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Issue  21  Article  47
Published:  4/1/1997

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Impact of Stormwater Regulations on Subdivision Covenants
Chris Burti and Gary Perdue

Attorneys drafting restrictive covenants for developers in eastern North Carolina should be aware that the North Carolina Department of Environment, Health and Natural Resources (DEHNR) adopted changes to stormwater management regulations (15A NCAC 2H .1001 et seq.) affecting 20 coastal counties effective September 1, 1995. These changes apparently have not received widespread circulation and are not well known by a significant number of real estate attorneys.

15A NCAC 2H .1002(4) is the section that defines the following "Coastal Counties" : Beaufort, Bertie, Brunswick, Camden, Cartaret, Chowan, Craven, Currituck, Dare, Gates, Hertford, Hyde, New Hanover, Onslow, Pamlico, Pasquotank, Pender, Perquimans, Tyrrell, and Washington.

15A NCAC 2H .1003(b)(1) makes these regulations applicable to development activities in the 20 coastal counties and 15A NCAC 2H .1003(d) (1) and (2) provide that projects subject to the permitting requirements of the regulations must have recorded deed restrictions and protective covenants to ensure that the development activities maintain the development consistent with the approved plans. The permit application promulgated by the Division of Environmental Management includes information informing the applicant of these requirements and, by attachment , provides an example of the required language as follows:

"No more than ________ square feet of any lot, including that portion of the right-of-way between the edge of pavement and the front lot line, shall be covered by impervious structures, including asphalt, gravel, concrete, brick, stone, slate or similar material, not including wood decking or the water surface of swimming pools. This covenant is intended to ensure continued compliance with the stormwater permit issued by the State of North Carolina. The covenant may not be changed or deleted without the consent of the State.

No one may fill in or pipe any roadside or lot line swale, except as necessary to provide a minimum driveway crossing.

For curb and gutter projects, no one may pipe, fill in, or alter any lot line swale used to meet North Carolina Stormwater Management Permit requirements."

Failure to comply with these regulations may subject the owner/developer to revocation or modification of the permit (15A NCAC 2H .1011) or the enforcement provisions of Article 21 of Chapter 143 of the North Carolina General Statutes (15A NCAC 2H .1003(h)(4)). This Article includes in part the following provisions.

 

143-215.6B. Enforcement procedures; criminal penalties

(f) Any person who negligently violates any: (i) classification, standard, or limitation established in rules adopted by the Commission pursuant to G.S. 143-214.1, 143-214.2, or 143-215; (ii) term, condition, or requirement of a permit issued pursuant to this Part, including permits issued pursuant to G.S. 143-215.1, pretreatment permits issued by local governments, and laboratory certifications; (iii) term, condition, or requirement of a special order or other appropriate document issued pursuant to G.S. 143-215.2; or (iv) rule of the Commission implementing this Part; and any person who negligently fails to apply for or to secure a permit required by G.S. 143-215.1 shall be guilty of a Class 2 misdemeanor which may include a fine not to exceed fifteen thousand dollars ($15,000) per day of violation, provided that such fine shall not exceed a cumulative total of two hundred thousand dollars ($200,000) for each period of 30 days during which a violation continues.

(g) Any person who knowingly and willfully violates any (i) classification, standard, or limitation established in rules adopted by the Commission pursuant to G.S. 143-214.1, 143-214.2, or 143-215; (ii) term, condition, or requirement of a permit issued pursuant to this Part, including permits issued pursuant to G.S. 143-215.1, pretreatment permits issued by local governments, and laboratory certifications; or (iii) term, condition, or requirement of a special order or other appropriate document issued pursuant to G.S. 143-215.2; and any person who knowingly and willfully fails to apply for or to secure a permit required by G.S. 143-215.1 shall be guilty of a Class I felony, which may include a fine not to exceed one hundred thousand dollars ($100,000) per day of violation, provided that this fine shall not exceed a cumulative total of five hundred thousand dollars ($500,000) for each period of 30 days during which a violation continues. For the purposes of this subsection, the phrase "knowingly and willfully" shall mean intentionally and consciously as the courts of this State, according to the principles of common law interpret the phrase in the light of reason and experience.

143-215.6A. Enforcement procedures: civil penalties

(a) A civil penalty of not more than ten thousand dollars ($10,000) may be assessed by the Secretary against any person who:

(1) Violates any classification, standard, limitation, or management practice established pursuant to G.S. 143-214.1, 143-214.2, or 143-215.

(2) Is required but fails to apply for or to secure a permit required by G.S. 143-215.1, or who violates or fails to act in accordance with the terms, conditions, or requirements of such permit or any other permit or certification issued pursuant to authority conferred by this Part, including pretreatment permits issued by local governments and laboratory certifications.

 

143-215.6C. Enforcement procedures: injunctive relief

Whenever the Department has reasonable cause to believe that any person has violated or is threatening to violate any of the provisions of this Part, any of the terms of any permit issued pursuant to this Part, or a rule implementing this Part, the Department may, either before or after the institution of any other action or proceeding authorized by this Part, request the Attorney General to institute a civil action in the name of the State upon the relation of the Department for injunctive relief to restrain the violation or threatened violation and for such other and further relief in the premises as the court shall deem proper. The Attorney General may institute such action in the superior court of the county in which the violation occurred or may occur or, in his discretion, in the superior court of the county in which the person responsible for the violation or threatened violation resides or has his or its principal place of business. Upon a determination by the court that the alleged violation of the provisions of this Part or the regulations of the Commission has occurred or is threatened, the court shall grant the relief necessary to prevent or abate the violation or threatened violation. Neither the institution of the action nor any of the proceedings thereon shall relieve any party to such proceedings from any penalty prescribed for violation of this Part.

note - The N.C. Administrative Code section of West’s N.C. CD-ROM library is current only through April of 1995 and does not include these amendments.

 


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