Town of Kernersville
In 2003, a citizen’s advisory committee developed a stormwater management program to comply with the Federal and State Clean Water Act mandates and to improve the quality of surface waters in the Town of Kernersville. The Town adopted the stormwater management program in March of 2004 and subsequently received a NPDES Stormwater Permit in October of 2005. In May of 2006, a stormwater utility and rate structure was created to fund the program. Noncompliance with the Town’s NPDES Stormwater Permit could result in the Town being subject to a fine of up to
$25,000 per day.
Without the financial support of either the state or federal government, the cost of implementing the stormwater program will be covered by a stormwater utility fee that is based on impervious surface areas. Impervious surfaces are typically asphalt and stone parking areas, building rooftops, sidewalks, roadways, etc. The amount of stormwater runoff generated is directly proportional to the amount of impervious surface areas located on a land parcel. Therefore, property owners with greater amounts of impervious surface area, which generate more stormwater runoff, will be
charged more. Non-profit and governmental organizations are not exempt from paying a utility fee.
The Town of Kernersville Stormwater and Watershed regulations (Stormwater Post-Construction Controls, Buffer Rules and Water Supply Watershed Protection Regulations) are designed to control stormwater pollutants as well as increased stormwater volume and velocity from new construction, development, and redevelopment so that water quality is protected and downstream flooding is reduced; those regulations are included in the Town of Kernersville Unified Development Ordinance (UDO) with the Chapter C "Environmental Ordinance" as following:
- Watshed Protection Ordinance - UDO Chapter C Articles III
- Stormwater Runoff - UDO Chapter C Article IV - Section 3 - Post Construction Runoff
- Riparian Buffer Protection Ordinance for Lands within the Jordan Lake Watershed - UDO Chapter C Article V
- Riparian Buffer Protection Ordiance for Lands within the Randleman Lake Watershed - UDO Chapter C Article VI
Excerpts from the Town of Kernersville Unified Development Ordinance
STANDARDS FOR STORMWATER CONTROL MEASURES
- Evaluation According to Contents of Design Manual
All stormwater control measures and stormwater treatment practices (also referred to as Best Management Practices, or BMPs) required under this ordinance shall be evaluated by the Stormwater Administrator according to the policies, criteria, and information, including technical specifications and standards and the specific design criteria for each stormwater practice, in the Design Manual. The Stormwater Administrator shall determine whether they will be adequate to meet the requirements of this ordinance.
- Determination of Adequacy; Presumptions and Alternatives
Stormwater treatment practices that are designed, constructed, and maintained in accordance with the criteria and specifications in the Design Manual will be presumed to meet the minimum water quality and quantity performance standards of this ordinance. Whenever an applicant proposes to utilize a practice or practices not designed and constructed in accordance with the criteria and specifications in the Design Manual, the applicant shall have the burden of demonstrating that the practice(s) will satisfy the minimum water quality and quantity performance standards of this ordinance. The Stormwater Administrator may require the applicant to provide such documentation, calculations, and examples as necessary for the Stormwater Administrator to determine whether such an affirmative showing is made.
GENERAL STANDARDS FOR MAINTENANCE
- Function of BMPs As Intended
The owner of each structural BMP installed pursuant to this ordinance shall maintain and operate it so as to preserve and continue its function in controlling stormwater quality and quantity at the degree or amount of function for which the structural BMP was designed.
- Annual Maintenance Inspection and Report
The person responsible for maintenance of any structural BMP installed pursuant to this ordinance shall submit to the Stormwater Administrator an inspection report from a qualified registered North Carolina professional engineer, surveyor, and soil scientist or landscape architect performing services only in their area of competence. The inspection report shall contain all of the following:
- The name and address of the land owner;
- The recorded book and page number of the lot of each structural BMP;
- A statement that an inspection was made of all structural BMPs;
- The date the inspection was made;
- A statement that all inspected structural BMPs are performing properly and are in compliance with the terms and conditions of the approved maintenance agreement required by this ordinance;
- The original signature and seal of an engineer, surveyor, soil scientist or landscape architect who either has adequate training in BMP maintenance or has been certified to maintain BMPs.
- Homeowner’s and other associations required in Section 4-3.12(B) to enter into an operation and maintenance agreement shall include a financial statement certifying compliance with the escrow account requirements therein.
All inspection reports shall be on forms supplied by the Stormwater Administrator. An original inspection report shall be provided to the Stormwater Administrator beginning one year from the date of as-built certification and each year thereafter on or before the date of the as-built certification.
