The purposes of this chapter include:

      (A)   To encourage the proper use of the land by promoting an appropriate balance between the built environment and the preservation of open space and natural environmental resources;

      The requirements of this chapter shall apply to all uses for which development plan approval is required pursuant to Section 3.9 of this Ordinance.

      (B)   At the pre-application conference, the applicant and Planning Department staff shall discuss the requirements of this chapter in order to avoid relocation of major site elements after the plan is submitted for review and approval.

   This chapter contains minimum legal requirements related to site design and layout, appearance, landscaping, and building design. This chapter shall be used in conjunction with other related documents including, but not limited to, those listed in Section 1.4. These documents express Town policy and contain standards, guidelines, examples, and details needed to make this chapter easy to understand and apply in various situations. Some of these documents contain minimum requirements that may or may not be included within the text of this Ordinance, or may in some situations differ with this Ordinance; in such cases, the more restrictive of the two (2) requirements shall apply. The requirements of Chapter 7 may be eligible for Minor Modifications. (See Section 3.19 for applicability.)

      (A)   Limits of Disturbance

         This Section is provided for informational purposes as a general guideline about where land disturbing activities should or should not take place on a development site. On all development sites subject to this chapter, the following areas shall generally be considered to be off-limits to development or land-disturbing activities, unless otherwise specified in this Ordinance:

         (1)   The Flood Hazard Area;

         (2)   Required streetscape areas as measured from the ultimate right-of-way;

         (3)   Undisturbed perimeter buffers, including the Thoroughfare Overlay;

         (4)   Zones 1, 2, and 3 of all UTBs;

         (5)   Wetlands under the jurisdiction of the Army Corps of Engineers unless otherwise permitted by this agency;

         (6)   Conservation easements;

         (7)   Preservation areas required by applicable conditional use zoning conditions;

         (8)   Champion trees and required protection areas associated with such trees (e.g. root zone); and

         (9)   Any other areas indicated for protection by the Planning Director.

      (B)   Limited Disturbance or Construction Outside Limits of Disturbance

         In some cases, limited disturbance or land disturbing activities may occur within the areas to be protected provided all necessary approvals are obtained. Such activities include, but are not limited to the following:

         (1)   Mitigation of development activities;

         (2)   Restoration of previously disturbed or degraded areas;

         (3)   Personal gardens not operated on a for-profit basis and maintained by individual homeowners;

         (4)   Utility installations and emergency public safety activities;

         (5)   Construction of a trail or pedestrian walkway that will provide public access;

         (6)   The enhancement of the habitat values and/or other natural resource values of an identified natural area;

         (7)   Landscaping according to an approved landscaping plan; and

(Ord. No. 2007-04, 3-22-07; Ord. No. 2010-LDO-05, 12-16-10; Ord. No. 2011-LDO-04, 11-17-11; Ord. No. 2012-LDO-06, 8-9-12; Ord. No. 2017-LDO-01, 1-24-17; Ord. No. 2021-LDO-01, 6-24-21; Ord. No. 2022-LDO-01, 1-13-22)

   The purpose of these provisions is to establish minimum requirements for the provision and maintenance of functionally adequate, attractive screening and buffering of structures, parking areas, driveways, and other facilities and land uses, while providing standards for the protection of existing and new trees and vegetation and their root zones. These requirements are intended to carry out the following objectives:

      (A)   To promote and increase design compatibility between different land uses, while ensuring attractive views from streets and adjacent properties;

      (B)   To assist in delineating separations of spaces, structures, uses, and activities on a site, or between adjacent sites;

      (C)   To shield adjacent properties from potentially adverse external impacts of development, and development from potential negative impacts of adjacent land uses and activities;

      (H)   To enhance the appearance and value of both residential and non-residential properties.

 

 

      (A)   Landscaping Plans

         (2)   Landscaping plans shall be designed to improve efficiency of irrigated areas (if applicable) through minimizing slopes, preserving topsoil, and retaining stormwater drainage on-site

         (3)   Landscaping plans shall meet the standards of this Section 7.2, and shall be consistent with the standards contained in the Community Appearance Manual and the Site Design Standards, which contain standards, guidelines, examples, and details needed to make this section easy to understand and apply in various situations, including examples of required plans, recommended plant species for various applications, and illustrated examples of what Cary considers to be good site design.

      (B)   Violations

         Violations of this section are subject to fines, replacement of damaged vegetation, stop-work orders, or any combination of the penalties listed in Section 7.2.13 or Chapter 11.

      (A)   Applicability

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

         (2)   Within the area inside the outer perimeter of the Town Center District, including all subdistricts and conditional use districts, and individual Mixed Use Overlay Districts, the requirements of this section shall apply only to boundaries between properties located within the district and properties located outside the districts.

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

         (4)   The developer of a site/subdivision development shall install the required landscaping within all streetscapes and buffers when: (1) construction activity is discontinued for more than 180 days; and/or (2) the area graded exceeds the initial phase of development. In such instances, all required streetscapes and buffers shall be installed following the completion of the installation of site stabilization measures for all areas graded.

      (B)   Type and Width of Required Buffer

         Table 7.2-1 specifies the type of undisturbed buffer or landscaped buffer that must be in place. The buffer type is indicated by letter and the total buffer width in feet is indicated by number. Depending on the land use classification of the proposed use and the use of the adjacent property , Table 7.2-1 requires an undisturbed buffer or landscaped area (if permitted) of a particular type and a particular minimum width. Subsection 7.2.3(C) below identifies the land uses that fall within each land use class shown in Table 7.2-1. This information is also listed by use type in Table 5.1-1 of this Ordinance. Subsection 7.2.3(D) below identifies the performance standards for each buffer type (i.e., A, B, or C).

         A fifty (50) foot wide Type A buffer shall be provided adjacent to the American Tobacco Trail as required by Section 4.4.3(H)(4) of this Ordinance.

 

         (1)   No buffer is required between shared public uses (e.g., a park adjacent to a school, library, or other shared public facility).

         (2)   * Required landscaping areas to be provided between two Class 2 uses are not subject to the ownership restrictions applied to other buffers, and may be located within the platted portion of a lot.

      (C)   Land Use Classes

         The seven land use classes appearing in Table 7.2-1 include the following uses and structures (refer to Table 5.1-1 for definition of use categories):

 

      (D)   Types of Buffers and Landscaped Areas

         (1)   The three (3) types of landscaped buffers that appear in Table 7.2-1 are as follows. Detailed illustrations and supplemental information on buffer configurations are available in the Community Appearance Manual.

            (a)   Type A

               2.   The Planning Director may modify the planting criteria for a Type A buffer pursuant to this section, where shown on any development plan requiring or identifying a Type A or opaque buffer or landscape area, including such plans approved prior to the effective date of this ordinance, and/or pursuant to Section 4.3.5(D)(3) where such buffer is required as a zoning condition, if the Planning Director determines in accordance with established horticultural guidelines that achieving the desired degree of buffer opacity while maintaining existing healthy vegetation within the buffer may not be feasible due to a combination of the factors listed below, provided that the intended performance standard is achieved to the extent practicable:

               This buffer is intended to function as a semi-opaque screen from the ground to at least a height of six (6) feet. Vegetative material within this buffer shall meet the following criteria:

               This buffer area is intended to function as an intermittent visual obstruction from the ground to a height of at least twenty (20) feet, and create the impression of spatial separation without eliminating visual contact between uses. Vegetative material within this buffer shall meet the following criteria:

         (2)   Buffer plantings shall conform to the following standards:

            (c)   When detailed information regarding existing vegetation is not available at the time of development plan approval, then a Town Zoning Compliance Officer shall determine when existing vegetation may be utilized in-lieu of new plantings prior to the approval of a Certificate of Occupancy.

      (E)   Determination of Buffer Width and Responsibility for Installation

         Buffer widths and installation responsibility shall be in accordance with the following:

            (a)   Where a developing parcel is adjacent to a vacant parcel, then the developing parcel may provide one-half of the buffer required adjacent to the vacant land as indicated in Table 7.2-1.

            (b)   Where a developing parcel is adjacent to an existing land use, then the developing parcel shall provide the full buffer required adjacent to the existing land use as indicated in Table 7.2-1.

            (c)   The developing parcel next to an existing land use shall provide the full buffer required unless the existing use already has a buffer that may be credited towards the required width, or the buffer for an existing non-residential use was reduced or not required with its development plan approval.

            (d)   Credit for existing buffers is not given when the existing use is residential and its existing buffer is on the same lot as the residential use; see subsection 7.2.3(J), Ownership of Buffers.

      (F)   Location of Buffers

         (1)   The perimeter buffers and/or perimeter landscaped areas required by this Section shall be located along the outer perimeter of the parcel and shall extend to the parcel boundary line or right-of-way line; however, the buffers may be located along shared access easements between parcels in non-residential developments. Within shopping centers or other non-residential centers/developments, the perimeter buffer area between outparcels (non-residential uses) may be provided, totally or in part, elsewhere on the site. For example, a twenty (20)-foot buffer between like uses may be shifted elsewhere on the site (preferably within the site's interior) as long as the total area is provided for. The intent of this subsection is to provide for more flexibility in site design and to potentially save large natural areas that may exist elsewhere on the site.

         (2)   Perimeter buffers or landscaped areas shall not include any portion of an existing or proposed public or private street, easement, or right-of-way. Additional buffer area shall be required when easements and other similar features intrude in the buffer.

      (G)   Existing Vegetation, Fences, Walls, and Berms

         (1)   Existing significant vegetation within the required buffer shall be preserved and credited toward standards for the type of buffer required, unless the existing vegetation is seriously diseased, damaged and treatment would not be practical, or vegetation has or will give rise to a nuisance situation. Wherever practical, vegetation removal will be limited to just those portions of the vegetation area necessary to correct any problems, while the remainder of the vegetation area without problems shall be left intact.

         (2)   Existing berms, walls, or fences within the buffer, but not including chain link fencing, may be used in part to fulfill the requirements for the six (6)-foot tall screen where required, provided that these elements are in a condition of good repair. Where fences or walls are used, they shall be screened pursuant to the requirements of Sec. 7.2.7(C). Other existing site features within the required buffer area which do not otherwise function to meet the standards for the required buffer shall be screened from the view of other properties or removed, as determined during review and approval of the development plan.

         (3)   If existing significant vegetation and other site features do not fully meet the standards for the type of buffer required, then additional vegetation and/or site features (including fences) shall be planted or installed within the required buffer area to meet the performance criteria outlined in this section.

      (H)   Development within Required Buffers

         No grading, development, land-disturbing activities, or removal of vegetation shall occur within buffers or associated tree protection areas with exception of the following, unless otherwise explicitly permitted in this Ordinance. Where disturbance within the buffer is allowed, damage to existing vegetation shall be minimized to the extent practicable and supplemental planting shall be provided as necessary to meet the performance standard of the applicable buffer type.

