AGENDA# 4c
MEMORANDUM
TO: Mayor and Town Council
FROM: W. Calvin Horton, Town Manager
SUBJECT: Amendments to the Chapel Hill Soil Erosion and Sedimentation Control Ordinance
DATE: January 10, 2000
Adoption of the attached amendments would revise sections of the Chapel Hill Soil Erosion and Sedimentation Control Ordinance (the “Ordinance”) regarding penalties, appeals, and inspections. A new section requiring performance bonds and a new section concerning restoration of areas affected by sedimentation would also be adopted.
A Public Hearing was held on November 15, 1999, to consider these proposed amendments to the Ordinance. The proposed amendments are in response to a March 1999 resolution by the Town Council directing the Manager to prepare proposed revisions to the Ordinance regarding enforcement and penalties for violations of soil erosion and sedimentation control regulations.
We recommend revising the Ordinance [Section 5-103(a)] to increase the maximum penalty of $500 per violation to $5,000 per violation, with each day of a continuing violation constituting a separate penalty.
We also recommend that a new section [Section 5-104.1] titled “RESTORATION OF AREAS AFFECTED BY FAILURE TO COMPLY WITH TOWN SOIL EROSION AND SEDIMENTATION REGULATIONS” be added to the Ordinance. The purpose of this section would be to require that those who are engaged in land-disturbing activities and who fail to retain sediment generated by the activity must restore the water and land affected by the failure. Restoration would be limited to land owned or controlled by those who are conducting the land-disturbing activity.
Another new section [Section 5-97.1] titled “BONDS” is being recommended. These bonds could provide some financial security to increase the probability of restoration of ponds and streams if approved soil erosion and sedimentation control devices fail to adequately retain sediment generated by land-disturbing activities. However as noted previously, we think that the bonds could only be used to restore lands or waters included within the limits of approved Soil Erosion and Sedimentation Control Plans.
We are also recommending amendments to Sections 5-100 [Appeals] and 5-102 [Inspections and Investigations] of the Ordinance to streamline the current process and make it less cumbersome and time consuming for both the Town and the appellant.
The following summarizes issues and questions raised at the November 15, 1999 Public Hearing:
2. Issue: Would the proposed revisions to Section 5-100 Appeals change the role or responsibilities of the Orange County Sedimentation and Erosion Control Officer?
. Comment: We do not believe that these proposed revision would change the duties or responsibilities of the Orange County Erosion Control Officer. These proposed changes would simply streamline the process when decisions made by the Orange County Erosion Control Officer are appealed to the Town.
3. Issue: Would the proposed changes to Section 5-102 Inspections and Investigations (where the wording is changed from “erosion control officer” to “Town Manager or his designee”) transfer authority from the Erosion Control Officer to the Town Manager?
Comment: This proposed change in wording would conform with the standard wording of other Town ordinances. The Town Manager is responsible for all Town ordinances, and he can designate others to administer ordinances for him. The Orange County Soil Erosion and Sedimentation Control Officer would continue to administer the Ordinance as he does now.
Comment: The revisions proposed in Section [5-103(a)] of the Ordinance would provide for penalties (fines) up to $5,000 per day, with each day of a continuing violation constituting a separate penalty. The $5,000 amount is the maximum daily civil penalty allowed by State Statute for soil erosion and sedimentation control violations.
That the Council adopt the attached ordinance which would amend the Chapel Hill Soil Erosion and Sedimentation Control Ordinance regarding penalties, appeals, and inspections; and would add new sections requiring performance bonds and restoration of areas affected by sedimentation.
