiosks or bulletin boards contain no more than six (6) square feet in area per sign display surface, and a maximum of seventy-two (72) square feet per kiosk or bulletin board.

(n)

Signs stating that a business other than a home occupation is open, provided that there is no more than one such sign per business establishment, and provided that such sign does not exceed two (2) square feet in display area.

(o)

Non-commercial signs not covered by other exemptions listed in this section, provided such signs are located on private property and are non-illuminated.

(p)

Window signage for businesses in town center-1 and town center-2 zoning districts, provided that the window signage shall not exceed fifteen (15) per cent of the area of the window.

(Ord. No. 2006-09-11/O-4a, § 1)

5.14.4. Traffic Safety Precautions.

Notwithstanding any other provision in this appendix, the following restrictions shall apply to signs in order to preserve the safety of pedestrian, bicycle, and vehicular movement:

(a)

No sign, or part thereof, shall be located within a clear-vision area established by the design manual.

(b)

No sign shall make use of the words "STOP", "SLOW", "CAUTION", "DANGER", or any other word, phrase, symbol, or character in such manner as is reasonably likely to be confused with traffic directional and regulatory signs.

(c)

No sign shall be erected so that by its location, color, nature, or message is likely to be confused with or obstruct the view of traffic signals or signs, or is likely to be confused with the warning lights of an emergency or public safety vehicle.

(d)

Except as used to display time and temperature, no sign shall contain flashing lights.

5.14.5. General Limitations.

(a)

Except where specifically exempted by this article, the subject matter of any sign shall be limited to letters of text that spell out the name(s) of the establishment(s) located on the zoning lot.

In addition to the name(s) of the establishment(s), registered trademarks and registered servicemarks may also be displayed, if proof of registration, or application for registration, is provided. A trademark is any symbol, design, word or letter used by an establishment to distinguish its products from those of its competitors. A servicemark is a trademark for products provided by others, for which a particular establishment is authorized/licensed to provide services. Registered logos may only be displayed as a trademark for an establishment. (Ord. No. 2004-02-23/O-2)

(b)

Except where specifically exempted by this appendix, the subject matter of any sign shall be related to the premises on which the sign is located. When the use or establishment to which a sign is related ceases or is vacated, such sign, including all of its attendant supports, frames, and hardware, shall be removed within four (4) months of the cessation or vacating of the use or establishment unless such sign is used by a new use or establishment on the premises in conformance with all current regulations of this appendix.

(c)

Except where specifically exempted by this appendix, all signs, including the supports, frames, and embellishments thereto, shall not be located within any public right-of-way, nor shall any sign be attached, affixed, or painted on any utility pole, light standard, telephone or telegraph pole, any tree, rock, or other natural object.

(d)

No display surface shall contain more than ten (10) items of information except where the name of the occupant of the premises contains more than ten (10) items of information and the display surface contains only the name of the occupant. An item of information means any of the following: a word; an abbreviation; a number; a symbol; a geometric shape. In computing items of information, letters less than three (3) inches in height, if contained in a wall sign, shall not be counted. When there is more than one occupant on the premises, ground signs shall be limited to either the name of the development and a maximum of two anchor tenants, or a maximum of three (3) designated anchor tenants (and no name of the development).

(e)

No source of illumination of a sign, such as floodlights or spotlights, shall be directly visible from any public right-of-way, from any residential district, or from adjacent properties.

(f)

Internally illuminated signs, other than window signs, shall consist of a dark background and light letters or message. The letters or message of internally illuminated signs shall consist of non-reflective material.

(g)

Animated, rotating, or other moving or apparently moving signs shall be prohibited.

(h)

Devices consisting of banners, streamers, pennants, wind-blown propellers, strung light bulbs, and similar installations shall be prohibited unless approved by the town manager for non-commercial enterprises.

5.14.6. Sign Area and Number.

(a)

The area of a display surface of a sign shall be computed as including the entire area visible from any one point, within a regular geometric form or combination of forms, comprising all of the display area of the surface and including all of the elements within the display area and the sign frame. Structural members not bearing advertisement shall not be included in the computation of sign area.

(b)

For the purpose of determining number of signs, a sign shall be considered to be a single display device that contains elements organized, related, and composed to form a unit. Where elements are displayed in a random manner without organized relationship, each element shall be considered a single sign.

5.14.7. Signs in Residential, Materials Handling, and Rural Transition Districts and in PD-H Developments.

No sign shall be erected or displayed in any residential, materials handling, or rural transition district or in any planned development-housing except as allowed under subsection 5.14.3 or as provided below:

(a)

Development identification signs containing the name and/or logo of a subdivision, multifamily development, or planned development, provided such signs are limited to one free-standing ground sign at each principal point of access to the development, sixteen (16) square feet in area per display surface, and a maximum height of six (6) feet above finished grade; or two (2) signs mounted on wooden, brick, or stone entry walls, eight (8) square feet per display surface, and a maximum height of six (6) feet above finished grade.

(b)

Nonresidential signs identifying nonresidential uses permitted as a principal or special use in residential, materials handling, or rural transition districts or as an accessory use in PD-H developments provided such signs are limited to one (1) ground sign or one wall sign per zoning lot and sixteen (16) square feet in area per display surface.

(c)

Ground signs identifying places of worship in residential districts, provided that such signs are limited to sixteen (16) square feet in area per display surface, and one ground sign per street frontage, not to exceed a maximum of two (2) ground signs per zoning lot. The message of ground signs for places of worship in residential districts shall be limited to the name(s), trademarks and servicemark(s) of the place of worship, and information related to the place of worship and its activities on the zoning lot.

(d)

External lighting of signs in residential, materials handling, and rural transition districts and in PD-H developments is permitted if illumination levels are low, all fixtures are concealed, and spill-over of light is minimal. Internal illumination of signs in residential, materials handling, and rural transition districts is prohibited.

5.14.8. Signs in TC-2, TC-1, TC-3, CC, N.C., OI-4, OI-3, OI-2, OI-1, MU-V and I Districts.

(a)

No sign shall be erected or displayed in the town center districts or in any community commercial, neighborhood commercial, office/institutional-3, office/institutional-2, office/institutional-1 or industrial district except as allowed under subsections 5.14.3, or as provided below for the type of sign and the zoning district in which it is located.

(b)

Where a zoning lot contains more than one principal use or establishment, the provisions below shall apply to the zoning lot as a whole, and the owner(s) of the zoning lot shall be responsible for allocating permitted signs and display surface areas among the individual uses or establishments. The sign plan submitted for such zoning lot shall show all signs located or proposed thereon and shall be designed so that all signs are in harmony and consistent with each other. Such a sign plan shall be referred to as a unified sign plan for the zoning lot.

(c)

A unified sign plan is an overall plan for placement and design of multiple signs for a building or group of buildings on a zoning lot. The unified sign plan shall display harmony and consistency with regard to theme, number and size of signs, placement of signs, materials and colors, size and style of lettering, and type of lighting.

(1)

Ground signs.

A ground sign is a free-standing sign attached to a contiguous structural base or planter box, which base or box shall be of the same width as or greater width than the message portion of the sign, and is permanently affixed to the ground. Ground signs do not include free-standing signs supported by poles.

Ground signs may be erected and displayed on a zoning lot in compliance with the maximum area per display surface and the maximum height limitations contained in subsection 5.14.10, provided:

A.

The zoning lot on which a ground sign is located shall be accessible by automobile and contain off-street parking for the principal use(s);

B.

The buildings or structures housing the principal use(s) on a zoning lot on which a ground sign is located shall be set back at least twenty (20) feet from the abutting street right-of-way;

C.

Ground signs shall be limited to a maximum height of eight (8) feet;

D.

Ground signs shall be limited to one (1) sign per street frontage, provided that the zoning lot on which the sign is located has at least one hundred (100) feet of street frontage;

E.

No ground sign shall be permitted on the same street frontage of the same zoning lot along which there is a projecting sign;

F.

The message of ground signs shall be limited to the name(s), trademark(s) and servicemark(s) of the establishment(s) located on the zoning lot and/or of a multi-use development located thereon, except that ground signs identifying cinemas, gas stations, or service stations may also identify the current presentation(s) or fuel prices, as appropriate, and that ground signs identifying places of worship may also provide information related to the place of worship and its activities on the zoning lot. The amount of "changeable text" for such ground signs for cinemas, gas stations, service stations, or places of worship, shall be limited to a maximum of fifty (50) per cent of the sign's overall display area.

G.

The maximum area per display surface for ground signs as contained in subsection 5.14.10 may be doubled by reducing the allowable wall sign area for the zoning lot by an equivalent amount.

H.

Ground signs shall be of a shape such that the ratio between the maximum and minimum dimensions shall not exceed two (2) to one (1).

(2)

Cantilevered ground signs.

A cantilevered ground sign is a sign supported in a cantilevered fashion by an upright post. Cantilevered ground signs may be erected and displayed on a zoning lot, in lieu of a traditional ground sign, provided that:

A.

Cantilevered ground signs shall be limited to one sign per street frontage.

B.

The display area of a cantilevered ground sign shall not exceed three (3) square feet in area and eight (8) feet in height. No portion of the sign and its support shall exceed ten (10) feet in height.

C.

The buildings or structures housing the principal use(s) on a zoning lot on which a cantilevered ground sign is located shall be set back at least twenty (20) feet from the abutting street right-of-way.

D.

No cantilevered ground sign shall be permitted on the same street frontage of the same zoning lot along which there is a projecting sign.

E.

The message of cantilevered ground signs shall be limited to the name(s), trademark(s) and servicemark(s) of the establishment(s) located on the zoning lot and/or of a multi-use development located thereon.

(3)

Projecting signs.

A projecting sign is a sign attached to and supported by a building and extending beyond the building to which it is attached at an angle. Projecting signs may be erected and displayed on a zoning lot or over a public right-of-way in TC-1, TC-2 and TC-3 districts in compliance with the maximum area per display surface limitations contained in subsection 5.14.9, provided:

A.

The building to which a projecting sign is attached shall be twenty (20) feet or more in width, except in TC-1, TC-2 and TC-3 districts where no minimum width shall apply.

B.

Projecting signs shall be limited to one sign per business establishment.

C.

No projecting sign shall be permitted on the same zoning lot street frontage along which there is a ground sign or cantilevered ground sign.

D.

Projecting signs shall clear sidewalks and pedestrian and bicycle paths by a height of at least eight (8) feet above finished grade and shall project no more than four (4) feet from the building to which they are attached.

