The purpose of this chapter is to protect, maintain and enhance the environment of the Town of Black Mountain and the health, safety and public welfare of its citizens by establishing minimum requirements concerning land disturbance and to control the potential adverse effects of erosion and sedimentation.

A.

Beginning with and subsequent to its effective date, this ordinance shall be applicable to all development and redevelopment, including, but not limited to, site plan applications, subdivision applications, and land disturbance projects within the Town of Black Mountain's jurisdiction.

B.

Land disturbance permits shall be required whenever 1,000 square feet or more, up to one acre, of land or is disturbed and not associated with a building permit as well as land disturbing activity of any size associated with a building permit.

C.

Land disturbance shall mean any manipulation of the ground forms including, but not limited to cutting of trees with excavation of stumps or any other earth-disturbing activities; provided, (a) that installation of utilities in an area with a topographical change of not more than five percent where the area disturbed is not wider than 18 inches (including ditch and spill areas); and (b) that creation of stormwater drainage and erosion control ditches except when the ditch is located in an existing natural drainage channel and the only improvement is the lining of the channel with rock, shall not be considered grading.

D.

For any area designated as a "steep slope", land disturbance shall mean any use of, or operations on, the land by any person in residential, industrial, educational, institutional, or commercial development, highway and road construction and maintenance that results in a change in the natural cover or topography and that may cause or contribute to sedimentation. However, the cutting of scattered individual trees, the removal of fallen trees and the removal of undesirable non-native or invasive vines, shrubs and plants will be allowed.

E.

Any grading or other land disturbing activity within the floodplain shall be reviewed by the floodplain administrator to determine applicability of floodplain regulations and associated permits.

(Ord. No. O-22-04, 6-13-2022)

A.

Property being developed within the Town of Black Mountain shall not exceed the following specifications for cut and fill:

1.

Cut slopes shall not exceed a ratio of greater than 1:1 (horizontal distance to vertical distance, or a 45 degree slope angle, or 100 percent grade); and

2.

Fill slopes shall not exceed a ratio of greater than 1.5:1 (horizontal distance to vertical distance, or a 33 degree slope angle, or 66 percent grade).

B.

Roads exceeding 15 percent grade and proposed for dedication to the town as public streets shall include roadway design and engineering with benching or other stabilization techniques as part of the site plan and shall include a town maintenance easement to the toe of the slope.

C.

All cut and fill slopes shall be hydro-seeded or landscaped within 30 days of achievement of final grade and all temporary roads and slopes shall not be left exposed for more than a 45-day period.

D.

Retaining walls greater than five feet in height must be designed and sealed by an engineer and approved by the town's building inspector.

Table 8.1.03

A.

Any land disturbance permitted under Buncombe County's Soil Erosion and Sedimentation Control Office must be documented before any grading activity may take place. Buncombe County enforces the state "Sedimentation Pollution Control Act of 1973" for the Town of Black Mountain and regulates certain land disturbing activities for the purpose of controlling accelerated erosion and sedimentation in order to prevent the pollution of water and other damage to lakes, water courses and other public and private property by sedimentation.

B.

Minimum Plan Requirements:

1.

A written or graphic concept plan of the proposed soil and sedimentation controls during construction shall be submitted with the land disturbance permit. Concept plan shall include identification of areas of land disturbance within the site and the location of proposed temporary and permanent soil erosion and sedimentation control measures designed to retain sediment on-site. Minimum requirements include protection of stormwater inlets and ditches with silt fences, mitigation of sediment created by construction entrances following the construction and installation standards published by North Carolina Department of Environmental Quality.

2.

Land disturbing activity shall not take place within the stream buffer of watercourses depicted as a solid blue line on the most recent USGS seven and one-half minute quadrangle topographic maps that cover the Town of Black Mountain.

3.

Reserved.

4.

Erosion control measures in compliance with the approved plan and/or building permit shall be in place before construction may begin. Failure to comply will result in a stop work order.

5.

Any required permanent erosion control measures or landscaping shall be in place before land disturbance permit is issued or shall be bonded at 125 percent of the estimated cost for implementation of the landscaping plan. Final seeding and/or landscaping shall be in place within 45 days of final grade.

6.

Onsite vehicle or equipment washing is not allowed.

(Ord. No. O-22-04, 6-13-2022)

A.

Steep slope and hillside regulations apply to any subdivision or development that meets the following criteria:

1.

A development or redevelopment project or subdivision located on a parcel greater than one acre and in which the average of the natural slope for the entire parcel is 16 percent or greater; or

2.

A development or redevelopment project or subdivision of a parcel less than one acre in which the average natural slope of 25 percent or greater; or

3.

A development or redevelopment project or subdivision, where 50 percent or more of the subdivision lies at or above elevations of 2,600 feet above mean sea level or greater.

B.

Any portion of the lot, parcel, or tract of land which has been approved by the planning department or planning board as a minor or major subdivision or special use permit prior to the adoption of this section, or developed prior to the adoption of this section, or any lot pre-existing before the adoption of this section, shall not be subject to the minimum lot size requirement as stated in this chapter. Subsequent phases of, or additions to, a minor or major subdivision or special use permit, as well as approved subdivision projects where the site plan has been changed, or approved subdivisions where the lot design has changed, shall indicate the proposed contours, limit and area of grading, and percentage of the site to be graded and shall comply with the requirements of these regulations.

C.

Slope calculations shall use the smallest contour interval for which maps are available or at a minimum of five-foot intervals, and shall be determined based on the tract to be subdivided, irrespective of proposed subdivision boundaries if part of a minor or major subdivision. The average slope is calculated using the following formula:

Where:

S = Average natural slope of parcel or lot in percent

I = Contour interval of map in feet, with contour intervals to be five feet or less

L = Total length of the contour lines within the parcel or lot in feet

A = Area of the parcel or lot in acres

0.0023 = Constant which converts square feet into acres

Property owners may submit an alternate method of slope calculation for consideration based on the peculiarities of the site and prepared by a member of the American Society of Landscape Architects (ASLA), Professional Engineer (P.E.), Professional Land Surveyor or be a qualified environmental scientist. These methods may include, but are not limited to, weighted average, slope mapping, or other field-based techniques, etc.

Once "S" or the average natural percent slope of the tract is calculated, it shall be rounded off to the nearest whole number on the density and lot size table, as set forth hereinafter, which shall be used to determine the maximum number of lots or units allowed.

D.

In addition to the application requirements submitted for review, proposed projects which meet the standards of the hillside area definition must include the following information:

1.

Average natural slope calculations which include the average natural slope in percent, contour intervals of five feet or less, individual and total length of contour lines in feet and area of the parcel in acres;

2.

Subdivision for the purpose of conservation in perpetuity may allow developers to subtract areas for conservation from the total acreage used to calculate average slope of the original lot.

3.

Areas exceeding 16 percent slope shall be indicated on all site plans, development plans, preliminary plats, and special use permit plan applications.

4.

Soils maps shall be submitted if available from the natural resource conservation service (NRCS) and deposits of known colluvial soils shall be located on the site plan.

5.

Consultation with a geotechnical engineer shall be required for road, driveway, or home construction in areas of a tract in excess of 36 percent natural slope and an investigation for colluvial deposits shall be made. Recommendations of the geotechnical engineer shall be submitted with the application for review by staff or by the planning board if part of a major subdivision or special use permit application.

6.

Homesites on a 36-percent or greater slope shall include a global stability analysis with the building permit.

7.

Homesites on a 25-percent or greater slope must conform to the following density table in addition to the minimum zoning requirements. Conservation subdivision plans shall be allowed twice the density permitted per acre under the Density Table for Steep Slopes in the erosion prevention and slope protection ordinance (applicable to lots of 25 percent slope or greater) and shall be exempt from the minimum lot size. Under no circumstances however shall the gross density of a conservation subdivision exceed the density for the district in which it is located.

8.

Wherever the minimum lot size for the district and the density table are in conflict, the regulation of the greatest lot size shall apply:

9.

Development and subdivision plans shall be designed to minimize disturbance to the natural landform and demonstrate terrain-adaptive design and construction techniques. Extensive grading shall be avoided and low impact development ("LID") techniques which meet the town's stormwater requirements are required.

10.

On any tract greater than one acre proposed for subdivision or construction, no more than 50 percent of the tract shall be graded or disturbed.

11.

Streets, rights-of-way, pedestrian facilities and setbacks shall be designed to minimize impact on steep slope areas of the particular site without compromising the town's ability to provide connectivity, street maintenance, waste management, or fire protection, and must be designed to the approval of the town's fire marshal and public works director. Street standards may be allowed a staff variance of up to 20 percent (up to eight feet variation on right-of-way requirements, and up to 4.8 feet variation on total travel surface requirements), based on topography, traffic and public safety needs. Subdivisions complying with the conservation subdivision plan requirements (chapter 13) do not have to meet the setback requirements for the zoning district. However, the location and lay-out of streets, lots buildings, and pedestrian facilities should minimize environmental impact.

