In addition to promoting the general purposes outlined in Section 1.3 of this ordinance, the purposes of this chapter include:

      This chapter is adopted pursuant to, among other authorities, G.S. Part 2, Article 9 of Chapter 160D; Article 8 of Chapter 160A, and Part 6, Article 21 of Chapter 143.

(Ord. No. 2022-LDO-03, 10-27-22)

      This section is intended to ensure that industrial, research, and other business activities are established and maintained with proper appearance from streets and adjoining properties, and to ensure that such activities are good neighbors to adjoining properties by controlling the emission of noise, odors, glare, vibration, smoke, dust, liquid wastes, radiation, radioactivity, and similar pollutants. Accordingly, this section states the performance standards and conditions with which Cary expects the construction and operation of industrial, research, and other business activities to comply. These performance standards, like all other provisions of this Ordinance, are continuing obligations, and all industrial, research, and other business uses will be expected to operate in compliance with these standards. Any land use that fails to comply with these standards shall be in violation of this Ordinance.

      (A)   All uses shall be conducted so as to preclude any nuisance, hazard, or commonly-recognized offensive condition or characteristics of the use, including the creation or emission on other properties of dust, gas, smoke, noise, fumes, odors, vibrations, particulate matter, chemical compounds, toxic matter, fire, explosions, electrical disturbance, heat, glare, or excessive night illumination. At any time before or after a building is used or occupied, the Planning Director may require that adequate control measures be provided in accordance with the requirements or standards of the appropriate state or federal government agency responsible for regulating that condition or pollutant, in order to protect the public health, safety, comfort, convenience, and general welfare from any such nuisance, hazard, condition, or pollutant.

      (A)   Landscaping

         All required front yards, side yards, and rear yards shall be open, landscaped green areas or left in their natural state. Where landscaped, such yards shall be planted attractively with lawn, trees, shrubs, and the like in accordance with the development plan which Cary has approved for the use. Any areas left in their natural state shall be properly maintained in a sightly and well-kept condition. Parking areas also shall be maintained in a sightly and well-kept condition.

      (B)   Noise

         Noise shall be muffled so as not to become objectionable at or beyond the property line due to intermittent beat frequency, shrillness, or intensity.

      (C)   Odors

         Odors from any use shall not exceed the standards established by the State of North Carolina.

      (D)   Glare

         Direct or reflected glare, such as from floodlights or high temperature processes, and as differentiated from general illumination, shall not be visible at or beyond any property line.

      (E)   Smoke

         Smoke emissions shall not exceed the maximum limits established by the State of North Carolina.

      (F)   Dust and Other Particulate Matter

         Solid or liquid particulate matter shall not be emitted at any point in a concentration exceeding three-tenths (0.3) grains per cubic foot of the conveying gas or air.

      (G)   Gases

         Fumes or gases shall not be emitted at any point in concentrations or amounts that are noxious, toxic, corrosive, or in excess of any applicable maximum limits established by State or Federal regulations.

      (H)   Fire and Explosion Hazards

         All operations shall be carried out in accordance with the Cary Fire Code and with reasonable precautions against fire and explosive hazards.

      (I)   Radiation and Radioactivity

         Operations shall cause no radiation or radioactivity at or beyond any property line that exceeds any applicable standards or regulations established by the U. S. Nuclear Regulatory Commission or by other federal or state agencies or laws.

      (J)   Electrical Radiation

         Any electrical radiation shall not at any point adversely affect or interfere with any operations or equipment other than those of the person, company, or other entity emitting the radiation. Avoidance of adverse effects or interference from electrical radiation by appropriate single or mutual scheduling of operations is permitted.

      (K)   Wastewater and Industrial Wastes

         All wastewater and industrial wastes shall be treated and disposed in such a manner as to comply with the water quality standards applicable to the classification assigned to the receiving waters by the State of North Carolina. Approval by the State of North Carolina of all plans for waste disposal facilities shall be required before the issuance of any building permit. All uses connected to Cary's sanitary sewer system also shall comply with all applicable requirements established in Chapter 36 of the Code of Ordinances of Cary.

      (L)   Underground and Above-Ground Storage Tanks

         All storage tanks which are placed above or below the ground shall be designed and installed so as to prevent the infiltration of their contents into groundwater or surface waters, and to comply with all applicable State regulations promulgated by the North Carolina Department of Health, Environment and Natural Resources.

      The sum total of the effects of concurrent operations on two (2) or more parcels measured at any property line shall not be greater or more offensive to the senses than the standards contained in this section. Compliance with the provisions of this section may occur by independent or mutual changes in operational levels, scheduling of operations, and other adjustments.

         (1)   The Planning Director shall give written notice of the alleged violation by registered or certified mail, return receipt requested, to the owner or occupant of the property. The notice shall describe the alleged violation, state the reasons why the Director believes there is a violation, and require that the owner or occupant answer the allegation within thirty (30) days of receiving the notice.