E.

No projecting sign shall extend above the soffit, parapet, or eave line of the building to which it is attached.

F.

Projecting signs shall not be located at the intersection of building corners except at right angles to a building facade.

G.

Projecting signs shall be centered over or located near the principal doorway to the building.

H.

The message of projecting signs shall be limited to the name(s), trademark(s) and servicemark(s) of the establishment(s) located on the zoning lot and/or the name, trademark and servicemark of a multi-use development located thereon.

(4)

Wall signs.

A wall sign is a sign attached to or painted on a wall or building, with the exposed display surface of the sign in a plane parallel to the plane of the wall to which it is attached or painted, and including signs affixed to or otherwise displayed on or through a facade window.

Wall signs may be erected and displayed on a zoning lot in compliance with the maximum per centage of facade coverage limitations contained in subsection 5.14.9, provided:

A.

Wall signs placed in the space between windows located vertically one above the other shall not exceed in height two-thirds (2/3) of the height of the taller of the adjacent windows.

B.

Wall signs placed in the space between windows located horizontally beside each other shall not exceed in height two-thirds (2/3) of the height of the taller of the adjacent windows.

C.

No wall sign shall protrude more than twelve (12) inches from the wall to which it is attached.

D.

No wall sign shall extend above the parapet or eave line, as appropriate, of the building to which it is attached. If the building consists of more than two (2) stories, wall signs shall not extend above the second story.

E.

The display area of wall signs painted on, affixed to, or otherwise displayed on or through a facade window shall not exceed fifteen (15) per cent of the area of the window.

F.

Wall signs shall not cover up or interrupt major architectural features.

G.

The message of wall signs shall be limited to the name(s), trademark(s) and servicemark(s) of the establishment(s) located on the zoning lot and/or or a multi-use development located thereon. Additionally, the message of wall signs may include information necessary to direct patrons to the business where the business may not have a direct entrance from the street or pedestrian and bicycle way.

(5)

Marquees.

Marquees may be erected and displayed on a zoning lot in compliance with the maximum per centage of facade coverage limitations for wall signs contained in subsection 5.14.9, provided a marquee shall not extend more than ten (10) feet from the building nor be less than nine (9) feet above the ground or sidewalk at the lowest point.

(6)

Drop awnings.

Drop awnings may be erected and displayed on a zoning lot in compliance with the maximum per centage of facade coverage limitations for wall signs contained in subsection 5.14.9, provided:

A.

That when such drop awning is let down to its fullest extent, no metal bar or other solid or hollow framing shall be less than eight (8) feet above the ground or sidewalk; and

B.

That a flexible cloth, canvas or similar skirt may hang twelve (12) inches below the horizontal bar supporting the awning, but in no case shall the skirt be less than seven (7) feet above the ground or sidewalk at the lowest point.

(Ord. No. 2005-05-23/O-2, § 1)

5.14.9. Sign Area Limitations.

• The maximum area per display surface of any internally illuminated sign shall be one-half (½) the maximum area per display surface listed above.

5.14.10. Signs in PD-SC, PD-OI, PD-MU and PD-I Developments.

No sign intended to be read from outside a Planned Development - Shopping Center, Planned Development-Office Institutional, Planned Development-Mixed Use or Planned Development-Industrial, or from public streets within the development, shall be permitted within such development except as allowed under Section 5.14.3 or as provided below:

(a)

Development identification signs containing the name and trademark of a planned development, provided such signs are limited to one ground sign at each principal point of access to the development, twenty (20) square feet in display area and a maximum height of six (6) feet;

(b)

Building identification signs containing only the name of a building or building complex and the nature of the establishments therein, provided such signs are limited to one wall sign per building with a display area not exceeding five (5) per cent of the area of the building facade to which it is attached, up to a maximum area of forty (40) square feet;

(c)

Identification signs for individual establishments containing the name(s) and trademark(s) of the establishments, provided such signs are limited to wall signs with a maximum display area of fifteen (15) square feet.

5.14.11. Signs in the Mixed Use OI-1 or Mixed Use R-1 Zoning Districts for Approved Developments Complying with the Mixed Use Thresholds.

(a)

The owner(s) of the mixed use development shall establish a unified sign plan.

(b)

No sign that can be read from outside a mixed use district development or from public streets within the development shall be permitted within such development except as allowed under subsection 5.14.3 or as provided below:

(1)

Development identification signs shall be limited to one (1) ground sign at each principal point of access to the development, forty (40) square feet in display area and a maximum height of eight (8) feet; or, two (2) signs mounted on brick or stone entry walls, twenty (20) square feet per display surface, and a maximum height of six (6) feet. In addition, the ground signs shall comply with the following requirements:

• The development identification signs shall contain the name and trademark of the mixed use district development, and may also include the name and trademark for one (1) anchor tenant.

• The letters and/or registered logo for the anchor tenant shall not exceed fifty (50) per cent of the size of the letters or logo for the name of the mixed use district development.

A single development identification sign at one principal point of vehicular access per perime ter roadway frontage of a development may be increased in size to eighty (80) square feet with a maximum height of eight (8) feet if the development contains a cinema. This development identification sign may include the name and trademark of the cinema and may include a changeable listing of movie titles in addition to the name and trademark of the mixed use district development. If internally illuminated, the sign shall have light letters on a dark background. The maximum size for such an internally illuminated sign shall be one-half (½) of eighty (80) square feet.

(2)

Building identification signs containing only the name of a building or building complex and the nature of the establishments therein, provided such signs are limited to one wall sign per building with a display area not exceeding five (5) per cent of the area of the building facade to which it is attached.

(3)

Identification signs for individual establishments containing the name(s) and trademark(s) of the establishments, provided such signs are limited to wall signs with a maximum display area limitation of five (5) per cent of facade coverage. Wall signs overall (combination of building identification and individual establishment identification) are limited to a maximum display area not to exceed five (5) per cent of the area of the building facade.

For a cinema, a marquee, as a permanent canopy projecting over an entrance to a building, may be erected and displayed with the following limitations:

A.

A marquee may identify the name and trademark of the cinema and may include a changeable listing of movie titles;

B.

A marquee shall not extend more than ten (10) feet from the building nor be less than nine (9) feet above the ground or sidewalk at the lowest point;

C.

The maximum display surface for the marquee shall be one hundred (100) square feet; and

D.

The marquee shall front on interior drives and streets, not on streets external to the development.

(4)

Seasonal non-illuminated parking lot identification banners that will be hung from private street lights, and will not be displayed for more than ninety (90) days, are permitted with the approval of the town manager and the community design commission. Each parking lot identification banner shall not exceed four (4) square feet in display area, and shall be limited to the name and/or trademark of the mixed use district development. One (1) or two (2) banners may be approved for display from each street light. The color(s), shape, materials, appearance and duration of display for such banners shall be approved by the town manager and the community design commission prior to display.

If signs in a mixed use district are proposed to be internally illuminated, such signs shall have light letters on a dark background. The maximum size for such internally illuminated signs shall be one-half (½) the maximum area per display surface listed above.

5.14.12. Commercial Center Ground Signs in CC, N.C., OI-2, OI-1, MU-V, Mixed Use OI-1, Mixed Use R-1 Districts, and Planned Development-Mixed Use Districts.

No ground sign shall be erected or displayed in the commercial centers in CC, N.C., OI-2, OI-1, MU-V, Mixed Use OI-1 and Mixed Use R-1 Districts, on the commercial center site in which the sign is located, except as provided for below and as allowed in subsection 5.14.8. Existing ground signs for a business in an independent structure in a commercial center that comply with subsection 5.14.8 prior to April 25, 2011 may remain, in addition to any approved commercial center ground signs, may be changed as permitted signage, and shall not be considered non-conforming.

(a)

Location, number, illumination, height and base, proportion, and maximum area of sign structure, and maximum display surface area.

(1)

Location and number.

a.

Commercial center ground signs shall be limited to one (1) sign per street frontage, provided that the commercial center on which the sign is located has at least one hundred (100) feet of street frontage. Street frontage for a zoning lot shall also include frontage on streets that are part of the approved master land use plan or special use permit, with speed limits of thirty-five (35) mph or greater.

b.

Signage shall not be allowed within the public right-of-way, and shall be subject to the setback dimensional standard exceptions of subsection 3.8.3.

c.

A minimum separation of two hundred fifty (250) feet must be maintained between commercial ground signs. This setback shall not apply to signage located within the same commercial center.

(2)

Illumination.

a.

Internally illuminated signage is limited to trademarks, service marks, individual letters and logos. Illuminated backgrounds shall be opaque and darker that internally illuminated trademarks, service marks, letters or logos. Electronic changing signage, flashing signage, including changing copy is prohibited. In order to respond to changes in lighting technology, the town manager may approve other types of lighting.

b.

The illumination of the sign shall not be permitted during non-business hours.

c.

Floodlights or spotlights shall be allowed as a source of illumination in lieu of internal illumination subject to the general limitations of subsection 5.14.5. Floodlights or spotlights near the top of a sign shall be focused downward onto the sign. Light angles associated with floodlights or spotlights shall be aimed enabling the entire beam to fall within the intended area of the sign to be lit.

d.

The light source for a floodlight or spotlight shall be either a light-emitting diode (LED) or similar light technology that is of equal or greater energy efficiency.

(3)

Height and base.

a.

Ground signs located along a street frontage with a maximum speed limit of thirty-five (35) mph shall be limited to a maximum height of twelve (12) feet.

b.

Ground signs located along street frontage with a maximum speed above thirty-five (35) mph shall be limited to a maximum height of fourteen (14) feet.

c.

The height of the sign shall be measured from the mean natural grade.

d.

The mean natural grade shall be measured along a line parallel to the street frontage, for a distance of one hundred (100) feet on either side of the base of the sign, and along a line perpendicular to the street starting at the right-of-way, for a distance equal to the width of the proposed sign.

e.

Where the proposed location of the sign is below the natural grade of the adjacent street frontage the overall height of the base of the sign may be increased by up to ten (10) feet, in order to achieve the maximum permitted height, as measured from the natural grade of the adjacent street frontage. Landscaping around the base of a sign, shall be shown on a landscape plan. The landscaping shall buffer and screen that portion of the base of the sign located below the natural grade of the adjacent street frontage.

f.

The design of the base of the sign shall complement the features/frame of the sign.

g.

In those situations where compliance with Federal Emergency Management Agency (FEMA) floodplain regulations prohibits the installation of a contiguous structural base, the town manager may approve an alternate base design. Landscaping and screening shall be incorporated into the alternate base design.