OPERATION AND MAINTENANCE AGREEMENT
- In General
Prior to the conveyance or transfer of any lot or building site to be served by a structural BMP pursuant to this ordinance, and prior to issuance of any permit for development or redevelopment requiring a structural BMP pursuant to this ordinance, the applicant or owner of the site must execute an operation and maintenance agreement that shall be binding on all subsequent owners of the site, portions of the site, and lots or parcels served by the structural BMP. Until the transference of all property, sites, or lots served by the structural BMP, the original owner or applicant shall have primary responsibility for carrying out the provisions of the maintenance agreement.
The operation and maintenance agreement shall require the owner or owners to maintain, repair and, if necessary, reconstruct the structural BMP, and shall state the terms, conditions, and schedule of maintenance for the structural BMP. In addition, it shall grant to the Town of Kernersville a right of entry in the event that the Stormwater Administrator has reason to believe it has become necessary to inspect, monitor, maintain, repair, or reconstruct the structural BMP; however, in no case shall the right of entry, of itself, confer an obligation on the Town of Kernersville to assume responsibility for the structural BMP.
The operation and maintenance agreement must be approved by the Stormwater Administrator prior to plan approval, and it shall be referenced on the final plat and shall be recorded with the county Register of Deeds upon final plat approval. A copy of the recorded maintenance agreement shall be given to the Stormwater Administrator within fourteen (14) days following its recordation.
- Special Requirement for Homeowners’ and Other Associations
For all structural BMPs required pursuant to this ordinance and that are to be or are owned and maintained by a homeowners’ association, property owners’ association, or similar entity, the required operation and maintenance agreement shall include all of the following provisions:
- Acknowledgment that the association shall continuously operate and maintain the stormwater control and management facilities.
- Establishment of an escrow account, which can be spent solely for sediment removal, structural, biological or vegetative replacement, major repair, or reconstruction of the structural BMPs. If structural BMPs are not performing adequately or as intended or are not properly maintained, the Town of Kernersville in its sole discretion, may remedy the situation, and in such instances the Town of Kernersville shall be fully reimbursed from the escrow account. Escrowed funds may be spent by the association for sediment removal, structural, biological or vegetative replacement, major repair, and reconstruction of the structural BMPs, provided that the Town of Kernersville shall first consent to the expenditure. Escrowed funds shall not be spent for routine landscaping maintenance items such as mowing.
- Requirement of both developer contribution and annual sinking funds to fund the escrow account. Prior to plat recordation or issuance of construction permits, whichever shall first occur, the developer shall pay into the escrow account an amount equal to fifteen (15) per cent of the initial construction cost of the structural BMPs. Two- thirds (2/3) of the total amount of sinking fund budget shall be deposited into the escrow account within the first five (5) years and the full amount shall be deposited within ten (10) years following initial construction of the structural BMPs. Funds shall be deposited each year into the escrow account. A portion of the annual assessments of the association shall include an allocation into the escrow account. Any funds drawn down from the escrow account shall be replaced in accordance with the schedule of anticipated work used to create the sinking fund budget.
- Requirement that the association is formed and the association bylaws are submitted to the Town prior to the conveyance or transfer of any lot, unit or building site.
- Grant to the Town of Kernersville a right of entry to inspect, monitor, maintain, repair, and reconstruct structural BMPs.
- Authorization for the Town of Kernersville to recover from the association and its members any and all costs the Town of Kernersville expends to maintain or repair the structural BMPs or to correct any operational deficiencies. Failure to pay the Town of Kernersville all of its expended costs, after forty-five days written notice, shall constitute a breach of the agreement. The Town of Kernersville shall thereafter be entitled to bring an action against the association and its members to pay, or foreclose upon the lien hereby authorized by the agreement against the property, or both, in case of a deficiency. Interest, collection costs, and attorney fees shall be added to the recovery.
- A statement that this agreement shall not obligate the Town of Kernersville to maintain or repair any structural BMPs, and the Town of Kernersville shall not be liable to any person for the condition or operation of structural BMPs.
- A statement that this agreement shall not in any way diminish, limit, or restrict the right of the Town of Kernersville to enforce any of its ordinances as authorized by law.
- A clause indemnifying and holding harmless the Town of Kernersville for any costs and injuries arising from or related to the structural BMP, unless the Town of Kernersville has agreed in writing to assume the maintenance responsibility for the BMP and has accepted dedication of any and all rights necessary to carry out that maintenance.
