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Construction Project Development FAQs

1. What does “project development” encompass?

Our attorneys assist real estate developers in the process of moving a development project from concept to reality. We assist with the zoning and land use process, obtaining entitlements in the form of permits and necessary governmental authorizations, resolving title issues and negotiating general contracts for the construction process.

2. Can I make improvements to property if it is located in a flood zone?

Any activity within a designated “Special Flood Hazard Area” (commonly referred to as the “100-year flood zone” or “floodway”) requires a Floodplain Development Permit approved by the floodplain administrator, generally the local planning director. This includes grading, filling, construction of buildings and even the installation of permanent landscaping.

Proposed projects are reviewed and conditions are imposed on any permits issued to reduce the potential for environmental damage from floodwater. All structures proposed within the floodplain will need flood-proofing or elevation certificates from professional engineers or surveyors. Any development within the floodway (the “non-encroachment area”) must be certified by an engineer to cause zero rise in the base flood elevation.

3. What is stormwater management?

Stormwater is rain or snow melt resulting in excess water that cannot filter into the soil (or be absorbed by vegetation), which flows through pipes, gutters, channels or over land. It washes pollutants like soil, litter, leaked automotive fluids, fertilizers, detergents and bacteria into our creeks, rivers, lakes and oceans. In heavy storms, it can cause flash flooding and exacerbate drainage problems.

4. Why does stormwater need to be managed?

Stormwater runoff is now the leading source of water pollution and environmental damage in our country. It can increase erosion and formation of gullies in upland areas, increase in-stream scour and erosion, increase sediment deposition in lower areas, degrade water quality, create peak storm flows that are higher and faster and cause more frequent flooding. In urban areas that have significant amounts of impervious surfaces, and in areas that are cleared of vegetation, the effects of stormwater runoff are much greater than in areas where soil and vegetation can absorb excess water.

5. Do builders have to control erosion and sediment on their construction sites in Wake County?

Yes. Environmental disturbances of less than one acre must have a driveway with a minimum 10-foot-wide by 30-foot-long gravel construction pad or equal, as well as a silt fence of a type acceptable to the Wake County Sedimentation and Erosion Control section. Seeding and mulching of any applicable disturbed area is also required. Areas within 25 feet of the edge of pavement or gravel of the road must be stabilized before the issuance of a certificate of occupancy.

Wake County operates an erosion prevention program that aims to prevent sediment from leaving a construction site and contaminating Wake County’s natural environment. Wake County manages erosion control for all unincorporated areas of the county and the following municipalities: Fuquay-Varina, Garner, Knightdale, Morrisville, Rolesville, Wendell, and Zebulon. All single-family home construction sites in Wake County’s jurisdiction are required to have adequate erosion control installed prior to the footing inspection.

6. What is the purpose of a maintenance bond?

To provide a process whereby developers can provide a town or county with a monetary bond as security in lieu of physical works remaining to be completed on a construction development. Such bonds are retained for a time determined by the administrative agency and are refunded to developers following the satisfactory completion of development work and/or following the completion of a works maintenance period.

7. Are there laws that pertain to drainage?

North Carolina law provides that the person on the lower estate must receive and pass the water from the higher estate(s). Also, specific statutes prohibit the blockage of streams, drainage ways, and easements that remove water from higher elevations. For more specific information on the statutes, go to www.ncga.state.nc.us.

8. What is an easement?

An easement is a non-possessory interest in the land of another. An easement is created when a landowner grants a right to use his property to another. Common types of easements include driveway easements, ingress and egress easements, utility easements, right-of-way easements and sewer easements. North Carolina recognizes two types of easements. First, ”easements appurtenant” benefit adjoining land, no matter who owns the adjoining land. An easement appurtenant attaches to and passes with the land. An example of an easement appurtenant is one where the seller of a landlocked parcel of land conveys a right of ingress and egress to the purchaser. The second, ”easements in gross” benefit a specific individual or business entity. Typically an easement in gross granted to an individual expires upon his death.

North Carolina law recognizes five methods of creating easements: Express grant, implied easement, easement by prescription, easement by condemnation and easement by express reservation.

The best way to avoid easement disputes is to survey the property and perform a title search prior to purchasing a property.

9. What environmental regulations are applicable to the development of land?

There is a large body of law, including federal and state laws and regulations, that applies to the environmental impacts that development may have on land. To name a few, there is CERCLA, or the Comprehensive Response, Compensation, and Liability Act, which provides federal clean-up of contaminated sites; UST, or the federal and North Carolina Underground Storage Tank regulations; CWA, or federal Clean Water Act; the North Carolina Water and Air Resources Act; NEPA, or National Environmental Policy Act of 1969, which is a decision-making procedural statute that requires federal agencies to consider environmental impacts and alternatives associated with project planning; SEPA, or State Environmental Policy Act (North Carolina Environmental Policy Act adopted in 1971), similar to NEPA; among many others.

10. What is “green construction”?

“Green building” or sustainable design and construction is the opportunity to use resources more efficiently, while creating healthier and more energy-efficient homes. Although there is no magic formula, success comes in the form of leaving a lighter footprint on the environment through conservation of resources, while at the same time balancing energy-efficient, cost-effective, low-maintenance products for our construction needs. In other words, green building design involves finding the delicate balance between homebuilding and the sustainable environment. The American Society of Testing and Materials (ASTM) set a measurable definition with ASTM Standard E2114-06a, the United States Green Building Council (USGBC) set up an LEED system that is widely recognized, and the International Code Council (ICC) published a model International Green Construction Code (IGCC). The North Carolina legislature defined an objective with N.G. Gen. Stat §143-135.35.

11. Are the North Carolina Department of Environmental Quality’s rules and regulations reviewed or changed over time?

N.C. Gen. Stat. §150B-21.3A, adopted in 2013, requires state agencies to review existing rules every 10 years. The Department of Environmental Quality’s rules are located by subchapters in Title 15A of the NC Administrative Code. The Department’s rules will be reviewed on a schedule established by the Rules Review Commission. As rules become available for public comment, links will be available on their website. The Department is required to evaluate each of the existing rules and make an initial determination from one of these three classifications:

  • Necessary with substantive public interest – the agency has received public comment on the rule within the past two years or the rule affects the property interest of the regulated public, and the agency knows or suspects that any person may object to the rule.
  • Necessary without substantive public interest – the agency determines that the rule is needed, and the rule has not had public comment in the last two years. This category includes rules that identify information that is readily available to the public, such as an address or telephone number.
  • Unnecessary – the agency determines that the rule is obsolete, redundant or otherwise not needed.

If you have a construction project development concern that may require the assistance of an attorney, please contact the lawyers at Hannah Sheridan & Cochran, LLP, at 919-859-6840.

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