(Ord. No. 2022-LDO-03, 10-27-22)

      The purpose of this section 14.3 is to provide for the health, safety, and general welfare of the citizens of Cary through the regulation of non-storm water discharges to the storm drainage system to the maximum extent practicable as required by federal and state law. This section establishes methods for controlling the introduction of pollutants into the municipal separate storm sewer system (MS4) in order to comply with requirements of the National Pollutant Discharge Elimination System (NPDES) permit process. The objectives of this section are:

      This section 14.3 shall apply to all water entering the storm drain system generated on any developed and undeveloped lands unless explicitly exempted by Cary.

      The Town Manager shall administer, implement, and enforce the provisions of this section 14.3. Any powers granted or duties imposed upon the Town Manager may be delegated by the Town Manager to persons or entities acting in the beneficial interest of or in the employ of Cary.

      This section 14.3 is not intended to modify or repeal any other ordinance, rule, regulation, or other provision of law. The requirements of this section are in addition to the requirements of any other ordinance, rule, regulation, or other provision of law, and where any provision of this section 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 health or the environment shall control.

      The provisions of this section 14.3 are hereby declared to be severable. If any provision, clause, sentence, or paragraph of this section or the application thereof to any person, establishment, or circumstances shall be held invalid, such invalidity shall not affect the other provisions or application of this section.

      The standards set forth herein and promulgated pursuant to this section 14.3 are minimum standards; therefore, this section does not intend or imply that compliance by any person will ensure that there will be no contamination, pollution, or unauthorized discharge of pollutants.

      (A)   Prohibition of Illegal Discharges

         No person shall throw, drain, or otherwise discharge, cause, or allow others under its control to throw, drain, or otherwise discharge into the MS4 any pollutants or waters containing any pollutants, other than stormwater. The commencement, conduct or continuance of any illegal discharge to the storm drain system is prohibited except as described as follows:

      (B)   Prohibition of Illicit Connections

      Every person owning property through which a watercourse passes, or such person's lessee, shall keep and maintain that part of the watercourse within the property free of trash, debris, excessive vegetation, and other obstacles that would pollute, contaminate, or significantly retard the flow of water through the watercourse. In addition, the owner or lessee shall maintain existing privately owned structures within or adjacent to a watercourse, so that such structures will not become a hazard to the use, function, or physical integrity of the watercourse.

      (A)   Submission of Notice of Intent to Cary

      (A)   Right of Entry: Inspection and Sampling

         The Stormwater Manager shall be permitted to enter and inspect facilities subject to regulation under this ordinance as often as may be necessary to determine compliance with this ordinance.

      (B)   Search Warrants

         If the Town has been refused access to any part of the premises from which stormwater is discharged, then the Town may seek issuance of a search warrant.

      Cary will adopt requirements identifying Best Management Practices (BMPs) for any activity, operation, or facility which may cause or contribute to pollution or contamination of stormwater, the storm drain system, or waters of the United States. The owner or operator of such activity, operation, or facility shall provide, at their own expense, reasonable protection from accidental discharge of prohibited materials or other wastes into the municipal storm drain system or watercourses through the use of these structural and non-structural BMPs. Further, any person responsible for a property or premise that is, or may be, the source of an illicit discharge, may be required to implement, at said person's expense, additional structural and non-structural BMPs to prevent the further discharge of pollutants to the MS4. Compliance with all terms and conditions of a valid NPDES permit authorizing the discharge of storm water associated with industrial activity, to the extent practicable, shall be deemed in compliance with the provisions of this section. These BMPs shall be part of a Stormwater Management Plan (SWMP) as necessary for compliance with requirements of the NPDES permit.

      Notwithstanding other requirements of law, as soon as any person responsible for a facility or operation, or responsible for emergency response for a facility or operation has information of any known or suspected release of materials which are resulting or may result in illegal discharges or pollutants discharging into storm water, the storm drain system, or waters of the United States, said person shall take all necessary steps to ensure the discovery, containment, and cleanup of such release. In the event of such a release of hazardous materials said person shall immediately notify emergency response agencies of the occurrence via emergency dispatch services. In the event of a release of non-hazardous materials, said person shall notify the Stormwater Manager in person or by phone or facsimile no later than the next business day. Notifications in person or by phone shall be confirmed by written notice addressed and mailed to the Stormwater Manager within two (2) business days of the phone notice. If the discharge of prohibited materials emanates from a commercial or industrial establishment, the owner or operator of such establishment shall also retain an on-site written record of the discharge and the actions taken to prevent its recurrence. Such records shall be retained for at least five (5) years. Failure to provide notification of a release as provided above is a violation of this ordinance.

      (A)   Violations

         It shall be unlawful for any person to violate any provision or fail to comply with any of the requirements of this section 14.3. Any person who has violated or continues to violate the provisions of this section, may be subject to the enforcement actions outlined in this section or may be restrained by injunction or otherwise abated in a manner provided by law.

         In the event the violation constitutes an immediate danger to public health or public safety, the Town is authorized to enter upon the subject private property, without giving prior notice, to take any and all measures necessary to abate the violation and/or restore the property. Town Manager is authorized to seek costs of the abatement as outlined in section 14.3.16.