(4)

Sign structure proportion. Ground signs shall be of a dimension that complies within the following standards:

A dimensional deviation of twelve (12) inches or less maybe applied to the above dimensional standards, as long as the resulting sign does not exceed the maximum height and maximum display area standards.

(5)

Area of a sign structure and display surface area.

a.

Along street frontage with a maximum speed limit of thirty-five (35) mph, the overall dimensional square footage of a ground sign, including the structural and display surface, shall not exceed one hundred twenty (120) square feet. The maximum square footage containing the subject matter of the signage, the display surface, shall be fifty (50) square feet per sign face. Display surface area shall be computed as described in subsection 5.14.6(a).

b.

Along street frontage with a maximum speed limit greater than thirty-five (35) mph, the overall dimensional square footage of a ground sign, including the structural and display area, shall not exceed one hundred forty-four (144) square feet. The maximum square footage containing the display surface of the signage shall be seventy-two (72) square feet per sign face. Display surface area shall be computed as described in subsection 5.14.6(a).

c.

The square footage allowed within the display surface area of the sign shall be divided into individual tenant name panels. The panels within the display area may be of two (2) different sizes and must be of a similar shape (see illustration).

(b)

Content and general limitations. For the purposes of commercial center ground signs, the following regulations shall be applied instead of the general limitations listed in subsection 5.14.5 of this article.

(1)

Subject matter limited to establishment on zoning lot. Except where specifically exempted by this article, the subject matter of any sign shall be limited to name of the development and the establishment(s) located on the zoning lot.

(2)

Registered trademarks, service marks and logos. In addition to the name of the development and establishment(s), registered trademarks, service marks and logos of the development and those establishments may be displayed, if proof of registration, or application for registration, is provided. A trademark is any symbol, design, word or letter used by an establishment to distinguish its products from those of its competitors. A service mark is a trademark for products provided by others, for which a particular establishment is authorized/licensed to provide services. Registered logos may only be displayed as a trademark for an establishment.

Trademarks, service marks, logos and letters within the sign display area shall be of a uniform color and the background area of all sign panels shall be of a contrasting uniform color. Logo and font size for each establishment shall be of similar size and proportionality to the panels of the same size (see illustration).

(3)

Commercial center name: The name of the commercial center may be displayed on the sign. The center's name, including any associated fonts, colors, logos, trademark or symbol, may be located outside the boundary of the maximum displayed surface area. The display surface area associated with the development name shall not exceed more that twenty (20) percent of the surface area of the sign structure. Display surface area shall be computed as described in subsection 5.14.6(a).

(4)

Removal of sign following cessation or vacation of use. Except where specifically exempted by section 5.14, the subject matter of any sign shall be related to the premises on which the sign is located. When the use or establishment to which a sign is related ceases or is vacated, such sign, including all of its attendant supports, frames, and hardware, shall be removed within four (4) months of the cessation or vacating of the use or establishment unless such sign is used by a new use or establishment on the premises in conformance with all current regulations of section 5.14

(5)

Location of sign prohibited in right-of-way. Except where specifically exempted by this appendix, all signs, including the supports, frames, and embellishments thereto, shall not be located within any public right-of-way, nor shall any sign be attached, affixed, or painted on any utility pole, light standard, telephone or telegraph pole, any tree, rock, or other natural object.

(6)

Shielding of illumination off-site. No source of illumination of a sign, such as floodlights or spotlights, shall be directly visible from any public right-of-way, from any residential district, or from adjacent properties and shall be designed and installed in a manner that minimizes upward light pollution. A combination of shielding, screening and directing the lighting away from areas beyond the sign and the use of landscaping to serve as filtering to soften the impact of reflected light shall be used.

(7)

Animated, rotating signage prohibited. Animated, rotating, or other moving or apparently moving signs shall be prohibited.

(8)

Other prohibited signage. Devices consisting of banners, streamers, pennants, wind-blown propellers, strung light bulbs, and similar installations shall be prohibited unless approved by the town manager for non-commercial enterprises.

(9)

Allocation of signs and display surface area. Where a commercial center site contains more than one principal use or establishment, the owner(s) of the commercial center site shall be responsible for allocating permitted signs and display surface areas among the individual uses or establishments.

(c)

Unified sign plan—Required. Ground signs for a commercial center shall be shown on an approved unified sign plan (subsection 5.15.8.c) for the center and show all signs located or proposed thereon and shall be designed so that all signs are in harmony and consistent with each other.

5.14.13. Service Stations.

(a)

Service stations may transfer the following types of signs, subject to the standards in subsections (b) and (c), below:

(1)

Signs located adjacent to the top of the gas pumps (hereinafter referred to as "pump toppers").

(2)

Signs located on the exterior of canopies that cover gas pumps (hereinafter referred to as "service station canopy signs").

(b)

Pump toppers shall comply with the following standards:

(1)

Gas stations may install one or two pump toppers on a site. Additional pump toppers may be permitted by transferring wall signage display area for each such additional sign.

(2)

No internal illumination is permitted.

(3)

Pump toppers shall be limited to a maximum of eight (8) square feet per display surface. The message of such signage above pumps shall be limited to the name and registered trademark of the gasoline establishment located on the zoning lot.

(4)

The base of the pump shall be a neutral color, and shall not contain any signage.

(c)

Service station canopy signs shall comply with the following standards:

(1)

Such signs shall be an integral component of the pump canopy. Such signs are considered "integral" to the pump canopy where they are composed of lettering mounted, painted or otherwise affixed to the pump canopy, and not located on the top or bottom of the canopy.

(2)

The features, materials, colors and designs used in the pump canopy shall be similar to the principle structure. Such features are considered "similar" where:

A.

The canopy is constructed of the same materials as the predominant materials on the exterior of the principal structure; and

B.

The exterior area of the canopy visible from the public right-of-way is predominantly the same colors as the predominant color of the principal structure.

(3)

The maximum letter height and/or trademark height shall not exceed eighteen (18) inches.

(4)

The canopy shall not encroach upon any publicly dedicated rights-of-way.

(5)

Canopy signage may be permitted by transferring wall signage display area for each such sign. If wall signage display area is so transferred, one sign is permitted on each side of a canopy, up to a maximum of three sides.

(6)

Each canopy sign may not exceed four (4) square feet of display area.

(7)

The message of canopy signs shall be limited to the name and/or registered trademark of the establishment located on the zoning lot.

(8)

No internal illumination is permitted.

(Ord. No. 2007-02-26/O-3a, §§ 7, 8; Ord. No. 2007-02-26/O-5, §§ 11—13; Ord. No. 2011-04-25/O-3, §§ 1, 2)

5.15. - Performance standards during construction.

5.15.1. Applicability.

The provisions of this section apply to any special use permit, subdivision plat, site plan review approval, or zoning compliance permit.

5.15.2. Criteria.

All development subject to subsection 5.15.1, above, shall comply with the following standards during the construction process:

(a)

The applicant shall comply with the Noise Control Code for the Town of Chapel Hill (chapter 11, article III of the Town Code of Ordinances).

(b)

The applicant shall comply with the stormwater management standards, section 5.4 of this appendix.

(c)

The applicant shall comply with the town's erosion and sedimentation control standards, section 5.3.1 of this appendix and article 5 of chapter 5 of the Town Code of Ordinances.

(d)

All filling, grading, dredging and other development shall occur only on the property subject to the application unless otherwise required by the conditions of approval.

(e)

No construction or development shall occur that interferes with the use of a recorded easement.

(f)

Bicycle and pedestrian systems shall be maintained during construction activities.

5.15.3. Penalties for Violation.

If the town manager determines that the applicant is in violation of any of the standards set forth in subsection 5.15.2 above, the applicant shall be subject to section 4.13 of this appendix. The town manager may revoke the zoning compliance permit, site plan review, or special use permit until the site subject to the application, or any contiguous property affected by a violation of this section, is restored to its state prior to the violation. The applicant may appeal the decision of the town manager pursuant to section 4.10 of this appendix.

5.16. - Adequate public school facilities.

5.16.1. Intent and Scope.

The purpose of this article is to ensure that, to the maximum extent practical, new residential development occurring in the Orange County portion of Chapel Hill's zoning/subdivision regulation jurisdiction will be approved only when it can reasonably be expected that adequate public school facilities will be available to accommodate such new development. This article shall apply in those portions of the Town of Chapel Hill and its zoning jurisdiction in Orange County.

5.16.2. Findings and Purposes.

The town council does hereby find that:

a)

The portion of Orange County served by the Chapel Hill/Carrboro school system has for the past decade been experiencing rapid growth in population; and

b)

This rapid growth, and that which is anticipated, creates a demand for additional school facilities to accommodate the children who reside within new developments; and

c)

The responsibility for planning for and constructing new school facilities lies primarily with the Chapel Hill/Carrboro School Board, with funding provided by Orange County; and

d)

Chapel Hill, Carrboro, Orange County and the Chapel Hill/Carrboro School Board have recognized the need to work together to ensure that new growth within the school district occurs at a pace that allows Orange County and the school district to provide adequate school facilities to serve children within such new developments; and

e)

To implement the Memorandum of Understanding between Orange County, Chapel Hill, Carrboro, and the Chapel Hill/Carrboro School Board, the Chapel Hill Town Council desires to provide a mechanism to assure that, to the extent possible, new development will take place only when there are adequate public school facilities available, or planned, which will accommodate such new development.

5.16.3. Certificate of Adequacy of Public School Facilities.

(a)

No application for approval of a subdivision preliminary plat zoning compliance permit, minor subdivision final plat, zoning compliance permit for site plan review, zoning compliance permit for special use permit, or zoning compliance permit for special use permit modification for a project containing a residential use may be approved unless on the date of such approval there exists a valid and current certificate of adequacy of public school facilities applicable to the project for which such approval is sought.

(b)

A certificate of adequacy of public school facilities shall not be required for a general use or conditional use rezoning or for approval of a master land use plan. However, if a rezoning or master plan is approved, a certificate of adequacy of public school facilities will be required before any residential development of the property is authorized pursuant to any of the approvals specified in subsection (a) of the section, and the rezoning of the property or approval of a master plan provides no indication as to whether the certificate of adequacy of public school facilities will be issued. The application for rezoning or master plan approval shall contain a statement to this effect.

