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The overlay zoning districts of this chapter typically apply in combination with the underlying general use zoning districts to impose regulations and standards in addition to those required by the general use districts except where otherwise specified for a particular overlay district. The requirements of an overlay district shall apply whenever they are in conflict with and are more stringent than those in the general use district. Variances may not be granted from overlay district regulations unless specifically provided for in a particular overlay district. The following overlay districts are hereby created:
(A) Mixed Use Overlay;
(B) Conservation Residential Overlay;
(C) Thoroughfare Overlay;
(D) Airport Overlay;
(E) Watershed Protection Overlay; and
(F) Historic Preservation Overlay.
(A) Purpose and Intent
It is the purpose and intent of this overlay district to enable the development of land in areas intended to have a compatible mixture of commercial, office, residential, recreational, civic and/or cultural uses which are highly integrated and function in a cohesive manner. Each Mixed Use Overlay District is intended to function at a neighborhood, community or regional scale identified on the Town of Cary Official Zoning Overlay Map. Benefits of this approach to development will help concentrate land uses, reduce sprawl, promote a more efficient pattern of land uses, provide needed goods and services, reduce automobile trips, and facilitate convenient and safe circulation.
(B) Applicability
The Mixed Use Overlay District shall apply to areas designated as such on the Town Of Cary Official Zoning Map.
(C) [Reserved]
(D) Uses Allowed
The uses allowed in the Mixed Use Overlay District are set forth in the Table of Permitted Uses in Chapter 5. The applicable designation of Neighborhood, Community or Regional will be as identified on the Town Of Cary Official Zoning Overlay Map.
(E) Authority Under Overlay District
(1) General Authority
Property in a Mixed Use Overlay District may be developed in accordance with requirements for one (1) of the following, as applicable, and as described below in this Section 4.4.2(E):
(a) an existing general use zoning district, conditional use zoning district, or planned development district established prior to August 13, 2009 (hereinafter collectively, "base zoning");
(b) an Activity Center Concept Plan ("ACCP") approved between July 1, 2003 and April 27, 2006;
(c) a Mixed Use Sketch Plan ("MUSP") approved between April 27, 2006 and August 13, 2009;
(d) modification of a planned development district that was initially created prior to August 13, 2009;
(e) a conditional use zoning district approved after January 24, 2017, which either modified previously-approved zoning conditions or added initial zoning conditions to the previously-approved base zoning district;
(f) a MXD District approved after August 13, 2009; or
(g) where the property is not in the Destination Center, Commercial Center Mixed Use, or Mixed Use Employment Center future growth framework development category as designated in the Shape chapter of the Cary Community Plan, a general use or conditional use zoning district approved after January 24, 2017.
(2) Utilization of Existing Base Zoning, Excluding Planned Development Districts
Development plans that are submitted utilizing the base zoning shall be evaluated against the Comprehensive Plan, design guidelines, and related requirements to determine whether the proposed development is in keeping with the overall intent of the MUOD.
Further, if an ACCP or MUSP has been approved for all or a portion of property proposed for development or redevelopment, and if the ACCP or MUSP includes specific site design guidelines, then the design guidelines shall apply to the property, or portions thereof, covered by the ACCP or MUSP. The aspects of ACCP/MUSP design guidelines that are applicable to development under the base zoning include, but are not limited to, more restrictive guidelines related to building placement and orientation, roadway and sidewalk sections, streetscape treatments, landscaping treatments, individual building or tenant space sizes, open space and public space, parking lot design and placement, block length, connectivity, stormwater controls, block frontage coverage, public art, signage and site entryway features.
Dimensional standards prescribed by ACCP/MUSP site design guidelines are also applicable to development under the base zoning, except for single-unit residential development having lots of twenty thousand (20,000) square feet or more. A development or redevelopment proposal submitted under the base district zoning should facilitate the ultimate attainment of the circulation network outlined in the ACCP/MUSP.
(3) Utilization of Approved Activity Center Concept Plans or Mixed Use Sketch Plans
Property for which an ACCP or MUSP was approved prior to August 13, 2009 may be developed in accordance with that ACCP/MUSP.
(4) Modification of Planned Development Districts
Requests to modify or expand existing planned development districts shall be evaluated against the Comprehensive Plan, design guidelines, and related requirements to determine whether the proposed development is in keeping with the overall intent of the MUOD.
Staff may approve changes to PDD Master Plans if such changes fall within the criteria allowed for administrative approval under Section 3.19, Minor Modifications. Applications for such changes shall be considered using the process set forth in Section 3.19. Proposed changes that do not fall within the criteria allowed for administrative approval in Section 3.19 may occur only through rezoning to amend the Planned Development District, following approval procedures set forth in Section 3.4.5.
(5) Utilization of a Mixed Use District Approved After August 13, 2009
Requests to rezone property to the Mixed Use District shall be evaluated against Section 4.5.2 and other applicable Sections of this Ordinance, the Comprehensive Plan, design guidelines, and related requirements to determine whether the proposed development is in keeping with the overall intent of the MUOD.
(6) Utilization of a General Use or Conditional Use Zoning District Approved After January 24, 2017
Requests to rezone property to a General Use or Conditional Use Zoning District shall be evaluated against Section 3.4.1(E) and other applicable Sections of this Ordinance, the Comprehensive Plan, design guidelines, and related requirements to determine whether the proposed development is in keeping with the overall intent of the MUOD.
(F) Development Standards
Notwithstanding an approved ACCP/MUSP or existing planned development master plan, any development and/or redevelopment proposed for parcels located within a Mixed Use Overlay District shall meet the following development standards:
(1) Any conditions related to allowable land uses and/or landscaping buffer provisions applied through a conditional use rezoning shall continue to apply unless the property is subsequently rezoned to the MXD district and said conditions are not included as development requirements of the MXD district; and
(2) The road network shall be designed to ensure that adjacent residential areas will have direct access to the non-residential portions of the Mixed Use Overlay District in lieu of entering and exiting through thoroughfares and/or collector streets; and
(3) The development/redevelopment shall provide or contribute to a pedestrian and road network that connects non-residential and existing residential uses (including multi-family and single-unit) developments in accordance with town-wide design guidelines.
