(A) Authority and enactment. The Legislature of the State of North Carolina has, in G.S. § 153A-121, General Ordinance Authority; in G.S. Ch. 143, Art. 21, Watershed Protection Rules, and in G.S. Ch. 160D, Art. 9, delegated the responsibility or directed local governmental units to adopt regulations designed to promote the public health, safety, and general welfare of its citizenry. The Surry County Board of Commissioners does hereby ordain and enact into law section for the purposes of watershed protection within the jurisdiction of Surry County and the Town of Dobson.
(B) Jurisdiction. The provisions of this section shall apply within the areas designated as a public water supply watershed by the N.C. Environmental Management Commission and their boundary shall be defined and established as a Watershed Overlay Zoning District on the "Official Zoning Map of Surry County, North Carolina" (or the "Zoning Map"), and in §§ 154.006. The provisions of this section shall also apply within the land use jurisdiction of the Town of Dobson, as shown on their official zoning map.
(C) Exceptions to applicability.
(1) Nothing contained herein shall repeal, modify, or amend any federal or state law or regulation, or any ordinance or regulation pertaining thereto except any ordinance which these regulations specifically replace; nor shall any provision of this chapter amend, modify, or restrict any provisions of the Code of Ordinances of Surry County; however, the adoption of this section shall and does amend any and all ordinances, resolutions, and regulations in effect in Surry County at the time of the adoption of this section that may be construed to impair or reduce the effectiveness of this section or to conflict with any of its provisions.
(2) It is not intended that these regulations interfere with any easement, covenants or other agreements between parties. However, if the provisions of this section impose greater restrictions or higher standards for the use of a building or land, then the provisions of these regulations shall control.
(3) Existing development, as defined in § 154.003-02, is not subject to the requirements of this section. Expansions to structures classified as existing development must meet the requirements of this section; however, the built-upon area of the existing development is not required to be included in the density calculations.
(4) If a non-conforming lot of record is not contiguous to any other lot owned by the same party, then that lot of record shall not be subject to the development restrictions of this section if it is developed for single-family residential purposes. Any lot or parcel created as part of a family subdivision after the effective date of these rules shall be exempt from these rules if it is developed for one single-family detached residence and if it is exempt from this chapter. Any lot or parcel created as part of any other type of subdivision that is exempt from this chapter shall be subject to the land use requirements (including impervious surface requirements) of this section, except that such a lot or parcel must meet the minimum buffer requirements to the maximum extent practicable.
(D) Repeal of previous watershed protection ordinance. This section in part carries forward by re-enactment some of the Watershed Protection Ordinance of Surry County, North Carolina (originally adopted by the Board of Commissioners on October 4, 1993, as amended), and it is not the intention to repeal but rather to re-enact and continue in force such existing provisions so that all rights and liabilities that have accrued thereunder are preserved and may be enforced. All provisions of the Watershed Protection Ordinance which are not re-enacted herein are hereby repealed. All suits at law or in equity and/or all prosecutions resulting from the violation of any ordinance provisions heretofore in effect, which are now pending in any court of this state or of the United States, shall not be abated or abandoned by reason of the adoption of this section, but shall be prosecuted to their finality the same as if this section had not been adopted; and any and all violations of the existing Watershed Protection Ordinance, prosecutions for which have not yet been instituted, may be hereafter filed and prosecuted; and nothing in this section shall be so construed as to abandon, abate or dismiss any litigation or prosecution now pending and/or which may heretofore have been instituted or prosecuted.
(E) Remedies. In addition to the remedies found in G.S. § 160D-404, the N.C. Environmental Management Commission may assess civil penalties in accordance with G.S. § 143-215.6(a). Each day that the violation continues shall constitute a separate offense.
(F) Additional subdivision regulations in watershed areas.
(1) General provisions.
(a) No subdivision plat of land within the public water supply watershed shall be filed or recorded by the Register of Deeds until it has been approved in accordance with the provisions of this section. Likewise, the Clerk of Superior Court shall not order or direct the recording of a plat if the recording of such plat would conflict with this section.
