The Henderson County Board of Commissioners met for a
special called meeting at 7:00 P.M. in the Commissioners' Conference Room of
Also present were: Planning Director Anthony Starr and Public Information Officer Chris S. Coulson
WELCOME\CALL TO ORDER
Chairman Moyer called the meeting to order and stated the purpose of the meeting was to conduct a public hearing on the Soil Erosion and Sedimentation Control Ordinance and Program. He then turned the meeting over to Planning Director Anthony Starr.
SOIL AND SEDIMENTATION CONTROL ORDINANCE AND PROGRAM
Anthony Starr explained that at the last meeting the Board had requested the Planning Department look at three primary options to the draft ordinance.
The first option was that a sketch plan be required for all land disturbing activity below the thresholds for which a formal plan would be required. A formal plan is required if you disturb more than one (1) acre in any circumstance or if your slope is fifteen (15%) to twenty-five (25%) percent and you are disturbing more than one-half (1/2) acre and if your slope is greater than twenty-five (25%) percent and you are disturbing more than one-quarter (1/4) acre you would have to have a formal plan. A sketch plan would be required in the instances where those type plans are not required. The sketch plan could be done by the property owner. They would simply have to show the areas to be disturbed, the building and property lines, which could be printed off of the County’s GIS on-line, or the staff could print if off for them to draw where the measures would be. This would present an opportunity for the staff to interact with the public and communicate the appropriate steps that they should take to control soil erosion. It would also allow the Planning Department on the smaller projects to have a positive impact on the effect it would have on water quality by making sure the measures are in place or that the property owner would know up front what is expected. A disadvantage to this option is that it would require additional staff time to review the proofs or sketch plans, and that there likely would be a minor fee charged to cover the cost of doing that review. Other than that there is no major disadvantage.
The second option was controlling for the twenty-five (25) year storm event. Currently the state rules control for a ten (10) year storm and the draft ordinance calls for control of the ten (10) year storm water run-off during the projects while it is going on. By controlling for the twenty-five (25) year storm it could reduce the number of systems failures on sites by requiring they put in additional measures. The Planning Department tried to obtain some rain fall data and have not been able to obtain anything at this point or in the time-frame given. Mr. Starr is not sure information exists to tell them how frequently we are having events in the county annually that exceed a ten (10) year storm. The problem is that you may get that data at the airport but that is only one place in the county and yes it might have an event that exceeds the ten (10) year storm once every ten (10) years or so. This doesn’t mean that there might be other places or points in the county for which there might be half a dozen storms per year. Any single point might not exceed the storm once every ten (10) years. It is just an average. It is unclear as to what the true impact would be with that option. One of the disadvantages, of course, is that it would increase the development cost potentially of the project by having to have larger systems in place. In some circumstances it could even require that additional area would be disturbed that may not have otherwise been disturbed because they would have to have larger systems in place. This is not all of the time but under certain circumstances it could occur.
The third option is the revocation or suspension of other county permits if someone is in violation of the ordinance. This provision would be simple to add and would allow the county officials to revoke or suspend any other county permits that are issued if they are in violation. This would be used in a case where someone doesn’t comply. This sometimes may be the most effective method to gain compliance because essentially it would bring the project that they have to a halt. When they can’t get any other building permits their project is going to come to a halt. One downside to this is that you would not want to use this all the time and in every case because it can have an impact on those workers that are on that site and have to go home and be without work the remainder of that day or a couple of days, however the burden would be on the property owner to make sure the situation is corrected.
This is a quick and brief overview of the three options staff looked at.
Commissioner Young stated that the ten (10) year storm is seven (7) inches of rain in a twenty-four (24) hour period.
Anthony Starr agreed that this was his understanding.
Commissioner Young stated that the twenty-five (25) year storm is only eight (8) inches of rain in a twenty-four (24) hour period.
Anthony Starr agreed that this was the information indicated to him.
Commissioner Young questioned using more undisturbed land to go the twenty-five (25) year rather than the ten (10) year storm when it only has to do with an extra inch of rain. The last rain of more than six (6) inches in a twenty-four (24) hour period, that he could recollect, was when Hugo went through in the mid ninety’s. He questioned if it is necessary to use more undisturbed land, which creates more erosion, for an additional inch of rain in a twenty-four (24) hour period.
Commissioner McGrady also questioned the different things required under the twenty-five (25) year storm versus the ten (10) year flood event.
Anthony Starr explained that it may be somewhat unique to each site. Some sites may not require much of anything at all and then other sites may be substantially more.
Commissioner McGrady questioned if there were standards for this or somewhere a developer could look to determine what was necessary.
