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1999-10-18 Work Session NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 27 MINUTES OF WORK SESSION, TEXT AMENDMENT TO CLARIFY PAGE 600 DENSITY ALLOCATION ON LAND CLASSIFIED AS CONSERVATION FOR PERFORMANCE SUBDIVISIONS,OCTOBER 18, 1999 ASSEMBLY The New Hanover County Board of Commissioners held a Work Session on Monday, October 18, 1999, at 2:00 p.m. in the Assembly Room of the New Hanover County Courthouse, 24 North Third Street, Wilmington, North Carolina. Members present were: Commissioner Buzz Birzenieks; Commissioner Ted Davis, Jr.; Commissioner Charles R. Howell; Vice-Chairman Robert G. Greer; Chairman William A. Caster; County Manager, Allen O’Neal; County Attorney Wanda M. Copley; and Clerk to the Board, Lucie F. Harrell. Chairman Caster called the meeting to order and reported the purpose of the Work Session was to discuss a text amendment regarding the clarification of density on land classified “Conservation” for performance subdivisions. He requested Planning Director Dexter Hayes to present a report. PRESENTATION ON CONSERVATION PERFORMANCE SUBDIVISIONS Director Hayes reported that the purpose of the proposed text amendment was to clarify how density can be allocated in the Conservation classification and to what extent the natural area and topography can be modified to better protect the environment. He advised that after a study of the issue, the following options were presented by the Planning Board and Planning Staff: Option 1: Planning Staff Recommendation 11.C: Residential units shall not be clustered at a density greater than 2.5 units per acre in areas classified Conservation, Rural or Resource Protection in the Wilmington-New Hanover Land Use Plan, except under the following circumstances: If a development encompasses Resource Protection, Rural areas, or Conservation areas, then density may exceed 2.5 units per acre in the Resource Protection or Rural area, provided the number of units in the Conservation area is reduced by an equal amount. At no time shall any portion of the project classified conservation exceed the 2.5 units per acre limitation, nor shall the overall density of the project exceed the limit specified in the respective residential zoning districts. For the purposes of this section, the Conservation Area shall include all lands following their natural topography that are at or below the 100-year flood elevation as shown on the Flood Insurance Rate Map and upland of any marsh line. Option 2: Planning Board Recommendation 11.C: In an effort to lessen environmental impacts, promote less impervious surface and to preserve more natural areas, residential units may be clustered at a density greater than 2.5 units per acre in areas classified Conservation or Resource Protection as long as: (1) the overall density of the project does not exceed the limits specified in the respective residential zoning district; (2) the overall density of the clustered units does not exceed the total units allowed in the Conservation or Resource Protection areas; and (3) the clustering of the allowed units does not create the negative impacts that this section seeks to eliminate. For the purpose of this section, the Conservation Area shall include all lands at or below the 100- year flood elevation or as they may be more precisely determined in the future. Filling to alter the designated Conservation Area is allowed subject to: (1) said fill is not being prohibited through a state or federal agency that has jurisdiction over the area; (2) said fill is confined to non-wetland areas; (3) said fill avoids conservation resources as defined by Section 59.4-3 (1&2) unless permitted as stated above; and (4) said fill avoids other conservation or environmentally sensitive areas that may be more precisely defined in the future. The 100-year flood elevation in addition to any conservation area(s) that may be more precisely defined in the future, must be accurately located by the property owner’s Registered Professionals NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 27 MINUTES OF WORK SESSION, TEXT AMENDMENT TO CLARIFY PAGE 601 DENSITY ALLOCATION ON LAND CLASSIFIED AS CONSERVATION FOR PERFORMANCE SUBDIVISIONS,OCTOBER 18, 1999 and must appear on the final recorded plat of the area. Director Hayes explained that the Planning Board felt the proposed wording would protect the environment through clustering of units. It only allows units to be clustered in the Conservation Area that are already allowed in that area under current regulations (2.5 units per acre). It also provides for a review provision that would allow for clustering, if clustering eliminates the negative impacts that spacing units 2.5 units per acre would create. This wording would allow filling of areas when permitted by CAMA or the U. S. Army Corps of Engineers or when the areas have no environmental significance other than elevations. It further leaves room for the Conservation Area to be more precisely defined, which should be a future goal. Director Hayes explained that the wording proposed by the Planning Staff is based upon the premise that lower density combined with minimal land disturbance in these areas reduces threats to public safety, threats of damaging flooding, and promotes improved environmental quality by retaining greater volumes of vegetation on the tract. Director Hayes presented the following benefits and tools of floodplain management: 1. Flood Storage and Conveyance ? Minimize floodplain fills and other actions that require fills, such as construction of dwellings, factories, highways, etc. ? Require that structures and facilities near wetlands provide for adequate flow circulation. ? Use minimum grading requirements to save as much of the site as possible from compaction. ? Relocate non-conforming structures and facilities outside the floodplain. ? Return sites to natural contours. ? Preserve natural drainage when designing and constructing bridges. ? Prevent intrusions on and destruction of wetlands, beach and estuarine ecosystems, and restore damaged dunes and vegetation. 