(b) The approval of a plat does not constitute or effect the acceptance by Surry County or the public of the dedication of any street or other ground, easement, right-of-way, public utility line, or other public facility shown on the plat and shall not be construed to do so.
(c) All subdivisions shall conform to the mapping requirements contained in G.S. § 47-30.
(d) All subdivisions of land within the jurisdiction of Surry County after the effective date of this section require a plat to be prepared, approved, and recorded pursuant to this section.
(2) Subdivision application and review procedures.
(a) All proposed subdivisions shall be reviewed prior to recording with the Register of Deeds by submitting a vicinity map to the Zoning Administrator to determine whether the property is located within the designated public water supply watershed. Subdivisions that are not within the designated watershed area shall not be subject to the provisions of this section and may be recorded, provided the Zoning Administrator initials the vicinity map. In addition, subdivisions within a WS-IV watershed are subject to the provisions of this section only when an erosion and sedimentation plan is required under the provisions of state law or approved local program. Subdivisions within the designated watershed area shall comply with the provisions of this section and all other state and local requirements that may apply.
(b) Subdivision applications shall be filed with the Subdivision Administrator. The application shall include a completed application form, two copies of the plat and supporting documentation deemed necessary by the Zoning Administrator or the Planning Board.
(c) The Zoning Administrator shall review the completed application and shall either approve, approve conditionally or disapprove each application. The Zoning Administrator shall take final action within 60 days of submission of the application. The Zoning Administrator or the Planning Board may provide public agencies an opportunity to review and make recommendations. However, failure of the agencies to submit their comments and recommendations shall not delay action within the prescribed time limit. Said public agencies may include, but are not limited to, the following:
1. The district highway engineer regarding proposed streets and highways;
2. The Director of the Health Department regarding proposed private water system or sewer systems normally approved by the Health Department;
3. The state Division of Water Resources regarding proposed sewer systems normally approved by the Division, engineered stormwater controls or stormwater management in general; and
4. Any other agency or official designated by the Zoning Administrator or Planning Board.
(d) If the Zoning Administrator approves the application, such approval shall be indicated on both copies of the plat by the following certificate and signed by the Zoning Administrator:
Certificate of Approval for Recording I certify that the plat shown hereon complies with §§ 154.017
, "Flood Hazard Areas and Water Supply Watershed Protection" of the Surry County Development Ordinance and is approved by the Planning Board for recording in the Register of Deeds office. Date Subdivision Administrator NOTICE: This property is located within a public water supply watershed - development restrictions may apply. |
(e) If the Zoning Administrator disapproves or approves conditionally the application, the reasons for such action shall be stated in writing for the applicant. The subdivider may make changes and submit a revised plan which shall constitute a separate request for the purpose of review.
(f) All subdivision plats shall comply with the requirements for recording of the Surry County Register of Deeds.
(g) The plat shall be recorded within 14 days of approval. The subdivider shall provide the Zoning Administrator with evidence the plat has been recorded with the Register of Deeds within five working days.
(3) Subdivision standards and required improvements.
(a) All lots shall provide adequate building space in accordance with the development standards contained in division (H) of this section. Lots which are smaller than the minimum required for residential lots may be developed using built-upon area criteria in accordance with division (G).
(b) For the purpose of calculating built-upon area, total project area shall include total acreage in the tract on which the project is to be developed.
(c) Stormwater drainage facilities. The application shall be accompanied by a description of the proposed method of providing storm water drainage. The subdivider shall provide a drainage system that diverts stormwater runoff away from surface waters and incorporates best management practices to minimize water quality impacts.
(d) Erosion and sedimentation control. The application shall, where required, be accompanied by a written statement that a sedimentation and erosion control plan has been submitted to and approved by the North Carolina Department of Environmental Quality (NCDEQ).
(e) Roads constructed in critical areas and watershed buffer areas. Where possible, roads should be located outside of critical areas and watershed buffer areas. Roads constructed within these areas shall be designed and constructed to minimize their impact on water quality.
(4) Construction procedures.
(a) No construction or installation of improvements shall commence in a proposed subdivision until a subdivision plat has been approved.
(b) No building or other permits shall be issued for erection of a structure on any lot not of record at the time of adoption of this section until all requirements of this section have been met. The subdivider, prior to commencing any work within the subdivision, shall make arrangements with the Zoning Administrator to provide for adequate inspection.