Inspections and inspection programs by the Town of Kernersville may be conducted or established on any reasonable basis, including but not limited to routine inspections; random inspections; inspections based upon complaints or other notice of possible violations; and joint inspections with other agencies inspecting under environmental or safety laws. Inspections may include, but are not limited to, reviewing maintenance and repair records; sampling discharges, surface water, groundwater, and material or water in BMPs; and evaluating the condition of BMPs.
If the owner or occupant of any property refuses to permit such inspection, the Stormwater Administrator shall proceed to obtain an administrative search warrant pursuant to G.S. 15-27.2 or its successor. No person shall obstruct, hamper or interfere with the Stormwater Administrator while carrying out his or her official duties.
PERFORMANCE SURETY FOR INSTALLATION AND MAINTENANCE
- May Be Required
The Town of Kernersville may, at its discretion, require the submittal of a performance surety prior to issuance of a permit in order to ensure that the structural BMPs are:
- Installed by the permit holder as required by the approved stormwater management plan, and/or
- Maintained by the owner as required by the operation and maintenance agreement.
The amount of an installation performance surety shall be 100% of the total estimated construction cost of the BMPs approved under the permit.
The amount of a maintenance performance surety shall be the present value of an annuity of perpetual duration based on a reasonable estimate of the annual cost of inspection, operation and maintenance of the BMPs approved under the permit, at a discount rate that reflects the jurisdiction’s cost of borrowing minus a reasonable estimate of long term inflation.
- Uses of Performance Surety
- Forfeiture Provisions
The performance surety shall contain forfeiture provisions for failure to complete work within the time specified, or to initiate or maintain any actions which may be required of the applicant or owner in accordance with this ordinance, approvals issued pursuant to this ordinance, or an operation and maintenance agreement established pursuant to this ordinance.
Upon default of the owner to construct, maintain, repair and, if necessary, reconstruct any structural BMP in accordance with the applicable permit or operation and maintenance agreement, the Stormwater Administrator shall obtain and use all or any portion of the performance surety to make necessary improvements based on an engineering estimate. Such expenditure of funds shall only be made after requesting the owner to comply with the permit or maintenance agreement. In the event of a default triggering the use of installation performance surety, the Town of Kernersville shall not return any of the unused performance surety, which shall be retained for maintenance.
- Costs in Excess of Performance Surety
If The Town of Kernersville takes action upon such failure by the applicant or owner, the Town of Kernersville may collect from the applicant or owner for the difference should the amount of the reasonable cost of such action exceed the amount of the performance surety held.
Within sixty days of the final approval, the installation performance surety shall be refunded to the applicant or terminated, with the exception of any amount attributable to the cost (plus 25%) of landscaping installation and ongoing maintenance associated with the BMPs covered by the surety. Any such landscaping shall be inspected one (1) year after installation with replacement for compliance with the approved plans and specifications and, if in compliance, the portion of the performance surety attributable to landscaping shall be released.
NOTICE TO OWNERS
- Deed Recordation and Indications On Plat
The applicable operations and maintenance agreement pertaining to every structural BMP shall be referenced on the final plat and shall be recorded with the county Register of Deeds upon final plat approval. If no subdivision plat is recorded for the site, then the operations and maintenance agreement shall be recorded with the county Register of Deeds so as to appear in the chain of title of all subsequent purchasers under generally accepted searching principles.
Where appropriate in the determination of the Stormwater Administrator to assure compliance with this ordinance, structural BMPs shall be posted with a conspicuous sign stating who is responsible for required maintenance and annual inspection. The sign shall be maintained so as to remain visible and legible.
RECORDS OF INSTALLATION AND MAINTENANCE ACTIVITIES
The owner of each structural BMP shall keep records of inspections, maintenance, and repairs for at least five years from the date of creation of the record and shall submit the same upon reasonable request to the Stormwater Administrator.
GENERAL STANDARDS FOR ENFORCEMENT AND VIOLATIONS
- Authority to Enforce
The provisions of this ordinance shall be enforced by the Stormwater Administrator, his or her designee, or any authorized agent of the Town of Kernersville. Whenever this section refers to the Stormwater Administrator, it includes his or her designee as well as any authorized agent of Town of Kernersville.
- Violation Unlawful
Any failure to comply with an applicable requirement, prohibition, standard, or limitation imposed by this ordinance, or the terms or conditions of any permit or other development or redevelopment approval or authorization granted pursuant to this ordinance, is unlawful and shall constitute a violation of this ordinance.
- Each Day a Separate Offense
Each day that a violation continues shall constitute a separate and distinct violation or offense.
