(a)   Authority, purpose, objectives, findings.

(1)   Authority: This section is adopted pursuant to Part 6, Article 21 of Chapter 143; Article 6 of Chapter 153A; Article 8 of Chapter 160A; and Article 7, 9, and 11 of Chapter 160D of the North Carolina General Statutes.

(2)   Purpose: It is the purpose of this section to promote public health, safety, and general welfare and to minimize public and private losses due to flood conditions within flood prone areas by provisions designed to:

a.   Restrict or prohibit uses that are dangerous to health, safety, and property due to water or erosion hazards or that result in damaging increases in erosion, flood heights, or velocities;

b.   Require that uses vulnerable to floods, including facilities that serve such uses, be protected against flood damage at the time of initial construction;

c.   Control the alteration of natural floodplains, stream channels, and natural protective barriers, which are involved in the accommodation and restrain of floodwaters;

d.   Control filling, grading, dredging, and all other development that may increase erosion or flood damage; and

e.   Prevent or regulate the construction of flood barriers that will unnaturally divert flood waters or which may increase flood hazards to other lands.

(3)   Objectives: The objectives of this section are to:

a.   Protect human life, safety, and health;

b.   Minimize damage to public facilities and utilities (i.e. water and gas mains, electric, telephone, cable and sewer lines, streets, and bridges) that are located in flood prone areas;

c.   Minimize expenditure of public money for costly flood control projects;

d.   Minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public;

e.   Minimize prolonged business losses and interruptions;

f.   Ensure that potential buyers are aware that property is in a special flood hazard area;

g.   Help maintain a stable tax base by providing for the sound use and development of flood prone areas in such a manner as to minimize future flood damage;

h.   Minimize damage to private and public property due to flooding;

i.   Make flood insurance available to the community through the National Flood Insurance Program; and

j.   Maintain the natural and beneficial functions of floodplains.

k.   Maintain the City's participation in the National Flood Insurance Program.

(4)   Findings:

a.   The flood prone areas within the jurisdiction of the City of Asheville (city) are subject to periodic inundation which results in loss of life, property, health and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures of flood protection and relief, and impairment of the tax base, all of which adversely affect the public health, safety, and general welfare.

b.   These flood losses are caused by the cumulative effect of obstructions in floodplains causing increases in flood heights and velocities and by the occupancy in flood prone areas of uses vulnerable to floods or hazardous to other lands which are inadequately elevated, flood-proofed, or otherwise protected from flood damage.

(b)   General provisions.

(1)   Applicability: This section shall apply to all special flood hazard areas within the city's territorial jurisdiction, including extra-territorial jurisdictions (ETJs), as allowed by law, of the City of Asheville.

(2)   Effect upon outstanding floodplain development permits: Nothing herein contained shall require any change in the plans, construction, size, or designated use of any development or any part thereof for which a floodplain development permit has been granted by the floodplain administrator or his or her authorized agents before the time of passage of this section; provided, however, that when construction is not begun under such outstanding permit within a period of six months subsequent to the date of issuance of the outstanding permit, construction or use shall be in conformity with the provisions of this section.

(3)   Establishing Special flood hazard areas: The special flood hazard areas are those identified under the Cooperating Technical State (CTS) Agreement between the State of North Carolina, FEMA, its Flood Insurance Study (FIS), and its accompanying Digital Flood Insurance Rate Maps (DFIRM), for Buncombe County dated January 6, 2010, or any subsequent FIS for the City of Asheville and associated DFIRM panels, including any digital data developed as part of the FIS, all of which are adopted by reference and declared to be a part of this section, and all revisions thereto.

(4)   Compliance: No structure or land shall hereafter be located, extended, converted, altered, or developed in any way without full compliance with the terms of this section and other applicable regulations.

(5)   Abrogation and greater restrictions: This section is not intended to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions; however, where this section and another conflict or overlap, whichever imposes the more stringent restrictions shall prevail.

(6)   Interpretation: In the interpretation and application of this section, all provisions shall be: (a) considered as minimum requirements; (b) liberally construed in favor of the city; and (c) deemed neither to limit nor repeal any other powers granted under state statutes.

(7)   Warning and disclaimers of liability: The degree of flood protection required by this section is considered reasonable for regulatory purposes and is based on scientific and engineering consideration. Larger floods can and will occur. Actual flood heights may be increased by manmade or natural causes. This section does not imply that land outside the special flood hazard areas or uses permitted within such areas will be free from flooding or flood damages. This section shall not create liability on the part of the city or any officer or employee thereof for any flood damages that result from reliance on this section or any administrative decision lawfully made hereunder.

(c)   Administration.

(1)   Floodplain administrator: The public works director is hereby designated to administer and implement the provisions of this section. Except as specifically stated, any act authorized by this section to be carried out by the floodplain administrator may be carried out by his/her designee.

(2)   Duties and responsibilities of the floodplain administrator: In addition to all other customary and incidental powers of the floodplain administrator as well as the powers and duties that may be conferred by other ordinances of the city and other applicable laws, statutes, rules and regulations, the floodplain administrator shall perform, but not be limited to, the following duties:

a.   Review all floodplain development applications and issue permits for all proposed development within special flood hazard areas to assure that the requirements of this section have been satisfied.

b.   Review all proposed development within special flood hazard areas to assure that all necessary local, state, and federal permits have been received.

c.   Notify adjacent communities and the North Carolina Department of Public Safety, Division of Emergency Management, State Coordinator for the National Flood Insurance Program prior to any alteration or relocation of a watercourse, and submit evidence of such notification to the Federal Emergency Management Agency (FEMA).

d.   Assure that maintenance is provided within the altered or relocated portion of the watercourse as referenced in the preceding paragraph, so that the flood-carrying capacity is maintained.

e.   Prevent encroachments into floodways and non-encroachment areas unless the certification and flood hazard reduction provisions of subsection 7-12-1(e)(5) are met.

f.   Obtain actual elevation (in relation to NAVD 1988) of the reference level (including basement) and all attendant utilities of all new and substantially improved structures, in accordance with subsection 7-12-1(d)(3); and obtain actual elevation (in relation to NAVD 1988) of all public utilities in accordance with the provisions of subsection 7-12-1(d)(3).

g.   Obtain actual elevation (in relation to NAVD 1988) to which all new and substantially improved structures and utilities have been flood-proofed, in accordance with the provisions of subsection 7-12-1(d)(3).

h.   When flood-proofing is utilized for a particular structure, obtain certifications from a registered professional engineer or architect in accordance with the provisions of subsection 7-12-1(d)(3) and subsection 7-12-1(e)(2)b.

i.   Where interpretation is needed as to the exact location of boundaries of the special flood hazard areas, floodways, or non-encroachment areas (for example, where there appears to be a conflict between a mapped boundary and actual field conditions), make the necessary interpretation.

j.   When base flood elevation (BFE) data has not been provided in accordance with subsection 7-12-1(b)(3), obtain, review, and reasonably utilize any BFE data, along with floodway data or non- encroachment area data available from a federal, state, or other source, including data developed pursuant to subsection 7-12-1(e)(3)b.2, in order to administer the provisions of this section.

k.   When base flood elevation (BFE) data is provided but no floodway or non-encroachment area data has been provided in accordance with subsection 7-12-1(b)(3), obtain, review, and reasonably utilize any floodway data or non-encroachment area data available from a federal, state, or other source in order to administer the provisions of this section.

l.   Permanently maintain all records that pertain to the administration of this section and make these records available for public inspection, recognizing that such information may be subject to the Privacy Act of 1974, as amended.

m.   Make on-site inspections of work in progress and make periodic inspections throughout the special flood hazard areas within the jurisdiction of the community; issue stop-work orders, revoke floodplain development permits, serve notice of violations and issue civil penalty assessments.

n.   Maintain a current map repository to include, but not limited to, the FIS Report, FIRM and other official flood maps and studies adopted in accordance with subsection (b)(2), including any revisions thereto, letters of map change, issued by FEMA.

o.   Notify state and FEMA of mapping needs; coordinate revisions to FIS reports and FIRMs, including letters of map revision based on fill (LOMR-F) and letters of map revision (LOMR).

p.   Review, provide input, and make recommendations for variance requests; and apply and enforce any and all provisions of this section.

(d)   Floodplain development application, permit and certification requirements.

(1)   Application requirements: Application for a floodplain development permit shall be made to the floodplain administrator prior to any development activities located within special flood hazard areas. Along with the application, the applicant must submit the following additional information for a floodplain development permit:

a.   A plot plan drawn to scale which shall include, but shall not be limited to, the following specific details of the proposed floodplain development:

(i)   The nature, location, dimensions, and elevations of the area of development/disturbance; existing and proposed structures, utility systems, grading/pavement areas, fill materials, storage areas, drainage facilities, and other development;

(ii)   The boundary of the special flood hazard area as delineated on the FIRM or other flood map as determined in subsection 7-12-1(b)(3), or a statement that the entire lot is within the special flood hazard area;

(iii)   Flood zone(s) designation of the proposed development area as determined on the FIRM or other flood map as determined in subsection 7-12-1(b)(3);

(iv)   The boundary of the floodway(s) or non-encroachment area(s) as determined in subsection 7-12-1(b)(3);

(v)   The base flood elevation (BFE) where provided as set forth in subsection 7-12-1(b)(3); subsection 7-12-2(c)(2); or subsection 7-12-1(e)(3);

(vi)   The old and new location of any watercourse that will be altered or relocated as a result of proposed development;

(vii)   The certification of the plot plan by a registered land surveyor, landscape architect, or professional engineer.

b.   Proposed elevation, and method thereof, of all development within a special flood hazard area including but not limited to:

(i)   Elevation in relation to NAVD 1988 of the proposed reference level (including basement) of all structures;

(ii)   Elevation in relation to NAVD 1988 to which any non-residential structure in zones referenced on the FIRM as AE, A or AO will be flood-proofed; and

(iii)   Elevation in relation to NAVD 1988 to which any proposed utility systems will be elevated or flood-proofed;

c.   If flood-proofing, a flood-proofing certificate (FEMA Form FF-206-FY 22-153) with supporting data and an operational plan that includes, but is not limited to, installation, exercise, and maintenance of flood-proofing measures.

d.   A foundation plan, drawn to scale, which shall include details of the proposed foundation system to ensure all provisions of this section are met. These details include but are not limited to:

(i)   The proposed method of elevation, if applicable (i.e., fill, solid foundation perimeter wall, solid backfilled foundation, open foundation on columns/posts/piers/piles/shear walls);

(ii)   Openings to facilitate automatic equalization of hydrostatic flood forces on walls in accordance with subsection 7-12-1(e)(2)d.3 when solid foundation perimeter walls are used in the zones referenced on the FIRM as A, AO, AE, and A1-30;

e.   Usage details of any enclosed areas below the lowest floor.

f.   Plans and/or details for the protection of public utilities and facilities such as sewer, gas, electrical, and water systems to be located and constructed to minimize flood damage.

g.   Certification that all other local, state and federal permits required prior to floodplain development permit issuance have been received.

h.   Documentation for placement of recreational vehicles and/or temporary structures, when applicable, to ensure that the provisions of subsection 7-12-1(e)(2)f. and g. are met.

i.   A description of proposed watercourse alteration or relocation, when applicable, including an engineering report on the effects of the proposed project on the flood-carrying capacity of the watercourse and the effects to properties located both upstream and downstream; and a map (if not shown on plot plan) showing the location of the proposed watercourse alteration or relocation.

(2)   Permit requirement: A floodplain development permit shall be required in conformance with the provisions of this section prior to the commencement of any development activities within special flood hazard areas. The floodplain development permit shall include, but not be limited to:

a.   A description of the development to be permitted under the floodplain development permit.

b.   The special flood hazard area determination for the proposed development in accordance with available data specified in subsection 7-12-1(b)(3).

c.   The regulatory flood protection elevation required for the reference level and all attendant utilities.

d.   The regulatory flood protection elevation required for the protection of all public utilities.

e.   All certification submittal requirements with timelines.

f.   A statement that no fill material or other development shall encroach into the floodway or non-encroachment area of any watercourse, as applicable.

g.   The flood openings requirements, if in zones A, AO, AE or A1-30 as referenced on the FIRM.

h.   Limitations of below BFE enclosure uses (if applicable). (i.e., parking, building access and limited storage only).

i.   A statement that all materials below the regulatory flood protection elevation must be flood resistant materials.

(3)   Certification requirements:

a.   Elevation certificates.

(i)   An elevation certificate (FEMA Form FF-206-FY 22-152), which includes among other requirements, the highest adjacent grade, the lowest adjacent grade and top of bottom floor, is required prior to the actual start of any new construction. It shall be the duty of the permit holder to submit to the floodplain administrator a certification of the elevation of the reference level, in relation to NAVD 1988. The floodplain administrator shall review the certificate data submitted. Deficiencies detected by such review shall be corrected by the permit holder prior to the beginning of construction. Failure to submit the certification or failure to make required corrections shall be cause to deny a floodplain development permit.

(ii)   A final as-built elevation certificate (FEMA Form FF-206-FY 22-152) is required after construction is completed and prior to certificate of compliance/occupancy issuance. It shall be the duty of the permit holder to submit to the floodplain administrator a certification of final as-built construction of the elevation of the reference level and all attendant utilities. The floodplain administrator shall review the certificate data submitted. Deficiencies detected by such review shall be corrected by the permit holder immediately and prior to certificate of compliance/occupancy issuance. In some instances, another certification may be required to certify corrected as-built construction. Failure to submit the certification or failure to make required corrections shall be cause to withhold the issuance of a certificate of compliance/occupancy.

b.   Flood-proofing certificate. If non-residential flood-proofing is used to meet the regulatory flood protection elevation requirements, a flood-proofing certificate (FEMA Form FF-206-FY 22-153), with supporting data, an operational plan, and an inspection and maintenance plan are required prior to the actual start of any new construction. It shall be the duty of the permit holder to submit to the floodplain administrator a certification of the flood-proofed design elevation of the reference level and all attendant utilities, in relation to NAVD 1988. Flood-proofing certification shall be prepared by or under the direct supervision of a professional engineer or architect and certified by same. The floodplain administrator shall review the certificate data, the operational plan, and the inspection and maintenance plan. Deficiencies detected by such review shall be corrected by the applicant prior to permit approval. Failure to submit the certification or failure to make required corrections shall be cause to deny a floodplain development permit. Failure to construct in accordance with the certified design shall be cause to withhold the issuance of a certificate of compliance/occupancy.

c.   Foundation certificate. If a manufactured home is placed within the zones as referenced on the FIRM as A, AO, AE, or A1-30 and the elevation of the chassis is more than 36 inches in height above grade, an engineered foundation certification is required in accordance with the provisions of subsection 7-12-1 (e)(2)c.2.

d.   Certified report. If a watercourse is to be altered or relocated, a description of the extent of watercourse alteration or relocation, a professional engineer's certified report on the effects of the proposed project on the flood-carrying capacity of the watercourse and the effects to properties located both upstream and downstream, and a map showing the location of the proposed watercourse alteration or relocation shall all be submitted by the permit applicant prior to issuance of a floodplain development permit.

e.   Certification exemptions. The following structures, if located within the zones shown on the FIRM as A, AO, AE or A1-30, are exempt from the elevation/flood-proofing certification requirements specified in items (a) and (b) of this subsection:

(i)   Recreational vehicles meeting requirements of subsection 7-12-1(e)(2)f.1;

(ii)   Temporary structures meeting requirements of subsection 7-12-1(e)(2)g; and

(iii)   Accessory structures less than 150 square feet and meeting requirements of subsection 7-12-1(e)(2)h.

(4)   Determinations for existing buildings and structures: For applications for building permits to improve buildings and structures, including alterations, movement, enlargement, replacement, repair, change of occupancy, additions, rehabilitations, renovations, substantial improvements, repairs of substantial damage, and any other improvement of or work on such buildings and structures, the Floodplain Administrator, in coordination with the Building Official, shall:

a.   Estimate the market value, or require the applicant to obtain an appraisal of the market value prepared by a qualified independent appraiser, of the building or structure before the start of construction of the proposed work; in the case of repair, the market value of the building or structure shall be the market value before the damage occurred and before any repairs are made;

b.   Compare the cost to perform the improvement, the cost to repair a damaged building to its pre-damaged condition, or the combined costs of improvements and repairs, if applicable, to the market value of the building or structure;

c.   Determine and document whether the proposed work constitutes substantial improvement or repair of substantial damage; and

d.   Notify the applicant if it is determined that the work constitutes substantial improvement or repair of substantial damage and that compliance with the flood resistant construction requirements of the NC Building Code and this ordinance is required.

(e)   Flood hazard reduction.

(1)   General standards: In all special flood hazard areas, the following shall apply:

a.   All new construction and substantial improvements shall be designed (or modified) and adequately anchored to prevent flotation, collapse, and lateral movement of the structure.

b.   All new construction and substantial improvements shall be constructed with materials and utility equipment resistant to flood damage in accordance with the FEMA Technical Bulletin 2, Flood Damage-Resistant Materials Requirements.

c.   All new construction and substantial improvements shall be constructed by methods and practices that minimize flood damages.

d.   All new electrical, heating, ventilation, plumbing, air conditioning equipment, duct systems, and other building utility systems, equipment, and service facilities shall be located at or above the RFPE and/or specially designed to prevent water from entering or accumulating within the components and installed to resist hydrostatic and hydrodynamic loads and stresses, including the effects of buoyancy, during conditions of flooding to the regulatory flood protection elevation. Utility systems, equipment, and service facilities include, but are not limited to, HVAC equipment, water softener units, bath/kitchen fixtures, ductwork, electric/gas meter panels/boxes, utility/cable boxes, hot water heaters, and electric outlets/switches.

(i)   Replacements part of a substantial improvement must also meet the above provisions.

(ii)   Replacements that are for maintenance and not part of a substantial improvement, may be installed at the original location provided the addition and/or improvements comply with the standards for new construction consistent with the code and requirements for the original structure.

e.   All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of floodwaters into the system.

f.   New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of floodwaters into the systems and discharges from the systems into flood waters.

g.   On-site waste disposal systems shall be located and constructed to avoid impairment to them or contamination from them during flooding.

h.   New solid waste disposal facilities and sites, hazardous waste management facilities, salvage yards, and chemical storage facilities shall not be permitted, except by variance as specified in subsection 7-12-1(f)(5). A structure or tank for chemical or fuel storage incidental to an allowed use or to the operation of a water treatment plant or wastewater treatment facility may be located in a special flood hazard area only if the structure or tank is either elevated or flood- proofed to at least the regulatory flood protection elevation and certified in accordance with the provisions of subsection 7-12-1(d)(3).

i.   All subdivision proposals and other development proposals shall be consistent with the need to minimize flood damage.

j.   All subdivision proposals and other development proposals shall have public utilities and facilities such as sewer, gas, electrical, and water systems located and constructed to minimize flood damage.

k.   All subdivision proposals and other development proposals shall have adequate drainage provided to reduce exposure to flood hazards.

l.   All subdivision proposals and other development proposals shall have received all necessary permits from those governmental agencies for which approval is required by federal or state law, including Section 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. 1334.

m.   When a structure is partially located in a special flood hazard area, the entire structure shall meet the requirements for new construction and substantial improvements.

n.   When a structure is located in multiple flood hazard zones or in a flood hazard risk zone with multiple base flood elevations, the provisions for the more restrictive flood hazard risk zone and the highest base flood elevation shall apply.

o.   The Regulatory Flood Protection Elevation ("RFPE"), where Base Flood Elevations (BFEs) have been determined, shall be the BFE plus the freeboard of two (2) feet. In "Special Flood Hazard Areas" where no BFE has been established, the RFPE this elevation shall be at least two (2) feet above the highest adjacent grade.

p.   If the elevation requirement for any development differs from that imposed by the North Carolina State Building Code, said development shall be permitted to exceed its maximum height limitation by an amount equal to the difference in the elevation requirements set by this ordinance and that of the State Building Code.

