STAFF REPORT

Planning and Development Committee, July 15, 2008

Special Task Force Land Development Ordinance Amendments - Round 11 (PL09-005)
Consideration of a series of modifications and revisions to the Land Development Ordinance
Speaker:  Mr. Bob Benfield

From:  Jeffery G. Ulma, AICP, Director, Planning Department

Prepared by:  Ricky W. Barker, AICP, Associate Planning Director
Approved by:  William B. Coleman, Jr., Town Manager
Approved by:  Benjamin T. Shivar, Assistant Town Manager

Proposed Schedule for Round 11 LDO Amendments:

*Italicized dates are tentative.

Background

At its April 24, 2008 meeting, Town Council reviewed the final recommendations from a Special Task Force charged with formulating recommendations on five specific development topics: tree preservation, mass grading, early grading permit notification, slab-on-grade construction and plant rescue from sites.  At the April 24^th meeting, Council directed staff to develop proposed amendments to the Land Development Ordinance to implement the Task Force’s recommendations.

Staff has completed draft amendments (track changes view) for Council’s review.  Some of the most significant amendments include:

• Limiting mass grading by requiring infrastructure only plans for all property zoned for low or very low density residential development;
• Limiting grading to no more than 25 acres for medium density residential development projects;
• Requiring a minimum two-step entrance of slab-on-grade construction and masonry materials around the foundation (low and medium density residential projects only);
• Increasing the fine amounts for disturbing tree protected areas;
• Increasing the number of trees required in parking lot areas; and
• Requiring re-foresting unbuildable areas that have been graded.

Additional items recommended by the Task Force will be handled administratively by:

• Adding early grading permit information on notification letters to adjacent properties related in new development plans;
• Providing the NC Plant Society and other similar organizations information of potential development sites through a link on new submittals; and
• Provide the NC Plant Society and other similar organizations information about Town projects that provide an opportunity for plant rescue.

The amendments are preceded by the Task Force recommendation, which is underlined.  Following that, a brief description of staff’s proposed changes is included in italics.  Additional detail is provided where the recommended text deviates from the recommendation or staff has included additional amendments not directly related to the recommendation.  The proposed ordinance text immediately follows the staff comments.

Fiscal Impact: If implemented, many of the recommendations do involve additional staff time to ensure that they are effectively carried out.  However, some of the recommendations should be easily absorbed by staff within our current plan review process.  The extent of the fiscal impact will not be known until specific ordinance requirements are implemented.

Staff Recommendation: Staff recommends forwarding this set of amendments to the September 25, 2008 Town Council meeting for a public hearing.  By scheduling the public hearing for September 25, staff will be able meet with the Developers Focus Group in August to receive feedback.

Ordinance Amendments

Town of Cary, NC

Item #1

Task Force Recommendation:  Concurred with Council’s recommendation to eliminate the ability to ask to waive the protection of existing vegetation in streetscapes and buffers at time of Planned Development Application (rezoning).

Staff added language to remove the ability of an applicant to request elimination of existing vegetation within required buffers and/or other protected areas as part of an application for a Planned Development District (PDD).  Additional minor corrections were made to increase consistency in number formatting throughout the Section.

4.2.3      PDD: Planned Development Districts

This section sets forth regulations for the two planned development district (PDD) zoning districts. All PDD zoning districts shall be established either as initial zoning at the time of annexation, or through a rezoning pursuant to the procedures and criteria for rezoning to PDD set forth in Section 3.4.3. PDDs are base zoning districts under this Ordinance (rather than overlay districts, which they were under the previous Unified Development Ordinance).

…

(B)         Types of PDD Districts

(1)         Major PDD District

Lands rezoned to the Major PDD district shall be twenty-five (25) acres or more in size.

(2)         Minor PDD District

Lands rezoned to the Minor PDD district shall be at least ten (10) and less than twenty-five (25) acres in size.

…

(D)         General Use and Development Standards for All PDD Districts

…

(3)         Applicable Standards

(a)         Development in a PDD district shall be subject to all applicable overlay district regulations in Chapter 4, all applicable use regulations set forth in Chapter 5, and all applicable general regulations set forth in Chapter 7, unless otherwise waived or modified by the Town in the terms of the approved master land use plan. In case of any conflict between a specific regulation set forth in this Section 4.2.3 and any regulation set forth in Chapters 4, 5, and 7, the regulation in this section shall apply unless otherwise expressly allowed.

(b)         Notwithstanding paragraph (a) above, in no case shall the decision-making body waive or modify the following standards for a proposed PDD zoning district:

1.           Zones 1, 2, and 3 of stream buffers;

2.           Design guidelines;

3.           Adequate public facility ordinance requirements;

4.           Ownership requirements for any open space, buffers, or streetscapes unless otherwise permitted within this Ordinance;

5.           Preservation of existing vegetation in streetscapes, floodplains, and/or buffers;

6.           Street connectivity requirements;

7.           Sidewalk and greenway requirements;

8.           Mixed Use Center requirements (if applicable);

9.           Stormwater control requirements, and

10.         Nitrogen reduction requirements.

…

(7)         Recreational and Open Space Requirements

…

(d)         Timing of Completion of Open Space Requirements

All open space and recreational amenities shall be completed and conveyed before certificates of occupancy may be issued for more than fifty (50) percent of the dwelling units in the planned development or, if the approved master plan divides the development into phases, in that phase of the development of which the amenity is a part.

(e)         Contingency Plan for Reserve Land

Planned developments with seven hundred (700) or more residential units which are required to set aside reserve land for potential purchase by the Town for use as recreation land shall be required to include alternative contingency plans for the reserve land in the event it is not acquired by the Town.

…

Item #2

Task Force Recommendation:  Require that landscaping within buffers and streetscapes be planted on mass-graded sites if significant progress (as defined by the Land Development Ordinance (LDO)) has not been made within six (6) months.

The following amendment revises LDO Section 7.2.3(A) by creating subsection six (6) which requires that perimeter buffers and streetscapes cleared as a part of a grading operation be revegetated according to the approved development plan.  For example, sites approved to be built in phases that desire to initially grade the entire site would be required to re-establish a landscaped streetscape and buffers according to the approved plan in areas of the site reserved for future development.  Additionally, staff has amended Section 7.2.3(D) to create a more opaque “A” type buffer by increasing the height of the evergreen component of the buffer from six (6) feet to 18 feet.

