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: February 26, 2024
RE:
Title
Stormwater Ordinance Text Amendment, Sec. 23-33 Ownership & Maintenance of Stormwater Management Facilities
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:
With recent updates to the North Carolina General Statutes, the City’s Stormwater Ordinance is 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.
Staff seeks concurrence from City Council on the proposed Ordinance amendment to remove City Code Section 23-33(B.5), removing the requirement of the developer paying into a maintenance fund an amount equal to 20 percent of the initial construction cost of the stormwater management facilities.
It is important to note that no changes to development standards are being recommended for the Ordinance at this time and this proposed amendment would align the City’s Ordinance with current General Statute.
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. One of these criteria to be met was for the developer to pay into a maintenance fund used to maintain such facilities in the future in an amount equal to 20 percent of the initial construction cost of the stormwater management facilities.
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
5. Prior to the release of the installation performance guarantee as outlined in section 23-41(b), the developer shall pay into a maintenance fund used to maintain such facilities in the future an amount equal to 20 percent of the initial construction cost of the stormwater management facilities related to detention ponds or other BMPs constructed to meet the requirements of this article.
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 now void as it conflicts with amended General Statute.
The proposed amendment before you align the City’s Stormwater Ordinance with State General Statue.
To date the City has taken over functional maintenance of seven residential SCMs, each of which met the conditions of the existing Ordinance. There are approximately 47 additional residential subdivision SCMs that have been permitted but not yet converted from an erosion control measure to their permanent SCM. The developers of these unconverted stormwater control measures have not paid the previously required 20 percent of the initial construction cost maintenance fee.
Specific to Sec. 23-33 (b), 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. The acceptance of privately owned residential subdivision SCMs will be brought to a future City Council work session to discuss in more detail.
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.
The General Statute now prohibits the City from requiring private SCM owners from paying into a City held maintenance fund for the above listed activities.
Options:
1. Adopt the proposed text amendment to remove Sec. 23-33(B.5) from the City’s Stormwater Ordinance.
2. Remand text amendment back to staff for further consideration.
Recommended Action:
Staff recommends Council adopt the proposed text amendment to remove Sec. 23-33(B.5) from the City’s Stormwater Ordinance.
Attachments:
1. G.S. 160D-925(d1)
2. Sect 23-33 Ownership of Maintenance of SCMs_track change
3. Text Amendment for Section 23-33, Ownership and Maintenance of Stormwater Management Facilities.