12.

Whenever a major subdivision of ten acres or more must comply with steep slope and hillside regulations, the subdivider must apply for a conservation subdivision special use permit as provided in chapter 7.

13.

Reserved.

14.

No land disturbing permit shall be issued for a site plan or a subdivision which meets the standards set forth in the definition of hillside area until the site plan review and subdivision plat review have been completed.

A.

General. The purpose of this ordinance is to protect, maintain and enhance the public health, safety, environment and general welfare by establishing minimum requirements and procedures to control the adverse effects of increased post development stormwater runoff and nonpoint and point source pollution associated with new development and redevelopment as well as illicit discharges into municipal stormwater systems. It has been determined that proper management of post-development stormwater runoff will minimize damage to public and private property and infrastructure; safeguard the public health, safety, and general welfare; and protect water and aquatic resources.

The ordinance seeks to meet the requirements for the town's National Pollutant Discharge Elimination System (NPDES) Permit.

This ordinance seeks to meet its general purpose through the following specific objectives and means:

(1)

Establishing decision-making processes for development that protect the integrity of watersheds and preserve the health of water resources;

(2)

Requiring that new development and redevelopment maintain the predevelopment hydrologic response in their post-development state as nearly as practicable for the applicable design storm to reduce flooding, streambank erosion, nonpoint and point source pollution and increases in stream temperature, and to maintain the integrity of stream channels and aquatic habitats;

(3)

Establishing minimum post-development stormwater management standards and design criteria for the regulation and control of stormwater runoff quantity and quality;

(4)

Establishing design and review criteria for the construction, function, and use of structural stormwater SCMs that may be used to meet the minimum post-development stormwater management standards;

(5)

Encouraging the use of better management and site design practices, such as the use of vegetated conveyances for stormwater and the preservation of greenspace, riparian buffers and other conservation areas to the maximum extent practicable;

(6)

Establishing provisions for the long-term responsibility for and maintenance of structural and nonstructural stormwater SCMs to ensure that they continue to function as designed, are maintained appropriately, and pose no threat to public safety;

(7)

Establishing administrative procedures for the submission, review, approval and disapproval of stormwater management plans, for the inspection of approved projects, and to assure appropriate long-term maintenance.

(8)

Coordinating site design plans that include open space with the subdivision ordinance requirements for open space with the zoning administrator or planning board if required.

(9)

Assigning responsibility and processes for approving the creation and maintenance of adequate drainage measures.

A.

General. Beginning with and subsequent to its effective date, this ordinance shall be applicable to all development and redevelopment occurring within the corporate limits of the Town of Black Mountain, unless exempt pursuant to section 8.2.2(C) of this section, exemptions.

B.

Activity threshold requiring a stormwater permit. A stormwater permit is required for any development and redevelopment which results in an increase of impervious surface area by a net amount of 5,000 square feet or more. Projects developed under a common plan adding 5,000 square feet or more of impervious surface, regardless of the number of parcels included in the plan, requires a stormwater permit.

All phased developments must achieve post-construction requirements at the completion of each phase unless otherwise approved by the stormwater administrator.

C.

Exemptions.

(1)

Activities that are exempt from permit requirements of Section 404 of the federal Clean Water Act as specified in 40 CFR 232 (primarily, ongoing farming and forestry activities) are exempt from the provisions of this ordinance.

(2)

Development which adds less than 5,000 square feet of impervious surface and is not part of a larger common plan of development does not require a stormwater permit.

(3)

Pre-existing development or development activities that do not remove or decrease existing stormwater controls shall not be required to install new or increased stormwater controls.

(4)

When a pre-existing development is redeveloped, either in whole or in part, increased stormwater controls shall only be required for the amount of impervious surface being created that exceeds the amount of impervious surface that existed before redevelopment.

(5)

Development activities within the town's designated historic district.

D.

No development or redevelopment until compliance and permit. No development or redevelopment shall occur except in compliance with the provisions of this ordinance unless exempted. No development for which a permit is required pursuant to this ordinance shall occur except in compliance with the provisions, conditions, and limitations of the permit.

E.

Map. The stormwater map shall be kept on file by the stormwater administrator and shall be updated to take into account changes in the land area covered by this ordinance and the geographic location of all structural SCMs permitted under this ordinance. In the event of a dispute, the applicability of this ordinance to a particular area of land or SCM shall be determined by reference to the North Carolina Statutes, the North Carolina Administrative Code, and local zoning and jurisdictional boundary ordinances.

(Amd. of 2-14-2022; Ord. No. O-23-21, 11-13-2023)

A.

Meaning and intent. All provisions, terms, phrases, and expressions contained in this ordinance shall be construed according to the general and specific purposes set forth in section 8.2.1, purpose and also defined in section 8.2.28. If a different or more specific meaning is given for a term defined elsewhere in Town of Black Mountain Code of Ordinance, the meaning and application of the term in this ordinance shall control for purposes of application of this ordinance.

B.

Text controls in event of conflict. In the event of a conflict or inconsistency between the text of this ordinance and any heading, caption, figure, illustration, table, or map, the text shall control

C.

Authority for interpretation. The stormwater administrator has authority to determine the interpretation of this ordinance. Any person may request an interpretation by submitting a written request to the stormwater administrator, who shall respond in writing within 30 days. The stormwater administrator shall keep on file a record of all written interpretations of this ordinance.

D.

References to statutes, regulations, and documents. Whenever reference is made to a resolution, ordinance, statute, regulation, manual (including the design manual), or document, it shall be construed as a reference to the most recent edition of such that has been finalized and published with due provision for notice and comment, unless otherwise specifically stated.

E.

Computation of time. The time in which an act is to be done shall be computed by excluding the first day and including the last day. If a deadline or required date of action falls on a Saturday, Sunday, or holiday observed by the Town of Black Mountain, the deadline or required date of action shall be the next day that is not a Saturday, Sunday or holiday observed by the Town of Black Mountain. References to days are calendar days unless otherwise stated.

F.

Delegation of authority. Any act authorized by this Ordinance to be carried out by the Planning Director of Town of Black Mountain may be carried out by his or her designee as Stormwater Administrator.

A.

Reference to design manual. The stormwater administrator shall use the policy, criteria, and information, including technical specifications and standards, in the design manual as the basis for decisions about stormwater permits and about the design, implementation and performance of structural and non-structural stormwater SCMs.

The design manual includes a list of acceptable stormwater treatment practices, including specific design criteria for each stormwater practice. Stormwater treatment practices that are designed, constructed, and maintained in accordance with these design and sizing criteria will be presumed to meet the minimum water quality performance standards of the Phase II laws.

B.

Relationship of design manual to other laws and regulations. If the specifications or guidelines of the design 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 design manual.

C.

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

D.

Amendments to design manual. The design 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.

Prior to amending or updating the design manual, proposed changes shall be generally publicized and made available for review, and an opportunity for comment by interested persons shall be provided.

A.

Conflict of laws. This ordinance is not intended to modify or repeal any other ordinance, rule, regulation or other provision of law. The requirements of this ordinance are in addition to the requirements of any other ordinance, rule, regulation or other provision of law. Where any provision of this ordinance imposes restrictions different from those imposed by any other ordinance, rule, regulation or other provision of law, whichever provision is more restrictive or imposes higher protective standards for human or environmental health, safety, and welfare shall control.

B.

Private agreements. This ordinance is not intended to revoke or repeal any easement, covenant, or other private agreement. However, where the regulations of this ordinance are more restrictive or impose higher standards or requirements than such an easement, covenant, or other private agreement, the requirements of this ordinance shall govern. Nothing in this ordinance shall modify or repeal any private covenant or deed restriction, but such covenant or restriction shall not legitimize any failure to comply with this ordinance. In no case shall Town of Black Mountain be obligated to enforce the provisions of any easements, covenants, or agreements between private parties.

If the provisions of any section, subsection, paragraph, subdivision or clause of this ordinance shall be adjudged invalid by a court of competent jurisdiction, such judgment shall not affect or invalidate the remainder of any section, subsection, paragraph, subdivision or clause of this ordinance.

A.

Effective date. This ordinance shall take effect on December 1, 2019.

B.

Final approvals, complete applications. All development and redevelopment projects for which complete and full applications were submitted and approved by the Town of Black Mountain prior to the effective date of this ordinance and which remain valid, unexpired, unrevoked and not otherwise terminated at the time of development or redevelopment shall be exempt from complying with all provisions of this ordinance dealing with management of post-construction runoff, but shall be required to comply with all other applicable provisions, including but not limited to illicit discharge provisions. If previously approved SCMs are not maintained as approved and regulated by the stormwater ordinance in effect at the time of their approval, such LCMs must be made to comply with this ordinance to the greatest extent possible when repaired or brought into compliance.