7.2.3      Requirements for Perimeter Buffers and Landscape Areas

              (A)         Applicability

(1)         All uses subject to the requirements of this chapter shall provide an undisturbed buffer to separate that use from adjacent land uses in accordance with Table 7.2-1.  The buffer shall have the width, amount of vegetation, and other features to properly mitigate negative effects of continuous land uses.  Whenever new landscape material must be used, such material shall consist of drought-tolerant plantings to reduce the need for irrigation systems and promote restoration of a natural forest.

(2)         Within the Town Center District and Mixed Use Center Overlay, the requirements of this section shall apply only to boundaries between properties located within the district and properties located outside the district, and not to boundaries between properties that are each located within the Town Center District or Mixed Use Center Overlay.

(3)         If the Town Council or Planning Director determines that an undisturbed buffer does not exist on the site, or has been disturbed as allowed in this section, then a re-vegetated natural buffer may be installed.  The intent of the re-vegetated buffer is to restore the natural area (i.e., sufficient canopy trees to achieve a closed canopy in the future and, preferably, no installation of turf grasses).

(4)         The developer of a site/subdivision development where a majority of the required landscape areas are void of vegetation after the site has been graded, shall be required to install the required landscaping (i.e., streetscapes and buffers) following the completion of grading and installation of erosion control measures for all areas graded.  These areas may include portions of a tract that will not be developed with the initial phase of construction.   Exceptions/extensions may be granted by the Director of Planning if the date for installing of landscaping falls within a non-planting time period or the installed landscape material would be damaged/removed with future construction of the site.

…

(D)         Types of Buffers and Landscaped Areas

              (1)         The three types of landscaped buffers that appear in Table 7.2-1 are as follows.  Detailed illustrations and supplemental information on buffer configurations are available in the Community Appearance Manual.

              (a)         Type A, Opaque

              This perimeter buffer functions as an opaque screen from the ground to a height of at least eighteen (18) feet.  This type of buffer prevents visual contact between uses and creates a strong impression of total separation.  Vegetative material within this buffer should meet the following criteria:

              1.           Existing vegetation or planted upper-story deciduous and evergreen trees shall attain a height at maturity of no less than sixty (60) feet.

2.           Existing vegetation or planted understory evergreen trees shall attain a height at maturity of no less than thirty (30) feet.

              3.           At least fifty (50) percent of the required upper-story trees, and all of the required understory trees and shrubs, shall be evergreen species which are locally adapted to the area.

              4.           Upper-story trees shall be spaced no wider than twenty (20) feet, understory trees shall be spaces no wider than fifteen (15) feet, and evergreen shrubs shall be spaced no wider than five (5) feet between plants.

              5.           The buffer may include a wall, fence, landscaped earthen berm, planted vegetation, existing vegetation, or any appropriate combination of these elements.

6.           Streetscapes required to be planted meeting the planting standard for a Type A opaque buffer shall also incorporate ornamental trees spaced no wider than twenty (20) feet.

[Graphic Stays]

…

Item #3

Task Force Recommendation:  Require the applicant to provide a certified arborist’s recommendation if he/she requests to thin, grade and/or remove existing natural vegetation six inches in caliper or greater from streetscapes/protected buffers.

Staff has added language to Section 7.2.4 to require an evaluation and recommendation by a certified professional prior to approval for thinning in streetscapes with existing vegetation.  In addition, the size of plant material allowed to be removed without triggering the above requirement has been reduced to material less than two inches in caliper.  Minor changes to formatting and nomenclature have also been introduced to increase consistency with the remainder of the Ordinance.  As a related amendment, staff has added language to create a reforestation plan for streetscapes that have been cleared in the course of development.

7.2.4      Streetscape Landscaping

(A)         Preservation of Existing Vegetation Along Roadways

All uses that require site and/or subdivision plan approval shall preserve existing healthy vegetation (as described below) within the streetscape along all existing and proposed streets and thoroughfares.

…

(2)         Non-Residential Development

(a)         Selective thinning may occur to improve the viability of trees within the streetscape  An evaluation of the existing vegetation and recommendation for thinning shall be prepared by a certified arborist or by a certified forester and must be provided in support of any request involving the removal of trees two (2) inches in DBH or larger.  Viable native ornamental species two (2) inches in caliper or larger must be saved.

(b)         An applicant may request an exception to remove a portion of existing trees and undergrowth less than two (2) inches DBH to improve the viability of the remaining trees or to allow for greater visibility of the site, unless this vegetation is needed to meet the minimum planting requirements for a streetscape.  Viable native ornamental species two (2) inches in caliper or larger must be saved.

(c)         All proposals for thinning streetscapes must be justified and approved by the Planning Director, who may require that a portion of existing saplings be left intact to help ensure that the streetscape can function as a natural tree stand into the future.  All requests for thinning shall be accompanied by a more detailed tree survey showing all plant material two (2) inches in caliper or larger that is located within the area of streetscape to be thinned.

(d)         Non-Residential sites containing existing forest vegetation within an area designated as the streetscape that is subsequently removed due to constructed related activity shall be revegetated to partially re-establish a native forest condition meeting the following criteria:

1.           Existing vegetation or planted upper-story deciduous and evergreen trees shall attain a height at maturity of no less than sixty (60) feet.

2.           At least fifty (50) percent of the required upper-story trees, and at least fifty (50) percent of the required shrubs shall be an evergreen species locally adapted to the area.

3.           The re-established forest shall contain rows of upper-story trees with each row spaced at least fifteen (15) feet apart.  The upper-story trees shall be spaced no wider than twenty (20) feet between tree trunks.  The new forest shall also contain native ornamental trees spaced no wider than twenty (20) feet, and the random placement of shrubs equivalent to one (1) shrub for every ten (10) feet of streetscape length.

4.           A re-forested streetscape may include a wall, fence, or landscaped earthen berm, but must also include all required plant material required by this section.