Exceptions may be considered to items 2 and 3 above where adjacent established single-unit residential developments (not part of an approved mixed use sketch plan or an existing master plan) are proposed to connect through a roadway to a Regional Mixed Use Overlay District. This exemption shall not apply when public uses (including but not limited to schools, libraries, and parks) are proposed within a Regional Mixed Use Overlay District.
(G) Dimensional Requirements
The general dimensional standards shall be as specified for the applicable base zoning district, ACCP, MUSP, Planned Development District Master Plan, preliminary development plan for property zoned MXD, or applicable general use or conditional use zoning district approved after January 24, 2017.
(H) Changes to the Preliminary Development Plan Component of an Approved MXD District (Including Activity Center Concept Plans and Mixed Use Sketch Plans) or to an Approved PDD Master Plan
Any change in the general location and character of the features depicted on approved preliminary development plans, ACCPs, MUSPs or PDD Master Plans, except where such change is determined by the Planning Director to be a minor modification as outlined in Section 3.19.2(B), shall be considered a material change to the approved preliminary development plan, ACCP, MUSP or PDD Master Plan, and shall be processed as a new application in accordance with the applicable procedures set forth in Sections 3.4.3 and 3.4.5. The Planning Director shall determine whether any such change is a material change.
(A) Purpose and Intent
The Conservation Residential Overlay District is established to implement the Comprehensive Plan. The goals and objectives of this overlay are to:
(1) Encourage environmentally sound planning;
(2) Protect open space and natural resources;
(3) Create attractive living environments;
(4) Encourage the creative placement of dwelling units;
(5) Limit the consumption of scenic, historic, and forested land for development;
(6) Design residential developments using natural topography, drainage ways and advanced water-quality protection techniques; and
(7) Create a contiguous network of open spaces by linking the open space areas within the residential development to open space on adjoining land wherever possible.
To further these goals and objectives, the overlay district provides the opportunity for residential developments to receive an increase in the number of potential dwelling units (based on the underlying zoning requirements) when such residential developments meet open space and other design requirements set forth within this Section.
(B) Location of District and Applicability
The provisions of the Conservation Residential Overlay District shall apply to the geographic areas designated as such on the Town of Cary Official Zoning Map. For properties designated as Conservation Residential on the Town of Cary Official Zoning Map and located outside of the Town's extraterritorial jurisdiction (ETJ), annexation and rezoning in accordance with this Section and all other applicable sections of the Land Development Ordinance is required before applicants may utilize the density bonus provisions of Sections 4.4.3(D) through (H).
This overlay district does not preclude any residential or non-residential uses allowed within the underlying zoning districts, provided that all applicable Land Development Ordinance requirements are met. Properties may be rezoned to residential or non-residential districts if supported by the Comprehensive Plan and in accordance with applicable sections of the Land Development Ordinance. Parcels zoned as Planned Development Districts and parcels subject to development plans approved before July 15, 2004, are exempt from the application of this Section for so long as the PDD or development plan remains valid.
The density bonus provisions of Sections 4.4.3(D) through (H) are optional. However, all development within the overlay district shall, in addition to all other requirements of the Land Development Ordinance, provide a buffer of fifty (50) feet in width along the American Tobacco Trail. The buffer shall function as visual separation between the public trail and private property; it shall contain native plant material, supplemented where necessary with deciduous and evergreen trees to provide an opaque screen for the benefit of trail users and adjoining property owners. The buffer shall conform to the requirements of a Type 'A' Buffer as described in LDO Section 7.2.3(D).
(C) Subdistricts Created and Defined
Due to the existing character and desired types of future development in the Conservation Residential Overlay District, differing residential densities, dimensional standards, open space requirements, and other related development standards are set forth within this Section. In order to present the full range of zoning and development requirements for each different area, this overlay zoning district is divided into two (2) subdistricts as follows:
(D) Eligibility and Process to Obtain Density Bonus
An increase in the number of lots (density bonus) above the number of lots that could be achieved utilizing the underlying zoning (base number of lots) is allowed, provided the development plan meets open space requirements and other design requirements set forth within this Section.
New residential developments within the Conservation Residential Overlay District seeking to utilize the density bonus provisions of this Section shall require submission of a development plan in accordance with Section 3.9 of this Ordinance, and approval of such plan by the appropriate decision-making body. To be eligible to gain additional units above the base number of lots, the minimum size of the site shall be ten (10) acres.
(1) Rezoning
For property located within the overlay district as shown on the Town of Cary Official Zoning Overlay Map, rezoning is not required in order to submit development plan applications that meet the requirements stated in Sections 4.4.3(D) through (H).
For properties within the Conservation Residential Overlay District but not within the Town Limits and/or Extraterritorial Zoning Jurisdiction (ETJ), annexation and rezoning is required before such properties can be developed pursuant to Sections 4.4.3(D) through (H). Annexation and rezoning (to establish initial zoning) to the Residential-40 district and Conservation Residential Overlay District must be approved before a proposed development plan using the provisions of Section 4.4.3(D) through (H) can be submitted for review.
Rezonings to non-residential and institutional uses may be permitted if consistent with the Comprehensive Plan. Rezonings to non-residential and institutional districts are not required to be subject to the requirements of this Overlay District.
(E) Calculating the Base Number of Lots
The base number of lots is defined as the lot yield based on the implementation of the requirements of the underlying zoning district. The base number of lots is the starting point from which extra lots may be permitted if non-regulatory or bonus open space, as defined below, is provided and other design requirements are met.
The applicant shall choose one (1) of the following methods for calculating the base number of lots:
(1) The base number of lots may be determined by taking ninety (90) percent of the potential developable area of the site and multiplying by the maximum density (based on lot area requirements) for the underlying zoning district. The purpose of reducing the potential developable acreage by ten (10) percent is to account for the approximate area that would be allocated to roadways within a conventional subdivision. "Potential developable area" within this Section is defined as the total land area of the site excluding all regulatory floodplains, streetscapes and other required areas (see Chapter 7: Development and Design Standards). For sites that contain and/or are adjacent to the American Tobacco Trail, a buffer of at least fifty (50) feet in width is required. This minimum buffer width is considered regulatory/required area, and shall not be included in the calculation of potential developable area.
