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Posted Wednesday, April 30, 2014
Pittsboro, NC - This review of zoning, subdivision addresses zoning in general, local setback rules, the major corridor ordinance, conservation pressure on planning and governance, the river corridor setback and how they effect landowner rights.
Zoning in Chatham County, NC began around 1980 with the hiring of the first planner, Michael Surface. Planning rules and a manual were approved then. The issue of zoning was part of the process. The eastern part of the county was zoned. The western was not. Founding the planning department and establishing the planning board were inspired by the development of Fearrington subdivision by the Fitch’s and small group including landscape architect, Dick Bell, and Jesse Farrington.
The silence of the taxpayer is license to restrict rights
Many of the same fears about Chatham Park were expressed at that time. Too many new people, traffic problems, imported workers for construction, jobs taken away, guarantees on quality and timing were heard at meetings and in the newspapers. Realizing that these issues would be addressed by the rules, the commissioners approved of the plans. The group complied willingly with the rules. They had experienced the restrictive rules of Raleigh and Chapel Hill.
Since then, many subdivisions have been approved and built. The planning manual has increased from approximately seventy pages to eleven hundred plus pages. Zoning rules have been increased and maps produced. 2008 and 2010 saw major increases in rules and definitions. The compact community and conservation subdivisions were included. Also passed were the major corridor ordinance and the one-half mile setback from the Haw River with zoning restrictions, as well as increased setbacks from perennial and ephemeral streams.
In 34 years since the subdivision and zoning regulations were adopted, they have grown by over 1000 pages
The history of Chatham’s zoning would not be complete without mention of why the western portion of the county is, for most intents and purposes, not zoned. During presentations on the proposed planning and zoning regulations, the west said that it did not want zoning. The commissioners complied. At the time, there were two commissioners elected from that area, which extended from roughly Hickory Mountain and Hadley townships to Albright, Matthews and Gulf. Opinions ran strongly against zoning.
In 2007, the board of commissioners (BOC) decided to zone the highways throughout the county. The major corridor ordinance was drafted and presented. It followed all the necessary steps for adoption and was passed in November that year. It effected fifteen hundred feet on both sides of the highways, or seven acres deep in each direction. Realizing that there were existing businesses in the strips, the BOC offered to grandfather all those businesses. All who applied were granted Business or Industrial classification in May, 2009.
There was little resistance to the corridor ordinance. It encompassed narrow strips along the highways on all townships, spread over a wide area with no specific representation, except the BOC, which wanted that zone. No opposition was mounted, although one commissioner spoke against it, representing the western voting district.
Certainly other examples exist for zoning compelled by political agendas, limiting land use without voter approval or adherence to a generally accepted policy. By force of majority on the BOC, this plan was adopted, though business and residential landowners did not vote on it directly.
The subdivision ordinances were adopted in 1980 and are revised from time to time. Zoning ordinance dates to 2008, for the existing version. The compact community rules were created in 2004. Many amendments and revisions are included each year.
Spot zoning is an illegal practice which designates a parcel of land for a use which is out of character with the existing approved zoning uses. This practice is described in an article from the UNC School of Government professor, David Owens. The article may be found on the Internet.
Since this example and the laws on spot zoning apply to municipalities and not counties, spot or strip zoning may be passed without challenge in larger jurisdictions. When a parcel is put before the county planning board for rezoning, the permission granted, or denied, is legally processed, but it may also be interpreted as “spot zoning” because it is be definition outside the neighborhood zoning classification. The proposed use is not in character with the existing zone.
For example, in an area designated for residential use, one owner wishes to open a business. The business is not a large factory but some type one might find in local neighborhoods, like a pet grooming service. For a mile around the applicants lot, the approved zoning is for homes. Since the impact of the grooming business is not great, the lot is approved for business. One parcel was just zoned out of character with the surrounding homes.
Another example is a lot in an area zoned heavy industrial applying for a small business or residential use permit. The large area designation for heavy industrial was determined by ownership. The acreage was owned by a corporation whose use was clearly manufacturing. The surrounding parcels were also designated industrial. One owner wished to install a residential or small business facility on his lot in that zone. Approval of that use, out of character with the industrial zoning, was approved. No neighbors complained about the rezoning. But the rezoning of the small four acre parcel among several which were hundreds of acres of industrial was a spot in the zoning map.