         (1)   Sidewalks, street-side trails and public transit amenities;

      (I)   Zoning Change

         A revised plan will be required if changes of use or change in zoning classification occur for an existing use or parcel and such change results in a higher land use classification per criteria listed in subsection 7.2.3(C) above. The proposed use or parcel shall be brought into compliance with the perimeter buffer/landscaped area requirements of this section or as close as existing site conditions permit, as determined by the Planning Director. Compliance with this Section shall require the submittal and approval of a revised plan showing that the development is being brought into compliance to the extent practicable.

      (J)   Ownership of Buffers

         No required buffer in a residential subdivision shall be included within any single-unit residential lot, or be wholly owned (in fee simple absolute) by the owner of an individual residential building lot zoned for residential uses. The buffers shall be owned by a homeowner's association or be owned outright by a third party or shall be otherwise divided so that the buffer is not removed, modified, or damaged.

         (1)   Any required buffer (including those required as a zoning condition) for a residential development shall not be credited toward meeting the lot size requirements. The preferred method is that the residential buffer be a separate lot and owned by a separate entity (e.g., a homeowners association).

         (2)   Where control and/or ownership of the buffer is through a property owner's association, any modifications, removal, or damage to the buffer by an adjacent homeowner shall be prohibited.

         (3)   The property owner's association or owner shall be responsible for any violation related to the buffers in accordance with Section 7.2.13, Maintenance Responsibility, Replacement of Damaged Vegetation, and Associated Fines.

         (4)   Buffers may be included within residential lots only when all of the following conditions are met:

            (a)   The subdivision is less than ten (10) acres in size and has no homeowners association; and

            (b)   There is no reason for the formulation of a homeowner's association (e.g. covenant, other common areas or engineered stormwater control structures); and

            (c)   The buffer is placed within a permanent conservation easement or other legal instrument dedicated to the Town (required documents must be provided prior to recording the plat for the impacted area).

      (K)   Use of Off-Site Landscape Easements

         Off-site permanent landscape easements may be used to meet required buffer areas, provided that the size or shape of the parcel significantly restricts the ability to reasonably use the property and meet the buffer requirements. These easements must be recorded prior to or in conjunction with the approval of the development plan. The easement must not be under the same ownership as the developing site.

      (L)   Distance of Buildings and Structures from Required Buffers

         Building, structures, parking lots and vehicular use areas shall be set back from required buffers or streetscapes as specified in Section 6.3.2(C) of this Ordinance.

(Ord. No. 2009-LDO-01, 2-12-09; Ord. No. 2010-LDO-05, 12-16-10; Ord. No. 2011-LDO-04, 11-17-11; Ord. No. 12-LDO-01, 2-23-12; Ord. No. 2021-LDO-01, 6-24-21)

      (A)   Preservation of Existing Vegetation Along Roadways

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

         (1)   Residential Development

            Natural and dense vegetation along streets is critical to maintain, especially along major collectors and thoroughfares, to mitigate the impact of these roadways. For this reason, existing healthy vegetation shall be supplemented, if necessary, to achieve a Type A (opaque) standard.

         (2)   Non-Residential Development

            (a)   Selective thinning of trees less than six (6) inches DBH may occur to improve the viability of trees within the streetscape. An evaluation of the existing vegetation and recommendation for thinning shall be prepared by a certified arborist or by a certified forester and submitted in support of any request involving the removal of trees two (2) inches in DBH or larger. Viable ornamental trees two (2) inches in caliper or larger must be saved.

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

            (c)   All proposals for thinning streetscapes shall be accompanied by a report from a registered landscape architect, certified arborist, or other such specialist justifying the request and containing a more detailed tree survey showing all plant material two (2) inches in caliper or larger that is located within the area of streetscape to be thinned. The Planning Director may require that a portion of existing saplings be left intact to help ensure that the streetscape can function as a natural tree stand.

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

      (B)   Installation of Planted Vegetation Along Roadways

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

         (1)   Any required vegetation shall be installed to reforest the buffer in an amount comparable to what existed naturally (given time for maturity at a later date).

         (2)   Existing healthy vegetation may be removed after review and approval by the Planning Director for the following purposes:

            (c)   to locate sidewalks, street-side trails and public transit amenities;

         (3)   The applicant may appeal the Director's decision by electing to have the development plan forwarded to Zoning Board of Adjustment for consideration

         (7)   The Zoning Board of Adjustment may reduce the prescribed width of streetscape to as little as ten (10) feet at the time of development plan approval. On redeveloped sites or existing non-conforming sites, the staff may reduce the streetscape to no less than the streetscape shown on a previously approved plan for the site to promote redevelopment and reuse of existing sites where it is impractical to meet current requirements (see Section 7.2.10, Allowable Modifications and Reductions). The applicant shall submit a statement justifying the reduction based on the below criteria:

      (D)   Plantings in Streetscape

            Where overhead power lines encroach into the streetscape or buffer, each required upperstory tree may be replaced with two (2) understory trees. The selected tree type may reach a maximum height of twenty to twenty-five (20-25) feet at maturity.

      (E)   Tree Placement

         Trees shall be installed on the thoroughfare side of any berm or screen planting, and no less than five (5) feet from a sidewalk or trail, or from back of curb where no sidewalk exists or is planned within the thoroughfare right-of-way. Trees should be installed in a staggered fashion, or in clusters or groupings of upper-story and/or understory trees in combination with associated plantings. Trees may be planted in a linear arrangement parallel to the street, depending upon the area (e.g., downtown areas, neotraditional developments, etc.). In order to prevent conflicts and allow for appropriate maintenance, canopy trees shall be placed at least ten (10) feet from electrical transformers and twenty (20) feet from light poles.

         A minimum of three hundred (300) square feet of pervious ground area and nine hundred (900) cubic feet of total soil volume for roots per upper-story tree shall be provided, unless two (2) or more upper-story trees are sharing one (1) planting bed, in which case at least seven hundred twenty (720) cubic feet of soil must be provided per upper-story tree. Where possible, smaller individual planting areas should be combined to allow for larger planting areas that contribute to healthier trees. Any planting area bounded by an impervious surface should be at least ten (10) feet wide. No upper-story tree should be planted closer than five (5) feet to a sidewalk, paved areas, or other impervious surface. Modifications to soil volume requirements may be granted pursuant to Section 7.2.10(C).

         All slopes two to one (2:1) and steeper shall be stabilized with permanent slope retention devices or suitable combination of plantings and retention devices. Slopes greater than three to one (3:1) shall not be stabilized with turf grass (e.g., grasses that need to be mowed), but with other permanent ground cover such as those listed in the Standard Specifications and Details Manual, with preference given to native species. No permanent overhead spray-type irrigation is allowed on slopes greater than two to one (2:1).

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

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

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

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

      (I)   Ownership of Streetscapes

         The ownership of streetscapes shall follow the same requirements as stated in Section 7.2.3(J) Ownership of Buffers.

(Ord. No. 2009-LDO-01, 2-12-09; Ord. No. 2010-LDO-05, 12-16-10)

      (A)   Tree Protection and Tree Surveys

         (1)   Intent and Purpose

            It is the intent of the Town Council to preserve trees and other vegetation through buffer (including urban transition buffer), streetscape, and floodplain regulations, and through champion tree preservation requirements, to the extent practical and reasonable. Preserving trees and vegetation on a site should not prevent the reasonable development of a site, given its zoning classification. This section 7.2.5 is designed to recognize unique site conditions and to allow flexibility in meeting the requirements.

            The Town Council finds that preserving trees and healthy vegetation on a site during development:

            (a)   Maintains and enhances the visual character and aesthetic qualities and appearance of the community and preserves community values;

            (b)   Conserves and enhances the value of buildings and land

            (c)   Conserves the natural resources and environmental quality of the Town and its environs;

            (d)   Screens and softens the impact of construction and buildings and balances the scale of buildings;

            (e)   Preserves wildlife habitat, controls surface water runoff, and moderates temperatures; and

            (f)   Conserves water due to increased absorption ability and reduced heat effects.

            No champion tree may be disturbed or removed except as specifically allowed by this Ordinance. Preserved champion trees and their associated tree protection areas must be shown on development plans and reuse/redevelopment plans as located in a buffer, streetscape, private open space, or other designated permanent tree protection area. In addition, champion trees permitted to be included on a residential lot must be shown on plans for the purpose of designating tree protection fencing during the development and prior to the certificate of occupancy for buildings/structures.

            A tree survey aids in the protection of trees by locating trees on a site before development plans are fully designed so modifications can be made to the plans to protect trees. A tree survey prepared by a licensed surveyor, engineer, or landscape architect is required with the submission of all development plans. Surveys shall have been reviewed and signed by a certified arborist to confirm tree species, especially understory champion trees. A tree survey is required for development plansand reuse/redevelopment plans that propose to disturb areas that contain or are within the critical root zone of champion trees or specimen and significant trees within required buffers, streetscapes, and floodplains.

            The survey shall, at a minimum, provide the following information:

            (a)   The number, caliper size, and location of either:

               (i)   All champion and upperstory specimen trees within all areas to be disturbed, all champion trees within one hundred (100) feet of all areas to be disturbed, and all upperstory specimen trees within fifty (50) feet of all areas to be disturbed; or

               (ii)   All champion trees located throughout the development plan boundaries, all upperstory specimen trees located within any buffer or streetscape, and all upperstory specimen trees located within fifty (50) feet of any buffer or streetscape; and

            (b)   All significant trees within the interior ten (10) feet of all buffers, streetscapes, and floodplains; and,

            (c)   A general description of the forest or forest stands on site located outside of buffers, streetscapes, and floodplains, including information on the type of trees and general size ranges.

         (4)   Incentives and Design Flexibility

            Section 7.2.10 provides incentives and design flexibility for preserving existing healthy trees and forest stands and for protecting the critical root zone of specimen trees located outside of buffers, streetscapes, and floodplains. For example, the Planning Directormay permit the exchange of trees otherwise required to be preserved for the preservation of trees within certain non-residential buffers and may grant parking reductions if trees or forest stands that are not otherwise required to be preserved or are located outside of buffers, streetscapes, and floodplains, are preserved.

            For purposes of Sections 7.2.5 and 7.2.10 of this Ordinance, the following definitions apply:

            (a)   Adversely impacted means that twenty-five percent (25%) or more of the critical root zone of a champion tree will be, or, within the three (3) years prior to the date of application, was disturbed.

