TO: Mayor and Members of City Council
THRU: Adam Lindsay, Assistant City Manager
FROM: Sheila Thomas-Ambat, Public Services Director
Byron Reeves, Assistant Public Services Director - Engineering
DATE: March 4, 2024
RE:
Title
Stormwater Development Ordinance - Functional Maintenance Responsibilities of Residential Subdivision SCMs
end
COUNCIL DISTRICT(S):
Council District(s)
All
b
Relationship To Strategic Plan:
Goal 3: High Quality Built Environment
Goal 4: Desirable Place to Live, Work and Recreate
Executive Summary:
At the August 29, 2023 Council Stormwater Committee Meeting, staff discussed proposed changes to the City’s Stormwater Ordinance with respect to section 23-33(B). Section 23-33(B) outlines the conditions for single-family residential stormwater management facilities to be accepted by the City for functional maintenance.
With recent updates to North Carolina General Statute, the City’s Stormwater Ordinance was in conflict with the newly added Section (d1) to G.S. 160D-925. The amended statute prohibits a local government from requiring the owner of a stormwater control measure to make payments to the local government for the purpose of ensuring assets are available for maintenance, repair, replacement, and reconstruction costs. Council approved a text amendment at the February 26, 2024 regular meeting that removed the provision requiring payment into the maintenance fund, addressing the conflict with General Statute.
Staff now seeks concurrence from City Council to amend the Ordinance to remove all of City Code Section 23-33(B). This would end the process for turning over functional maintenance of residential of single-family residential SCMs to the City.
Background:
The City’s Stormwater Development Ordinance was adopted on October 27, 2008. Since its effective date of January1, 2009, the ordinance has been amended on multiple occasions. The purpose of the Stormwater Control Ordinance is to protect, maintain, and enhance the public health, safety, and general welfare by establishing minimum requirements and procedures to control the adverse effects of the increase in stormwater quantity and the stormwater runoff quality associated with both future land development and consideration of existing developed land within the City of Fayetteville. Proper management of the quantity and quality of stormwater runoff will minimize damage to public and private property, prevent personal damage and bodily harm, ensure a functional drainage system, reduce the effects of development on land and stream channel erosion, promote the attainment and maintenance of water quality standards, enhance the local environment associated with the drainage system, reduce local flooding, and maintain as nearly as possible the pre-developed runoff characteristics of the area, and facilitate economic development while mitigating associated flooding and drainage impacts. Additionally, the purpose of this article is to comply with the post construction stormwater requirements as per the City's NPDES stormwater discharge permit.
Specific to Sec. 23-33, Ownership and Maintenance of Stormwater Management Facilities, paragraph B provides a mechanism for single-family residential stormwater management facilities to be accepted for functional maintenance responsibility if certain criteria, outlined in the Ordinance, were met.
To date the City has taken over functional maintenance of seven (7) residential SCMs, each of which met the conditions of the Ordinance, to include payment into a City held maintenance fund. Currently there is approximately forty-four (44) additional SCMs serving single-family residential subdivisions that have been permitted. The majority of these SCMS have not yet converted from an erosion control measure. The developer/owner of these unconverted stormwater control measures have not paid the previously required 20 percent of the initial construction cost maintenance fee and are now no longer required too.
Issues/Analysis:
Section 23-3 (B) of the Ordinance currently states that the City shall accept functional maintenance responsibility of structural stormwater management facilities that are installed in accordance with the ordinance, following a warranty period of one year from the date of record-drawing certification or from the date the facility ceases to function as an erosion control measure and starts to function as a stormwater management facility (conversion), whichever is later. Further, the City will only accept the stormwater management facility provided several specific conditions, including:
1. Only serves a single-family detached residential development or townhomes all of which have public street frontage;
2. Is satisfactorily maintained during the one-year warranty period by the owner or designee;
3. Meets all the requirements of this article;
4. Includes adequate and perpetual access and sufficient area, by easement or otherwise, for inspection, maintenance, repair, or reconstruction; and
With the passing of House Bill 488 / Session Law 2023-108 in August of 2023, General Statue 160D-95 Stormwater Control was amended. Requiring the payment into a maintenance fund is void as it conflicts with amended General Statute. Council amended the Ordinance to address this change in General Statue via Text Amendment at the February 26, 2024 Council Meeting.
Without the ability to require payment, upfront, into a maintenance fund, the Stormwater Enterprise Fund is not structured or set up to utilize revenues or support the additional service of providing functional maintenance to privately owned SCMs.
Additionally, there is significant risk, liability, and financial reasons to consider adjusting this policy. As functional maintenance responsibility for an SCM is transferred to the City, so too is the cost associated with that functional maintenance and periodic replacement. Functional maintenance activities include regular inspections, repairs, stabilizing slopes, and removing sediment, all as needed. Periodic replacement costs represent the cost to fully reconstruct the SCM once it has passed its useful life.
If the City continues with the current policy of taking over residential subdivision SCMs, it must also consider these growing costs and an appropriate mechanism for funding them.
A peer review of other communities both in North Carolina and other states nationally show how other utilities and communities address the maintenance of residential SCMs, and if so, how were these activities funded. A summary table below outlines the municipalities evaluated, if they maintain residential SCMs, the funding source, and the type of maintenance. Fayetteville is the only Phase I community in North Carolina that will accept functional responsibility of these types of SCMs.
Table 1. Peer Communities Responsibility
|
|
Does the utility maintain residential SCMs? |
Funding Source |
Type of Maintenance |
|
Charlotte-Mecklenburg Storm Water Services (City of Charlotte, NC) |
By Petition |
Stormwater utility fee |
Functional |
|
City of Austin (TX) |
Yes |
Stormwater utility fee |
Functional, aesthetic |
|
City of Durham (NC) |
No |
N/A |
N/A |
|
City of Raleigh (NC) |
No |
N/A |
N/A |
|
City of Greenville (NC) |
No |
N/A |
N/A |
|
El Paso Water (TX) |
Yes |
Stormwater utility fee |
Functional |
|
Lexington-Fayette Urban County Government (KY) |
Yes |
Stormwater utility fee |
Functional |
|
Metro Government of Nashville & Davidson County (TN) |
No |
N/A |
N/A |
|
New Hanover County (NC) |
No |
N/A |
N/A |
|
Sanitation District No. 1 of Northern Kentucky (KY) |
Yes |
Stormwater utility fee |
Functional |
Following the detailed peer review and change in statute, the proposed recommendation is to further amend Ordinance Sec. 23-33 to remove the option to transfer functional maintenance responsibility of residential SCMs over to the City. This recommendation was presented to the Stormwater Advisory Board (SWAB) at their monthly meeting in December and a majority consensus was obtained to affirm staff’s recommendation.
Budget Impact:
The Stormwater Enterprise Fund is not structured or set up to utilize revenues or support the additional service of providing functional maintenance to privately owned SCMs.
Specific to Sec. 23-33, if the City continues the current practice of accepting functional maintenance responsibility of residential subdivision SCMs, as these basins are converted and transferred to the City, additional annual maintenance cost will rise with no current funding source. Projecting forward, periodic replacement of failed basins is another annualized cost that currently has no funding source.
Options:
1. Direct staff to draft a proposed text amendment to remove Sec. 23-33(B) in its entirety.
2. Remand back to staff for further consideration.
Recommended Action:
Council provide consensus to direct staff to draft a proposed text amendment to remove Sec. 23-33(B) in its entirety.
Attachments:
1. 2024.03.05 SCM Function Maintenance Presentation
2. G.S. 160D-925(d1)
3. Stormwater Memorandum