(B)         Installation of Planted Vegetation Along Roadways

The Director may allow the installation and maintenance of a planted streetscape in lieu of preservation of the existing vegetation along any streets which are adjacent to the site upon sound justification related to topography, drainage, site configuration, quality and quantity of existing healthy vegetation, the road construction requirements, or other similar issue.  If a planted streetscape is permitted, then the following requirements shall apply:

…

(C)         Required Width of Streetscapes for all Types of Development

…

(4)         According to Section 7.2.10, Allowable Modifications and Reductions, the Planning Director may allow averaging in the width of residential streetscapes only if the remaining streetscape effectively mitigates the impact of the adjacent roadway (i.e., through the use of walls or berms with a substantially more intensive landscape plan).  Only the Town Council may permit other reductions in buffer or streetscape widths.

...

(D)         Plantings in Streetscape

(1)         The property owner or developer shall preserve existing healthy trees or, if none exist, install or maintain one street tree of at least two (2) inches in caliper for each forty (40) linear feet of streetscape.  One understory ornamental tree of at least two (2) inches in caliper for every twenty (20) linear feet is also required.

(2)         Shrubs and other types of vegetation shall be planted to meet the performance requirements of the streetscape.

[Graphic Stays]

(3)         The planting throughout the streetscape should be designed to achieve a natural tree stand area in future years.

              ...

              (E)         Tree Placement

Trees shall be installed on the thoroughfare side of any berm or screen planting, and no less than five (5) feet from the sidewalk, or from back of curb where no sidewalk exists or is planned within the thoroughfare right-of-way.  Trees should be installed in a staggered fashion, or in clusters or groupings of large and/or small trees in combination with associated plantings.  Trees may be planted in a linear arrangement parallel to the street, depending upon the area (e.g., downtown areas, neotraditional developments, etc.).  Street trees shall be placed at least ten (10) feet from light poles and electrical transformers in order to allow these utilities to be safely serviced.

[Graphic Stays]

              (F)         Pervious Area for New Trees

              A minimum of three hundred (300) square feet of pervious ground area per canopy tree shall be provided.  Where possible, smaller individual planting areas should be combined to allow for larger planting areas that contribute to healthier trees.  Any planting area bounded by an impervious surface should be at least ten (10) feet wide.  No canopy tree should be planted closer than five feet to a sidewalk, paved areas, or other impervious surface.

…

              (H)         Planting Criteria for Steep Slopes Adjacent to Rights-of-Way

              Where the right-of-way is bounded by slopes steeper than three to one (3:1) or is otherwise not suitable for the planting of street trees, the following standards shall apply:

              (1)         If natural areas are permitted to be removed and/or graded, the streetscape slope shall be somewhat level (no greater than four to one [4:1]) planting strip for street trees at least ten (10) feet wide, located parallel to both sides of the thoroughfare.  The planting strip shall be positively drained throughout.  Street trees required by this section may only be located closer than five (5) feet to the curb or sidewalk on certain streets, such as those found in neo-traditional developments, or when trees which do not exceed twenty-five (25) feet in height at maturity are used, but in no case shall they be closer than two and one-half (2 1/2) feet.  Plantings may be located in the right-of-way only with the prior approval of the authority or agency that controls the right-of-way (e.g., Town of Cary, Department of Transportation, or other agency).

              (2)         Existing significant vegetation within thirty (30) feet of and extending to the right-of-way may be used to satisfy the requirements of this section, provided that:

              …

Item #4

Task Force Recommendation:  Amend the Land Development Ordinance related to Champion Trees as follows:

• Require the “Tree Protection Zone Keep-Out” signs on tree protection fencing to be in both English and Spanish
• Require tree protection fencing to be set back 1.25 feet from the protected tree for each inch of caliper instead of one (1) foot
• Require all replacement trees for Champion Tree removal to be native species and be no closer than thirty (30) feet to another tree.  Presently, the spacing of trees is not clearly addressed in the LDO.  If the applicant can not place all the replacement trees on site, the he or she can locate them off-site in a permanently preserved area (stream buffer, flood plain, etc.) or make a payment-in-lieu thereof to the Town’s Tree Fund.
• Propose an initial fine of $1,000 for any unauthorized disturbance within the boundaries of the tree protection areas.  This would be in addition to the fines that already exist for the removal or damage of vegetation within the protected area.

The following amendment revises portions of LDO Section 7.2.5 to provide a fine for unauthorized disturbance of tree protection areas, require signage to be in Spanish as well as English on tree protection fencing and to establish a minimum spacing for replacement trees required for Champion Trees that have been removed.  Minor changes have been included to increase consistency in nomenclature and numbering.

7.2.5      Tree Surveys, Protection, and Replacement

              …

(B)         Tree Protection During Construction

(1)         Owner’s Responsibility

During development of the property, the owner shall be responsible for the erection of any and all barriers necessary to protect any existing or installed vegetation from damage both during and after construction.  Any unauthorized disturbance within the boundaries of the tree protection areas shall result in a fine as identified in Section 7.2.13(C)(1)(a) in addition to any other fines and replanting requirements for the removal or damage of vegetation within the protected tree protection areas.

(2)         Tree Protection Fencing

(a)         Where Required

All existing trees and vegetation that is to be preserved, including buffers, shall be completely enclosed with a sturdy and visible fence before grading begins.  Fencing shall be required around champion trees and shall extend as far as practical; according to a rule of at least one and one quarter (1.25) feet distance from the tree for each inch of caliper, but in no case closer than six (6) feet to the trunk.  Fencing of areas adjacent to existing and proposed roadways also is required.  Fencing is required on all Town and Department of Transportation road projects that are adjacent to protected streetscapes or buffers.  The applicant and staff should consider existing site conditions in determining the exact location of any tree protection fencing.

…

(c)         Signage

Signs shall be installed on the tree protection fence visible on all sides of the fenced-in area (minimum one (1) on each side and/or every three hundred (300) linear feet).  The size of each sign must be a minimum of two (2) feet by two (2) feet and shall contain the following language in English and Spanish: "TREE PROTECTION ZONE, KEEP OUT."