      (B)   Warning Notice

         When the Town finds that any person has violated, or continues to violate, any provision of this section 14.3, or any order issued hereunder, the Town may serve upon that person a written Warning Notice, specifying the particular violation believed to have occurred and requesting the discharger to immediately investigate the matter and to seek a resolution whereby any offending discharge will cease. Investigation and/or resolution of the matter in response to the Warning Notice in no way relieves the alleged violator of liability for any violations occurring before or after receipt of the Warning Notice. Nothing in this subsection shall limit the authority of Cary to take any action, including emergency action or any other enforcement action, without first issuing a Warning Notice.

      (C)   Notice of Violation

         Whenever the Town finds that a person has violated a prohibition or failed to meet a requirement of this section 14.3, the Town may order compliance by written notice of violation to the responsible person. The Notice of Violation shall contain:

            Such notice may require without limitation:

      (D)   Compensatory Action

         In lieu of enforcement proceedings, penalties, and remedies authorized by this ordinance, Cary may impose upon a violator alternative compensatory action, such as storm drain stenciling, attendance at compliance workshops, creek cleanup, etc.

      (E)   Suspension of MS4 Access

         (1)   Emergency Cease and Desist Orders

            When the Town finds that any person has violated, or continues to violate, any provision of this section 14.3, or any order issued hereunder, or that the person's past violations are likely to recur, and that the person's violation(s) has (have) caused or contributed to an actual or threatened discharge to the MS4 or waters of the United States which reasonably appears to present an imminent or substantial endangerment to the health or welfare of persons or to the environment, the Stormwater Manager may issue an order to the violator directing it immediately to cease and desist all such violations and directing the violator to:

            Any person notified of an emergency order directed to it under this Subsection shall immediately comply and stop or eliminate its endangering discharge. In the event of a discharger's failure to immediately comply voluntarily with the emergency order, Cary may take such steps as deemed necessary to prevent or minimize harm to the MS4 or waters of the United States, and/or endangerment to persons or to the environment, including immediate termination of a facility's water supply, sewer connection, or other municipal utility services. Cary may allow the person to recommence its discharge when it has demonstrated to the satisfaction of the Stormwater Manager that the period of endangerment has passed, unless further termination proceedings are initiated against the discharger. A person that is responsible, in whole or in part, for any discharge presenting imminent endangerment shall submit a detailed written statement, describing the causes of the harmful discharge and the measures taken to prevent any future occurrence, to the Town within thirty (30) days of receipt of the emergency order. Issuance of an emergency cease and desist order shall not be a bar against, or a prerequisite for, taking any other action against the violator.

            The Town Manager may, without prior notice, suspend MS4 discharge access to a person when such suspension is necessary to stop an actual or threatened discharge which presents or may present imminent and substantial danger to the environment, or to the health or welfare of persons, or to the MS4 or waters of the United States. If the violator fails to comply with a suspension order issued in an emergency, the Town Manager may take such steps as deemed necessary to prevent or minimize damage to the MS4 or waters of the United States, or to minimize danger to persons.

            Any person discharging to the MS4 in violation of this ordinance may have their MS4 access terminated if such termination would abate or reduce an illicit discharge. The Town will notify a violator of the proposed termination of its MS4 access. The violator may petition the Town Manager for a reconsideration and hearing. A person commits an offense if the person reinstates MS4 access to premises terminated pursuant to this Section, without the prior approval of the Town.

      (F)   Civil Penalties

         In the event the alleged violator fails to take the remedial measures set forth in the notice of violation or otherwise fails to cure the violations described therein within five (5) days, or such greater period as the Stormwater Manager shall deem appropriate, after the Stormwater Manager has taken one or more of the actions described above, the Stormwater Manager may impose a penalty not to exceed one thousand dollars ($1,000) (depending on the severity of the violation) for each day the violation remains unremedied after receipt of the notice of violation.

      (G)   Criminal Prosecution

         Any person that has violated or continues to violate this ordinance shall be liable to criminal prosecution to the fullest extent of the law and shall be subject to a criminal penalty of one thousand dollars ($1,000) per violation per day and/or imprisonment for a period of time not to exceed thirty (30) days. Each act of violation and each day upon which any violation shall occur shall constitute a separate offense.

      Any person receiving a Notice of Violation may appeal the determination. The notice of appeal must be received within five (5) days from the date of the Notice of Violation and must specify with particularity the grounds for the appeal. Hearing on the appeal before the court of appropriate jurisdiction shall take place within thirty (30) days from the date of receipt of the notice of appeal. The decision of the municipal authority or their designee shall be final.

      If the violation has not been corrected pursuant to the requirements set forth in the Notice of Violation, or, in the event of an appeal, within thirty (30) days of the decision upholding the NOV, then representatives of Cary shall enter upon the subject private property and are authorized to take any and all measures necessary to abate the violation and/or restore the property. It shall be unlawful for any person, owner, agent or person in possession of any premises to refuse to allow the government agency or designated contractor to enter upon the premises for the purposes set forth above.

      Within thirty (30) days after abatement of the violation, the owner of the property will be notified of the cost of abatement, including administrative costs. The property owner may file a written protest objecting to the amount of the assessment within thirty (30) days. If the amount due is not paid within a timely manner as determined by the decision of the municipal authority or by the expiration of the time in which to file an appeal, the charges shall become a special assessment against the property and shall constitute a lien on the property for the amount of the assessment. Any person violating any of the provisions of this article shall become liable to Cary by reason of such violation. The liability shall be paid in not more than ten (10) equal payments. Interest at the rate of eight percent (8%) per annum shall be assessed on the balance beginning on the first day following discovery of the violation.

