Scott Sherrill, Town Clerk/Planning Administrator Town of Pine Knoll Shores

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1 Scott Sherrill, Town Clerk/Planning Administrator Town of Pine Knoll Shores

2 SOG Legislative Update Conversations with SOG DWR Information Session Conversations with NCLM Conversations with DCM Conversations with SOG

3 I am not an attorney, and nothing I say should be construed as a legal opinion. Please consult with your attorney if you have specific questions about applicability to your municipality. This presentation is entirely my (nonlegal), professional opinion. It does not represent any official view or position of the Town of Pine Knoll Shores or its Board of Commissioners.

4 Omnibus Local Government Regulatory Reform (H44) Riparian Buffer Reform: Section 13 Creates a new section A In a context of : delegated riparian programs. Article 21 of its Chapter.

5 (1)"Local government ordinance" means any action by a local government carrying the effect of law approved before or after October 1, 2015, whether by ordinance, comprehensive plan, policy, resolution, or other measure. (3) "Riparian buffer area" means an area subject to a riparian buffer requirement. (4) "Riparian buffer requirement" means a landward setback from surface waters

6 Definitions. Unless a different meaning is required by the context, the following definitions apply to this Article [Article 21] and Articles 21A and 21B of this Chapter: (6) "Waters" means any stream, river, brook, swamp, lake, sound, tidal estuary, bay, creek, reservoir, waterway, or other body or accumulation of water, whether surface or underground, public or private, or natural or artificial, that is contained in, flows through, or borders upon any portion of this State, including any portion of the Atlantic Ocean over which the State has jurisdiction.

7 Except as provided in this section, a local government may not enact, implement, or enforce a local government ordinance that establishes a riparian buffer requirement that exceeds riparian buffer requirements necessary to comply with or implement federal or State law or a condition of a permit, certificate, or other approval issued by a federal or State agency

8 Subsection (b) of this section shall not apply to any local government ordinance that establishes a riparian buffer requirement enacted prior to August 1, 1997, if (i) the ordinance included findings that the requirement was imposed for purposes that include the protection of aesthetics, fish and wildlife habitat, and recreational use by maintaining water temperature, healthy tree canopy and understory, and the protection of the natural shoreline through minimization of erosion and potential chemical pollution in addition to the protection of water quality and the prevention of excess nutrient runoff, AND (ii) the ordinance would permit small or temporary structures within 50 feet of the water body and docks and piers within and along the edge of the water body under certain circumstances

9 Submit to the Commission an application requesting this authority that includes the local government ordinance, including the riparian buffer requirement for the protection of water quality, scientific studies of the local environmental and physical conditions that support the necessity of the riparian buffer requirement for the protection of water quality, and any other information requested by the Commission. Within 90 days after the Commission receives a complete application, the Commission shall review the application and notify the local government whether the application has been approved, approved with modifications, or disapproved. The Commission shall not approve a local government ordinance that establishes a riparian buffer requirement for the protection of water quality unless the Commission finds that the scientific evidence presented by the local government supports the necessity of the riparian buffer requirement for the protection of water quality Definition: (2) "Protection of water quality" means nutrient removal, pollutant removal, stream bank protection, or protection of an endangered species as required by federal law.

10 No setback from surface waters greater than that required by the state (unless you are required to by something else): For most coastal communities, need to look at rules propagated by DCM as well as those propagated by DWR: Oceans, Sounds, ORWs, HQWs, Canals, Streams, Rivers, Lakes, etc. Does your ordinance meet the exception (pre-1997 w/ required findings)? Good luck! Does your community want to submit the required scientific study to the EMC for approval of your ordinance? $$$

11 2 ordinances in question (Sound and Ocean) Visual Preferences Survey HOAs Development Line? (Ocean) Primary policy concerns: Redevelopment v. Existing Houses Vista preservation? Oceanward and soundward encroachment Subject to state permitting for AECs Special Flood Hazard Areas

12 AE Zone Shaded X X Zone

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14 Cities and counties shall not treat the land within a riparian buffer area as if the land is the property of the State or any of its subdivisions unless the land or an interest therein has been acquired by the State or its subdivisions by a conveyance or by eminent domain. Land within a riparian buffer area in which neither the State nor its subdivisions holds any property interest may be used by the property owner to satisfy any other development-related regulatory requirements based on property size, including, but not limited to, residential density and nonresidential intensity calculations and yields, tree conservation purposes, open space or conservation area requirements, setbacks, perimeter buffers, and lot area requirements