The issue of local rules and zoning which exceed state laws was once not allowed. The Hardison amendment was in place during the 1980's in North Carolina. It specified that no local government could create rules more strict than the state and federal laws allowed. The Hardison law was repealed. Since then, Chatham County has made rules and created zones which exceeded state standards.
One example of that excess is the setback from streams in the recent ordinances, Compact Community, Buffers, Riparian Buffers, Viewshed Buffers. The Compact Community ordinance was created especially for Briars Chapel development. It offers different options than other rules, but was a special regulation controlling that subdivision. One warning about subdivision and other regulations is found in the Conflict with Public Provisions, item 1.7 in that section. “....Where any provisions of this document imposes limitations different from those imposed by any other provision of the document or any other ordinance, rule, regulation, or other provision or law, whichever provisions are more restrictive or impose higher standards shall control.” This wording can probably be found in other regulations also. Civis cave, or citizen beware. “We are here to help you.”
The riparian buffers written between 2008 and 2010 exceeded the state setbacks for county permissions, in some cases, by 66%. To verify the effectiveness of a one hundred foot setback rather than a fifty foot setback, the author asked the Watershed Officer which was more effective.
The officer said that anything more than fifty feet had lower impact on runoff water quality and served little purpose. The map of perennial and intermittent streams is on the county website.
Look closely at the map, keeping in mind that the lighter blue markings are intermittent streams and that they are not a complete mapping of those streams. There are many more for which to account in the permitting process by state definition of intermittent. In looking at the map above, imagine extending those blue lines to represent ephemeral streams coming off of intermittent streams, the next smaller class of waterway. Without an actual map to show these, one would have to assume that most of Chatham would then be blue. With intermittent streams, headwaters, wetlands, seeps and springs added, there would doubtfully any parcel of land open for building or development.
Chatham Conservation Partnership
Then, note one more regulatory detail promoted by the Chatham Conservation Partnership (CCP) in their report published in 2011 was a list of recommendations. The report is a learned and well documented study of Chatham natural, public, recreational, and agricultural resources. Its goal was to describe those resources, improve public awareness of them, identify their ecological and economic importance, expand knowledge of threats to them, and recommend strategies to protect natural resources.
Under the “Land Use, Planning, egulations, and Polices” section, there are thirty-one recommendations which would tie any permitting to the protection of natural areas:
• Use of Comprehensive Conservation Plan & maps for land use planning
• riparian buffers of 300 feet
• watershed based planning
• 70% forest/natural cover for watershed protection
• floodplain management plans
• bridged stream crossings instead of culverts
• Voluntary Agricultural Districts
• strategic farmland maps, identifying farmland for county districts
• “smart growth”
• increasingly strict standards for development
• regional open space
• Significant Natural Heritage areas
• buffers for “headwater streams, wetlands, seeps and springs,” or ephemeral streams
• develop performance standards for lands adjacent to natural resources
• buffer high quality habitats - all
• protect land with conservation value - i.e., private land - should receive high priority
Note that these recommendations are for planning and zoning rules, permit requirements under watershed protection, major and minor subdivisions, and other ordinances.
In the CCP “Monitoring” section, the goal of reviewing updated data to keep current on threats to water resources is stated. Yet the list of violations in Chatham streams cites events going back to 1998, 2003, and 2006 to demonstrate examples, twenty-seven percent (27%) of which are turbidity, or muddy water.
The “Education” section desires contractor pre-certification and student awareness. On top of the rigorous standards for general contractors, the CCP wants to impose an environmental license. The educational recommendations are well conceived, but so were the childhood teachings of Hitler and Mao, who turned children into spies on their parents.
