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City of Hickory / County of Catawba

The City of Hickory has enacted a Stormwater Ordinance in order to establish minimum stormwater management requirements and controls to protect and safeguard the general health, safety, and welfare of the public residing in watersheds within this jurisdiction. The City of Hickory is the permitting authority for all land disturbing activities and requires the land owner to maintain all on-site stormwater control facilities and all open space areas (e.g. parks or “green” areas) required by the approved stormwater control plan. The City of Hickory will only provide construction permits to projects that establish a plan to manage stormwater runoff occurring during the construction process. The City of Hickory, under the NPDES program, also has the authority to inspect properties for noncompliance and can issue a notice of violation (NOV) for any deficiency or infraction onsite. Property owners are responsible for the maintenance of any stormwater facilities or practices located on the property. The City of Hickory has the authority to inspect stormwater facilities and practices in order to ascertain that they are properly maintained and functioning.

Excerpts from the City of Hickory Phase II Stormwater Ordinance

SECTION 4: MAINTENANCE

4.1 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 one of the following persons performing services only in their area of competence: a qualified registered North Carolina professional engineer, surveyor, landscape architect, soil scientist, aquatic biologist, or person certified by the North Carolina Cooperative Extension Service for stormwater treatment practice inspection and maintenance. 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; and

The original signature and seal of the engineer, surveyor, or landscape architect.

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.

4.2 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 City 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 City 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.

Provide financial security, 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 City, in its sole discretion, may remedy the situation, and in such instances the City shall be fully reimbursed by the association and its members for sediment removal, structural, biological or vegetative replacement, major repair, and reconstruction of the structural BMPs, provided that the City of Hickory shall first consent to the expenditure.

An annual certified financial statement shall be provided to the City along with the required annual inspection report.

Granting to the City right of entry to inspect, monitor, maintain, repair, and reconstruct structural BMPs.

Allowing the City to recover from the association and its members any and all costs the City expends to maintain or repair the structural BMPs or to correct any operational deficiencies. Failure to pay the City all of its expended costs, after forty-five days written notice, shall constitute a breach of the agreement. In case of a deficiency, the City 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. Interest, collection costs, and attorney fees shall be added to the recovery.

A statement that this agreement shall not obligate the City to maintain or repair any structural BMPs, and the City 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 City to enforce any of its ordinances as authorized by law.

A provision indemnifying and holding harmless the City for any costs and injuries arising from or related to the structural BMP, unless the City 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.

4.3 INSPECTION PROGRAM

Inspections and inspection programs by the City 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.

4.4 PERFORMANCE SECURITY FOR INSTALLATION AND MAINTENANCE

Required

The City shall require the submittal of a performance security or bond with surety, cash escrow, letter of credit or other acceptable legal arrangement 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

Maintained by the owner as required by the operation and maintenance agreement.

Amount

Installation

The amount of an installation performance security shall be the total estimated construction cost of the BMPs approved under the permit, plus 25%.

Maintenance

The amount of a maintenance performance security 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 cost of borrowing minus a reasonable estimate of long-term inflation.

Uses of Performance Security

Forfeiture Provisions

The performance security shall contain forfeiture provisions for failure, after proper notice, 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.

Default

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 security 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 security, the City shall not return any of the unused deposited cash funds or other security, which shall be retained for maintenance.

Costs in Excess of Performance Security

If the City takes action upon such failure by the applicant or owner, the City may collect from the applicant or owner the difference between the amount of the reasonable cost of such action and the amount of the security held, in addition to any other penalties or damages due.

Refund

Within sixty days of the final approval, the installation performance security shall be refunded to the applicant or terminated, except any amount attributable to the cost (plus 25%) of landscaping installation and ongoing maintenance associated with the BMPs covered by the security. 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 financial security attributable to landscaping shall be released.

4.5 NOTICE TO OWNERS

Deed Recordation and Indications On Plat

The applicable operations and maintenance agreement and conservation easement (if applicable), 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 and conservation easement (if applicable), 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.

Signage

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.

4.6 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.

4.7 NUISANCE

The owner of each stormwater BMP, whether structural or non-structural BMP, shall maintain it so as not to create or result in a nuisance condition.

SECTION 5: ENFORCEMENT AND VIOLATIONS

5.1 GENERAL

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 City. Whenever this section refers to the Stormwater Administrator, it includes his or her designee as well as any authorized agent of the City.

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, responsible person(s) shall include but not be limited to:

Person Maintaining Condition Resulting In or Constituting Violation

An architect, engineer, builder, contractor, developer, agency, or any other person who participates in, assists, directs, creates, causes, or maintains a condition that constitutes a violation of this ordinance, or fails to take appropriate action, so that a violation of this ordinance results or persists.

Responsibility For Land or Use of Land

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.

5.2 REMEDIES AND PENALTIES

The remedies and penalties provided for violations of this ordinance, whether civil or criminal, shall be cumulative and in addition to any other remedy provided by law, and may be exercised in any order.