Anthony Starr answered that the state had a design manual and that the county could design a manual if needed. It is based on engineering calculations. For example it may be that a larger retention pond or sedimentation basin is all that is necessary. The outlets on the retention ponds may be a different size. Anthony doesn’t feel that they can put a difference in cost figures out there at this time for the twenty-five (25) year versus ten (10) year storm. This would vary per site.
Commissioner McGrady questioned if any other county has chosen the twenty-five (25) year storm rather than the ten (10) year storm.
Commissioner Young questioned the same.
Mr. Starr was not aware of any.
Commissioner Messer asked for a sketch plan requirement example and information on educating the public.
Anthony Starr explained that the sketch plan consists of the public coming into the office without anything. The Planning Department could print out on standard paper a map of their property from the GIS site. They would need to draw the dimension of the structures and the area that will be disturbed. Planning would calculate the area to be disturbed at that point. They would need, for example, to show where silt fencing would be installed. Then it would be deemed compliant.
Commissioner Messer questioned if developers could do the same.
Anthony Starr answered they could do the same thing provided they didn’t exceed the thresholds that require a formal plan such as disturbing more than one (1) acre of relatively flat land or more than one-half (1/2) or one-quarter (1/4) acre depending on slope.
Commissioner Messer questioned if the Planning Department was able to determine slope.
Anthony Starr responded that the GIS data did include slope information.
Commissioner Baldwin quested who could submit an intermediate plan or formal plan.
Anthony Starr explained that the way the Draft Ordinance was drawn up now would require that the plan be drawn up by a design professional which is defined as a professional engineer or landscape architect. The Planning Department would like to create another layer on the GIS site that would indicate the areas that exceed the slopes which would automatically flag an area that needs to be examined closely. At this point the Planning Department would use their data to do slope calculations. Of course if there was a detailed survey of the property it could be used instead. This ordinance does not take soil types into consideration.
Chairman Moyer asked each person who had signed up for informal public comments to please limit their time to about 3 minutes.
Walters resides at
Section 9 refers to Storm Water Outlet Protection. This refers to where the storm water goes and what impact it has. This is his concern. Erosion of the stream banks in the county is an ever increasing problem. It is not just the major storms that we have been having that are causing it. More of our land is being converted from its natural state where storm water is well retained to asphalt and metal where there is no storm water retention. The water level at a bridge in his development is reaching higher levels than in the past and staying at the higher levels longer. This water is carrying a lot of sediment as can been seen by back water areas filling in. He feels that this problem is getting worse county wide. The damage to water quality alone cannot be allowed to continue. It is another problem having to depend on a bridge and a connecting road crossing a stream. He feels that he is speaking for everyone who accesses their home by crossing a private bridge. The bridges and connecting roads are in an ever increasing state of jeopardy. The damage to private bridges and public bridges as well as from erosion is on the rise. At the rate of new development that is occurring in the county the trend in water quality and the security of bridges is all going in the wrong direction! The cost of repairing, upgrading, or replacing a private bridge and or connecting road is a very unjust and costly expense on the owners. Mr. Walters would like to see the addition of a regulation that limits the storm water runoff from a new development to a level of the original undeveloped land.
Oechslin resides at
Huber resides at
Blalock resides at
Hoyle resides at
1) Section 5 (Mandatory Standards for Land-Disturbing Activity) (d) Ground Cover. In the sentence reading “except as provided in Section 8(b) (5) of this ordinance, provisions for a ground cover…” Drop the term “provisions for a ground cover” in favor of “completion of a ground cover” In the same sub-section (d), change the time period for accomplishment from “15 working days or 90 calendar days…whichever period is shorter” to” within 21 calendar days…”This wording would then correspond with the time period allowed in sub-section (b) Graded Slopes and Fills in the same section.
2) In view of the lessons learned from recent years’ rain activity associated not only with hurricanes; but also with localized rain events, move to the standard of a twenty-five (25) year storm and not a ten (10) year storm in Section 8 (Design and Performance Standards) and Section 9 (Storm Water Outlet Protection). This will provide for greater safety and perhaps allow for protection from what many feel will be a worsening in the severity of weather conditions in the future.
3) There is much concern involving the requirement for
the submission of an Erosion Control Plan based on what the Draft Ordinance and
the Staff Report of September 5, 2006 both refer to as “a lot, parcel, or tract
with an average slope…” Although the
Staff Report does clarify that the thresholds for Plan submission are for
disturbed land, the Ordinance is not clear on this point. As the makeup of both Staff and Commission
changes over time, we feel that the Ordinance itself should be clear on this
threshold for Plan submission and not subject to re-interpretation at a future
date. There is not a formula as to how
this “average” slope is to be determined.