(c)

A certificate of adequacy of public school facilities must be obtained from the school district. The school district will issue or deny a certificate of adequacy of public school facilities in accordance with the provisions of a memorandum of understanding between Chapel Hill, Carrboro, Orange County, and the Chapel Hill/Carrboro School District.

(d)

An applicant shall seek from the school district a certificate of adequacy of public school facilities for a proposed residential development before an application for approval of a zoning compliance permit for a subdivision preliminary plat application, minor subdivision final plat, zoning compliance permit for a site plan review application, zoning compliance permit for a special use permit or zoning compliance permit for a special use permit modification is submitted to the town. The certificate of adequacy of public school facilities, if issued, shall expire as provided in section 16.5.

(e)

A certificate of adequacy of public school facilities attaches to the land in the same way that development permission attaches to the land. A certificate of adequacy of public school facilities may be transferred along with other interests in the property with respect to which such certificate of adequacy of public school facilities is issued, but may not be severed or transferred separately.

5.16.4. Service Levels.

As provided in the memorandum of understanding between Orange County, Chapel Hill, Carrboro, and the Chapel Hill/Carrboro School District, adequate service levels for public schools shall be deemed to exist with respect to a proposed new residential development if, given the number of school age children projected to reside in that development, and considering all the factors listed in the memorandum of understanding, the number of students projected to attend the elementary schools, the middle schools, and the high school[s] within the Chapel Hill/Carrboro School District will not exceed the following per centages of the building capacities of each of the following three school levels:

For purposes of this article, the term "building capacity" means the capacity of permanent buildings, not mobile units or trailers, and shall be determined as provided in the adequate public school facilities memorandum of understanding among the towns of Chapel Hill and Carrboro, and Orange County and the Chapel Hill/Carrboro Board of Education.

These per centages are currently in the memorandum of understanding. These per centages may be adjusted by mutual agreement of parties to the memorandum of understanding by an amendment thereto.

5.16.5. Expirations of Certificates of Adequacy of Public School Facilities.

(a)

A certificate of adequacy of public school facilities that has been obtained pursuant to subsection 16.3(d) before an application for approval of a subdivision preliminary plat, minor subdivision final plat, site plan, special use permit or special use permit modification has been submitted shall expire unless the developer submits and the town accepts as complete an application for approval of that subdivision preliminary plat, minor subdivision final plat, site plan, special use permit or special use permit modification within ninety (90) days of the date of the certificate of adequacy of public school facilities and receives the requested approval within two (2) years of the date of the certificate of adequacy of public school facilities.

(b)

A certificate of adequacy of public school facilities issued in connection with approval of a subdivision preliminary plat, minor subdivision final plat, site plan, special use permit or special use permit modification shall expire automatically upon the expiration or such plat, plan, or permit approval.

5.16.6. Exemption From Certification Requirement for Development with Negligible Student Generation Rates.

A certificate of adequacy of public school facilities shall not be required under the following circumstances:

(a)

For residential development permanently restricted to dormitory-style housing for university students.

(b)

For a residential development permanently restricted by law and/or covenant to housing for the elderly and/or adult care living and/or adult special needs.

5.16.7. Applicability to Previously Approved Projects and Projects Pending Approval.

(a)

Except as otherwise provided herein, the provisions of this article shall apply to applications for approval of subdivision preliminary plat, site plans, special use permit, and special use permit modification that are submitted for approval after the effective date of this article.

(b)

The provisions of this article shall apply to subdivision preliminary plats, site plans, special use permits and special use permit modifications that have expired.

(c)

The provisions of this article shall not apply to minor changes to subdivision preliminary plat, site plan, special use permit, or special use permit modification approvals issued prior to the effective date of this article so long as the approvals have not expired and the proposed minor changes do not increase the number of dwelling units authorized within the development by more than five (5) per cent or five (5) dwelling units, whichever is less.

(d)

The town council shall issue a special exception to the certificate of adequacy of public school facilities requirement to an applicant whose application for approval of a subdivision preliminary plat, minor subdivision final plat, site plan, special use permit or special use permit modification covering property within a planned development or master plan project that was approved prior to the effective date of this article, if the town council finds, after an evidentiary hearing, that the applicant has (1) applied to the school district for a certificate of adequacy of public school facilities and the application has been denied, (2) in good faith made substantial expenditures or incurred substantial binding obligations in reasonable reliance on the previously obtained preliminary plat approval, planned development or master plan approval, and (3) would be unreasonably prejudiced if development in accordance with the previously approved development or plan is delayed due to the provisions of this ordinance. In deciding whether these findings can be made, the town council shall consider the following, among other relevant factors:

(1)

Whether the developer has installed streets, utilities, or other facilities or expended substantial sums in the planning and preparation for installation of such facilities which were designed to serve or to be paid for in part by the development of portions of the preliminary plat, planned development or master planned project that have not yet been approved for construction;

(2)

Whether the developer has installed streets, utilities, or other facilities or expended substantial sums in the planning and preparation for installation of such facilities that directly benefit other properties outside the development in question or the general public;

(3)

Whether the developer has donated land to the School District for the construction of school facilities or otherwise dedicated land or made improvements deemed to benefit the School District and its public school system;

(4)

Whether the developer has had development approval for a substantial amount of time and has in good faith worked to timely implement the plan in reasonable reliance on the previously obtained approval;

(5)

The duration of the delay that will occur until public school facilities are improved or exist to such an extent that a Certificate of Adequacy of Public School Facilities can be issued for the project, and the effect of such delay on the development and the developer.

The decision of the town council is subject to review by the Orange County Superior Court by proceedings in the nature of certiorari. Any petition for review by the superior court shall be filed with the clerk of superior court within thirty (30) days after a written copy of the decision of the town council is delivered to every aggrieved party who has filed a written request for such copy with the clerk to the town council at the time of its hearing on the application for a special exception. The written copy of the decision of the town council may be delivered to the aggrieved party either by personal service or by certified mail, return receipt requested.

The mayor of the town or any member temporarily acting as mayor may, in his or her official capacity, administer oaths to witnesses in any hearing before the town council concerning a special exception.

5.16.8. Appeal of School District Denial of a Certificate of Adequacy of Public School Facilities.

The applicant for a certificate of adequacy of public school facilities which is denied by the school district may, within thirty (30) days of the date of the denial, appeal the denial to the town council of Chapel Hill. Any such appeal shall be heard by the town council at an evidentiary hearing before it. At this hearing the school district will present its reasons for the denial of the certificate of adequacy of public school facilities and the evidence it relied on in denying the certificate of adequacy of public school facilities. The applicant appealing the denial may present its reasons why the certificate of adequacy of public school facilities application should have, in its view, been approved and the evidentiary basis it contends supports approval. The town council may (1) affirm the decision of the school district, (2) remand to the school district for further proceedings in the event evidence is presented at the hearing before the town council not brought before the school district, or (3) issue a certificate of adequacy of public school facilities. The town council will only issue a certificate of adequacy of public school facilities if it finds that the certificate of adequacy of public school facilities certificate of adequacy of public school facilities should have been issued by the school district as prescribed in the memorandum of understanding among the school district, Orange County and Chapel Hill. A decision of the town council affirming the school district may be appealed by the applicant for a certificate of adequacy of public school facilities by proceedings in the nature of certiorari and as prescribed for an appeal under section 16.7(d) of this article.

5.16.9. Information Required From Applicants.

The applicant for a certificate of adequacy of public school facilities shall submit to the school district all information reasonably deemed necessary by the school district to determine whether a certificate of adequacy of public school facilities should be issued under the provisions of the memorandum of understanding between Chapel Hill, Orange County, and the school district. An applicant for a certificate of adequacy of public school facilities special exception or an applicant appealing a certificate of adequacy of public school facilities denial by the school district shall submit to the town council all information reasonably deemed necessary by the town manager to determine whether a special exception should be granted as provided in section 16.7(d) of this article or for the hearing of an appeal of a school district denial of a certificate of adequacy of public school facilities as provided in section 16.8 of this article. A copy of a request for a certificate of adequacy of public school facilities special exception or of an appeal of a school district denial of a certificate of adequacy of public school facilities shall be served on the superintendent of the school district. Service may be made by personal delivery or certified mail, return receipt requested.

(Ord. No. 2003-02-10/O-1, § 1)

5.17. - Prevention of demolition by neglect.

5.17.1. Intent.

The purpose of this ordinance is to protect Chapel Hill's historic architectural resources by intervening when a significant resource is undergoing demolition by neglect.

Demolition by neglect is defined as a situation in which a property owner, or others having legal possession, custody or control of a property, allow the condition of property located in a Historic District to suffer such deterioration, potentially beyond the point of repair, as to threaten the structural integrity of the structure or its relevant architectural detail to a degree that the structure and its character may potentially be lost to current and future generations.

5.17.2. Control of demolition by neglect of structures within designated Historic Districts.

(a)

In order to promote the purposes of historic preservation, this subsection requires that owners of historic properties maintain their properties and not allow them to fall into disrepair. The requirements of this subsection are applicable only to properties in the Historic Districts of Chapel Hill.

(b)

Conditions of neglect defined and prohibited.

Owners or others having legal possession, custody or control of a property in Historic Districts shall maintain or cause to be maintained the exterior and structural features of their properties and not allow conditions of neglect to occur on such properties. It is a violation of the Town's Land Use Management Ordinance to not remedy a condition of neglect within the period of time set by a final administrative determination, as described in Section 5.17.2(c), below.

Conditions of neglect include, but are not limited to, the following:

(1)

Deterioration of exterior walls, foundations, or other vertical support that causes leaning, sagging, splitting, listing, or buckling.

(2)

Deterioration of flooring or floor supports, roofs, or other horizontal members that causes leaning, sagging, splitting, listing, or buckling.

(3)

Deterioration of external chimneys that causes leaning, sagging, splitting, listing, or buckling.

(4)

Deterioration or crumbling of exterior plasters or mortars.

(5)

Ineffective waterproofing of exterior walls, roofs, and foundations, including broken windows or doors.

(6)

Defective protection or lack of weather protection for exterior wall and roof coverings, including lack of paint, or weathering due to lack of paint or other protective covering.

(7)

Rotting, holes, and other forms of decay.

(8)

Deterioration of exterior stairs, porches, handrails, window and door frames, cornices, entablatures, wall facings, and architectural details that causes delamination, instability, loss of shape and form, or crumbling.

(9)

Deterioration that has a detrimental effect on the surrounding historic district.

(10)

Deterioration that contributes to a hazardous or unsafe condition.

(c)

Procedure for enforcement.