            (b)   Disturbed means any use of land that results in a change in the natural cover or topography. This may include the grading, digging, cutting, scraping, compaction, or excavation of soil, placement of fill materials, paving, construction, substantial removal of vegetation, or any activity which bares soil or rock or involves the diversion or piping of any natural or man-made watercourse. Routine maintenance of landscape areas is not included as "land disturbance."

            (c)   Grouping means that the critical root zone of two (2) or more champion trees or champion tree(s) and specimen tree(s) overlap.

            (d)   Open Space means all buffers, streetscapes, or floodplains; open space required through rezoning conditions; permanent tree protection areas; designated community gathering spaces; bonus open space for conservation residential subdivisions; and other non-regulated permanent open space.

            (e)   Large Champion Tree means any upperstory champion tree forty (40) caliper inches and larger or any understory champion tree fifteen (15) caliper inches and larger.

            (f)   Small Champion Tree means any upperstory champion tree less than forty (40) caliper inches or any understory champion tree less than fifteen (15) caliper inches.

            (g)   Prominent Location means areas: along any thoroughfare or collector roadway; along a public/private street interior to the site; surrounded by buildings/homes on at least two (2) sides; or immediately adjacent to or within twenty (20) feet of a public greenway easement or public greenway property boundary.

            (h)   Tree protection area means areas that are required by this ordinance to be encircled and enclosed within a tree protection fence.

            (i)   Tree protection fencing means the fencing required by Section 7.2.5(B)(2) of this Ordinance.

      (B)   Tree Protection During Construction

         (1)   Owner's Responsibility

            During development of the property, the owner, developer, and/or builder shall be responsible for the erection of tree protection fencing to protect existing and/or installed vegetation from damage during development and prior to certificate of occupancy for buildings/structures. Any disturbance within the boundaries of such tree protection areas that is not authorized by the terms of this Ordinance shall result in fines as identified in Section 11.5.2(B)(2)(b), in addition to any other fines and replanting requirements for the removal or damage of vegetation within tree protection areas.

         (2)   Tree Protection Fencing

            (a)   Where Required

               All existing trees and vegetation that are to be preserved shall be completely encircled and enclosed within a fence that meets the requirements of this Ordinance before grading begins. Additionally, tree protection fencing shall be required around champion trees and shall extend in a circular manner a distance of at least one and one-quarter (1.25) feet from the tree for each inch of caliper (excluding existing and undisturbed non-pervious area on redevelopment/reuse sites). The distance may be reduced if allowed under Section 7.2.10 of this Ordinance. Tree protection fencing of areas adjacent to existing and proposed roadways is also required. Tree protection fencing is required on all Town transportation projects that are adjacent to streetscapes or buffers. Existing site conditions shall be taken into consideration in determining the exact location of any tree protection fencing and staff may authorize field adjustments to the amount of tree protection fencing needed.

            (b)   Type of Tree Protection Fencing

               All tree protection fencing required by this section shall be four (4) feet orange polyethylene laminar fencing a minimum four (4) feet high and of durable construction. Passive forms of tree protection may be utilized to delineate tree save areas that are remote from areas of land disturbance at the discretion of the Planning Director.

            (c)   Signage

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

            (d)   When Required

               The tree protection fencing shall be clearly shown on the development plan. No construction, grading, equipment or material storage, or any other activity shall be allowed within the tree protection area. Tree protection fencing shall be maintained until the final site inspection prior to the Certificate of Occupancy is scheduled (including any required perimeter buffer for single-unit dwelling construction). The tree protection fencing shall be removed prior to final site inspection for the Certificate of Occupancy.

         (3)   Disturbance

            Disturbance within the area required to be designated as a tree protection area, shall occur only if approved by staff on the development plan. If such a disturbance is permitted for reasons such as location of minor utility lines, the following preventive measures shall be employed:

            (a)   Clearing Activities

               The disturbance of land, including disturbance caused by the removal of trees adjacent to tree protection areas can cause inadvertent damage to the trees in the tree protection area. If trees are being removed adjacent to tree protection areas, a minimum one and one-half (1 1/2)-foot trenches must be cut along the limits of land disturbance, so as to cut, rather than tear, roots. Trenching shall be required for the protection of specimen and/or champion tree critical root zones immediately adjacent to or within the land disturbance area (see Community Appearance Manual for further guidance).

            (b)   Soil Compaction

               Where compaction might occur due to traffic or the transportation of materials through the tree protection area, the tree protection area must first be mulched with a minimum four (4)-inch layer of processed pine bark or wood chips or a six (6)-inch layer of pine straw (see Community Appearance Manual). Equipment or materials storage shall not be allowed within tree protection areas.

      (C)   Protection of Champion Trees

         (1)   Intent/Purpose

            One purpose of this subsection is to protect healthy champion trees during the development process. This shall be accomplished through the review and implementation of development plans and reuse/redevelopment plans. Trees, including champion trees located on existing single-unit lots, that are otherwise not subject to regulation under Chapter 7 of this Ordinance, are not subject to these requirements. Flexibility in site design is provided for in Section 7.2.10 which permits area used to preserve champion trees that is not otherwise required to be preserved to be offset by deducting area from other required landscape/buffer areas. No champion tree may be removed during development, unless the approval criteria of Section 7.2.5(D) are met and the removed champion tree is replaced pursuant to Section 7.2.5(E). In support of any application which requests removal of a champion tree, the applicant must submit a report from a certified arborist that addresses the criteria of Sections 7.2.5(C) (2) and (D).

            When applicants are designing development plans, champion trees and their critical root zone shall be preserved in the following priority order (which order shall be reviewed when the decision-making authority is making a determination as to whether a plan is in compliance with Section 7.2.5):

            (a)   Tier 1 Champion Tree (excludes pine trees):

               (i)   Any champion tree grouping located in a prominent location;

               (ii)   Any single large champion tree located in a prominent location;

               (iii)   Any single small champion tree located in a prominent location;

               (iv)   Any champion tree grouping located in a non-prominent location; and

               (v)   Any single large champion tree located in a non-prominent location.

            (b)   Tier 2 Champion Tree:

               (i)   Any single small champion tree, excluding pine, located adjacent to other open space areas;

               (ii)   Any single small champion tree, excluding pine, located in a non-prominent location;

               (iii)   Any single champion tree, excluding pine, that is forked (see champion tree definition), located anywhere on site; and

               (iv)   Any single champion pine tree located anywhere on site.

      (D)   Administrative Approval of Removal of Champion Trees

         (1)   The Planning Director shall administratively approve the removal of any champion tree if the criteria of either (a), (b), (c) or (d) below are met.

            (a)   After exhausting the allowable modifications/reductions in Section 7.2.10, the tree is adversely impacted by one (1) of the following:

               (i)   Required road connections;

               (ii)   Required sanitary sewer or storm drain lines;

               (iii)   Public infrastructure improvements made or to be made by others;

               (iv)   Required stormwater treatment devices located in geographically and topographically appropriate areas; or

               (v)   Town design standards or requirements that limit the reasonable location of new structures and expansions to buildings and/or other features such as parking and private streets on the site (e.g. requirements for the buildings to front on streets, access points, and similar).

            (b)   All the following criteria have been met:

               (i)   All allowable modifications in Section 7.2.10 have been exhausted; and

               (ii)   The tree is included in the Tier 2 champion tree list;

               (iii)   The total site consists of at least thirty percent (30%) open space or at least fifteen percent (15%) open space if located in the Town Center Zoning District or on a reuse/redevelopment site.

            (c)   After exhausting the allowable modifications/reductions in Section 7.2.10, and due to the site's topography and/or in order to meet town design standards or requirements (e.g., roadway elevations, sidewalks, etc.), the finish site elevation will result in the champion tree critical root zone area being ten (10) feet or more above or below grade on more than one (1) complete side of the tree.

            (d)   Based upon a certified arborist's report, a large champion tree has a life expectancy of less than ten (10) years and one (1) or both of the following exist:

               (i)   Twenty-five (25) percent or more of the tree's canopy is dead/dying; and/or

               (ii)   Two (2) or more major limbs are dead/dying.

               Replacement pursuant to Section 7.2.5 (E) shall be required if the champion tree meets this criteria and is removed.

         (2)   The Zoning Board of Adjustment shall review and take action on any other request to remove a champion tree as a Minor Modification pursuant to Section 3.19.

      (E)   Replacement of Champion Trees

            a.   Trees of similar type must be planted at least thirty (30) feet from any other tree such that the total caliper inches of trees planted is no less than the caliper inches of the tree removed;

            b.   The size of such replacement trees at the time of installation shall be a minimum of two and one-half (2 1/2) inches in caliper;

            c.   Tree protection areas that are not in required open space may, if placed in private permanent open space, be credited towards this replacement requirement at one hundred fifty percent (150%) of the caliper inches of the trees preserved for healthy hardwood trees a minimum of two (2) caliper inches in size and healthy evergreen trees a minimum of four (4) caliper inches in size; and

            d.   If sufficient area does not exist on the site to plant replacement trees, the applicant or owner must coordinate with Town staff to design and implement a plan to plant the required replacement trees on town properties, town-maintained properties, and/or other public property within the Town's jurisdiction. If the Town determines this is not feasible, fines shall be assessed in accordance with Section 11.5.2(B)(2)(d).

         (2)   When a champion tree is removed during construction, or is dying or dies within one (1) year following completion of construction pursuant to a development plan on a site located within the Town Center District or on a reuse/redevelopment site, the applicant or developer shall comply with the requirements of section 7.2.5(E)(1), except that the total caliper inches of trees planted may be less than the diameter of the tree removed if it is not practical to replant the required number and size of trees spaced at least thirty (30) feet from any other tree on the same site or any adjacent property under common ownership. The maximum size of any replacement tree shall be three (3) caliper inches.

         (3)   In consultation with the Town staff, acceptable replacement trees shall be determined by a person qualified by training or experience to have expert knowledge of the subject. Alternatively, the valuation of trees removed may be established in accordance with standards established by the International Society of Arboriculture and replaced with trees of equal dollar value.

         (4)   Replacement trees shall be maintained through an establishment period of at least three (3) years, except that replacement trees planted in association with development of detached dwellings on an individual lot shall have an establishment period of only one (1) year. The property owner and developer shall execute a landscape agreement guaranteeing the survival and health of all replacement trees during the establishment period and guaranteeing to replace any replacement tree(s) that does not survive the establishment period in good health as determined by a certified arborist.

      (F)   Preservation and Removal of Trees on Town Property

         (1)   Preservation on Town Property

            (a)   The Town shall have the right to plant, maintain, and remove trees and vegetation on all Town property as may be necessary to ensure public safety or to preserve or enhance the symmetry and beauty of Town property. The Town also may remove any Town-owned tree, shrub, or part thereof that is in an unsafe condition, which by its nature is injurious to sanitary sewers, electrical power lines, gas lines, water lines, or other public improvements, or which is infected with any injurious fungus, insect, or other pest.

