§ 156.128  LAND DISTURBING ACTIVITIES.
   (A)   Mandatory standards for land disturbance activities.
      (1)   The provisions of this section shall apply to any land disturbance activity regardless of the size of the disturbed area. A land disturbance permit is required as provided in division (B)(1) below.
      (2)   Land disturbing activities, excluding necessary clearing and grubbing shall not be permitted within 5 feet from any property line with the exception of drainage and storm water improvements and underground utilities.  Landscaping and fences located within this area are permitted as long as they do not impede the flow of storm water.  Land disturbances on front (street) property lines for driveways shall be limited to culvert, drainage, and driveway improvements and shall comply with all provisions of this chapter.
      (3)   Fill is not allowed within 5 feet of any side or rear property line except to directly match a higher adjacent grade at the property line. Fill is not allowed within 5 feet of the front (street) property line except to directly match the grade at the street and to accommodate driveway improvements as approved by the Zoning Administrator or Town Council.
      (4)   Except as provided in § 156.128(A)(3) above, a lot shall not be filled/graded higher than the adjacent grades or nearer than 5 feet to any property line in any of the following circumstances:
         (a)   When the Dare County Health Department determines that fill is necessary for a septic system to function properly, the fill area shall be limited to the septic system and drainfield areas and the maximum fill shall not exceed 24 inches. Copies of the septic permit, once issued by the Health Department, shall be submitted to the Planning Department verifying the amount of fill material needed and the location of the septic improvements as authorized by the Health Department. Fill  material used in conjunction with the installation of septic improvements shall be graded and sloped to avoid runoff on adjacent properties, rights-of-way, waterways and easements.
         (b)   An additional 12 inches of fill above the septic system and drainfield fill (if septic and drainfield fill has been required by the Health Department) may be allowed for the house pad to ensure adequate flow from the building to the septic system.
         (c)   When fill is required to raise the lot elevation to the base flood elevation. If more than 36 inches of fill material is necessary to raise a lot to base flood elevation, the applicant for a land disturbance permit shall submit a drainage plan prepared by a North Carolina licensed surveyor, North Carolina licensed engineer, North Carolina licensed landscape architect, or North Carolina licensed soil scientist depicting how stormwater on the site will be managed to avoid runoff on adjoining properties, rights-of-way, waterways and easements shall also be submitted at the time building permits are requested.  The plan shall depict the existing and proposed elevations at all property lines around the perimeter of the site and internal to the site where improvements, including septic improvements, are proposed.  The grading and shaping plan shall depict the areas on the site where fill material will be placed and the limits of the fill material in relation to the property lines.  The grading and shaping of the fill material shall be completed so that no fill material is located within 5 feet of any property line.  Fill material shall be graded to avoid runoff on adjoining properties, rights-of-way, waterways and easements.  If drainage improvements and/or stormwater measures such as infiltration basins, swales or ditches are used to address stormwater runoff, the improvements may be placed within this 5-foot area.  Design details on guttering and downspout systems, if utilized, shall be provided in the plan.  This grading and shaping  plan shall be submitted a minimum of 5 days before building permits are requested for construction on the site to allow review by the planning staff.  An on-site visit with the planning staff may be requested as part of the review process.  Verification of the completion of the drainage plans as proposed shall be submitted before the certificate of occupancy is released by the Duck Building Inspector.
         (d)   When permitted by special use granted by the Town Council in accordance with the procedures established in § 156.155. For all special use requests to fill lots in excess of 36 inches, the drainage plan submission requirements described in division (A)(4)(c) above shall also apply.
         (e)   All fill shall be established at a slope not to exceed 3 feet horizontal run for every 1-foot vertical rise. The toe of the slope shall meet the 5-foot setback requirement from all property lines.
         (f)   No fill of any kind shall be allowed within 5 feet of any property line except as associated with a driveway, bulkhead or other permitted setback encroachments.
         (g)   Driveways shall taper back to existing grade no less than 5 feet from the front property line and shall be designed to the extent reasonable to prevent the direct flow of stormwater runoff to streets or adjacent properties.
         (h)   Stormwater retention areas may be located up to property lines provided no fill therefor is located within 2 feet of the property lines.
         (i)   Guttering and rooftop rainwater collection systems shall not flow directly onto driveways, impervious surfaces, or adjacent properties.
      (5)   A permanent ground cover, sufficient to prevent erosion, must be established on all fill slopes as follows:
         (a)   Prior to issuance of the certificate of occupancy for construction projects; or
         (b)   For projects where land disturbance activity has ceased for more than 6 months, whichever occurs first.