4) Section 6 (Erosion and Sedimentation Control Plan) (b) Plan Submission states “A Plan shall be submitted for all land disturbing activities…A Plan shall be prepared by a design professional.” There was discussion at the Board meeting of Tuesday, September 5. 2006 concerning what types of Plans would be required. There was talk of “major plans” and “minor (sketch) plans” However the Draft Ordinance defines the required “Plan” only as “An Erosion and sedimentation control plan.” Again, the Committee feels that this definition is too broad and open to reinterpretation by future Boards and Staff according to the whims and political pressures of those times. In order to give guidance to those design professionals required to prepare such Plans and to relieve Staff of the onus of deciding what shall be required of each separate Plan submitted for approval, firm guidelines should be established. For this purpose we endorse the adoption of the attached language describing the required content of Plans. This description of content could be amended by future Boards. However, it would clearly relieve current and future Staff from any accusations of requiring less, or more, from any one applicant than another.
5) Section 4 (Scope and Exclusions), (b) (1) (i). Include the terms “orchards and fruit crops” among the crops listed.
Silver is the Extension Agent for
Water Quality and the
Lowles resides at
Sachs resides at
Pittillo resides at
Roane resides at
Jo Padgett resides at
Site sketches or
plans which help the enforcement officer understand the situation on which the
erosion control plan is being designed, both on the land itself where buildings
are going to be, and also surrounding territories as well, and the impact that
might have and how things relate not only to how the property is being
disturbed but adjacent property. The
· Implementing the twenty-five (25) year storm standard.
· Place a local ordinance Project manager on-site for every workday on larger sites.
· Concern about the use of the word “average”, as in “an average slope over twenty-five (25%) percent.” We are not sure how the “average” is calculated. Worst-case scenario is that an area will be mostly flat, but a house is proposed for the slope area. Thus the “average” slope calculation may not kick in to regulate erosion control on the hillside where the house will sit.
· Look into the 20 acres of disturbed land that is allowed in High Quality Water Zones (Section 8)(b) (1). This sounds like much more than should be uncovered at one time in an HQW zone.
· In section 9 – Storm Water Outlet Protection – they would rather see storm water confined to the property being developed. They suggest that the storm water velocity and amount on developed land should not exceed what the standard was before the property was developed. Technology today allows development to occur that does not send storm water onto other property and into streams but retains it on-site. The effects of storm water on adjacent down-slope property owners result in many phone calls to the ECO office after heavy rainfall. This would require a separate storm water ordinance.
· Phrased in the ordinance is “if your runoff effects property owners you can be required to restore it.” They suggest adding the phrase “or pay someone else to restore it.”
Young resides at
1. The smaller acreage requirements on steep slopes. He was disappointed to see that the requirements are limited to site sketch or map. The single factor that has the biggest impact on the severity of erosion is slope. The highest quality of water is found higher up in the water shed. He suggests reconsidering the ordinance for smaller acreage by making it an even playing field.
2. The twenty-five (25) year storm requirement is carried by the state in conjunction with projects near high quality water resources or trout water. The ten (10) year storm is used everywhere else. There is a large variance between the two storms.
3. Regarding staffing, if you do adopt an ordinance that
has small acreage requirements you will be looking at more pertinent
applications, more sites than the state is currently looking after at this
time. If you look at
4. In the report to the board with the first draft ordinance there was a comment of 6-8 weeks turn around time for erosion control permits from the state. There is a thirty (30) day period by rule that there must be comment such as “approved” or “disapproved with revisions.” It is deemed approved if not heard back from in 30 days.
Sare resides at
rather than the reactive
Chairman Moyer requested that Anthony Starr return to the podium. He asked Mr. Starr to follow up with additional information as follows:
Anthony Starr addressed the issue of “average” slope. Slope is measured as rise over run. There is an issue which addresses a parcel that is relatively flat in one part and steep in another part. Potentially they would come under the thresholds there and not have to require a formal plan, even though they may be developing on a steep slope. The draft took into consideration the average slope of the entire lot and the initial thoughts were centered on the easiest way to measure this in the beginning. If the board wants to go further than that then they could define it as the average slope of the disturbed area as apposed to the entire parcel. This would capture more projects and the option is available. The way the draft ordinance is written now would take into account the average slope of the entire parcel.
Grading Permit or Plan
Anthony Starr responded that the state design manual requires a grading permit as part of the erosion control plan.
Access and Haul Roads
The state already implements the requirement for a Mud Matt.
On-site Project Manager
There is no requirement in the draft ordinance at this time for an on-site project manager.
The State rules declare that if you are in a designated high quality water zone that you are not allowed to disturb any area at one time more than twenty (20) acres. This only applies to HQW Zones. We do follow the minimum requirement set by the state that says if you are in a high quality water zone you cannot disturb more than twenty (20) acres at one time.
Twenty-five (25) year storm versus ten (10) year storm
Board discussion followed. The consensus was that the Board had enough information that they could give staff a little more guidance.
Commissioner McGrady expressed that it would be in everyone’s best interest for the municipalities to be on board.