ATTACHMENT
1. Public Hearing Agenda Item #4; November 15, 1999. (begin new page 1)
BE IT ORDAINED by the Council of the Town of Chapel Hill as follows:
Section 1. Section 5-100 of the Town Code is hereby revised to read as follows:
Except as
provided in subsection (b) hereinbelow of this division, the The
appeal of a disapproval or approval with modifications or conditions of
approval of a plan shall be governed by the following provisions:
(1) The disapproval of, modification of, or
conditions of approval attached to any proposed erosion control plan Soil
Erosion and Sedimentation Control Plan
by the erosion control officer shall entitle the person submitting the plan
to an appeal of the decision to the Town Manager. If the Town Manager upholds the decision, the person shall be
entitled to a public hearing if such person submits written demand for a
hearing within 15 days after receipt of written notice of disapproval,
modification, or conditions of approval.
a. Hearings held pursuant to this section shall be conducted by the Chapel Hill Planning Board within thirty (30) days after receipt of written demand for such hearing is made by the person submitting the plan.
b. The Planning Board shall make recommendations to the Council with thirty (30) days after the date of the hearing on such erosion control plan.
c. The Council will render its final decision on any erosion control plan upon which a hearing is requested within thirty (30) days of receipt of the recommendations from the Planning Board.
(2)
In the event that the Council Manager upholds the disapproval, modification
or conditions of approval of a proposed erosion control plan following the
hearing, Soil Erosion and Sedimentation Control Plan, the person submitting the erosion
control plan shall be entitled to appeal the local government’s Manager’s action to the North Carolina
Sedimentation Control Commission as provided in Section 113A-61(c) of the
General Statutes and Title 15A NCAC 4B.0018(d).
Section 2. Section 5-102 of the Town Code is hereby revised to read as follows:
(a) Site Inspections. Agents, officials, or other qualified persons authorized by the Town will periodically inspect the sites of land-disturbing activity to determine:
(1) Compliance with the Act, this Ordinance, or rules or orders adopted or issued pursuant to this Ordinance;
(2) Whether the activity is being conducted in accordance with an approved plan; and
(3) Whether the measures required in the plan are effective in controlling erosion and sediment resulting from land-disturbing activity; and
(4) Whether restoration measures are necessary due to the failure to control erosion and/or sedimentation.
Notice of the right to inspect shall be included in the notification of plan approval.
(b) Notice of Violation. If, through inspection, it is determined that a person engaged in land-disturbing activity has failed to comply with the Act, this Ordinance, or rules or orders adopted or issues pursuant to this Ordinance, or has failed to comply with the approved plan, a Notice of Violation shall be served upon that person by registered or certified mail, return receipt requested, or other means reasonably calculated to give actual notice. The Notice shall set forth the measures necessary to achieve compliance with the plan, specify a reasonable time period within which such measures must be completed, and warn that failure to correct the violation within the time period will result in the assessment of a civil penalty or other enforcement action. However, no time period for compliance need to be given for failure to submit an erosion control plan for approval, or for obstructing, hampering, or interfering with an authorized representative while in the process of carrying out their official duties. If the person engaged in land-disturbing activity fails to comply within the time specified, enforcement action shall be initiated.
In the event service cannot be accomplished by registered or certified mail, it may be accomplished in any manner provided in rule (4)j of the North Carolina Rules of Civil Procedure.
(c) The
erosion control officer Town Manager or his designee shall have the power to conduct such
investigations as he may reasonably deem necessary to carry out his duties as
prescribed in this Ordinance, and for this purpose to enter at reasonable times
upon any property, public or private, for the purpose of investigating and
inspecting the sites of any land-disturbing activities. No person shall refuse entry or access to
any authorized representative or agent of the Town who requests entry for
purposes of inspection, and who presents appropriate credentials, nor shall any
person obstruct, hamper or interfere with any such representative while in the
process of carrying out his official duties.
(d) The
erosion control officer Town Manager or his designee shall have the power to require written
statements, or the filing of reports under oath, with respect to pertinent
questions relating to land-disturbing activities.
(e) The
erosion control officer Town Manager or his designee shall have
the power to revoke grading permits issued by the Erosion Control Division as
provided for under Section 5-97(c) of this Ordinance.