            (b)   This section does not prohibit the planting of upperstory trees or shrubs by adjacent property owners on Town property, provided that the selection and location of said trees or shrubs complies with the planting guidelines developed by the Community Appearance Manual or other documents and is approved by the Town.

         (2)   Injury or Obstruction to Trees on Town Property Prohibited

            No person shall, without prior written permission from the Town, place or maintain upon the ground in any public street right-of-way or Town property any stone, cement, or other impervious matter or any fill material in a manner that may obstruct the free access of air and water to the roots of any tree or shrub in any such street right-of-way or Town property. Any person who is erecting, repairing, altering, or removing any building or structure shall place a guard or protector around any tree or shrub on Town property so as to prevent injury to such tree or shrub.

      (G)   Removal of Unsafe, Injurious, or Infected Trees on Private Property

         (1)   The Town may cause to be removed from private property any tree, shrub, or part thereof which is or contributes to a public nuisance.

         (2)   The Town or its agent may enter upon private property to trim, treat, or remove any tree or shrub infected by any parasite, insect, or pest, when necessary to prevent the breeding or scattering of any parasite or pest and to prevent danger to persons, property, or trees and shrubs planted in public street rights-of-way or other Town property.

         (3)   Prior to exercising the authority conferred by this section, the Town shall give the owner an opportunity to correct the condition by ordering the corrective action be taken. The order shall be sent by certified or registered mail to the owner of the property in question, and shall be acted upon by the owner or occupant within fourteen (14) days from the date he or she receives the order. If, after fourteen (14) days, the owner or occupant has not corrected the condition or undertaken action that would lead to a timely correction of the condition, then the Town may enter upon the property, perform the work necessary to correct the condition, and bill the owner or occupant for the actual costs incurred in addition to an administrative fee.

         (4)   For trees located within open space, the determination of whether a tree or trees are unsafe, injurious, dead, or dying shall be made only by the Town or its recognized representative.

      (H)   Waivers in Emergencies

         During emergencies, such as windstorms, ice storms, fire, or other disasters, the Town Manager may waive the requirements of this section in order to avoid hampering private or public work to restore order in the Town. This section shall not be used, however, to otherwise circumvent the requirements of this Section 7.2.

      (I)   Clear Cutting of Trees and Other Vegetation

         (1)   The removal or clear cutting of trees and other existing vegetation on undeveloped or under-developed sites within the corporate limits or extra-territorial jurisdiction is prohibited except as otherwise permitted in this Ordinance.

         (2)   Any clear cutting or vegetation removal on vacant, undeveloped, or underdeveloped sites must be done in accordance with an approved development plan or in accordance with the Tree Clearing Certificate process in Section 3.22.

         (3)   Trees and other existing vegetation shall be maintained within existing UTBs consistent with the requirements of this Ordinance and state law. Removal of existing trees and vegetation without approval from the Town and/or the State shall be a violation of this Ordinance, and shall be subject to the requirements and penalties of Sections 7.2.9(H), 7.2.13 and Chapter 11 of this Ordinance.

(Ord. No. 2009-LDO-01, 2-12-09)

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

         All vehicular use areas shall contain at least one (1) upper-story tree for every seven parking spaces required. If overhead utility lines are present and would impair the growth of an upper-story tree , two (2) understory trees fifteen (15) to twenty-five (25) feet in height at maturity may be used instead of one (1) upper-story tree . All vehicular use areas used for parking shall be screened from the view of adjacent properties and streets by evergreen plantings that will attain a height of three (3) feet within three (3) years of planting. The use of shrubs and ground covers is greatly encouraged in parking area islands and along the borders of parking areas.

      (B)   Existing Vegetation

         Existing healthy, well-formed upper-story trees may be counted toward the requirements of this section, provided that these trees are protected in accordance with Section 7.2.5, Tree Protection and Replacement, before and during development of the site and maintained thereafter in a healthy growing condition.

      (C)   Design Standards

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

         (12)   All sidewalks shall be at least five (5) feet from the trunks of upper-story trees, unless otherwise approved by the Planning Director. For example, when the placement of the sidewalk would require the removal of an existing upper-story tree to meet this requirement or where there is not enough space on the site to accommodate both the tree and the sidewalk, this requirement may be modified.

      (D)   Screening Vehicular Use Areas

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

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

         (2)   Berms may be used or installed in lieu or in addition to plantings. If the berm does not meet the performance standards of this section, then plant materials shall be installed which meet these standards. The installation of additional plant materials is encouraged so as to enhance the visual and aesthetic qualities of the streetscape. Plantings should be placed based upon topography of the site, usually at the top of the slope.

         (3)   Berms must, at a minimum, be planted and maintained with a groundcover vegetation or grass that will permanently stabilize the soil.

         (4)   Shrubs, plantings, hedges, or walls shall provide an opaque screen or barrier for the first three (3) feet of height within three (3) years of planting.

         (5)   Vehicular use areas used for the purpose of loading/unloading, and accessways to those areas shall be screened from views of streets and adjacent development.

      (E)   Exceptions for Underground Parking and Above Ground Parking Structures

         When parking is provided underground or within buildings, the above requirements shall not apply. However, if the parking is visible from a public right-of-way or adjacent property , then it shall be screened from views from streets and adjacent properties pursuant to subsection (D) above. Unless they are designed to look like, reflect the architectural style of, and blend in with the adjacent buildings, dense landscaping should visually separate all parking structures from the view of streets and adjacent property . If this is not possible, then the walls of the structure should be softened by the use of terracing, plantings, or other techniques.

(Ord. No. 2009-LDO-01, 2-12-09; Ord. No. 2010-LDO-01, 1-14-10)

   Fences and walls are permitted as an accessory use in all zoning districts provided that they meet the following requirements:

      (A)   Fence and Wall Height Outside of Required Setbacks

         Fences and walls located outside of the minimum front, rear and/or side yard setbacks, as shown in Section 6.1, Tables of Density and Dimensional Standards, may be erected to any height permitted for buildings in the respective zone district, also indicated in Section 6.1.

      (B)   Fence and Wall Height within Required Setbacks

         Fences and walls located within a minimum roadway, rear and/or side yard setbacks, as shown in Section 6.1, Tables of Density and Dimensional Standards, shall not exceed eight (8) feet in height unless specifically approved as part of a buffer under Section 7.2.3, or approved by the Zoning Board of Adjustment as part of a development plan, Special Use Permit, or variance. Columns and entry features shall not exceed twelve (12) feet in height unless specifically approved as an entry monument alternative to a principal ground sign under Section 9A.3.1(H). These features shall be located outside of required sight distance triangles.

      (C)   Landscaping and Screening of Fences and Walls

         Fences and walls taller than forty-two (42) inches and located within thirty (30) feet of a thoroughfare or collector street right(s)-of-way shall meet the following landscape requirements:

         (1)   One (1) shrub shall be installed for each five (5) feet of property frontage along a thoroughfare or collector street. Shrubs shall be evergreen and shall be a minimum of twenty-four (24) inches tall at time of installation. Shrubs may be installed in a staggered, clustered, grouped or linear fashion, and all plantings shall be installed on the side of the fence that faces the right-of-way.

         (2)   Retaining walls that are forty-two (42) inches or more above an established grade are also required to meet the above screening requirements.

         (3)   A fence permit shall be obtained for fences adjacent to thoroughfare or collector street right(s)-of-way.

      (D)   Maintenance

         The owner of the property (or other party responsible for maintenance as depicted on the approved development plan) on which the fence or wall is located is required to maintain the fence or wall in a safe and attractive condition. This shall mean the following:

         (1)   No fence or wall shall have more than twenty (20) percent of its surface area with disfigured, cracked, ripped or peeling paint or other material; and

         (2)   A fence or wall shall not stand with bent or broken supports, including loose or missing appendages; and

         (3)   Fences and walls shall be plumb (vertical) to the ground.

         (4)   Replacement of non-conforming fences shall comply with all the requirements of this section.

         Fences and walls that are visible from a thoroughfare or collector street right-of-way shall be constructed such that exposed framing faces the interior yard and not the thoroughfare or collector street right-of-way.

      (F)   Fences and Walls within Buffers or Streetscapes

         Fences and walls shall be installed so as to not disturb or damage existing, significant vegetation or installed plant material.

      (G)   Setback Requirement

         To allow sufficient room for the landscaping to mature, fences and walls located within thirty (30) feet of a thoroughfare or collector street right-of-way shall be installed a minimum of five (5) feet (preferably ten (10) feet to allow room between plants and the sidewalk) from the property line. There shall be no setback for fences not located adjacent to a thoroughfare or collector street right-of-way.

 

 

      (H)   Fences Prohibited

         Fences that are electrically charged and those constructed of barbed or razor wire shall be prohibited. This prohibition shall not apply to fences used to enclose livestock on bona fide farms and those serving a public or quasi-public institution for public safety or security purposes.

      (I)   Sight Distance

         No fence or wall shall be allowed to obstruct sight distance triangles.

      (J)   Rails Required for Retaining Walls and Steep Grade Changes

      (A)   Stormwater Devices

         Stormwater Best Management Practices (BMPs) shall be designed, constructed, and maintained to contribute to the aesthetic values of development. Visible hardscape transitions or edges (walls) for stormwater devices should not be used outside of Mixed Use Overlay Districts. BMPs should be graded and landscaped to blend with the surrounding landscape to provide better transitions as demonstrated in the Site Design Standards Document. Culverts, outlet structures, level spreaders, and other devices associated with stormwater BMPs shall be landscaped to reduce their visual impacts. All proposed landscaping shall be shown on an approved development plan. The Planning Director may allow the use of hardscape transitions for developments outside of a Mixed Use Overlay District pursuant to Section 3.19.1.

         Where used, visible hardscape transitions shall be subject to the following criteria:

      (B)   Mechanical and Utility Equipment

         (1)   Heating, ventilation, air conditioning, and other mechanical and utility equipment, including but not limited to hoses, pipes, vents, fans, compressors, pumps, and heating and cooling units, ground based electrical transformers, telephone, or cable junction boxes, which are located on, beside, or adjacent to any building or development, shall be fully screened from the view of streets and adjacent property.

         (2)   The screen shall exceed the height of the equipment, shall not interfere with the operation of the equipment, and shall use building materials and design which are compatible with those used for the exterior of the principal building.

         (3)   Where mechanical and utility equipment is located on the roof of a structure, all devices shall be fully screened from the view of streets or adjacent property after grading or other improvements are made outside or adjacent to the site.

         (4)   The Planning Director may require mufflers or other noise reducing technique on mechanical and utility equipment in developments adjacent to existing or future residential projects to mitigate noise impact (refer to Town Code for noise requirements).