A phased development plan shall be deemed approved prior to the effective date of this ordinance if it has been approved by all necessary government units, it remains valid, unexpired, unrevoked and not otherwise terminated, and it shows:

(1)

For the initial or first phase of development, the type and intensity of use for a specific parcel or parcels, including at a minimum, the boundaries of the project and a subdivision plan that has been approved.

(2)

For any subsequent phase of development, sufficient detail so that implementation of the requirements of this ordinance to that phase of development would require a material change in that phase of the plan.

C.

Violations continue. Any violation of provisions existing on the effective date of this ordinance shall continue to be a violation under this ordinance and be subject to penalties and enforcement under this ordinance unless the use, development, construction, or other activity complies with the provisions of this ordinance.

SECTION 2: ADMINISTRATION AND PROCEDURES

A.

Stormwater administrator.

(1)

Designation. A stormwater administrator shall be designated by the planning director to administer and enforce this ordinance in whole or in part, at the planning director's discretion.

B.

Powers and duties. In addition to the powers and duties that may be conferred by other provisions of the Town of Black Mountain Code of Ordinances and other laws, the stormwater administrator shall have the following powers and duties under this ordinance:

(1)

To review and approve, approve with conditions, or disapprove applications for approval of plans pursuant to this ordinance.

(2)

To make determinations and render interpretations of this ordinance.

(3)

To enforce the provisions of this ordinance in accordance with its enforcement provisions.

(4)

To maintain records, maps, forms and other official materials as related to the adoption, amendment, enforcement, and administration of this ordinance.

(5)

To provide expertise and technical assistance to the Town of Black Mountain Town Council, upon request.

(6)

To designate appropriate other person(s) who shall carry out the powers and duties of the stormwater administrator.

(7)

To take any other action necessary to administer the provisions of this ordinance.

A.

Permit required; must apply for permit. A stormwater permit is required for all development and redevelopment unless exempt pursuant to this ordinance. A permit may only be issued subsequent to a properly submitted and reviewed permit application, pursuant to this section. A stormwater permit shall govern the design, installation, and construction of stormwater management and control practices on the site, including structural SCMs and elements of site design for stormwater management other than structural SCMs.

The permit is intended to provide a mechanism for the review, approval, and inspection of the approach to be used for the management and control of stormwater for the development or redevelopment site consistent with the requirements of this ordinance, whether the approach consists of structural SCMs or other techniques such as low-impact or low-density design. The permit does not continue in existence indefinitely after the completion of the project; rather, compliance after project construction is assured by the maintenance provisions of this ordinance.

B.

Authority to file applications. All applications required pursuant to this Code shall be submitted to the stormwater administrator by the land owner or the land owner's duly authorized agent.

C.

Establishment of application requirements, schedule, and fees.

(1)

Application contents and form. The stormwater administrator shall establish requirements for the content and form of all applications and shall amend and update those requirements from time to time. At a minimum, the stormwater permit application shall describe in detail how post-development stormwater runoff will be controlled and managed, the design of all stormwater facilities and practices, and how the proposed project will meet the requirements of this ordinance.

(2)

Submission schedule. The stormwater administrator shall establish a submission schedule for applications. The schedule shall establish deadlines by which complete applications must be submitted for the purpose of ensuring that there is adequate time to review applications, and that the various stages in the review process are accommodated.

(3)

Permit review fees. The Town of Black Mountain Town Council shall establish permit review fees as well as policies regarding refund of any fees upon withdrawal of an application, and may amend and update the fees and policies from time to time.

(4)

Administrative manual. For applications required under this ordinance, the stormwater administrator shall compile the application requirements, submission schedule, fee schedule, a copy of this ordinance, and information on how and where to obtain the design manual in an administrative manual, which shall be made available to the public.

D.

Submittal of complete application. Applications shall be submitted to the stormwater administrator pursuant to the application submittal schedule in the form established by the stormwater administrator, along with the appropriate fee established pursuant to this section. An application shall be considered as timely submitted only when it contains all elements of a complete application pursuant to this ordinance, along with the appropriate fee. If the stormwater administrator finds that an application is incomplete, the applicant shall be notified of the deficient elements and shall be provided with an opportunity to submit a complete application. However, the submittal of an incomplete application shall not suffice to meet a deadline contained in the submission schedule established above.

E.

Review. Within 15 working days after a complete application is submitted, the stormwater administrator shall review the application and determine whether the application complies with the standards of this ordinance.

(1)

Approval. If the stormwater administrator finds that the application complies with the standards of this ordinance, the stormwater administrator shall approve the application. The stormwater administrator may impose conditions of approval as needed to ensure compliance with this ordinance. The conditions shall be included as part of the approval.

(2)

Fails to comply. If the stormwater administrator finds that the application fails to comply with the standards of this ordinance, the stormwater administrator shall notify the applicant and shall indicate how the application fails to comply. The applicant shall have an opportunity to submit a revised application.

(3)

Revision and subsequent review. A complete revised application shall be reviewed by the stormwater administrator within 15 working days after its re-submittal and shall be approved, approved with conditions or disapproved.

If a revised application is not re-submitted within 30 calendar days from the date the applicant was notified, the 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 for a new submittal.

One re-submittal of a revised application may be submitted without payment of an additional permit review fee. Any re-submittal after the first re-submittal shall be accompanied by a permit review fee additional fee, as established pursuant to this ordinance.

A.

Concept plan and consultation meeting required. Before a stormwater management permit application is deemed complete, the stormwater administrator or developer shall request a consultation on a concept plan for the post-construction stormwater management system to be utilized in the proposed development project. This consultation meeting should take place at the time of the preliminary plan of subdivision or other early step in the development process. The purpose of this meeting is to discuss the post-construction stormwater management measures necessary for the proposed project, as well as to discuss and assess constraints, opportunities and potential approaches to stormwater management designs before formal site design engineering is commenced. Local watershed plans, the town's comprehensive plan and land use code, and other relevant resource protection plans should be consulted in the discussion of the concept plan.

To accomplish this goal, the following information should be included in the concept plan, which should be submitted in advance of the meeting:

(1)

Existing conditions/proposed site plans. Existing conditions and proposed site layout sketch plans, which illustrate at a minimum: existing and proposed topography; perennial and intermittent streams; mapping of predominant soils from soil surveys (if available); boundaries of existing predominant vegetation; proposed limits of clearing and grading; and location of existing and proposed roads, buildings, parking areas and other impervious surfaces.

(2)

Natural resources inventory. A written or graphic inventory of natural resources at the site and surrounding area as it exists prior to the commencement of the project. This description should include a discussion of soil conditions, forest cover, geologic features, topography, wetlands, and native vegetative areas on the site, as well as the location and boundaries of other natural feature protection and conservation areas such as lakes, ponds, floodplains, stream buffers and other setbacks (e.g., drinking water well setbacks, septic setbacks, etc.). Particular attention should be paid to environmentally sensitive features that provide particular opportunities or constraints for development and stormwater management.

(3)

Stormwater management system concept plan. A written or graphic concept plan of the proposed post-development stormwater management system including: preliminary selection and location of proposed structural stormwater controls; low-impact design elements; location of existing and proposed conveyance systems such as grass channels, swales, and storm drains; flow paths; location of floodplain/floodway limits; relationship of site to upstream and downstream properties and drainages; and preliminary location of any proposed stream channel modifications, such as bridge or culvert crossings.

B.

Stormwater management permit application. The stormwater management permit application shall detail how post development stormwater runoff will be controlled and managed and how the proposed project will meet the requirements of this ordinance, including section 8.2.13, standards. All such plans shall be prepared by a qualified registered North Carolina professional engineer, surveyor, soil scientist or landscape architect, and the engineer, surveyor, soil scientist or landscape architect 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 applications, that the designs and plans are sufficient to comply with applicable standards and policies found in the design manual, and that the designs and plans ensure compliance with this ordinance.

The submittal shall include all of the information required in the submittal checklist established by the stormwater administrator. Incomplete submittals shall be treated pursuant to section 8.2.9.D.

C.

As-built plans and final approval. Upon completion of a project, and before a certificate of occupancy shall be granted, the applicant shall certify that the completed project is in accordance with the approved stormwater management plans and designs, and shall submit actual "as built" plans for all stormwater management facilities or practices after final construction is completed.

The plans shall show the final design specifications for all stormwater management facilities and practices and the field location, size, depth, and planted vegetation of all measures, controls, and devices, as installed. The designer of the stormwater management measures and plans shall certify, under seal, that the as built stormwater measures, controls, and devices are in compliance with the approved stormwater management plans and designs and with the requirements of this ordinance. A final inspection and approval by the stormwater administrator shall occur before the release of any performance securities.