2. Water-Quality Maintenance ? Maintain wetland and floodplain vegetation buffers to reduce the build-up of sediments and the delivery of chemical pollutants. ? Support agricultural practices that minimize nutrient flows into water bodies. ? Control urban runoff and point and non-point discharges of pollutants. ? Support methods used for grading, filling, soil removal, replacement, etc. to minimize erosion and sedimentation. ? Restrict the location of potential pathogenic and toxic sources on the floodplain, such as sanitary landfills, septic tanks, heavy metal wastes, etc. 3.Groundwater Recharge ? Require the use of permeable surfaces where practicable and encourage the use of detention/retention basins. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 27 MINUTES OF WORK SESSION, TEXT AMENDMENT TO CLARIFY PAGE 602 DENSITY ALLOCATION ON LAND CLASSIFIED AS CONSERVATION FOR PERFORMANCE SUBDIVISIONS,OCTOBER 18, 1999 ? Design construction projects that eliminate, reduce, or hold back runoff. ? Dispose of spoils and solid waste materials to avoid contaminating groundwater and surface water or to avoid significantly changing land contours. 4.Living Resources and Habitats ? Identify and protect wildlife habitats and other vital ecologically sensitive areas from disruption. ? Require topsoil protection programs during construction. ? Restrict wetlands drainage and channelization. ? Re-establish damaged floodplain ecosystems. ? Manage timber harvesting and vegetation removal. 5.Cultural Resources ? Provide public access to and along the waterfront for recreation, scientific study, educational instruction, etc. ? Locate historical and cultural resources and preserve them from harm. Subdivision Design Hierarchy Level 1: Conservation Subdivision Plan with no lots in the floodplain. Level 2: Portion of Lots in Floodplain: Each lot should have a buildable area on natural high ground. Level 3: Lots Entirely in Floodplain: Fill only to provide building sites and road access. Level 4: Lots Partially or Entirely in the Floodplain: Clustering is recommended on area of shallowest flooding. The following examples were presented: Existing Building Site: 10 acres 7 acres outside of the floodplain 3 acres in the floodplain/conservation area 8 units permitted inside the floodplain 2.5 dwelling units per acre 25 Total Lots Cluster Development: 10 acres 7 acres outside of the floodplain 3 acres in the floodplain/conservation area 8 units permitted inside the floodplain 2.5 dwelling units per acre 25 Total Lots Note: (1)Open space/access to and views of conservation area. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 27 MINUTES OF WORK SESSION, TEXT AMENDMENT TO CLARIFY PAGE 603 DENSITY ALLOCATION ON LAND CLASSIFIED AS CONSERVATION FOR PERFORMANCE SUBDIVISIONS,OCTOBER 18, 1999 (2)Entire conservation area preserved. (3)Natural filtration provided by undisturbed conservation area. Conventional Development 10 acres 7 acres outside of the floodplain 3 acres in the floodplain/conservation area 8 units permitted inside floodplain 2.5 dwelling units per acre 25 total lots Note : (1)Several areas of the floodplain are disturbed for individual buildings and driveways. Performance Development with Clustering in the Floodplain - Option 1 Illustration: 10 acres 7 acres outside of the floodplain 3 acres in floodplain/conservation area 8 units permitted inside the floodplain 2.5 dwelling units per acre 25 total lots Note: (1)8 units/lots clustered within the floodplain. (2)Less floodplain disturbance. Cluster Development - Option 1 Illustration: 10 acres 7 acres outside the floodplain 3 acres in floodplain/conservation area 8 units permitted inside floodplain 2.5 dwelling units per acre 25 total lots Note: (1)Allows filling in the floodplain for building footprints. (2)Minimal disturbance to the floodplain with 8 units clustered in the floodplain and all others outside the floodplain. Vice-Chairman Greer inquired as to why this density development was different from the projects constructed by Nathan Sanders. Planning Director Hayes responded that the original Conservation Area in its natural condition before development had been modified. This did not make a difference in calculating the number of units, but it did make a difference in where the units were located on the property. The purpose of the proposed text amendment is limit the risk to the environment. Cluster Development Concentrated in the Floodplain - Option 2 Illustration: 10 acres 7 acres outside of the floodplain 3 acres in