         (5)   Utility equipment and facilities associated with on-site electric, cable, telephone, gas or other similar utility, including ground-based electrical transformers and power meters, shall be placed in service areas on the sides or rear of buildings, and shall be screened, to the extent possible, with evergreen plantings or other acceptable alternative approved by the Planning Director. (This requirement applies to both residential and non-residential developments). Areas around this equipment and facilities shall remain clear based on each utility company's guidelines.

      (C)   Trash Containment Areas

         Developments must account for disposal of trash, including trash and recycling containment devices. Restaurants, large retail establishments and other similar businesses must indicate how they plan to address cardboard recycling prior to development plan approval. All trash containment devices, including compactors, dumpsters, and recycling drop-off bins, shall be located and/or screened so as not to be visible from the view of internal travelways, adjacent streets and properties. The type of screening used shall be determined based on the proposed location of the trash containment area, existing site conditions, and the type and amount of existing and proposed vegetation on the site. All such areas shall meet the following standards:

         (1)   All trash containment areas shall be enclosed with solid gates to allow for access and security and contain windblown litter. In addition, the Planning Director may require self-closing gates for such enclosures. Gates must be maintained in good working order.

         (5)   The Planning Director may require some uses to install a pad and screening enclosure large enough to accommodate both a trash container as well as a recycling container for cardboard.

      (A)   Required Landscaping on Single-Unit Residential Lots

         (2)   Landscaping for individual lots shall be installed or secured for a future planting date prior to the Certificate of Occupancy permit.

         (3)   Existing vegetation on individual lots shall be retained to the maximum extent possible.

         (4)   A ten (10) foot wide landscape area meeting the Type B buffer standard shall be provided on each lot where rear yards back up to each other or are visible from other rear yards.

      (B)   Required Foundation Plantings for Non-Residential Buildings

         With the exception of building in the Town Center district, foundation plantings are required on all non-loading and non-service sides of non-residential buildings unless approved through a Statement of Architectural Compatibility (see Section 7.7.4).

      (C)   Standards for New Planting

         (2)   All shrubs shall be healthy, at least twenty-four (24) inches in height above ground level and shall reach the height required for performance within five (5) years after installation.

         (3)   The standards for all trees and shrubs, including the minimum height, root ball size, number of branches, and width, shall conform with the American Standard for Nursery Stock published by the American Association of Nurserymen for that type of tree or shrub at the time of installation.

         (4)   The selection and planting of trees and shrubs shall conform to the standards set forth in the Community Appearance Manual  and Standard Specifications and Details Manual. Trees intended for use in areas that are ten (10) feet wide or less and are adjacent to impervious surfaces shall be species that are suited to use in urban environments (i.e., reflected heat, limited pervious area, limited moisture) and are not shallow rooted, so as to avoid future damage to sidewalks and paved areas.

      (D)   Irrigation

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

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

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

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

      (E)   Design Standards for Berms

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

         (1)   The slope of all berms shall not exceed a two to one (2:1) ratio (horizontal to vertical), shall have a top width at least one-half (½) the berm height, and a maximum height of four (4) feet above the toe of the berm. The Planning Director shall approve all berms. Berms proposed to be greater than four (4) feet in height may be permitted by the Director if the four (4) foot maximum height 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.

         (2)   Proposed berms to be placed over an existing or proposed utility easement(s) shall be approved by the Development Review Committee.

         (3)   All berms, regardless of size, shall be stabilized with a ground cover or other suitable vegetation according to the Town's Standard Specifications and Details .

         (4)   The Directors of Public Works, Transportation and Facilities, and Planning shall approve all berms proposed to be placed along street right(s)-of-way. Such berms shall be designed and constructed to provide adequate sight distances at intersections and along all other roads.

         (5)   Berms proposed to satisfy the buffer requirements specified in subsection 7.3.2 shall be vegetated as required by this section. Berms must be stabilized with ground cover to prevent erosion and sedimentation. Use of berms as a substitute for existing healthy vegetation is strongly discouraged. However, if berms are allowed to replace existing vegetation that already meets the standards contained in this section, then they must also meet the buffer standards and must be approved by the Planning Director.

         (6)   Berms shall in no case damage the roots of existing healthy vegetation designated to be preserved.

      (F)   Easements

         Nothing shall be planted or installed within an underground or overhead utility easement or a drainage easement without the consent of the Town and the easement holder at the time of site plan approval.

      (G)   Designated Utility Corridors

         In order to reduce the damage to root systems of existing vegetation within streetscapes, buffers or any other tree save areas, designation of planned utility connection corridors is required to be shown on all development plans to coordinate the location of electrical, telephone, cable, and other similar utilities.

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

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

       (J)   Variety of Plant Species Required

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

       (K)   Soil Amendments Required

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

         Where portions of a site have been graded due to, but not limited to, topography, cut and fill slopes associated with road and/or parking lot construction; with transitional perimeter grading; or with the installation of major utilities, and other similar areas, the development plan shall contain a reforestation plan prepared by a landscape architect, a certified arborist, a registered forester, or another such professional specialist. The reforestation plan shall conform to the following standards:

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

         In order to prevent conflicts and allow for appropriate maintenance, canopy trees shall be placed at least ten (10) feet from electrical transformers and twenty (20) feet from light poles.

      (A)   This Section 7.2.10 provides flexibility and presents alternative ways to meet the standards set forth in this Ordinance, while encouraging the preservation of existing healthy vegetation and innovation in site design.

         (1)   Existing healthy vegetation and the area of land used to maintain the vegetation may be counted toward meeting the performance criteria for buffers, streetscapes, and vehicular use areas set out in Sections 7.2.3, 7.2.4, and 7.2.6.

         (2)   Up to a twenty (20) percent reduction in the number of parking spaces required on the site shall be allowed to the extent that the reduction in the amount of required pavement will preserve existing healthy trees in an undisturbed, natural condition.

            (a)   The Zoning Board of Adjustment may reduce the width of required streetscapes and buffers to no less than ten (10) feet pursuant to this section. Buffer reductions between uses may be considered based on the use of innovative site/building design concepts. The Zoning Board of Adjustment may make exceptions to this minimum width for development within the Town Center District and for reuse/redevelopment sites. Reductions in the width of streetscapes and buffers should only be allowed when:

               (1)   At least one (1) of the following conditions exists:

                  a.   meeting the required width prevents reasonable use of the property based on the zoning; or

                  b.   additional open space beyond that already required is provided elsewhere on the site; and

               (2)   The modification advances the goals and purposes of the LDO.

            The Planning Director may allow reuse/redevelopment sites to maintain their existing buffer and streetscape widths even if such width is less than current ordinance requirements so long as the proposed development plan does not reduce the existing buffer or streetscape width on the site. If existing pavement, curbs, and/or buildings are being removed from the required buffer and streetscape widths, the Planning Director may require plantings to reasonably meet the intent of the landscape requirements (i.e., parking lot screening, streetscape/buffer and parking lot trees).

         (4)   An average buffer/streetscape width that equals the width of the required buffer/streetscape may be approved, provided that all of the following requirements are met:

            (a)   The buffer/streetscape average equals the required width {for example, a required fifty (50) foot buffer could average a minimum of fifty (50) feet in width.}

            (b)   In no case shall a buffer/streetscape that is adjacent to single-unit residential development be less than thirty (30) feet in width.

            (c)   All buffer/streetscape areas that are less than the required minimum width must include additional vegetation, walls/fencing, and/or other measures.

         (5)   Where spacing of required streetscape trees evenly across the frontage of the property or existing vegetation would interfere with the visibility of features or landscapes intended specifically for public or civic purposes such as art, monuments, memorials, and historic structures, the required number of trees may be staggered, clustered and otherwise arranged as deemed appropriate in order to promote optimal growth and health of the vegetation. In addition, existing vegetation may be removed from the streetscape for visibility of features provided that an area equal to the area of vegetation being removed is preserved elsewhere on the site (in addition to required buffers).

         (6)   The area used for preserving existing healthy non-champion trees within the site may be used as credit for required perimeter non-residential buffers and interior buffers, at a rate of one and one-half (1.5) times. For example, if the area taken up by the preserved vegetation is one thousand two hundred (1,200) square feet, then the applicant may deduct an area equal to one thousand eight hundred (1,800) square feet from other required landscape/buffer areas. However, the application of this subsection is subject to the limits provided under Section 7.2.10. In addition, the area removed from required perimeter buffers should not contain specimen tree stands. For purposes of this section, "area taken up by preserved vegetation" includes the area under the tree canopies.

         (7)   Interior buffer areas may be relocated provided that the square footage of area is relocated elsewhere on the site (preferably to save more existing vegetation).

         (8)   The required streetscape along thoroughfares and collectors may be reduced to ten (10) feet, and building setbacks from the streetscape to zero (0) when buildings are placed close to the street inside Mixed Use Overlay Districts.

      (B)   In addition to subsection (A) above, and in order to provide for flexibility in site design and landscape requirements to preserve champion trees, the Planning Director shall administratively approve the below modifications in the order listed and only to the extent necessary to preserve champion trees. Specifically, the area preserved in association with saving champion trees may be exchanged for area used to meet the other LDO requirements referenced below. Refer to Section 7.2.5(A) for definitions applicable to this subsection.

         (1)   The required number of parking spaces may be reduced by up to twenty-five (25) percent;

         (2)   Linear parking lot islands may be reduced and/or eliminated;

         (3)   The area encompassed by the critical root zone of preserved champion trees may be used to meet the community gathering space requirements;

         (4)   The area encompassed by the critical root zone of preserved champion trees and designated as common open space may be used to meet the bonus open space requirements within the conservation residential overlay district without being contiguous or meeting the area size requirements;

         (5)   Residential lot lines may be created at other than substantially right angles to other lot lines provided the lot meets all other dimensional requirements of this ordinance and permits a reasonable building envelope for a dwelling;

         (6)   Residential lot setbacks may be reduced up to fifty percent (50%) when the setback is adjacent to a champion tree critical root zone area.

         (7)   The connectivity index, primary circulation standards, and the cross-access requirements within Section 7.10.3 (A) and (C) may be modified provided the circulation pattern shall continue to provide for the safe, controlled, and orderly flow of pedestrians and vehicles;

         (8)   Champion trees and their critical root zones or a portion thereof may be included within residential lots provided such inclusion permits a reasonable building envelope for a dwelling and designated as tree protection areas on the development plan;

         (9)   Interior non-residential buffers and interior buffers within non-residential centers/subdivisions may be reduced to no less than ten (10) feet or the width required to meet the planting requirements of the buffer type, whichever is greater, provided specimen hardwood tree stands are not adversely impacted;

         (10)   Total perimeter buffers widths adjacent to non-residential uses or zoning districts may be reduced to no less than twenty (20) feet, provided specimen hardwood tree stands are not adversely impacted and there is sufficient room to plant the required buffer type;

         (11)   Buffers and streetscape areas may be used for bio-retention, provided specimen hardwood tree stands are not adversely impacted and the buffer is adjacent to a non-residential use or zoning district.

