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Why even bother having a compact community ordinance if it has no bite

By Lynn Monson Hayes
Posted Saturday, January 31, 2004

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An analysis between the original draft "A" and the attorney revised draft "B" shows that biggest changes that affect the whole county are these:

The creational of a conditional use district is deleted.  I think this may mean that a compact community can be anywhere, and not just in the test district.  Meaning we're ALL affected and not just those in north Chatham.

Deletes requirements that wastewater treatment and stormwater runoff exceed state standards.  This is a concern because there are no known standards for a spray irrigation system with 2500 homes.  It seems more prudent to exceed the state standards and avoid future problems.  The water lines at the Governors Club were built to state standards, and now there are over a million dollars in repairs needed, to be paid for by the county.  That means the taxpayers.

Deletes requirement that plans for open space and recreation be coordinated with the planning director and parks & rec director for effective county planning.

Deletes the requirement for a developer to pay for an impact study by an independent professional to ensure that there will be no undue fiscal, transportation or environmental burden to the county.  It only requires that a developer DO a study. 

Deletes in full the provision that the ordinance be enforced in accordance with the County zoning ordinance. 

Last but not least is a waiver, whereby the BOC can waive or adjust all of the requirements of the ordinance. 

These last two effectively take all of the teeth out of the ordinance.  These are NOT minor changes and I can't imagine that all of these changes are required to save the county from lawsuits. Chapel Hill has much tighter ordinances and isn't afraid of being sued.  I'm not suggesting the ordinance be as tight as what they use, but the argument that these changes are needed to protect the county are really bogus.

Differences Between Draft "A" and Draft "B'

Non-substantive changes or clarifications are shown in black text.
Substantive changes are shown in red.
Major changes are shown in bold red.
My comments are shown in blue.

Section 2 . Title

The creation of a conditional use zoning district is deleted. Does this mean that the compact communities ordinance would apply to the entire county? That would mean a compact community could be located anywhere in the county and not just in the “test zone”.

Section 6. Application Procedure (deleted)

The paragraph specifying that the application procedure for a compact community shall be the process described in the zoning ordinance has been deleted. Why?  What would the application procedure be?  More informal?

Section 6.2 – Maximum Size

 Language limiting size to 2500 dwelling units simply clarified.

Section 6.3 – Residential Density

Density of 2 dwelling units per acre clarified to be overall density.

Language referring to spray fields located off the project area clarified.

Language defining density clarified with no major substantive changes.

Section 6.4 – Maximum built upon area

Language clarified that built-upon area includes impervious area.

Section 6.5 – Minimum commercial area

Deletes definition of total commercial area as being in square feet. Why?

Deletes requirement that 25% of commercial space be developed and have CO before 75% of maximum dwelling units are built. Instead, requires that 25% of commercial space be developed but not built before 75% of maximum units have received final subdivision approval and not been built.  Meaning that this can all be on paper and if the project isn’t built as planned the commercial space isn’t required to be built either.

Same changes for 50% of commercial area to be developed (not built) before 90% of dwelling units approved (not built).

Section 7 Water and Wastewater

Section 7.1 Water provision

Deletes option that water can be supplied by a public water provider other than Chatham County.

Section 7.2 Wastewater treatment

Deletes specifically approved wastewater treatment options and specifies only that wastewater systems apply technologies approved by the State and be monitored by the State. It’s well-known that the state does not have sufficient personnel to oversee wastewater treatment systems.   Since Briar Chapel is the ONLY known compact community with a spray irrigation system that is untested in this size development, shouldn’t there be more stringent requirements rather than less?

Section 7.3 Location, Ownership and Sizing of Wastewater Facilities and Spray Fields

Deletes specific requirements and guidelines of wastewater facilities and spray fields, including (a) the requirement for the developer to show the location of all spray fields at buildout in the sketch design submitted to the county, (b) the requirement that the ownership of the spray field be deeded to a property owners association to ensure the permanent availability of the land for use as a sprayfield, (c) Consider alternatives that provide reserve capacity above the required minimum. Instead, it requires only that wastewater systems for compact communities be “adequate to serve the reasonable needs of the community and comply with all applicable regulations”. Additional OPTIONAL guidelines for wastewater management are deleted. Because the Briar Chapel system will be the first of its kind, there is no proven information as to what consists an adequate system.  Deleting these requirements puts the county at risk for having to subsidize a system if it fails.