(f) Whenever
any person is violating this Ordinance or any rule or order adopted or issued
pursuant to this Ordinance, or any term, condition, or provisions of any
approved erosion control plan, the erosion control officer Town
Manager or his designee may,
either before or after the institution of any action or proceeding
authorization by this Ordinance, issue a Stop Work Order for the site on which
the violation has occurred. Upon
issuance of such an order and the posting of same on the site of the violation,
all work on the site of the violation shall cease, except those activities
necessary to bring the site into compliance with this Ordinance. Notice of the Stop Work Order shall be in
writing, directed to the person conducting the land-disturbing activity and
shall state the reasons for issuance of the Order, and the conditions under
which work may be resumed. Notice shall
be given by registered or certified mail.
In the event service cannot be accomplished by registered or certified mail, it may be accomplished in any manner provided in rule 4(j) of the North Carolina Rules of Civil Procedure.
The
person conducting the land-disturbing activity may appeal a Notice of
Violation or Stop Work Order to the Council Town Board of
Adjustment within a period of five (5) (30) thirty days after
the Order is issued. Notice of appeal Application for appeal
shall be given in writing to the Council Town Board of Adjustment, with a copy to the erosion control officer Town Manager
or his designee. The Council Town Board of
Adjustment shall conduct a hearing at its next scheduled meeting, at which
the appellant and the erosion control officer or inspector Town
Manager or his designee shall be permitted to submit relevant evidence, and
shall rule on the appeal as expeditiously as possible. Pending the ruling by the Council Town
Board of Adjustment on an appeal, no further work shall take place in violation of a Stop Work Order.
(g) Applications for appeal shall be filed
with the Town Manager and the Town Manager shall prescribe the form(s) on which
applications are to be made, as well as any other material which may reasonably
be required to make the determinations called for in the particular case, with
sufficient copies for necessary referrals and records.
No application shall be accepted by the Town Manager
unless it complies with such requirements.
Applications which are not complete shall be returned forthwith to the
applicant, with a notation of the deficiencies in the application.
On receipt of a complete application, the Town
Manager shall transmit the application to the Board of Adjustment. In the case of applications for appeal, the
Town Manager shall also transmit to the Board all documents constituting the record
on which the decision being appealed was based.
(h) After
its receipt of an application for appeal, the Board of Adjustment shall hold a
public hearing on the application at its next available regularly scheduled
meeting.
Notice of the date, time, and place of the public
hearing shall be published in a newspaper of general circulation in the
planning jurisdiction once a week for two (2) successive weeks, with the first
notice to be published not less than ten (10) nor more than twenty-five (25) days
prior to the date of the hearing.
The public hearing shall be open to the public and
all interested persons shall be given the opportunity to present evidence and
arguments and to ask questions of persons who testify. The Board may place reasonable and equitable
time limitations on the presentation of evidence and arguments and the cross
examination of witnesses so that the application may be heard without undue
delay. All persons who intend to
present evidence at the public hearing shall be sworn.
A record of the proceedings of the hearing shall be
made and shall include all documentary evidence presented at the hearing.
(i) After
completion of the public hearing, the Board of Adjustment shall take action on
the application.
In the case of applications for
appeal, such action shall be to reverse, or affirm (wholly or partly), or
modify the decision being appealed.
In every case, the record of the action of the Board
shall include a summary of its findings and the evidence supporting them.
(j) The
Town Manager shall notify the applicant of the Board’s decision in writing
within ten (10) days of the rendering of the Board’s decision and shall file a copy of it with the Town’s
Planning Department.
(k) A
decision of the Board of Adjustment on an application for appeal may be
appealed to the Superior Court by an aggrieved party. Such appeal shall be in the nature of certiorari and must be
filed within thirty (30) days of the filing of the Board’s decision in the
Town’s Planning Department or the delivery of notice of the Board’s decision to
the applicant.”
Section 3. Section 5-103 of the Town Code is hereby revised as follows:
“Sec. 5-103. Penalties.
(a)
Civil penalties.