Enforcement of these provisions shall be undertaken as described in section 4.13 of the Land Use Management Ordinance ("Violations and Penalties"), with the following additional components:

(i)

If the town manager makes a preliminary determination that a property in a historic district is being neglected, as defined in subsection 5.17.2(b), the manager shall inform the property owner of the preliminary determination and notify the historic district commission of the preliminary determination. The town manager will seek remedial action by the property owner.

(ii)

If remedial action has not commenced within thirty (30) days of initial notification, the town manager, after consultation with the historic district commission, shall make a finding of violation of the Land Use Management Ordinance. Procedures outlined in section 4.13 shall be followed, including notification of right to and process for appeal as described in section 4.12

5.17.3. Variances for Undue Economic Hardship.

Where a determination made under the provisions of this section would, in any particular case, cause undue economic hardship to a property owner, the board of adjustment shall grant such variance as it deems necessary to eliminate that undue economic hardship. A property owner shall be required to demonstrate, through competent substantial evidence, the existence of undue economic hardship. Evidence of such hardship may include, by way of illustration: An appraisal of the property before and after the proposed renovation or repair; and the estimated cost of the repair in relation to such appraisals.

5.17.4. Stay of Proceedings.

Issuance of an approved certificate of appropriateness for improvements, accompanied by actions to bring the property into compliance with this section, will stay an enforcement proceeding seeking compliance with this section for said property.

5.17.5. Other Town Powers.

Nothing contained within this article shall diminish the town's power to declare an unsafe building or a violation of the minimum housing code.

(Ord. No. 2005-02-14/O-9a, § 1)

5.18 - Jordan watershed riparian buffer protection.

5.18.1 Authority.

This section is adopted pursuant to the authority vested in the Town of Chapel Hill by the Session Laws and the General Statutes of North Carolina, particularly Session Law 2009-216 (House Bill 239), Session Law 2009-484 (Senate Bill 838), and the authority referenced in section 1.2 of this ordinance.

5.18.2 Purpose and Intent.

The purpose of this section is to protect and preserve existing riparian buffers throughout the Jordan Watershed as generally described in 15A North Carolina Administrative Code 2B.0262 in order to maintain their nutrient removal and stream protection functions. Additionally this section will help protect the water supply uses of Jordan Reservoir.

Buffers adjacent to streams provide multiple environmental protection and resource management benefits. Forested buffers enhance and protect the natural ecology of stream systems, as well as water quality through bank stabilization, shading, and nutrient removal. They also help to minimize flood damage in floodprone areas. Well-vegetated streamside riparian areas help to remove nitrogen and prevent sediment and sediment-bound pollutants such as phosphorous from reaching the streams.

5.18.3 Definitions.

The definitions in appendix A of this ordinance shall apply to this section except as modified herein:

Access trails means pedestrian trails constructed of pervious or impervious surfaces and related structures to access a surface water, including boardwalks, steps, rails, and signage.

Airport facilities means all properties, facilities, buildings, structures, and activities that satisfy or otherwise fall within the scope of one (1) or more of the definitions or uses of the words or phrases "air navigation facility", "airport", or "airport protection privileges" under G.S. 63-1; the definition of "aeronautical facilities" in G.S. 63-79(1); the phrase "airport facilities" as used in G.S. 159-48(b)(1); the phrase "aeronautical facilities" as defined in G.S. 159-81 and G.S. 159-97; and the phrase "airport facilities and improvements" as used in Article V, Section 13, of the North Carolina Constitution, which shall include, without limitation, any and all of the following: airports, airport maintenance facilities, clear zones, drainage ditches, fields, hangars, landing lighting, airport and airport-related offices, parking facilities, related navigational and signal systems, runways, stormwater outfalls, terminals, terminal shops, and all appurtenant areas used or suitable for airport buildings or other airport facilities, and all appurtenant rights-of-way; restricted landing areas; any structures, mechanisms, lights, beacons, marks, communicating systems, or other instrumentalities or devices used or useful as an aid, or constituting an advantage or convenience to the safe taking off, navigation, and landing of aircraft, or the safe and efficient operation or maintenance of an airport or restricted landing area; easements through, or interests in, air space over land or water, interests in airport hazards outside the boundaries of airports or restricted landing areas, and other protection privileges, the acquisition or control of which is necessary to ensure safe approaches to the landing areas of airports and restricted landing areas, and the safe and efficient operation thereof and any combination of any or all of such facilities. Notwithstanding the foregoing, the following shall not be included in the definition of "airport facilities":

(1)

Satellite parking facilities;

(2)

Retail and commercial development outside of the terminal area, such as rental car facilities; and

(3)

Other secondary development, such as hotels, industrial facilities, freestanding offices and other similar buildings, so long as these facilities are not directly associated with the operation of the airport, and are not operated by a unit of government or special governmental entity such as an airport authority, in which case they are included in the definition of "airport facilities".

Channel means a natural water-carrying trough cut vertically into low areas of the land surface by erosive action of concentrated flowing water or a ditch or canal excavated for the flow of water.

Commission means the North Carolina Environmental Management Commission.

Diameter at breast height (DBH) means the diameter of a tree measured at four and one-half (4.5) feet above the ground surface level.

Development means 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.

Director means the Director of the North Carolina Department of Environment and Natural Resources' Division of Water Quality.

Ditch or canal means a manmade channel other than a modified natural stream constructed for drainage purposes that is typically dug through inter-stream divide areas. A ditch or canal may have flows that are perennial, intermittent, or ephemeral and may exhibit hydrological and biological characteristics similar to perennial or intermittent streams.

Division means the North Carolina Department of Environment and Natural Resources' Division of Water Quality or its successor.

Ephemeral stream means a feature that carries only stormwater in direct response to precipitation with water flowing only during and shortly after large precipitation events. An ephemeral stream may or may not have a well-defined channel, the aquatic bed is always above the water table, and stormwater runoff is the primary source of water. An ephemeral stream typically lacks the biological, hydrological, and physical characteristics commonly associated with the continuous or intermittent conveyance of water.

Existing development means development, other than that associated with agricultural or forest management activities, that meets one of the following criteria:

(1)

It either is built or has established a vested right based on statutory or common law as interpreted by the courts, for projects that do not require a state permit, as of the effective date of either local new development stormwater programs implemented under 15A NCAC 2B.0265 or, for projects requiring a state permit, as of the applicable compliance date established in 15A NCAC 2B.0271 (5) and (6); or

(2)

It occurs after the compliance date set out in Sub-Item (4)(d) of 15A NCAC 2B.0265 but does not result in a net increase in built-upon area.

Greenway/hiking trails means pedestrian trails constructed of pervious or impervious surfaces and related structures including but not limited to boardwalks, steps, rails, and signage, and that generally run parallel to the shoreline.

High value tree means a tree that meets or exceeds the following standards: for pine species, 14-inch DBH or greater or 18-inch or greater stump diameter; or for hardwoods and wetland species, 16-inch DBH or greater or 24-inch or greater stump diameter.

Intermittent stream means a well-defined channel that contains water for only part of the year, typically during winter and spring when the aquatic bed is below the water table. The flow may be heavily supplemented by stormwater runoff. An intermittent stream often lacks the biological and hydrological characteristics commonly associated with the continuous conveyance of water.

Jordan Nutrient Strategy or Jordan Water Supply Nutrient Strategy means the set of rules in 15A NCAC 2B.0262 through .0273 and .0311(p).

Jordan Reservoir means the surface water impoundment operated by the U.S. Army Corps of Engineers and named B. Everett Jordan Reservoir, as further delineated for purposes of the Jordan nutrient strategy in 15A NCAC 2B.0262(4).

Jordan watershed means all lands and waters draining to B. Everett Jordan Reservoir.

New development means any development project that does not meet the definition of existing development set out in this section.

Perennial stream means a well-defined channel that contains water year-round during a year of normal rainfall with the aquatic bed located below the water table for most of the year. Groundwater is the primary source of water for a perennial stream, but it also carries stormwater runoff. A perennial stream exhibits the typical biological, hydrological, and physical characteristics commonly associated with the continuous conveyance of water.

Perennial waterbody means a natural or man-made basin, including lakes, ponds, and reservoirs, that stores surface water permanently at depths sufficient to preclude growth of rooted plants. The waterbody must be part of a natural drainage way. A waterbody is part of a natural drainage way when it is fed by an intermittent or perennial stream or when it has a direct discharge point to an intermittent or perennial stream.

Shoreline stabilization is the in-place stabilization of an eroding shoreline. Stabilization techniques which include "soft" methods or natural materials (such as root wads, or rock vanes) may be considered as part of a restoration design. However, stabilization techniques that consist primarily of "hard" engineering, such as concrete lined channels, riprap, or gabions, while providing bank stabilization, shall not be considered stream restoration.

Stream restoration is defined as the process of converting an unstable, altered or degraded stream corridor, including adjacent riparian zone and floodprone areas to its natural or referenced, stable conditions considering recent and future watershed conditions. This process also includes restoring the geomorphic dimension, pattern, and profile as well as biological and chemical integrity, including transport of water and sediment produced by the stream's watershed in order to achieve dynamic equilibrium.

Referenced or referenced reach means a stable stream that is in dynamic equilibrium with its valley and contributing watershed. A reference reach can be used to develop natural channel design criteria for stream restoration projects.

Stream means a body of concentrated flowing water in a natural low area or natural channel on the land surface.

Stump diameter means the diameter of a tree measured at six (6) inches above the ground surface level.

Surface waters means all waters of the state as defined in G.S. 143-212 except underground waters.

Tree means a woody plant with a DBH equal to or exceeding five (5) inches or a stump diameter exceeding six (6) inches.

Temporary road means a road constructed temporarily for equipment access to build or replace hydraulic conveyance structures such as bridges, culverts, pipes or water dependent structures, or to maintain public traffic during construction.

5.18.4 Applicability.

This section applies to all landowners and other persons conducting activities in the area described in section 1.4. The N.C. Division of Water Quality shall administer the requirements of 15A NCAC 02B.0267 and .0268 for activities conducted by the entities not subject to this section.

5.18.5 Relation to Other Ordinances.

The requirements of this section shall supersede requirements of subsection 3.6.4(f). If the provisions of this section otherwise conflict with other provisions of this ordinance, the most stringent provisions shall control. This section is not intended to interfere with, abrogate, or annul any other ordinance, rule, regulation, or other provision of law.