(2)   Specific standards: In all special flood hazard areas where base flood elevation (BFE) data has been provided, as set forth in subsection 7-12-1 (b)(3), or subsection 7-12-1 (e)(3), the following provisions, in addition to the provisions of subsection 7-12-1 (e)(1), are required:

a.   Residential construction. New construction and substantial improvement of any residential structure (including manufactured homes) shall have the reference level, including basement, elevated no lower than the regulatory flood protection elevation as defined in section 7-2-5.

b.   Non-residential construction. New construction and substantial improvement of any commercial, industrial, or other non-residential structure shall have the reference level, including basement, elevated no lower than the regulatory flood protection elevation as defined in section 7-2-5. Structures located in zones referenced on the FIRM as A, AE, AO, and A1-30, may be flood- proofed to the regulatory flood protection elevation in lieu of elevation provided that all areas of the structure, together with attendant utility and sanitary facilities, below the regulatory flood protection elevation are watertight with walls substantially impermeable to the passage of water, using structural components having the capability of resisting hydrostatic and hydrodynamic loads and the effect of buoyancy. For AO zones, as reference on the FIRM, the flood-proofing elevation shall be in accordance with subsection 7-12-1 (e)(6)b. A registered professional engineer or architect shall certify that the standards of this subsection are satisfied. Such certification shall be provided to the floodplain administrator as set forth in subsection 7-12-1 (d)(3), along with the operational and maintenance plans.

c.   Manufactured homes.

1.   New and replacement manufactured homes shall be elevated so that the reference level of the manufactured home is no lower than the regulatory flood protection elevation as defined in section 7-2-5.

2.   Manufactured homes shall be securely anchored to an adequately anchored foundation to resist flotation, collapse, and lateral movement, either by certified engineered foundation system, or in accordance with the most current edition of the State of North Carolina Regulations for Manufactured Homes adopted by the Commissioner of Insurance pursuant to N.C.G.S. 143-143.15. Additionally, when the elevation would be met by an elevation of the chassis 36 inches or less above the grade at the site, the chassis shall be supported by reinforced piers or engineered foundation. When the elevation of the chassis is above 36 inches in height, an engineering certification is required.

3.   All enclosures or skirting below the lowest floor shall meet the requirements of subsection 7-12-1(e)(2)d.

4.   An evacuation plan must be developed for evacuation of all residents of all new, substantially improved or substantially damaged manufactured home parks or subdivisions located within flood prone areas. This plan shall be filed with and approved by the floodplain administrator and the local emergency management coordinator.

d.   Elevated buildings. Fully enclosed areas of new construction and substantially improved structures which are below the lowest floor:

1.   Shall not be designed or used for human habitation, but shall only be used for parking of vehicles, building access, or limited storage of maintenance equipment used in connection with the premises. Access to the enclosed area shall be the minimum necessary to allow for parking of vehicles (garage door) or limited storage of maintenance equipment (standard exterior door), or entry to the living area (stairway or elevator). The interior portion of such enclosed area shall not be finished or partitioned into separate rooms, except to enclose storage areas;

2.   Shall be constructed entirely of flood resistant materials at least to the regulatory flood protection elevation;

3.   Shall include, in zones A, AO, AE, and A1-30, as referenced on the FIRM, flood openings to automatically equalize hydrostatic flood forces on walls by allowing for the entry and exit of floodwaters. To meet this requirement, the openings must either be certified by a professional engineer or architect or meet or exceed the following minimum design criteria:

(i)   A minimum of two flood openings on different sides of each enclosed area subject to flooding;

(ii)   The total net area of all flood openings must be at least one square inch for each square foot of enclosed area subject to flooding;

(iii)   If a building has more than one enclosed area, each enclosed area must have flood openings to allow floodwaters to automatically enter and exit;

(iv)   The bottom of all required flood openings shall be no higher than one foot above the adjacent grade;

(v)   Flood openings may be equipped with screens, louvers, or other coverings or devices, provided they permit the automatic flow of floodwaters in both directions; and

(vi)    Enclosures made of flexible skirting are not considered enclosures for regulatory purposes, and, therefore, do not require flood openings. Masonry or wood underpinning, regardless of structural status, is considered an enclosure and requires flood openings as outlined above.

e.   Additions/improvements.

1.   Additions and/or improvements to pre-FIRM structures when the addition and/or improvement is in combination with any interior modifications to the existing structure are:

(i)   Not a substantial improvement: the addition and/or improvement must be designed to minimize flood damages and must not be any more non- conforming than the existing structure.

(ii)   A substantial improvement: Both the existing structure and the addition and/or improvement must comply with the standards for new construction.

2.   Additions to pre-FIRM or post-FIRM structures with no modifications to the existing structure other than a standard door in the common wall shall require only the addition to comply with the standards for new construction.

3.   Additions and/or improvements to post-FIRM structures when the addition and/or improvement is in combination with any interior modifications to the existing structure are:

(i)   Not a substantial improvement: the addition and/or improvement must only comply with the standards for new construction.

(ii)   A substantial improvement: Both the existing structure and the addition and/or improvement must comply with the standards for new construction.

4.   Any combination of repair, reconstruction, rehabilitation, addition or improvement of a building or structure taking place during a one (1) year period, the cumulative cost of which equals or exceeds 50 percent of the market value of the structure before the improvement or repair is started must comply with the standards for new construction. For each building or structure, the one (1) year period begins on the date of the first improvement or repair of that building or structure subsequent to the effective date of this ordinance. If the structure has sustained substantial damage, any repairs are considered substantial improvement regardless of the actual repair work performed. The requirement does not, however, include either:

(i)   Any project for improvement of a building required to correct existing health, sanitary or safety code violations identified and notified by the building official and that are the minimum necessary to assume safe living conditions.

(ii)   Any alteration of a historic structure provided that the alteration will not preclude the structure's continued designation as a historic structure, as determined by obtainment of a variance as specified in section 7-12-1(f).

f.   Recreational vehicles. Recreational vehicles shall either:

1.   Be on site for fewer than 180 consecutive days and be fully licensed and ready for highway use (a recreational vehicle is ready for highway use if it is on its wheels or jacking system, is attached to the site only by quick disconnect type utilities, and has no permanently attached additions); or

2.   Meet all the requirements for new construction.

g.   Temporary non-residential structures. Prior to the issuance of a floodplain development permit for a temporary structure, the applicant must submit to the floodplain administrator a plan for the removal of such structure(s) in the event of a hurricane, flash flood, or other type of flood warning notification. The following information shall be submitted in writing to the floodplain administrator for review and written approval:

1.   A specified time period for which the temporary use will be permitted. Time specified may not exceed three months, renewable up to one year;

2.   The name, address, and phone number of the individual responsible for the removal of the temporary structure;

3.   The time frame prior to the event at which a structure will be removed (i.e., minimum of 72 hours before landfall of a hurricane or immediately upon flood warning notification);

4.   A copy of the contract or other suitable instrument with the entity responsible for physical removal of the structure; and

5.   Designation, accompanied by documentation, of a location outside the special flood hazard area, to which the temporary structure will be moved.

h.   Accessory structures. When accessory structures (sheds, detached garages, etc.) are to be placed within a special flood hazard area, the following criteria shall be met:

1.   Accessory structures shall not be used for human habitation (including working, sleeping, living, cooking, or restroom areas);

2.   Accessory structures shall not be temperature-controlled;

3.   Accessory structures shall be designed to have low flood damage potential;

4.   Accessory structures shall be constructed and placed on the building site so as to offer the minimum resistance to the flow of floodwaters;

5.   Accessory structures shall be firmly anchored in accordance with the provisions of subsection 7-12-1(e)(1)a;

6.   All service facilities such as electrical shall be installed in accordance with the provisions of subsection 7-12-1(e)(1)d; and

7.   Flood openings to facilitate automatic equalization of hydrostatic flood forces shall be provided below regulatory flood protection elevation in conformance with the provisions of subsection 7-12-1(e)(2)d.3.

(3)   Standards for floodplains without established base flood elevations: Within the special flood hazard areas designated as approximate zone A as referenced on the FIRM and established in subsection 7-12-1 (b)(3), where no base flood elevation (BFE) data has been provided by FEMA, the following provisions, in addition to the provisions of subsection 7-12-1 (e)(1), shall apply:

a.   No encroachments, including fill, new construction, substantial improvements or new development shall be permitted within a distance of 20 feet each side from top of bank or five times the width of the stream, whichever is greater, unless certification with supporting technical data by a registered professional engineer is provided demonstrating that such encroachments shall not result in any increase in flood levels during the occurrence of the base flood discharge.

b.   The base flood elevation (BFE) used in determining the regulatory flood protection elevation shall be determined based on the following criteria:

1.   When BFE data is available from other sources, all new construction and substantial improvements within such areas shall also comply with all applicable provisions of this section and shall be elevated or flood-proofed in accordance with standards in subsection 7-12-1(e)(1) and (2).

2.   When floodway data is available from a federal, state, or other source, all new construction and substantial improvements within floodway areas shall also comply with the requirements of subsection 7-12-1(e)(2) and (5).

3.   All subdivision, manufactured home parks and other development proposals shall provide BFE data if development is greater than five acres or has more than 50 lots/manufactured home sites. Such BFE data shall be adopted by reference in accordance with subsection 7-12-1(b)(3) and utilized in implementing this chapter.

4.   When BFE data is not available from a federal, state, or other source as outlined above the reference level shall be elevated or flood-proofed (nonresidential) to or above the regulatory flood protection elevation. All other applicable provisions of subsection 7-12-1(e) shall also apply.

(4)   Standards for riverine floodplains with BFE but without established floodways or non-encroachment areas: Along rivers and streams where BFE data is provided by FEMA or is available but neither floodway nor non-encroachment areas are identified for a special flood hazard area on the FIRM or in the FIS report, the following requirements shall apply to all development within such areas:

a.   Standards of subsection 7-12-1(e)(1) and (2); and

b.   Until a regulatory floodway or non-encroachment area is designated, no encroachments, including fill, new construction, substantial improvements, or other development, shall be permitted unless certification with supporting technical data by a registered professional engineer is provided demonstrating that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation during the occurrence of the base flood more than one foot at any point within the community.

(5)   Floodways and non-encroachment areas: Areas designated as floodways or non-encroachment areas are located within the special flood hazard areas established in subsection 7-12-1 (b)(3). The floodways and non-encroachment areas are extremely hazardous areas due to the velocity of floodwaters that have erosion potential and carry debris and potential projectiles. The following provisions, in addition to standards outlined in subsection 7-12-1 (e)(1) and (2), shall apply to all development within such areas:

a.   No encroachments, including fill, new construction, substantial improvements and other developments shall be permitted unless:

1.   It is demonstrated that the proposed encroachment will not increase the water surface elevations during the occurrence of the base flood, based on hydrologic and hydraulic analyses performed by a registered professional engineer in accordance with standard engineering practice and presented to the floodplain administrator prior to issuance of floodplain development permit, or

2.   A conditional letter of map revision (CLOMR) has been approved by FEMA. A letter of map revision (LOMR) must also be obtained upon completion of the proposed encroachment.

b.   If subsection 7-12-1(e)(5)a. is satisfied, all development shall comply with all applicable flood hazard reduction provisions of this section.

c.   No manufactured homes shall be permitted, except replacement manufactured homes in an existing manufactured home park or subdivision, provided the following provisions are met:

1.   The anchoring and the elevation standards of subsection 7-12-1(e)(2)c; and

2.   The no encroachment standard of subsection 7-12-1(e)(5)a.

d.   No new habitable structures or substantial improvements to habitable structures shall be permitted in floodways and non-encroachment areas, except this subsection shall not be applicable to structures that have substantial damage, provided the rebuilt habitable structure meets the standards of this Section (7-12-1).

(6)   Standards for areas of shallow flooding (zone AO as referenced on the FIRM): Located within the special flood hazard areas established in subsection 7-12-1(b)(3), are areas designated as shallow flooding areas. These areas have special flood hazards associated with base flood depths of one to three feet where a clearly defined channel does not exist and where the path of flooding is unpredictable and indeterminate. In addition to subsection 7-12-1(e)(1) and (2), all new construction and substantial improvements shall meet the following requirements:

a.   The reference level shall be elevated at least as high as the depth number specified on the flood insurance rate map (FIRM), in feet, plus a freeboard of two feet, above the highest adjacent grade; or at least two feet above the highest adjacent grade if no depth number is specified.

b.   Non-residential structures may, in lieu of elevation, be flood-proofed to the same level as required in subsection 7-12-1(e)(6)a. so that the structure, together with attendant utility and sanitary facilities, below that level shall be watertight with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy. Certification is required in accordance with subsection 7-12-1(d)(3) and subsection 7-12-1(e)(2)b.

c.   Adequate drainage paths shall be provided around structures on slopes, to guide floodwaters around and away from proposed structures.

(7)   Nonconforming uses: A structure(s) or the use(s) of a structure or premises which are lawful before the effective date of this section, or before any amendment to this section after that date, but which is not in conformity with the provisions herein may be continued as a nonconforming use, or for the purposes of this section may be changed to another nonconforming use (changes in use shall be made in conformance with subsection 7-12-1(e)). Changes in ownership of any property under the jurisdiction of this section shall not affect the continued operation of the nonconforming use. All nonconforming uses shall be subject to the following conditions:

a.   Any substantial improvement of a nonconforming structure shall be made in compliance with the provisions of this section.

b.   If the nonconforming use is discontinued for a period of 180 or more consecutive days, and there are no substantial good faith efforts to re-establish the use during this period, any future use of the building and/or premises shall conform to this section. Obtaining permits to maintain the existing use or significant continuous efforts to market the property for sale or lease for the existing use (e.g., MLS listing, realtor contract, etc.), shall be regarded as substantial good faith efforts. A nonconforming use shall be deemed discontinued after a period of more than two years regardless of any substantial good faith efforts to re-establish the use and any future use of the building and/or premises shall conform to section.

c.   Notwithstanding the provisions of Section 7-17-4, if any nonconforming use or structure or substantial improvement is destroyed or substantially damaged by any means, including floods, said use or structure may only be repaired or replaced if it is brought into compliance with the requirements of this ordinance (Sec. 7-12-1. Flood Damage Prevention). In all instances, a registered professional engineer shall provide the floodplain administrator with an acceptable certification demonstrating that said replacement would not result in an increase in the current regulatory flood elevation.

d.   Any use which has been permitted as a restricted use and is in full compliance with this section and attached standards shall be considered a conforming use.

e.   Any change of a nonconforming use as specified herein shall be approved by the board of adjustment under the provisions of this section. Proposed changes in a nonconforming use to a residential use shall be expressly prohibited.

(f)   Variances.

(1)   Petition for a variance: Any aggrieved person may petition for a variance to the board adjustment for the following:

a.   The repair or rehabilitation of historic structures upon the determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as a historic structure and that the variance is the minimum necessary to preserve the historic character and design of the structure.

b.   Functionally dependent facilities provided the provisions of subsections 7-12-1(f)(3) and (f)(4) have been satisfied, and such facilities are protected by methods that minimize flood damages during the base flood and create no additional threats to public safety.

c.   Any other type of development, provided it meets the requirements of this section.

(2)   Prerequisites to considering a request for a variance: Prior to considering a request for a variance, the board of adjustment shall be provided with a written report from the floodplain administrator specifying whether all technical evaluations, all relevant factors, all standards specified in this section have been met. Additionally, a separate written report addressing each of the following factors shall be submitted with the application for a variance:

a.   Whether there exists any danger that materials may be swept onto other lands to the injury of others;

b.   Whether there is any danger to life and property due to flooding or erosion damage;

c.   The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;

d.   The importance of the services provided by the proposed facility to the community;

e.   The necessity to the facility of a waterfront location as a functionally dependent facility, where applicable;

f.   The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use;

g.   The compatibility of the proposed use with existing and anticipated development;

h.   The relationship of the proposed use to the comprehensive plan and floodplain management program for that area;

i.   The safety of access to the property in times of flood for ordinary and emergency vehicles;

j.   The expected heights, velocity, duration, rate of rise, and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site; and

k.   The costs of providing governmental services during and after flood conditions including maintenance and repair of public utilities and facilities such as sewer, gas, electrical and water systems, and streets and bridges.

(3)   Requirements for the granting of variances: The board of adjustment may only grant a variance if the applicant satisfies all of the following requirements:

a.   The variance is the minimum necessary, considering the flood hazard, to afford relief.

b.   No development permit has been approved. [For purposes of this section, trade permits (i.e. to elevate electric structures and get power back on) or permits associated with post-event demolition and debris removal are not considered development permits.]

c.   A showing of good and sufficient cause.

d.   Failure to grant the variance would result in exceptional hardship.

e.   The granting of a variance will not result in increased flood heights, additional threats to public safety, or extraordinary public expense, create nuisance, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances.

f.   The granting of the variances will not make the structure in violation of other federal, state, or local laws, regulations, or ordinances; and

g.   The granting of the variance is within the designated floodway or non-encroachment area and will not result in any increase in flood levels during the base flood discharge.

(4)   Conditions: The board of adjustment may attach such conditions to the granting of variances as it deems necessary to further the purposes and objectives of this section.

(5)   Special facilities: Solid waste disposal facilities or sites, hazardous waste management facilities, salvage yards, auto salvage-wrecking yards, and chemical storage facilities that are located in special flood hazard areas are prohibited unless, in addition to meeting all of the above mentioned variance requirements, the following additional requirements are met.

a.   The use serves a critical need in the community.

b.   No feasible location exists for the use outside the special flood hazard area.

c.   The reference level of any structure is elevated or flood-proofed to at least the regulatory flood protection elevation.

d.   The use complies with all other applicable federal, state and local laws.

e.   The city has notified the Secretary of the North Carolina Department of Public Safety of an application for the issuance of a variance at least 30 calendar days prior to the consideration of the variance request.

(6)   Notice: The floodplain administrator shall provide written notice to any applicant to whom a variance is granted specifying the difference between the base flood elevation (BFE) and the elevation to which the structure is to be built and that such construction below the BFE increases risks to life and property, and that the issuance of a variance to construct a structure below the BFE will result in increased premium rates for flood insurance up to $25.00 per $100.00 of insurance coverage. Such notification shall be maintained with a record of all variance actions, including justification for their issuance.

(7)   Records: The floodplain administrator shall maintain the records of all appeal actions and report any variances to the Federal Emergency Management Agency and the State of North Carolina upon request.

(g)   Entry upon public/private property.

(1)   City inspections: The floodplain administrator and each member of his or her inspections department shall perform routine, random, complaint based, systematic inspections or a combination hereof to ensure continued compliance with the requirements of this section. The city may also conduct joint inspections with other agencies inspecting under environmental or safety laws. Notice of the right to inspect shall be included in the approval of each permit application. Inspections may include, but are not limited to, compliance checks of the approved permit, reviewing for compliance according to the provisions of this section and to carry out enforcement duties.

(2)   City investigations: The city shall have the power to conduct an investigation as it may reasonably deem necessary to carry out its duties as prescribed in this section and, for this purpose, to enter at reasonable times upon any property, public or private, for the purpose of investigating and inspecting the sites of any activity regulated in this section. No person shall refuse entry or access to any authorized representative or agent of the city, who requests such entry for purposes of inspection, and who presents appropriate credentials, nor shall any person obstruct, hamper, willfully resist, delay or interfere with any such representative while in the process of carrying out his/her official duties.

(3)   Administrative inspection warrant: If the owner or occupant of any property refuses to permit a city inspection, the floodplain administrator shall proceed to obtain an administrative inspection warrant pursuant to N.C.G.S. 15-27.2. No person shall obstruct, hamper or interfere with the office of the floodplain administrator while carrying out the official duties of this section.

(h)   Violations and notices.

(1)   General violations: It shall constitute a violation of this section for any person to fail to obtain a permit prior to any development located in special flood hazard areas, fail to comply with an approved permit or fail to comply with any other requirements set forth in this section. Each day a violation continues shall constitute a separate and distinct violation.