      In addition to the enforcement processes and penalties provided, any condition caused or permitted to exist in violation of any of the provisions of this section 14.3 is a threat to public health, safety, and welfare, and is declared and deemed a nuisance, and may be summarily abated or restored at the violator's expense, and/or a civil action to abate, enjoin, or otherwise compel the cessation of such nuisance may be taken.

      The remedies listed in this section 14.3 are not exclusive of any other remedies available under any applicable federal, state or local law and it is within the discretion of the Stormwater Manager to seek cumulative remedies. Cary may recover all attorney's fees, court costs and other expenses associated with enforcement of this ordinance, including sampling and monitoring expenses.

(Ord. No. 2022-LDO-03, 10-27-22)

   This section is adopted for the purpose of regulating land-disturbing activities in order to control accelerated erosion and sedimentation and accordingly to prevent water pollution from sedimentation, to prevent accelerated erosion and sedimentation of lakes and natural watercourses, and to prevent damage to public and private property by sedimentation during and after construction.

      Land-disturbing activities shall be subject to the requirements and procedures set forth in Section 3.13 of this Ordinance for obtaining grading permits and the approval of erosion control plans and required permits by the U.S. Army Corps of Engineers or other federal or state agencies responsible for regulating development in wetlands. Any required state and/or federal permits must be obtained prior to the issuance of a grading permit.

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

      (A)   Conveyance Channels

         (1)   Stream banks and drainageway channels downstream from any land- disturbing activity shall be protected from increased degradation by accelerated erosion caused by increased velocity of runoff from the land-disturbing activity. The land-disturbing activity shall be planned and conducted such that the velocity of stormwater runoff in the receiving watercourse at the point of discharge resulting from a ten (10)-year storm after development shall not exceed the greater of:

 

      (B)   Slopes Left Exposed

         Slopes left exposed shall be planted or otherwise provided with ground cover, devices, or structures sufficient to restrain erosion within fifteen (15) calendar days after completion of any phase of grading.

      (C)   Design Requirements

         Erosion and sedimentation control measures, structures, and devices shall be planned, designed, and constructed to provide protection from the calculated maximum peak rate of runoff from the ten (10)-year storm. Runoff rates shall be calculated in accordance with Cary's Standard Specifications and Details Manual. Calculations shall be submitted with the plans and shall be drafted and organized in a neat and readable manner.

      (D)   Protective Cover Required

         All uncovered areas shall be provided with protective cover unless the Planning Director has granted an extension of time, for good cause shown, upon written request of the developer or landowner. This cover shall be installed within fifteen (15) working days (exclusive of days where seedbed preparation is not possible due to weather as determined by the Stormwater Manager) or ninety (90) calendar days following completion of any phase of grading, whichever period is shorter. Ground cover is not required on cleared land forming the future basin of a planned reservoir.

      (E)   Activity Near Watercourse

         All land-disturbing activities near a lake or natural watercourse shall provide erosion and sedimentation control measures. An undisturbed buffer may be used as an erosion/ sedimentation control measure, provided that the undisturbed zone shall be of sufficient width to confine visible siltation within the twenty-five percent (25%) of the undisturbed zone nearer to the land-disturbing activity. This requirement shall not apply to land-disturbing activities for the construction of facilities to be located on, over, or under a lake or natural watercourse.

      (F)   Protection During Construction

         During construction, soil erosion and sedimentation control practices and devices shall be employed that are sufficient to retain the sediment generated by the land-disturbing activity within the boundaries of the tract during construction upon and development of said tract in accordance with plans approved by Cary.

      (G)   Limits on Single-Unit Residential Lot Grading

         Grading and Erosion Control Plans submitted as part of a development plan associated with residential development that has a gross density of three (3) units per acre or less are limited to clearing and disturbing only the land area required to install the infrastructure to serve the development (e.g., sewer and water lines, roads, storm water devices, greenways, and similar infrastructure). Until a building permit is issued for a lot, each lot must remain undisturbed, with the exception of portions of a lot impacted by the installation of infrastructure. Exceptions to grade upon a lot prior to the issuance of a building permit may be granted as a modification to the original plan approved by Cary, if there is sufficient justification (e.g., problematic drainage issues and/or severe topographic issues).

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

         Development plans containing residential development with a gross density not exceeding eight (8) units per acre shall not grade more than twenty-five (25) acres per phase or section of development. Each twenty-five (25) acre phase or section of development must be stabilized and seeded meeting the requirements of this ordinance prior to grading an additional phase or section of development. Exceptions to this requirement may be granted as a modification to the original plan approved by Cary if compliance is not practicable due to physical site constraints, such as topography, presence of stream buffers or other natural features, or lot dimensions; or due to presence of existing development or infrastructure.