Example: Site A
Total Site Acres: One hundred (100)
Acres in regulated/protected areas: Twenty (20)
Potential Developable Area Including Roadways: One hundred (100) - Twenty (20) = Eighty (80) Acres
Calculated Developable Area: Eighty (80) Acres x Ninety (90) percent = Seventy-two (72) Acres
Base Number of Lots: Seventy-two (72) Acres x 1.09 (density permitted in R-40) = Seventy-eight (78) lots
(2) The base number of lots may be determined based on the applicant providing a sketch development plan that fully complies with the development requirements of the underlying zoning district for the site.
(F) Increases to Base Density; Residential Use Type Allowed; and Minimum Dimensional Standards
(1) Increase in Density - An increase in the number of lots (density bonus) is provided in exchange for the permanent preservation of non-regulatory (referred to as "bonus") open space and compliance with other design requirements. An increase in the number of lots is achieved by allowing a smaller minimum lot size and increasing the permitted density (see Table 4.4-2 below).
(2) Allowance for Attached Dwelling Units - All lots developed in accordance with Sections 4.4.3(D) through (H) shall be for single-unit detached dwelling units with the exception of lots within the Conservation Residential Low Density (LCR) subdistrict. Within this subdistrict, attached, semi-detached, detached patio dwelling and townhome units shall be permitted, but shall not exceed twenty (20) percent of the total development yield. The lots for attached dwellings and detached patio dwellings shall use the Transitional Residential (TR) dimensional requirements, and therefore may have smaller lot sizes than the minimum lot size for detached lots as prescribed below.
(3) Specific Requirements by Subdistrict
Overlay Subdistrict | Maximum Development Density (d.u./acre) | Minimum Lot Size if Site Contains Less than Twenty (20) Percent of the Total Area in regulatory open space (sq. ft.) | Minimum Lot Size if Site Contains between Twenty (20) and Less than Thirty (30) Percent of the Total Area in regulatory open space (sq. ft.) | Minimum Lot Size if Site Contains Thirty (30) Percent or more of the Total Area in regulatory open space (sq. ft.) | Bonus Open Space Required Per Additional Lot |
Conservation Residential, Low Density (LCR) | 2.5 | 10,000 | 8,000 | 6,000 | 8,872 sq. ft. |
Conservation Residential, Very Low Density (VLCR) | 1.5 | 15,000 | 8,000 | 6,000 | 14,816 sq. ft. |
Notes:
Reduction in lot size due to twenty (20) percent or greater area in regulatory open space will be reduced incrementally until the maximum development density or minimum lot size is achieved, whichever occurs first.
The amount of bonus open space required is based on the following ratio:
In VLCR, a density bonus equal to three percent (3%) of the base number of lots is allowed for each one percent (1%) of bonus open space provided from the potential developable area of the site.
In LCR, a density bonus equal to five percent (5%) of the base number of lots is allowed for each one percent (1%) of bonus open space provided from the potential developable area of the site.
LCR Example (continued from 4.4.3(E)(1) above):
Size of Site | Base Number of Lots [see Section 4.4.3 (E)] | Bonus Open Space | Additional Lots (Density Bonus) | Gross Density (d.u./acre) |
100 Acres | 78 | 16 acres (20% of potential developable area) | 78 (100% more) | 1.6 |
100 Acres | 78 | 24 acres (30% of potential developable area) | 117 (150% more) | 2.0 |
(G) Bonus Open Space Requirements
All bonus open space provided must meet the following standards:
(1) Bonus open space shall be retained in a natural, undisturbed state, with the exception of those activities allowed by this Section. No more than five percent (5%) of the bonus open space area may be disturbed and allowed to be planted with grass or improved with other pervious ground cover in order to provide common informal gardens and/or play/open areas for the development or for the extension of main water and sewer lines. The five percent (5%) does not include disturbed areas due to the installation of required pedestrian systems (e.g., sidewalks, trails). However, active recreation facilities (e.g., basketball and tennis courts) are not permitted in the bonus open space used to obtain additional lots.
(2) In order to use the bonus density provisions of the Conservation Residential Overlay District, per part (F) of this Section, the subdivision must, at a minimum, provide an eighty (80) foot deep Type A opaque streetscape buffer along all of the subdivision's thoroughfare and collector road frontage. The amount of the eighty (80) foot deep streetscape buffer that is in excess of the amount of streetscape buffer normally required for a conventional subdivision under the requirements of Chapter 7 (See Section 7.2.4) qualifies as non-regulatory or bonus open space. Credit for bonus open space beyond a thirty (30) foot streetscape width may be allowed along thoroughfares that are designed as only two (2) lane roadways (similar to a collector roadway).
(3) Bonus open space shall be no less than thirty (30) feet in width at any point.
(4) Pedestrian access trails to the bonus open space areas shall be provided.
(5) No portion of the bonus open space shall be separated into non-contiguous segments smaller than thirty percent (30%) of the total bonus open space area. Open space divided by a roadway shall be defined as contiguous as well as open space adjacent to or across a roadway from regulatory stream and/or urban transition buffers.
(6) Credit for bonus open space may be provided for the preservation of contributing historic structure(s) within the Green Level National Register Historic District. This refers to the primary contributing structure on the site, such as the main farmhouse, as identified in the Green Level Historic District National Register Nomination document. The primary contributing structure must be located within a site containing at least one (1) acre of contiguous open space in order to better maintain the structure within its context in the landscape. Preservation is defined as the active restoration or rehabilitation and the ongoing maintenance of a structure. To qualify a primary contributing structure for the density bonus option, the property owner shall enter a preservation agreement with a qualified preservation organization. Preservation agreements may include, but are not limited to, historic preservation easements, facade and exterior covenants, or other methods acceptable to the Town.
The primary contributing structure within the Green Level National Register Historic District shall count as one (1) acre of bonus open space, provided that the structure is preserved and/or rehabilitated to the Secretary of the Interior's Standards for Rehabilitation. The primary structure must also be included within at least one (1) acre of bonus open space to preserve rural character features. This bonus open space may be used in a way that reflects the historic use of the property. If these requirements are met, a minimum of two (2) acres of open space may be credited to obtain bonus lots.
(7) The bonus open space shall be shown on the development plan, with a notation to indicate that the bonus open space shall not be used for future structures.