(2)   Notice of violation: If through inspection, it is determined that a person has violated this section, the office of the floodplain administrator shall immediately serve a notice of violation upon that person. The notice shall be in writing and served by personal delivery, electronic delivery or by certified or registered mail, return receipt requested. In addition service may be made in accordance with Rule 4 of the N.C. Rules of Civil Procedure. The notice of violation shall be served upon the holder of the development approval and the landowner of the property involved, if the landowner is not the holder of the development approval, and may provide by similar means to the occupant of the property or the person undertaking the work or activity in addition the notice of violation may be posted on the property involved, in accordance with N.C.G.S. § 160D-404(a). The violation notice shall contain the following:

a.   That the building or property is in violation of this section, the measures needed to comply, the time within such measures must be completed and warn that failure to correct the violation within the time period shall subject the violator and/or property owner to civil and/or other enforcement action.

b.   In determining the measures required and the time allowed for compliance, the office of the floodplain administrator shall take into consideration the economic feasibility, technology, the quantity of work required, and shall set reasonable and attainable time limits of compliance.

(3)   Failure to take corrective action: If the violator and/or property owner should fail to take prompt corrective action to remedy the violation, then the floodplain administrator shall proceed in accordance with subsection 7-12-1(i) of this section.

(i)   Enforcement.

(1)   Civil penalty: Any person who violates the flood protection regulations of this section shall be subject to a civil penalty. The maximum civil penalty for a violation is $25,000.00. A civil penalty may be assessed from the date of the violation. Each day of a continuing violation shall constitute a separate violation. The floodplain administrator is hereby charged with the responsibility of preparing a table of civil penalties, setting forth the per day and maximum penalties that may be assessed for violations of this section taking into consideration the guidelines for penalty assessment as outlined herein, so as to be in compliance with the $25,000.00 maximum civil penalty involving the same subject matter within a six-month period of time.

(2)   Civil penalty assessment: Upon the failure to comply within the time frame set forth in the notice of violation, the floodplain administrator shall give notice of assessment of a civil penalty by providing notice of the civil penalty amount and the basis for assessment to the person assessed. The assessment of a penalty shall be served personally or by any means authorized under Rule 4 of the N.C. Rules of Civil Procedure and shall direct the violator to either pay the assessment or contest the assessment in writing, within 30 days after receipt of the notice of assessment. The office of the floodplain administrator shall initially assess the civil penalty.

(3)   Guidelines for penalty assessment: In determining the amount of the penalty to assess, the floodplain administrator shall be guided by the degree and extent of harm to the natural resources of the city, to the public health, or to private property resulting from the violation; the duration and gravity of the violation; the effect on water quality; the cost of rectifying the damage; the amount of money the violator saved by noncompliance, whether the violation was committed willfully and the prior record of the violation in complying or failing to comply with this ordinance.

(4)   Criminal penalties: A violation of this section subjects the offender to a civil penalty pursuant to the authority granted by N.C.G.S. 160A-175 and does not subject the offender to the criminal penalty provisions of N.C.G.S. 14-4 and section 1-5 of Chapter 1 of the Code of Ordinances of the City of Asheville.

(5)   Stop work order: If, through inspection, it is determined that a building or part thereof is being constructed, reconstructed, altered, or repaired in violation of this section, or other applicable local development regulation or any state law delegated to the local government for enforcement purposes in lieu of the state undertaken in substantial violation of any state or local law, or in a manner that endangers life or property, staff may order the work or activity to be immediately stopped. The stop- work order shall be in writing and directed to the person doing or in charge of the work. The stop-work order shall state the specific work to be stopped, the specific reason(s) for the stoppage, and the condition(s) under which the work may be resumed. The city shall send the stop work order in writing pursuant to section 7-12-1(h)(2) above.

(6)   Revocation: The floodplain administrator may revoke and require the return of the floodplain development permit by notifying the permit holder in writing stating the reason(s) for the revocation. Permits shall be revoked for any substantial departure from the approved application, plans, and specifications; for refusal or failure to comply with the requirements of state or local laws; or for false statements or misrepresentations made in securing the permit. Any floodplain development permit mistakenly issued in violation of an applicable state or local law may also be revoked. The notice of revocation shall be served in writing pursuant to section 7-12-1(h)(1) above, stating the reason for the revocation and the revocation shall follow the same permit approval and review process required for issuance of the permit, including notice requirements.

(7)   Permit reinstatement. A new permit application and approved plan including all permit fees must be submitted prior to reinstatement of the revoked permit. For permit reinstatement, the site must be deemed to be in compliance with the requirements of this section and all penalties have been paid in full or penalty appeal has been filed within the given time frame.

(8)   Order to abate: If, subsequent to an appeal hearing, the floodplain administrator find that the building or development is in violation of this section, a written order shall be issued to the property owner requiring the owner to remedy the violation and such remedial action may consist of an order to alter, vacate, remove, or demolish the building, as long as the notice of violation provided prior notice that such an order may be entered and such order may require that such remedial action be taken not less than 60 calendar days, nor more than 180 calendar days. Where the floodplain administrator finds that there is imminent danger to life or other property, the order may require that corrective action be taken in such lesser period as may be feasible. An appeal may be taken from the order as set forth herein.

(9)   Action for failure to comply and failure to appeal and/or pay: If violations are not cured or corrected within the time specified in the notice of violation and/or the violator fails to give timely notice of appeal or fails to pay the civil penalty assessed within the prescribed time period, then the matter may be referred to the city's debt set-off program and/or referred to the city attorney for institution of a civil action in the name of the city in a court of competent jurisdiction. In addition to, or in lieu of, the other remedies set forth in this section, the city attorney may institute an injunctive action, mandamus action, or other appropriate proceeding. Upon determining that an alleged violation is occurring or is threatened, a court hearing an appeal for relief shall enter such orders and/or judgments as are necessary to abate or prevent the violation. The institution of an action for injunctive or other relief under this section shall not relieve any party to such proceeding from any civil penalty prescribed by this section for violations of this section.

(j)   Appeals.

(1)   Appeals: Any aggrieved party may file an appeal for or from the issuance of a variance, or from a penalty assessment, notice of violation, permit disapproval, order, requirement, determination or interpretation rendered under the provisions of this section. The appeals process shall be as follows:

a.   To the floodplain administrator: With the exception of appealing for the issuance of a variance, all appeals must initially be heard by the floodplain administrator. The appeal must be submitted in writing within 30 days of receipt of an adverse action and shall specify the specific grounds for relief and what relief is requested. The floodplain administrator shall schedule a hearing no later than 30 days from receipt of the written notice of appeal. The owner shall be entitled to be heard in person or by counsel and to present arguments and evidence pertaining to the matter. Further appeal may be taken to the board of adjustment as set forth below. in the absence of an appeal, the order of the floodplain administrator shall be final.

b.   To the Asheville Board of Adjustment: Further appeal may be taken to the Asheville Board of Adjustment in accordance with and pursuant to the written requirements of the board and section 7-6-2 of the UDO.

c.   To the Buncombe County Superior Court: Every decision of the board shall be subject to review by the superior court by proceedings in the nature of certiorari. Petition for review by the superior court shall be filed with the clerk of superior court within 30 days after the decision of the board is filed in the office of the board or after a written copy thereof is delivered to every person who has filed a written request for such copy with the board at the time of its hearing of the case, whichever is later. The appeal shall be limited to the record before the board. Provided however, nothing herein shall modify, abrogate or amend the requirements set forth in N.C.G.S. 143-215.57 and to the extent of conflict, the language of the statute shall prevail.

(a)   Authority, purpose, objective, findings, jurisdiction, applicability, exemptions.

(1)   Authority: This section is adopted pursuant to N.C.G.S. § 143-214.7 and applicable rules promulgated by the North Carolina Environmental Management Commission (NCEMC) thereunder; Session Law 2006- 246; chapter 160A (Cities and Towns), article 14; chapter 160D (Local Planning and Development Regulation) article 9; section 5 of the North Carolina Constitution; chapter 113A, article 4 (Sedimentation Pollution Control); article 21, part 6 (Floodway Regulations).

(2)   Purpose: It is the purpose of this section to comply with the federal and corresponding state stormwater discharge National Pollution Discharge Elimination System (NPDES) regulations; to protect, maintain and enhance the environment of the City of Asheville (City), by establishing minimum requirements and procedures to control the potential adverse effects of increased stormwater runoff associated with both future development and existing developed land and non-point and point source pollution associated with new development and redevelopment as well as illicit discharges into municipal stormwater systems; to regulate the clearing, grading, excavation, filling and manipulation of the earth and the moving and storing of waters in order to control and prevent accelerated soil erosion and sedimentation; and to establish decision-making processes for development that protect the integrity of watersheds and preserve the health of water resources.

(3)   Objectives: To assure the city of the authority to take any action required by it to obtain and comply with its NPDES permit for stormwater discharges. Among other things, these regulations require the city to establish legal authority which authorizes or enables the city at a minimum to:

a.   Control the contribution of pollutants to the city's MS4 and receiving waters by stormwater discharges associated with residential, commercial, industrial, and related facility activity and the quality of stormwater discharged from sites of residential, commercial, industrial, and related facility activity; and

b.   Prohibit illicit discharges and illicit connections to the city's MS4 and receiving waters; and control the discharge to the city's MS4 and receiving waters, of spills, dumping or disposal of materials other than stormwater; and

c.   Control through intergovernmental agreements, contribution of pollutants from one municipal stormwater system to another; and

d.   Control accelerated erosion and sedimentation; and

e.   Require compliance with conditions in ordinances, permits, contracts or orders as follows:

1.   To establish and implement all inspection, surveillance and monitoring procedures necessary to determine compliance and noncompliance with permit conditions including the prohibition of illicit discharges and illicit connections to the city's MS4 and receiving waters;

2.   To require that new development and redevelopment maintain the pre-development hydrologic response in their post-development state as nearly as practicable for the applicable design storm in order to reduce flooding, stream bank erosion, non-point source pollution and increases in stream temperature, and to maintain the integrity of stream channels and aquatic habitats for biological/ecological function and drainage;

3.   To encourage the use of better management and site design practices, such as the use of vegetated conveyances for stormwater and the preservation of green space and other conservation areas to the maximum extent practicable (MEP);

4.   To establish provisions for the short-term and long-term responsibility for and maintenance of structural and non-structural stormwater BMPs to ensure that they continue to function as designed, are maintained appropriately, and pose no threat to public safety; and to minimize public and private property damage resulting from erosion, sedimentation and flooding; and to regulate developments that create demand for public investment in flood control works.

(4)   Findings:

a.   Stormwater runoff can have a significant adverse impact on the health, safety and general welfare of the city and on the quality of life of its citizens. These impacts can be in the form of pollution to our water bodies, erosion and sedimentation, flooding and other degrading impacts.

b.   The sedimentation of streams, lakes, wetlands and other waters of this State constitute a major pollution problem. Sedimentation occurs from the erosion or depositing of soil and other materials into the waters. Control of erosion and sedimentation is deemed vital to the public interest and necessary to public health and welfare, and expenditures of funds for erosion and sedimentation control programs shall be deemed for a public purpose.

c.   Changes in land use can create adverse impacts. The city has been designated a Phase II Municipal Separate Storm Sewer System (MS4) Community under the NPDES and is required to obtain a permit pursuant to the 1972 Federal Water Pollution Control Act as amended in 1987 as well as the applicable and statutory laws promulgated thereunder. In response to these requirements this jurisdiction is compelled to adopt minimum stormwater controls such as those included in this section.

d.   The city is in a unique geographic area with steep slopes, erodible soils, extreme rainfall patterns and other unique factors that require special attention and specifically different requirements from other jurisdictions.

(5)   Jurisdiction: With the exception of applying subsection 7-12-2(k), pertaining to the prohibition, detection and elimination of illicit connections, illicit discharges and improper disposal to the stormwater system in the city's extraterritorial jurisdiction, this section shall apply to the territorial and extraterritorial jurisdictions of the city as well as to all properties owned by the city within Buncombe County to include the areas designated on the map entitled "Phase II Stormwater Map of the City of Asheville, North Carolina" ("the Stormwater Map"), which is adopted simultaneously herewith along with all explanatory matters contained thereon and made a part of this section.

(6)   Applicability: Unless exempted pursuant to subsection 7-12-2(a)(7) below, beginning with and subsequent to its effective date, this section shall be applicable as follows:

a.   All development and redevelopment, including, but not limited to, site plan applications, subdivision applications, and land disturbing applications.

b.   The provisions of subsection 7-12-2(k), pertaining to prohibition, detection and elimination of illicit connections, illicit discharges and improper disposal to the stormwater system shall apply to all properties, lands, city's MS4 and waters of the state within the territorial jurisdiction of the city as well as to all properties owned by the city within Buncombe County.

(7)   Exemptions:

a.   The following activities for land disturbance shall be exempt from the provisions of the erosion prevention and sediment control regulations of subsection 7-12-2(e):

1.   An activity, including breeding and grazing of livestock, undertaken on agricultural land for the production of plants and animals useful to man, including, but not limited to: forage and sod crops, grain and feed crops, tobacco, cotton, and peanuts, dairy animals and dairy products, poultry and poultry products, livestock, including beef cattle, sheep, swine, horses, ponies, mules, and goats, bees and apiary products, and fur producing animals.

2.   An activity undertaken on forestland for the production and harvesting of timber and timber products and conducted in accordance with best management practices set out in Forest Practice Guidelines Related to Water Quality and the Forestry Best Management Practices Manual, as adopted by the North Carolina Division of Forest Resources. If land disturbing activity undertaken on forestland for the production and harvesting of timber and timber products is not conducted in accordance with Forest Practice Guidelines Related to Water Quality and the Forestry Best Management Practices Manual, the provisions of this section shall apply to such activity and any related land disturbing activity on the site.

3.   An activity for which a permit is required under the Mining Act of 1971, Article 7 of Chapter 74 of the North Carolina General Statutes.

4.   Land disturbing activities over which the State of North Carolina has exclusive regulatory jurisdiction as set forth in NCGS 113A-56(a).

5.   An activity which is essential to protect human life during an emergency and those done for the purpose of fighting fires;

6.   The stock-piling of fill dirt, raw or processed sand, stone, or gravel in material processing plants and storage yards, provided that sediment control measures have been utilized to protect against off-site damage;

7.   Individual gravesites;

8.   Maintenance of existing lawns where there is no change in contours;

9.   Gardens, similar horticultural activities that disturb less than one acre; and

10.   Land disturbing activities totaling 500 square feet or less and located 50 feet or greater from a perennial or intermittent stream.

b.   The following activities for land disturbance shall be exempt from provisions of the post- construction stormwater control regulations of subsection 7-12-2(f)(1) and (2):

1.   Development that cumulatively disturbs less than one acre and will have a proposed impervious surface area on completion of development of 50 percent or less of the total acreage of the development site; provided however, such is not exempt if part of a larger common plan of development or sale, even though multiple, separate or distinct activities take place at different times on different schedules.

2.   Redevelopment that cumulatively disturbs less than one acre and will have a proposed impervious surface area on completion of development of 50 percent or less of the total acreage of the development site; provided however, such is not exempt if part of a larger common plan of redevelopment or sale, even though multiple, separate or distinct activities take place at different times on different schedules.

3.   Development and/or redevelopment of a single one- or two-family dwelling that cumulatively disturbs less than one acre and is not part of a larger common plan of development or sale.

c.   The following activities for land disturbance shall be exempt from all provisions of the post- construction stormwater control regulations of subsection 7-12-2(f):

1.   Redevelopment that results in no net increase in built-upon area and that provides equal or greater stormwater control than the previous development on the site.

2.   Activities that are exempt from the permit requirements of Section 404 of the Federal Clean Water Act (CWA), as specified in 40 CFR 302 (primarily, ongoing farming and forestry activities).

(b)   Administration.

(1)   Stormwater administrator: The city manager shall appoint a stormwater administrator to administer and enforce all provisions of this section. Except as specifically stated, any act authorized by this section to be carried out by the stormwater administrator may be carried out by his/her designee.

(2)   Powers of the stormwater administrator: In addition to all other customary and incidental powers of the office of stormwater administrator as well as the powers and duties that may be conferred by other ordinances of the city and other applicable laws, statutes, rules and regulations, the stormwater administrator shall have the following powers:

a.   Day to day coordination, implementation and enforcement of this section and the Stormwater Management Program (SWMP), to include, but not limited to: monitoring construction site runoff, illicit discharges and improper disposal.

b.   The coordination and enforcement of the city's NPDES permit and the coordination of the city's activities with other federal, state, and local agencies, which manage and perform functions relating to the protection of receiving waters.

c.   To render interpretations, perform reviews, make recommendations including permit fees and revisions to fees and charges manual, approve or disapprove permit applications with or without conditions, establish timelines for the submittal and appeals of application decisions and to establish policies to include refund of permit fees.

d.   To enter into agreements with other governmental and private entities to carry out the purposes of this section upon approval of the city manager. These agreements may include, but are not limited to, enforcement, resolution of disputes, cooperative monitoring, cooperative management of stormwater systems and cooperative implementation of stormwater management programs.

e.   To designate what programs and activities represent the promotion of improving water quality to receive funding from the city's civil penalty mitigation fund.

f.   To exercise powers not expressly reserved for other agencies or restricted by statute for the protection and preservation of receiving waters.

(3)   Duties of the stormwater administrator: The duties and responsibilities of the stormwater administrator include, but are not limited to:

a.   Developing and maintaining a stormwater BMP manual in accordance with the approved SWMP. The stormwater BMP manual shall serve as guidance for permitting, design, construction, and maintenance of facilities which discharge stormwater both during construction and post- construction.

b.   Providing information on how and where to obtain the stormwater BMP manual, which shall be made available to the public.

c.   Providing an opportunity for comment by interested persons after making recommended revisions/amendments to the stormwater BMP manual and publishing the same.

d.   Preparing and updating annually the stormwater map, consistent with the city's NPDES permit requirements.

e.   Creating a civil penalty mitigation fund whereby all monies collected by the office of the stormwater administrator arising out of the enforcement of this section shall be used solely and directly for the purpose of promoting, providing and improving water quality.

(c)   Requirements and process for compliance.

(1)   General requirements:

a.   Protection of property: In addition to the requirements contained in this section, persons conducting development or redevelopment and associated land disturbing activity shall take all reasonable measures to protect natural resources and all public and private property from damage caused by such activity.

b.   Financial responsibility and ownership: A financial responsibility and ownership statement shall be required as a part of all completed permit applications. This financial responsibility and ownership statement shall be signed by the person financially responsible for the land disturbing activity or his/her attorney in fact. The statement shall include the mailing and street addresses of the principal place of business of (1) the person financially responsible, (2) the owner of the property, and (3) any registered agents. If the person financially responsible is not a resident of North Carolina, a North Carolina agent must be designated in the statement for the purpose of receiving notice of compliance or non-compliance with this section. If the applicant is not the owner of the property to be disturbed, the permit application must include the owner's written consent for the applicant to submit a permit application and to conduct the proposed development, redevelopment or land disturbing activity.

c.   Flood protection: No grading and stormwater permit shall be issued for development or redevelopment and associated land disturbing activity in the regulated floodplain prior to meeting the requirements of the floodplain regulations of section 7-12-1 of the UDO.

d.   Release of building permits: The director of building safety shall not issue any building permits for projects on sites where a grading and stormwater permit is required unless and until the grading and stormwater permit has been issued.

(2)   Permit application requirements:

a.   Plan and permit: An approved plan along with a grading and stormwater permit shall govern the design, installation, and construction of erosion and sediment control and stormwater management, control practices and measures on the site for both during construction and post- construction.

b.   Permit application: A permit application, intended to provide a mechanism for the review, approval, and inspection of the practices and measures for erosion, sediment and stormwater management and control, is required for all development and redevelopment unless exempt pursuant to this section.

c.   Contents of permit application package: At a minimum, the permit application package shall include: an application form, a design plan, appropriate fees and a statement of financial responsibility and ownership.

d.   Additional permit application requests: Depending on the scope of the development, redevelopment or land disturbing activity, additional items may include, but are not limited to, design calculations, certificate of inspection agreements, approved encroachment agreements, easements, and approved permits from other local, state or federal agencies.

e.   Prerequisites to issuance of a permit: Prior to the issuance of a permit pursuant to this section, all of the following requirements must be met:

1.   A pre-construction conference, if required by the stormwater administrator, along with the submittal and review of a permit application.