D.

Other permits. No certificate of compliance or occupancy shall be issued by the building inspector without final as-built plans and a final inspection and approval by the stormwater administrator, except where multiple units are served by the stormwater practice or facilities, in which case the building inspector may elect to withhold a percentage of permits or certificates of occupancy until as-built plans are submitted and final inspection and approval has occurred.

A.

Effect of approval. Approval authorizes the applicant to go forward with only the specific plans and activities authorized in the permit. The approval shall not be construed to exempt the applicant from obtaining other applicable approvals from local, state, and federal authorities.

B.

Time limit/expiration. An approved plan shall become null and void if the applicant fails to make substantial progress on the site within one year after the date of approval. The stormwater administrator may grant a single, one-year extension of this time limit, for good cause shown, upon receiving a written request from the applicant before the expiration of the approved plan.

In granting an extension, the stormwater administrator may require compliance with standards adopted since the original application was submitted unless there has been substantial reliance on the original permit and the change in standards would infringe the applicant's vested rights.

A.

Right of appeal. Any aggrieved person affected by any decision, order, requirement, or determination relating to the interpretation or application of this ordinance made by the stormwater administrator, may file an appeal to the board of adjustment within 30 days.

SECTION 3: STANDARDS

All development and redevelopment to which this ordinance applies shall comply with the standards of this section.

High and low density projects shall comply with each of the following standards requiring a stormwater permit:

A.

Stormwater runoff from the development shall be transported from the development by vegetated conveyances to the maximum extent practicable.

B.

Project sites must employ low impact development (LID) practices to analyze the infiltration capacity of natural drainage of the site and develop a system of controls which mimic the existing, natural hydrology and which cumulatively capture and treat the runoff from the first inch of rainfall. LID practice may include any combination of site design techniques, and SCMs to store, infiltrate, evaporate, retain and detain runoff on the site to more closely replicate the pre-development runoff thereby limiting the increase in pollutant loads caused by development.

C.

All built-upon area shall be at a minimum of 30 feet landward of all perennial and intermittent surface waters. A perennial or intermittent surface water shall be deemed present if the feature is approximately shown on either the most recent version of the soil survey map prepared by the Natural Resources Conservation Service of the United States Department of Agriculture (USDA) or the most recent version of the 1:24,000 scale (7.5 minute) quadrangle topographic maps prepared by the United States Geologic Survey (USGS). An exception to this requirement may be allowed when surface waters are not present in accordance with the provisions of 15A NCAC 2B.0233 (3)(a) or similar site-specific determination made using Division-approved methodology. Encroachment allowances may be made as described in 4.3.2.

D.

The approval of the stormwater permit shall require an enforceable restriction on property usage that runs with the land, such as a recorded deed restriction or protective covenants, to ensure that future development and redevelopment maintains the site consistent with the approved project plans.

E.

The measures shall control and treat runoff from the first inch of rain. Runoff volume drawdown time shall be a minimum of 48 hours, but not more than 120 hours.

F.

All structural stormwater treatment systems used to meet these requirements shall be designed to have a minimum of 85 percent average annual removal for total suspended solids (TSS);

G.

General engineering design criteria for all projects shall be in accordance with 15A NCAC 2H.1008(c), as explained in the design manual;

Owners of property subject to this ordinance and required to install structural stormwater control measures shall implement those measures in compliance with each of the following standards:

A.

Evaluation according to contents of design manual. All stormwater control measures and stormwater treatment practices (also referred to as Stormwater Control Measures, or SCMs) required under this ordinance 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 design manual. The stormwater administrator shall determine whether proposed SCMs will be adequate to meet the requirements of this ordinance. It is presumed that all standards in the design manual will result in a minimum of 85 percent average annual removal of total suspended solids.

B.

Determination of adequacy; presumptions and alternatives. Stormwater treatment practices that are designed, and constructed, and maintained in accordance with the criteria and specifications in the design manual will be presumed to meet the minimum water quality and quantity performance standards of this ordinance. Whenever an applicant proposes to utilize a practice or practices not designed and constructed in accordance with the criteria and specifications in the design 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 ordinance. The stormwater administrator may require the applicant to provide the documentation, calculations, and examples necessary for the stormwater administrator to determine whether such an affirmative showing is made.

C.

Whenever LID practices are not achievable, or have not been demonstrated, the measures controlling the final runoff from the site shall control and treat the difference in stormwater runoff volume leaving the project site between pre and post-development conditions for a minimum rate of ten year, 24-hour storm as determined by NOAA.

D.

Peak stormwater runoff rates shall be controlled for all development at or exceeding 24 percent built upon area or high density projects as defined by this ordinance, for both LID and conventional approaches. The peak stormwater runoff release rates leaving the site during post-construction conditions shall be equal to or less than the pre-development peak stormwater runoff release rates for the one-year frequency, 24-hour duration storm event as determined by NOAA data for Black Mountain. The emergency overflow and outlet works for any pond or wetland constructed as a stormwater SCM shall be capable of safely passing a discharge with a minimum recurrence frequency of 50 years. For detention basins, the temporary storage capacity shall be restored within 72 hours. Requirements of the Dam Safety Act shall be met when applicable.

E.

No single SCM shall receive runoff from an area greater than three acres, however the total drainage area from SCMs used in a series may exceed this maximum.

F.

In addition to the standards for handling stormwater set out in the design manual, development and redevelopment that drains in whole or part to trout waters (class TR) waters shall design and implement the best stormwater practices that do not result in a sustained increase in receiving water temperature, while still meeting the other requirements of this ordinance.

G.

In addition to the standards for stormwater handling set out in the design manual, development and redevelopment that drains in whole or part to nutrient sensitive waters (class NSW) shall design and implement the best stormwater practices that reduce nutrient loading, while still meeting the other requirements of this ordinance.

H.

Separation from seasonal high water table. For SCMs that require a separation from the seasonal high-water table, the separation shall be provided by at least 12 inches of naturally occurring soil above the seasonal high-water table.

A.

Any person may petition the Town of Black Mountain for a variance granting permission to use the person's land in a manner otherwise prohibited by this ordinance. The Town of Black Mountain may impose reasonable and appropriate conditions and safeguards upon any variance it grants. To qualify for a variance, the petitioner must show all of the following:

(1)

Unnecessary hardships would result from strict application of this ordinance.

(2)

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

(3)

The hardships did not result from actions taken by the petitioner.

(4)

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

B.

Statutory exceptions. Notwithstanding subsection (A) of this section, exceptions from the 30-foot landward location of built-upon area requirement as well as the deed restrictions and protective covenants requirements shall be granted 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 maximum nutrient 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 SCMs.

(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 maximum nutrient 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 SCMs.

1.

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.

2.

The stormwater runoff from the entire impervious area of the development is collected, treated and discharged so that it pass through a segment of the vegetative buffer and is managed so that it otherwise complies with all applicable state and federal stormwater management requirements.

A.

Operation and maintenance requirements. New and replaced onsite systems for domestic wastewater installed after the effective date of this ordinance shall be subject to the operation and maintenance requirements of the Buncombe County Environmental Health Department.

B.

Standards for operation and maintenance. Onsite systems for domestic wastewater shall be operated and maintained so as to avoid adverse effects on surface water and groundwater. Operation and maintenance of onsite systems for domestic wastewater shall be in accordance with the standards of the Buncombe County Environmental Health Department.

C.

Enforcement. The Buncombe County Environmental Health Department shall be responsible for the enforcement of the installation, operation and maintenance standards for onsite systems for domestic wastewater within the limits of the town.

SECTION 4: MAINTENANCE

A.

Function of SCMs as intended. The owner of each structural SCM installed pursuant to this ordinance shall maintain and operate the device(s) in accordance with the approved Operation and Maintenance Plan to preserve and continue its function in controlling stormwater quality and quantity at the degree or amount of function for which the structural SCM was designed.

B.

Single family and duplex maintenance inspection and report. SCMs installed to meet the needs of this ordinance shall submit to the stormwater administrator an inspection report every three years from either a NC State University (NCSU) Cooperative Extension Certified Stormwater SCM Inspection & Maintenance Inspector, NC professional engineer or landscape architect. The inspection report shall contain all of the following:

(1)

The name and address of the landowner;

(2)

The recorded book and page number of the lot of each structural SCM;

(3)

A statement than an inspection was made of all structural SCMs;

(4)

The date the inspection was made;

(5)

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

(6)

The original signature of the NCSU Cooperative Extension Certified Stormwater SCM Inspection & Maintenance Inspector, NC professional engineer or landscape architect.

C.

