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Friday, 13 May 2011 07:37 |
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As many of you have probably read in the May TOOLBOX BASE has been embroiled over the course of the last three months with the NCDEH in a situation surrounding setbacks required for septic systems and a “verbal opinion” that treated easements the same as property lines—requiring a 10 foot setback. BASE’s contention was the verbal opinion was not a sufficient factual explanation for something which will impact a large number of existing lots in North Carolina. To that end, BASE attorney Craig Bromby (Hunton & Williams) drafted a Petition for Declaratory Ruling before the NC Commission of Public Health.
The crux of the issue was that based upon this so called “verbal opinion” NCDEH was requiring a horizontal separation distance/setback from any part of the sanitary sewage treatment and disposal system (initial and/or repair area) to a “right-of-way/encroachment agreement/easement” to maintain at least a 10-foot horizontal setback (5-foot horizontal setback for lots/tracts that comply with the criteria per Rule .1951(a); 25-foot horizontal setback for systems exceeding 3,000-gallons per day) to the nearest edge of an existing or proposed right-of-way/encroachment agreement/easement. In other words they were treating easement lines as a property lines, and subsequently requiring a 10 foothorizontal setback from an easement, or a 25 foot setback from a drainage easement.
Unfortunately, this “interpretation” had significant legal holes. Interpreting the term “property line” to include the boundaries of easements lacks any basis or correlation to the statutory authority provided by N.C. Gen. Stat. § 130A-335. BASE initially claimed that the establishment of a setback from the boundary of an easement is thus not authorized, and the boundary of an easement cannot therefore be lawfully included within the term “property line.”
UPDATE: As of last week BASE’s Attorney Craig Bromby received notice from NCDENR/NCDEH that they intended to step back from their position. This effectively means that BASE can rescind its Declaratory Ruling, and that in essence BASE has been successful pointing out to NCDENR/NCDEH that their interpretation was flawed. In their response NCDEH stated that after exhaustive research of case law they found they could not support easement lines being viewed as property lines. Therefore, setbacks shall be required fromproperty lines as specified in Rule .1950. Setbacks shall not be required from easements (includingdrainage easements).
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Wednesday, 04 May 2011 08:00 |
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The final public meeting on the US Hwy 17/NC 210 Public Open House will occur on Thursday, May 12, 2011, 4:30-7:30 pm. The open house will be in the Topsail High School cafeteria. Drop by at any time.
Background: US 17 currently functions as a 5-lane undivided facility from Washington Acres to Sloop Point Road in Pender County. It is classified as an arterial by the Wilmington Metropolitan Planning Organization (MPO) and has a 2010 traffic count volume ranging from 40,000 to 45,000 vehicles per day. There are numerous driveway conflicts and outdated access management along this section of roadway, thus requiring an analysis and recommendations to improve safety and mobility in the corridor.
NC 210 currently functions as a 2-lane facility from US 17 to Island Creek Road in Pender County. It is classified as a collector road by the Wilmington MPO. It has a 2010 traffic count volume of about 7,500 vehicles per day. There are challenges and opportunities along this corridor. The Hampstead Bypass is planned to include an interchange at NC 210 that may significantly alter the land use patterns in this corridor.
US 17 traffic volume is projected to increase significantly in the future, increasing the travel demand through the study corridor. Projected traffic levels are expected to exceed the capacity of the existing road. The North Carolina Department of Transportation is currently completing a Feasibility Study (FS-0803B) on US 17 from the Wilmington Bypass to NC 50 in Onslow County. The feasibility study will evaluate the potential to widen US 17 in an effort to improve safety by converting five-lane cross-section to median-divided cross-section with partially controlled access and determine how the corridor fits into the NCDOT Strategic Highway Corridor initiative.
For more information on this project go to http://hampstead17and210.org/index.html
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Wednesday, 20 April 2011 12:39 |
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On Monday night the Brunswick County Commissioners modified their current rate structure for water and sewer Capital Recovery and Transmission Capital Recovery fees from a flat rate based charge to more of a consumption based rate. The Current fee structure, which has been in place for quite some time, uses a flat rate model that in essence charges the impact fees based on the flow of a three bedroom unit regardless of the actual number of bedrooms. The new approved policy moves away from this flat rate model and shifts more to a consumption based model, which would charge water/sewer fees for residential dwelling units based on the actual number of bedrooms or the design flow rate. (360gpd for a 3 bedroom house or 120gpd per a bedroom) These flow rates are calculated based upon the NCDENR Wastewater Design Flow Rates (2T Rules).
Your Governmental Affairs staff questioned some of the intended logic surrounding the proposed consumption based model as it would in fact allow two bedroom units to pay about one-third less than the current impact fees, three bedroom units would have no change whatsoever, and builders of residential dwellings with more than three bedrooms would pay more in water and sewer capital recovery fees.
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