      (I)   Installation of Required Landscape After Grading

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

      (J)   Compliance with Town Manual

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

      In addition to meeting the standards of this Section 14.4.3 above, all erosion control plans submitted for approval under Section 3.13 of this Ordinance shall be developed and implemented in accordance with the following objectives:

      (A)   Identify Especially Vulnerable Areas

         On-site areas that are subject to severe erosion, and off-site areas that are especially vulnerable to damage from erosion and/or sedimentation, shall be identified and receive special attention.

      (B)   Limit Time of Exposure

         All land-disturbing activities shall be planned and conducted to limit exposure to the shortest feasible time.

      (C)   Limit Exposed Area

         All land-disturbing activities shall be planned and conducted to minimize the size of the area to be exposed at any one (1) time.

      (D)   Control Surface Water

         Surface water runoff originating upgrade of exposed areas should be controlled to reduce erosion and sediment loss during the period of exposure.

      (E)   Control Sedimentation

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

      (F)   Manage Stormwater Runoff

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

      When the person conducting the land-disturbing activity is also the person conducting the borrow or waste disposal activity, areas from which borrow is obtained and which are not regulated by the Mining Act of 1971 (G.S. 74-46 et seq., as amended), and waste areas for surplus materials other than landfills regulated by the N. C. Department of Human, Environment, and Natural Resources, Division of Solid Waste Management, shall be considered as part of the land-disturbing activity from where the borrow material is being used or from which the waste material originated. When the person conducting the land-disturbing activity is not the person obtaining the borrow and/or disposing of the waste, these areas shall be considered a separate land-disturbing activity.

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

      Land-disturbing activities for construction in, on, over, or under a lake or natural watercourse shall be planned and conducted so as to minimize the extent and duration of disturbance of the stream channel or lakebed. Where relocation of a stream is an essential component of the proposed activity, the relocation shall be planned and executed so as to minimize changes in the stream flow characteristics, except where the developer or landowner demonstrates to the Planning Director that significant alteration to the flow characteristics is justified.

      Failure to comply with the provisions of this section shall constitute a violation of this Ordinance, and shall subject an offending party to enforcement as provided in section 11.4 of this Ordinance.

(Ord. No. 2022-LDO-03, 10-27-22)

      This section implements the enabling legislation granted to Cary by the North Carolina General Assembly. The purposes of these regulations are to:

      The requirements for obtaining a Tree Clearing Certificate and penalties for non- compliance are applicable to all undeveloped properties that are zoned for residential or non-residential use located within Cary limits and/or extraterritorial jurisdiction (ETJ). For the purposes of the section, "undeveloped properties" shall include any property within Cary's jurisdiction that is not subject to an approved development plan.

      A Tree Clearing Certificate shall not be required for the activities listed below.

      Other than that necessary to gain reasonable access to the property, clearing and/or removal of trees and other vegetation shall be prohibited in the areas listed below. In situations where one (1) or more buffer zones or vegetation protection areas overlap on the same site, then the more restrictive requirement shall apply.

      Prior to the commencement of any vegetation clearing or removal on any undeveloped property, the owner or the owner's agent must demonstrate exemption from the requirements of this section or submit the required application materials and applicable fees for a Tree Clearing Certificate.

      Failure to comply with the provisions of this section shall constitute a violation of this Ordinance, and shall subject an offending party to a series of actions listed in Chapter 11 of this Ordinance.

(Ord. No. 2022-LDO-03, 10-27-22)

      Urban Transition Buffers (UTBs or “buffers”) provide a transition from waterbodies and environmentally sensitive areas associated with waterbodies to areas which are less fragile and appropriate for more intense uses and development. Some of the benefits of UTBs are minimizing danger to lives and properties from flooding, preserving the water carrying capacity of the waterbodies, preserving tree canopy, reducing temperatures, capturing carbon, improving air quality, providing open spaces, limiting intense uses adjacent to waterbodies and environmentally sensitive areas associated with waterbodies, and maintaining the aesthetic qualities and appearance of Cary. As part of the Cary's Land Development Ordinance, UTBs implement many of Cary's responsibilities under State and Federal law and regulations regarding stormwater management and watershed preservation and are designed to work in conjunction with erosion and sedimentation control regulations. Cary's water utility system uses surface water to provide drinking water to its citizens and the preservation of this resource is important to Cary and its citizens. General UTBs are uniform and comprehensive zoning buffers which accomplish these important benefits and purposes as well as regulating and restricting the location of buildings, structures, and land, providing yards and open spaces, all for the promotion of health, safety and the general welfare of Cary's citizens. Specialized UTBs exist to address concerns which are not present in Cary's entire zoning jurisdiction.

            (a)   A fifty foot (50') wide buffer beginning at the landward boundary of any Neuse River Riparian Buffer mandated by regulations adopted by the Environmental Management Commission of the State of North Carolina and established adjacent to surface waters (intermittent streams, perennial streams, lakes, reservoirs and ponds) as approximately indicated on the most recent version of the 1:24,000 scale {seven and one-half (7.5) minute} quadrangle topographic maps prepared by the United States Geological Survey (USGS).