…

(D)         Replacement of Champion Trees

(1)         When a champion tree is removed from a site during construction, or dies within one (1) year following construction, the applicant or developer shall replace such tree with a tree of native species planted at least thirty (30) feet from any other tree according to the following schedule and requirements:

Item #5

Task Force Recommendation:  Amend the Land Development Ordinance to require one shade tree per seven parking spaces.  This standard is being successfully used in several other jurisdictions in the nation (Athens/Clark County and Decatur, Georgia and Louisville, Kentucky).  This requirement would significantly increase the number of shade trees to be installed within parking lot areas when compared to our current requirement.

Staff has revised the parking lot tree requirement to relate to the number of spaces rather than the spacing of the spaces.  This change results in approximately 30% more trees than would be required under the current ordinance.  Language was also introduced to clarify the requirement for vehicular use screening to be maintained as a continuous evergreen hedge.  The frontage requirement to be screened has been increased from 75% to 100% of the vehicular use area.

7.2.6      Vehicular Use Area Landscaping

(A)         Landscaping Requirements in Parking Areas and Vehicular Use Areas

All vehicular use areas shall contain at least one upper-story tree for every seven parking spaces required..  If overhead utility lines are present and would impair the growth of an upper-story tree, two understory trees 15 and 25 feet in height at maturity may be used instead of one upper-story tree..  All vehicular use areas used for parking shall be screened from the view of adjacent properties and streets by evergreen plantings that will attain a height of three feet within three years of planting.  The use of shrubs and ground covers is greatly encouraged in parking area islands and along the borders of parking areas.

(C)         Design Standards

The design of the vehicular use area with landscaped areas, and the selection of plant materials, shall conform to the following standards:

(1)         Install one upper-story tree for every seven parking spaces as required (see paragraph (A) above).

(2)         Trees shall be selected for their appropriateness based on site conditions from the Plant Materials List in the Community Appearance Manual.

(3)         All upper-story trees shall not be planted any farther than ten feet, nor any closer than five feet, to the edge of the parking area pavement of curb.

(4)         A parking lots consisting of fewer than ten spaces may incorporate the required upper-story trees around its perimeter.

(5)         Only upper-story trees shall be used for perimeter planting areas and interior parking area islands.  For auto sales and rental lots understory trees may be used.

(6)         All trees shall be evenly distributed throughout the parking areas and parking perimeter at the required ratio.

(7)         No more than 14 continuous parking spaces shall be allowed without a minimum of one landscape island containing an upper-story tree.

(8)         The size of parking area landscape islands and upper-story tree placement shall be as specified in the Community Appearance Manual.

(9)         All planting medians and/or islands in vehicular use areas shall be at least ten feet long by ten feet wide from back of curb to back of curb, with a minimum of 300 square feet of space per upper-story tree where these trees are proposed consistent with 7.2.4(E) above.  This dimension must be measured from the back of the curbs.  Linear planting strips between the lengths of parking isles are strongly encouraged rather than numerous small one tree islands. 

(10)       A minimum ten-foot wide continuous planted median shall be installed in off-street parking areas approximately every 130 linear feet in one direction for vehicular surface areas exceeding 40,000 square feet.  Other design options may be approved provided that the intent of "breaking up" large areas of parking is met.  Saving existing interior trees may be credited toward this requirement.  This requirement does not apply to vehicular display lots, vehicular rental lots and other similar lots.

(11)       The size of the planting area and size of plant material at maturity shall allow for a two and one-half foot bumper overhang from the face back of the curb.  Barriers, such as curbs or wheel stops, must be provided between vehicular use areas and landscaped areas.

(12)       All sidewalks shall be at least five feet from the trunks of large trees, unless otherwise approved by the Planning Director.  For example, when the placement of the sidewalk would require the removal of an existing large tree to meet this requirement or where there is not enough space on the site to accommodate both the tree and the sidewalk, this requirement may be modified.

(13)       Parking lots shall be graded so that landscape islands do not impound water, unless surface impoundment is required as a method of on-site retention of stormwater.  Landscape islands should be composed of well-prepared structured soil and thoroughly cultivated and amended so as to support healthy plant growth.

(14)       Preservation of existing groups, stands, or groves of trees, as well as isolated islands with single trees, is strongly encouraged (see Section 7.2.10,  Allowable Modifications and Reductions).

(15)       Upper-story trees shall be at least 2 inches in caliper when installed.

(16)       Evergreen shrubs shall be at least two (2) feet in height and minimum three-gallon container size at the time of installation.

(17)       The standards for all plants in vehicular use areas shall conform to the American Standard for Nursery Stock published by the American Association of Nurserymen for that type of tree or shrub at the time of installation.  (The selection and planting of trees and shrubs shall conform to the standards set forth in this publication or the Town's Community Appearance Manual, whichever is stricter).

(18)       Adequate drainage, mulching, and irrigation shall be provided for landscape medians and islands.  If automatic underground irrigation systems are permitted, moisture sensor regulators, soil moisture sensors, or drip irrigation shall be used.

(19)       The property owner or developer shall provide for continuous maintenance of the landscaped areas after occupancy of the building.  The property owner shall ensure that performance criteria within this Ordinance and/or included on the approved site and/or subdivision plan are met.  Failure to correct deficiencies in a timely manner shall result in a citation for violation of this Ordinance in accordance with Chapter 11.

(D)         Screening Vehicular Use Areas

              Where there is a vehicular use area between the thoroughfare and a permanent non-residential building, an opaque screen or barrier shall be provided between the right-of-way and the vehicular use area. The screen or barrier may consist of plants, earthen berms, fences, walls, or any combination thereof, which meet the following requirements:

              (1)         The screen shall be continuous, occupying the full length of the vehicular use area, except for sidewalks and driveways that cut through the screen to connect the vehicular use area to streets and other properties.  Shrubs shall be at least two (2) feet in height above finished grade, and healthy at the time of installation. Vehicular use are screening shrubs shall be maintained so as to permit the shrubs to form a continuous evergreen screen.

…

Item #6

Task Force Recommendations: 

1)           Consider requirements for warm season grasses instead of cool season grasses within the common areas of projects. 