      (6)   Bulkheads or retaining walls shall not be allowed as a method to stabilize or contain fill, except bulkheads established for shoreline protection and as otherwise permitted by special use permit granted by the Town Council. Retaining walls used to stabilize or contain existing natural grade when a driveway or walkway is cut into a lot at an elevation lower than existing natural grade may be approved by the Planning Director.
      (7)   Any lot requiring a land disturbance permit shall install erosion and sediment control measures to prevent sediment from leaving the site. The erosion and sediment control measures shall be implemented on the site prior to the commencement of land disturbing activities and shall be continuously maintained during the land disturbance phase of development.
      (8)   In cases of substantial natural grade differences between adjoining lots of the subject property, the Town Council may grant, by special use permit, deviations from the standards contained herein.  The applicant shall submit a certified, engineered storm water plan with the applicant’s application for a special use permit.  The storm water plan shall verify that the proposed development will not create flooding or nuisance conditions on the lower adjacent lots.  In no case shall the rear and side yard no fill zones be encroached upon with fill.
      (9)   A fill permit issued by the North Carolina Division of Water Quality shall be required to fill any 401 wetlands.
      (10)   A fill permit issued by the United States Army Corp of Engineers shall be required to fill any 404 wetlands.
      (11)   Fill materials shall be of substantially similar composition to the soils present on the lot being filled and shall not include debris or be finished with soils or materials that will adversely affect the absorption of storm water.
      (12)   Residential lots may be graded, subject to the requirements of this section, to create a level area for a single-family detached dwelling and its accessory structures and driveway/parking areas. Fill material that is either brought to the lot or re-graded on the lot under the footprint of the principal dwelling unit is subject to the following limitations. For the purposes of this subchapter, the building footprint shall be considered the plan view of the heated area of the principal dwelling unit. Pre-disturbance elevations shall be taken at the four corners of building footprint. In cases where the building footprint is irregular and has more than four sides, pre-disturbance elevations shall be taken using the four building corners closest to the four corners of the smallest square or rectangle that could be drawn to encompass the footprint.
         (a)   No ground elevation anywhere on the lot, including beneath the final house footprint location, may be increased by more than 3 feet or 36 inches above the pre-disturbance ground elevations without submission and approval by the Town Council of a stormwater management plan, except as provided in division (b) below.
         (b)   Lot depressions that are interior to the lot a minimum of 5 feet from all lot lines may be filled, either by grading materials from other locations on the lot or by bringing in like-kind material, no higher than to the level of the directly adjacent pre-disturbance grade completely surrounding the depression. The post-fill condition shall be considered as the pre-disturbance ground elevations of such depressions in permitting leveling and calculating building height.
         (c)   Where fill/grading is not necessary to raise a house to base flood elevation, there shall be a maximum allowance of 3 feet of rise in ground elevation from the lowest pre-disturbance ground elevation beneath the footprint of the house as a leveling factor. Any filled/graded rise in ground elevation greater than 3 feet at any location under the footprint of the dwelling unit that is not necessary to raise a dwelling to base flood elevation shall be calculated as part of the height of the dwelling unit, per the definition of building height.
   (B)   Land disturbance permit required.
      (1)   A land disturbance permit shall be required for filling and/or grading a lot; any lot clearance, filling or grading activity prior to issuance of a building permit; any installation of gravel or pavers or accessory structures and similar site features whether or not subject to building permit requirements; and any removal or installation of site features such as septic systems, wells and drainage systems that disturb the land.
      (2)   (a)   The land disturbance permit application shall be filed with the Planning Director or his or her designee. The following information shall be submitted as part of the permit application:
            1.   Adjacent property grades;
            2.   Approximate depth of seasonal high water table;
            3.   Existing elevations sufficient to determine the drainage patterns on site and on adjoining sites;
            4.   Locations and elevations of the adjoining street pavement, shoulder, ditches, drainage systems, upstream and downstream driveway culverts;
            5.   Proposed elevations of the top of bank and toe of slope and limits for fill necessary to construct the dwelling, including driveway access;
            6.   For all grading/filling activities up to 36 inches of fill material, a survey depicting the existing and proposed ground elevations shall be submitted at the time building permits are requested. The survey shall also depict the areas on the site where fill material will be placed and the limits of the fill material in relation to the property lines. Fill material shall be graded to avoid runoff on adjoining properties, rights-of-way, waterways and easements. Fill material shall not be located within 5 feet of any property line;
            7.   A topographic plan (shown in 1-foot intervals) shall be required for all development where changes in the natural grade of the property greater than 36 inches in height is proposed or has taken place in the past year. The plan shall indicate the location and elevation changes above or below natural grade and contain the following certificate:
   I, _________________, owner/agent do hereby certify that I will develop the property in accordance with the approved plans which will be constructed or maintained so that surface waters from the development are not unreasonably collected and channeled onto lower adjacent properties at locations or at volumes as to cause substantial damage to the lower adjacent properties. In addition, the property will be constructed or maintained so that it will not unreasonably impede the natural flow of water from higher adjacent properties across the development, thereby unreasonably causing substantial damage to such higher adjacent properties. On the site plan entitled ___________________, storm water drainage improvements shall be installed according to these plans and specifications and approved by the Town of Duck. The Town of Duck assumes no responsibility for the design, maintenance or the guaranteed performance of the storm water drainage improvements.