         (12)   Critical root zone measurement and tree protection area may be reduced to one (1) foot from the champion tree for each inch of caliper.

         For the purpose of the allowable modifications above, the "area encompassed by the critical root zone of preserved champion trees" also includes the area needed to preserve an existing structure on a site, the demolition of which would have adversely impacted the critical root zone of one (1) or more champion trees.

      (C)   Soil Volume

         The Planning Director shall administratively approve modifications to soil volume requirements (section 7.2.4(F)) where soil volume requirements cannot be met due to unusual planting conditions, provided the developer or property owner provides the Town with a certification from a certified arborist on a form approved by the Planning Department that the modifications will not decrease the viability of the trees.

      (A)   Time Limit

         All landscaping, including mulching and seeding, shall be completed in accordance with the approved development plan prior to issuance of a Certificate of Occupancy for the site, unless the Planning Director grants an exception to meeting this requirement due to extreme heat or cold conditions. The installation of these requirements shall comply with the required planting standards set forth in the Town's Community Appearance Manual and the soil erosion and sedimentation control provisions in Section 7.4. Installation of required landscaping (i.e., trees and shrubs) shall be strongly discouraged during the months of April through September. The use of alternative water source (other than public water) is encouraged to ensure plantings are healthy after first growing season. Projects which require installation of landscaping between April through September are required to have a landscape agreement in place prior to the issuance of a Certificate of Occupancy.

      (B)   Extensions and Exceptions

         The Planning Director may grant exceptions and extensions to the above time limit in the following circumstances and under the following conditions:

         (1)   Exceptions may be granted due to unusual environmental conditions, such as drought, ice, over-saturated soil (deep mud), or inappropriate planting season for the plant species (plantings between April through September are strongly discouraged), provided that the developer or property owner provides the Town with a certification on a form approved by the Planning Department ensuring the installation of the remaining landscape materials. In such cases, the Planning Director may issue a conditional Certificate of Occupancy for a period of thirty (30) to one hundred eighty (180) days, depending on the Director's recommendation for the next earliest planting season.

         (2)   Exceptions may be granted due to the substitution or unavailability of plant species or acceptable plant size as specified on the development plan, provided that the developer or property owner provides the Town with a certification on a form approved by the Planning Department to ensure that the unavailable plants will be installed on the property. In such cases, the Director may issue a temporary Certificate of Occupancy for a term of up to one hundred eighty (180) days or to the next planting season, whichever comes first. Only twenty (20) percent of the plant materials to be installed on the property may be delayed under this exception. All such substitutions shall be marked on the "as-built" landscaping plans submitted to the Planning Director, and must be signed, dated, and approved by that Director prior to installation.

         (3)   Exceptions may be granted due to circumstances beyond the developer's or property owner's control, such as incomplete construction or utility work to occur in a proposed landscaped area within thirty (30) days after expected site completion, provided that the developer or property owner submits a letter from the utility company stating the estimated installation date, and provides a certification on a form approved by the Planning Department to ensure installation of the required landscaping. In such cases, the Inspections and Permits Department may issue a temporary conditional Certificate of Occupancy.

      (A)   Inspections Prior to Certificate of Occupancy

         The Planning Department shall inspect the site prior to the issuance of a permanent Certificate of Occupancy for the development and the Inspections and Permits Department shall not issue the permanent Certificate of Occupancy if the landscaping required under this section is not living or healthy or is not installed in accordance with the standards set forth in this section and in accordance with the approved development plan.

      (B)   Inspections After First Year

         The Planning Department shall inspect the site one (1) year after the issuance of a permanent Certificate of Occupancy in order to ensure compliance with the approved development plan and to ensure that the landscaping is properly maintained. Failure to maintain required landscape areas (trees and shrubs) shall result in fines according to Chapter 11 of this Ordinance.

         The owners of the property shall be responsible for the installation, preservation, and maintenance of all planting and physical features (installed or vegetated natural areas) in all buffers, streetscapes, vehicular use areas, and other landscaped areas required under Sections 7.2.1 through 7.2.12 and Section 7.2.15, by zoning condition(s) or by an approved development plan or final plat, including areas labeled on such plans or plats as undisturbed, (hereinafter, in this Section 7.2.13, referred to collectively as "required landscape areas"), as provided below:

         (1)   Required landscape areas shall be free of refuse and debris, shall be treated for pest/diseases in accordance with the approved development plan, and shall be maintained so as to prevent mulch, straw, dirt, or other materials from washing onto streets and sidewalks.

         (2)   The owner shall take actions to protect vegetation in required landscape areas from unnecessary damage during all facility and site maintenance operations, including preventing parking or intrusion of equipment or vehicles and storage of any materials in root zones.

         (4)   Any dead, unhealthy, or missing vegetation, or vegetation disfigured by severe pruning, shall be replaced with locally adapted vegetation that conforms to the standards of this Ordinance and the approved development plan.

            Vegetation in required landscape areas may not be removed, disturbed, damaged, or severely pruned except as allowed in accordance with Section 7.2.13(B)(2). For purposes of this Section 7.2.13, "disturbance" shall be defined as any action that results in injury or harm to required trees, shrubbery, or other vegetation. Plants shall be considered severely pruned if pruned in such a manner that growth of their natural form is impaired.

            Vegetation within required landscape areas may be removed or modified with approval of a tree clearing certificate or with approval of the Planning Director as provided below:

            (b)   Where vegetation poses an immediate or imminent threat to improved structures on private or public property, severe pruning and/or removal of the vegetation is allowed, provided the performance standard of the required landscape area is maintained consistent with this Ordinance.

            (c)   Where vegetation or a physical element functioning to meet the standards of this Ordinance is severely damaged due to an unusual weather occurrence or natural catastrophe, or other natural occurrence such as natural death or damage by wild or domestic animals, the owner may be required to replant if the required landscape area no longer achieves the required performance standards of this Ordinance. The owner may have one (1) growing season to replace or replant after reconstruction is complete. The Planning Director shall consider the type and location of the landscape buffer or required vegetation area as well as the propensity for natural revegetation in making a determination on the extent of replanting requirements.

         Where existing required vegetation has been removed, disturbed, or damaged in violation of this Ordinance, the Planning Director shall require revegetation of the affected area consistent with the provisions of Section 11.5.2(B)(1).

         Fines for unauthorized removal or disturbance of, damage to, or severe pruning of vegetation shall be assessed pursuant to Section 11.5.2(B)(2).

         The purpose of the Highway Corridor Buffer is to provide orderly development along US 1, I-40, I-440 and NC-540, to encourage the most appropriate use of adjacent lands, to maintain the scenic natural beauty of the area visible from such fully-controlled-access highway and adjacent lands, to provide open space, and to promote the safe and efficient movement of traffic. These highways commonly establish an image of the quality of life in the Town for visitors and residents alike. Preservation of this natural beauty is required to enhance trade, capital investment, tourism, and the general welfare. All development within this buffer shall comply with the regulations of this Section.

         The Highway Corridor Buffer is established along both sides of existing and planned fully-controlled-access highways. Such highways include US 1, I-40, I-440, and NC-540. The Highway Corridor Buffer covers all lands adjacent to the right-of-way along both sides of each such fully-controlled-access highway.

            A buffer strip, with a width extending one hundred (100) feet from and parallel to the right-of-way boundary of the fully-controlled-access highway, shall be maintained.

            A buffer strip width extending fifty (50) feet from and parallel to the right- of-way for interchange ramps shall be maintained.

               The Town Council may reduce the required width of this buffer strip as part of its approval of a concept plan or preliminary development plan as a component of a rezoning request, taking into consideration: the topography of the area; surrounding land uses, particularly residential uses; the actual location of the controlled/limited access highway; the size and shape of land parcels affected by the buffer; and whether the buffer requirement would render the entire property unusable. In reducing the width of the buffer strip, the Town Council shall ensure that the applicant and/or developer will provide appropriate landscaping meeting the requirements of Section 7.2.15(C)(4) below. In no event, however, shall the Town Council reduce the required width of the buffer strip to less than thirty (30) feet.

               Pursuant to the procedure in Section 3.19.1, the Zoning Board of Adjustment may consider a reduction of the required width of this buffer strip as a component of a development plan, taking into consideration: the topography of the area; surrounding land uses, particularly residential uses; the actual location of the controlled/limited access highway; the size and shape of land parcels affected by the buffer; and whether the buffer requirement would render the entire property unusable. In reducing the width of the buffer strip, the Zoning Board of Adjustment shall ensure that the applicant and/or developer will provide appropriate landscaping meeting the requirements of Section 7.2.15(C)(4) below. In no event, however, shall the Zoning Board of Adjustment reduce the required width of the buffer strip to less than thirty (30) feet pursuant to this section.

            Within the required buffer strip, all existing vegetation shall be maintained in a natural, undisturbed state and, unless the existing natural vegetation provides such a buffer, the applicant and/or developer shall install and maintain an Opaque Type A buffer meeting the requirements of Section 7.2.3(D) and (G) of this Ordinance. The owners of the property are responsible for maintenance of the buffer and the consequences resulting from disturbance to the buffer in accordance with Section 7.2.13, Maintenance Responsibility, Replacement of Damaged Vegetation, and Associated Fines. If the developer caused or is responsible for such disturbance of the buffer, and the developer is not the owner of the buffer, then the developer shall also be responsible for the consequences of such disturbance in accordance with Section 7.2.13.

            No development shall be allowed within the required buffer strip except as provided for in Section 7.2.3(H)(1) and (H)(2).

         The required width of the buffer strip may be reduced to less than thirty (30) feet pursuant to Section 3.20 (Variances).

         The law may permit the width of this buffer strip to be reduced through the action(s) of a unit of government or Public Utility (as such term is defined by G.S. 62-3), or may permit development within the buffer by a unit of government or Public Utility, such as but not limited to construction of highways or utility transmission facilities. In such situations, the action to reduce the buffer width or engage in development within the buffer by the government or Public Utility may not be subject to requirements of the LDO, including review or approval by the Zoning Board of Adjustment. See LDO Section 1.6.