(1)
Assessment of penalties. Any person who violates any of the provisions of this division or
rules or orders adopted or issued pursuant to this division, or who initiates
or continues a land-disturbing activity for which an erosion control plan is
required except in accordance with the terms, conditions, and provisions of an
approved plan, shall be subject to a civil penalty of five thousand dollars
($5,000.00) five hundred dollars ($500.00) except that the penalty
for failure to submit an erosion control plan shall be as provided in
subparagraph (3) of this section. No
penalty shall be assessed until the person alleged to be in violation has been
notified of the violation has been notified of the violation by registered or
certified mail, return receipt requested, or other means reasonably calculated
to provide actual notice to the offender.
The notice shall describe the violation with reasonable particularity,
specify a reasonable time period within which the violation must be corrected.
And warn that failure to correct the violation must be corrected, and warn that
failure to correct the violation within the time period will result in the
assessment of a civil penalty or other enforcement action. If, after the allotted time period has
expired, the violator has not completed corrective action, a civil penalty may
be assessed from the date of receipt of the notice of violation. However, no time period for compliance need
to be given for failure to submit an erosion control plan for approval or for
obstructing, hampering or interfering with an authorized representative while
in the process of carrying out his official duties. Each day of a continuing violation shall constitute a separate
violation under this subparagraph.
(2) Demand for payment of penalty. The Town Manager shall make written demand for payment upon the person responsible for the violation, and shall set forth in detail a description of the violation for which the penalty has been invoked. Notice of the assessment shall be by registered or certified mail or other means reasonably calculated to give actual notice. If payment is not received or equitable settlement reached within thirty (30) days after demand for payment is made, the matter shall be referred to the town or county attorney for institution of a civil action in the name of the town or county in the appropriate division of the general courts of justice for recovery of the penalty. Such civil actions must be filed within three (3) years of the date the final decision was served on the violator.
(3) Any person who fails to submit an erosion control plan for approval pursuant to this division shall be subject to a single, noncontinuing civil penalty of one thousand dollars ($1000.00). Any person who is subject to a civil penalty under this subdivision may be subject to additional civil penalties for any violation of any violation of any other provision of this division or any rule or order adopted or issued pursuant to this division by the Town of Chapel Hill.
(4) Civil penalties collected pursuant to this division shall be used or disbursed as directed by G.S. 113A-64(a).
(b) Criminal penalties. Any person who knowingly or willingly violates any provision of this division or rule or order adopted or issued pursuant to this division, or who knowingly or willfully initiates or continues a land-disturbing activity for which an erosion control plan is required except in accordance with the terms, conditions, and provisions of an approved plan shall be guilty of a misdemeanor punishable by imprisonment not to exceed ninety (90) days or by a fine not to exceed five thousand dollars ($5,000.00), or by both, at the discretion of the court.”
Section 4. Article V, Chapter 5 of the Town Code of Ordinances is hereby amended by adding a new Section 5-97.1 to read as follows:
“Sec. 5-97.1. Bonds.
All parties engaged in
land-disturbing activities on a tract comprising more than one acre, if more
than one acre is uncovered, shall provide a performance bond or other financial
guarantee as appropriate, in an amount satisfactory to the Town Manager, to
cover the restoration of failed or failing soil erosion and sedimentation
control measures and/or of areas affected by the failure to control soil
erosion and sedimentation generated by the land-disturbing activities and as
required by the approved Soil Erosion and Sedimentation Control Plan.”
Section 5. Article V, Chapter 5 of the Town Code of Ordinances is hereby amended by adding a new Section 5-104.1 to read as follows:
“Sec. 5-104.1 Restoration of area affected by failure to
comply with Town Soil Erosion and Sedimentation Regulations.
All
parties engaged in land-disturbing activity on a tract comprising more than one
acre, if more than one acre is uncovered, and fails to retain sediment
generated by the activity, as required by the approved Soil Erosion and
Sedimentation Control Plan, shall restore the waters and/or land affected by
the failure so as to minimize the detrimental effects of the resulting
pollution by sedimentation. The
institution of an action to restore areas affected by failure to comply shall
not relieve any party to such action from any civil or criminal penalty
prescribed for violation of this Ordinance.”
Section 6. This ordinance shall become effective upon adoption.
This the 10th day of January, 2000.