Parties subject to this section shall abide by all state rules and laws regarding waters of the state including, but not limited to, 15A NCAC 2B.0230 and .0231, 15A NCAC 2H.0500, 15A NCAC 2H.1300, and Sections 401 and 404 of the Federal Water Pollution Control Act.

5.18.6 Riparian Area Protection.

(a)

Riparian buffer zones. The protected riparian buffer shall have two (2) zones as follows:

(1)

Zone One shall consist of a vegetated area that is undisturbed except for uses and activities provided for in subsection 5.18.7(b). The location of Zone One shall be as follows:

A.

For intermittent and perennial streams, Zone One shall begin at the top of the bank and extend landward a distance of thirty (30) feet on all sides of the surface water, measured horizontally on a line perpendicular to a vertical line marking the top of the bank.

B.

For perennial waterbodies located within a natural drainage way, Zone One shall begin at the normal pool elevation and extend landward a distance of thirty (30) feet, measured horizontally on a line perpendicular to a vertical line marking the normal pool elevation.

(2)

Zone Two shall consist of a stable, vegetated area that is undisturbed except for uses and activities provided for in subsection 5.18.7(b). Grading and revegetating in Zone Two is allowed provided that the health of the vegetation in Zone One is not compromised. Zone Two shall begin at the outer edge of Zone One and extend landward twenty (20) feet as measured horizontally on a line perpendicular to the surface water. The combined width of Zones One and Two shall be fifty (50) feet on all sides of the surface water.

(b)

[Minimum criteria.] The following minimum criteria shall be used for identifying protected riparian areas:

(1)

This section shall apply to uses in or activities conducted within, or outside of with hydrological impacts in violation of the diffuse flow requirements set out in subsection 5.18.6(c) upon, fifty-foot-wide riparian buffers directly adjacent to intermittent streams, perennial streams and perennial waterbodies, excluding wetlands.

(2)

Wetlands adjacent to, or within fifty (50) feet of, intermittent streams, perennial streams and perennial waterbodies shall be considered as part of the riparian buffer but are regulated pursuant to 15A NCAC 2B.0230 and .0231, 15A NCAC 2H.0500, 15A NCAC 2H.1300, and Sections 401 and 404 of the Federal Water Pollution Control Act.

(3)

An intermittent stream, perennial stream or perennial waterbody shall be subject to these requirements if it is approximately shown on one of the following maps:

A.

The most recent hard copy paperbound version of the soil survey map prepared by the Natural Resources Conservation Service of the United States Department of Agriculture.

B.

The most recent version of the 1:24,000 scale (seven and one-half (7.5) minutes) quadrangle topographic maps prepared by the United States Geologic Survey (U.S.G.S.).

C.

A map approved by the Geographic Information Coordinating Council and by the N.C. Environmental Management Commission. Prior to approving a map, the commission is required to provide a thirty-day public notice and opportunity for comment.

(4)

Waterbodies subject to this section shall be subject to field verification by the town manager. Where it is believed the map has inaccurately depicted surface waters or the origination point of a stream is in question, the town manager shall make an onsite determination upon written request by the landowner, the division, or other affected party. A town representative who has successfully completed the division's surface water identification training certification course, its successor, or other equivalent training curriculum approved by the division, shall verify the location of the waterbody or origination point using the latest version of the division publication, Identification Methods for the Origins of Intermittent and Perennial Streams. Any disputes about onsite determinations made according to this subsection shall be referred to the director of the division, in writing.

Surface waters that appear on the maps shall not be subject to these buffer requirements if an onsite determination reveals any of the following cases:

A.

Manmade ponds and lakes that are not part of a natural drainage way that is classified in accordance with 15A NCAC 2B.0100, including ponds and lakes created for animal watering, irrigation, or other agricultural uses.

B.

Ephemeral streams.

C.

The absence on the ground of a corresponding intermittent or perennial stream, or perennial waterbody.

D.

Ditches or other manmade water conveyances, other than modified natural streams.

(c)

Diffuse flow requirements.

(1)

Diffuse flow of runoff shall be maintained in the riparian buffer by dispersing concentrated flow prior to its entry into the buffer and reestablishing vegetation.

(2)

Concentrated runoff from new ditches or manmade conveyances shall be converted to diffuse flow at non-erosive velocities before the runoff enters Zone Two of the riparian buffer.

(3)

Periodic corrective action to restore diffuse flow shall be taken as necessary and shall be designed to impede the formation of erosion gullies.

(4)

No new stormwater conveyances are allowed through the buffer except for those specified subsection 5.18.7(b), Table of Uses, addressing stormwater management ponds, drainage ditches, roadside ditches, and stormwater conveyances.

(d)

Exemptions for existing and ongoing uses and activities. This section shall not apply to uses and activities that are existing and ongoing; however, this section shall apply at the time an existing and ongoing use or activity is changed. A change of use or activity shall involve the initiation of any use or activity that does not meet either of the following criteria:

(1)

It was an existing and ongoing use or activity within the riparian buffer as of the effective date of this section and has continued since that time. Such uses shall include, but may not be limited to, agriculture, buildings, industrial facilities, commercial areas, transportation facilities, maintained lawns, utility lines and on-site sanitary sewage systems, any of which involve either specific, periodic management of vegetation or displacement of vegetation by structures or regular activity. Only the portion of the riparian buffer occupied by the footprint of the existing use is exempt from this section. Change of ownership through purchase or inheritance is not a change of use. Activities necessary to maintain uses are allowed provided that the site remains similarly vegetated, no impervious surface is added within 50 feet of the surface water where it did not previously exist as of the effective date of this section, and existing diffuse flow is maintained.

(2)

Project or proposed development that is determined by the town manager to meet at least one of the following criteria:

A.

Project or proposed development requires a State 401 Certification and Federal 404 Permit and the certification and permit were issued prior to the effective date this section;

B.

Project or proposed development, such as landfills, NPDES wastewater discharges, land application of residuals and road construction activities, requires a state permit, has begun construction or is under contract to begin construction and has received all required state permits and certifications prior to the effective date of this section;

C.

Project or proposed development is being reviewed through the Clean Water Act Section 404/National Environmental Policy Act Merger 01 Process (published by the U.S. Army Corps of Engineers and Federal Highway Administration, 2003) or its immediate successor and the applicant has reached agreement with the department of environment natural resources on avoidance and minimization by the effective date of this section; or

D.

Project or proposed development is not required to be reviewed by the Clean Water Act Section 404/National Environmental Policy Act Merger 01 Process (published by the U.S. Army Corps of Engineers and Federal Highway Administration, 2003) or its immediate successor if a finding of no significant impact has been issued for the project and the project has the written approval of the town manager prior to the effective date of this section.

5.18.7 Requirements for Uses and Activities.

(a)

Uses and activities designated in subsection 5.18.7(b) as exempt, allowable, and allowable with mitigation within a riparian buffer shall have the following requirements:

(1)

Exempt. Uses and activities designated as exempt are permissible without authorization by the town provided that they adhere to the limitations of the use or activity as defined in subsection 5.18.7(b), and a notice of exemption has been submitted to the town prior to beginning the activity. In addition, exempt uses shall be designed, constructed and maintained to minimize soil disturbance and to provide the maximum water quality protection practicable, including construction, monitoring, and maintenance activities.

(2)

Allowable. Uses and activities designated as allowable may proceed provided that there are no practical alternatives to the requested use pursuant to in subsection 5.18.8(c). This includes construction, monitoring, and maintenance activities. These uses and activities require written authorization from the town manager.

(3)

Allowable with mitigation. Uses and activities designated as allowable with mitigation may proceed provided that there are no practical alternatives to the requested use pursuant to in subsection 5.18.8(c) and an appropriate mitigation strategy has been approved pursuant to in subsection 5.18.8(e). These uses and activities require written authorization from the town manager.

(b)

The following table sets out uses and activities within, or outside with impacts upon, the buffer and categorizes them as exempt, allowable, or allowable with mitigation. All uses and activities not categorized as exempt, allowable, or allowable with mitigation are prohibited and may not proceed within the riparian buffer or outside the buffer if the use would impact the buffer, unless a variance is granted pursuant to subsection 5.18.8(d).

*  To qualify for the designation indicated in the column header, a use or activity must adhere to the limitations defined for it in a given listing as well as the requirements established in subsection 5.18.7(a).

¹ Provided that:

•  No heavy equipment is used in Zone One.

•  Vegetation in undisturbed portions of the buffer is not compromised.

•  Felled trees are removed by chain.

•  No permanent felling of trees occurs in protected buffers or streams.

•  Stumps are removed only by grinding.

•  At the completion of the project the disturbed area is stabilized with native vegetation.

•  Zones One and Two meet the requirements of subsections 5.18.6(a) and 5.18.6(c).

² Provided that, in Zone One, all of the following BMPs for overhead utility lines are used. If all of these BMPs are not used, then the overhead utility lines shall require a no practical alternative evaluation by the town, as defined in subsection 5.18.8(c).

•  A minimum zone of ten (10) feet wide immediately adjacent to the water body shall be managed such that only vegetation that poses a hazard or has the potential to grow tall enough to interfere with the line is removed.

•  Woody vegetation shall be cleared by hand. No land grubbing or grading is allowed.

•  Vegetative root systems shall be left intact to maintain the integrity of the soil. Stumps shall remain where trees are cut.

•  Riprap shall not be used unless it is necessary to stabilize a tower.

•  No fertilizer shall be used other than a one-time application to re-establish vegetation.

•  Construction activities shall minimize the removal of woody vegetation, the extent of the disturbed area, and the time in which areas remain in a disturbed state.

•  Active measures shall be taken after construction and during routine maintenance to ensure diffuse flow of stormwater through the buffer.

•  In wetlands, mats shall be utilized to minimize soil disturbance.

³ Provided that poles or aerial infrastructure shall not be installed within ten (10) feet of a water body unless the town completes a no practical alternative evaluation as defined in subsection 5.18.8(c).

⁴ Provided that, in Zone One, all of the following BMPs for underground utility lines are used. If all of these BMPs are not used, then the underground utility line shall require a no practical alternative evaluation by the town, as defined in subsection 5.18.8(c).

•  Woody vegetation shall be cleared by hand. No land grubbing or grading is allowed.

•  Vegetative root systems shall be left intact to maintain the integrity of the soil. Stumps shall remain, except in the trench where trees are cut.

•  Underground cables shall be installed by vibratory plow or trenching.

•  The trench shall be backfilled with the excavated soil material immediately following cable installation.

•  No fertilizer shall be used other than a one-time application to re-establish vegetation.