(Ord. No. 04-001, 1-8-04; Ord. No. 04-007, 7-15-04; Ord. No. 05-001, 1-13-05; Ord. No. 06-009, adopted 4-27-06; eff. 4-27-06; Ord. No. 2007-04, 3-22-07; Ord. No. 2007-21, 12-13-07; Ord. No. 2008-LDO-01, 9-25-08; Ord. No. 2009-LDO-01, 2-12-09; Ord. No. 2010-LDO-01, 1-14-10; Ord. No. 2010-LDO-02, 1-28-10; Ord. No. 2011-LDO-01, 1-11-11; Ord. No. 2011-LDO-03, 7-14-11; Ord. No. 2011-LDO-04, 11-17-11; Ord. No. 2011-LDO-05, 12-15-11; Ord. No. 12-LDO-01, 2-23-12; Ord. No. 2012-LDO-06, 8-9-12; Ord. No. 2013-LDO-02, 6-13-13; Ord. No. 2013-LDO-04, 9-26-13; Ord. No. 2013-LDO-07, 12-19-13; Ord. No. 2014-LDO-01, 1-9-14; Ord. No. 2014-LDO-03, 8-14-14; Ord. No. 2014-LDO-04, 8-28-14; Ord. No. 2015-LDO-001, 4-21-15; Ord. No. 2015-LDO-003, 7-23-15; Ord. No. 2015-LDO-006, 12-10-15; Ord. No. 2016-LDO-01, 7-25-16; Ord. No. 2017-LDO-01, 1-24-17; Ord. No. 2017-LDO-02, 3-30-17; Ord. No. 2018-LDO-01, 5-3-18; Ord. No. 2019-LDO-01, 9-26-19; Ord. No. 2019-LDO-03, 10-10-19; Ord. No. 2020-LDO-01, 5-7-20; Ord. No. 2021-LDO-01, 6-24-21; Ord. No. 2022-LDO-01, 1-13-22; Ord. No. 2022-LDO-02, 4-28-22; Ord. No. 2022-LDO-03, 10-27-22; Ord. No. 2023-LDO-03, 6-22-23; Ord. No. 2023-LDO-04, 11-16-23)

         LARGER COMMON PLAN OF DEVELOPMENT OR SALE

         A site where multiple separate and distinct development activities may be taking place at different times on different schedules but governed by a single development plan regardless of ownership of the parcels. Information that may be used to determine a "common plan of development" include plats, blueprints, marketing plans, contracts, building permits, public notices or hearings, zoning requests, and infrastructure development plans. Common Plan of Development is synonymous with “Larger Common Plan of Development”.

         REDEVELOPMENT

         Any development on previously-developed land.

      (A)   Nitrogen and Phosphorus Control Plan Required

         For purposes of this section, nitrogen and phosphorus control plans shall be required for the following:

         (1)   Any activity that, alone or as part of a larger common plan of development or sale, disturbs greater than one (1) acre of land in order to establish, expand, or modify a single-unit or duplex residential development or a recreational facility.

         (2)   Any activity that, alone or as part of a larger common plan of development or sale, disturbs greater than twelve thousand (12,000) square feet of land in order to establish, expand or modify a multifamily residential development or a commercial, industrial or institutional facility.

      (B)   Exemptions

         (1)   For purposes of this section, development or land disturbance shall not include agriculture, mining, or forestry activities.

      (C)   Nitrogen and Phosphorus Export Standards

         (1)   Any activity that is required to submit a nitrogen control plan in the Neuse River Basin must achieve a nitrogen export of less than or equal to three and six-tenths (3.6) pounds per acre per year. Any activity that is required to submit a nitrogen and phosphorus control plan in the Cape Fear River Basin must achieve an export rate of less than or equal to two and two-tenths (2.2) pounds per acre per year of nitrogen and eighty-two hundredths (0.82) pounds per acre per year of phosphorus in the Upper New Hope and four and four-tenths (4.4) pounds per acre per year of nitrogen and seventy-eight hundredths (0.78) pounds per acre per year in the Lower New Hope. If the development contributes greater than three and six-tenths (3.6) pounds per acre per year of nitrogen in the Neuse River Basin, greater than two and two-tenths (2.2) pounds per acre per year of nitrogen and/or eighty-two hundredths (0.82) pounds per acre per year of phosphorus in the Upper New Hope, or greater than four and four-tenths (4.4) pounds per acre per year of nitrogen and/or seventy-eight hundredths (0.78) pounds per acre per year of phosphorus in the Lower New Hope, then the table below explains the options available depending whether the development is residential or non-residential.

 

 

            Once it has been determined that an offset payment is forthcoming, the owner shall furnish the Town with evidence that the payment for the reductions in nitrogen and/or phosphorus has been made prior to the Town's issuance of a grading permit.

      To meet the requirements of the Town of Cary NPDES Phase II Permit any new development or redevelopment as of July 1, 2005, not exempted pursuant to Section 7.3.2(B) must meet either the low density or high density option requirements described below and in the Neuse Rules. New development or redevelopment in the Swift Creek or Jordan Lake Watersheds must meet the requirements of Section 4.4.6 of the LDO. For purposes of this Section 7.3.3, impervious surface area shall be calculated pursuant to Section 4.4.6(D)(2) of the LDO and the provisions of Section 4.4.6(G) of the LDO shall apply to all engineered stormwater control measures.

   There shall be no net increase in peak stormwater run-off flow leaving a development from pre-development conditions for the one (1)-year design storm. New developments are required to minimize damage to subject streams caused by storm flows.

      (A)   Calculation of Peak Flow

         Acceptable methodologies for computing pre- and post-development conditions for the one (1)-year design storm include:

         (1)   The Rational Method (used when the drainage area is two hundred (200) acres or less)

         (2)   The Peak Discharge Method as described in USDA Technical Release Number 55 (TR-55) (drainage area is two thousand (2,000) acres or less)

         (4)   USGS Regression Equations, where applicable

            The same method must be used for both the pre- and post-development conditions.

      (B)   Exceptions to Peak Flow Control

         Developments with less than ten (10) percent net increase in peak flow of the one (1)-year design storm are not required to control peak flow for the one (1)-year storm from the site. However, if the net increase in peak flow from the new development is greater than ten (10) percent, the entire net increase from pre-development one (1)-year design storm peak flow must be controlled.

   All best management practices that are implemented to achieve nitrogen or phosphorus reduction and flow attenuation will require complete legal documentation and a maintenance plan and must comply with all requirements of Section 4.4.6(G), Engineered Stormwater Control Measures.

      To the extent any state or federal law or regulations requires the Town to establish a variance procedure for any requirement of this section 7.3, the variance procedure established in Section 4.4.6(I) of the LDO shall be utilized.

(Ord. No. 05-001, 1-13-05; Ord. No. 05-015, 9-8-05; Ord. No. 06-009, adopted 4-27-06; eff. 4-27-06; Ord. No. 2007-04, 3-22-07; Ord. No. 2008-LDO-01, 9-25-08; Ord. No. 2010-LDO-01, 1-14-10; Ord. No. 2012-LDO-08, 10-11-12; Ord. No. 2013-LDO-02, 6-13-13; Ord. No. 2014-LDO-03, 8-14-14; Ord. No. 2019-LDO-03, 10-10-19; Ord. No. 2019-LDO-02, 11-21-19; Ord. No. 2022-LDO-02, 4-28-22; Ord. No. 2022-LDO-03, 10-27-22; Ord. No. 2023-LDO-02, 3-23-23)

   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 the Town 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.

      (B)   Federal and State environmental regulations may also apply to one or more of the features governed by the standards in Section 7.6.3 below. The intent is for the standards of this section to supplement and complement, not supersede or replace, any applicable Federal and State regulations. If any standard herein conflicts with an applicable Federal or State standard, then the Federal or State standard shall control.

      (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 the Town 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 Town 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 the Town's sanitary sewer system also shall comply with all applicable requirements established in Chapter 19, Article IV of the Code of Ordinances of the Town 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.

      (A)   The Planning Director shall have the authority to determine violations of the standards set forth in this section. The procedures set forth in this section shall be followed prior to the initiation of any enforcement action under Chapter 11 of this Ordinance.

      (B)   Where determination of a violation of these standards requires the use of personnel or instruments not available to the Town, and a violation exists in the opinion of the Planning Director, the following procedures shall be followed:

         (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.

         (2)   After the thirty (30)-day period passes, if a dispute still exists between the Director and the alleged violator regarding the existence of violation, then the alleged violator may appeal to the Zoning Board of Adjustment. The Director shall then transmit to the Zoning Board of Adjustment a copy of the notice given to the alleged violator, along with any recommendations as to alterations, modifications, or securing the services of a consultant to determine whether a standard has been violated. The Zoning Board of Adjustment then shall make a determination as to whether a violation exists.

(Ord. No. 2011-LDO-01, 1-11-11; Ord. No. 2021-LDO-01, 6-28-21; Ord. No. 2023-LDO-04, 11-16-23)

   The review and approval of building design is critical to upholding and promoting high quality development throughout the Town. The purpose of this section is to ensure that proposed developments are designed in a way that promotes compatibility throughout the Town, including within residential developments, within non-residential centers, and between residential and non-residential areas. Specifically, the intent of this Section is as follows:

      (A)   To encourage high quality appearance for developments, thoroughfares, and streets;

      (B)   To provide proper standards that ensure a high quality appearance for Cary, and promote good design while also allowing individuality, creativity, and artistic expression;

      (C)   To encourage the proper use of the land by promoting an appropriate balance between the built environment and preservation/conservation of open space (note that some places may be appropriate for more urban type development and less open space, such as the downtown and other areas designated in the Comprehensive Plan);

      (D)   To preserve and improve property values and protect private and public investment; and

      (E)   To preserve and protect the identity and character of Cary, and to enhance the business economy.

      Except for structures subject to regulation under the North Carolina Residential Code for One- and Two-Family Dwellings, all projects requiring submission of a development plan under Section 3.9 of this Ordinance shall comply with the requirements of this Section. Such projects also must comply with the Town's Community Appearance Manual and the Site Design Standards which provide examples and illustrations of concepts discussed in this Section.

      (A)   Development within Non-Residential Centers

         All proposed buildings within non-residential centers shall be designed to be consistent within the center in terms of architectural design, exterior building materials, colors, and arrangement of buildings and other features. A Statement of Architectural Compatibility (SAC) shall be required prior to the approval of the first development plan within the development; see Section 7.7.4.

      (B)   Development Outside of Non-Residential Centers

         For all other non-residential development located outside of non-residential centers (e.g., subdivisions, buildings on "stand alone" parcels, modifications to existing developments, and infill development), the building design(s) shall be compatible within the subdivision or with adjacent buildings in close proximity to the proposed building. In such cases, a Statement of Architectural Compatibility is not required.

      (C)   Building Placement

         Buildings shall comply with the following standards and those provisions that address building orientation, arrangement, mass, and other elements. All development plans must also follow the provisions in the Town's Community Appearance Manual and Site Design Standards.