         General UTBs may have as many as three (3) regulatory zones. The purpose of the different regulatory zones is to provide transition within General UTBs from the most fragile areas to less fragile areas and to provide some flexibility to Cary in administering of the UTBs. The regulatory zones shall be:

            General UTBs established pursuant to Section 14.6.2(A)(2) shall have one (1) zone: Zone Three. Zone Three shall consist of a stable, vegetated area that is undisturbed except for uses provided for in subsection 14.6.5 and Table 14.6-2. Zone Three shall begin at the outer edge of the Neuse Riparian Buffer and extend landward fifty (50) feet as measured horizontally on a line perpendicular to the surface water. The combined width of the Neuse Riparian Buffer and Zone Three shall be one hundred (100) feet on all sides of the surface water.

      (A)   Property within Watershed Protection Overlay

         In addition to the General UTBs established above, Specialized UTBs are required by Cary's Watershed Protection Overlay (Section 4.4.6). Specialized UTBs shall overlay General UTBs, as opposed to being situated adjacent to General UTBs. The Specialized UTBs are as follows:

            In the event the Landowner elects to develop his property under the Low Density Development Option, as provided in Section 4.4.6(F)(1), a Specialized UTB thirty (30) feet wide shall be established adjacent to all perennial surface waters including perennial streams, lakes, reservoirs, and ponds as approximately indicated on the most recent versions of USGS 1:24,000 scale {seven and one-half (7.5) minute} quadrangle topographic maps prepared by the United States Geological Survey (USGS).

            In the event the Landowner elects to develop his property under the High Density Development Option, as provided in Section 4.4.6(F)(2), a Specialized UTB one hundred feet (100') wide shall be established adjacent to all perennial surface waters including perennial streams, lakes, reservoirs and ponds as approximately indicated on the most recent versions of USGS 1:24,000 scale {seven and one-half (7.5) minute} quadrangle topographic maps prepared by the United States Geological Survey (USGS).

      (B)   Uses Allowed Within Specialized UTBs

         The uses allowed within Specialized UTBs are described in Table 14.6-2.

      (C)   Measurement of Specialized UTBs

         Specialized UTBs shall be measured from a point perpendicular to the bank of the perennial waters.

      Table 14.6-1 below graphically depicts Cary's UTBs and their zones.

 

            Uses designated as exempt are allowed within the Urban Transition Buffer provided that they adhere to the limitations of the activity as defined in subsection 14.6.5(A) and Table 14.6-2 below. Exempt uses shall be designed, constructed, and maintained to minimize soil disturbance and to provide the maximum water quality protection practicable including construction, monitoring, and maintenance activities.

            Uses designated as allowable may proceed within the Urban Transition Buffer provided that there are no practical alternatives to the requested use as determined pursuant to Section 14.6.9. This includes construction, monitoring, and maintenance activities. These uses require written authorization from Cary.

            Uses designated as allowable with mitigation may proceed within the Urban Transition Buffer provided that there are no practical alternatives to the requested use as determined pursuant to Section 14.6.9 and mitigation approval has been obtained pursuant to Section 14.6.12. These uses require written authorization from Cary.

            Uses designated as prohibited or not designated as exempt, allowable, or allowable with mitigation, may not proceed within the Urban Transition Buffer unless a variance is granted pursuant to this Section 14.6.

 

 

      All UTBs shall be shown on all development plans and subdivision plats submitted for approval within Cary's planning jurisdiction. In addition to UTBs, State of North Carolina and U.S. Army Corps of Engineers' jurisdictional wetlands waters and buffers shall be shown on the inventory of natural resources required as part of development plan approval.

      Generally, no single-unit residential lots may encroach upon any required or established riparian buffer or UTB, except that single-unit residential lots platted prior to July 27, 2000, shall be exempt from Zone Three of the Urban Transition Buffer requirements. Notwithstanding the foregoing, single-unit residential lots platted after July 27, 2000, may encroach upon a required or established riparian buffer or UTB when all of the following conditions are met:

      This Section 14.6 shall not apply to uses that are existing and ongoing; however, this Section 14.6 shall apply at the time an existing, ongoing use is changed to another use. Change of use shall involve the initiation of any activity that does not meet either of the following criteria for existing, ongoing activity:

      UTBs are part of Cary's overall zoning, land subdivision and land use regulations. Cary has collected these regulations together in Cary's Land Development Ordinance (LDO). UTBs are intended to assist Cary in accomplishing the broad and important purposes of the LDO stated in 1.3 of the LDO as well as the specific purposes stated in Sections 1.3.1-1.3.12 and 14.6.1. In any specific development plan, Cary’s reviews the entire proposed development and determines whether the proposed development in its entirety satisfies the LDO. Cary recognizes that UTBs will affect different property and projects differently and that all circumstances or applications of UTBs cannot be foreseen. Therefore, Cary has established a process by which the width of Zone 3 of the UTB may be modified in certain limited circumstances based upon review and approval of an applicant's application for modification which shall include the overall development plan. Any modification granted shall be conditioned upon the implementation of the related development plan and shall be conditioned upon the applicant providing mitigation as set forth below.

      (A)   Procedures for Requesting Modifications to Zone Three

         The Zoning Board of Adjustment, after receiving comment from various Cary departments which review the proposed development plan pursuant to the LDO, may reduce the total area of Zone Three after establishing the following at a quasi-judicial hearing:

      (C)   Notwithstanding the foregoing, in the event the applicant provides written evidence that the State of North Carolina has granted the applicant a variance to the riparian buffer required by the State of North Carolina, or if Cary has granted a minor variance as described below in section 14.6.11, the Planning Director shall grant a modification to the UTBs applicable to such applicant sufficient to permit such applicant to utilize the State variance granted.