2.   Submittal of an authorized statement of financial responsibility and ownership.

3.   Notification to the stormwater administrator of the date that land disturbing activity will begin.

4.   Installation of the erosion control measures which are required for the initial stage of land disturbance per the approved plan and having the control measures inspected and a compliance report filed.

5.   A certificate of inspection agreement, if applicable, as required by subsection 7-12-2(g)(5)d.1.

6.   A security for re-vegetation, if applicable, as required by subsection 7-12-2(e)(2)h.3.

f.   Duration of permit: The approved plan and permit remains valid for one year after the date of approval; provided however, for maintenance of facilities, such as golf courses and large institutional grounds keeping, the approved plan and permit remains valid for five years. Prior to the initiation of any land disturbing activity, the applicant shall comply with the notification requirement of subsection 7-12-2(c)(2)e.3 herein.

g.   Extensions: Extensions of a plan approval may be granted once by the stormwater administrator, for a maximum of one-year duration, upon written request of the person responsible for the land disturbing activity. A written request for an extension must be submitted to the stormwater administrator no more than 60 days prior to the expiration of the original permit.

(3)   Permit application process: The permit application process shall be as follows:

a.   Application submittal: All permit applications shall be submitted to the development services center at least 30 days prior to the commencement of the proposed land disturbing activity.

b.   Who can apply: All permit applications shall be complete and submitted by the property owner or the property owner's duly authorized agent. A permit application shall be considered complete only when it contains all required documents.

c.   Incomplete application: If a permit application is incomplete, which may include the absence of an environmental document required by the North Carolina Environmental Policy Act (NCEPA) (NCGS 113A-1 et seq.), the applicant shall be notified of what documents are missing and shall be provided with an opportunity to submit a complete application.

d.   Consequences of submittal of an incomplete application: The submittal of an incomplete application shall not suffice to meet a deadline or start the time allotted for review nor shall the time limit for review begin until a complete permit application has been submitted.

e.   Commencement: The land disturbing activity shall not commence until the permit application has been approved and an inspection has been performed by a North Carolina professional engineer or landscape architect or a city inspector to ensure that the protective measures shown on the approved plan have been installed in accordance with the approved plan and a permit is issued.

f.   Notification to other agencies: Upon approval of a permit for proposed land disturbance of one acre or greater, the stormwater administrator will send a notification of the proposed project to the Regional Office of the North Carolina Department of Environmental and Natural Resources (NCDENR)—Division of Water Quality (DWQ) and to the Buncombe County Metropolitan Sewage District. The notification shall include the applicant's name and contact information and the proposed site location.

(4)   Design plans: A design plan shall be submitted with the permit application for all land disturbing activity, unless exempt pursuant to this section. The following are the minimum design plan requirements:

a.   Sketch plan: For proposed development, redevelopment or land disturbing activity with a proposed disturbance area of less than 10,000 square feet and which is exempt from the post- construction stormwater control regulations of subsection 7-12-2(f), a sketch plan must be submitted. At a minimum, the sketch plan shall include the information on the form entitled "Requirements for Non Formal Sketch Plans," available upon request from the office of the stormwater administrator.

b.   Formal plan exempt from post-construction stormwater regulations: For proposed development, redevelopment or land disturbing activity with a proposed disturbance area of 10,000 square feet or greater but which is exempt from the post-construction stormwater control regulations of subsection 7-12-2(f), a formal design plan shall be submitted. Design plans shall be submitted and at a minimum shall include the information on the form entitled "Requirements for Formal Grading/Erosion Plans," available upon request from the office of the stormwater administrator.

c.   Formal plan not exempt from post-construction stormwater regulations: For proposed development, redevelopment or land disturbing activity that is required to meet the post- construction stormwater control regulations of subsection 7-12-2(f), a formal design plan shall be submitted. Design plans shall be submitted and at a minimum shall include the information required in the preceding paragraph b. above and the requirements on the form entitled "Requirements for Stormwater Plans," available upon request from the office of the stormwater administrator.

d.   Certification of design plan: All formal plans shall be prepared by a qualified registered North Carolina professional engineer or landscape architect, and the professional shall perform services only in their area of competence, and shall verify that the design of all stormwater management facilities and practices meets the submittal requirements for complete permit applications, that the design and plans are sufficient to comply with applicable standards and that the design and plans ensure compliance with this section.

e.   Approval of design plan: The design plan shall not be considered approved without the inclusion of an approval stamp with a signature and date on the design plan by the stormwater administrator. The stamp of approval on the design plan is solely acknowledgement of satisfactory compliance with the requirements of this section and shall not serve as a warranty to the applicant or any other person concerning the safety, appropriateness of effectiveness of any provision, or omission from the design plan.

f.   Review of the design plan by other agencies: Upon approval of a permit for proposed land disturbance of one acre or greater, the stormwater administrator will forward, as required, one copy of the design plan to the Buncombe County Soil and Water Conservation District ("district") for its review. The district shall review the design plan and submit its comments and recommendations to the stormwater administrator within 20 days after the district received the design plan. Failure of the district to submit its comments and recommendations to the stormwater administrator within the prescribed time shall not delay final action on the permit application by the stormwater administrator.

(5)   Review and approval:

a.   Preconstruction conference: When deemed necessary by the stormwater administrator due to the complexity, risk or ingenuity of a project, a preconstruction conference may be required.

b.   Timeline for review of permit applications: The stormwater administrator will review each complete permit application with formal plans within 30 days and for sketch plans within 15 days of receipt thereof and notify the person submitting the permit application that it has been approved, approved with conditions, approved with performance reservations, or disapproved.

c.   Approval: If the stormwater administrator finds that the permit application complies with the standards of this section, the stormwater administrator shall approve the application. The stormwater administrator may impose conditions of approval as needed to ensure compliance with this section, or other local, state or federal regulations. The conditions shall be included as part of the approval.

d.   Disapproval for content: The stormwater administrator shall disapprove a permit application if it is found that the application fails to comply with the standards of this section, and shall notify the applicant of the reason(s) for the disapproval. The applicant shall have an opportunity to submit a revised application.

e.   Other disapproval: The stormwater administrator shall disapprove a permit application if implementation of the permit application would result in a violation of the rules adopted by the NCEMC to protect riparian buffers along surface waters. In the event that a permit application is disapproved pursuant to this paragraph, the stormwater administrator shall notify the director of the Division of Land Resources (DLR) of NCDENR of such disapproval within ten days. The city shall advise the applicant and the director of the DLR in writing as to the specific reasons that the plan was disapproved. A permit application may also be disapproved upon finding that an applicant, or a parent, subsidiary, or other affiliate of the applicant is:

1.   Conducting or has conducted development, redevelopment or land disturbing activity without an approved plan, or has received notice of violation of an approved plan and grading and stormwater permit previously approved by NCEMC or a local government pursuant to the Sedimentation Pollution Control Act (Act) and has not complied with the notice within the time specified in the notice.

2.   Has failed to pay a civil penalty assessed pursuant to the Act or a local ordinance adopted pursuant to the Act by the time the payment is due.

3.   Has been convicted of a misdemeanor pursuant to NCGS 113A-64(b) or any criminal provision of a local ordinance adopted pursuant to the Act; or (For purposes of this subsection, an applicant's record may be considered for only the two years prior to the application date).

4.   Has failed to substantially comply with state rules or local ordinances and regulations adopted pursuant to the Act.

f.   Failure to timely approve: Failure to approve, approve with modifications, or disapprove a complete permit application with formal plans within 30 days of receipt shall be deemed approved. Failure to approve, approve with modifications, or disapprove a permit application with a sketch plan within 15 days of receipt shall be deemed approved.

g.   Review of revised permit application: The stormwater administrator will review each revised permit application submitted and within 15 days of receipt thereof, will notify the person submitting the permit application that it has been approved, approved with modifications, approved with performance reservations, or disapproved.

h.   Failure to recognize: Any failure of the stormwater administrator in administering this section to include but not limited to: recognizing hazardous conditions, failure to disapprove the permit application, failure to inspect, to issue a notice of violation, assess a civil penalty or file a civil action, shall not relieve the owner from responsibility for the conditions or damages resulting therefrom and shall not result in the city, its officers or employees, being responsible for the damages resulting therefrom.

i.   Failure to timely submit revised application: If a revised permit application is not resubmitted within 180 days from the date the applicant was notified of the disapproval, the permit application shall be considered withdrawn, and a new submittal for the same or substantially the same project shall be required along with the appropriate fee.

j.   Amendment to a plan: Applications for amendment of a permit application in written and/or graphic form may be made at any time under the same conditions as the original permit application. Until such time as said amendment is approved by the stormwater administrator, the land disturbing activity shall not proceed except in accordance with the permit application as originally approved. The review process for the amendment shall be the same as for a new permit application submittal.

(6)   Other considerations of the review and approval process:

a.   Display of approved plan and permit: The approved plan and grading and stormwater permit must be kept on file at the job site until the job is stabilized and completed.

b.   Revised permit application after approval: The stormwater administrator may, after approving a permit application, require a revised application upon making the following findings:

1.   Either upon review of such permit application or on inspection of the job site, determines that a significant risk of accelerated erosion, off-site sedimentation, or risk of damage due to stormwater flows exists.

2.   Upon finding that the erosion and sedimentation control or the post-construction stormwater control measures presented in the permit application are inadequate to meet the requirements of this section.

c.   Status of work: Pending the preparation of the revised permit application, work shall cease or may continue under conditions outlined by the stormwater administrator.

(d)   Permit close out and release requirements.

(1)   Permit close out: For all development, redevelopment and land disturbing activity, which requires a grading and stormwater permit pursuant to the provisions of this section, no certificate of compliance or occupancy shall be issued by the city without a final release of the grading and stormwater permit by the stormwater administrator, except where multiple units are served by a single grading and stormwater permit, in which case the city may elect to withhold a percentage of permits or certificates of occupancy until a final release of any required performance securities.

(2)   Final release requirements:

a.   As-built record drawings: For all development, redevelopment and land disturbing activity which require structural BMPs, stormwater management control facilities, conveyances and related improvements, an as-built record drawing must be submitted and approved by the stormwater administrator. The as-built record drawing shall be certified, signed and sealed by a North Carolina professional engineer or landscape architect. Requirements for the as-built record drawing and submittal can be found in the stormwater BMP manual.

b.   Certificates of completion: For all development, redevelopment and land disturbing activity which require structural BMPs, stormwater management control facilities, conveyances, and related improvements, a certificate of completion must be submitted by the professional engineer or landscape architect, the property owner, the developer and the contractor to the stormwater administrator. The certificate serves to certify that all facilities and improvements have been constructed and installed per the approved design plan, as-built record drawing and requirements set forth in the stormwater BMP manual. The certificate of completion form shall be available from the office of the stormwater administrator.

c.   Operation and maintenance agreement: For all development, redevelopment and land disturbing activity which require structural BMPs or stormwater management control facilities, an operation and maintenance agreement must be submitted and approved by the stormwater administrator, on a form available from the office of the stormwater administrator.

d.   Slope stability certifications: For all development, redevelopment and land disturbing activity which require a slope stability certificate in accordance with the provisions of this section, the slope stability certificate must be submitted and approved by the stormwater administrator. The slope stability form shall be available from the office of the stormwater administrator.

e.   Other requirements: Depending on the scope of the development, redevelopment and land disturbing activity, other items may be required for final approval. These may include, but are not limited to, easements and plats.

(3)   Final inspection: The stormwater administrator shall perform a final inspection verifying that all disturbed areas have been stabilized, that all permanent erosion control measures and stormwater management BMPs, facilities and improvements have been installed per the approved design plan, as- built record drawing and compliance with all requirements set forth in the stormwater BMP manual. A certificate of occupancy shall not be issued until there is a final inspection signed by the stormwater administrator.

(e)   Erosion prevention and sediment control.

(1)   Basic control objectives: An erosion and sedimentation control plan shall be disapproved if the plan fails to address the basic control objectives. The basic control objectives which are to be considered in developing and implementing an erosion and sedimentation control plan are:

a.   Identify critical areas: On-site areas which are subject to severe erosion and off-site areas which are especially vulnerable to damage from erosion and/or sedimentation are to be identified and receive special attention;

b.   Limit time of exposure: All land disturbing activities are to be planned and conducted to limit exposure to the shortest practicable time;

c.   Limit exposed area: All land disturbing activities are to be planned and conducted to limit the size of the area to be exposed at any one time;

d.   Control surface water: Surface water runoff originating upgrade of exposed areas shall be controlled to reduce erosion and sediment loss during the period of exposure;

e.   Control sedimentation: All land disturbing activities shall be planned and conducted so as to prevent off-site sedimentation damage; and

f.   Manage stormwater runoff: When the increase in the velocity of stormwater runoff resulting from a land disturbing activity is sufficient to cause accelerated erosion of the receiving watercourse, plans must include measures to control the velocity to the point of discharge so as to minimize accelerated erosion of the site and increased sedimentation in the stream.

(2)   Mandatory standards for land disturbing activity:

a.   Land disturbing activity subject to this section shall be undertaken in accordance with the following requirements:

1.   Land disturbing activity shall not occur within a 30-foot undisturbed buffer around all perennial and intermittent surface waters.

2.   Land disturbing activity described in subsection (a)(7)(c)(1) of this section shall observe a buffer zone around lakes and natural watercourses along the margin of the watercourse of sufficient width to confine visible siltation within the 25 percent of the buffer zone nearest the land disturbing activity.

3.   Land disturbing activity occurring pursuant to a decision rendered under subsection (j) of this section shall meet the buffer requirements established in that decision.

4.   Measurement of aquatic buffer width: The width of the undisturbed buffer is measured horizontally from the top of bank to the landward side of the watercourse (i.e. moving perpendicularly away from the water toward uplands or disturbed areas.

5.   Overgrowth of greenery: Removal of invasive species, undergrowth and selective thinning of trees smaller than four inches in diameter is allowed within the aquatic buffer provided notice is given to the office of the stormwater administrator.

6.   Stabilization of riverbanks: Most land disturbing activities in and on the bank of perennial and intermittent waters are regulated by the U.S. Army Corps of Engineers under Section 4040 of the Federal CWA and the North Carolina Division of Water Quality under Section 401 of the Federal CWA. In addition, a grading permit is required unless the activity is exempt as described in subsection 7-12-2(a)(7). In all cases, and to the maximum extent practicable, riverbank stabilization activities must use bioengineering methods and principles of natural design rather than concrete walls and other hardened structures.

7.   Trout buffers: No land disturbing activity shall be undertaken within an aquatic buffer adjacent to designated trout waters, as classified by the NCEMC that will cause adverse temperature fluctuations in the trout waters, as set forth in 15 NCAC 2B.0211 "Fresh Surface Water Classification and Standards." Exceptions and variances to buffers along designated trout streams may only be granted by DENR—Division of Land Resources.

b.   Grading activity in a designated landscape buffer zone. When developing a site in a designated landscape buffer zone, the following shall apply:

1.   Land disturbance is permitted in the designated landscape buffer zone and the developer is required to plant trees and shrubs which are 50 percent larger than normally required in order to reestablish quickly a visual buffer.

2.   Utilities are to be installed along the edge of the designated landscape buffer zone and cross perpendicular to the designated landscape buffer zone. Land disturbance that occurs in a designated landscape buffer zone shall not result in a slope that exceeds 3:1. Developers will be encouraged to provide as gradual a slope as practicable in the buffer area to provide increased soil stability and a better planting environment for buffer trees and shrubs.

3.   The land disturbing activity shall be conducted in accordance with the approved erosion and sedimentation control plan.

c.   Grading along property line: For land disturbing activities for which a formal erosion and sedimentation control plan is required by this section, no grading activity or land disturbance may be conducted within ten feet of any property line unless written notice of the grading activity or land disturbance has been provided to the adjacent property owner and approval of the stormwater administrator has been received. Grading for access point and utility extensions shall be exempt from this subsection.

d.   Grading without an approved development plan: Land disturbance without an approved development plan, defined as the grading (including mass tree removal) of a site for which no development plan has been approved, shall not be permitted.

1.   A landscape plan must be approved by the planning department and an erosion control plan must be approved by the stormwater administrator prior to initiation of the land disturbing activity. No grading and stormwater permits shall be issued prior to review and approval of the landscape plan by the planning department.

2.   The landscape plan must show the location of existing trees to be preserved and the location and type of any required buffer yard trees and street trees which will remain. The determination of the type of buffer required shall be based upon the most intense development permitted in the zoning district in which the project being graded is located.

3.   All required trees shall be planted within 30 days of completion of the land disturbance activity or within 12 months of the date the land disturbance activity was initiated, whichever is less. This time period may be extended through the posting of a financial guarantee as provided for in section 7-11-2 of the UDO.

4.   An effective permanent ground cover shall be applied on the site within 14 days of completion of the land disturbing activity unless completion occurs outside a growing season, in which case an effective temporary ground cover shall be applied within 14 days. No ground cover shall be required for bare rock.

e.   Graded slopes and fills:

1.   Angle: The angle for graded slopes and fills shall be no greater than the angle that can be retained by vegetative cover or other adequate erosion control devices or structures. In any event, slopes left exposed will, within 14 days of completion of any phase of grading, be planted or otherwise provided with temporary or permanent ground cover, devices, or structures sufficient to restrain erosion. The angle for graded slopes and fills must be demonstrated to be stable. Stable is the condition where the soil remains in its original configuration, with or without mechanical constraints. The use of gunite or similar materials is not allowed as a method for slope stabilization.

2.   Benches: Terracing or slope breaks should be used on steep slopes to reduce the length of cut and fill slopes to prevent erosion and formation of gullies. Benches should be five feet wide, rounded at the edges, and spaced according to the following table:

3.   Compaction requirement: All fill slopes shall be compacted full depth to not less than 95 percent maximum density (Standard Proctor), shall be placed on a surface cleared of growth and debris, and be properly benched and drained.

4.   Severe slopes: All constructed severe slopes greater than 2:1 shall be designed by a North Carolina registered professional engineer. Additionally, for constructed severe slopes greater than five feet in height, an inspection and a stability certificate are required by a North Carolina registered professional engineer with geotechnical expertise sufficient to perform the inspection and stability analysis. For all constructed severe slopes within proposed or existing public rights-of-way, periodic inspections and compaction reports are required by a North Carolina registered professional engineer with geotechnical expertise.

5.   Slope setback requirements: Setback from existing adjacent property and rights-of-way lines is required for retaining walls and constructed moderate and severe slopes as indicated. For the purpose of this subsection, constructed moderate and severe slopes shall include those created for the construction of retaining walls. The setback shall be measured from and applied for both the head and the toe of the slope.

a)   The setback shall be equal to the maximum height of the slope.

b)   The required setback may be reduced if a subsurface exploration analysis of the area is completed by a North Carolina registered professional engineer with geotechnical expertise and the analysis indicates that the reduction in the setback will not cause greater risk of damage to adjacent public and private properties.