2)           Require that no one tree species make up more than 30% of the total number of planted trees/shrubs on the site.  This requirement minimizes the risks of losing a majority of the trees planted on site due to disease associated with a single tree species. 

3)           Require the soil to be prepared and amended prior to planting trees on site.  In addition, require a certified arborist, independent test lab, or similar specialist to attest that all trees were planted in accordance with the required town specifications. 

4)           Require re-foresting portions of a site that have been graded but are unbuildable due to topography or other reasons. This typically includes graded slopes that are necessary for road widening, and the installation of parking and or building areas.  These areas would be re-forested with a mixture of native pine trees.  In the long term, this requirement will lead to replacement of forest lost due to construction.  In addition, require re-foresting for all town road-widening and other public projects provided it does not affect sight distance requirements or conflict with other public safety standards.  The Town should try to require the re-foresting on State road-widening projects as well.

Staff has added several new subsections to specifically address the above recommendations.  Staff changed the percentage suggested in the second recommendation to actually require more variety (25%) than originally suggested, but built in a possibility for a waiver from this requirement for smaller sites.  The soil amendment change applies to all development except single-family lots.

7.2.9      Miscellaneous Landscaping Requirements

…

(D)         Irrigation

(1)         The use of irrigation systems and lawn turf is generally discouraged, but may be permitted if connected to a private well, other private water source, or public reclaimed water system.

(2)         If automatic irrigation systems are permitted, moisture sensor regulators, soil moisture sensors, or drip irrigation shall be used.

(3)         Irrigation systems may connect to the main water connection for the building unless otherwise restricted through other Town ordinances or policies.

(4)         The above provisions shall also apply to all landscape areas required in parking and vehicular use areas per Section 7.2.6.

(E)         Design Standards for Berms

All berms used in a perimeter buffer (or in a streetscape) shall meet the following design standards:

(1)         The slope of all berms shall not exceed a two to one (2:1) ratio (horizontal to vertical), shall have a top width at least one-half (1/2) the berm height, and a maximum height of four (4) feet above the toe of the berm.  The Planning Director shall approve all berms.  (Berms proposed to be greater than four (4) feet in height may be permitted if deemed appropriate by the Director.)

…

(5)         Berms proposed to satisfy the buffer requirements specified in subsection 7.2.3 shall be vegetated as required by this section. Berms must be stabilized with ground cover to prevent erosion and sedimentation.  Use of berms as a substitute for existing healthy vegetation is strongly discouraged.  However, if berms are allowed to replace existing vegetation that already meets the standards contained in this section, then they must also meet the buffer standards and must be approved by the Planning Director.

…

(H)         Additional Requirement for Clear-Cut Sites or Sites with Removed Vegetation in Required Vegetation Protection Areas

Larger trees up to four (4) inches in caliper and/or up to double the amount of the required number of trees and shrubs may be required by the Planning Director if the site and/or the required vegetation protection areas specified in this Ordinance were clear cut within five (5) years prior to submittal of a site and/or subdivision plan.

(I)           All common area and similar areas used as general unspecified open space shall be stabilized using warm season grasses.

(J)          Variety of Plant Species Required

No single species of tree or shrub shall constitute more than twenty-five (25) percent of the plant material of its type installed on a single development site.  This restriction may be modified by the Planning Director on sites smaller than 2 acres in size provided that an acceptable variety of plant material is proposed.

(K)         Soil Amendments Required

Soil amendments shall be specified and used to improve the quality of soil used as planting media for trees, shrubs, and other plant material.  This requirement applies to all development except for residential single-family lots.  Common areas of subdivisions and townhouse developments are subject to the requirements of this section.

(1)         A registered Landscape Architect shall provide a recommended soil amendment schedule based on the existing soils found on-site and the type of plant material proposed.  This schedule shall be included as part of the required landscape plan submitted as part of a site and/or subdivision plan.

(2)         Prior to the issuance of a Certificate of Occupancy, a certified statement shall be provided to the Cary Site Inspector attesting to the fact that the soil amendment schedule was followed as specified in the approved site and/or subdivision plan.  This statement shall be certified by a registered landscape architect, certified arborist, or other specialist as determined acceptable by the Planning Director.

(L)         Reforestation of Cut and Fill Slopes

Where portions of a site have been graded due to topography or other reasons, but are not buildable area, including both cut and fill slopes associated with road and/or parking lot construction and other similar areas, the development plan should contain a reforestation plan prepared by a landscape architect, certified arborist, registered forester, or other professional specialist as determined acceptable by the Planning Director.  The reforestation plan shall conform to the following standards:

(1)         Loblolly pine (Pinus taeda) seedlings shall be installed on a staggered grid with a spacing of ten (10) feet within a row and fifteen (15) feet between rows.

(2)         Alternate tree species or planting arrangements may be approved by the Planning Director in response to site-specific characteristics that dictate such a change.

(3)         The plantings required by this subsection shall not be subject to the requirements of subsections (J) and (K) above.

Item #7

Focus Group Recommendations: 

1)           Whenever, planted trees need to be replaced on site due to death or poor health, require documentation that the required landscape maintenance plan is in place and has been implemented.  If the maintenance plan is not in place, then one must be implemented in order to completely resolve the site plan violation.

2)           Propose an initial fine of $1,000 for any unauthorized disturbance within the boundaries of the tree protection areas.  This would be in addition to the fines that already exist for the removal or damage of vegetation within the protected area.

Staff has added language requiring that a landscape maintenance plan be established or reviewed and revised in response to a violation stemming from poor maintenance practices or lack of maintenance in relation to plant material located on a site.  In addition, documentation must be provided to support the implementation of the required landscape maintenance plan in order to fully remedy the violation.  A $1000 fine has been established for any disturbance of required tree protection areas.

7.2.13    Maintenance Responsibility, Replacement of Damaged Vegetation, and Associated Fines

              (A)         Maintenance Responsibility

              The owners of the property and their agents, heirs, or assigns shall be responsible for the installation, preservation, and maintenance of all planting and physical features (installed or vegetated natural areas) required under this section, Section 4.4.4, Thoroughfare Overlay, Section 4.4.6, Watershed Protection Overlay, or Section 7.2.14. Damage to these areas shall result in revegetation requirements and fines (see paragraphs (B), (C) and (D) below) or other penalties as required under this Ordinance.