(8) The developer shall establish and incorporate a Homeowners' Association (HOA), which shall own the bonus open space and have the responsibility for maintaining the bonus open space and associated facilities at its own expense. An exception to the ownership of a portion of the bonus open space surrounding a contributing historic structure(s) within the Green Level National Register Historic District may be provided on a case by case basis. As an alternative to an HOA, a private, non-profit organization, whose primary purpose is open space conservation or preservation can own and manage the bonus open space.
(9) A portion or all of the bonus open space may be conveyed to the Town for use as greenways and parkland, provided it meets Town standards for such facilities and is agreed to by the Town. Such conveyance would occur at no cost to the Town.
(H) Additional Design Requirements
(1) Lot Dimensions
(a) For LCR lots, all dimensional requirements (i.e., setbacks, lot width) shall conform to R-8: Residential District standards with the exception of side yards. Side yards shall be a minimum of five (5) feet and an aggregate minimum of fifteen (15) feet. Residential lots less than eight thousand (8,000) square feet shall conform to TR: Transition Residential District standards.
(b) For VLCR, R-12 dimensional requirements shall be used for lots twelve thousand (12,000) square feet and greater in size. For lots between eleven thousand nine hundred ninety-nine (11,999) and eight thousand (8,000) square feet, R-8 dimensional requirements shall be used. For lots less than eight thousand (8,000) square feet, TR dimensional requirements shall be used.
(2) Where lots abut other residential lots within an existing subdivision that is not developed pursuant to Sections 4.4.3(D) through (H), said lots shall have a side and rear yard setback not less than the required side and rear yard setback required on the abutting property or the side and rear yard setback of the Residential 40 District.
(3) All streetscapes along thoroughfares and collectors shall be planted to a Type A standard.
(4) American Tobacco Trail (ATT) Buffer - A buffer of fifty (50) feet in width is required along the American Tobacco Trail. The buffer shall function as visual separation between the public trail and private property; it shall contain native plant material, supplemented where necessary with deciduous and evergreen trees to provide an opaque screen for the benefit of trail users and adjoining property owners. The buffer shall conform to the requirements of a Type 'A' Buffer as described in LDO Section 7.2.3(D). The fifty (50) foot wide buffer is not counted as bonus open space.
(5) No lot(s) shown on a development plan may be cleared or graded until the building permit for the lot is approved. Exceptions to this requirement may be considered based on factors related to the installation of roadways, public utilities or significant topographic issues. This exception must be approved by the Town based on written justification.
(6) Streets shall be designed and located as to preserve and maintain the natural topography and topographic features, as well as to minimize cut and fill practices.
(7) [Reserved]
(8) The requirements of Section 7.3, Stormwater Management, shall be achieved using LID site planning and techniques or a combination of LID and conventional stormwater management practices. The goal of LID is to develop site design techniques, strategies, and best management practices (BMPs) to store, infiltrate, evaporate, retain, and detain run-off on the site to more closely replicate pre-development run-off characteristics and to better mimic the natural and unique hydrology of the site thereby limiting the increase in pollutant loads caused by development. To the extent practical, stormwater shall be treated at its source through the use of small, non-structural BMPs and natural conveyance devices (swales, etc.). All BMPs shall be located in areas owned by the HOA or other entity (see 4.4.3(G)(8)) to ensure adequate maintenance. Structural BMPs may not be located in the bonus open space.
(9) Pedestrian Connectivity: A comprehensive pedestrian system shall be provided that makes the contiguous open space accessible to neighborhood residents and connects the open space to neighborhood streets. Limited pedestrian access shall be provided through Urban Transition Buffers and floodplain areas in accordance with the standards of this Ordinance.
Pedestrian connectivity shall be provided through an integrated combination of: primary trails, consisting of public sidewalks and greenways; and secondary trails consisting of private trails that provide connections within the development from public sidewalks and greenways to open space areas.
Public greenway trails shall be those depicted on the Parks, Recreation and Cultural Resources Facilities Master Plan. Such trails shall be ten (10) feet wide and constructed within a thirty (30) foot wide permanent Town of Cary greenway easement. The Town shall maintain all public greenway trails.
Secondary trails shall be constructed of asphalt, with a minimum width of eight (8) feet. Where feasible, secondary trails shall be located within Homeowners' Association (HOA) maintained common open space. In cases where this is not feasible, a twenty (20)-foot wide private pedestrian easement centered on these trails must be recorded and any required building setback shall be calculated from the outside boundary of the easement on the lot. All secondary trails shall be owned and maintained by the subdivision HOA and shall be available for public use.
(A) Purpose and Intent
The Airport Overlay is established to accomplish the following purposes:
(1) To limit allowable land uses in the immediate vicinity of Raleigh-Durham International Airport to non-residential uses, such as industrial, agricultural, commercial, or conservation uses, which are not subject to high population concentrations, and to keep residential and institutional uses from developing in those areas that are subject to the highest levels of aircraft noise;
(2) To ensure that such uses are located, designed, constructed, and maintained in a manner that does not impair the safe operation of the airport;
(3) To ensure that such uses contribute to the attractiveness of the roadside, which will in turn contribute to and enhance trade, tourism, capital investment, property values, and the general welfare; and
(4) To ensure that such uses are in compliance with the Raleigh-Durham International Airport Height Zoning Ordinance and other supplemental regulations.
(B) Location and Applicability; Compliance Required
The Airport Overlay is an overlay district that applies over lands in the vicinity of the Raleigh-Durham International Airport. The boundaries of the Airport Overlay shall be shown on the Official Zoning Map.
(C) Process for Reviewing Developments; Approval by the Raleigh-Durham Airport Authority
(1) Raleigh-Durham Airport Authority Approval
The authority shall be involved with the review of development plans and building permits for structures over fifty (50) feet as measured to the highest part of the structure. The following requirements are to ensure compliance with the authority's ordinances.
(a) No development plan for property located within the Overlay may be approved unless notification has been received from the Airport Authority that the development complies with its Height Zoning Ordinance and any other supplemental regulations that may apply. The applicant is required to secure and provide the necessary documentation from the Authority on compliance with its ordinances to the Planning Director.
(b) No building permit shall be issued for establishment of a structure or expansion of an existing structure at a height of greater than fifty (50) feet unless there has first been issued by the Raleigh-Durham Airport Authority (1) a permit for the structure under the provisions of its ordinances, or (2) a determination that a permit is not required for the structure.