6.   Stability certificate findings: At a minimum, the stability certificate must state that the slope is free of failures, including, but not limited to cracks, sloughs and slippages, that the compaction requirement as set forth above has been met, that soil should remain in its original configuration and that temporary or permanent ground cover is provided. The stability certificate must be submitted and approved before a certificate of occupancy is issued.

f.   Fill material: Unless a permit from NCDENR—Division of Waste Management to operate a landfill is on file for the official site, acceptable fill material shall be free of organic or other degradable materials, masonry, concrete and brick in sizes exceeding 12 inches, and any materials which would cause the site to be regulated as a landfill by the State of North Carolina.

g.   Access and haul roads: Temporary access and haul roads, other than public roads, constructed or used in connection with any land disturbing activity shall be considered a part of such activity.

h.   Allowable disturbances:

1.   Maximum limits of disturbance at one time: Land disturbance in any area with a natural average slope in excess of 15 percent shall be limited to disturbing not more than five acres at a time. Any one disturbed area must be stabilized per the requirements of the soil erosion and sediment control standards as set forth in this section prior to beginning disturbance on any subsequent area.

a)   The stormwater administrator may grant a waiver to the five-acre limitation but only if: (i) the disturbance does not exceed 20 acres; and (ii) the erosion and sediment controls in the formal plan are designed for a 50-year storm; and (iii) a North Carolina licensed registered professional is contracted with to perform all required inspections as required by subsection 7-12-2(g)(5); and (iv) the area of disturbance is located a minimum of 50 feet from a perennial or intermittent stream or down slope properties.

b)   For the purposes of this provision, non-contiguous areas located within 1,500 feet of each other and owned and/or developed by the same person(s) shall be considered the same project.

2.   Steep slope and others: For properties where steep slope and/or ridgetop protection regulations apply, as defined in section 7-12-4 of the UDO, limits on maximum allowable disturbance shall be as indicated by those applicable regulations. The as-built record drawing must be submitted and approved by the stormwater administrator prior to final inspection approval for any phase of land disturbing activity.

3.   Security for re-vegetation: A security for re-vegetation is required for all land disturbances which exceeds five acres. The security shall be in the form of a construction bond, letter of credit, or certified check and must be provided prior to the issuance of the grading and stormwater permit. The security shall be sufficient to re-vegetate proposed disturbed areas and shall be valid for one year from the issuance of the permit and be updated throughout the process.

i.   Borrow and waste area:

1.   When the person conducting the land disturbing activity is also the person conducting the borrow or waste disposal activity, areas from which borrow is obtained and which are not regulated by the provisions of the Mining Act of 1971, and waste areas for surplus materials other than landfills regulated by NCDENR—Division of Waste Management, shall be considered as part of the land disturbing activity where the borrow material is being used or from which the waste material originated. When the person conducting the land disturbing activity is not the person obtaining the borrow and/or disposing of the waste, these areas shall be considered a separate land disturbing activity.

2.   The formal plan shall include a soil volume balance calculation and state if there will be borrowed or waste fill material used. If borrowed or waste fill material is generated, an approved grading permit must be secured for the borrow or waste material site prior to initiation of any land disturbing activity, unless the site is not excluded by the mining or landfill act.

(3)   Design and performance standards:

a.   Design storm protection: Erosion and sedimentation control measures, structures, and devices shall be planned, designed, and constructed to provide protection from the calculated maximum peak rate of runoff from the ten-year storm. Runoff rates shall be calculated using the procedures in the USDA, Soil Conservation Service's "National Engineering Field Manual for Conservation Practices", or other acceptable calculation procedures. If an area has been listed on the watershed overlay zone inventory by the stormwater administrator, erosion control measures for such sites or specific measures on a site shall be designed for, at a minimum, the 25-year storm. The watershed overlay zone inventory is available from the office of the stormwater administrator. The watershed overlay zone inventory shall be subject to a bi-annual review, the process and method for such a review shall be established by policy of the stormwater administrator.

b.   Innovative measures: Erosion and sedimentation measures applied alone or in combination to satisfy the intent of this section are acceptable if they are sufficient to prevent adverse secondary consequences. Innovative techniques and ideas will be considered and may be used following approval by the stormwater administrator if it can be demonstrated that such techniques and ideas are likely to produce successful results.

c.   Watershed overlay zone: In watershed overlay zones, the following design standards shall apply:

1.   Uncovered areas in watershed overlay zones shall be limited at any time to a maximum total area of 20 acres within the boundaries of the site. Only the portion of the land disturbing activity within a watershed overlay zone shall be governed by this section. Larger areas may be uncovered within the boundaries of the site with the written approval of the stormwater administrator.

2.   Erosion and sedimentation control measures, structures, and devices within watershed overlay zones shall be planned, designed and constructed to provide protection from the runoff of the 25-year storm which produces the maximum peak rate of runoff as calculated according to procedures in the United States Department of Agriculture Soil Conservation Service's "National Engineering Field Manual for Conservation Practices" or other calculations or procedures generally recognized in the field including those adopted by any other agency of this state or the United States or any generally recognized organization or association and approved by the stormwater administrator.

3.   Sediment basins within watershed overlay zones shall be designed and constructed such that the basin will have an overall sediment removal efficiency of at least 85 percent and a settling efficiency of at least 70 percent for the 40 micron (0.04 millimeter) size soil particle transported into the basin by the runoff of that two-year storm which produces the maximum peak rate of runoff as calculated according to procedures in the United States Department of Agriculture Soil Conservation Service's "National Engineering Field Manual for Conservation Practices" or other calculations or procedures generally recognized in the field including those adopted by any other agency of this state or the United States or any generally recognized organization or association and approved by the stormwater administrator.

4.   Newly constructed open channels in watershed overlay zones shall be designed and constructed with side slopes no steeper than two horizontal to one vertical (2:1) if a vegetative cover is used for stabilization unless soil conditions permit a steeper slope or where the slopes are stabilized by using mechanical devices, structural devices or other acceptable ditch liners. In any event, the angle for side slopes shall be sufficient to restrain accelerated erosion.

5.   Ground cover sufficient to restrain erosion must be provided for any portion of a land disturbing activity in a watershed overlay zone within 14 days following completion of construction. When construction activity has ceased in a particular site of a larger development, effective permanent ground cover must be applied within 14 days from the date of the last land disturbing activity.

6.   Any additional reasonable measures determined by the stormwater administrator to be required to bring the City of Asheville into compliance, or to maintain compliance with, provisions of the city's NPDES stormwater discharge permit, a total maximum daily load (TMDL) once approved by the State of North Carolina or the U.S. Environmental Protection Agency for one or more pollutants, a consent decree or other order issued under the provisions of the Clean Water Act (33 USC 1251 et seq.) or other federal or state law or regulation.

(4)   Stormwater outlet protection:

a.   Intent: Stream banks and channels downstream from any land disturbing activity shall be protected from increased degradation by accelerated erosion caused by increased velocity of runoff from the land disturbing activity.

b.   Performance standard: Persons engaged in land disturbing activity shall conduct such activity so that the post-construction velocity of the ten-year storm runoff in the receiving watercourse to the discharge point does not exceed the greater of:

1.   The non-erosive velocities for the downstream channel conditions as specified in the North Carolina Erosion and Sediment Control Planning and Design Manual, or

2.   The velocity of the ten-year storm runoff in the receiving watercourse prior to development.

c.   Acceptable management measures: Measures applied alone or in combination to satisfy the intent of this section are acceptable if there are no objectionable secondary consequences. The city recognizes that the management of stormwater runoff to minimize or control downstream channel and bank erosion is a developing technology. Innovative techniques and ideas will be considered and may be used when shown to have the potential to produce successful results. Some alternatives, while not exhaustive, are to:

1.   Avoid increases in surface runoff volume and velocity by including measures to promote infiltration to compensate for increased runoff from areas rendered impervious;

2.   Avoid increases in stormwater discharge velocities by using vegetated or roughened swales and waterways in place of closed drains and high velocity paved sections;

3.   Provide energy dissipaters at outlets of storm drainage facilities to reduce flow velocities to the point of discharge;

4.   Protect watercourses subject to accelerated erosion by improving cross sections and/or providing erosion-resistant lining; and

5.   Upgrade or replace the receiving device structure, or watercourse, such that it will receive and conduct the flow to a point where it is no longer subject to degradation from the increased rate of flow or increased velocity.

d.   Non-applicability: This subsection pertaining to stormwater outlet protection shall not apply where the applicant can demonstrate through engineer analysis on the sealed plans that stormwater discharge volumes and velocities will not create an erosion problem in the receiving watercourse.

(5)   Operations in lakes or natural watercourses: Land disturbing activity in connection with construction in, on, over, or under a lake or natural watercourse falls within the jurisdiction of appropriate state and federal agencies, including but not limited to NCDENR—Division of Water Quality and the Army Corps of Engineers. Developers should consult with the appropriate state and/or federal agencies to obtain the necessary permits and requirements. In all cases and to the maximum extent practicable, operations in lakes and natural watercourses shall minimize the extent and duration of disruption of the stream channel. Where relocation of a stream forms an essential part of the proposed activity, the relocation shall minimize unnecessary changes in the stream flow characteristics.

(6)   Uncovered areas:

a.   Ground cover: Whenever land disturbing activity is undertaken on a site, the person conducting the land disturbing activity shall install erosion and sedimentation control devices and practices that are sufficient to retain the sediment generated by the land disturbing activity within the boundaries of the site during construction upon and development of said site, and shall plant or otherwise provide a permanent ground cover sufficient to restrain erosion after completion of construction or development. Provisions for a ground cover sufficient to restrain erosion must be accomplished within 14 days following completion of construction or development. To the maximum extent practicable, native or indigenous plant species shall be used for permanent ground cover.

b.   Existing uncovered areas: All uncovered areas existing on the effective date of this section which resulted from land disturbing activities, and are subject to continued accelerated erosion, and are causing off-site damage from sedimentation, shall be provided with a ground cover or other protective measures, structures, or devices sufficient to restrain accelerated erosion and control off-site sedimentation.

c.   Extensive control measures: The stormwater administrator reserves the right to require preparation and approval of an erosion control plan in any instance wherein extensive control measures are required.

d.   Planned reservoir: This section shall not require ground cover on cleared land forming the future basin of a planned reservoir.

e.   Fee: No fee shall apply to work required under this subsection except when the stormwater administrator exercises the right to require an erosion control plan.

(7)   Responsibility for installation, operation, and maintenance of temporary and permanent soil erosion and sedimentation control measures:

a.   During construction: During the development of a site, the person conducting the land disturbing activity shall install and maintain all temporary and permanent soil erosion and sedimentation control measures as required by the approved plan, by any provision of this section, by any order adopted pursuant to this section, or any provision of the North Carolina Sediment Pollution Control Act.

b.   After construction: After site development, the property owner or person in possession or control of the land shall install and/or maintain all necessary permanent soil erosion and sedimentation control measures, except those installed within a road or street right-of-way or easement accepted for maintenance by a government agency.

c.   Clean up requirements: When sediment is transported onto a public road surface, the road shall be cleaned thoroughly at the end of each day. Sediment shall be removed from the roads by shoveling or sweeping and transported to a sediment control disposal area. Street washing shall be allowed only after sediment is removed in this manner.

d.   Cost of clean-up by city: If the city must clean-up off-site sedimentation or mitigate other erosion related public safety and environmental hazards, the person in violation will be charged for the cost of the cleanup in addition to the civil penalty. The cleanup cost shall include personnel wages, equipment usage, and related administrative overhead costs. If the violator does not pay for the cleanup cost, revoked permits shall not be re-issued. Additionally, the city shall proceed in accordance with the enforcement provisions of this section to collect the cost of the clean up.

e.   Restoration of land and waters: The city may require a person who engaged in a land disturbing activity and failed to retain sediment generated by the activity, as required by NCGS 113A-57(3), to restore the waters and land affected by the failure so as to minimize the detrimental effects of the resulting pollution by sedimentation. This authority is in addition to any other civil penalty or equitable relief.

f.   Additional measures: Whenever the city determines that significant erosion and sedimentation is occurring as a result of land disturbing activity, despite application and maintenance of protective practices, the person conducting the land disturbing activity will be required to and shall take additional protective action.

(f)   Post-construction stormwater control.

(1)   Standards for stormwater quantity control: All development and redevelopment to which this subsection applies shall comply with the standards herein. The design of facilities to comply with these standards shall be based on procedures contained in the stormwater BMP manual or as approved by the stormwater administrator guided by the spirit, purpose and intent of this section. The minimum "post-construction" stormwater control requirements included in the stormwater management plan shall provide management measures necessary to accomplish the following:

a.   Limit the two-year and ten-year developed peak discharge rates to pre-developed peak discharge rates using a duration of 24-hours with a SCS Type II design storm and pass the 50-year, 24-hour storm event. The stormwater administrator may require control to pre-development rates for the 25-year, 24-hour storm, if by using existing watershed master plan analysis it is found that that additional flow reduction is required to protect downstream properties, natural and built drainage facilities due to the additional peak flows from the 25-year 24-hour storm event.

b.   Provide extended detention for the difference between the pre-development and post development volume of the 2-year 24-hour SCS Type II design storm. The increase in runoff volume must be detained between 24-hours to 72-hours. Provided that the stormwater administrator may require volume control for the difference between the pre-development and post development volume of the 25-year 24-hour storm if by using existing watershed master plan analysis it is found that that additional volume reduction is required to protect downstream properties, natural and built drainage facilities due to the additional runoff volumes from the 25- year 24-hour storm event.

(2)   Standards for stormwater quality control: All development and redevelopment to which this subsection applies shall comply with the standards herein. The design of facilities to accomplish these standards shall be based on procedures contained in the stormwater BMP manual or approved by the stormwater administrator. The minimum "post-construction" stormwater control requirements included in the stormwater management plan shall provide management measures necessary to accomplish the following:

a.   Control and treat the stormwater runoff leaving the site from the first one inch of rain. The volume of runoff from the first inch of rain must be detained between 48 hours to 120 hours.

b.   All structural stormwater treatment systems used to meet the requirements of the program shall be designed to have a minimum of 85 percent average annual removal for total suspended solids.

c.   General engineering design criteria for all projects shall be in accordance with 15A NCAC 2H.1008(c).

d.   If the developer utilizes stormwater sheetflow measures across aquatic buffers, filtration, [bioretention], enhanced on-site infiltration, and/or other effective measures thereby managing both the stormwater quantity and quality, the post-construction stormwater control standards described in subsection 7-12-2(f)(1) and (2) above shall be altered or waived by the stormwater administrator to the extent that the measures provide the same level of treatment, discharge, and velocity control as would be accomplished under the post-construction stormwater control standards using the methods defined in the BMP manual.

(3)   Aquatic buffers: Post construction:

a.   Aquatic buffer: A 30-foot undisturbed aquatic buffer shall be required along perennial and intermittent waterbodies. Landowners may challenge the classification of a stream (i.e. perennial, intermittent, ephemeral), using the methods for delineating waters developed by the North Carolina Division of Water Quality. Property owners are responsible for the cost of having the necessary field investigations performed by competent persons. By approval of this ordinance, the North Carolina Division of Water Quality hereby authorizes appropriately trained city staff to make a field determination of the stream classification.

b.   Reduction of excess aquatic buffer: Property owners may petition the stormwater administrator for reduction of the portion of any undisturbed aquatic buffer that exceeds state minimum requirements if the property owner agrees to establish and maintain:

1.   Vegetation within the aquatic buffer to meet standards set forth in the best management practices manual or approved by the stormwater administrator as being in accord with such manual; and

2.   A level-spreader outside of the aquatic buffer ensuring sheet flow entering the buffer or undertakes other mitigating stormwater management measures approved by the stormwater administrator as acceptable under industry standards.

c.   Buffer width: The width of the undisturbed aquatic buffer is measured horizontally from the top of bank to the landward side of the watercourse. (i.e. moving perpendicularly away from the water toward uplands or disturbed areas).

d.   Substantial improvements: For substantial improvements on parcels that have previously been developed, the aquatic buffer must be restored by removing built-upon areas from the aquatic buffer and by planting and landscaping the aquatic buffer per landscape requirements as set forth in the UDO where practicable. If complete restoration of the aquatic buffer is not practicable, other mitigating stormwater management measures that enhance the function of the available buffer or otherwise substantially replace the function of the aquatic buffer may be used for compliance with this section, as approved by the stormwater administrator.

(4)   Additional standards for special situations:

a.   Trout waters: In addition to the standards for stormwater handling set out in the stormwater BMP manual, development and redevelopment that drains in whole or in part to trout waters shall design and implement the best stormwater practices that do not result in a sustained increase in the receiving water temperature and allow on-site stormwater treatment devices such as infiltration areas, bio-retention areas, and level spreaders as added controls, while meeting the other requirements of this section.

b.   Watershed overlay zones: In addition to the standards for stormwater handling set out in the stormwater BMP manual, development and redevelopment that is in whole or in part within a watershed overlay zone shall implement additional measures determined by the stormwater administrator to be required to bring the City of Asheville into compliance or to maintain compliance with provisions of the city's NPDES stormwater discharge permit, a total maximum daily load (TMDL) once approved by the State of North Carolina or the U.S. Environmental Protection Agency for one or more pollutants, a consent decree or other order issued under the provisions of the Clean Water Act (33 USC 1251 et seq.) or other federal or state law or regulation.

(5)   On-site waste water:

a.   Operation and maintenance requirements: New and replaced onsite systems for domestic wastewater installed after the effective date of this ordinance must be approved and permitted by the Buncombe County Health Department. Both the Buncombe County septic permit and documentation showing the operation and maintenance for the system are required before a permit may be issued.

b.   Standards for operation and maintenance: Onsite systems for domestic wastewater covered by this section shall be operated and maintained so as to avoid adverse effects on surface water and groundwater, including eutrophication of surface water and microbial or nitrate contamination of groundwater. Septic tank residuals shall be pumped whenever necessary to assure the proper operation of the system to meet these standards, and the seepage shall be reused or disposed of in a manner that does not present significant risks to human health, surface water or groundwater.

(6)   Standards for stormwater control measures:

a.   Stormwater BMP manual: To assist in the design and evaluation of stormwater management facilities in the city, the stormwater administrator shall prepare and adopt a stormwater BMP manual. The stormwater BMP manual shall contain recommended design procedures and criteria presented for conducting evaluations of practices. The intention of the stormwater BMP manual is to establish uniform design practices; it neither replaces the need for engineering judgment nor precludes the use of information not presented. Other accepted engineering procedures may be used to evaluate practices if approved by the stormwater administrator.

1.   If the specifications or guidelines of the stormwater BMP manual are more restrictive or apply a higher standard than other laws or regulations, that fact shall not prevent application of the specifications or guidelines in the stormwater BMP manual.

2.   If the standards, specifications, guidelines, policies, criteria, or other information in the stormwater BMP manual are amended subsequent to the submittal of an application for approval pursuant to this section but prior to approval, the old information shall control and shall be utilized in reviewing the application and in implementing this section with regard to the application.

3.   The stormwater BMP manual may be updated and expanded from time to time, based on advancements in technology and engineering, improved knowledge of local conditions, or local monitoring or maintenance experience.

b.   Evaluation according to contents of the stormwater BMP manual: All stormwater control measures and stormwater treatment practices (also referred to as best management practices, or BMPs) required under this section shall be evaluated by the stormwater administrator according to the policies, criteria, and information, including technical specifications and standards and the specific design criteria for each stormwater practice, in the stormwater BMP manual. The stormwater administrator shall determine whether they will be adequate to meet the requirements of this section.

c.   Determination of adequacy; presumptions and alternatives: Stormwater treatment practices that are designed, constructed, and maintained in accordance with the criteria and specifications in the stormwater BMP manual will be presumed to meet the minimum water quality and quantity performance standards of this section. Whenever an applicant proposes to utilize a practice or practices not designed and constructed in accordance with the criteria and specifications in the stormwater BMP manual, the applicant shall have the burden of demonstrating that the practice(s) will satisfy the minimum water quality and quantity performance standards of this section. The stormwater administrator may require the applicant to provide such documentation, calculations, and examples as necessary to determine whether such an affirmative showing is made.