              …

              (2)         In the event that any vegetation or physical element functioning to meet the standards of this Ordinance is severely damaged due to an unusual weather occurrence or natural catastrophe, or other natural occurrence such as damage by wild or domestic animals, the owner may be required to replant if the buffer standards are not being met.  The owner shall have one (1) growing season to replace or replant after reconstruction is complete.  The Planning Director shall consider the type and location of the landscape buffer or required vegetation area as well as the propensity for natural revegetation in making a determination on the extent of replanting requirements.

              (3)         Any appeals of the Planning Director's decision relating to the amount of required revegetation shall be made to the Town Council within ten (10) days following the notice of decision, and the Town Council shall consider reduction requests at the next available regular meeting.

              …

              (5)         The owner should take actions to protect trees and landscaping from unnecessary damage during all facility and site maintenance operations.  Plants must be maintained in a way that does not obstruct sight distances at roadway and drive intersections, obstruct traffic signs or devices, and/or interfere with the use of sidewalks or pedestrian trails (see Community Appearance Manual).  Viable plants, whether located within undisturbed buffers, vegetation protection areas, or within planted areas (required by the site and/or subdivision plan) shall not be removed, damaged, cut or severely pruned so that their natural form is impaired (shrubs within existing vehicle use areas, streetscapes, and street fronts may be pruned, but must maintain at least three (3) feet in height).

              …

              (B)         Replacement of Disturbed and Damaged Vegetation

              The disturbance or damage of vegetation within any required buffers, streetscapes, vehicular use areas, or other landscape areas required by this Ordinance, or by zoning condition, shall constitute a violation of this Ordinance.

              (1)         The natural death of existing vegetation within any required landscape area does not constitute a violation and would not require revegetation to replace the plant material unless the required landscape area no longer achieves the required performance standards of this Ordinance.

              (2)         All disturbed or damaged landscaped areas and natural vegetation shall be replanted so as to meet the standards of this Ordinance, as well as the approved site and/or subdivision plans, if applicable.  A replacement planting plan shall be submitted for review and approval by the Town prior to replacement. This plan will ensure proper replacements are made.

              (3)         In situations where existing required vegetation on a developed site or vacant site with an approved site and/or subdivision plan has been removed or damaged in violation of this Ordinance, the Planning Director may require that the entire site be reviewed and revegetated consistent with the current provisions of this Ordinance, in addition to any applicable fines.

(4)         In situations where existing vegetation is in poor health or has died as a result of neglect or of poor maintenance practices, a landscape maintenance plan shall be provided for the site in accordance with subsection (E) below in order to remedy the violation.  In cases where there is an existing landscape maintenance plan, such plan shall be reviewed and modified as necessary to address specific issues that may have created the violation.  In addition, the responsible party shall provide such documentation as is available (i.e. invoices, contracts, etc.) to provide proof that the landscape maintenance plan shall be implemented in the future.

(C)         Fines and Replacement of Existing, Original, or Installed Vegetation

Where the vegetation that has been disturbed or damaged existed on the site prior to the time of approval of a Tree Clearing Certificate, or the time a site and/or subdivision plan was approved or was installed at a later date, the owner shall be fined and shall replace the disturbed or damaged vegetation in accordance with the standards set forth as listed below or as required in other parts of this Ordinance, taking into account any unique site conditions and significant vegetation remaining within the landscaped area.  Perimeter buffers within private property boundaries shall be planted and/or installed to a Type "B" buffer standard.  This section shall also apply to all Urban Transition Buffers, required vegetation protection areas, and vacant, undeveloped properties that due to zoning conditions and/or requirements of this Ordinance have protective vegetated areas (including but not limited to vegetation in the Thoroughfare Corridor Buffer).

(1)         Where the size (caliper, height, spread) and quantity of damaged vegetation can be documented, an equal amount of new vegetation ("inch for inch") shall be used to quantify the replacement vegetation.  Replacement vegetation shall meet or exceed the current requirements of this section.  Fines and replacement shall consist of item (a) and any combination of the measures listed in paragraphs (b) and (c).

(a)         An initial fine of $1,000 shall be imposed for any unauthorized disturbance within the boundaries of the tree protection areas.  In addition to the initial fine, a base fine of between $2.00 and $4.00 for every square foot area used by the damaged vegetation within any areas required to be protected under this Ordinance, including but not limited to: vegetation protection areas, Urban Transition Buffer zones on undeveloped sites, buffers, streetscapes, vehicular use areas, and other landscape areas on developed sites.  The base fine shall not exceed a total of $40,000.00 per site. In determining the amount of the fine, the Planning Director shall consider the degree and extent of harm caused by the violation, the cost of rectifying the damage, and whether the violation was committed willfully.  Payment of fines shall be made to the Town at a time deemed appropriate by the Planning Director.

              …

              (2)         Inch for Inch Replacement

              Any tree with a dbh of at least six (6) inches that is damaged or removed shall be replaced with one (1) or more trees that have a caliper of at least two (2) inches and a cumulative dbh equal to or greater than the original tree.

(3)         Area Replacement

              For all other cases where existing vegetation is damaged or removed, the type and amount of replacement vegetation required shall be of the type and amount that is necessary to provide the type of landscaped or natural buffer required under this section or interior save area (outside of perimeter buffers) identified on the landscape plan or as required by this Ordinance.  This shall require one or more of the following for each two thousand (2,000) square feet of disturbed area (if area is less than two thousand (2,000) square feet, then a revegetation plan that meets the general intent of the requirements below may be approved by the Planning Director):

              (a)         Two (2) canopy trees of at least two (2) inches caliper and approximately eight (8) feet tall;

              (b)         Two (2) native ornamental trees of at least one and one-half (1 ½) inches caliper and at least seven (7) feet high above ground level at the time of installation;

              (c)         Two (2) evergreen trees of at least two (2) inches caliper and at least eight (8) feet high above ground level at the time of installation;

              (d)         Seven (7) evergreen shrubs of at least eighteen (18) inches in height at the time of installation (typically three (3) gallon-container size);

              (e)         Eight (8) deciduous shrubs of at least eighteen (18) inches in height and three (3) gallon container size at the time of installation;

              (f)          On slopes equal to or greater than a ratio of two and one-half to one (2.5:1), twenty-two (22) ground cover plants with a container size of one (1) gallon at the time of installation.