floodplain/conservation area 8 units permitted inside the floodplain 2.5 dwelling units per acre 25 total lots NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 27 MINUTES OF WORK SESSION, TEXT AMENDMENT TO CLARIFY PAGE 604 DENSITY ALLOCATION ON LAND CLASSIFIED AS CONSERVATION FOR PERFORMANCE SUBDIVISIONS,OCTOBER 18, 1999 Note: (1)Modification of floodplain to allow development in sensitive areas. (2)This decreases natural filtering of the undisturbed floodplain. (3)Channelizes floodwater downstream. (4)Places more units closer to mean high water line which creates a greater environmental risk. A lengthy discussion followed on the high density. Planning Director Hayes explained that if the density is controlled, the amount of damage to the environment will be reduced. Commissioner Davis asked if a floodplain is filled in, does this remove the land from the Conservation Area. Planning Director Hayes responded that the land would not be removed from the conservation classification. Under the proposed regulations, the Conservation Area is defined as the natural topography of the site prior to development. If the site is modified and elevations are changed, a review will still be made on the pre-existing topography before construction can begin on the site. This will allow modifications to individual homes. If the natural line is utilized, there is no incentive to fill other than what is required for building the units. The goal is to keep the resource away from the floodplain area. Commissioner Howell said after studying the two options, it does not appear that any of them really protect the environment. He stated unfortunately most people have constructed single-family dwellings on the waterfront with sites that have been filled and landscaped, which does not protect the environment. Planning Director Hayes agreed and noted it will be critical to limit the density to 2.5 acres. Chairman Caster commented on reading a letter in the newspaper from FEMA Director James Lee Whitt that recommended prohibiting the filling in of floodplains, and he requested Director Hayes to comment on this statement. Planning Director Hayes responded that FEMA is suggesting to counties throughout the country to keep floodplains open with no modifications so these areas can absorb water when flooding occurs. Commissioner Howell stated that he felt Mr. Whitt was referring to floodplains located near the Northeast Cape Fear River and Holly Shelter Creek where severe flooding occurred during Hurricane Floyd. These floodplains should not be filled or modified because they serve as areas for escape and storage of flood water. The area around the Lower Cape Fear River is different because the river is wide and empties into the ocean. In areas such as Smith Creek, the floodplain should not be modified or filled for any type of construction. Commissioner Birzenieks asked Director Hayes if development should be prohibited in floodplain areas. Planning Director Hayes said with the amount of vacant land in the floodplain, the Board should consider limiting development and impervious coverage in lieu of prohibiting development in the floodplain. New Hanover County is a desirable place to live, and people want to move to the area; however, vacant land is becoming sparse. Commissioner Davis asked when the conservation line would be determined. Planning Director Hayes responded that the conservation line would be determined after development plans are submitted. NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 27 MINUTES OF WORK SESSION, TEXT AMENDMENT TO CLARIFY PAGE 605 DENSITY ALLOCATION ON LAND CLASSIFIED AS CONSERVATION FOR PERFORMANCE SUBDIVISIONS,OCTOBER 18, 1999 Vice-Chairman Greer asked if these restrictions would apply to the unincorporated Wilmington/Hanby Beach area. Planning Director Hayes explained that New Hanover County’s jurisdiction stops at Snow’s Cut Bridge. The Towns of Carolina Beach and Kure Beach have extraterritorial jurisdiction, which means their zoning regulations apply to the Wilmington/Hanby Beach area. He noted that oceanfront development was unique and stated more restrictions should be placed on the backside of these barrier islands to better protect the environment. Vice-Chairman Greer asked Director Hayes which option recommended would be the best way to protect the environment and floodplain. Planning Director Hayes advised that Option 1 would be the best policy because it requires setbacks and leaves the natural vegetation on the site to filter the water and avoid a direct runoff into creeks and streams. The floodplain line is a model that has been used for years, and it could change in the future. Vice-Chairman Greer requested Director Hayes to comment on the action being taken by FEMA to re-draw floodplain lines across the country. Planning Director Hayes advised that the Planning Department has just been notified of a $100,000 federal grant to study and re-draw the floodplain lines if necessary. It appears that FEMA is not interested in becoming involved in the process; therefore, an engineering firm will have to be hired to perform the study. Chairman Caster asked if anyone from the public would like to comment. Ms. Tracy Skrabal complimented Planning Director Hayes for an excellent presentation explaining the differences between the Planning Board and Planning Staff options. She stated after hearing the issues involved with this text amendment, the following questions need to be answered before deciding on which option to select. 