(2) Supplemental Regulations of the Raleigh-Durham International Airport Authority
All development within the Airport Overlay shall also comply with the airspace regulations adopted by the Raleigh-Durham International Airport Authority, as may be amended from time to time, which are incorporated herein by reference. Whenever said airspace regulations impose more stringent requirements or limitations than are required by this Ordinance, the provisions of the airspace regulations shall control.
(D) Prohibited Uses and Structures
(1) Prohibited Uses
(a) Residential uses, including all forms of dwellings, manufactured homes, nursing homes, and life care communities;
(b) Places of public assembly and institutional uses including schools, colleges, churches, day care centers, clubs and lodges, libraries, museums, and hospitals, but not including arenas or stadiums for sporting events;
(c) Indoor and outdoor amusement establishments;
(d) Guest houses;
(e) Correctional or penal institutions;
(f) Radio and television broadcasting stations;
(g) Landfills or quarries;
(h) Warehousing/above-ground bulk storage of explosive, hazardous, flammable, or combustible materials, and related facilities or operations that could pose a threat to the welfare of the public in the event of an aircraft crash or other mishap;
(i) Petroleum refining and other related uses that may be susceptible to explosion or fire;
(j) Outdoor storage of certain goods and materials, including but not limited to the following: oxides; coal; ores; minerals; produce; furniture; flammable or combustible building supplies; paper and frame products; or wrecked, dismantled or partially dismantled vehicles.
(k) Wildlife sanctuaries, refuges, and other uses that may be an attractant to birds.
(2) Prohibited Lighting
(a) Any moving, pulsating, flashing, rotating, or oscillating light, other than navigational markings or lights marking potential obstructions in accordance with Federal Aviation Administration requirements;
(b) Flood lights, spot lights, or other lighting devices which are not shielded so as to prevent illumination in an upward direction;
(c) Any lights which make it difficult for pilots to distinguish between airport lights and others, results in glare in the eyes of pilots using the airport, impairs visibility in the vicinity of the airport or otherwise in any way endangers or interferes with the landing, takeoff or maneuvering of aircraft intending to use the airport.
(3) Prohibited Electronic Signals
Any electronic impulse or signal which interferes with radio communications between aircraft and the airport, or which interferes with established navigation aids, is prohibited in the Airport Overlay.
(4) Prohibited Structures
Structures in excess of the applicable height limit established for the Zones specified in the "Raleigh-Durham International Airport Height Zoning Ordinance" adopted by the Raleigh-Durham Airport Authority and as may be amended from time to time by the Raleigh-Durham Airport Authority are prohibited in the Airport Overlay. Structure means an object, including a mobile object, constructed, or installed by man, including, but not limited to, buildings, towers, cranes, earth formations, and overhead transmission lines.
(E) Nonconforming Uses and Structures
Nonconforming uses and structures may be continued in the Airport Overlay in accordance with Chapter 10 of this Ordinance. However, no building permit shall be issued that would allow the expansion of a structure or use that does not comply with the requirements of this Ordinance.
(F) Location of Buildings and Parking Areas
All buildings and structures located in the Airport Overlay shall meet the minimum setback requirements of the underlying zoning district and any other applicable setback requirements set forth elsewhere in this Ordinance. All parking areas in the Airport Overlay shall be located no less than thirty (30) feet from the right-of-way of a major thoroughfare.
(A) Purpose and Intent
The intent of the Watershed Protection Overlay is to ensure the availability of public water supplies at a safe and acceptable level of water quality for present and future residents of the Town and the surrounding region. Watershed protection measures allowed by this section include:
(1) Restriction of land uses allowed within water supply basins;
(2) Impervious area and density limitations; and
(3) Engineered stormwater control measures and the best management practices as listed in the Department of Environmental Quality State Design Manual.
(B) Applicability
(1) Designated Watersheds
The Watershed Protection Overlay is an overlay district to be applied to all lands lying within the watershed of a public water supply. The boundaries of the Watershed Protection Overlay shall be shown on the Town of Cary Official Zoning Map. The Watershed Protection Overlay consists of three sub-areas:
(a) Swift Creek Watershed;
(b) Jordan Lake Watershed; and
(c) Jordan Lake Watershed Critical Water Quality Area.
(2) Applicability to Development Activity
(a) The following types of development activity are exempt from the requirements of this Section 4.4.6:
1. Development existing prior to June 30, 1993;
2. Development on vacant lots inside of PDs approved prior to June 30, 1993;
3. Development on vacant lands in subdivisions platted prior to June 30, 1993, unless such lands have undergone a zoning change after June 30, 1993 and new development is required to submit a development plan; and
4. Redevelopment provided there is no increase in the total amount of impervious surface for a lot or development site.
(b) The requirements of this Section 4.4.6 shall apply to the following:
1. Vacant land that is rezoned from its designation in place on June 30, 1993;
2. New lands added to a planned development after June 30, 1993, even if the original planned development was approved prior to June 30, 1993;
3. Development in a planned development if the development had to be amended after June 30, 1993, to accommodate the development;
4. Any expansions to existing development in place as of June 30, 1993 (provisions are only applied to the addition, not the impervious surface in place on June 30, 1993).
(3) Sedimentation and Erosion Control
Responsible control of erosion and sedimentation is crucial to the protection of stormwater quality and the continued proper function of the measures required in this section. Requirements pertaining to sedimentation and erosion control are addressed in Section 14.4 of this Ordinance.
(C) Procedures for Development Approval
(1) Development Review
All development within the Watershed Protection Overlay shall demonstrate compliance with the requirements of this Section 4.4.6 at the time of approval of a development plan. Applicants complying with the standards of this section must also satisfy all other applicable requirements and obtain all other necessary approvals or permits under this Ordinance.
(2) Protection Measures Prerequisite to Certificate of Occupancy
A Certificate of Occupancy shall not be issued for any development in the Watershed Protection Overlay until all of the watershed protection measures required by this section have been approved and are in place on the property.
(D) Overview of High Density and Low Density Development Options
There are two (2) development options in the Watershed Protection Overlay, a Low Density Option and a High Density Option, each with different provisions related to either the Swift Creek Watershed or the Jordan Lake Watershed as well as to sub-areas within either watershed.