(7)   Locations and dedication of BMPs, facilities and improvements:

a.   Upon review and recommendation of the stormwater administrator and the director of public works, city council may approve BMPs being located within the city's public rights-of-way. In determining whether to allow a BMP within a city public right-of-way, the factors to consider shall consist of, but not be limited to, whether the BMP is a public benefit, the annual cost to the city to maintain the BMP, the potential liability the BMP exposes to the city, and any other related factors.

b.   The city may accept dedication, subject to final approval from city council, of any existing or future BMPs and stormwater management facilities for maintenance, provided such facility meets all the requirements of this section and any other policies of the city and includes adequate and perpetual access and sufficient area, by easement or otherwise, for inspection and regular maintenance. The city may require as a condition of public acceptance, that the owner arrange for funding costs associated with future maintenance of the BMP or stormwater management facility. Nothing herein shall require the city to accept maintenance of any BMP or stormwater management facility.

(8)   Operation and maintenance of structural BMPs:

a.   Operation and maintenance agreement: The applicant or owner of a site that is required to have a structural BMP pursuant to this section must execute an operation and maintenance agreement prior to issuance of a certificate of occupancy for development or redevelopment. The form "Operation and Maintenance Agreement," shall be provided by the office of the stormwater administrator.

b.   Content of operation and maintenance agreement: The operation and maintenance agreement shall require the property owner(s) to maintain, repair, and, if necessary, reconstruct the structural BMP, and shall state the terms, conditions, and schedule of maintenance for the structural BMP, and the right of the city to abate a violation. Additionally, it shall grant the city a right of entry in the event the stormwater administrator has reason to believe it has become necessary to inspect, monitor, maintain, repair, or reconstruct the structural BMP. In no case, however, shall the right of entry confer an obligation on the city to assume responsibility for the structural BMP. Additionally, the agreement shall include language to bind the parties thereto and all subsequent owners, successors and assigns, of the site, portions of the site, and lots or parcels served by the structural BMP.

c.   Maintenance responsibility: The final responsibility for complying with the operation and maintenance agreement provided herein remains with the property owner.

d.   Failure to maintain: If the owner fails to maintain the structural BMP in accordance with the operation and maintenance agreement, the city shall proceed in accordance with subsection 7-12-2(i). Any costs incurred by the city to abate such failure shall be recovered by the city at 120 percent of the actual cost.

e.   Recordation: The operation and maintenance agreement shall be referenced on the final plat; and if there is no final plat, then the agreement shall be referenced on an as-built record drawing and also recorded in the Buncombe County Register of Deeds Office, so as to appear in the chain of title of all subsequent purchasers under generally accepted searching principles, at the expense of the owner/applicant prior to the issuance of the certificate of occupancy.

f.   Deed restrictions and protective covenants: Upon conveyance of real property that is subject to or should be subject to a recorded operation and maintenance agreement, the property owner shall include in the deed of conveyance, deed restrictions, and protective covenants, imposing upon the new owner the responsibility for maintenance of the structural BMPs. Failure to know of the existence of structural BMPs on property prior to purchase is not an excuse from the obligation to maintain the structural BMPs. A failure to include deed restrictions and protective covenants as required by this subsection constitutes negligence per se.

(g)   Inspections and investigations.

(1)   City inspections:

a.   Inspections: The city shall perform routine, random, complaint based, systematic inspections or a combination hereof to ensure continued compliance with the requirements of this section. The city may also conduct joint inspections with other agencies inspecting under environmental or safety laws during or post construction. Notice of the right to inspect shall be included in the approval of each permit application.

b.   Purpose of inspections: Inspections may include, but are not limited to, compliance checks of the approved plan and the grading and stormwater permit, reviewing for compliance with the standards of the stormwater BMP manual, reviewing land disturbing activity and plan effectiveness, reviewing maintenance and repair records, sampling discharges, surface water, groundwater, and material or water in BMPs, and evaluating the condition of BMPs.

(2)   City investigations: The city shall have the power to conduct an investigation as it may reasonably deem necessary to carry out its duties as prescribed in this section and, for this purpose, to enter at reasonable times upon any property, public or private, for the purpose of investigating and inspecting the sites of any activity regulated in this section. No person shall refuse entry or access to any authorized representative or agent of the city, who requests such entry for purposes of inspection, and who presents appropriate credentials, nor shall any person obstruct, hamper, willfully resist, delay or interfere with any such representative while in the process of carrying out his/her official duties.

(3)   Administrative inspection warrant: If the owner or occupant of any property refuses to permit such inspection, the stormwater administrator shall proceed to obtain an administrative inspection warrant pursuant to NCGS 15-27.2. No person shall obstruct, hamper or interfere with the office of the stormwater administrator while carrying out the official duties of this section.

(4)   Written statements/filing of reports: The city shall also have the power to require written statements, or filing of reports under oath, with respect to pertinent questions relating to activity under this section.

(5)   Private inspections during construction:

a.   Contract inspections: A contract is required between the person financially responsible and a licensed professional for all initial inspections required by subsection 7-12-2(g)5.d.2. below.

b.   Contract requirements: The contract required by subsection a. above shall at a minimum provide that the licensed professional will be available for the duration of the construction of the project in order to design new stormwater measures and/or more effective or different erosion sedimentation control measures in the event that the initial controls are ineffective and provide effective and immediate alternatives for compliance with this section should a dispute arise between the parties.

c.   Exemptions: The following lots or sites shall be exempt from the inspection requirements of this subsection:

1.   Land disturbance of 25,000 square feet or less; provided however, steep slope lots with a perennial or intermittent stream located within 100 feet downhill of land disturbance are limited to the percentage of disturbed area on the lot as shown in the table of allowable disturbances set forth in section 7-12-4 of the steep slope regulations of the UDO.

2.   For steep slope areas as set forth under section 7-12-4 of the steep slope regulations of the UDO, only those disturbances that fall within the table of allowable disturbances shall be exempt from the inspection requirement of this subsection.

3.   Sites where land disturbance for construction of a single-family home or comparable structure such as a duplex that disturbs less than 40 percent of the lot and retains, at a minimum, a 30-foot aquatic buffer. Conveyance channels in the buffer area shall be protected in accordance with the field manual of the N.C. Department of Natural Resources.

d.   Inspection requirements:

1.   Certificate of inspection agreement: A notarized certificate of inspection agreement on a form available from the office of the stormwater administrator stating the existence of the contract required hereinabove must be received and approved by the Stormwater administrator before a grading and stormwater permit is issued. All stormwater management facilities and BMPs must be inspected.

2.   Initial inspection: A licensed North Carolina registered professional such as an engineer or landscape architect must perform all initial inspections and must sign the initial inspection report. Initial inspections shall be conducted for the purpose of ensuring that installations required by the approved plan are in place and have been installed consistent with the approved plan. An initial inspection shall be performed as many times as necessary for the licensed registered professional to render a professional opinion as to whether the measures installed on site have been properly installed and are substantially sufficient to comply with the control regulations of this section.

3.   Weekly inspections: A North Carolina registered professional engineer, landscape architect or an inspector holding certification from an erosion and sediment control inspection program acceptable to the stormwater administrator shall conduct weekly inspections for lots where steep slope and/or ridgetop protection regulations apply.

4.   Bi-weekly inspections: A North Carolina registered professional engineer, landscape architect or an inspector holding certification from an erosion and sediment control inspection program acceptable to the stormwater administrator shall conduct bi-weekly inspections on all non-exempt sites of land disturbing activity after the initial inspection.

5.   Additional inspections: If a determination is made by the office of the stormwater administrator that a site continues to violate the provisions of this section, meaning that the site has been issued a written notice of violation three or more times in a six-month time frame, the stormwater administrator shall require that all inspections, whether weekly or bi-weekly, be performed by a professional engineer or landscape architect only.

6.   Inspection filings: The initial and signed inspection report must be filed with the stormwater administrator prior to the commencement of any land disturbing activity. All weekly inspections and bi-weekly inspections must be kept on inspection logs and retained at the site.

7.   Inspection violations: It shall constitute a violation of this section if inspection logs are not on site or made available to city inspectors upon request.

e.   Falsification of reports. Falsification of reports shall constitute a violation of this section.

f.   Forms. Standardized certificate of inspection agreements, reporting forms and reporting process are available upon request from the office of the stormwater administrator.

(6)   Private inspections post-construction:

a.   Due diligence: The owner of each structural BMP installed pursuant to this section shall continuously perform due diligence inspections to ensure that the structural BMP is continuing to function in controlling stormwater quality and quantity at the degree or amount of function for which the structural BMP was designed.

b.   Annual maintenance inspection and report by owner: The owner of any structural BMP installed pursuant to this section shall annually submit to the stormwater administrator an inspection report from a qualified registered North Carolina professional engineer or landscape architect performing services only in their area of competence. The inspection report shall contain all of the following:

1.   The name and address of the property owner;

2.   The recorded book and page number of the lot of each structural BMP;

3.   A statement that an inspection was made of all structural BMPs;

4.   The date the inspection was made;

5.   A statement that all inspected structural BMPs are performing properly and are in compliance with the terms and conditions of the approved maintenance agreement required by this section; and

6.   The original signature and seal of the engineer or landscape architect.

(7)   Records of installation and maintenance activities: The owner of each structural BMP shall keep records of inspection, maintenance, and repairs for at least five years from the date of creation of the record and shall submit the same upon reasonable request to the stormwater administrator.

(h)   Violations and notices.

(1)   General violations: Among other violations not specifically set forth herein, it shall constitute a violation of this section for any person to fail to comply with an approved plan, the grading and stormwater permit, applicable requirements including the failure to provide ground cover, standards, or limitations imposed by this section, or the terms or conditions of any permit or other development or redevelopment approval or authorization granted pursuant to this section; to engage in land disturbing activity without the required approved plan and permit and to falsify reports required under this section. Each day a violation continues shall constitute a separate and distinct violation.

(2)   Immediate violations: It shall constitute an immediate violation of this section if through inspection the office of the stormwater administrator determines that an immediate civil penalty is warranted based upon the table of penalties set forth hereinafter.

(3)   Notice of violation: If through inspection, it is determined that a person has violated this section, the office of the stormwater administrator shall immediately serve a notice of violation upon that person. The notice shall be in writing and served by personal delivery, electronic delivery or by certified or registered mail, return receipt requested. In addition service may be made in accordance with Rule 4 of the N.C. Rules of Civil Procedure. The notice of violation shall be served upon the holder of the development approval and the landowner of the property involved, if the landowner is not the holder of the development approval and may provide by similar means to the financially responsible party or occupant of the property or the person undertaking the work or activity. In addition the notice of violation may be posted on the property involved, in accordance with N.C.G.S. § 160D-404(a). The notice shall contain the following:

a.   The measures needed to comply, the time within such measures must be completed and warn that failure to correct the violation within the time period shall subject the violator to civil and/or other enforcement action.

b.   In determining the measures required and the time allowed for compliance, the office of the stormwater administrator shall take into consideration the economic feasibility, technology, the quantity of work required, and shall set reasonable and attainable time limits of compliance.

(4)   Notice of compliance: Once the violation has been cured, the development, redevelopment and land disturbing activity is in compliance and any penalties assessed have been paid in full or the penalty appeal has been filed within the given time frame; a notice of compliance shall be sent to the financially responsible party.

(i)   Enforcement.

(1)   Civil penalty for soil erosion and sedimentation violations: Any person who violates any of the provisions of the soil erosion and sedimentation control requirements of this section and/or who initiates a land disturbing activity for which an erosion control plan is required except in accordance with the terms, conditions, and provisions of an approved plan, shall be subject to a civil penalty and in some cases, as set forth in the table of penalties below, an immediate civil penalty. The maximum civil penalty for a violation is $5,000.00. A civil penalty may be assessed from the date of the violation. Each day of a continuing violation shall constitute a separate violation.

(2)   Civil penalty for stormwater control, illicit discharge and connection violations: Any person who violates the stormwater control, illicit discharge and connection regulations of this section shall be subject to a civil penalty and in some cases, as set forth in the table of penalties below, an immediate civil penalty. The maximum civil penalty for a violation is $25,000.00; however; for a continuing violation the maximum per day per violation penalty shall be $10,000.00, unless a civil penalty has been imposed against the violator within the five years preceding the current violation. A civil penalty may be assessed from the date of the violation. Each day of a continuing violation shall constitute a separate violation.

(3)   Civil penalty assessment: Upon the failure to comply within the time frame set forth in the notice of violation, the stormwater administrator shall give notice of assessment of a civil penalty by providing notice of the civil penalty amount and the basis for assessment to the person assessed. Provided however, the assessment of an immediate civil penalty shall be deemed compliant with the requirement for prior service of a notice of violation if served simultaneously with the notice of violation. The assessment of a penalty and an immediate civil penalty shall be served personally or by any means authorized under Rule 4 of the N.C. Rules of Civil Procedure and shall direct the violator to either pay the assessment or contest the assessment in writing, within 30 days after receipt of the notice of assessment. The office of the stormwater administrator shall initially assess the civil penalty. In determining the amount of the civil penalty to assess, personnel of the office of the stormwater administrator shall be guided strictly by the table of penalties as set forth herein.

a.   Guidelines for penalty assessment: Upon appeal of the civil penalty assessment to the stormwater administrator, the stormwater administrator shall be guided by the following standards and guidelines in affirming in whole or in part, reversing in whole or in part or modifying the penalty imposed:

1.   Soil erosion and sedimentation penalty:

a)   The severity of the violation: whether slight, moderate or severe;

b)   The degree and harm caused by the violation along with the type of violation;

c)   The duration, cause, extent of any off-site damage which may have resulted;

d)   The effectiveness of action taken by the violator and adherence to the approved plan;

e)   The cost of rectifying any damage, the amount of money the violator saved by noncompliance and the estimated cost of installing and/or maintaining corrective sediment control measures and staff investigative costs;

f)   Whether the violation was committed willfully and the prior record of the violator in complying or failing to comply with referenced subsection.

2.   Stormwater control, illicit discharge and connection penalty:

a)   The degree and extent of harm to the natural resources and/or public roadways of the city;

b)   The degree and extent of harm to the public health, or to private property resulting from the violation;

c)   The duration and gravity of the violation;

d)   The effect on ground or surface water quantity/quality or on air quality;

e)   The cost of rectifying the damage;

f)   The amount of money the violator saved by noncompliance;

g)   Whether the violation was committed willfully;

h)   The prior record of the violator in complying or failing to comply with referenced subsection.

(4)   Criminal penalties: A violation of this section subjects the offender to a civil penalty pursuant to the authority granted by NCGS 160A-175 and does not subject the offender to the criminal penalty provisions of NCGS 14-4 and Section 1-5 of Chapter 1 of the Code of Ordinances of the City of Asheville.

(5)   Stop inspections order: A stop inspection order may be issued for a site by the office of the stormwater administrator with all inspection approvals for and all other permitted activity suspended if the site is not brought into compliance within the time period for cure as set forth in the notice of violation issued under this section. A copy of the notice shall be sent to the office of the director of building safety and upon receipt, a stop inspection order shall be issued from said office. Once the violation has been brought into compliance, a notice shall be sent to the office of the director of building safety and the stop inspection order shall be removed.

(6)   Suspension: The stormwater administrator may suspend any grading and/or stormwater permit for any violation of the provisions of this section if the site is not brought into compliance within the time period for cure as set forth in the notice of violation. To suspend a grading and/or stormwater permit, the stormwater administrator shall serve a notice of continuing violation and permit suspension which shall comply with the notice of violation requirements of subsection 7-12-2(h)(3), upon the financially responsible party. The notice may be served by any means authorized under Rule 4 of the N.C. Rules of Civil Procedure. Once the violation has been cured and all penalties have been paid in full or penalty appeal has been filed within the given time frame, the suspension shall be lifted and notice of such shall be sent to the financially responsible party.

(7)   Revocation: The stormwater administrator may revoke any grading and/or stormwater permit if the site is not brought into compliance within the time period for cure as set forth in the notice of continuing violation and permit suspension. The notice of revocation shall be served in writing pursuant to section 7-12-2(h)(3) above, stating the reason for the revocation and the revocation shall follow the same permit approval and review process required for issuance of the permit, including notice requirements.

(8)   Permit reinstatement: A new permit application and approved plan including all permit fees must be submitted prior to reinstatement of the revoked permits. For permit reinstatement, the site must be deemed to be in compliance with the requirements of this section and all penalties have been paid in full or penalty appeal has been filed within the given time frame.

(9)   Stop work order: If, through inspection, it is determined that a land disturbing activity is being conducted in violation of this section or of any rule adopted or order issued pursuant to this section, or other applicable local development regulation or any state law delegated to the local government for enforcement purposes in lieu of the state undertaken in substantial violation of any state or local law, or in a manner that endangers life or property, and that the violation is knowing and willful, and that either: (a) off-site sedimentation has eliminated or severely degraded a use in a lake or natural watercourse or that such degradation is imminent; or (b) off-site sedimentation has caused severe damage to adjacent land or that such damage is imminent; or (c) the land disturbing activity is being conducted without an approved plan, the stormwater administrator, upon compliance with all of the procedural requirements of N.C.G.S. § 113A-65.1, may issue a stop work order, the duration of which is not to exceed five days. The stop work order shall be served by the sheriff of Buncombe County or some other person duly authorized by law to serve process as provided by Rule 4 of the N.C. Rules of Civil Procedure.

(10)   Summary abatement: If through inspection, the stormwater administrator determines that a violation occurring under this section represents an imminent threat to life or property, the stormwater administrator shall take such action as may be necessary to protect the public and correct the violation.

(11)   Abatement: If an order directing the correction of a violation representing a threat to life or property is not complied with within the applicable period of time, the city may, after notice to the owner, enter the land and perform all necessary work to abate the threat to life or property. Notice shall be in writing and shall be delivered to the financially responsible party by hand delivery; by certified mail, return receipt requested; or by any other means allowed by Rule 4 of the N.C. Rules of Civil Procedure.

(12)   Cost of abatement lien against property: The city may assess the owner of the subject property with the cost of any work performed by the city pursuant to an abatement, which cost shall be a lien on such property and may be collected as provided in N.C.G.S. § 160A-193. Notice shall be provided five days prior to entry and performance of necessary work by the city. For stormwater management facilities, the owners of all property served by the facility shall be jointly and severally responsible to the city for the maintenance of the facility and liable for any costs incurred by the city. All such properties are jointly and severally subject to the imposition of liens for said costs.

(13)   Action for failure to comply and failure to pay civil penalty: If violations are not cured or corrected within the time specified in the notice of violation and/or the violator fails to give timely notice of appeal or fails to pay the civil penalty assessed within the prescribed time period, then the matter may be referred to the city's debt set-off program and/or referred to the city attorney for institution of a civil action in the name of the city in a court of competent jurisdiction. In addition to, or in lieu of, the other remedies set forth in this section, the city attorney may institute an injunctive action, mandamus action, or other appropriate proceeding. Upon determining that an alleged violation is occurring or is threatened, a court hearing an appeal for relief shall enter such orders and/or judgments as are necessary to abate or prevent the violation. The institution of an action for injunctive or other relief under this section shall not relieve any party to such proceeding from any civil penalty prescribed by this section for violations of this section.

(j)   Variances, exceptions and appeals.

(1)   Variances: Any aggrieved person may petition for a variance to the board of adjustment to use one's land in a manner otherwise prohibited by this section. Variances may also be requested from the aquatic buffer requirements, deed restrictions and protective covenants required herein. Reasonable and appropriate conditions and safeguards may be imposed on any variance granted. Merely providing that the variance would permit a greater profit from the property shall not be considered adequate justification for a variance. All of the procedural requirements of the entity charged with granting a variance shall be met by the applicant. Provided however, only the NCDENR—Division of Land Resources may grant a variance or exception as herein below set forth, to aquatic buffers along designated trout streams. The stormwater administrator may support an applicant's appeal for a variance if the applicant's application satisfies all of the following criteria:

a.   Unnecessary hardships would result from strict application of this section.

b.   The hardships result from conditions that are peculiar to the property, such as the location, size, or topography of the property.

c.   The hardships did not result from actions taken by the applicant.

d.   The requested variance is consistent with the spirit, purpose, and intent of this section; will protect water quality; will secure public safety and welfare; and will preserve substantial justice.