(5) Penalties for transferring lots in unapproved subdivisions in a public water supply watershed. Any person who, being the owner or agent of the owner of any land located within the jurisdiction of Surry County, thereafter, subdivides his or her land in violation of this section or transfers or sells land by reference to, exhibition of, or any other use of a plat showing a subdivision of the land before the plat has been properly approved under this section and recorded in the office of the Register of Deeds, shall be guilty of a misdemeanor. The description by metes and bounds in the instrument of transfer or other document used in the process of selling or transferring land shall not exempt the transaction from this penalty. Surry County may bring an action for injunction of any illegal subdivision, transfer, conveyance, or sale of land, and the court shall, upon appropriate findings, issue an injunction and order requiring the offending party to comply with this section.
(G) Establishment and description of watershed areas. The following watershed areas are adopted for Surry County. See §§ 154.006 for rules governing the interpretation of boundaries on the "Official Zoning Map".
(1) Watersheds classified as WS-II-CA (Critical Area) are intended to maintain predominantly undeveloped land use intensity in WS-II and include:
(a) Fisher River Watershed Area (FRWS-CA); and
(b) Tom's Creek Watershed Area (TCWS-CA).
(2) Watershed areas classified as WS-II-BW (Balance of Watershed) are intended to maintain predominantly undeveloped land use intensity and include:
(a) Elkin Creek Watershed Area (ECWS-BW);
(b) Fisher River Watershed Area (FRWS-BW); and
(c) Tom's Creek Watershed Area (TCWS-BW).
(3) Watersheds classified as WS-IV-CA (Critical Area) are intended to address a moderate to high land use intensity pattern and include: Stewart's Creek Watershed Area (SCWS-CA).
(4) Watersheds classified as WS-IV-PA (Protected Area) are intended to accommodate moderate to high land use intensity and include:
(a) Ararat River Watershed Area (ARWS-PA);
(b) Stewart's Creek Watershed Area (SCWS-PA);
(c) Yadkin River Watershed Area - King (YRWS-K-PA);
(d) Lovill's Creek Watershed Area (LCWS-PA); and
(e) Stewart's Creek Watershed Area (SCWS-PA).
(H) Watershed development regulations.
(1) Applicability.
(a) WS-II development regulations apply to all development activities when located in a WS-II watershed.
(b) WS-IV development regulations apply only to new development activities that require an erosion/sedimentation control plan under state law or approved local government program when located in a WS-IV watershed.
(2) Allowed uses. The following uses are allowed in watershed areas:
(a) Agriculture subject to the provisions of the Food Security Act of 1985, the Food, Agriculture, Conservation and Trade Act of 1990 and the rules and regulations of the Soil and Water Conservation Commission.
(b) Silviculture, subject to the provisions of the Forest Practices Guidelines Related to Water Quality (15 NCAC 1I.6101-.0209).
(c) Residential development.
(d) Non-residential development within WS-IV-PA watersheds.
(3) Restricted uses for particular watersheds.
(a) All critical watersheds and WS-II-BW. Discharging landfills and sites for land application of residuals or petroleum contaminated soils are specifically prohibited. New residual application sites and landfills are specifically prohibited.
(b) WS-II-BW. Non-residential development excluding discharging landfills is allowed in the watersheds. Non-discharging landfills and residuals application sites are allowed subject to built-upon area restrictions.
(4) Table of development regulations. The minimum lot sizes, density, and built- upon area for each watershed area are indicated in the table below. All calculations of density (du/ac) and built-upon area (BUA) are defined on a project-by-project basis. The required minimum lot size for any property in the watershed shall be established by the following table or the minimum lot size for the zoning district, whichever is most restrictive.