(1) Impervious Surfaces
The maximum allowable amount of impervious surface within a proposed development is limited based upon the Low or High Density Option, and differs from Watershed to watershed as depicted in Table 4.4-5.
(2) Calculation of Impervious Surfaces
Calculation of impervious surface area shall include the pavement area of all existing and proposed internal public and private streets, one-half (1/2) of the width of roadways on the perimeter of the project, driveways, rooftops, parking lots, patios, and all other impervious surfaces. For the purpose of calculating the impervious surface of roadways on the perimeter of a project, the ultimate pavement cross section of the roadway based on the Comprehensive Transportation Plan and any sidewalk(s) or greenway(s) along the perimeter roadway will be included in the calculation. For purposes of calculating the percentage of impervious area coverage, the total project area shall be regarded as the actual area of the property plus the area within the rights-of-way of the internal and perimeter streets included in the calculation of impervious area.
(3) Residential Density
In addition to limitations on the amount of impervious surface, the Low and High Density Development Options limit the gross residential densities of projects based upon the watershed where they are proposed, with higher densities allowed under the High Density Option as depicted in Table 4.4-5.
(4) Runoff Control
Engineered stormwater control measures intended to contain the runoff from the first one (1) inch of rainfall are required in any development utilizing the High Density Option in either watershed.
(E) Restrictions on Allowed Uses
The uses allowed within the Watershed Protection Overlay are the same as the uses permitted in the general use zoning district within which the land is located, pursuant to Table 5.1-1. However, the following uses are allowed within the overlay district only if they comply with the performance standards set forth in this Section 4.4.6.
(1) Swift Creek Watershed and the Jordan Lake Watershed
(a) All industrial service uses;
(b) All waste-related uses;
(c) Uses producing and/or storing toxic and/or hazardous materials; and
(d) Any use discharging sewage, industrial waste and/or non-process industrial waste.
(2) Jordan Lake Watershed Critical Water Quality Area
All uses set forth in paragraph (1) above; and all agricultural uses.
(F) Limitations on Impervious Surface Area and Density
(1) Low Density Option
Maximum impervious surface limits for the Low Density Option are set forth in the table below. Separate regulations are provided for the Jordan Lake and Swift Creek areas. The Jordan Lake regulations recognize two sub-areas, the Critical Area and the remainder of the watershed; while the Swift Creek regulations distinguish between three (3) different sub-areas: New Suburban, New Urban, and Existing Urban development. These sub-areas are depicted on the Town's Official Zoning Map.
Suburban-New | Urban-New | Existing Urban | ||
Residential | Non-Residential | Residential | Non-Residential | Residential and Non- Residential
|
Swift Creek Watershed
| ||||
Suburban-New | Urban-New | Existing Urban | ||
Residential | Non-Residential | Residential | Non-Residential | Residential and Non- Residential
|
Swift Creek Watershed
| ||||
Two and one-half (2.5) dwelling units per acre not to exceed twelve (12) percent impervious surface area. | Twelve (12) percent | Six (6.0)
dwelling units per acre east of Holly Springs
and Jones Franklin Roads, Greater than six (6.0) units per acre west of Holly Springs and Jones Franklin Roads, not to exceed twelve (12) percent,
impervious surface area. | Twelve (12) percent | The impervious surface of the underlying zoning of the property not to exceed
twelve (12) percent
impervious surface area. |
Jordan Lake Watershed
| ||||
Impervious surfaces shall not exceed twenty-four (24) percent of the project area, or two (2)
dwelling units
per acre; or three (3)
dwelling units
per acre and thirty-six (36) percent
impervious surface area
for projects containing streets built without curbs and gutters. | ||||
Jordan Lake Watershed Critical Area
| ||||
Non-residential and multi-family residential development's impervious surface ratios shall not exceed twenty-four (24) percent. Residential density (other than multi-family) shall not exceed two (2) dwelling units per acre. | ||||
(2) High Density Option
High Density Option development proposals may be approved, provided that the development applications are consistent with the following standards:
Suburban-New | Urban-New | Existing Urban | |||
Residential | Non-Residential | Residential | Non-Residential | Residential and Non-Residential | |
Swift Creek Watershed
| |||||
Suburban-New | Urban-New | Existing Urban | |||
Residential | Non-Residential | Residential | Non-Residential | Residential and Non-Residential | |
Swift Creek Watershed
| |||||
Maximum Impervious Surface Limits | Two and one- half (2.5)
dwelling units per acre not to exceed
thirty (30) percent
impervious surface area. | The impervious area allowed under the underlying general use zoning districts, not to exceed
thirty (30) percent
. | Six (6.0)
dwelling units per acre east of Holly Springs
and Jones Franklin Roads. Greater than six (6.0) units per acre west of Holly Springs and Jones Franklin Roads, not to exceed seventy (70) percent
impervious surface area. | The impervious area allowed under the underlying general use zoning districts, not to exceed
seventy (70) percent
. | The impervious area allowed under the underlying general use zoning districts, not to exceed
seventy (70) percent
. |
Sewer | Required | ||||
Impoundment and Maintenance | Required to contain and treat the runoff from the first one (1) inch of rainfall and to achieve a minimum of eighty-five (85) percent average annual removal for Total Suspended Solids (TSS). Public or private maintenance. [Other SCMs besides impoundments may be available; consult the Department of Environmental Quality State Design Manual.] | ||||
Jordan Lake Watershed
| |||||
Where new development exceeds the Low Density Option Standards above, stormwater control measures shall be used to control and treat runoff from the first inch of rainfall and to achieve a minimum of eighty-five (85) percent average annual removal for Total Suspended Solids (TSS). Development shall not exceed seventy (70) percent impervious surface area. | |||||
Jordan Lake Watershed Critical Area
| |||||
Where proposed development exceeds the Low Density Option Standards above, stormwater control measures are required to control and treat runoff from the first inch of rainfall and to achieve a minimum of eighty-five (85) percent average annual removal for Total Suspended Solids (TSS). Development shall not exceed fifty (50) percent impervious surface area. | |||||
(G) Engineered Stormwater Control Measures
(1) Ownership and Design Requirements
Stormwater control measures shall be owned by a property owner's association, or, for non-residential or multi-family development, the owner of the property. All stormwater control measures shall be designed by either a North Carolina registered professional engineer or landscape architect, to the extent that the N.C. General Statutes allow. Other stormwater systems shall be designed by a North Carolina registered professional with qualifications appropriate for the type of system required; these registered professionals are defined as professional engineers, landscape architects, to the extent that the N.C. General Statutes allow and land surveyors, to the extent that the design represents incidental drainage within a subdivision, as provided in N.C. General Statutes.