         (1)   All buildings must front a street, park, open space, or pedestrian way. A street may be an external roadway adjacent to a property, or a public or private street within a site. Buildings with one (1) double-loaded bay of parking between them and a street count as being sited to front a street. In addition, in non-residential centers, ten (10) acres or more in size within Mixed Use Overlay Districts, a majority of the tenant spaces forty thousand (40,000) square feet or less must be located on a double fronted street with no more than one hundred eighty (180) feet between buildings. For infill or redevelopment sites, buildings may front adjacent public streets in lieu of the double-loaded requirement.

         (4)   Buildings on adjacent outparcels must be grouped adjacent to one another in groups of two (2) or more. Grouped outparcel buildings must be sited no more than one hundred (100) feet apart.

      (D)   Review Considerations

         The approval authority may consider alternative colors and designs for buildings provided that they meet the intent of this section. The approval authority should consider criteria such as the intensity of the colors, the extent of the design difference and the spatial separation of each building.

      A Statement of Architectural Compatibility (SAC) shall be included with all development plans for buildings within a non-residential center, and shall be submitted with the first development plan submission (see Section 3.9) on the application form specified in the Community Appearance Manual. The Planning Director shall consider the SAC as part of the development plan review. The SAC shall include:

      (A)   Primary physical characteristics including predominant color(s), exterior materials and architectural features;

      (B)   Primary landscape theme (general, not specific);

      (C)   Building height and placement;

      (D)   Lighting elements (general);

      (E)   Other elements which may be relevant to a specific development and how they are compatible with the adjacent sites; and

      (F)   Master Sign Plan (general).

         The SAC shall designate the unifying elements that are to be incorporated within the entire project (including any outparcel) and specifically how these elements are to be used.

      (A)   Primary Color(s)

         A maximum of three (3) predominant colors shall be designated as a primary unifying element (this does not include accent colors). Flexibility may be used to allow additional colors and/or a range of predominant colors provided that these colors are in the same family of colors (similar to each other). Any color specified as a primary unifying element shall be dominant in the building facade. Color "samples" shall be provided to the staff at the time of development plan review. Colored renderings may be required, but shall not be a substitute for this requirement. In addition to listing the color(s), the SAC shall also describe how and where the color will be used. It is recognized that the same color on a different material may not match exactly.

      (B)   Accent Colors

         These colors may be used as a secondary unifying element provided they are used throughout the development. Non-illuminated accent bands (e.g. canopies with gas stations and the roof of fast food buildings on roofs, canopies, or other features shall be one (1) of the primary colors of the development or be white or earth tone in color.

      (C)   Exterior Materials

         The dominant material or combination of materials shall be defined. For each building material selected, the color of that material shall also be defined.

      (D)   Architectural Features

         Architectural features refer to a number of building elements that are repeated throughout the development. These include, but are not limited to: roof lines, canopies, building ornamentation, patterns, and building form. Any architectural feature designated as a unifying element throughout all buildings shall contribute to the identity of the development and not be just a minor architectural detail.

         (1)   Use of Awnings

            No awnings/canopies shall be internally lit. All awnings/canopies shall utilize the same design and color throughout the development.

         (2)   Roof Type

            Outparcels may use a different roof type (e.g., pitch vs. flat) than the main buildings within centers provided that the building on the outparcel is a size where the different roof type does not dominate the center and/or the roof type has a tie to the other buildings (e.g., mansard roofs).

         (3)   Detached Canopies

            Detached canopies are subject to the provisions of the Community Appearance Manual, including color and roof pitch requirements.

      (E)   Landscaping

         Plant materials may be used in such a way as to reinforce compatibility depending on the type of plant materials selected and their placement on the site. This previous statement is not intended to limit creative landscape designs within the center, but to promote general compatibility in materials. Drought tolerant or native species (including trees, shrubs, and turf grasses) that do not require extensive watering are strongly recommended.

      (F)   Setbacks and Building Placement

         The use of common setbacks and building orientation from a street right-of-way may be an appropriate unifying element where a number of freestanding buildings occur within the development.

      (G)   Building Height

         A standard height among a group of buildings can usually tie the buildings together visually.

      (H)   Lighting

         A consistent type of lighting fixture repeated throughout the development as well as a similar wattage, height, type of light produced and/or color of light are to serve as a unifying element. Light pole height, wattage, pole/fixture/light color should all be the same.

      Where non-residential development plans or residential multi-family development plans are approved, no lots shall be recorded without noting the general requirements for architectural compatibility on the maps for recordation. Owners of properties with non-residential development plans which include outparcel lots are strongly recommended to record architectural compatibility covenants which refer to these requirements on record in the Planning Department. These covenants shall run with the land and be administrated by a property owners' association or similar organization.

      (B)   Any revision to the SAC that involves a change in the primary characteristics of an existing development (such as a change in color or addition of a canopy) shall be reviewed and approved by those with the authority to approve plans and all owners of property falling under the SAC governance. Any change in primary or secondary characteristics shall be implemented comprehensively throughout the entire development including outparcels within a reasonable time frame (i.e., less than one year unless otherwise approved by the Planning Director). Any approved changes shall meet the criteria of Section 7.7.5.

(Ord. No. 06-009, adopted 4-27-06; eff. 4-27-06; Ord. No. 2008-LDO-01, 9-25-08; Ord. No. 2012-LDO-06, 8-9-12; Ord. No. 2013-LDO-02, 6-13-13; Ord. No. 2017-LDO-01, 1-24-17; Ord. No. 2021-LDO-01, 6-24-21; Ord. No. 2023-LDO-03, 6-22-23; Ord. No. 2023-LDO-04, 11-16-23)

   In order to relieve traffic congestion in the streets, to minimize any detrimental effects of off-street parking areas on adjacent properties, to ensure the proper and uniform development of parking areas throughout the Town, and to support opportunities for development and redevelopment of businesses in the portions the town center with the most intensive development potential, off-street parking and loading spaces for each land use shall be provided in accordance with the standards established in this section.

      (A)   Applicability

         (1)   Except as provided in Section 7.8.2(A)(2) below, each use or establishment within the Town shall initially and continually provide sufficient off-street parking spaces, in compliance with the requirements of this section, for all residents, employees, customers, visitors, and others who may spend time at the use or establishment.

      (B)   Effect on New and Existing Uses

         (1)   Parking Spaces Required

            Permanent off-street parking spaces shall be provided as specified by this section for all uses occupying land or facilities (or portions thereof). Such parking spaces may be provided in a parking garage. The requirements of this section shall be met:

            (a)   At the time a Certificate of Occupancy is issued for a building or structure in which an approved use takes place;

            (b)   At the time any principal or ancillary use or building is enlarged or increased in capacity, such as by adding dwelling units, guest rooms, seats, floor area, or other units of measurement used in Table 7.8-1, which follows; or

            (c)   Before conversion from one (1) type of use or occupancy to another, or any change in the manner in which the use is constructed that would result in additional parking requirements.

         (2)   Certification

            Each development plan that is submitted for approval shall include information as to the number, location, and dimensions of all off-street parking and loading spaces and the means of ingress and egress to such spaces. This information shall be illustrated in sufficient detail to indicate whether the requirements of this Section are met. In those cases where no development plan is required, the applicant must show that the number of parking spaces and the design and construction of all parking areas meet the requirements of this Section in order to receive a Certificate of Occupancy.

         (3)   Timing of Construction

            (a)   Except as provided in paragraph (B)(2) above, all parking areas required under this Section shall be completed prior to the issuance of a Certificate of Occupancy for the use or uses that they serve.

            (b)   Parking areas for phased development projects shall be provided in accordance with Table 7.8-1.

      (C)   Computation of Off-Street Parking Requirements

         (1)   Calculations

            When measurements of the number of required spaces result in fractions, the space requirements shall be rounded upward to the next highest whole number.

         (2)   Different Use Areas

            Except as provided for in this chapter, parking shall be calculated separately for each different use area in a building or on a site, including all ancillary uses.

         (3)   On-Street Parking

            Except as provided for in this chapter, on-street parking within public or private streets, driveways, or drives, shall not be used to satisfy the off-street parking requirements prescribed by this section, except for townhouse developments. Townhouses may count delineated, on-street parking spaces within the development towards their visitor parking requirements.

         (5)   Parking Based on Seating

            When requirements use seating as a unit of measurement, all calculations shall be based on the design capacity of the areas used for seating.

         (6)   Parking Based on Floor Area

            Except as provided for in this Section, when requirements use amount of square footage in buildings as a unit of measurement, all calculations shall be based on gross floor area .

         (7)   Parking Based on Students, Staff, and Occupants

            Except as provided for in this chapter, when requirements use number of students, staff, or occupants as a unit of measurement, all calculations shall be based on the maximum enrollment, the largest number of persons working on any single shift, or the maximum fire-rated capacity, whichever is applicable and results in the greater number of required spaces.

            (b)   All parking required by Table 7.8-1 shall be located directly at the dwelling unit for which the parking is intended, or not more than two hundred (200) feet away from the dwelling unit. Adequate off street pedestrian access shall be provided between the required parking space(s) and the dwelling unit. With appropriate justification, this distance may be increased by the Planning Director.

               Visitor parking for townhouses shall not be more than three (300) feet from the dwelling unit(s) for which it is provided to serve. These spaces may be provided via delineated on-street or off-street parking spaces.

         (9)   Parking for Unlisted Uses

            Parking requirements for uses not specifically listed in Table 7.8-1 shall be determined by the Planning Director based on the requirements for the closest comparable use, as well as on the particular parking demand and trip generation characteristics of the proposed use. The Planning Director may alternately require the submittal of a parking demand study that justifies estimates of parking demand based on the recommendations of the Institute of Traffic Engineers (ITE), and includes relevant data collected from uses or combinations of uses that are the same or comparable to the proposed use in terms of density, scale, bulk, area, type of activity, and location.

         (10)   Unimpeded Parking

            Generally, no parking spaces shall be located so as to require the moving of any vehicle on the premises in order to enter or leave any other space. Notwithstanding the above, the Planning Director may allow stacking spaces provided for auto-related uses to count toward the minimum required parking, as long as such spaces are not part of areas required for site ingress or egress, or areas intended for fueling.

      (D)   Required Off-Street Parking Spaces

         (1)   Schedule "A"

            Unless otherwise expressly stated in this Ordinance, off-street parking spaces shall be provided in accordance with Table 7.8-1. Off-street parking spaces for uses within the Town Center District shall be provided according to Section 6.1.3 of this Ordinance. For uses classified as commercial, the number of motor vehicle spaces shown on the table shall be considered the maximum allowed for such uses. Exceptions to the maximum parking allowed may be approved if justified in accordance with Section 7.8.2(C)(4).