Residential developments and commercial properties annual maintenance inspection and report. The person responsible for maintenance of any structural SCM installed pursuant to this ordinance shall submit to the stormwater administrator an inspection report from either a NCSU Cooperative Extension Certified Stormwater SCM Inspection & Maintenance Inspector, NC professional engineer or landscape architect. The inspection report shall contain all of the following:

(1)

The name and address of the landowner;

(2)

The recorded book and page number of the lot of each structural SCM;

(3)

A statement that an inspection was made of all structural SCMs;

(4)

The date the inspection was made;

(5)

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

(6)

The original signature and seal of the NCSU Cooperative Extension Certified Stormwater SCM Inspection and Maintenance Inspector, NC professional engineer, or landscape architect.

All inspection reports shall be on forms supplied by the stormwater administrator. An original inspection report shall be provided to the stormwater administrator beginning one year from the date of as-built certification and annually thereafter.

(Ord. No. O-21-19, 12-13-2021; Ord. No. O-23-21, 11-13-2023)

A.

In general. Prior to the conveyance or transfer of any lot or building site to be served by a structural SCM pursuant to this ordinance, and prior to issuance of any permit for development or redevelopment requiring a structural SCM pursuant to this ordinance, the applicant or owner of the site must execute an operation and maintenance agreement that shall be binding on all subsequent owners of the site, portions of the site, and lots or parcels served by the structural SCM. Until the transference of all property, sites, or lots served by the structural SCM, the original owner or applicant shall have primary responsibility for carrying out the provisions of the maintenance agreement.

The operation and maintenance agreement shall require the owner or owners to maintain, repair and, if necessary, reconstruct the structural SCM, and shall state the terms, conditions, and schedule of maintenance for the structural SCM. In addition, it shall grant to Town of Black Mountain a right of entry in the event that the stormwater administrator has reason to believe it has become necessary to inspect, monitor, maintain, repair, or reconstruct the structural SCM; however, in no case shall the right of entry, of itself, confer an obligation on Town of Black Mountain to assume responsibility for the structural SCM. The operation and maintenance agreement must be approved by the stormwater administrator prior to plan approval, and it shall be referenced on the final plat and shall be recorded with the county register of deeds upon final plat approval. A copy of the recorded maintenance agreement shall be given to the stormwater administrator within 14 days following its recordation.

The Operation and Maintenance Agreement must be recorded with the Buncombe County Register of Deeds prior to issuance of Certificate of Occupancy.

B.

Special requirement for homeowners' and other associations. For all structural SCMs required pursuant to this ordinance and that are to be or are owned and maintained by a homeowners' association, property owners' association, or similar entity, the required operation and maintenance agreement shall include all of the following provisions:

(1)

Acknowledgment that the association shall continuously operate and maintain the stormwater control and management facilities.

(2)

Establishment of an escrow account, which can be spent solely for sediment removal, structural, biological or vegetative replacement, major repair, or reconstruction of the structural SCMs. If structural SCMs are not performing adequately or as intended or are not properly maintained, the Town of Black Mountain, in its sole discretion, may remedy the situation, and in such instances the Town of Black Mountain shall be fully reimbursed from the escrow account. Escrowed funds may be spent by the association for sediment removal, structural, biological or vegetative replacement, major repair, and reconstruction of the structural SCMs, provided that the Town of Black Mountain shall first consent to the expenditure.

(3)

Both developer contribution and annual sinking funds shall fund the escrow account. Prior to plat recordation or issuance of construction permits, whichever shall first occur, the developer shall pay into the escrow account an amount equal to 15 percent of the initial construction cost of the structural SCMs.

Two-thirds of the total amount of sinking fund budget shall be deposited into the escrow account within the first five years and the full amount shall be deposited within ten years following initial construction of the structural SCMs. Funds shall be deposited each year into the escrow account. A portion of the annual assessments of the association shall include an allocation into the escrow account. Any funds drawn down from the escrow account shall be replaced in accordance with the schedule of anticipated work used to create the sinking fund budget.

(4)

The percent of developer contribution and lengths of time to fund the escrow account may be varied by the Town of Black Mountain depending on the design and materials of the stormwater control and management facility.

(5)

Granting to the Town of Black Mountain a right of entry to inspect, monitor, maintain, repair, and reconstruct structural SCMs.

(6)

Allowing the Town of Black Mountain to recover from the association and its member's any and all costs the Town of Black Mountain expends to maintain or repair the structural SCMs or to correct any operational deficiencies. Failure to pay the Town of Black Mountain all of its expended costs, after 45 days written notice, shall constitute a breach of the agreement. In case of a deficiency, the Town of Black Mountain shall thereafter be entitled to bring an action against the association and its members to pay, or foreclose upon the lien hereby authorized by the agreement against the property, or both. Interest, collection costs, and attorney fees shall be added to the recovery.

(7)

A statement that this agreement shall not obligate the Town of Black Mountain to maintain or repair any structural SCMs, and the Town of Black Mountain shall not be liable to any person for the condition or operation of structural SCMs.

(8)

A statement that this agreement shall not in any way diminish, limit, or restrict the right of the Town of Black Mountain to enforce any of its ordinances as authorized by law.

(9)

A provision indemnifying and holding harmless the Town of Black Mountain for any costs and injuries arising from or related to the structural SCM, unless the Town of Black Mountain has agreed in writing to assume the maintenance responsibility for the SCM and has accepted dedication of any and all rights necessary to carry out that maintenance.

(Ord. No. O-23-21, 11-13-2023)

Inspections and inspection programs by Town of Black Mountain may be conducted or established on any reasonable basis, including but not limited to routine inspections; random inspections; inspections based upon complaints or other notice of possible violations; and joint inspections with other agencies inspecting under environmental or safety laws. Inspections may include, but are not limited to, reviewing maintenance and repair records; sampling discharges, surface water, groundwater, and material or water in SCMs; and evaluating the condition of SCMs.

If the owner or occupant of any property refuses to permit such inspection, the stormwater administrator shall proceed to obtain an administrative search warrant pursuant to G.S. 15-27.2 or its successor. No person shall obstruct, hamper or interfere with the stormwater administrator while carrying out his or her official duties.

A.

May be required. The Town of Black Mountain may, at its discretion, require the submittal of a performance security or bond with surety, cash escrow, letter of credit or other acceptable legal arrangement prior to issuance of a permit in order to ensure that the structural SCMs are:

(1)

Installed by the permit holder as required by the approved stormwater management plan, and/or

(2)

Maintained by the owner as required by the operation and maintenance agreement.

B.

Amount.

(1)

Installation. The amount of an installation performance security shall be the total estimated construction cost of the SCMs approved under the permit, plus 25 percent.

(2)

Maintenance. The amount of a maintenance performance security shall be the present value of an annuity of perpetual duration based on a reasonable estimate of the annual cost of inspection, operation and maintenance of the SCMs approved under the permit, at a discount rate that reflects the jurisdiction's cost of borrowing minus a reasonable estimate of long-term inflation.

C.

Uses of performance security.

(1)

Forfeiture provisions. The performance security shall contain forfeiture provisions for failure, after proper notice, to complete work within the time specified, or to initiate or maintain any actions which may be required of the applicant or owner in accordance with this ordinance, approvals issued pursuant to this ordinance, or an operation and maintenance agreement established pursuant to this ordinance.

(2)

Default. Upon default of the owner to construct, maintain, repair and, if necessary, reconstruct any structure SCM in accordance with the applicable permit or operation and maintenance agreement, the stormwater administrator shall obtain and use all or any portion of the security to make the necessary improvements based on an engineering estimate. Such expenditure of funds shall only be made after requesting the owner to comply with the permit or maintenance agreement. In the event of a default triggering the use of installation performance security, the Town of Black Mountain shall not return any of the unused deposited cash funds or other security, which shall be retained for maintenance.

(3)

Costs in excess of performance security. If Town of Black Mountain takes action upon such failure by the applicant or owner, the Town of Black Mountain may collect from the applicant or owner the difference between the amount of the reasonable cost of such action and the amount of the security held, in addition to any other penalties or damages due.

(4)

Refund. Within 60 days of the final approval, the installation performance security shall be refunded to the applicant or terminated, except any amount attributable to the cost (plus 25 percent) of landscaping installation and ongoing maintenance associated with the SCMs covered by the security unless a separate landscaping and ongoing maintenance security has been provided. Any such landscaping shall be inspected one year after installation with replacement for compliance with the approved plans and specifications and, if in compliance, the portion of the financial security attributable to landscaping shall be released.

A.

Deed recordation and indications on plat. The applicable operations and maintenance agreement, conservation easement, or dedication and acceptance into public maintenance (whichever is applicable), pertaining to every structural SCM shall be referenced on the final plat and shall be recorded with the county register of deeds upon final plat approval. If no subdivision plat is recorded for the site, then the operations and maintenance agreement, conservation easement, or dedication and acceptance into public maintenance, whichever is applicable, shall be recorded with the county register of deeds so as to appear in the chain of title of all subsequent purchasers under generally accepted searching principles.