(2) Measures Required for High-Density Option
(a) All development under the high-density option shall use engineered stormwater control measures as a primary treatment system. Engineered stormwater control measures shall be designed for specific pollutant removal according to modeling techniques approved by the North Carolina Department of Environmental Quality. Specific requirements for these systems shall be in accordance with the State’s Minimum Design Criteria and Cary’s Standard Engineering Details and Specifications Manual.
(b) SCM’s that control stormwater on a runoff volume basis may be used in lieu of an SCM designed for specific pollutant removal in accordance with Section 4.4.6(G)(2)(a) provided that the post development volume of stormwater leaving the site is equal to or less than the predevelopment volume for the ninetieth (90th) percentile storm.
(3) Ground Cover Required
In addition to the vegetative filters required in Cary’s Standard Engineering Details and Specifications Manual, all land areas outside of the engineered stormwater control measures shall be provided with a ground cover sufficient to restrain erosion within fifteen (15) days after any land disturbance. Upon completion of the stormwater control measure, a permanent ground cover shall be established and maintained as part of the maintenance plan described in Section 4.4.6(G)(8) below.
(4) Legal Description Required
A legal description of the area containing the stormwater control measure shall be prepared and filed consistent with Section 4.4.6(G)(8) as a separate deed with the appropriate County’s Register of Deeds along with any easements necessary for general access to the stormwater control measure. The deeded area shall include sufficient area to perform inspections, maintenance, repairs and reconstruction. The deeded area shall include, but is not limited to detention pond, vegetative filters, all pipes and water control structures, berms and dikes.
(5) Computation of Total Built-Upon Area
Qualifying areas of the stormwater control measure may be considered pervious when computing total built-upon area. However, if the measure is used to compute the percentage built-upon area for one (1) site, it shall not be used to compute the built-upon area for any other site or area.
(6) Stormwater Control Measures
Stormwater Control Measures (SCM) including Regional SCM’s designed following the State Design Manual and Cary’s Standard Engineering Details and Specifications Manual, properly constructed, with all required financial assurances and maintenance agreements in place may be regarded as adequate to satisfy the requirements of the entire upstream contributory drainage basin.
(7) Establishment of a Dedicated Maintenance Account
Owners of a privately owned and maintained stormwater control measure shall establish, collect, and retain funds in a segregated account equal to ten (10) percent of the stormwater control measure’s original cost of construction as determined by a licensed Professional Engineer. Such funds shall be used solely for the purposes of maintaining, repairing, replacing, and reconstructing the owner’s stormwater control measures. The required funds shall be collected and retained in the segregated account within five (5) years from the date of the Certificate of Watershed Compliance.
(8) Certificate of Watershed Compliance
(a) Easement and Maintenance Agreement
For all development built under the high-density development option, the owner shall enter into a binding Stormwater Control Structure Access and Easement Agreement (Easement and Maintenance Agreement) with the Town. Said Easement and Maintenance Agreement shall require the owning entity to inspect, maintain, repair and, if necessary, reconstruct the stormwater control measure in accordance with the operation and maintenance plan or manual provided by the owner. The owner of the stormwater control measure shall file the Easement and Maintenance Agreement with the appropriate County’s Register of Deeds.
(b) The Stormwater Manager shall inspect the stormwater control measure after the owning entity notifies the Stormwater Manager that all construction-related work has been completed. At this inspection, the owning entity shall provide the following documents for the Stormwater Manager’s review:
1. The executed deed, related easements, maintenance agreement, and survey plat for the stormwater control measure ready for filing with the appropriate County’s Register of Deeds;
2. A certification sealed by a qualified professional stating that the stormwater control measure is complete and complies fully with the approved plans and specifications; and
3. Reproducible as built plans and/or record drawings showing the stormwater control measures.
(c) If deficiencies are found in the documents required by Section 4.4.6(G)(8)(b), the Stormwater Manager shall direct the owning entity to correct the deficiencies, make improvements, and/or correct the documents and submit proof of the corrections and/or improvements to the Stormwater Manager.
(d) Upon the Stormwater Manager’s approval of the documents, the owning entity shall file the Easement and Maintenance Agreement and survey plat with the appropriate Counties’ Register of Deeds and provide proof of recordation to the Stormwater Manager.
(f) A Certificate of Occupancy shall not be issued for the final building within the permitted development until the Stormwater Manager has issued the Certificate of Watershed Compliance.
(9) Maintenance and Inspections
(a) An operation and maintenance plan or manual shall be provided by the developer for each stormwater control measure, indicating what operation and maintenance actions are needed, what specific quantitative criteria will be used for determining when those actions are to be taken and who is responsible for those actions. The plan shall clearly indicate the steps that will be taken for restoring a stormwater control measure to design specifications if a failure occurs.
(b) The owner of each stormwater control measure shall submit a Maintenance Inspection Report annually on the anniversary date of the Certificate of Watershed Compliance to the Stormwater Manager. A qualified professional, licensed in the state of North Carolina, shall conduct the inspection. Records of inspection shall be maintained on forms approved or supplied by Cary and shall be provided to the Stormwater Manager in a timely manner.
(c) In the event the annual inspection reveals the need for corrective action or improvements, the Stormwater Manager shall notify the owning entity of the needed improvements and the date by which the corrective action is to be completed. All improvements shall be made consistent with the plans and specifications of the stormwater control measure and the operation and maintenance plan or manual as provided by Section 4.4.6(G)(9)(a). After all corrective actions have been taken, the qualified professional shall re-inspect the stormwater control measure and certify that the appropriate corrective actions have been taken.
(d) Landscaping and grounds management shall be the responsibility of the owning entity. However, vegetation shall not be established or allowed to mature to the extent that the integrity of the stormwater control measure is diminished or threatened, or to the extent of interfering with any easement or access to the stormwater control measure.