(2)   Exceptions: The stormwater administrator may approve plans that do not comply with the mandatory standards of subsection 7-12-2(e)(2) of this section if the land disturbing activity is for the construction of facilities to be located on, over, or under a lake or natural water course or work done for the purposes of creating trails, walkways, river access areas, and similar facilities along the rivers, creeks or streams. Where one or more measures required under subsection 7-12-2(e)(2) are not practicable, the stormwater administrator may approve plans provided that additional measures are installed that provide the same level of treatment, discharge and velocity control.

a.   Required exceptions: Notwithstanding the variance allowance herein, the stormwater administrator shall grant an exception from the aquatic buffer requirements, deed restrictions and protective covenants in any of the following instances:

1.   When there is a lack of practical alternatives for a road crossing, railroad crossing, bridge, airport facility, or utility crossing as long as it is located, designed, constructed, and maintained to minimize disturbance, provide pollutant removal, protect against erosion and sedimentation, have the least adverse effects on aquatic life and habitat, and protect water quality to the maximum extent practicable through the use of the BMPs.

2.   When there is a lack of practical alternatives for a stormwater management facility; a stormwater management pond; or a utility, including, but not limited to, water, sewer, or gas construction and maintenance corridor, as long as it is located 15 feet landward of all perennial and intermittent surface waters and as long as it is located designed, constructed, and maintained to minimize disturbance, provide pollutant removal, protect against erosion and sedimentation, have the least adverse effects on aquatic life and habitat, and protect water quality to the maximum extent practicable through the use of BMPs.

3.   A lack of practical alternatives may be shown by demonstrating that, considering the potential for a reduction in size, configuration, or density of the proposed activity and all alternative designs, the basic project purpose cannot be practically accomplished in a manner which would avoid or result in less adverse impact to surface waters.

b.   Limitation of aquatic buffer with a granted exception: Where a temporary and minimal disturbance has been permitted as an exception to the aquatic buffer, to the extent practicable, land disturbing activities in the aquatic buffer shall be limited to a maximum of ten percent of the total length of the aquatic buffer within the site to be disturbed such that there is not more than 100 linear feet of disturbance in each 1,000 linear feet of aquatic buffer.

(3)   Appeals: Any aggrieved party may file an appeal for or from the issuance of a variance, or from the denial/grant of an exception, penalty assessment, notice of violation, permit disapproval/modification, order, requirement, determination or interpretation rendered under the provisions of this section. The appeals process shall be as follows:

a.   To the stormwater administrator: With the exception of appealing for the issuance of a variance, all appeals must initially be heard by the stormwater administrator. The appeal must be submitted in writing within 30 days of receipt of an adverse action (for the disapproval or modification of a permit application for failing to meet the erosion prevention and sediment control provisions of this section, the appeal must be submitted within 15 days) and shall specify the specific grounds for relief and what relief is requested. The stormwater administrator shall render a decision no later than 30 days from receipt of the written appeal. Further appeal may be taken to the soil erosion/stormwater review committee as established herein, within 30 days from the date of receipt of the decision of the stormwater administrator.

b.   To the soil erosion/stormwater review committee: A soil erosion/stormwater review committee (committee) is hereby created for the purpose of hearing appeals taken from the stormwater administrator. The committee shall be composed of five members as follows: two city department directors designated by the city manager, one member of the planning and zoning commission, and two members appointed by the Asheville City Council, one a resident of the City of Asheville and the other from either the City of Asheville or the extra-territorial jurisdiction (ETJ) of the city, at least one of whom shall have a professional accreditation in the practice of stormwater management, erosion and sediment control, or related areas of professional practice. A simple majority of the appointed members shall constitute a quorum. The committee shall hold an organizational meeting within a reasonable period of time after adoption of this section to appoint a chair and adopt rules of procedure to govern appeals as herein authorized. An appeal may be taken to the committee within 30 days of receipt of the written decision of the stormwater administrator. The appeal must be submitted in writing and shall specify why the stormwater administrator's decision is erroneous and what relief is requested. The committee shall take reasonable steps to ensure that written decisions are rendered within a reasonable period of time after the hearing.

c.   To the Asheville Board of Adjustment: Further appeal may be taken to the Asheville Board of Adjustment in accordance with and pursuant to the written requirements of the board and section 7-6-2 of the UDO. Provided however, appeals regarding disapproval or modification of a permit application based upon failing to meet the erosion prevention and sediment control provision of this section, may not be taken to the Asheville Board of Adjustment and, if an appeal is desired, such appeal may be taken from inception, directly to the North Carolina Sedimentation Commission pursuant to NCGS 113A-61(c) and Title 15A, NCAC 4B.0118(d).

d.   To the Buncombe County Superior Court: Every decision of the board shall be subject to review by the superior court by proceedings in the nature of certiorari. Petition for review by the superior court shall be filed with the clerk of superior court within 30 days after the decision of the board is filed in the office of the board or after a written copy thereof is delivered to every person who has filed a written request for such copy with the board at the time of its hearing of the case, whichever is later. The appeal shall be limited to the record before the board.

(k)   Prohibition, detection and elimination of illicit connections, illicit discharges and improper disposal to the stormwater system.

(1)   Connections: It is unlawful for any person to connect any pipe, open channel, or any other conveyance system that discharges anything except stormwater or unpolluted water, into the city's MS4 or receiving waters. Prohibited connections include, but are not limited to: floor drains, waste water from washing machines or sanitary sewers, wash water from commercial vehicle washing or steam cleaning, and waste water from septic tanks.

(2)   Continuation of illicit connection: It is unlawful for any person to continue the operation of any such illicit connection regardless of whether the connection was permissible when constructed. Improper connections in violation of this section must be disconnected and redirected.

(3)   Illicit discharge: It is unlawful for any person to throw, drain, run or otherwise discharge to any component of the city's MS4 or to the waters of the State of North Carolina or to cause, permit or allow to suffer to be thrown, drained, run, or allowed to seep or otherwise discharge into such system or receiving water all matter of any nature excepting only such storm or surface water as herein authorized.

(4)   Exemptions:

a.   The following activities are hereby deemed not to be a significant source of pollution and are hereby exempted from the prohibition provision above:

1.   Discharges pursuant to an NPDES discharge permit (other than the NPDES permit for the City of Asheville MS4), provided that such discharges to the MS4 have been authorized by the stormwater administrator.

2.   Discharges or flows resulting from fire fighting activities;

3.   Water line flushing performed or required by a government agency;

4.   Diverted stream flows, rising groundwaters, unpolluted pumped ground waters and unpolluted ground water infiltration as defined at 40 CFR 35.2005(20);

5.   Discharges from potable water sources, foundation drains, air conditioning condensation, springs, water from crawl space pumps, footing drains, lawn watering, individual and charity car washing, dechlorinated swimming pool discharges, flows from riparian habitats and wetlands;

6.   Discharges of irrigation waters (does not include reclaimed water as described in 15A NCAC 2H. 0200); and/or

7.   Discharges from flushing and cleaning stormwater conveyances with dechlorinated, uncontaminated water.

b.   Provided however, the stormwater administrator retains the right to determine in writing that any exempted discharge as set forth above from any property, is no longer exempt if there is evidence of significant pollution from such discharge.

(5)   Accidental discharge: In the event of an accidental discharge or an unavoidable loss to the city MS4 of any pollutant, the person concerned shall inform the city as soon as possible, but not to exceed 24 hours, of the nature, quantity and time of occurrence of the discharge. The person concerned shall take immediate steps to contain the waste, treat the waste or other actions to minimize affects of the discharge on the MS4 and receiving waters. The person shall also take immediate steps to ensure no recurrence of the discharge. 

(6)   Detection and elimination of illicit connections, illicit discharges and improper disposal to the stormwater system:

a.   The stormwater administrator shall take appropriate steps to detect and eliminate illicit connections to the City of Asheville MS4, including the adoption of a program to screen illicit discharges and identify their source or sources.

b.   The stormwater administrator shall take appropriate steps to detect and eliminate improper discharges, including a program to screen for disposal and programs to provide for public education, public information, and other appropriate activities to facilitate the proper management and disposal of used oil, toxic materials and household hazardous waste.

c.   Where such connections exist in violation of this section and said connections were made prior to adoption of this provision or any other ordinance prohibiting such connections, the property owner or the person using said connection shall remove the connection within one year following the effective date of this section. However, the one-year grace period shall not apply to connections which may result in the discharge of hazardous materials or other discharges which pose an immediate threat to health and safety, or are likely to result in immediate injury and harm to real or personal property, natural resources, wildlife, or habitat.

d.   Where it is determined that said connection:

1.   May result in the discharge of hazardous materials or may pose an immediate threat to health and safety, or is likely to result in immediate injury and harm to real or personal property, natural resources, wildlife, or habitat, or

2.   Was made in violation of any applicable regulation or ordinance, other than this section; the stormwater administrator shall designate the time within which the connection shall be removed. In setting the time limit for compliance, the stormwater administrator shall take into consideration: the quantity and complexity of the work; the consequence of delay; the potential harm to the environment, to the public health, and to public and private property; and the cost of remedying the damage.

(7)   Spills: Spills or leaks of polluting substances released, discharged to, or having the potential to be released or discharged to the stormwater conveyance system, shall be contained, controlled, collected, and properly disposed. All affected areas shall be restored to their pre-existing condition.

(8)   Notification of discharge: Persons in control of the polluting substances immediately prior to their release or discharge, and persons owning the property on which the substances were released or discharged, shall immediately notify the fire chief of the release or discharge, as well as making any required notifications under state and federal law. Notification shall not relieve any person of any expenses related to the restoration, loss, damage, or any other liability which may be incurred as a result of said spill or leak, nor shall such notification relieve any person from other liability which may be imposed by state or other law.

(9)   Nuisance: Illicit discharges and illicit connections which exist within the city's jurisdiction are hereby found, deemed, and declared to be dangerous or prejudiced to the public health or safety and are found, deemed, and declared to be public nuisances and shall be abated.

(10)   Monitoring and inspections related to illicit discharge program:

a.   Water quality monitoring: The stormwater administrator shall monitor the quantity of, and the concentration of pollutants in stormwater discharges from the areas and/or locations designated in the City of Asheville SWMP.

b.   General inspection requirements: The stormwater administrator, bearing proper credentials and identification, may enter and inspect after duly notifying the owner of said property or the representative on site, all properties for regular inspections, periodic investigations, monitoring, observation measurement, enforcement, sampling and testing, to effectuate the provisions of this section at reasonable times. The stormwater administrator shall maintain inspection reports in a permanent file located in the office of the stormwater administrator.

c.   Administrative inspection warrant: Upon refusal by any property owner to permit an inspector to enter or continue an inspection, the inspector shall terminate the inspection or confine the inspection to areas concerning which no objection is raised. The inspector shall immediately report the refusal and the grounds to the stormwater administrator. The stormwater administrator shall promptly seek an administrative inspection warrant consistent with the laws of the State of North Carolina to complete the inspection.

d.   Emergency inspections: In the event that the stormwater administrator reasonably believes that discharge from the property into the city's MS4 may cause an imminent and substantial threat to human health or the environment, the inspection may take place at any time and without notice to the owner of the property or a representative on site. The inspector shall present proper credentials upon reasonable request by the owner or representative.

(l)   Acronyms.

(a)   Purpose. The purpose of this provision is to expand the coverage of the Mountain Ridge Protection Act of 1983 (as amended) in the City of Asheville and the extraterritorial planning jurisdiction of the City of Asheville to further regulate the construction of tall buildings or structures on mountain ridges. This expanded regulation will insure that supplying water to, and disposing of sewage from, buildings at high elevations does not infringe on the groundwater rights and endanger the health of those persons living at lower elevations; that adequate fire protection will be available; that such buildings or structures will not be a hazard to air navigation; and that such tall buildings will not detract from the natural beauty of the mountains.

(b)   Authority. This provision is adopted pursuant to the authority conferred by N.C. Gen. Stat. sec. 113A-208(a), as amended.

(c)   Jurisdiction. This provision shall apply to the construction of tall buildings or structures as defined in N.C. Gen. Stat. sec. 113A-206(3), on protected mountain ridges as defined hereinafter within the corporate limits of the City of Asheville, North Carolina, and within the extraterritorial planning jurisdiction of the City of Asheville in accordance with N.C. Gen. Stat. sec. 113A-208, as amended.

(d)   Tall buildings or structures. "Tall buildings or structures" include any building, structure, or unit within a multi-unit building with a vertical height of more than 40 feet measured from the top of the foundation of said building, structure, or unit and the uppermost point of said building, structure, or unit; provided, however, that where such foundation measured from the natural finished grade of the crest or the natural finished grade of the high side of the slope of a ridge exceeds three feet, then such measurement in excess of three feet shall be included in the 40-foot limitation described herein; provided, further, that no such building, structure, or unit shall protrude at its uppermost point above the crest of the ridge by more than 35 feet. For the purposes of this section 7-12-3, "tall buildings or structures" do not include:

(e)   Protected mountain ridges defined. The City of Asheville, North Carolina, in accordance with N.C. Gen. Stat. sec. 113A-206(6) as amended, hereby eliminates the 3,000-elevation requirement in defining a protected mountain ridge for the purpose of applying the Mountain Ridge Protection Act in the City of Asheville and its extraterritorial planning jurisdiction. "Protected mountain ridges" are defined, therefore, in the City of Asheville and its extraterritorial planning jurisdiction, as all mountain ridges whose elevation is 500 or more feet above the elevation of an adjacent valley floor.

(f)   Protected Mountain Ridge Act compliance. The provisions of N.C. Gen. Stat. sec. 113A-209 shall be applicable to protected mountain ridges as defined hereinbefore.

(g)   Filing of maps. In accordance with N.C. Gen. Stat. sec. 113A-212, a map or maps tentatively identifying the protected mountain crests as defined by this section has been filed by the North Carolina Secretary of Natural Resources and Community Development with the Buncombe County Board of Commissioners and the Asheville City Council. A map or maps identifying the protected mountain ridges (and) crests in the City of Asheville, North Carolina, has been filed with the Buncombe County Register of Deeds.

(a)   Purpose. Asheville is in a unique geographic location where mountains, valleys, and hills constitute significant natural topographic features. The mountains and hillsides of Asheville are visible from many places in the city, adding to the quality of life for residents, and improving tourism opportunities for visitors. These areas are sensitive to development activities and measures must be taken to maintain slope stability and to control erosion and stormwater. In order to ensure the preservation of this character and the appropriate use of the hillsides, the regulations of this section are established to recognize that development of land in steep or mountainous areas involves special considerations and unique development standards.

(b)   Goals and objectives. This section is intended to achieve the following goals and objectives:

(1)   To promote public safety by ensuring that development on steep slope and ridgetop areas addresses slope stability issues in an effective manner;

(2)   To provide greater design flexibility and efficiency in the location of development and infrastructure, including the opportunity to reduce length and width of roads, utility runs, and the amount of grading and paving;

(3)   To reduce erosion and sedimentation by the retention of existing vegetation, and the minimization of development on steep slopes and ridgetops;

(4)   To provide for the conservation and maintenance of steep slope and ridgetop areas within city jurisdiction to achieve the above-mentioned goals;

(5)   To provide opportunities for developers to minimize impacts on steep slope and ridgetop areas;

(6)   To provide standards reflecting the varying circumstances and interests of individual landowners, and the individual characteristics of their properties;

(7)   To preserve scenic views and vistas that are inherent to Asheville's character and to minimize perceived density by minimizing views of new development from within and outside of the development; and

(8)   To provide mechanisms to effectively enforce the requirements of this section.

(c)   Steep slopes and ridgetops designated.

(1)   Steep slopes are designated as those areas at or above 2,220 feet in elevation above mean sea level and having an existing grade of 15 percent or more. For the purpose of applying specific development standards, steep slope areas have been separated into different zones:

(2)   Ridgetops are designated on the official City of Asheville Ridgetops Map (which is hereby made a part of this section by reference). Designated ridgetops are:

(3)   For the purpose of applying the geotechnical analysis of this section, all areas having an existing grade of 36 percent or more, regardless of elevation, or are located in areas designated as High Hazard or Moderate Hazard on the Buncombe County Slope Stability Index Map prepared by the North Carolina Geological Survey are subject to the standards set forth in subsection 7-12-4(l).

(d)   Application. The provisions of this section apply in the following circumstances. Any portion of a lot, parcel, or tract of land which has been approved for development or subdivision prior to the date of adoption of this section {July 10, 2007} shall not be required to comply with the provisions of this section if no further development or change to the approved subdivision or development plan is proposed within that portion of the lot, parcel, or tract of land. For the purpose of applying this provision, approval of a subdivision plat shall not constitute approval of a development plan for the individual lots in the subdivision.

(1)   Where new development is proposed for a one or two family dwelling, or for a development requiring Level I, II or III site plan review pursuant to section 7-5-9 of this chapter or subdivision review pursuant to section 7-5-8 of this chapter.

(2)   Additions to structures greater than 1,000 square feet or new site disturbances encompassing more than 1,000 square feet of disturbed area. These additions and site disturbances shall include smaller additions or disturbances over a three-year period that accumulate to exceed the above limitations.

(3)   Substantive amendments to an approved subdivision or development plan shall require full compliance with the requirements of this section. For the purpose of this section, "substantive amendments" shall include increases in the number of lots or density or intensity of development by more than ten percent over that previously approved, location of a structure or structures in areas of steeper slopes than originally approved, and similar amendments that substantively increase the extent of development impact.

(4)   Regardless of the provisions of this section, lawfully-established lots in existence on {July 10, 2007} may be developed with a single-family home provided that the requirements of subsections (f), (g), (h) and (l) are met, except that subsection (f) shall not apply to such lots where extent of grading has been previously designated and approved on a preliminary plat or approved development plan.

(5)   For areas located in zone A, the development standards set forth in subsections (g), (h) and (k) shall not apply except that the front setback reduction specified in subsection (h) is available to properties located in zone A.

(e)   Definitions. For the purposes of this section, the following terms shall have the meaning as ascribed to them below:

(f)   Grading. The following requirements regulate the extent and technique of grading in steep slope and ridgetop areas based on the existing grade. Existing grade is determined as follows.

(1)   Grading extent. The extent of grading on a property located in a steep slope or ridgetop area is governed by the following tables.

(2)   Road construction. Roads constructed on any lot, parcel, or tract of land designated as a steep slope or ridgetop area shall be contained within a corridor that shall not exceed 90 feet in width along 80 percent of its total length; up to 20 percent of the length of the road corridor may be graded to a maximum width of 135 feet to accommodate grading operations approved by the city engineer. Road rights-of-way shall be a minimum of 32 feet and a maximum of 40 feet and shall have a cross-section design as illustrated below. Cul-de-sac circles, T-turnarounds and other road terminus features approved by the city shall be exempt from these width requirements. Sidewalks are not required to be constructed in steep slope or ridgetop areas but shall be subject to fee-in-lieu requirements if not provided. Unless approved by the city engineer based on an assessment of best engineering practices for the specific site, retaining walls greater than four feet in height erected to comply with these corridor requirements shall be located at least 10 feet outside of public rights-of-way or edge of slope shoulder, whichever is greater, and shall be privately maintained.

(3)   Artificial slopes. Artificial slopes shall be designed and landscaped to create natural appearing slopes and hillsides. The replacement of trees and other significant vegetation is imperative for maintaining the natural appearance of artificial slopes. Artificial slopes shall not exceed the steepness and height parameters listed in the following table except in circumstances where stable exposed rock is the intended end result of the artificial slope, in which circumstance the cut and/or fill slopes may be increased at the discretion of the city engineer. Reforestation of artificial slopes ten feet or greater in height, other than stable exposed rock, shall consist of the placement of any of the tree or shrub species and size as specified in a list prepared and maintained by the tree commission provided not more than 20 percent of any one tree or shrub species is used except that reforestation using entirely mountain laurel or rhododendron is acceptable. The following table describes the planting design and amount of required plant material for reforestation. A maintenance plan shall be required for reforested areas and such plan shall include provisions for replacement of dead vegetation when greater than a 50 percent mortality rate occurs.