- Responsible Persons/Entities
Any person who erects, constructs, reconstructs, alters (whether actively or passively), or fails to erect, construct, reconstruct, alter, repair or maintain any structure, BMP, practice, or condition in violation of this ordinance shall be subject to the remedies, penalties, and/or enforcement actions in accordance with this section. Persons subject to the remedies and penalties set forth herein may include any architect, engineer, builder, contractor, developer, agency, or any other person who participates in, assists, directs, creates, causes, or maintains a condition that results in or constitutes a violation of this ordinance, or fails to take appropriate action, so that a violation of this ordinance results or persists; or an owner, any tenant or occupant, or any other person, who has control over, or responsibility for, the use or development of the property on which the violation occurs.
For the purposes of this article, a responsible person(s) shall include the owner of the land on which the violation occurs, any tenant or occupant of the property, any person who is responsible for stormwater controls or practices pursuant to a private agreement or public document, or any person, who has control over, or responsibility for, the use, development or redevelopment of the property. A responsible person(s) may also include, but not be limited to an architect, engineer, builder, contractor, developer, agency, or any other person who participates in, assists, directs, creates, causes, maintains or does not correct a condition that constitutes a violation of this ordinance, or fails to take appropriate action, resulting in a continuing violation.
Whenever a violation of this ordinance occurs, or is alleged to have occurred, any person may file a written complaint. Such complaint shall state fully the alleged violation and the basis thereof, and shall be filed with the Stormwater Administrator, who shall record the complaint. The complaint shall be investigated promptly by the Stormwater Administrator.
The Stormwater Administrator shall have the authority, upon presentation of proper credentials, to enter and inspect any land, building, structure, or premises to ensure compliance with this ordinance.
- Notice of Violation and Order to Correct
When the Stormwater Administrator finds that any building, structure, or land is in violation of this ordinance, the Stormwater Administrator shall notify, in writing, the property owner or other person violating this ordinance. The Stormwater Administrator may consult with the Stormwater Review Committee regarding such violations prior to making a determination regarding whether a violation exists and the type of correction needed. The notification to the property owner or other person violating this ordinance shall indicate the nature of the violation, contain the address or other description of the site upon which the violation is occurring, order the necessary action to abate the violation, and give a deadline for correcting the violation. If civil penalties are to be assessed, the notice of violation shall also contain a statement of the civil penalties to be assessed, the time of their accrual, and the time within which they must be paid or be subject to collection as a debt.
The Stormwater Administrator may deliver the notice of violation and correction order personally, by the Kernersville Police Department or appropriate Sheriff’s department, by certified or registered mail, return receipt requested, or by any means authorized for the service of documents by Rule 4 of the North Carolina Rules of Civil Procedure.
If a violation is not corrected within a reasonable period of time, as provided in the notification, the Stormwater Administrator may take appropriate action under this ordinance to correct and abate the violation and to ensure compliance with this ordinance.
- Extension of Time
A person who receives a notice of violation and correction order, or the owner of the land on which the violation occurs, may submit to the Stormwater Administrator a written request for an
extension of time for correction of the violation. On determining that the request includes enough information to show that the violation cannot be corrected within the specified time limit for reasons beyond the control of the person requesting the extension, the Stormwater Administrator may extend the time limit as is reasonably necessary to allow timely correction of the violation, up to, but not exceeding 60 days. The Stormwater Administrator may grant 30 day extensions in addition to the foregoing extension if the violation cannot be corrected within the permitted time due to circumstances beyond the control of the person violating this ordinance. The Stormwater Administrator may grant an extension only by written notice of extension. The notice of extension shall state the date prior to which correction must be made, after which the violator will be subject to the penalties described in the notice of violation and correction order.
- Enforcement After Time to Correct
After the time has expired to correct a violation, including any extension(s) if authorized by the Stormwater Administrator, the Stormwater Administrator shall determine if the violation is corrected. If the violation is not corrected, the Stormwater Administrator may act to impose one or more of the remedies and penalties authorized by this ordinance.
- Emergency Enforcement
If delay in correcting a violation would seriously threaten the effective enforcement of this ordinance or pose an immediate danger to the public health, safety, or welfare, then the Stormwater Administrator may order the immediate cessation of a violation. Any person so ordered shall cease any violation immediately. The Stormwater Administrator may seek immediate enforcement, without prior written notice, through any remedy or penalty authorized by this article.
Town of Kernersville Stormwater Management Documents and Links
Town of Kernersville Watershed and Stormwater Administrative Manual
Town of Kernersville Stormwater Management FAQs