Another zoning example recently adopted is the river corridor along the Haw River and parts of the Rocky and Deep. This local regulation extended the zoning area of restricted building from areas directly surrounding water uptakes of Pittsboro, Siler City, Cary and Chatham County to all rivers circa 2008. The original state mandated setback for uptakes is twenty-five hundred feet. Now, that zone surrounds the Haw River, the Rocky River and part of the Deep River, well beyond the uptakes. Twenty-five hundred feet on both sides is nearly one mile, or twenty-four acres in length, one acre wide.
Map of the river corridor map is found here.
Though certain types of building and subdivisions are permitted in the corridor, the density and impermeable surface is highly restricted. This makes sense in general. However, in actual runoff of sediment, the requirements make land use more restrictive for owners of highly desirable land in the corridors.
The contradiction exposed by this rule is not obvious, at first. The BOC which passed this and other restrictive planning rules wanted high water quality, no industry or business, large building lots, a rural atmosphere, and fifteen hundred foot setbacks from our major highways. The best use of residential land is dense population in areas well served by utilities, with short roads, located on major highways, on small lots or in condominiums or apartments. That plan concentrates services, environmental impact, responsible community planning, ease and efficiency of regulation, and lowered cost for development and housing.
That BOC before 2010 preferred standards for five acre lots, residential zoning for large lots, little business for local employment, long entrance roads to subdivisions and businesses. These standards contradict the preservation of the environment by spreading houses out over five acre lots or larger, reducing density of population, removing businesses from their natural location on major roads, and extending utilities off major thoroughfares into more rural areas. The river corridor accomplishes the lower density at the cost of focusing utilities and infrastructure in denser land use.
The main problem is the imposition of those standards on landowners of large parcels who would gain more from development with higher density. There is one subdivision class allowed within the river corridor. It is highly regulated compared to the other types.
As to the CCP recommendation of maintaining seventy percent (70%) forest cover near rivers and Water Quality Critical Areas, Chatham is covered by forest in those designations near the Haw. And by forest, farms, and sparsely developed land near the Rocky and Deep.
High Impact Ordinance Alternative
Instead of constantly amending zoning and subdivision rules to accommodate people’s changing land use, parcel by parcel, address the main concern of neighbors and community by installing a high impact ordinance. Such an ordinance could specify what comprises “high impact,” and the necessary route to apply for a waiver. If there was no unusual characteristic of the use, there would be no need to endure the costly process of zoning change or subdivision permits at the appeal level.
The high impact ordinance could be applied only to zoned parts of the county or to the whole county, depending on how it describes land use and imposition on property rights. One of the measures may be how many neighbors file complaints about the proposed business or industry, or how many do not. Others may be lighting, sounds, or traffic. Impartial but flexible standards are necessary for a proper rule. This measure would conceivably open the door to shorter permit times, lower process costs, clearer guidelines on property rights.
While Chatham County has been advanced in its water quality protection, planning, subdivision and zoning rules for a county its size, it has rapidly and suddenly imposed land use regulations on the unzoned parts of the county, as well as the zoned. While most residents may never apply for zoning, subdivision or other permits, those who do can expect higher costs for applications, for representation, from lower density of land use, for roads and utilities, for compliance in general.
Rules effect us all directly or indirectly. One argument for them is the protection of our health and welfare. So we give up a piece of our pie for the common good. Where exactly that line should be drawn is not specified by population, density of development, water supply or any other government specification. The local government makes and enforces the rules. In the present political climate, property and individual rights more important. This paper delineates some of the areas of conflict between a well developed set of rules and citizens desiring more freedom to enjoy the fruits of their labours.
The rules and laws are difficult to alter once in place, but not immutable. Change , then, just requires more effort than editing before rules are passed. Most of our laziness in paying attention to government is actually living life, raising a family, working, paying the bills, being a neighbor. We may entrust too much, at times, into the hands of those who decide for us.
The longer the structure of current rules and regulations stay in effect, the more complicated they will become. In thirty four years since the subdivision and zoning regulations were adopted, they have grown by over one thousand pages, an average of thirty pages per year. No elected or appointed official can know all of the rules without years of exposure and experience. In today’s governments, few will remain that long.
In any case, the silence of the taxpayer is license to restrict rights. That is what most laws, regulations and rules do. The time to simplify is never past.
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