The Operation and Maintenance Agreement must be recorded with the Buncombe County Register of Deeds prior to issuance of Certificate of Occupancy.

B.

Signage. Where appropriate in the determination of the stormwater administrator to assure compliance with this ordinance, structural SCMs shall be posted with a conspicuous sign stating who is responsible for required maintenance and annual inspection. The sign shall be maintained so as to remain visible and legible.

(Ord. No. O-23-21, 11-13-2023)

The owner of each structural SCM shall keep records of inspections, 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.

The owner of each stormwater SCM, whether structural or non-structural SCM, shall maintain it so as not to create or result in a nuisance condition.

Every structural SCM installed pursuant to this ordinance shall be made accessible for adequate maintenance and repair by a maintenance easement. The easement shall be recorded and its terms shall specify who may make use of the easement and for what purposes.

SECTION 5: ENFORCEMENT AND VIOLATIONS FOR COMPLIANCE AND PERMITS

A.

Authority to enforce. The provisions of this ordinance shall be enforced by the stormwater administrator, or any authorized agent of Town of Black Mountain. Whenever this section refers to the stormwater administrator, it includes his or her designee as well as any authorized agent of Town of Black Mountain.

B.

Violation unlawful. Any failure to comply with an applicable requirement, prohibition, standard, or limitation imposed by this ordinance, or the terms or conditions of any permit or other development or redevelopment approval or authorization granted pursuant to this ordinance, is unlawful and shall constitute a violation of this ordinance.

C.

Each day a separate offense. Each day that a violation continues shall constitute a separate and distinct violation or offense.

D.

Responsible persons/entities. Any person who erects, constructs, reconstructs, alters (whether actively or passively), or fails to erect, construct, reconstruct, alter, repair or maintain any structure, SCM, practice, or condition in violation of this ordinance shall be subject to the remedies, penalties, and/or enforcement actions in accordance with this section. Persons subject to the remedies and penalties set forth herein may include any architect, engineer, builder, contractor, developer, agency, or any other person who participates in, assists, directs, creates, causes, or maintains a condition that results in or constitutes a violation of this ordinance, or fails to take appropriate action, so that a violation of this ordinance results or persists; or an owner, any tenant or occupant, or any other person, who has control over, or responsibility for, the use or development of the property on which the violation occurs.

For the purposes of this article, responsible person(s) shall include but not be limited to:

(1)

Person maintaining condition resulting in or constituting violation. An architect, engineer, contractor, developer, agency, or any other person who participates in, assists, directs, creates, causes, or maintains a condition that constitutes a violation of this ordinance, or fails to take appropriate action, so that a violation of this ordinance results or persists.

(2)

Responsibility for land or use of land. The owner of the land on which the violation occurs, any tenant or occupant of the property, any person who is responsible for stormwater controls or practices pursuant to a private agreement or public document, or any person, who has control over, or responsibility for, the use, development or redevelopment of the property.

The remedies and penalties provided for violations of this ordinance, whether civil or criminal, shall be cumulative and in addition to any other remedy provided by law, and may be exercised in any order.

A.

Remedies.

(1)

Withholding of certificate of occupancy. The stormwater administrator or other authorized agent may refuse to issue a certificate of occupancy for the building or other improvements constructed or being constructed on the site and served by the stormwater practices in question until the applicant or other responsible person has taken the remedial measures set forth in the notice of violation or has otherwise cured the violations described therein.

(2)

Disapproval of subsequent permits and development approvals. As long as a violation of this ordinance continues and remains uncorrected, the stormwater administrator or other authorized agent may withhold, and the planning board may disapprove, any request for permit or development approval or authorization provided for by this ordinance or the subdivision for the land on which the violation occurs.

(3)

Injunction, abatements, etc. The stormwater administrator, with the written authorization of the town manager, may institute an action in a court of competent jurisdiction for a mandatory or prohibitory injunction and order of abatement to correct a violation of this ordinance. Any person violating this ordinance shall be subject to the full range of equitable remedies provided in the General Statutes or at common law.

(4)

Correction as public health nuisance, costs as lien, etc. If the violation is deemed dangerous or prejudicial to the public health or public safety and is within the geographic limits of the Town of Black Mountain G.S. 160A-193, the stormwater administrator, with the written authorization of the town manager, may cause the violation to be corrected and the costs to be assessed as a lien against the property.

(5)

Stop work order. The stormwater administrator may issue a stop work order to the person(s) violating this ordinance. The stop work order shall remain in effect until the person has taken the remedial measures set forth in the notice of violation or has otherwise cured the violation or violations described therein. The stop work order may be withdrawn or modified to enable the person to take the necessary remedial measures to cure such violation or violations.

B.

Civil penalties. Violation of this ordinance may subject the violator to a civil penalty to be recovered in a civil action in the nature of a debt if the violator does not pay the penalty within 30 days after notice of the violation is issued by the stormwater administrator. Civil penalties may be assessed up to the full amount of penalty to which the Town of Black Mountain is subject for violations of its Phase II Stormwater permit, or if no Phase II Stormwater permit exists for the jurisdiction, civil penalties may be assessed up to the full amount allowed by law.

A.

Initiation/complaint. Whenever a violation of this ordinance occurs, or is alleged to have occurred, any person may file a written complaint. Such complaint shall state fully the alleged violation and the basis thereof, and shall be filed with the stormwater administrator, who shall record the complaint. The complaint shall be investigated promptly by the stormwater administrator.

B.

Inspection. The stormwater administrator shall have the authority, upon presentation of proper credentials, to enter and inspect any land, building, structure, or premises to ensure compliance with this ordinance.

C.

Notice of violation and order to correct. When the stormwater administrator finds that any building, structure, or land is in violation of this ordinance, the stormwater administrator shall notify, in writing, the property owner or other person violating this ordinance. The notification shall indicate the nature of the violation, contain the address or other description of the site upon which the violation is occurring, order the necessary action to abate the violation, and give a deadline for correcting the violation. If civil penalties are to be assessed, the notice of violation shall also contain a statement of the civil penalties to be assessed, the time of their accrual, and the time within which they must be paid or be subject to collection as a debt.

The stormwater administrator may deliver the notice of violation and correction order personally, by the Code Enforcement staff, by certified or registered mail, return receipt requested, or by any means authorized for the service of documents by Rule 4 of the North Carolina Rules of Civil Procedure.

If a violation is not corrected within a reasonable period of time, as provided in the notification, the stormwater administrator may take appropriate action under this ordinance to correct and abate the violation and to ensure compliance with this ordinance.

D.

Extension of time. A person who receives a notice of violation and correction order, or the owner of the land on which the violation occurs, may submit to the stormwater administrator a written request for an extension of time for correction of the violation. On determining that the request includes enough information to show that the violation cannot be corrected within the specified time limit for reasons beyond the control of the person requesting the extension, the stormwater administrator may extend the time limit as is reasonably necessary to allow timely correction of the violation, up to, but not exceeding 60 days. The stormwater administrator may grant 60-day extensions in addition to the foregoing extension if the violation cannot be corrected within the permitted time due to circumstances beyond the control of the person violating this ordinance. The stormwater administrator may grant an extension only by written notice of extension. The notice of extension shall state the date prior to which correction must be made, after which the violator will be subject to the penalties described in the notice of violation and correction order.

E.

Enforcement after time to correct. After the time has expired to correct a violation, including any extension(s) if authorized by the stormwater administrator, the stormwater administrator shall determine if the violation is corrected. If the violation is not corrected, the stormwater administrator may act to impose one or more of the remedies and penalties authorized by this ordinance.

F.

Emergency enforcement. If delay in correcting a violation would seriously threaten the effective enforcement of this ordinance or pose an immediate danger to the public health, safety, or welfare, then the stormwater administrator may order the immediate cessation of a violation. Any person so ordered shall cease any violation immediately. The stormwater administrator may seek immediate enforcement, without prior written notice, through any remedy or penalty authorized by this article.

SECTION 6: DEFINITIONS

When used in this ordinance, the following words and terms shall have the meaning set forth in this section, unless other provisions of this ordinance specifically indicate otherwise.

Built-upon area (BUA): That portion of a development project that is covered by impervious or partially impervious surface including, but not limited to, buildings; pavement and gravel areas such as roads, parking lots, and paths; and recreation facilities such as tennis courts. "Built-upon area" does not include a wooden slatted deck, the water area of a swimming pool, or pervious or partially pervious paving material to the extent that the paving material absorbs water or allows water to infiltrate through the paving material.

Department: The North Carolina Department of Environment and Natural Resources.

Design manual: All references herein to the Design Manual are to the latest published edition or revision as published by the North Carolina Department of Environmental Quality.

Development: Any land-disturbing activity that increases the amount of built-upon area or that otherwise decreases the infiltration of precipitation into the soil.