Watershed Title and Classification | Minimum Permitted Lot Size in Acres and Square Feet (Excluding Roadway Right-of-Way) | Single Family Residential Density in Dwelling Units Per Acre (DU/AC) | Maximum Allowed Built-Upon (BUA) for Residential Other Than Single-Family, Non-Residentia l |
WS-II-CA (Critical Area) Fisher River Watershed Area (FRWS-CA) Tom's Creek Watershed Area (TCWS-CA) | 2 acres/80,000 square feet, except within an approved cluster development | One dwelling unit per two acres | 6% |
WS-II-BW (Balance of Watershed) Elkin Creek Watershed Area (ECWS-BW) Fisher River Watershed Area (FRWS-BW) Tom's Creek Watershed Area (TCWS-BW) | 1 acre/40,000 square feet, except within an approved cluster development | One dwelling unit per acre (1 du/ac) | 12% |
WS-IV-CA (Critical Area) Stewart's Creek Watershed Area (SCWS-CA) | 1/2 acre, or 20,000 square feet | 1. 2 du/ac; or 2. 3 du/ac is allowed for projects without a curb and gutter street system | 24% |
WS-IV-PA (Protected Area) Ararat River Watershed Area (ARWS-PA) Stewart's Creek Watershed Area (SCWS-PA) Yadkin River Watershed Area - King (YRWS-K-PA) Lovill's Creek Watershed Area (LCWS-PA) Stewart's Creek Watershed Area (SCWS-PA) | 1/2 acre, or 20,000 square feet; or 1/3 acre for projects without a curb and gutter street system, except an approved cluster development | 1. Two dwelling units per acre (2 du/ac); or 2. Three dwelling units per acre (3 du/ac) is allowed for projects without a curb and gutter street system | 1. 24%; or 2. 36% for projects without a curb and gutter street system |
(I) 10/70 Rule. In addition to the development allowed under the table above, new development and expansions to existing development in non-critical watersheds may occupy up to 10% of the protected area with up to 70% built-upon area on a project-by-project basis, when approved as a special intensity allocation (SIA). The Zoning Administrator is authorized to approve SIA's consistent with the provisions of this section. Projects must, to the maximum extent practicable, minimize built-upon surface area, direct stormwater away from surface waters and incorporate best management practices to minimize water quality impacts. For the purpose of calculating built-upon area, total project area shall include total acreage in the tract on which the project is to be developed.
(J) Cluster development. Cluster development is allowed in all watershed areas under the following conditions:
(1) Minimum lot sizes are not applicable to single-family cluster development projects; however, the total number of lots shall not exceed the number of lots allowed for single-family detached developments in this division. Density or built-upon area for the project shall not exceed that allowed for the critical area, balance of watershed or protected area, whichever applies;
(2) All built-upon area shall be designed and located to minimize stormwater runoff impact to the receiving waters and minimize concentrated stormwater flow, maximize the use of sheet flow through vegetated areas, and maximize the flow length through vegetated areas;
(3) Areas of concentrated density development shall be in upland areas and away, to the maximum extent practicable, from surface waters and drainage ways;
(4) The remainder of the tract shall remain in a vegetated or natural state. The title to the open space area shall be conveyed to an incorporated homeowner's association for management; to a local government for preservation as a park or open space; or to a conservation organization for preservation in a permanent easement. Where a property association is not incorporated, a maintenance agreement shall be filed with the property deeds; and
(5) Cluster developments that meet the applicable low-density requirements shall transport stormwater runoff by vegetated conveyances to the maximum extent practicable.
(K) Buffer area requirements in watershed areas.
(1) A minimum 100-foot undisturbed natural buffer from each shoreline is required for all new development activities that exceed the low-density option. However, a minimum 50-foot undisturbed natural buffer from each shoreline for all development activities is required along all perennial waters indicated on the most recent versions of U.S.G.S. 1:24,000 (7.5 minute) scale topographic maps, as is required in §§ 154.015, regardless of the density option chosen. Desirable artificial streambank or shoreline stabilization is permitted.
(2) No new development is allowed in the buffer except for water dependent structures, other structures such as flag poles, signs, and security lights which result in only diminutive increases in impervious area and public projects such as road crossings and greenways where no practical alternative exists. These activities should minimize built-upon surface area, direct runoff away from the surface waters and maximize the utilization of stormwater best management practices.
(L) Application of regulations.
(1) No building or land shall hereafter be used, and no development shall take place except in conformity with the regulations herein specified for the watershed area in which it is located.