15 (3) "Riparian buffer area" means an area subject to a riparian buffer requirement. (4) "Riparian buffer requirement" means a landward setback from surface waters

16 For Pine Knoll Shores: Impervious coverage on oceanfront lots For others? Worthwhile to check with your attorney and review ordinances How do we consider the beach in this scenario? The state's public trust rights were not acquired by conveyance or by eminent domain. Rather the courts have said they are an inherent aspect of state title and when private owners first secured the land, those private acquisitions were take subject to public trust rights. (from David Owens) In other words, applicability to oceanfront is unclear and subject to interpretation by the Courts, but our position is at least defensible

17 Considering ordinance revisions Two basic options: Pre-emptively revise ordinances to something more defensible (my preference) Wait for a clarifying court case (and hope it s not us)

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20 When riparian buffer requirements are included within a lot, cities and counties shall require that the riparian buffer area be shown on the recorded plat. Nothing in this subsection shall be construed to require that the riparian buffer area be surveyed. When riparian buffer requirements are placed outside of lots in portions of a subdivision that are designated as common areas or open space and neither the State nor its subdivisions holds any property interest in that riparian buffer area, the local government shall attribute to each lot abutting the riparian buffer area a proportionate share based on the area of all lots abutting the riparian buffer area for purposes of development-related regulatory requirements based on property size, including, but not limited to, residential density and nonresidential intensity calculations and yields, tree conservation purposes, open space or conservation area requirements, setbacks, perimeter buffers, and lot area requirements.

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22 DCM is aware of riparian buffer reform Conditional approval of land use plans that contain policies more stringent than state law per riparian buffer reform (Perquimans/Hertford/Winfall 3 policies impacted) Ordinances are legal and can remain in effect and enforceable until January 1, 2017 DWR focuses its analysis on delegated riparian programs and advises consulting with your attorney for applicability. (DWR Q&A HB44 guidance)

23 Which ordinances? If not on this list check with your legal counsel to see if applicable to your ordinance This list can be found at: under the List of Local Governments Administering State Riparian Buffer Rules 23

24 Table 1: LG ordinance = state buffer rule A (b) Session Law / Rules SL (17) SL (8) Rules / Areas Affected 20 coastal counties Neuse & Tar-Pam Summary Single-family residence allowable in Zone 2 Expanded SL to all of Neuse and Tar-Pam SL (52) All Exempts ag ponds SL (2) Jordan Non-electric utility non perpendicular Zone 2 impacts exempt; stream piping exempt; changed airport definition SL Section 13.3(b) Neuse & Tar-Pam Coastal Regions, Zone 1 Shall begin at most landward limit of normal high water level instead of the coastal wetland line SL Section 13.4(a) All Provision for case by case approvals 15A NCAC 02B.0295 All Consolidated Buffer Mitigation Rules* Does your ordinance comply with all of the above session laws / rules? Department of Environmental Quality 24

25 Table 2: Timelines LG Ordinance = state buffer rule Need to revise ordinance to meet current session laws and rules Submit draft ordinance to DWR by ~February 1, 2016 Highlight all ordinance changes DWR will review and send comments by ~April1, 2016 (60 days after DWR Receipt) LGs submit revised ordinance back to DWR by May 1, 2016 DWR will approve ordinance by June 1, 2016 Submit copy of final approved ordinance to DWR by January 2017 Department of Environmental Quality 25

26 Table 3: Timelines LG Ordinance > state buffer rule Comply with or implement federal or State law Condition of a permit, certificate, or other approval issued by a federal or state agency Enacted prior to August 1, 1997 and meets all other requirements listed in A (c) Submit letter to DWR by ~February 1, 2016 Include a copy of the federal or State law Submit letter to DWR by ~February 1, 2016 Include a copy of the permit, certificate or other approval issued by a federal or state agency Submit letter to DWR by ~February 1, 2016 Include a copy of the ordinance highlighting the section(s) that comply with the requirements in A (c) Scientific Study Submit application to DWR by August 15, 2016 Application presented to EMC at November 2016 meeting Department of Environmental Quality 26

27 For me: Scott Sherrill, Town Clerk/Planning Administrator x11 DWR s Main Contact on this issue: Shelton Sullivan (919) office shelton.sullivan@ncdenr.gov