Wastewater treatment system operation and management.

Deletes the requirement that the wastewater system be managed by a public or licensable wastewater management entity and requires only an operator licensed by the state of North Carolina.

Deletes requirement that sludge management eliminates adverse impacts to the residents and neighbors, and requires only that those adverse impacts be minimized.  Minimized is entirely subjective and impossible to define. This effectively eliminates any control over the impact of sludge on the community and adjoining properties.

Deletes the requirement that a performance bond be posted in the amount of the total construction cost of the wastewater management system until the system has been certified under the Chatham County Subdivision Regulations. Why should the developer not post a bond guaranteeing performance?

Public Filing of Waterwater Documents

Requires developer to furnish rather than submit as in original document to Chatham County copy of plans & specs for waterwater facilities and system details. Clarifies language as to how modifications are provided to the county including notification to residents of any violations or citations.

Section 8: Stormwater

Section 8.1 Guiding Principles

Deletes requirement to utilize Stormwater Best Management Pratices manual provided by NC Div of Water Quality. Deletes requirement that the post development discharge rate not exceed pre-development levels. Why not?  Why should the adjoining neighbors bear the  burden of runoff and potential flooding?

Requires only that adjoining properties not be burdened by stormwater discharge in excess of the rate prior to development to the extent practicable.

Section 8.2 Stormwater Management Plan

Clarifies language regarding approval by Chatham County of stormwater management plan. Does not specify WHO will approve the plan – PB? BOC?

Plan certified to be in conformity rather than compliance as in original with Best Management Practices manual and adds language to the extent practicable. Who defines what’s practicable?  This takes all of the teeth out of the requirement to manage stormwater.

Section 8.3  Stormwater Controls

Deletes requirement that stormwater controls be certified by a licensed stormwater professional.

Section 8.4  Maintenance and upkeep of stormwater controls

Changes requirement that stormwater operation and maintenance plan be approved by Chatham County rather than the Planning Board.   First, can this be read to take any control out of the hands of the planning board?  What constitutes Chatham County?  Presumably the Commissioners. 

Deletes the requirement that the developer establish a legal and financial mechanism, certified by an attorney, for short-term and long-term maintenance and upkeep of stormwater controls. This puts the burden of failure squarely on the shoulders of the taxpayers.

Clarifies language of inspection of stormwater controls and how those controls are to be fixed.

Section 8.5  Posting of Financial Security

Requires adequate financial assurance for maintenance, repairs or reconstruction necessary for adequate performance of control structures for not less than 10 years.  Deletes requirement that the guarantee be posted in accordance with the Chatham Co Subdivision Ordinance. Deletes requirement that the amount of the security be no less than the total cost of the stormwater management system. Deletes requirement for provisions that the bond be forfeited if the system fails. Who decides what is an adequate bond? Again, the risk of failure is on the shoulders of the taxpayers.   The County is already having to pay $1.6 million to repair the Governors Club water lines that were inadequately installed by the developer.

Application for final plat approval

Deletes the requirement that the application process comply with the requirements of the Chatham County Subdivision Regulations. Why should a compact community ordinance be exempt from county subdivision regulations?

Deletes the requirement that final version of the Stormwater Management Plan be posted for public review. Why should the public not be allowed to see the management plan?

Section 9:  Buffers

Section 9.1 Riparian Buffers

Deletes 50 foot buffer from ephemeral streams

Deletes 100 foot buffer specified in Chatham County Watershed Protection Ordinance within 2500 feet of listed rivers.

Ephemeral streams run into intermittent streams, which run into creeks which eventually run into Jordan Lake. 

Uses within the Buffer

Deletes the requirement that permitted construction in buffer area minimize impervious surfaces and direct runoff away from streams, and maximize utilization of stormwater best management practices.

Deletes the requirement that sewer and water lines and other utilities be discouraged in stream buffer areas.

Section 10.  Recreation and Open Space

These changes effectively eliminate the ability for the Parks & Rec Department to put together a comprehensive plan for recreation area within the county.

