ORD-2009-027 Resolution Amending the County Flood Damage Prevention Subdivision Zoning Atlas Ordinance

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ME . The Flood Regulations are -zoning regulations" as defined by North Carolina law because they regulate the location and use of buildings, structures, and land. "The General Assembly has delegated to the legislative body of [counties] the power to adopt zoning regulations and, from time to time, amend or repeal such regulations.'�2 "A zoning ordinance may regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lots that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures, and land for trade, industry; residence, or other purposes. 0 "These ordinances maybe adopted as part of a unified development ordinance or as a separate ordinance,."4 Except for swine farms with large "'waste; management systems, " .zoning regulations do not apply to real property used for bona fide farm purposes (unless the farm property is used for nonfarm purposes).5 Part 6 of Article 2.1 of Chapter 143 of the North Caroling General. Statutes gives local governments the specific authority to adopt ordinances to regulate uses in flood hazard areas and ermits for the use of flood hazard areas. 6 However, this statute specifically permits grant P gam. farming,.pasture, outdoor plant nurseries, horticulture, forestry, mining, wildlife sanctuary, e farm, and other similar agricultural, wildlife and related uses within flood hazard areas. 7 The existing FDPO, like the attached proposed resolution incorporating the FDPO into. n the Zoning Ordinance, cites multiple sources of authority for enacting flood regulations within the County. This authority, includes the zoning authority discussed above, the authority given to local governments specifically related to regulation of uses of land within flood hazard areas also discussed above, as well as* the general police power given to counties to protect the health, safety and general welfare of its residents. Regardless of whether the Flood Regulations exist as a freestanding*ordin=ce or whether they are incorporated into the Zoning Ordinance, there is a risk that the regulations will be, deemed inapplicable to the use of property for bona fide farm A purposes. However, since the both the freestanding FDPO and the proposed amendment incorporating the same into the Zoning Ordinance cite the same enabling legislation, the risk is not increased by the incorporation of the regulations into a unified ordinance. in short, the question of whether or not the bona fide farina exemption to the County's zoning power impacts the enforceability of flood damage prevention regulations . is the same today with the County's dual zoning ordinance structure as it will be if the County decides to unify its flood prevention land use rugulati6ns as proposed with the current amendments Therefore, it is our view . that the recommendation from Planning Staff to incorporate the FDPO into* the Zoning Ordinance that was articulated in a Board of County Commissioners agenda item abstract on August 28, 1995 be pursued to conclusion it this time. It is our view doing so will not change the likelihood the County's flood regulations will be inapplicable to bona: fide fk-ms. 2 In' re Markham, 259 N.C. 566, cert. denied, 375 U.S. 931 (1963). 3N.C. Gen. Stat. § 153A-340(a) 4 id. -1 N.C. . G,,n. Stat. § 153A-340(b)(1) N.C. Gen- Stat. § 143-215.54(a) 7 N.C. Gen. Stat. § 143-215.54(b)(1)