         Persons who wish to undertake prohibited uses may pursue a variance. Cary may grant minor variances. For major variances, Cary shall prepare preliminary findings and submit them to the Stormwater Division, or its successor for approval by the Environmental Management Commission. The variance request procedure shall be as follows:

      (C)   Minor Variances

         A minor variance request pertains to activities that will impact Zone Two of the UTB. Minor variance requests shall be reviewed and approved based on the criteria in Section 14.6.11(B). Cary may attach conditions to the variance approval that support the purpose, spirit, and intent of the UTB program. Request for appeals to decisions made by Cary shall be made in writing to the Director of Water Quality, 401 Oversight Express Permitting Unit, or its successor. The Directors decision is subject to review as provided in G.S. Chapter 150B, Articles 3 and 4.

         A major variance request pertains to activities that will impact any portion of Zone One or any portion of both Zones One and Two of UTB. If Cary has determined that a major variance request meets the requirements in Section 14.6.11(B), then it shall prepare a preliminary finding and submit it to the NC Environmental Management Commission c/o the Division of Water Resources, 401 Oversight Express Permitting Unit, or its successor, for approval. Within ninety (90) days after receipt by Cary, the Commission shall review preliminary findings on major variance requests and take one (1) of the following actions: approve, approve with conditions and stipulations, or deny the request. Appeals from a Commission decision on a major variance request are made on judicial review to Superior Court.

      (B)   Issuance of the Mitigation Approval

         Cary shall issue a mitigation approval upon determining that a proposal meets the requirements set out in this Ordinance. The approval shall identify at a minimum the option chosen, the required and proposed areas, and either the mitigation location or the offset payment amount as applicable.

      (C)   Options for Meeting the Mitigation Requirement

         The mitigation requirement may be met through one (1) of the following options:

      (D)   The Area of Mitigation

         Cary shall determine the required area of mitigation, which shall apply to all mitigation options identified in Section 14.6.11(C) and as further specified in the requirements for each option set out in this Section, according to the following:

      (E)   The Location of Mitigation

         For any option chosen for impacts in the Jordan watershed, the mitigation effort shall be located within the same subwatershed of the Jordan watershed, as defined in 15A NCAC 02B.0262, and the same distance from the Jordan Reservoir as the proposed impact, or closer to the Reservoir than the impact, and as close to the location of the impact as feasible. Alternatively, the applicant may propose mitigation anywhere within the same subwatershed of the Jordan watershed, as defined in 15A NCAC 02B.0262, provided that the mitigation proposal accounts for differences in delivery of nutrients to the affected arm of Jordan Reservoir resulting from differences between the locations of the impact and mitigation. Additional location requirements for the property donation option are enumerated in Section 14.6.12(F)(3)(a).

      (F)   Donation of Property

         Persons who choose to satisfy their mitigation determination by donating real property or an interest in real property shall meet the following requirements:

      (G)   Riparian Buffer Restoration or Enhancement

         Persons who choose to meet their mitigation requirement through riparian buffer restoration or enhancement shall meet the following requirements:

      Agents, officials, or other qualified persons authorized by Cary may periodically inspect UTBs to ensure compliance with this ordinance. Notice of the right to inspect shall be included in the letter of approval of each variance and authorization certificate. Authorized agents, officials or other qualified persons shall have the authority, upon presentation of proper credentials, to enter and inspect at reasonable times any property, public or private, for the purpose of investigating and inspecting the site of any UTB. No person shall willfully resist, delay, or obstruct an authorized representative, employee, or agent of Cary, while that person is inspecting or attempting to inspect a UTB nor shall any person obstruct, hamper or interfere with any such representative while in the process of carrying out their official duties. Cary shall have the power to conduct such investigations as deemed reasonably necessary to carry out the duties as prescribed in this Section 14.6.

      Any act authorized by this Section 14.2.2 to be carried out by or at the direction of Cary may be carried out by the Town Manager or designee.

      For the purpose of Section 14.6, these terms shall be defined as follows:

(Ord. No. 2022-LDO-03, 10-27-22)

         These losses and hazards are caused by the cumulative effect of obstructions in floodplains, which increase flood heights and velocities, and by the occupancy in flood-prone areas by uses that are vulnerable to floods, or hazardous to other properties, because they are inadequately elevated, flood proofed, or otherwise protected from flood damages. Therefore, the regulations set forth in this section are designed to:

      (B)   Objectives

         The objectives of this ordinance are to:

      (A)   Applicability

         This section 14.7 shall apply to the Special Flood Hazard Area (SFHA) and the Future Conditions Flood Hazard Area. Additionally, section 14.7.9 (Downstream Impact Analysis) shall apply to all development that requires a stormwater management plan under 7.3 of this ordinance.

      (B)   Exemptions

      (C)   Study Required

         Residential development that contains a watercourse that has a contributory drainage area of fifty (50) acres or greater shall require the applicant to provide a signed and sealed engineered study prepared by a qualified professional that determines the extent of the Special Flood Hazard Area.

