STAFF REPORT
Planning and Zoning Board Meeting, June 20, 2011

LDO Amendments – 11-LDO-02 Stormwater Management (EN11-065A).
Recommendation for proposed amendments to the Land Development Ordinance (LDO) regarding Urban Transition Buffers (UTBs).

Speaker: Jan Patterson, Stormwater Engineer

From: Tim Bailey, Engineering Director
Prepared by: Jan Patterson, Stormwater Engineer
Approved by: Benjamin T. Shivar, Town Manager

Approved by: Michael J. Bajorek, Assistant Town Manager

Executive Summary: Modifications are being proposed to the Land Development Ordinance, Section 7.2.14 to integrate the State mandated Jordan Lake Buffer Rules and to incorporate other minor changes. A public hearing was conducted on May 26, 2011 and there were no speakers or comments. Staff recommends that the Planning and Zoning Board forward a recommendation of approval to the Town Council.

Tentative Schedule for 11-LDO-02 LDO Amendments:

*Italicized dates are tentative.

Background:
The proposed amendment would update the Urban Transition Buffer (UTB) Regulations, Section 7.2.14 of the LDO. The updates are necessary to comply with legislation that was passed by the General Assembly in 2009 and regulations adopted by the North Carolina Department of Environment and Natural Resources (NCDENR) as part of the Jordan Water Supply Nutrient Strategy, 15A NCAC 02B .0262 - .0273 and .0311. All incorporated municipalities with planning jurisdiction within or partially within the Jordan Watershed are required to implement these regulations. The proposed LDO revisions incorporate rules .0267-.0269 which address the protection of existing riparian buffers, mitigation for impacts to the riparian buffer, and mitigation fees paid to the NC Ecosystem Enhancement Program. In addition, a comprehensive review of Section 7.2.14 was undertaken to update the LDO with current standards and terminology that encompasses all watersheds within the Town of Cary.

The most significant proposed modifications to the LDO are summarized below with the complete Proposed Text included as an attachment.

1. Updates additional maps that can be used to determine the presence of UTBs

• In addition to USGS quad maps and soil survey maps, maps approved by the Geographic Information Coordinating Council and the NC Environmental Management Commission (EMC) may be used

2. Establishes new requirements within the UTB

• The widths of the UTB remain unchanged. However, wetlands adjacent to or within 50 ft of surface waters are considered part of the UTB.
• Diffuse flow of runoff shall be maintained in the UTB by dispersing concentrated flow prior to entering the UTB through the use of level spreaders.
• The Division of Water Quality will have jurisdiction within Zone 1 and Zone 2 of the UTB that is within the Jordan Lake watershed.

3. Establishes on-site stream determinations in Jordan Lake Watershed

• Town (Engineering Department) will make on-site determinations of stream origin for the purpose of establishing the limits of the UTB.

• Any disputes/appeals regarding over the on-site determination by Town staff within the Cape Fear/Jordan Lake Watershed shall be referred to the NCDENR Director of Water Quality.

4. Updates the Designated Use Table

• Adds several categories of activities that are considered exempt, allowable, or allowable with mitigation.

5. Establishes exemption criteria when existing uses are present and ongoing

• If an existing use or activity is present within the UTB as of July 27, 2000 it shall be considered present and ongoing unless there is a change of use.

6. Determinations regarding No Practical Alternatives.

• Town staff (Engineering Department) must determine if uses that are allowable or allowable with mitigation (Table 7.2-6 Town of Cary General and Specialized UTBs) have “no practical alternative” by meeting the criteria as set forth within 7.2.14(I) of the LDO.
• Appeals of determinations of “no practical alternatives” for Zone 1 and 2 shall be referred to the NCDENR Director of the Division of Water Quality.
• Appeals of “no practical alternatives” in Zone 3 shall be referred to the Zoning Board of Adjustment pursuant to Sections 3.2.1 and 11.2 of the LDO.

7. Updates Variance and Modification Processes including potential mitigation.

• Modification (Impacts to Zone 3): After receiving comments from various Town departments which review the development plan pursuant to the LDO and the applicant’s request form for modification, the Town Council may reduce the width of Zone 3 through the process of a quasi-judicial hearing.
• Minor Variance (Impacts to Zone 2): The Town (Engineering Department) determines whether variance should be granted by reviewing the Findings of Fact as set forth within the criteria of 7.2.14(K)(2) of the LDO; appeals shall be made to the NCDENR Director of Water Quality. The Town has concerns with the legal basis for the appeal process for minor variances; however, after discussion with NCDENR staff and attorneys, NCDENR instructed the Town that it must follow the process mandated by the NCDENR regulations.
• Major Variance (Impacts to Zone 1 or both Zone 1 & 2): The Town (Engineering Department) prepares preliminary finding of fact as set forth within the criteria of 7.2.14(K)(2) of the LDO and submits it to the NC Environmental Management Commission (EMC); EMC determines whether variance should be granted.
• Mitigation: Provides enhanced guidance regarding mitigation for variances that impact Zones 1 and 2 of the UTB.

8. Introduces definitions of related terminology

Fiscal Impact:

• Operating Impact:

Additional man-hours to address the Jordan Lake Nutrient Strategy and other Water Quality requirements will be handled by existing Town staff. Therefore, there are no additional operating costs anticipated.

• Financial Impact:

The modifications to Section 7.2.14 of the LDO are not expected to result in financial impacts to the Town.

Staff Recommendation: Staff recommends that the Planning and Zoning Board forward a recommendation of approval to the Town Council.