Date: _________
______________________________ Owner/Agent
______________________________ Registered Land Surveyor/Civil Engineer
____________ Date
            8.   Location of existing and proposed improvements including features such as driveways and gravel parking areas, structures, patios, walkways and septic systems.
         (b)   Plan copies. Two copies of the land disturbance permit plans shall be filed with the permit application for administrative review. Seven copies of plans shall be submitted as part of a special use request.
      (3)   Prior to issuance of the land disturbance permit, an on-site inspection of the project site may be scheduled by the Planning Director or his or her designee to evaluate the pre-disturbed conditions of the site and review and discuss the proposed land disturbance activity.
      (4)   For all grading/filling activities requiring a special use under the terms of this chapter, the use shall be approved prior to issuance of the land disturbance permit.
      (5)   After issuance of the land disturbance permit, an on-site inspection shall be conducted by the Planning Director or his or her designee to ensure adequate erosion control measures and project activities are in compliance with this chapter. When the Planning Director or his or her designee determines that erosion and sedimentation will likely continue, despite installation and maintenance of protective practices, the person conducting the land disturbance activity will be required to undertake additional protective measures as are required to meet permit requirements.
      (6)   For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
         ADJACENT GRADE.  The highest grade measured within 30 feet from the subject property lines into the adjoining lots. For filling activities to match the grade at the adjacent property line, the grade shall be shown on a recent survey as described herein at the lot corners and along the lot lines as necessary to determine the elevation of the directly ADJACENT GRADE.
         FILL.  Any material placed or graded on a lot where the material has the effect of increasing the elevation of any portion of the lot.
      (7)    Any development that requires a CAMA major development permit or a sedimentation and erosion control plan shall be subject to the state storm water runoff policies promulgated in 15 N.C.A.C. 2H § .1000, unless exempted by those regulations. The town may not issue a zoning or special use permit and may not grant final plat approval for subdivisions with respect to any development that would cause land disturbing activity requiring prior approval of an Erosion and Sedimentation Control Plan by the North Carolina Sedimentation Control Commission under G.S. § 113A-57(4) (Mandatory Standards for Land Disturbing Activity) unless the Commission has certified to the town, either that:
         (a)   An erosion and sedimentation control plan has been submitted to and approved by the Commission; or
         (b)   The Commission has examined the preliminary plans for the development and it reasonably appears that an erosion and sedimentation control plan can be approved upon submission by the developer of more detailed construction or design drawings. However, in this case, construction of the development may not begin (and no building permits may be issued) until the Commission approves the erosion and sedimentation control plan.
   (C)   Special uses for fill/grading activities.
      (1)   All proposals to add fill on a lot in excess of 36 inches shall require approval of a special use application by the Town Council in accordance with the procedures established in § 156.155.
      (2)   The Town Council may grant a special use only after determining that the application meets the following criteria:
         (a)   The site for the proposed fill is otherwise adequate in size, shape and other characteristics to accommodate the proposed project;
         (b)   The applicant has demonstrated that the requirements of this chapter are unreasonable or impractical due to the necessity for the fill, lot shape, topographical features, location of mature vegetation, or location and characteristics of existing improvements on the lot;
         (c)   The amount of fill proposed is the minimum necessary to accommodate the proposed project, especially for soundfront properties;
         (d)   The proposed fill will not negatively impact adjacent properties or the surrounding area, especially for soundfront properties;
         (e)   The special use will be consistent with any applicable goals, policies and objectives specified in the town’s adopted CAMA Comprehensive & Land Use Plan and vision statement. This review includes the town’s evaluation of the proposal’s consistency with its adopted CAMA Comprehensive & Land Use Plan, which may be more flexible or more stringent than interpretations by others; and
         (f)   The applicant has submitted a drainage plan consistent with the requirements described in § 156.128(A)(4)(c).
(Ord. 05-06, passed 5-4-2005; Am. Ord. 07-13, passed 10-3-2007; Am. Ord. 07-18, passed 12-5-2007; Am. Ord. 08-04, passed 10-1-2008; Am. Ord. 09-07, passed 8-5-2009; Am. Ord. 14-02, passed 6-4-2014; Am. Ord. 15-03, passed 3-4-2015; Am. Ord. 17-03, passed 6-7-2017; Am. Ord. 21-01, passed 6-2-2021)