              The specific quantities of plants listed above may be adjusted by the Planning Director in order to meet the standards for the required buffer type based on location, topography and other site features.

              …

(D)         Fines and Replacement for Severe or Excessive Pruning of Required Plant Material.  When plant material is deemed to have been severely or excessively pruned:

(1)         The first time a violation is cited, the plants will be evaluated to determine the extent of the damage.  In addition, the site will be reviewed to determine if it meets the approved site plan requirements.  A recommendation will be made by the planning staff to either replace the damaged plant material or supplement the plant material on the site.

(2)         If a second violation is cited, the property owner will be assessed a $1,000 fine and shall replace any severely or excessively pruned plant material on a developed site using the "inch for inch" or "area replacement" standards.

(3)         If any additional violations are cited, a base fine of $5,000 will be assessed in addition to $100 per tree for any tree severely or excessively pruned.  The property owner will also be responsible for the replacement of plant material using the "inch for Inch" or "area replacement" standards.

              …

Item #8

Task Force Recommendations:

a.               Require infrastructure only grading plans for all property zoned for low density single-family residential developments (densities between 1 and 3 units per acre and very low density-below 1 unit per acre).

 

b.               Permit the grading of lots for low density single-family lots and very low density (below 1 unit per acre) only at the time of building permit.

 

c.               Provide exceptions to grade small percentage of lots prior to building permit to address problematic drainage issues and/or severe topographic issues.  Staff will develop criteria for this exception provision as part of the associated ordinance amendment.

d.               Limit phased-grading to no more than 25 acres for medium density residential development projects.  Each phased-grading area must be stabilized with seeding prior to grading additional area.

Staff has added additional restrictions to Section 7.4.3 to restrict mass grading on residential development sites.  Sites providing medium-density development are restricted to grading no more than 25 acres per phase.

7.4.3      General Erosion and Sedimentation Control Standards

All persons conducting land-disturbing activities shall take all reasonable measures to protect all public and private property from damage by such activities. Any and all state and/or federal standards apply and must be met. In situations where state and/or federal rules conflict with the provisions of this section, the more restrictive shall apply. All land-disturbing activities, except for those exempted by Section 3.13.1 of this Ordinance, shall meet the following standards:

(A)         Conveyance Channels

…

(G)         Limits on Single Family Lot Grading

Grading and Erosion Control Plans submitted as part of a site/subdivision plan associated with residential development which has a gross density of three (3) units per acres or less are limited to clearing and disturbing only the land area required to install the infrastructure to serve the development (e.g., sewer and water lines, roads, storm water devices, greenways and similar infrastructure).  Until the time a building permit is issued for the lot, each single family lot associated with these types of developments must remain undisturbed with the exception of the portion of a lot impacted by the installation of infrastructure.  Additional exceptions to grade a small percentage of single family lots may be granted by the Director of Engineering provided there is sufficient justification (problematic drainage issues and/or severe topographic issues).

(H)         Limit on Grading Area for Medium Density Residential Developments

Grading and Erosion Control Plans submitted as part of a site/subdivision plan associated with residential development which has a gross density of three and one one-hundredth (3.01) to eight (8) units per acre shall not grade more than twenty-five (25) acres per phase.  The twenty-five (25) acres must be stabilized with seeding that meets the requirements of this ordinance prior to grading additional area.

(I)           Installation of Required Landscape After Grading

See Section 7.2.3, Requirements for Perimeter Buffers and Landscape Areas, for the specific requirements.

(J)          Compliance with Town Manual

In addition to the standards set forth in this section, all soil erosion and sedimentation control measures shall conform to the applicable minimum standards set forth in the Town's Standard Specifications and Details Manual.

…

Item #9

Task Force Recommendation:

Slab-on-Grade Construction:
The Task Force made the following final recommendations on slab-on-grade construction (majority recommendation – several members opposed):

 

• Require two steps at the entrance of slab-on-grade construction and masonry material along the rest of the building’s foundation.  On slab constructed houses, require the height of each step to have no less than a six-inch rise at the building entrance.

• Exempt age-restricted housing (senior housing) from the two step requirement; however, require the remainder of the foundation excluding the main entrance of homes to have at least three courses of brick exposed.

• Limit these specific requirements of slab-on-grade construction to low and medium density single-family detached buildings (1 to 8 units per acre).

The following amendment revises LDO Chapter 8.5, Single-Family Residential Design Guidelines, by creating a new subsection three (3) providing for slab-on-grade construction.

8.5.3      Slab-on-Grade Construction

(A)         Purpose

The purpose of these standards is to maintain the architectural and aesthetic appeal of the dwelling unit or the residential neighborhood.

(B)         Applicability

After XXX XX, 2008, the Inspections and Permits Department shall not, except as otherwise provided in Subsection (B)(1), issue any building permits for any low or medium density dwelling units (densities between one (1) and eight (8) dwelling units per acre) if the plans and specifications for the dwelling unit do not meet the design minimums specified in Section 8.5.3(C).

(1)         These standards apply to all low and medium density single-family detached dwelling units with densities between one (1) and  eight (8) dwelling units per acre unless exempted as follows:

(a)         A building permit was issued, or an application for building permit was submitted, prior to the effective date depicted in 8.5.3(B), above.

(b)         The dwelling unit is located within an approved single-family development and platted prior to the effective date depicted in 8.5.3(B), above.

(C)         Standards

(1)         All single-family detached houses using slab-on-grade construction shall incorporate into the design, a minimum of two steps at the dwelling unit entrance consisting of no less than a six (6) inch rise at the dwelling’s entrance.  In addition, slabs shall be covered with brick, stone or other masonry material along the remainder of the dwelling unit foundation with at least three (3) courses exposed. 