•  Construction activities shall minimize the removal of woody vegetation, the extent of the disturbed area, and the time in which areas remain in a disturbed state.

•  Measures shall be taken upon completion of construction and during routine maintenance to ensure diffuse flow of stormwater through the buffer.

•  In wetlands, mats shall be utilized to minimize soil disturbance.

⁵ Perpendicular crossings are those that intersect the surface water at an angle between seventy-five (75) degrees and one hundred five (105) degrees.

5.18.8 Procedures, Requirements, and Approvals.

(a)

No new clearing, grading, or development shall take place nor shall any new building permits be issued in violation of this section.

(b)

Approval for new development. The town manager shall issue an approval for new development only if the development application contains measures to avoid impacts to riparian buffers defined in subsection 5.18.6(b), or where the application indicates an impact to riparian buffers, it demonstrates that the applicant has done the following, as applicable:

(1)

Determined the activity is exempt from requirements of this section and a notice of exemption has been submitted to the town manager;

(2)

Received an authorization certificate from the town manager pursuant to subsection 5.18.8(c);

(3)

Received an approval from the town manager for a mitigation plan pursuant to subsection 5.18.8(e); and

(4)

Received a variance pursuant to subsection 5.18.8(d).

(c)

Authorization certificate and determination of no practical alternatives.

(1)

Except as otherwise specifically provided in this section, it shall be unlawful to undertake uses and activities designated as allowable or allowable with mitigation until the town manager has issued an authorization certificate for such uses and activities. Persons who wish to undertake uses and activities designated as allowable or allowable with mitigation shall submit a request for a "no practical alternatives" determination to the town manager. The applicant shall certify that the project meets all the following criteria for a determination of "no practical alternatives:"

A.

The basic project purpose cannot be practically accomplished in a manner that would better minimize disturbance, preserve aquatic life and habitat, and protect water quality;

B.

The use or activity cannot practically be reduced in size or density, reconfigured, modified or redesigned to better minimize disturbance, preserve aquatic life and habitat, and protect water quality; and

C.

Best management practices shall be used as necessary to minimize disturbance, preserve aquatic life and habitat, and protect water quality.

(2)

The applicant shall also submit at least the following information in support of his or her assertion of "no practical alternatives:"

A.

The name, address and phone number of the applicant;

B.

The nature of the use or activity to be conducted by the applicant;

C.

The location of the use or activity;

D.

A map of sufficient detail to accurately delineate the boundaries of the use or the land to be utilized in carrying out the activity, the location and dimensions of any disturbance in riparian buffers associated with the use or activity, and the extent of riparian buffers on the land;

E.

An explanation of why this plan for the use or activity cannot be practically accomplished, reduced or reconfigured to better minimize disturbance to the riparian buffer, preserve aquatic life and habitat and protect water quality; and

F.

Plans for any best management practices proposed to be used to control the impacts associated with the activity.

(3)

Within sixty (60) days of a submission that complies with subsection 5.18.8(c)(2), the town manager shall review the entire project and make a finding of fact as to whether the criteria in subsection 5.18.8(c)(1) have been met. A determination of "no practical alternatives" shall result in issuance of an authorization certificate. The town manager's failure to act within sixty (60) days shall be construed as a determination of "no practical alternatives" and an authorization certificate shall be issued to the applicant unless one of the following occurs:

A.

The applicant agrees, in writing, to a longer review period;

B.

The town manager determines that the applicant has failed to furnish requested information necessary for the town to render a decision;

C.

The final decision is to be made pursuant to a public hearing; or

D.

The applicant refuses access to his/her records or premises for the purpose of gathering information necessary for the town manager to render a decision.

(4)

The town manager may attach conditions to the authorization certificate that support the purpose, spirit and intent of this section.

(5)

Any appeals of determinations regarding authorization certificates shall be referred to the director of the division.

(d)

Variances.

(1)

Requirements for variances. Persons who wish to undertake uses and activities prohibited by this section may pursue a variance. The procedures for requesting a variance from the requirements of this section shall be as follows:

a.

For any variance request, the town board of adjustment shall make a finding of fact as to whether there are practical difficulties or unnecessary hardships that prevent compliance with the riparian buffer protection requirements. A finding of practical difficulties or unnecessary hardships shall require that the following conditions are met:

If the applicant complies with the provisions of this section, he or she can secure no reasonable return from, nor make reasonable use of, his or her property. Merely proving that the variance would permit a greater profit from the property shall not be considered adequate justification for a variance. Moreover, the town board of adjustment shall consider whether the variance is the minimum possible deviation from the terms of this section that shall make reasonable use of the property possible;

The hardship results from application of this section to the property rather than from other factors such as deed restrictions or other hardship;

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 section would not allow reasonable use of the property;

The applicant did not cause the hardship by knowingly or unknowingly violating this section;

The applicant did not purchase the property after the effective date of this section, and then request a variance; and

The hardship is rare or unique to the applicant's property.

The variance is in harmony with the general purpose and intent of the state's riparian buffer protection requirements and this section and preserves its spirit; and

In granting the variance, the public safety and welfare have been assured, water quality has been protected, and substantial justice has been done.

(2)

Minor variances. A minor variance request pertains to uses and activities that will impact only Zone Two of the riparian buffer. Minor variance requests shall be reviewed and approved by the town board of adjustment based on the criteria in subsections 5.18.8(d)(1)A through 5.18.8(d)(1)C and in accordance with section 4.12 and as provided by North Carolina General Statute Chapter 160A, Article 19. The board may attach conditions to the variance approval that support the purpose, spirit and intent of the riparian buffer protection program. Request for appeals to decisions made by the town board of adjustment shall be made in writing to the director of the division. Appeals from a decision by the director on a minor variance request are subject to review as provided in North Carolina General Statute Chapter 150B, Articles, 3 and 4.

(3)

Major variances. A major variance request pertains to uses and activities that will impact any portion of Zone One or any portion of both Zones One and Two of the riparian buffer. If the town board of adjustment has determined that a major variance request meets the requirements in subsections 5.18.8(d)(1)A through 5.18.8(d)(1)C and as provided by N.C.G.S. Chapter 160A, Article 19, then it shall prepare a preliminary finding and submit it to the North Carolina Environmental Management Commission in care of the director of the division. Within ninety (90) days after receipt, the environmental management commission is required to review preliminary findings on major variance requests and take one of the following actions: approve, approve with conditions and stipulations, or deny the request. Appeals from a commission decision on a major variance request are subject to review as provided in N.C.G.S. Chapter 150B, Articles 3 and 4.

(e)

Mitigation.

(1)

This subsection shall apply to persons who wish to impact a riparian buffer in the Jordan watershed when one of the following applies:

A.

A person has received an authorization certificate pursuant to subsection 5.18.8(c) for a proposed use or activity that is designated as "allowable with mitigation;" or

B.

A person has received a variance pursuant to subsection 5.18.8(d) and is required to perform mitigation as a condition of a variance approval.

(2)

Issuance of the mitigation approval. The town manager shall issue a mitigation approval upon determining that a proposal meets the requirements set out in this section. The approval shall identify at a minimum the option chosen, the required and proposed areas, and either the mitigation location or the offset payment amount as applicable.

(3)

Options for meeting the mitigation requirement. The mitigation requirement may be met through one of the following options:

A.

Payment of a compensatory mitigation fee to the Riparian Buffer Restoration Fund pursuant to 15A NCAC 02B.0269 and contingent upon acceptance of payments by the N.C. Ecosystem Enhancement Program, or to a private mitigation bank that complies with banking requirements of the U.S. Army Corps of Engineers and the applicable trading criteria in 15A NCAC 02B.0273;

B.

Donation of real property or of an interest in real property pursuant to subsection 5.18.8(e)(6); or

C.

Restoration or enhancement of a non-forested riparian buffer pursuant to the requirements of subsection 5.18.8(e)(7).

(4)

The area of mitigation. The town manager shall determine the required amount of mitigation area, which shall apply to all mitigation options identified in subsection 5.18.8(e)(3) and as further specified in the requirements for each option set out in this subsection, according to the following:

A.

The impacts in square feet to each zone of the riparian buffer shall be determined by the town manager by adding the following:

1.

The area of the footprint of the use causing the impact to the riparian buffer;

2.

The area of the boundary of any clearing and grading activities within the riparian buffer necessary to accommodate the use; and

3.

The area of any ongoing maintenance corridors within the riparian buffer associated with the use.

B.

The required amount of mitigation area shall be determined by applying the following multipliers to the impacts determined in subsection 5.18.8(e)(4)A to each zone of the riparian buffer:

1.

Impacts to Zone One of the riparian buffer shall be multiplied by three;

2.

Impacts to Zone Two of the riparian buffer shall be multiplied by one and one-half (1.5); and

3.

Impacts to wetlands within Zones One and Two of the riparian buffer that are subject to mitigation under 15A NCAC 2H.0506 shall comply with the mitigation ratios in 15A NCAC 2H.0506.

(5)

The location of mitigation. For any option chosen, the mitigation effort shall be located within the same subwatershed of the Jordan watershed, as defined in 15A NCAC 02B.0262, and the same distance from the Jordan Reservoir as the proposed impact, or closer to the reservoir than the impact, and as close to the location of the impact as feasible. Alternatively, the applicant may propose mitigation anywhere within the same subwatershed of the Jordan watershed, as defined in 15A NCAC 02B.0262, provided that the mitigation proposal accounts for differences in delivery of nutrients to the affected arm of Jordan Reservoir resulting from differences between the locations of the buffer impact and mitigation. Additional location requirements for the property donation option are enumerated in subsection 5.18.8(e)(6)C.1.

(6)

Donation of property. Any donation of real property or an interest in real property shall be subject to acceptance by the town. Further, the donee organization and the donated real property or interest in real property shall be approved by the North Carolina Department of Environment and Natural Resources. Persons who choose to satisfy their mitigation determination by donating real property or an interest in real property shall meet the following requirements:

A.

The donation of real property interests may be used to either partially or fully satisfy the payment of a compensatory mitigation fee to the riparian buffer restoration fund pursuant to 15A NCAC 02B.0273. The value of the property interest shall be determined by an appraisal performed in accordance with subsection 5.18.8(e)(6)D.4. The donation shall satisfy the mitigation determination if the appraised value of the donated property interest is equal to or greater than the required fee. If the appraised value of the donated property interest is less than the required fee calculated pursuant to 15A NCAC 02B.0273, the applicant shall pay the remaining balance due.