(2) No area required for the purpose of complying with the provisions of this division shall be included in the area required for another building.
(3) If a use or class of use is not specifically indicated as being allowed in a watershed area, such use or class of use is prohibited.
(M) Existing development. Existing development as defined in this chapter may be continued and maintained subject to the provisions provided herein. Expansions to structures classified as existing development must meet the requirements of this division; however, the built-upon area of the existing development is not required to be included in the built-upon area calculations.
(1) Existing uses of land. This category consists of uses existing at the time of adoption of this section where such use of the land is not permitted to be established hereafter in the watershed area in which it is located. Such uses may be continued except as follows:
(a) When such use of land has been changed to an allowed use, it shall not thereafter revert to any prohibited use;
(b) Such use of land shall be changed only to an allowed use; and
(c) When such use ceases for a period of at least one year, it shall not be reestablished, unless allowed under the provisions of §§ 154.005.
(2) Reconstruction of buildings or built-upon areas. Any existing building or built-upon area not in conformance with the restrictions of this division that has been damaged or removed may be repaired and/or reconstructed, except that there are no restrictions on single-family residential development, provided:
(a) Repair or reconstruction is initiated within 12 months and completed within two years of such damage; and
(b) The total amount of space devoted to built-upon area may not be increased unless stormwater control that equals or exceeds the previous development is provided.
(N) Watershed protection permit.
(1) Except where a single-family residence is constructed on a lot deeded prior to the effective date of this section, no building or built-upon area shall be erected, moved, enlarged or structurally altered, nor shall any building permit be issued nor shall any change in the use of any building or land be made until a watershed protection permit has been issued by the Zoning Administrator. No watershed protection permit shall be issued except in conformity with the provisions of section.
(2) Watershed protection permit applications shall be filed with the Zoning Administrator. The application shall include a completed application form and a site plan showing all existing and/or proposed impervious surfaces (structures, driveways, and the like) along with built-upon calculations and drainage plans that divert stormwater runoff away from surface waters and incorporate best management practices to minimize water quality impacts. The Zoning Administrator may waive the plan requirements of this section if deemed appropriate.
(3) Prior to issuance of a watershed protection permit, the Zoning Administrator may consult with qualified personnel for assistance to determine if the application meets the requirements of this chapter.
(4) A watershed protection permit shall expire if a building permit or watershed protection occupancy permit for such use is not obtained by the applicant within 12 months from the date of issuance.
(O) Building permit required. No permit required under the North Carolina State Building Code shall be issued for any activity for which a watershed protection permit is required until that permit has been issued.
(P) Watershed protection occupancy permit.
(1) The Zoning Administrator shall issue a watershed protection occupancy permit certifying that all requirements of this division have been met prior to the occupancy or use of a building hereafter erected, altered or moved and/or prior to the change of use of any building or land.
(2) A watershed protection occupancy permit, either for the whole or part of a building, shall be applied for concurrently with the application for a watershed protection permit and shall be issued or denied within ten days following the erection or structural alterations of the building.
(3) When only a change in the use of land or existing building occurs, the Zoning Administrator shall issue a watershed protection occupancy permit certifying that all requirements of this section have been met coincident with the watershed protection permit.
(4) If the watershed protection occupancy permit is denied, the Zoning Administrator shall notify the applicant in writing stating the reasons for denial.
(5) No building or structure which has been erected, moved, or structurally altered may be occupied until the Zoning Administrator has approved and issued a watershed protection occupancy permit.
(Q) Public health and water quality regulations.
(1) No activity, situation, structure, or land use shall be allowed within a watershed area which poses a threat to water quality and the public health, safety and welfare. Such conditions may arise from inadequate on-site sewage systems which utilize ground absorption; inadequate sedimentation and erosion control measures; the improper storage or disposal of junk, trash or other refuse within a buffer area; the improper management of stormwater runoff; or any other situation found to pose a threat to water quality.
(2) Abatement.
(a) The Zoning Administrator shall monitor land use activities within the watershed areas to identify situations that may pose a threat to public health or water quality.
(b) The Zoning Administrator shall report all findings to the Planning Board. The Zoning Administrator may consult with any public agency or official and request recommendations.