Division: The Division of Water Quality in the Department.

Larger common plan of development or sale: Any area where multiple separate and distinct construction or land-disturbing activities will occur under one plan. A plan is any announcement or piece of documentation (including but not limited to a sign, public notice or hearing, sales pitch, advertisement, loan application, drawing, permit application, zoning request, or computer design) or physical demarcation (including but not limited to boundary signs, lot stakes, or surveyor markings) indicating that construction activities may occur on a specific plot.

Low impact development: The term low impact development (LID) refers to systems and practices that use or mimic natural processes that result in the infiltration, evapotranspiration or use of stormwater in order to protect water quality and associated aquatic habitat. LID is an approach to land development (or re-development) that works with nature to manage stormwater as close to its source as possible. LID employs principles such as preserving and recreating natural landscape features, minimizing effective imperviousness to create functional and appealing site drainage that treat stormwater as a resource rather than a waste product. There are many practices that have been used to adhere to these principles such as bio retention facilities, rain gardens, vegetated rooftops, rain barrels and permeable pavements.

25 year, 24-hour storm: The surface runoff resulting from a 24-hour rainfall of an intensity expected to be equaled or exceeded, on average, once in 25 years and with a duration of 24 hours as defined by the National Weather Service.

Owner: The legal or beneficial owner of land, including but not limited to a mortgagee or vendee in possession, receiver, executor, trustee, or long-term or commercial lessee, or any other person or entity holding proprietary rights in the property or having legal power of management and control of the property. "Owner" shall include long -term commercial tenants; management entities, such as those charged with or engaged in the management of properties for profit; and every person or entity having joint ownership of the property. A secured lender not in possession of the property does not constitute an owner, unless the secured lender is included within the meaning of "owner" under another description in this definition, such as a management entity.

Post-construction: The point in which construction activity has been concluded prior to issuing a certificate of occupancy or otherwise putting the property into use.

Redevelopment: Any development on previously-developed land, other than a rebuilding activity that results in no net increase in built-upon area and provides equal or greater storm water control than the previous development.

Stormwater Control Measure (formally known as Best Management Practice): An alternation of land or physical device engineered and/or designed to trap, settle out, or filter pollutants from stormwater runoff; to alter or reduce stormwater runoff velocity, amount, timing, or other characteristics; to approximate the pre-development hydrology on a developed site; or to achieve any combination of these goals. Structural SCM includes physical practices such as constructed wetlands, vegetative practices, filter strips, grassed swales, and other methods installed or created on real property. "Structural SCM" is synonymous with "structural practice," "stormwater control facility," "stormwater control practice," "stormwater treatment practice," "stormwater management practice," "stormwater control measures," "structural stormwater treatment systems," and similar terms used in this ordinance.

Substantial progress: For the purposes of determining whether substantial progress has been made on an approved plan, one or more of the following construction activities toward the completion of a site or subdivision plan shall occur: obtaining a grading permit and conducting grading activity on a continuous basis and not discontinued for more than 30 days; or installation and approval of on-site infrastructure; or obtaining a building permit for the construction and approval of a building foundation. "Substantial progress" for purposes of determining whether an approved plan is null and void is not necessarily the same as "substantial expenditures" used for determining vested rights pursuant to applicable law.

A.

The purpose of this chapter is to improve the appearance, quality and quantity of landscaping as part of new development and to regulate the protection, installation, and long-term management of trees and shrubs and to minimize potential nuisances, such as visual impacts, noise, dust, odor, litter, and glare of lights, from adjacent properties. The appropriate use of existing and supplemental landscaping enhances the appearance of the built environment and blends new development with our natural, mountain landscape. Existing vegetation should be retained where possible to ensure cohesive landscaping. This chapter is also intended to:

1.

Provide visual buffering and enhance the beautification of the town;

2.

Safeguard and enhance property values and protect public and private investment;

3.

Preserve, protect and restore the unique identity and environment of the Town of Black Mountain and to preserve the economic base for tourism and visitors to the town;

4.

Encourage the preservation of existing trees and vegetation;

5.

Aid in stabilizing the environment by contributing to the process of air purification, groundwater recharge, and stormwater runoff retardation, while at the same time aiding in noise, glare, and heat reduction;

6.

Conserve energy; and

7.

Protect the public health, safety and general welfare of the town.

B.

All new developments (except for infill single-family detached residential uses and duplexes) shall be designed in accordance with the requirements of this chapter. A change of use or expansion of an existing building or parking area also requires compliance with the requirements of this chapter. Where necessary to accommodate creativity in site design, or where conformance with the strict requirements of this chapter are not feasible, the board of adjustment may modify these requirements by granting a variance or as part of a special use permit, provided that the type and amount of landscaping or other features are equivalent in effectiveness.

C.

The landscape plan required by this chapter shall accompany any request for a building permit or plat approval by the Town of Black Mountain for commercial or multi-family and major subdivision development. No building permit shall be issued, nor plat approved until the landscape plan is approved by the zoning administrator. The zoning administrator may request any additional information needed to determine compliance with this subchapter.

D.

Landscaping requirements may be met as part of an approved stormwater administrator plan and as incorporated into stormwater management practices such as planted swales or rain gardens.

A.

Landscaping in the central business district. The zoning administrator shall review the landscaping requirements of this article with each development proponent or applicant for a building permit in the central business district. Where meeting the requirements of this subchapter is clearly impractical, the town council may authorize the use of portions of the public rights-of-way for permanent or container plantings. The zoning administrator is authorized to waive specific landscape requirements, or portions thereof, if meeting the requirements will cause insurmountable difficulties for a development proposal in the central business district.

B.

Landscape plan contents. The landscape plan shall contain the following elements, per zoning district or SUP requirements:

1.

Existing and proposed landscaping;

2.

Any buffers required;

3.

Any screening required;

4.

Existing vegetation intended to be saved;

5.

Any barriers proposed to protect vegetation during or after construction;

6.

Topographic contours at intervals of not more than five feet, indication of the direction of stormwater flow, and a description of all stormwater control facilities;

7.

Type and location of plantings.

C.

Landscaping required for all sites. No less than five percent of the lot or parcel which is the subject of the required landscape plan shall be landscaped. This requirement shall be met in addition to any area required for street trees, buffers, or screens; provided that the total area of the site devoted to landscaping shall not be required to exceed 40 percent of the site in accordance with the guidelines provided in 8.3.2.1—10 below.

D.

Landscaped buffers required for some sites. Where a commercial or industrial use abuts a residential district and the perimeter of parking lots require buffers (see below).

E.

Off-street parking and loading areas. Landscaping shall be required in and around all new or redesigned off-street parking and loading areas. Landscaping shall be provided in these areas as follows:

1.

For parking lots less than 2,500 square feet in parking area, no landscaping is required by this subsection. Above 2,500 square feet the following provisions apply:

2.

At least 50 percent of required parking lot landscaping shall be provided as islands within the parking lot. One planting island is recommended for every ten to 15 spaces.

3.

One tree of at least 1½ inch caliper and an initial height of at least four feet shall be provided for each 15 parking spaces. The expected height at maturity of these trees shall be at least eight feet.

4.

No parking space shall be more than 50 feet from a tree or 75 feet from plantings of more than one tree.

5.

Shrubs and other types of plant materials shall be used which will complement the tree plantings subject to approval by the zoning administrator.

Type A Landscaping (opaque buffer)

8.3.2.1 Location and width required Buffers shall be located entirely on the property of the new development along the property boundary line, but not including where roadways separate districts, where a commercial or industrial use abuts a non-commercial residential district are required. Buffers shall be made of an opaque fence or wall that is at least eight feet high or evergreen vegetation to provide a buffer growing to a minimum height of eight feet high to within three years according to the following chart.

New development adjacent to residentially zoned property
(CR-1, SR-2, TR-4, UR-8):

8.3.2.2 Composition. Composition of the type A buffer area may include a wall, solid fence, landscaped berm, planted vegetation, existing vegetation, or any appropriate combination of these elements. Intermittent planting of deciduous and evergreen trees shall obtain a height at maturity of no less than 20 feet and have no unobstructed openings wider than ten feet between tree canopies upon maturity. Shrub plantings shall have a minimum height of three feet at installation and have no unobstructed openings wider than four feet. At least 50 percent of the required trees, and at least 75 percent of the required shrubs, shall be evergreen species. The use of existing vegetation to satisfy this requirement is encouraged but supplemental planting may be required in addition to existing materials.

Type B Landscaping (parking lot perimeter)

8.3.2.3 Location and width required. Type B landscaping is required around the perimeter of all parking lots. The minimum buffer width is five feet. The CB district is exempt from this requirement.