B.

The donation of conservation easements to satisfy compensatory mitigation requirements shall be accepted only if the conservation easement is granted in perpetuity.

C.

Donation of real property interests to satisfy the mitigation determination shall be accepted only if such property meets all of the following requirements:

1.

In addition to the location requirements of subsection 5.18.8(e)(5), the property shall be located within an area that is identified as a priority for restoration in, or is otherwise consistent with the goals of, the Basinwide Wetlands and Riparian Restoration Plan for the Cape Fear River Basin developed by N.C. Division of Water Quality pursuant to N.C.G.S. 143-214.10;

2.

The property shall contain riparian buffers not currently protected by the state's riparian buffer protection program that are in need of restoration as defined in subsection 5.18.8(e)(7)D.;

3.

The restorable riparian buffer on the property shall have a minimum length of one thousand (1,000) linear feet along a surface water and a minimum width of fifty (50) feet as measured horizontally on a line perpendicular to the surface water;

4.

The size of the restorable riparian buffer on the property to be donated shall equal or exceed the amount of mitigation area responsibility determined pursuant to subsection 5.18.8(e)(4);

5.

Restoration shall not require removal of manmade structures or infrastructure;

6.

The property shall be suitable to be successfully restored, based on existing hydrology, soils, and vegetation;

7.

The estimated cost of restoring and maintaining the property shall not exceed the value of the property minus site identification and transaction costs;

8.

The property shall not contain any building, structure, object, site, or district that is listed in the National Register of Historic Places established pursuant to Public Law 89-665, 16 U.S.C. 470 as amended;

9.

The property shall not contain any hazardous substance or solid waste;

10.

The property shall not contain structures or materials that present health or safety problems to the general public. If wells, septic, water or sewer connections exist, they shall be filled, remediated or closed at owner's expense in accordance with state and local health and safety regulations;

11.

The property and adjacent properties shall not have prior, current, and known future land use that would inhibit the function of the restoration effort; and

12.

The property shall not have any encumbrances or conditions on the transfer of the property interests.

D.

At the expense of the applicant or donor, the following information shall be submitted to the town with any proposal for donations or dedications of interest in real property:

1.

Documentation that the property meets the requirements laid out in subsection 5.18(e)(6)C.;

2.

U.S. Geological Survey 1:24,000 (7.5 minute) scale topographic map, county tax map, USDA Natural Resource Conservation Service County Soil Survey Map, and county road map showing the location of the property to be donated along with information on existing site conditions, vegetation types, presence of existing structures and easements;

3.

A current property survey performed in accordance with the procedures of the North Carolina Department of Administration, state property office as identified by the state board of registration for professional engineers and land surveyors in "Standards of Practice for Land Surveying in North Carolina.";

4.

A current appraisal of the value of the property performed in accordance with the procedures of the North Carolina Department of Administration, State Property Office as identified by the appraisal board in the "Uniform Standards of Professional North Carolina Appraisal Practice;" and

5.

A title certificate.

(7)

Riparian buffer restoration or enhancement. Persons who choose to meet their mitigation requirement through riparian buffer restoration or enhancement shall meet the following requirements:

A.

The applicant may restore or enhance a non-forested riparian buffer if either of the following applies:

1.

The area of riparian buffer restoration is equal to the required amount of mitigation area determined pursuant to subsection 5.18.8(c)(4); or

2.

The area of riparian buffer enhancement is three (3) times larger than the required amount of mitigation area determined pursuant to subsection 5.18.8(c)(4);

B.

The location of the riparian buffer restoration or enhancement shall comply with the requirements in subsection 5.18.8(e)(5);

C.

The riparian buffer restoration or enhancement site shall have a minimum width of fifty (50) feet as measured horizontally on a line perpendicular to the surface water;

D.

Enhancement and restoration shall both have the objective of establishing a forested riparian buffer according to the requirements of this subsection. Enhancement shall be distinguished from restoration based on existing buffer conditions. Where existing trees are sparse, that is greater than or equal to one hundred (100) trees per acre but less than two hundred (200) trees per acre, a buffer may be enhanced. Where existing woody vegetation is absent, that is less than one hundred (100) trees per acre, a buffer may be restored;

E.

The applicant shall first receive an authorization certificate for the proposed use according to the requirements of subsection 5.18.8(a). After receiving this determination, the applicant shall submit a restoration or enhancement plan for review and approval by the town. The restoration or enhancement plan shall contain the following:

1.

A map of the proposed restoration or enhancement site;

2.

A vegetation plan. The vegetation plan shall include a minimum of at least two (2) native hardwood tree species planted at a density sufficient to provide three hundred twenty (320) trees per acre at maturity;

3.

A grading plan. The site shall be graded in a manner to ensure diffuse flow through the riparian buffer;

4.

A fertilization plan; and

5.

A schedule for implementation.

F.

Within one (1) year after the town manager has approved the restoration or enhancement plan, the applicant shall present proof to the town manager that the riparian buffer has been restored or enhanced. If proof is not presented within this timeframe, then the person shall be in violation of both the state's and the town's riparian buffer protection program;

G.

The mitigation area shall be placed under a perpetual conservation easement that will provide for protection of the property's nutrient removal functions; and

H.

The applicant shall submit annual reports for a period of five (5) years after the restoration or enhancement showing that the trees planted have survived and that diffuse flow through the riparian buffer has been maintained. The applicant shall replace trees that do not survive and restore diffuse flow if needed during that five-year period.

5.18.9 Compliance and Enforcement.

(a)

Site inspections.

(1)

Agents, officials, or other qualified persons authorized by the town manager may periodically inspect riparian buffers to ensure compliance with this section.

(2)

Notice of the right to inspect shall be included in the letter of approval of each variance and buffer authorization.

(3)

Authorized agents, officials or other qualified persons shall have the authority, upon presentation of proper credentials, to enter and inspect at reasonable times any property, public or private, for the purpose of investigating and inspecting the site of any riparian buffer. No person shall willfully resist, delay, or obstruct an authorized representative, employee, or agent of the town, while that person is inspecting, or attempting to inspect, a riparian buffer nor shall any person obstruct, hamper or interfere with any such representative while in the process of carrying out their official duties. The town shall have the power to conduct such investigations as deemed reasonably necessary to carry out the duties as prescribed in this section.

(4)

Notice of violation.

A.

If it is determined that a person has failed to comply with the requirements of this section, or rules, or orders adopted or issued pursuant to this section, a notice of violation shall be served upon that person. The notice may be served by personal service or by certified mail, return receipt requested.

B.

The notice shall specify the violation and inform the person of the actions that need to be taken to comply with this section, or rules or orders adopted pursuant to this section. The notice shall direct the person to correct the violation within a specified reasonable time. The notice shall inform the person that any person who violates or fails to act in accordance with any of the provisions of this section or rules or orders adopted or issued pursuant to this section is subject to the civil and criminal penalties and other enforcement actions as provided in this section.

(5)

Power to require statements. The town shall also have the power to require written statements, or the filing of reports under oath, with respect to pertinent questions relating to land-disturbing activities.

(b)

Civil penalties.

(1)

Assessment of penalties. Any person who violates or fails to act in accordance with any of the provisions of this section or rules or orders adopted or issued pursuant to this section shall be subject to a civil penalty. A civil penalty for a violation may be assessed in an amount not to exceed ten thousand dollars ($10,000.00) per day. If any violation for which a penalty may be assessed is continuous, a civil penalty may be assessed for each day of the violation in an amount not to exceed twenty-five thousand dollars ($25,000.00) per day for as long as the violation occurs. Each day of a continuing violation shall constitute a separate violation under subsection 5.18.9(b)(1).

(2)

Notice of civil penalty assessment. The town manager shall provide written notice of the civil penalty amount and the basis for the assessment to the person assessed. The notice of civil penalty assessment shall be served by any means authorized under N.C.G.S. 1A-1, Rule 4 including personal service or by certified mail, return receipt requested, and shall direct the violator to either pay the assessment or contest the assessment, within thirty (30) days after receipt of the notice of assessment by written demand for a hearing.

(3)

Hearing. Any decision imposing a civil penalty may be appealed to the town board of adjustment. The board shall hold a hearing in accordance with sections 4.10 thorough 4.13.

(4)

Appeal of final decision. Appeal of the final decision of the town board of adjustment shall be to the Superior Court of Orange County. Such appeal shall be in the nature of a certiorati and must be filed within thirty (30) days of receipt of the final decision. A copy of the appeal must be served on the town manager by any means authorized under N.C.G.S. 1A-1, Rule 4.

(5)

Demand for payment of penalty. An assessment that is not contested is due when the violator is served with a notice of assessment. The civil penalty must be paid within thirty (30) days or the assessment, if not appealed, or within thirty (30) days after the conclusion of the administrative or judicial review of the assessment. If payment is not received within thirty (30) days after demand for payment is made, the town may institute a civil action to recover the amount of the assessment. The civil action may be brought in the Orange County Superior Court or in the judicial district where the violator's residence or principal place of business is located. Such civil actions must be filed within three (3) years of the date the assessment was due.

(c)

Criminal penalties. Any violation of any provision of this section shall constitute a misdemeanor and shall subject the violator to a penalty of five hundred dollars ($500.00) or imprisonment for not more than thirty (30) days. Each day of a continuing violation shall constitute a separate violation under subsection 5.18.9(c)(1). (Failure to comply with the requirements of 15A NCAC 02B.0267, as amended by SL 2009-484, may result in imposition of enforcement measures as authorized by N.C.G.S. 143-215.6B.)

(d)

Injunctive relief.

(1)

Civil action in superior court. Whenever the town manager has reasonable cause to believe that any person is violating or threatening to violate this section or any rule or order adopted or issued pursuant to this section, the town manager may, either before or after the institution of any other action or proceeding authorized by this section, institute a civil action in the name of the town for injunctive relief to restrain the violation or threatened violation. The action shall be brought in the Superior Court of Orange County.

(2)

Order to cease violation. Upon determination by a court that an alleged violation is occurring or is threatened, the court shall enter any order or judgment that is necessary to abate the violation, to ensure that restoration is performed, or to prevent the threatened violation. The institution of an action for injunctive relief under this section shall not relieve any party to the proceedings from any civil or criminal penalty prescribed for violations of this section.

(e)

Compliance with requirements. Any person engaged in new uses or activities as defined by this section who fails to meet the requirements of this section shall be deemed in violation of this section.

(Ord. No. 2010-12-06/O-2, § 1)