(2)         Dwelling units constructed as part of a registered age-restricted community shall be exempt from the Section 8.5.3(B)(1), above, however shall be required to incorporate the remainder of the slab foundation, excluding the main entrance to the home, with a minimum three (3) courses of brick, stone or other masonry material exposed.

(D)         Appeal Process

If a building permit is denied based on the failure of a dwelling unit to meet the design minimums set forth in this Section, the aggrieved owner may appeal to the Director of Inspections and Permits.

Other Proposed Amendments

Item #10

An amendment to LDO Section 3.9.3(E), Subdivisions of Land, is proposed creating an exemption form subdivision regulations to allow a single-family lot, in a subdivision previously approved, to be subdivided to create a new lot.

3.9.3      Subdivisions of Land

              (E)         Subdivisions Creating One Additional Lot or Gift Lots

              (1)         Purpose and Intent

This Section allows a one-time subdivision of one additional lot that is exempted from certain roadway, sidewalk, and landscape standards.  This Section also allows the creation of more than one additional lot to be exempt from those standards provided the newly created lot is: (1) located in a previously approved subdivision containing four or more lots; and (2) conveyed by deed or gift to a member of the applicant's immediate family and no consideration is paid for such gift.  The intention of this provision is to ensure that: (1) future development of property in accordance with the Comprehensive Plan is not restricted; (2) to provide lots that are adjacent to public roadways so that public services and utilities may be provided effectively in the future; and (3) to limit the number of lots that are exempted from certain subdivision standards.

(3)         Required Conditions for Creation of One Additional Lot

(a)         An exemption from the roadway, sidewalk, and landscape standards of Chapter 8 is allowed for the creation of one (1) additional lot provided that the following conditions are met:

1.           The lot must meet the minimum lot width for the respective zoning district along an adjacent existing public roadway;

2.           If public utilities are not required, a note must be placed on the plat that states: "The approval for recording of this plat does not ensure that the properties shown hereon are developable and can be served by either Town water and sewer or private well and septic systems.  It is the responsibility of the property owner(s) to obtain approval from the applicable governing entity for any well and septic permits."

3.           If the building developed on the lot(s) is not clearly visible from the public street, then the address must be noted and clearly visible at the public street;

4.           The pattern of lots created does not lead to further subdivision of land that will be in violation of the subdivision requirements or deny future public roadway access to the parent parcel (i.e., does not leave property landlocked or undevelopable); and

5.           Right(s)-of-way must be dedicated for the entire road frontage of the newly created lot(s).

6.           The new lot is created from an existing lot that was previously approved as a part of a subdivision containing four or more lots that met the requirements of Chapter 8.  A payment-in-lieu of dedicating public recreation land shall be made in accordance with the requirements of Chapter 8.1.2.

Item #11

An amendment to LDO Chapter 12, Rules of Construction, Use Classifications, and Definitions, is proposed to clarify various tree definitions that presently are not used consistently throughout the Land Development Ordinance.

Chapter 12:  RULES OF CONSTRUCTION, USE CLASSIFICATIONS, AND DEFINITIONS

DIAMETER AT BREAST HEIGHT (DBH)

The measurement of the diameter of a tree trunk taken at a height of four and one-half (4.5) feet above the ground.

LOT

A portion of a subdivision established by some legal instrument, such as a recorded deed or plat, and which is recognized as a separate legal entity for purposes of transferring title.

PARCEL

A piece of property that has not been approved as a portion of a subdivision of land.

SUBDIVISION

All divisions of a tract or parcel of land into two or more lots, building sites, or other divisions for the purpose of sale or building development (whether immediate or future), including all divisions of land involving the dedication of a new street or a change in existing streets; excluding lots approved as part of a subdivision the following are not considered to be subdivisions:

·        The combination or recombination of portions of previously subdivided and recorded lots where the total number of lots is not increased and the resultant lots are equal to or exceed the standards set forth in this Ordinance;

·        The division of land into parcels larger than ten acres where no street right-of-way dedication is involved;

·        The public purchase of strips of land for the widening or opening of streets; and

·        The division of a tract of land in single ownership whose entire area is no greater than two acres into three or fewer lots, where no street right-of-way dedication is involved and where the resulting lots are equal to or exceed the standards set forth in this Ordinance.

TREE, ORNAMENTAL

Woody Plants that are two (2) inches in caliper or larger and one of the following species and other native specimens as specified in the Appearance Specifications Manual, such as Amelanchier, Ostrya, Halesia, Viburnum, Chionanthus, Ilex, Myrica, Flowering Dogwood-Cornus Florida, American Holly-Ilex Opaca, Eastern Redbud-Cercis Canadensis, and Ironwood-Carpinus Caroliniana.

TREE, CANOPY

Where the term “Canopy Tree” is used throughout the LDO it shall be substituted with “Upper-story Tree.”

TREE, LARGE

See “UPPER-STORY TREE”.  **Where the term “Large Tree” is used throughout the LDO it shall be substituted with “Upper-story Tree.”

TREE, UPPER-STORY

A tree with a canopy that covers at least sixteen hundred (1,600) square feet at maturity under urban conditions, with a crown diameter of at least forty (40) feet and a height at maturity of sixty (60) feet.

TREE, SMALL

See “UNDERSTORY TREE”. **Where the term “Small Tree” is used throughout the LDO it shall be substituted with “Understory Tree”.

TREE, UNDERSTORY

A tree with a canopy that covers at least four hundred (400) square feet at maturity but less than nine hundred (900) square feet under urban conditions, with a crown diameter of at least twenty-five (25) feet and a height at maturity of at least .

TREE, NATIVE

A tree species that naturally occurs within Wake County or the Piedmont area of North Carolina in which the Town of Cary is located.

STREET TREES

See “UPPER-STORY TREE”  **Where the term “Street Tree” is used throughout the LDO it shall be substituted with “Upper-story Tree.”

TRACT

All contiguous land and bodies of water under single ownership, or contiguous land and bodies of water in diverse ownership, that is or has been developed as a unit, although not necessarily all at one time.  A tract may consist of one or more parcels.