1.What percentage of the floodplain is currently undeveloped? 2.What percentage of the floodplain is currently impervious? 3.What percentage of the floodplain is pervious? 4.When was the last time that the flooding frequency along the coast was identified and compared to the current floodplain designations? 5.With current percentages of impervious limitations in New Hanover County determined by the State at 30% and dropping to 25% when adjacent to Outstanding Resource Waters, what are the actual percentages in the floodplain areas? 6.What monies are available to purchase properties in the floodplain both before and after storms? The N. C. General Assembly enacted House Bill 1480 which allocated $100,000,000 for flood damage reductions. What other monies are available to assist the County with this effort? 7.What costs have been incurred in New Hanover County due to repetitive losses for flooding in the floodplain and adjacent to the floodplain? 8.How many homes and undeveloped lots are in the floodplain? NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 27 MINUTES OF WORK SESSION, TEXT AMENDMENT TO CLARIFY PAGE 606 DENSITY ALLOCATION ON LAND CLASSIFIED AS CONSERVATION FOR PERFORMANCE SUBDIVISIONS,OCTOBER 18, 1999 Ms. Skrabal offered to serve on a committee to address these issues so an educated recommendation can be prepared to control planning in the floodplains. She stated that Option 1 does not discuss impervious surfaces in New Hanover County. It is a known fact that if the impervious surface increases above 10% in the watershed, the degradation of water quality occurs, and when this figure is increased to 30%, there is irreparable damage to the watershed, natural resources, and water quality. As referenced by Commissioner Howell, there is no language in the two proposals that addresses this issue. Ms. Skrabal advised that New Hanover County is better off than Tarboro or areas in Pender County; however, it appears that flooding will continue to occur in areas that have never flooded. Scientists now believe that the 100-year rain event created the 500-year flood. There is a difference between a rain event and flood event. Southeastern North Carolina and areas throughout the State experienced a 500-year flood event, not a 500-year rain event, with Hurricane Floyd. This means that the percentage of development in the watershed will create more flooding outside the floodplains. Commissioner Howell requested Ms. Skrabal to explain her last statement. Ms. Skrabal explained that the floodplain is a natural transition zone between the upland and where the groundwater table comes close to the surface. This area naturally provides flood storage and absorbs pollutants. If concrete is placed on a floodplain providing these functions, the water will begin to flood into other areas. The Cape Fear River does have a wide forested wetlands, but the floodplain on the Cape Fear River side is no less important than the floodplain on the tidal creek side in terms of water quality and natural resources. The tidal creek area is an extremely valuable natural resource. In concluding her presentation, Ms. Skrabal summarized an editorial from the Charlotte Observer and stated that the Mecklenburg County Board of Commissioners voted to strengthen rules for development in floodplains. After hearing the complicated issues involved, a study commission was appointed to thoroughly study the issues and prepare a report for the County Commissioners. Ms. Skrabal offered to serve on a group of this type, and she urged the Board to study the issues before rendering a decision on this important matter. Mr. Tom Grady, a concerned citizen, spoke on the financial losses to homeowners that are experiencing re-occurring flooding during heavy rainfalls. He advised that many areas are beginning to flood that have never flooded in the past, and the Board was urged to protect the floodplains to avoid increased flooding. Ms. Ruth Nienhuis, a resident of 8719 Shipwatch Drive, commented on the article written by FEMA Director James Lee Whitt and stated this letter complimented New Hanover County for being one of the first seven counties throughout the nation to take the initiative to participate in Project Impact. The Commissioners at that time committed themselves to the idea of moving the population away from the floodplain, and she encouraged the Board to stick with this foresight and look ahead at the bigger picture. Ms. Nienhuis expressed concern for flooding that is occurring in subdivisions throughout the county. After heavy rainfalls, the water is so deep it covers mailboxes. This represents flooding from drainage problems within developments compounded by heavy rains from hurricanes and flooding from rivers and creeks. New Hanover County has reached the point where no development should occur in the floodplains. In closing, Ms. Nienhuis stated that she lives in a floodplain; however, due to the elevation of her home, no flooding occurs. She expressed concern for selecting a site on the floodplain and said had she been aware of this fact, the site would not have been chosen. She said