(g)   Structure height and depth. The maximum height of principal structures in steep slope and ridgetop areas shall be limited to two stories (maximum 30 feet) on the uphill side of the structure and three stories (maximum 40 feet) on the downhill side of the structure, regardless of height allowances elsewhere in this Code. For ridgetop development where structures are not located so as to have a distinct uphill or a downhill side, the maximum height of principal structures shall be limited to two maximum 30 feet). Accessory structures shall not exceed 20 feet in height on any side. For the purpose of this section, height shall be calculated as the vertical distance from existing grade to the midpoint of the peak and eave for structures with pitched roofs and from the top of the parapet or roof surface, whichever is greater, for flat-roofed structures. An additional 12 feet in height may be allowed on the uphill side and 20 feet in height on the downhill side of the principal structure if any downhill-facing façade and the entire roof structure are installed and maintained with materials or paint having an average light reflectivity value (LRV) of 25 or less and a 50-foot deep area measured from the rear property line is designated in a vegetation preservation easement and existing vegetation in this area is maintained. This provision is not available for ridgetop development. A LRV of 25 or less is strongly encouraged for all structures built on steep slope and ridgetop areas regardless of their height. The maximum depth through any one cross-section of a structure in steep slope and ridgetop areas having a slope of 40 percent or more shall be 50 feet in order to promote construction that is less intrusive on a slope (see illustration below).

(h)   Tree and other specified vegetation preservation. All trees and other specified vegetation shall be preserved in steep slope and ridgetop areas except in areas approved for grading in subsection (f) above or within ten feet of building footprints. Non-native invasive species may be removed. For new development or additions, these preservation areas shall be designated on plans submitted for development approval. For existing development, aerial photographs or other methods of determining the extent of tree cover shall be utilized to enforce this requirement.

(i)   Alternative landscape plan. In the event a property owner desires to remove trees and other protected vegetation required to be preserved in subsection (h) above, he or she may submit an alternative landscape plan for consideration by the tree commission. This alternative landscape plan must contain: a tree survey of the property showing which trees and other protected vegetation will be removed and which will remain; the location of any structures, driveways and other impervious surfaces; and an explanation of the reason(s) for removal of required trees and other protected vegetation, including a statement of how the removal of the required trees and other protected vegetation supports the purposes of this section or how such removal can be mitigated consistent with the purposes of this section. The tree commission, in its sole discretion, may approve, approve with conditions, or deny the alternative landscape plan. If conditions are established, they shall be enforceable in accordance with the provisions of article XVIII. If the tree commission denies the alternative landscape plan, it shall set out its reasons in writing. Appeals of tree commission decisions shall follow the process for appeals of decisions by the planning director as established in section 7-6-2.

(j)   Density. Densities of residential development shall be reduced in steep slope and ridgetop areas to support the goals and objectives of this section.

(1)   The allowable density shall be as follows for the listed underlying zoning districts. The fractional requirements provisions of subsection 7-2-3(b) shall not apply for density calculations in the steep slope and ridgetop areas.

(2)   Existing lots or parcels. Construction of a single-family residence shall be permitted on any lawfully established lot or parcel existing as of the date of adoption of this ordinance, even if the parcel does not meet the maximum density requirements listed in the table above. In such cases, however, the requirements of subsections (f), (g), (h) and (i) shall still apply, except that subsection (f) shall not apply to such lots where extent of grading has been previously designated and approved on a preliminary plat or approved development plan.

(3)   Density bonus. For areas located in Zone B, a density bonus may be granted for each of the following items. A total density bonus of up to 60 percent of the allowable density may be achieved under this provision through accumulation. Bonus applications may result in administratively-approved reductions in minimum setback requirements and minimum lot size if necessary to achieve site preservation, screening or grading objectives. Such reductions shall be indicated on the development plans submitted to obtain the density bonus and the rationale behind the reductions shall be clearly demonstrated on the plans or other application materials.

a.   Buildings, parking, and other improvements are clustered on less steep and sensitive areas of the site to reduce the amount of grading and the steeper, more sensitive areas are preserved through a conservation easement that safeguards the property from future development; bonus of up to 60 percent based on the following table. Less sensitive areas may not exceed a 40 percent average natural slope and may include previously cleared areas, such as logging roads and pastures, provided such clearing predates January 1, 2007. Clustering in single-family residential districts and the RM-6 district may include multi-family construction up to eight units per building if necessary to achieve site preservation objectives. Conservation areas may not be located on individually owned home lots and may remain as privately owned property.

b.   Grading is limited to ten percent or more under the maximum allowed under subsection (e) above; bonus of 20 percent.

c.   Buildings and parking areas are screened by vegetation to minimize the visual impact from key viewing areas, which include the downtown central business district, the Blue Ridge Parkway, public parkland and recreational areas, and major streets and highways; bonus of 20 percent.

d.   Grading of roads and access drives is located outside of slopes exceeding 20 percent and/or is predominately located on existing cleared roadbeds; bonus of 20 percent.

e.   Grading for the principal structure(s) is located completely outside of slopes exceeding 20 percent; bonus of 20 percent.

f.   The city engineer determines that substantial stormwater management best management practices are met in the proposed development; bonus of 20 percent.

(k)   Nonresidential development intensity. Intensity of nonresidential development shall be limited as follows in the Steep Slope Overlay District to support the goals and objectives of the district. For the purpose of this section, "floor area ratio" shall mean the total gross floor area of the building or buildings on a lot divided by the gross area of the lot or site.

(1)   The allowable intensity shall be as follows for the listed below:

(2)   Intensity bonus. An intensity bonus may be granted for each of the following items. A total intensity bonus of up to 60 percent of the allowable intensity may be achieved under this provision through accumulation. No intensity bonus shall allow a structure of greater size than allowed under the underlying zoning district.

a.   Buildings, parking, and other improvements are clustered on less steep and sensitive areas of the site to reduce the amount of grading and the steeper, more sensitive areas are preserved through an easement; bonus of up to 60 percent based on the following table. Less sensitive areas may include previously cleared areas, such as logging roads and pasture, provided such clearing predates January 1, 2007. Clustering in single-family residential districts and the RM-6 district may include multi-family construction up to eight units per building if necessary to achieve site preservation objectives.

b.   Grading is limited to ten percent or more under the maximum allowed under subsection (e) above; bonus of 20 percent.

c.   Buildings and parking areas are screened by vegetation to minimize the visual impact from key viewing areas, which include the downtown central business district, the Blue Ridge Parkway, public parkland and recreational areas, and major streets and highways; bonus of 20 percent.

d.   Grading of roads and access drives is located outside of slopes exceeding 20 percent and/or is predominately located on existing cleared roadbeds; bonus of 20 percent.

e.   Grading for the principal structure(s) is located completely outside of slopes exceeding 20 percent; bonus of 20 percent.

f.   The city engineer determines that substantial stormwater managementbest management practices are met in the proposed development; bonus of 20 percent.

(l)   Geotechnical analysis required. Development in steep slope areas having an existing grade of 36 percent or greater or on properties located in areas designated as High Hazard or Moderate Hazard on the Buncombe County Slope Stability Index Map prepared by the North Carolina Geological Survey shall be required to undergo geotechnical analysis by a NC registered professional engineer to determine the stability of the underlying geology and soils to support the proposed development. The geotechnical analysis report shall be required to be submitted prior to the issuance of a building permit. If a geotechnical analysis has been performed for subdivision approval that includes building pad analysis for the individual lots, it is unnecessary to submit a new analysis for each lot, provided the location of structures on each lot does not change by more than 20 feet in any one direction.

(m)   Sewer and water service required. Public sewer and water shall be required to serve new developments described in subsection (d)(1) above on steep slope and ridgetop areas.

(a)   Authority, purpose, jurisdiction, definitions.

(1)   Authority: Pursuant to N.C.G.S. Article 16 of Chapter 160A, the City of Asheville is authorized to create a stormwater services utility and enterprise fund and in so doing establish a schedule of rents, rates, fees, charges, and penalties for the use of or the services furnished by such public enterprise.

(2)   Purpose: It is the purpose of this section to establish a stormwater services utility as an identified fiscal and accounting fund for the purpose of comprehensively addressing the stormwater management needs of the city through programs designed to protect and manage water quality and quantity by controlling the level of pollutants in, stormwater runoff, and the quantity and rate of stormwater received and conveyed by structural and natural stormwater and drainage systems of all types. It provides a schedule of rents, rates, fees, charges and penalties necessary to assure that all aspects of the stormwater program are managed in accordance with federal, state and local laws, rules and regulations.

(3)   Jurisdiction: The boundaries and jurisdiction of the stormwater services utility shall extend to the corporate limits of the city, including all areas hereafter annexed thereto.

(4)   Definitions: For the purposes of this section, the words, terms and phrases used herein shall have the meaning given to them in section 7-2-5 of chapter 7 of the UDO, except where the context clearly indicates a different meaning. The stormwater administrator is authorized to interpret and to apply these definitions. If a property could be interpreted to fall into more than one category, the stormwater administrator shall, consistent with the purpose and intent of this section, determine the applicable category.

(b)   Establishment of a stormwater services utility and enterprise fund.

(1)   Utility: There is hereby established a stormwater services utility for the city. This utility shall provide for stormwater management programs including the protection, regulation, quantity, quality, control, use and enhancement of city owned and maintained stormwater and drainage systems.

(2)   Enterprise fund: There is hereby established a stormwater services enterprise fund. The enterprise fund is established for the purpose of dedicating and protecting all funding applicable to the purposes and responsibilities of the stormwater services utility including but not limited to, rents, rates, fees, charges and penalties as may be established, after notice and a public hearing by the city council and other funds that may be transferred or allocated to the stormwater services utility. All revenues and receipts of the stormwater services utility shall be placed in the stormwater services enterprise fund and all expenses of the utility shall be paid from the stormwater services enterprise fund, except that other revenues, receipts, and resources not accounted for in the stormwater services enterprise fund may be applied to stormwater management programs, and stormwater and drainage systems as deemed appropriate by city council.

(c)   Impervious coverage and rate unit.

(1)   Impervious surface area: Impervious surface area is a developed area of land that prevents or significantly impedes the infiltration of stormwater into the soil. Typical impervious surface areas include, but are not limited to: roofs, sidewalks, walkways, patios, private driveways, parking lots, access extensions, alleys and other paved, engineered, compacted or gravel surfaces containing materials that prevent or significantly impede the natural infiltration of stormwater into the soil (provided however, swimming pools and wooden decks are not considered impervious surfaces for the purpose of this ordinance).

(2)   Application of impervious surface area: The amount of imperious surface area of real property is a key factor in the peak rate of stormwater runoff and the pollutant loadings of stormwater runoff discharged to the structural and natural drainage systems and facilities. Therefore, the amount of impervious surface area shall be the primary parameter for establishing the rate structure to distribute the cost of systems and facilities through a schedule or rates, fees, charges and penalties related to the use and operation of the stormwater services utility and public enterprise as established above.

(3)   Establishment and application of the equivalent rate unit (ERU): The ERU shall be based upon an analysis of impervious surface throughout the city. The ERU has been determined to be equivalent to 2,442 square feet of impervious surface based on a statistically significant sampling of detached single- family residential parcels in the City of Asheville.

(d)   Schedule of rents, rates, fees, charges and penalties.

(1)   Detached single-family residential: Each developed detached single-family residential parcel shall pay a utility fee based on the amount of impervious surface area on their property.

(2)   Tiering for detached single-family residential: Single-family residential parcels will be charged a fee at the Tier I, Tier II and Tier III levels as set forth in the City of Asheville Fees and Charges Manual, based upon square footage of impervious area as more specifically set forth below:

(3)   Other properties: All other developed properties having impervious surface area, including but not limited to multi-family residential properties with two or more living units, commercial properties, industrial properties, public, institutional and non-profit properties, church properties, public and private school properties, and publicly owned properties shall be billed for one ERU for each 2,442 square feet of impervious coverage on the subject property, with any fraction thereof rounded up to the next ERU.

(4)   Common areas: Townhouse and condominium developments and other similar properties containing impervious surface in common ownership shall be charged for the total impervious surface of all commonly owned property within the development.

(5)   Fees and charges manual: The schedule of rates, rents, charges, fees and penalties shall be set forth in the City of Asheville Fees and Charges Manual.

(e)   Exemptions and credits:

(1)   Credits: Other properties as set forth above may apply for stormwater utility fee credits. Credits are reductions in stormwater utility fees applicable to the property in recognition of on-site or off-site systems, facilities, measures, and actions taken by customers that go above and beyond the minimum requirements of the prescribed ordinances. Credits shall be conditioned on the continuing performance of the systems, facilities, measures, or actions in reference to standards adopted by the utility upon which the credits are granted, and may be revised or rescinded. Credits expire at the end of one year from the date of award and may be renewed by the submittal of a renewal application. In no case shall credits exceed 60 percent of the stormwater utility fee.

(2)   Credit policy: The city manager shall prepare a credit policy which shall set forth the appropriate process and documentation to obtain credits. The credit policy shall be incorporated as an appendix to the City of Asheville's Standards and Specifications Details Manual. The amount of credits will be set forth in the city's fees and charges manual.

(3)   Equality of services: There shall be no exception, credit, offset, or other reduction in stormwater service charges granted based upon age, race, tax status, economic status, or religion of the customer, or other condition unrelated to the stormwater utility's cost of providing stormwater services and facilities.

(f)   Billing.

(1)   Responsible party: As authorized by N.C.G.S., sec. 160A-314, stormwater utility fees, charges and penalties shall remain the responsibility and obligation of the property owner.

(2)   Method of billing: Bills for stormwater service shall be sent at regular, periodic intervals. Billing and collection of stormwater service fees, rents, rates, charges and penalties shall be administered by the city manager/designee, who is hereby authorized to develop policies and procedures to effectuate the purpose and intent of this section. Stormwater service charges may be billed on a combined utility bill that also contains charges for water and/or sewer service. Stormwater service charges that are shown on a combined utility bill may be for a different service period than that used for water and/or sewer service.

(3)   Billing options: The city shall have the following billing options for stormwater service charges:

a.   Stormwater service charges for a property that receives combined sewer and water service will be sent to the customer receiving such service. However, where multiple water and sewer accounts exist for a single parcel, the bill for stormwater service charges may for good cause shown at the discretion of the city be sent to the property owner. Additional policies concerning billing will be developed by the stormwater administrator.

b.   Owners of property may, with the consent of the city, designate each occupant of the property as the party to receive the bill for stormwater management service charge by completing and properly executing a form provided by the city. Such designation shall fairly allocate the impervious surfaces actually used by the billed party, and it shall be binding for the period of time specified by the city. Such transfer does not relieve either the owner or occupant from liability for stormwater service charges if they are not paid by the party billed.

c.   The residents of townhouse, cluster unit, and condominium developments and other similar properties containing impervious surface in common ownership with a master water meter, the stormwater service bill shall be sent to the homeowners' association.

d.   The residents of townhouse, cluster unit, and condominium developments and other similar properties containing impervious surface in common ownership with unit level meters, upon official request of the homeowners' association reflecting a vote in accordance with the association's bylaws, the stormwater service bill may be divided in equal shares among each unit within the development and sent to the owner or occupant of each unit. A request for per unit billing must contain all information required by the city and shall be binding for the period of time specified by the city.

e.   The residents of townhouse, cluster unit, and condominium developments and other similar properties containing impervious surface in common ownership where there is no active homeowners' association, the stormwater service charge will be equally divided among each property with no fee being less than one ERU unless the property owners provide the city with an agreed upon division, acceptable to the city.

(4)   No bill: Failure to receive a stormwater bill is not a basis for nonpayment. The owner of each parcel of land containing impervious surface shall be obligated to pay such fee.

(5)   Minimum stormwater service charge: In no event will any property owner owning developed property pay less than the rate equivalent of one ERU except for zoning lots or tracts with 225 square feet or less of impervious surface area.

(g)   Delinquencies and charges.

(1)   Combined utility billing: Where stormwater service charges appear on a combined utility bill, and a customer does not pay the service charges for all the utilities on the bill, the partial payment will be prorated and applied to the respective utilities in the following order: delinquent stormwater management service charges, delinquent recycling service charges, delinquent combined sewer and water charges, current stormwater charges, current recycling service charges and current combined sewer and water charges.

(2)   Non-combined and/or separate stormwater utility billing: A stormwater utility fee, charge or other billing for rents, rates, fees, charges and penalties associated with the stormwater utility shall be declared delinquent and subject to the delinquent fees and charges as set forth in the city's fees and charges manual.

(3)   No criminal penalty: A violation of this section subjects the offender to a civil penalty pursuant to the authority granted by N.C.G.S., sec. 160A-175 and does not subject the offender to the criminal penalty provisions of N.C.G.S., sec. 14-4 and section 1-5 of chapter 1 of the Code of Ordinances of the City of Asheville.

(4)   Back billing: If property is incorrectly billed, or not billed, or a bill is sent to the wrong party, the city may back bill a property for up to a three-year period.

(h)   Appeals.

(1)   Disputed bills: If a property owner disputes the stormwater utility charges assessed to that owner's property, that owner must first attempt to resolve the dispute with the city engineer's office. Using the information provided, the appropriate staff of the city's engineer office shall conduct a technical review pursuant to good engineering practices. Following such review, the city's stormwater administrator may adjust the stormwater service charge so long as the adjustment is in conformance with the general purpose and intent of this section. At the conclusion of the review, the stormwater administrator shall issue a written determination stating whether an adjustment to the stormwater service charge is appropriate, and if so, the percentage of such adjustment. Any approved adjustments must be communicated in writing to the city's water resources department billing staff.

(2)   Filing of notice of appeal: If the owner is not satisfied with the resolution of the dispute, the owner may file a notice of appeal to the city's soil erosion review committee (herein "committee"), on a form provided by the office of the stormwater administrator. The notice of appeal must be filed within 30 days of the date of the service of the written decision of the stormwater administrator upon the owner. The appeal shall include a written statement setting forth the grounds for the appeal. The appeal shall be filed in the office of the stormwater administrator. The stormwater administrator shall transmit the written appeal along with all other documents constituting the record upon which the stormwater administrator's decision was made to the committee.

(3)   Documents: At the discretion of the stormwater administrator, the written appeal may be required to include a survey prepared by a registered land surveyor and such other information that show the total property area, the impervious surface area, and any other features or conditions which influence the hydrologic response of the property to the stormwater events.

(4)   Powers of the committee: The sole role of the committee is to review the stormwater administrator's decision for clear error. In the absence of clear error, the committee shall have no power to adjust, modify amend or reverse the decision of the stormwater administrator.

(5)   Finality of committee's decision: The decision of the committee shall be final. This shall not prevent the owner from pursing all other remedies as by law provided, including appeal to the Asheville Board of Adjustment.

(6)   Service: All decisions of the stormwater administrator and committee shall be served on the owner personally or by registered or certified mail.

(7)   No suspension of due date: No provision of this subsection allowing for an appeal shall be deemed to suspend the due date of the service charge with payment in full. Any adjustment in the service charge for the person pursuing an appeal shall be made by refund of the amount due.

(i)   Disposition of service charges and fees. Revenues generated from stormwater services utility fees, charges, rents, rates and penalties shall be assigned and dedicated solely to the stormwater services enterprise fund in the city's budget and accounting system, which shall be and remain separate from other funds, and shall be used only to fund stormwater management programs and structural and natural stormwater and drainage systems. The service charges and fees paid to and collected by virtue of the provision of this section shall not be used for general or other government or proprietary purposes of the city except to pay for costs incurred by the city in rendering services to the stormwater services utility.

(j)   Limitations of responsibility.

(1)   The city shall be responsible only for the portions of the drainage system which are in city maintained street rights-of-way and permanent storm drainage easements conveyed to and accepted by the city.

(2)   The city's acquisition of storm drainage easements and/or the construction or repair by the city of drainage facilities does not constitute a warranty against stormwater hazards, including but not limited to flooding, erosion or standing water.