      (A)   Development Restrictions

         In general, no development is allowed in Special Flood Hazard Areas or Future Conditions Flood Hazard Areas unless one or more of the following are met:

         Structures for pedestrian crossings (e.g., footbridges, etc.), playground equipment, and other similar items may be permitted if the applicant provides certification by a professional registered engineer, architect, or landscape architect that these encroachments will not result in any increase in flood levels during the base flood.

      (B)   Development Standards

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

         If development or encroachments are permitted, the following standards shall apply in Special Flood Hazard Areas and Future Conditions Flood Hazard Areas.

         (1)   An engineering study must be performed to determine whether an adverse impact will result from development in the flood fringe portion of the Special Flood Hazard Area or Future Conditions Flood Hazard Area and must be submitted with the floodplain development permit application. For purposes of this Section 14.7.3 an "adverse impact" includes, but is not limited to, a reduction of floodplain storage greater than ten percent (10%), an increase in one hundred (100) year average channel velocities greater than ten percent (10%), any increase in one hundred (100) year water surface elevation, the potential for aggravating a known existing drainage problem or creating a new drainage problem, as determined by the Stormwater Manager.

      (C)   Additional Development Standards and Restrictions for Areas with Established Base Flood Elevation Data

            (a)   New construction of or substantial improvements to any residential structure shall be located outside Special Flood Hazard Areas and Future Conditions Flood Hazard Areas and shall have the lowest floor, including basement, elevated no lower than the regulatory flood protection elevation as defined. "Substantial improvement" is defined in Chapter 12.

   Residential Construction 2'-0" Above Base Flood Elevation

      (D)   Application Requirements

            The floodplain development permit shall include, but not be limited to:

            (a)   Elevation Certificates

               3.   A final as-built Elevation Certificate (FEMA Form 81-31) or a Cary Lowest Floor Certificate within non-FEMA SFHA, is required after construction is completed and prior to Certificate of Compliance/Occupancy issuance. It shall be the duty of the permit holder to submit to the Floodplain Administrator a certification of final as-built construction of the elevation of the reference level and all attendant utilities in relation to NAVD 1988. The Floodplain Administrator shall review the certificate data submitted. Deficiencies detected by such review shall be corrected by the permit holder immediately and prior to Certificate of Compliance/ Occupancy issuance. In some instances, another certification may be required to certify corrected as-built construction. Failure to submit the certification or failure to make required corrections shall be cause to withhold the issuance of a Certificate of Compliance/Occupancy.

               The following structures, if located within the SFHA, are exempt from the elevation/floodproofing certification requirements specified in items (a) and (b) of this subsection:

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

      (E)   Additions/Improvements

            Fully enclosed area, of new construction and substantially improved structures, which is below the lowest floor:

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

      (F)   Additions/Improvements to Existing Structures

            Recreational vehicles shall either:

            Prior to the issuance of a Floodplain Development Permit for a temporary structure, the applicant must submit to the Floodplain Administrator a plan for the removal of such structure(s) in the event of a hurricane, flash flood or other type of flood warning notification. The following information shall be submitted in writing to the Floodplain Administrator for review and written approval;

      (G)   Accessory Structures

         When accessory structures (sheds, detached garages, etc.) are to be placed within a Special Flood Hazard Area or Future Conditions Flood Hazard Area, the following criteria shall be met:

         An accessory structure with a footprint less than one hundred fifty (150) square feet that satisfies the criteria outlined above does not require an elevation or floodproofing certificate. Elevation or floodproofing certifications are required for all other accessory structures in accordance with Section 14.7.3(D)(3).

         Floodways and non-encroachment areas, located within the Special Flood Hazard Area or Future Conditions Flood Hazard Areas, are extremely hazardous areas due to the velocity of flood waters that carry debris, potential projectiles, and the potential for erosion. Therefore, encroachments, including fill, in floodways or non-encroachment areas are permitted only in limited circumstances and only under the following restrictions:

      Located within Special Flood Hazard Areas are small streams where no base flood data has been provided. The following provisions apply within such areas:

New Construction near Streams

Standards for Streams without Established Base Flood Elevations

      For any new proposed development subject to flooding which includes, but is not limited to, those lots along any significant watercourse, whether or not the stream or water course is enclosed with a pipe or culvert; the applicant shall make a determination of the crest elevation of the flood expected to be equaled or exceeded that has a one percent (1%) chance of annual occurrence in accordance with generally accepted engineering practice, which is to be submitted with the seal and signature of a Professional Engineer to Cary. Any new construction of, or substantial improvements (see Chapter 12, Definitions) to, any residential or non-residential structure shall comply with Section 14.7.3(B).

      For purposes of this section only, the boundaries of the Special Flood Hazard Area or Future Conditions Flood Hazard Area for a development or a discrete phase of a development are established if all of the following conditions are met:

      Failure to comply with the provisions of this section shall constitute a violation of this Ordinance and shall subject an offending party to a series of actions listed in Chapter 11 of this Ordinance.

(Ord. No. 2022-LDO-03, 10-27-22)