if moving out of a floodplain is what it takes to preserve the quality of life in New Hanover County, she would do so. She expressed appreciation to the Commissioners for taking time to review the wording of the NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 27 MINUTES OF WORK SESSION, TEXT AMENDMENT TO CLARIFY PAGE 607 DENSITY ALLOCATION ON LAND CLASSIFIED AS CONSERVATION FOR PERFORMANCE SUBDIVISIONS,OCTOBER 18, 1999 Zoning Ordinance, and she urged the Board to step back and continue to look at the bigger picture, which is to observe the trends that are occurring nationwide and in New Hanover County. Vice Chairman Greer asked Ms. Nienhuis if she was ready to move out of the floodplain. Ms. Nienhuis responded that she was dedicated enough to move if the federal government feels this is the only way to address the problem. Mr. Sherwin Cribb, a land surveyor, expressed concern for high density projects, but stated people have a right to live on the water if they so desire. He said that every rule discussed this evening will increase the cost of a home by 30-40%. According to the Weather Service at the New Hanover County Airport, Hurricane Floyd brought the greatest rainfall ever recorded in New Hanover County. In the case of NorthChase, it was built to specifications required by the county and state. As a resident living on Masonboro Sound, his house has been flooded one time; however, this is the price that is paid to live on the water. Mr. Johnnie Davis objected to the media lumping floodplain, wetlands, and conservation into one word. In the past, many people have built on wetlands before any rules were adopted. Today, regulations are in place to prohibit construction on wetlands. The existing ordinance needs to be clarified regarding density in a Conservation Area so permits can be issued on land approved for development without delays. He urged the Board to move forward with clarifying the ordinance. Mr. Bill Grathwol, a local developer, advised that a floodplain has three characteristics which are defined by FEMA as: (1) a stream; (2) a floodway that cannot be filled; and (3) a floodplain adjacent to the floodway. When you fill near the ocean, you are putting sand on top of sand. That is not a floodplain, because a floodplain is organic growth similar to a swamp forest. When Mr. Sanders was receiving approval for his projects, the Planning Staff was requested to define how many units could be constructed on one acre of land; however, this was never done. Mr. Nathan Sanders, a developer speaking on behalf of the Homebuilders Association, said since his name has been mentioned, he would like to clarify some issues. The projects previously in contention have been approved and built. He referenced the minutes of the March , 1998 Planning Board meeting where it was noted that his two projects initiated the proposed text amendment because they were a poor example of planning. Mr. Sanders presented pictures of the Turtle Cay project on River Road showing that no flooding occurred in these projects as the result of Hurricane Floyd. This was information that was erroneously reported by the newspaper. VICE-CHAIRMAN GREER AND COMMISSIONER HOWELL EXCUSED FROM THE MEETING Vice-Chairman Greer and Commissioner Howell were excused from the meeting at 3:45 p.m. to attend another scheduled meeting. Mr. Sanders stressed the importance of understanding that the Turtle Cay project did not increase the amount of density per acre. For every unit placed near the waterfront, one unit was lost. The buildings are closer to the water, but the water generated on the surface of both projects on River Road flows back to an engineer-designed, state approved, storm retention management pond. The water must be managed so the rate of release does not exceed the rate of release in its natural state. The Deer Brook project was an affordable housing development that was formerly in the floodplain. It was originally a clay pit and over time the elevation decreased, and it became a part of the floodplain. No wetlands or conservation regulations were in place before the development. FEMA has confirmed that this land is no longer in the floodplain, and it has been removed from the conservation area which eliminated the 2.5 units per acre requirement. The company was able to construct affordable housing on this land at a cost of $80,000 per unit. In closing, Mr. Sanders said that he was in favor of the option presented by the Planning NEW HANOVER COUNTY BOARD OF COMMISSIONERS BOOK 27 MINUTES OF WORK SESSION, TEXT AMENDMENT TO CLARIFY PAGE 608 DENSITY ALLOCATION ON LAND CLASSIFIED AS CONSERVATION FOR PERFORMANCE SUBDIVISIONS,OCTOBER 18, 1999 Board. With both plans being so similar, there should be no problems with making a few changes. Discussion followed on the many letters and calls received by the Commissioners regarding the need to protect the floodplain and better control flooding. Chairman Caster urged the Board to thoroughly review the information presented and move forward with rendering a decision on the proposed text amendment. ADJOURNMENT Motion: Commissioner Birzenieks MOVED, SECONDED by Commissioner Davis to adjourn. Upon vote, the motion carried 3 to 0. Chairman Caster adjourned the meeting at 4:15 p.m. Respectfully submitted, Lucie F. Harrell Clerk to the Board