(c) Where the Planning Board finds a threat to water quality and the public health, safety and welfare, the Board shall institute any appropriate action or proceeding to restrain, correct or abate the condition and/or violation.
(R) Administration, enforcement, and appeals.
(1) Zoning Administrator duties for watershed protection. It shall be the duty of the Zoning Administrator to administer and enforce the provisions of this section as follows:
(a) The Zoning Administrator shall issue watershed protection permits and watershed protection occupancy permits as prescribed herein. A record of all permits shall be kept on file and shall be available for public inspection during regular office hours of the Administrator;
(b) The Zoning Administrator shall serve as clerk to the Planning Board;
(c) The Zoning Administrator shall keep records of all amendments to this subchapter and shall provide copies of all amendments upon adoption to the Water Quality Section of the Division of Water Resources;
(d) The Zoning Administrator shall keep records of the jurisdiction's use of the provision that a maximum of 10% of the non-critical area of WS-II and WS-III watersheds and, for local governments that do not choose to incorporate the high-density option, 10% of the protected area of WS-IV watersheds may be developed with new development at a maximum of 70% built-upon surface area. Records for each watershed shall include the total acres of non-critical watershed area, total acres eligible to be developed under this option, total acres approved for this development option, and individual records for each project with the following information: location, number of developed acres, type of land use and stormwater management plan (if applicable);
(e) The Zoning Administrator is granted the authority to administer and enforce the provisions of this section, exercising in the fulfillment of his or her responsibility the full police power of Surry County. The Zoning Administrator, or his or her duly authorized representative, may enter any building, structure, or premises, as provided by law, to perform any duty imposed upon him or her by this section; and
(f) The Zoning Administrator shall keep a record of variances to this section. This record shall be submitted for each calendar year to the Water Quality Section of the Division of Environmental Management on or before January 1 of the following year and shall provide a description of each project receiving a variance and the reasons for granting the variance.
(2) Appeal from the Zoning Administrator. Any order, requirement, decision or determination made by the Zoning Administrator may be appealed to and decided by the Board of Adjustment as described in §§ 154.010 and G.S. § 160D-705(b).
(S) Changes and amendments to this section. Under no circumstances shall the Board of Commissioners adopt such amendments, supplements, or changes that would cause this section to violate the watershed protection rules as adopted by the N.C. Environmental Management Commission. All amendments must be filed with the N.C. Division of Environmental Quality, N.C. Division of Environmental Health, and the N.C. Division of Community Assistance.
(T) Environmental Management Commission review of variances. If a variance application is submitted, and if following a public hearing the Board of Adjustment concurs that it is in favor of granting the variance, the Board shall prepare a preliminary record of the hearing for the Environmental Management Commission with all deliberate speed prior to holding a vote.
(1) The preliminary record of the hearing shall include:
(a) The variance 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; and
(f) The proposed decision, including all conditions proposed to be added to the permit.
(2) (a) The preliminary record shall be sent to the Environmental Management Commission for its review and a decision as follows, which the Board of Adjustment shall adhere to. If the Commission concludes from the preliminary record that the variance qualifies as a major variance and that:
1. The property owner can secure no reasonable return from, nor make any practical use of the property unless the proposed variance is granted; and
2. The variance, if granted, will not result in a serious threat to the water supply, then the Commission shall approve the variance as proposed or approve the proposed variance with conditions and stipulations. The Commission shall prepare a Commission decision and send it to the Board of Adjustment. If the Commission approves the variance as proposed, the Board shall prepare a final decision granting the proposed variance. If the Commission approves the variance with conditions and stipulations, the Board shall prepare a final decision, including such conditions and stipulations, granting the proposed variance.
(b) If the Commission concludes from the preliminary record that the variance qualifies as a major variance and that:
1. The property owner can secure a reasonable return from or make a practical use of the property without the variance; or
2. The variance, if granted, will result in a serious threat to the water supply, then the Commission shall deny approval of the variance as proposed. The Commission shall prepare a Commission decision and send it to the Board of Adjustment. The Board shall prepare a final decision denying the variance as proposed.
(Ord. passed 4-17-2023)