Commissioner Baldwin feels that is important to have clear levels of distinction in writing.
Directions to Staff
Staff should be directed to look at the minor plan/major plan deviation that is in the Lake Lure Plan now. They would need to come back to the Board with a prevision of an ordinance that includes a sketch plan requirement.
Chairman Moyer made the motion that the staff come back with the major/minor plan and sketch plan requirement be incorporated into the language. All voted in favor and the motion carried.
Chairman Moyer asked for Anthony Starr’s advice with the twenty-five (25) year versus ten (10) year issue. Mr. Moyer is concerned that the Board may be taking on more than they can handle. He questioned if it could be phased in at a later date.
Anthony Starr responded that when they were crafting the current draft a large part of the discussion was whether certain items would be feasible. The twenty-five (25) year storm was not included because of lack of experience with knowing what the impact was. He is sympathetic with the impact it would have potentially on development costs. On the other hand he feels that it could have a substantial improvement or reduction in the number of system failures which could provide serious damage to the streams.
Chairman Moyer feels that if none of the neighboring counties are implementing the twenty-five (25) storm plan that we would have a harder time getting the municipalities to come on board with us.
Commissioner Baldwin felt there was room for compromise. A tier effect could be used by possibly adding the twenty-five (25) year storm only in areas with more drastic slope. Otherwise when an area meets a certain slope the twenty-five (25) year plan could be used. We would have to be certain that we used the twenty-five (25) year plan in areas that really need it. In flatter areas such as the area Mr. Pittillo called the “bottom area” the ten (10) year plan would be used.
Chairman Moyer asked Commissioner Baldwin what he felt that the criteria should be. He understands what he is saying but doesn’t know where they should draw the line. Chairman Moyer discussed the possibility of defining “average” in a much more restrictive way and therefore they could accomplish the same thing. If you calculate the slope based only on the disturbed area instead of the average of the whole site, you can probably pick up more of the slope, certainly if it is disturbed, than if you did otherwise.
Commissioner Young proposes that the twenty-five (25) year storm be used when they develop the storm water run off. That is where he feels it is needed the most.
Chairman Moyer made the motion that the Soil Erosion and Sedimentation ordinance be adopted with the ten (10) year storm event as set forth in the draft.
Commissioner McGrady feels that it is critical that all of the municipalities come on board. He is inclined to stay at the ten (10) year storm event. He feels that they should consult with the municipalities.
Commissioner Baldwin continues to recommend the twenty-five (25) year storm event.
Commissioner Young agrees that in order to accomplish the results they are looking for in the ordinance they must have the municipalities on board. He doesn’t feel that they would agree with the twenty-five (25) year storm event.
More discussion followed. A vote was taken and the motion passed four to one with Commissioner Baldwin voting nay.
Chairman Moyer made the motion, for purposes of discussion, to look at the average of disturbed area and come up with a “How you can best define average.” per situation. All voted in favor and the motion carried.
Chairman McGrady made the motion to adopt a provision with respect to revocation of permits. All voted in favor and the motion carried.
Chairman McGrady reminded the Board that a way would have to be found to get past the corporate entity that is putting in a subdivision and recognize who the principles are if they are the same players and possibly doing bad things over here they need to be able to get them regardless of what the corporate entity is.
Chairman Moyer feels that the language can clearly deal with this type of problem but is not ready at this time to implement a project manager on site.
Commissioner Young does feel that a project manager is necessary but not continually during the construction.
Commissioner Messer was in agreement with Chairman Moyer.
Chairman Moyer made the motion to defer on the issue of Project Manager on site until a later time. All voted in favor and the motion carried.
Chairman Moyer requested that staff take a look at some of the other language and come back to the Board.
Commissioner Baldwin wanted the Board to make sure that whatever terminology was used for plans such as site plans, or sketch, minor plan, major plan, in the erosion control plan, was defined.
Chairman Moyer reminded everyone that four (4) months from date of adoption was what had been discussed at earlier meetings.
Commissioner Baldwin questioned what staff would need in order to make sure that the ordinance was implemented. Chairman Baldwin addressed Mr. Sam Laugher, Director of Building Services in regards to the two erosion control officers that he recommended. Mr. Baldwin questioned if the municipalities were included.
Commissioner Baldwin feels that additional erosion control officers will be necessary.
Commissioner McGrady questioned the Counties enforcement of the current State plan.
Planning Director Anthony Starr responded that his understanding was that with the effective date of the ordinance and assuming that the State has delegated authority to the County, the Sedimentation and Control Commission will turn over at that point all active cases to the County. This will not address cases that have already been closed.
Chairman Moyer and Commissioner Baldwin requested more research to clarify this information.
discussion followed. County Manager
Commissioner McGrady made the motion to adjourn the meeting. All voted in favor and the motion carried.