Deletes the requirement that the Chatham County Planning Director & Parks & Rec director be consulted when determining which lands under the Chatham County Inventory of Natural Areas and Wildlife Habitats and Chatham County Parks & Rec Master Plan be protected.

Deletes requirement that developer justify why any of these lands are not protected if these lands must be built upon.

Open Space Plan

Deletes requirement that the Planning Director and Parks & Rec Director consult on the development of the open space plan.

Ownership and Maintenance of Open Space

Clarifies language regarding the open space being deeded to an incorporated property owners association.

Active Recreational Facilities

Eliminates the requirement that the Planning Director and Parks & Rec director be consulted whether land be dedicated or fees collected in lieu of dedication for rec facilities.

Section 11.  Community Facilities

Basically, there is no requirement that the developer prove that the community will pay for itself, putting the risk of increased taxes on the community at large.

DELETES THE REQUIREMENT FOR THE DEVELOPER TO PAY FOR AN APPROVED CONSULTANT TO CONDUCT AN IMPACT ASSESSMENT ON FISCAL IMPACT, TRANSPORTATION IMPACT, AND ENVIRONMENTAL IMPACT. The developer is simply required to conduct an assessment, not to use recognized experts.

DELETES THE REQUIREMENT THAT CHATHAM COUNTY BE THE CLIENT FOR THE IMPACT ASSESSMENTS. DELETES THE RIGHT OF THE COUNTY TO OVERSEE ANY PEER REVIEW OF THE IMPACT ASSESSMENT.

Clarifies the language as to when the impact assessment is submitted.

DELETES THE RIGHT OF THE BOC TO REQUIRE ADDITIONAL LAND OR IMPROVEMENTS IN ORDER TO MINIMIZE THE IMPACT THE COMMUNITY WILL HAVE ON PUBLIC FACILITIES INCLUDING SCHOOLS, TRANSPORTATION & RECREATIONAL FACILITIES.

DELETES REQUIREMENT THAT DEVELOPER SUBMIT PLAN TO ALLEVIATE NEGATIVE IMPACTS PRIOR TO SUBDIVISION APPROVAL.

Section 11.2  Impact Mitigation

Does not include any time limit for impact mitigation that was stripped in provision above. Deletes consultation with County Manager.

Section 12.  Community Design

Clarifies definition of commercial areas to define smaller and larger establishments rather than low and high volume establishments.

Deletes requirement for minimum net residential density to be at least 5 units to the acre of residential space.

Changes requirement that completion of pedestrian and bicycle pathways be completed prior to a percentage of residential units being built to before plat approval.

Section 12.2  Streets and other specifications

Changes language to require that the streets be offered to the DOT for maintenance rather than dedicated.

Moderately Priced Dwellings

onsite “ in the requirement that onsite housing for low and moderate income households has been deleted.

Adds a provision that the BOC can approve the developer’s providing affordable housing by dedication of land or on and off-site construction of affordable housing units or payment in lieu of.

Deletes the requirement that moderately priced units be intended for owner occupancy.

Section 12.6  Green Building

Energy Conservation and Renewable Energy

Deletes requirement that solar panels be installed by licensed installers on roof or in ground-based application with visual screening.

Deletes requirement that all marketing materials include reference to NC Renewable Energy income tax credits.

Section 14. Enforcement

DELETES IN FULL THE PROVISION THAT THE ORDINANCE BE ENFORCED IN ACCORDANCE WITH THE ZONING ORDINANCE. With no way to enforce the ordinance, what is the point of having one?????

Section 15. Penalties for Violation

DELETES IN FULL ANY PENALTIES FOR NONCOMPLIANCE.

Section 16.  Effective Date

DELETES THAT THE ORDINANCE SHALL BECOME EFFECTIVE WHEN ENACTED BY THE BOC and instead inserts date.

Adds Section 14. Relationship to Existing Ordinances

Includes CCO to zoning, subdivision and watershed protection ordinances.

Specifies that in the event a provision conflicts with any other ordinance the more restrictive provision or the one with the highest standards prevails.

Section 15. Waiver

With the approval of the BOC, the requirements of the ordinance may be adjusted, modified or waived. The ordinance is for the protection of the county in general, and the residents of the compact community and adjoining landowners in particular. The BOC should not have unilateral power to disembody the ordinance.

 
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