8.3.2.4 Composition for parking lot perimeters ("Type B"). Type B landscaping functions to provide a vegetative area between parking lots and adjacent uses and may be used as part of stormwater management planning. Composition of the Type B landscaping may include a planted swale, wall, fence, planted vegetation, existing vegetation, or any appropriate combination of landscaping. Shrub plantings shall have no unobstructed openings wider than four feet. The use of existing vegetation to satisfy this requirement is encouraged but supplemental planting may be required in addition to existing materials.

Type C Landscaping (parking lot canopy)

8.3.2.5 Location and number required. Type C landscaping is required within all parking lots. A minimum of one canopy tree shall be located within 75 feet of every parking space. The measurement shall be taken from the base of the tree.

8.3.2.6 Composition. Large maturing canopy trees shall be planted in a manner that provides shade for parking area at maturity. Ornamental trees shall be used in lieu of canopy trees under overhead utility lines. The use of differing species around the parking area is encouraged to promote diversity in the overall tree canopy. The use of existing vegetation to satisfy this requirement is encouraged. Each planting area shall adequately sized to sustain the tree at maturity. The use of existing vegetation to satisfy this requirement is encouraged but supplemental planting may be required in addition to existing materials.

Type D Landscaping (residential street trees)

8.3.2.7 Location and number required. Yard trees are required for every residential major subdivision. Trees shall be planted parallel to the public right-of-way at a distance of one every 50 feet. Maintenance of the trees shall be the responsibility of the individual property owner. Each lot shall also provide canopy trees in accordance with the following schedule:

8.3.2.8 Composition. The use of existing vegetation to satisfy this requirement is encouraged. Existing canopy trees over six inches in caliper may be counted towards fulfilling this requirement. All trees required under this section shall be planted within the private lot and not within the street right-of-way.

Type E Screening

8.3.2.9 Screening requirements for non-residential storage and unenclosed structures. A minimum five-foot Type A buffer shall be provided to screen any outdoor storage or unenclosed structure, consisting of a roof but no walls used for storage of materials, products, wastes or equipment associated with commercial or industrial uses that is visible from a street right-of-way in any zoning district.

8.3.2.10 Screening requirements for all zoning districts. The following uses must be screened from abutting residential property and from a public street by an opaque screen consisting of a fence, wall, landscaping, or appropriate combination thereof in accordance with chapter 4, unless they are within the heavy industrial district (HI-0):

• Dumpsters or trash handling areas;

• Where automobiles are stored before and after repairs, manufacturing parts, or scrap materials or equipment that are being stored.

A.

To the extent that existing natural vegetation located on the same parcel of land as the proposed development can meet the required screening levels of this section, the use of such materials is encouraged. In such case, the owner shall designate the land on which such materials are rooted, which shall contain at least the minimum width required.

B.

No structure other than a wall, fence, sidewalk, mailbox, sign or driveway shall be permitted within a required landscaping area. No off-street parking may take place in any required landscaping area. Where plant materials are required, the required amount of plant materials shall be installed on the side of any wall or fence opposite the new development.

Whenever a landscaping alternative specified is selected which includes a wall, fence, or berm, such wall, fence, or berm shall meet the following requirements:

A.

Any wall shall be constructed in a durable fashion of wood, metal, brick, stone or other masonry material, with no greater than 25 percent of the wall left open, and any fence shall be constructed in a durable fashion of wood, metal, brick, stone or other masonry materials. All walls and fences, except those constructed of stone, shall be of a consistent pattern. All walls and fences shall comply with the town fence and wall regulations below.

B.

Berms shall be grassed and/or planted with other plant materials sufficient to prevent soil erosion. If grassed alone, any berm shall be no less than four feet nor greater than eight feet in height. No slope of a berm shall exceed a slope greater than one foot of rise for every three feet in plane. No part of the berm shall be left as bare soil and any plantings accompanying berm may be planted on and/or along either side of the berm.

C.

Where a fence, wall or berm is used as part of a required screen area, any required plantings accompanying the fence or wall shall be located on the side opposite the new development.

D.

Fencing and walls. Except as otherwise noted in this chapter, fences or yard walls are permitted subject to the following regulations:

(1)

General fence and wall requirements.

a.

Obstruction of view. No fence or wall shall be placed or retained in such a manner as to obstruct vision at any intersection of public or private streets as specified in section 4.3.6.

b.

Fences and walls prohibited in right-of-way. No fence or wall shall be erected or maintained within or on any state or town right-of-way.

c.

Obstruction of drainage way. Fence or wall construction shall not alter or impede the natural flow of water in any stream, creek, drainage swale or ditch.

d.

Historic district. Fences or walls in historic districts shall meet the standards for the particular historic district in which it is located.

e.

Razor wire fencing or walls shall be prohibited in the CR-1, SR-2, TR-4 and UR-8 zoning districts.

(2)

Maintenance required. Any fence or wall which, through neglect, lack of repair, state of despair, type or manner of construction, method of placement or otherwise, constitutes a hazard or endangers any person, animal or property is hereby deemed a nuisance. If such conditions exist, the zoning administrator shall require the owner of the property upon which the fence or wall is located to repair, replace or demolish the fence or wall causing the nuisance, in accordance with the regulations found in chapter 1.

(3)

Agricultural uses and bona fide farms. Agricultural uses and bona fide farms are not subject to these regulations. All fencing and walls for agricultural uses and bona fide farms shall meet requirements found in section 5.4.1.

The following standards shall apply to all new plant material installed as part of a screen required under these regulations:

A.

Trees to be planted shall be selected from the approved species listed in the appendix, or be a native species to western North Carolina.

B.

Minimum tree caliper measured six inches above ground on all trees shall be 2½ inches and the minimum height shall be eight feet. No trees identified as large maturing trees shall be planted within 20 feet of an electrical distribution line. This does not include low-voltage insulated or covered lines of 240 volts or less or telephone or cablevision lines.

C.

Large shrubs used in any landscaping must be at least two feet tall when planted and shall be selected from the approved species listed in the appendix or be native species to our area. They must be of a variety and adequately maintained so that an average height of five to six feet could be expected as normal growth within three years of planting.

D.

All plant material installed shall be free from disease.

E.

Plant materials shall be planted in accordance with generally accepted and recommended planting and growing practices.

F.

All plant material shall be installed in a fashion that ensures the availability of sufficient soil and water to sustain health growth.

G.

All plant material shall be planted in a manner which is not intrusive to utilities or pavement.

The plantings, fences, walls, or berms that constitute a required landscaping shall be properly maintained in order for the landscaping to fulfill the purpose for which it is established. The owner of the property and any tenant on the property where landscaping is required shall be jointly and severally responsible for the maintenance of all landscaping materials. Such maintenance shall include all actions necessary to keep the landscaped area free of litter and debris; to keep plantings healthy; to keep plant growth from interfering with safe vehicular and pedestrian travel, or use of parking areas, or from creating nuisances to adjoining properties; and to keep walls, fences and berms in good repair and neat appearance. Any vegetation that constitutes part of a required landscaping area shall be replaced in the event that it dies.

A.

In the event that the unusual topography or elevation of a development site or the location or size of the parcel to be developed would make strict adherence to the requirements of this section serve no meaningful purpose or would make it physically impossible to install and maintain the required landscaping, the board of adjustment may alter the requirements of this section provided the spirit and intent of the section are maintained. Such an alteration may occur only at the request of the developer, who shall submit a plan to the zoning administrator showing existing site features that would screen the proposed use and any additional screen materials the developer may propose to have installed.

B.

The vacancy or non-use of an adjoining parcel shall not constitute grounds for providing a variance to the landscaping requirements. Neither shall the desire of an owner to make a more intensive use or greater economic use of the property be grounds for reducing the landscaping requirements.

In cases where an existing, landscaped or vegetated area is located on the same property as the proposed development, further plantings and or improvements shall not be required so long as said screened area is of sufficient width and depth and contains adequate and sufficient materials to meet the requirements of this ordinance. If the landscaped or vegetated area is deficient, the developer shall make needed improvements and/or additions to satisfy the landscaping requirements and intent of this ordinance.

On a corner lot in any district, no hedge, shrubbery, tree, natural growth, sign, fence, wall, or other obstruction of any kind to vision which obstructs cross-visibility in accordance with section 4.3.5.

Landscaping materials required in this chapter shall be installed prior to occupancy.

A.

A temporary certificate of occupancy may be issued to a developer/owner if the landscaping cannot be planted at the time the use opens or is re-established due to inappropriate timing for the growing season. A temporary CO shall specify the date that the landscaping will be planted. The building inspector shall have the authority to revoke the temporary certificate of occupancy if the landscaping is not planted by the date specified. The developer/owner shall also guarantee in writing that he/she or his/her successors, shall provide the required landscaping within the time period specified in the temporary certificate of occupancy.

B.

The zoning administrator may require a financial guarantee in lieu of requiring the completion and installation of these improvements prior to occupancy.