(e) Except for general landscaping and grounds management, the owning entity shall notify the Stormwater Manager prior to any repair or reconstruction of the stormwater control measure. All improvements shall be made consistent with the approved plans and specifications of the stormwater control measure and the operation and maintenance plan or manual. After all repairs have been completed, the owning entity shall engage the services of a qualified professional, licensed in the state of North Carolina, to inspect said improvements and to issue a report to the Stormwater Manager. The owning entity shall perform all additions, changes, or modifications noted in the inspection report supplied by the qualified professional in a timely manner.
(f) The Stormwater Manager retains the right to perform inspections, deemed necessary by the Stormwater Manager, on any stormwater control measure.
(g) Amendments to the plans and specifications of the stormwater control measure and/or the operation and maintenance plan or manual shall be submitted to the Stormwater Manager for review. Proposed changes shall be prepared by a qualified professional.
1. If the Stormwater Manager approves the proposed changes, the owning entity of the stormwater control measure shall file sealed copies of the revisions with the Office of the Stormwater Manager.
2. If the Stormwater Manager disapproves the changes, the proposal may be revised and resubmitted as a new proposal. If the proposal has not been revised and is essentially the same as that already reviewed, it shall be returned to the applicant.
(h) If the Stormwater Manager finds that the operation and maintenance plan or manual is inadequate for any reason the Stormwater Manager shall notify the owning entity of any required changes and the owning entity shall prepare and file copies of the revised agreement first with the appropriate County’s Register of Deeds. The owning entity shall then file a copy certified by the Register of Deeds with the Stormwater Manager.
(10) Appeals of any order, requirement, decision, or determination made by the Stormwater Manager pursuant to this Section 4.4.6(G) may be made to and decided by the Zoning Board of Adjustment.
(H) Clustered Development Option
Clustering of development in the Watershed Protection Overlay may be allowed as an optional configuration in either Low Density or High Density developments on a project-by-project basis. Clustering shall follow the procedures and standards set forth in Section 8.4, and is subject to the following additional criteria:
(1) The overall density and/or impervious surface coverage of the project may not exceed the density and/or impervious surface coverage allowed under either the Low Density or the High Density option. At a minimum, lot sizes shall conform to the standards of the TR district (see Chapter 6) for residential cluster development projects; however the total number of lots shall not exceed the number of lots allowed for residential subdivision development under any Chapter 4 zoning district; and
(2) Impervious surfaces shall be designed and sited to minimize stormwater runoff impacts on the receiving waters and to minimize the concentration of stormwater flow; and
(3) The remaining undeveloped portion of the tract shall remain in an undisturbed vegetated or natural state. Where the development has an established property owner's association, the title to the open space area shall be conveyed to the association. Where a property owner's association has not been established, a maintenance agreement shall be filed with the County's Register of Deeds.
(I) Modifications and Variances
Requests for relief from the requirements of this Section 4.4.6 shall be decided either by the Zoning Board of Adjustment or by the Environmental Management Commission, depending on the watershed and the type of standard from which relief is sought.
(1) Variances Granted by the Environmental Management Commission
The Environmental Management Commission shall have the sole authority to grant major variances from the provisions of this Section 4.4.6 for properties in the Jordan Lake Watershed and Jordan Lake Watershed Critical Area. For purposes of this section, a major variance is a variance from the minimum statewide watershed protection or Jordan Rules (contained in 15A NCAC Chapter 2B) that results in (a) the relaxation, by factor greater than five percent (5%) of any buffer, density or built upon area requirement under the high density option; (b) any variation in the design, maintenance or operation requirements of a wet detention pond or other approved stormwater management system; or (c) relaxation by a factor greater than ten percent (10%), of any management requirement under the low density option.
(2) Modifications Granted by the Zoning Board of Adjustment
The Zoning Board of Adjustment shall have primary, but not sole, authority to grant modifications from the provisions of this Section 4.4.6 for properties in the Swift Creek Watershed, pursuant to this Sub-section.
(a) In the Swift Creek Watershed, the Zoning Board of Adjustment may modify the standards of Section 4.4.6(F), Limitations on Impervious Area and Density, where using perimeter or adjacent roadways in the impervious surface calculation causes a development to exceed the allowed impervious surface percentage.
(b) In the Swift Creek Watershed, the Zoning Board of Adjustment may modify the standards of Section 4.4.6(F), Limitations on Impervious Area and Density, to allow impervious surface ratios greater than twelve (12) percent but less than twenty-four (24) percent. However, requests for relief greater than twenty-four (24) percent shall be forwarded for review and decision by the Environmental Management Commission.
(3) Recommendation by Zoning Board of Adjustment to the Environmental Management Commission
If an application calls for the granting of a modification as listed in paragraph (2b) or paragraph (1) above that requires a decision by the Environmental Management Commission, the Zoning Board of Adjustment shall first reach a recommendation on the modification in accord with the requirements of Section 3.19. If the Zoning Board of Adjustment decides in favor of granting the modification, the Zoning Board of Adjustment shall prepare a preliminary record of the hearing as soon as possible and forward it to the Environmental Management Commission. The preliminary record of the hearing shall include:
(a) The modification application;
(b) The hearing notices;
(c) The evidence presented;
(d) Motions, offers of proof, objections to evidence, and rulings on them;
(e) Proposed findings and exceptions;
(f) The proposed decision, including all conditions proposed to be added to the permit.
(4) Decision by the Environmental Management Commission
(a) Approval
If the Commission approves the variance as proposed or with additional conditions, the Commission shall prepare a decision and send it to the Zoning Board of Adjustment. The Zoning Board of Adjustment shall prepare a final decision in accordance with the Commission's decision.
(b) Disapproval
If the Commission denies the variance as proposed the Commission will prepare a decision and send it to the Zoning Board of Adjustment. The Zoning Board of Adjustment shall prepare a final decision in accordance with the Commission's decision.
(J) Violations; Enforcement
This Section 4.4.6 shall be enforced by the Town Manager or designee. Any person or association who fails to comply with any provision of this Section 4.4.6, or who fails to submit a report, or who submits a fraudulent or false report, shall be in violation of this Ordinance for each occurrence or non-compliance.
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