Remedies

Withholding of Certificate of Occupancy

The Stormwater Administrator or other authorized agent may refuse to issue a certificate of occupancy for the building or other improvements constructed or being constructed on the site and served by the stormwater practices in question until the applicant or other responsible person has taken the remedial measures set forth in the notice of violation or has otherwise cured the violations described therein.

Disapproval of Subsequent Permits and Development Approvals

As long as a violation of this ordinance continues and remains uncorrected, the Stormwater Administrator or other authorized agent may withhold, and the Planning and Development Director or Planning Commission may disapprove, any request for permit or development approval or authorization provided for by this ordinance or the Land Development Code for the land on which the violation occurs.

Injunction, Abatements, etc.

The Stormwater Administrator, with the written authorization of the City Manager, may institute an action in a court of competent jurisdiction for a mandatory or prohibitory injunction and order of abatement to correct a violation of this ordinance. Any person violating this ordinance shall be subject to the full range of equitable remedies provided in the General Statutes or at common law.

Correction as Public Health Nuisance, Costs as Lien, etc.

If the violation is deemed dangerous or prejudicial to the public health or public safety and is within the geographic limits prescribed by North Carolina G.S. § 160A-193, the Stormwater Administrator, with the written authorization of the City Manager, may cause the violation to be corrected and the costs to be assessed as a lien against the property.

Stop Work Order

The Stormwater Administrator may issue a stop work order to the person(s) violating this ordinance. The stop work order shall remain in effect until the person has taken the remedial measures set forth in the notice of violation or has otherwise cured the violation or violations described therein. The stop work order may be withdrawn or modified to enable the person to take the necessary remedial measures to cure such violation or violations.

Civil Penalties

Violation of this ordinance may subject the violator to a civil penalty to be recovered in a civil action in the nature of a debt if the violator does not pay the penalty within 30 days after notice of the violation is issued by the Stormwater Administrator. Civil penalties may be assessed up to the full amount of penalty to which the City is subject for violations of its Phase II Stormwater permit.

Criminal Penalties

Violation of this ordinance may be enforced as a misdemeanor subject to the maximum fine permissible under North Carolina law.

5.3 PROCEDURES

Initiation/Complaint

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.

Inspection

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 notification 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 City code enforcement personnel, 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 30 days. The Stormwater Administrator may grant 15-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.

F. 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.

Excerpts from City of Hickory Phase II Stormwater Admin Manuel

SECTION 7: OPERATION AND MAINTENANCE AGREEMENT

7.1 PURPOSE OF OPERATION AND MAINTENANCE AGREEMENT

An Operation and Maintenance Agreement is required for all BMPs. The purpose of this legal agreement is to ensure that each BMP receives adequate maintenance so that it can satisfactorily perform its pollutant removal function. The agreement also designates the responsible party who shall be in charge of maintaining the BMP. An addendum for each type of BMP shall be attached to the Operation and Maintenance Agreement when it is submitted for approval. The standard format Operation and Maintenance Agreement and Addenda shall be furnished by the City.

The Operation and Maintenance Agreement and Operation and Maintenance Manual should be submitted for review and approval once the Stormwater Management Permit is issued. The Operation and Maintenance Agreement and Operation and Maintenance Manual must be approved before a Certificate of Occupancy is issued.

The Operation and Maintenance Agreement and Operation and Maintenance Manual shall be referenced on the final plat. The Operation and Maintenance Agreement and Operation and Maintenance Manual shall be recorded with the appropriate County Register of Deeds (Catawba, Caldwell, or Burke).

7.2 OPERATION AND MAINTENANCE MANUAL

An Operation and Maintenance Manual is required for all site BMPs. The Operation and Maintenance Manual shall include all site BMPs and shall indicate what operation and maintenance actions are required to be performed, what criteria shall be used to determine when those actions are necessary, and who is responsible for those actions. A copy of the Operation and Maintenance Manual shall be kept at the site along with the records of inspections, maintenance, and repairs.

7.3 ANNUAL MAINTENANCE AND INSPECTION REPORT

The Operation and Maintenance Agreement requires that each BMP shall be inspected on an annual basis. The Owner shall provide an annual inspection report for each BMP, performed by a qualified professional according to the City’s Phase II Stormwater Ordinance Section 4.1(B). The standard format Maintenance and Inspection Checklist form shall be furnished by the City. The annual inspection report shall be submitted to the City on/or before the first and each subsequent anniversary date of the as-built certification.

The inspection report for each BMP must indicate the status of each item inspected, and any maintenance that was conducted or repairs that were made as a result of the inspection. The inspector shall certify that at the time of the inspection the BMP was performing properly and was in compliance with the terms and conditions of the approved Operation and Maintenance Agreement and Operation and Maintenance Manual. The inspector should allow enough time before the anniversary date of the as-built certification to conduct the necessary inspection(s) and allow for any recommended maintenance and repairs to be made prior to the submittal of the report.

The owner of the BMP shall keep records of inspections, maintenance, and repairs for at least five (5) years from the date of creation of the record and shall submit the same to the Storm Water Administrator upon request.