STATE OF SOUTH CAROLINA            )

                                                            )                       ORDINANCE NO. 05-15-07

COUNTY  OF NEWBERRY   )

 

AN ORDINANCE AMENDING THE ROAD ORDINANCE, AS CODIFIED, SO AS TO AMEND PROVISIONS RELATING TO THE DEDICATION PERIOD, TO CLARIFY CERTAIN POLICY STATEMENTS, TO CLARIFY COUNCIL’S RIGHT TO DISCONTINUE OR ABANDON ROADS UNDER ALL AVAILABLE STATUTORY PROCEDURES AND TO REQUIRE THAT NEW ROADS ACCEPTED INTO THE COUNTY SYSTEM BE PAVED, WITH CERTAIN LIMITED EXCEPTIONS, AND OTHER RELATED MATTERS.  

 

WHEREAS, Newberry County Council, as the governing body of Newberry County, has the statutory authority to adopt Ordinances governing the regulation of public roads in the  County, except in areas where the roads are actively maintained and regulated by the municipalities in the County,  and to adopt regulations and procedures which carry out the policies established by Newberry County Council;  and

WHEREAS, Newberry County Council, as authorized by § 4-9-30 and §4-9-130 of the S.C. Code of Laws, 1976, as amended, and pursuant to the provisions of Chapter 17 of Title 57 of the S.C. Code of Laws, 1976, as amended, has the power to build, open, close, move, relocate, widen, maintain or not maintain, discontinue or alter the use of, set standards for, and regulate all aspects of the construction, use and maintenance of County public roads, including bridges and ferries, all as may be set forth in Chapter 91 of the Newberry County Code of Ordinances, including the power to modify existing provisions and to implement new provisions which will more fully set forth the public policy of the County relating to such matters; and

WHEREAS, Newberry County Council also has the authority pursuant to Chapter 9 of Title 57 of the 1976 S.C. Code of Laws to abandon or close any road, street or highway by submitting a Petition to a court of competent jurisdiction and following the statutory procedures set forth in said Chapter, and pursuant to Chapter 7 of  Title 57 of the S.C.  Code of Laws, 1976, as amended, has the authority to bring criminal prosecution against persons who negligently or willfully damage public roads, and to seek civil remedies against such persons for the cost of such damages.  

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NOW, THEREFORE, BE IT ORDAINED THAT NEWBERRY COUNTY COUNCIL DOES HEREBY AMEND CHAPTER 91 OF THE NEWBERRY COUNTY CODE OF ORDINANCES SO AS TO:

1.            Amend Section 91.05, relating to Definitions, as follows:

The definition of “Dedication Period” is amended to read:

(1) The Dedication Period shall constitute a period of 2 years from the date the final plat is approved by the County. This period serves to assure the County as to the quality and construction standards of the road construction. In the event that after 2 years the improvements do not continue to meet the minimum construction requirements as prescribed in the road policy, the county shall be released from any obligation to accept maintenance of the road.

(2) The developer of a subdivision will be required to sell 50% of lots before the County will accept roads.

 

2.            Amend Section 91.20 so as to revise the provisions of subparagraphs (B) (1),(2),  (3) ands (7), which shall hereafter provide as follows:

(B)            (1) The County of Newberry will not accept rights of way of less than 66 feet in total width for new roadways, except for good cause shown and upon approval of Newberry County Council.

(2) In instances where the proposed roadway serves as a connection link or has the potential of becoming a link between 2 or more existing or proposed public roads, a 66 foot wide right of way will be required, This requirement shall be determined by the County Administrator and the County Council.  except in cases where good cause is shown and upon approval of Newberry County Council. 

(3)             (a)The minimum right of way width for extensions of existing roads shall be 66 feet, except for good cause shown and upon approval of Newberry County Council.   

(b) In cases where the County has, or is believed to have, a dedicated right of way for an existing road, then upon approval of County Council, the existing dedicated right of way, which is typically from the outside edge of one ditch to the outside edge of the other ditch, may be accepted by proper deed to the County, so as to formally acknowledge the public road status of the right of way, to establish the width and extent of the right of way on the public records of the County, and to formalize the County’s right to control vegetation in and obstructions to the right of way and to control any encroachments into the right of way for water, sewer, storm water drainage, fire protection, gas, utility, cable television, data transmission and other utility-type lines typically associated with the use of road rights of way.   

(7)            The amount of the surety to be provided to repairs required during the Dedication Period as follows:  

                        (A)  For Triple Treatment roads, $8,000 per quarter (1/40  mile;

            (B)   For  roads paved with asphalt, $15,000 per quarter (1/4) mile;

            (C)  Provided, however, the surety for a new road may be more or less than the foregoing amounts, considering the soil type, storm water drainage, construction methods, or other conditions or circumstances affecting the road, and the amount of the necessary surety shall be determined by the Director of Public Works.

            (D)  Any aggrieved  person may petition the County Administrator within 30 days of the determination by the Director of Public Works for a review of the amount and quality of the surety required.  The County Administrator‘s  determination is final. 

           

3.                Amend Section 91.31 so as to delete subparagraphs (A), (B), (C) and (D), and to insert  the following language for Section 91.31, as set forth below:

            91.31            NAMING OF ROADS - In order to provide for the safety and security of all County residents, and to minimize confusion for citizens, law enforcement and emergency personnel in times of  natural disaster, civil unrest, or other emergency, all roads in Newberry County, public or private, shall be named in accordance with the provisions of Chapter 94 of this Newberry County Code of Ordinances, as amended from time to time.

 

4.         Amend Section 91.32 so as to read as follows:

A.            All road closings shall be done in accordance with S.C. Code § 57-17-10 et seq., as amended Any public road under the County’s jurisdiction may be closed by Ordinance adopted by County Council, provided that a duly advertised public hearing is first held, and that all adjoining landowners served by the road have been timely notified by certified mail of the public hearing. Such notification is not required to be given to a person who is an adjoining property owner and who has submitted to the Clerk to Council a written consent to the closing of the road.

             1.            Action by the Council to close a public road does not affect any easements for the private use of the right of way for such road, which easements are appurtenant to the property adjoining the public road or to properties otherwise served by said public road. 

            2.            If the right of way for a road was dedicated to public use and accepted by the County, but the road was never actually

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constructed, then after the holding of a duly advertised public hearing, the County may by Resolution approve the discontinuance of the public use of such right of way and the execution of a deed quitclaiming and releasing the County’s interest in the right of way to such road to the proper party, provided that the developer, its successor or assigns, or other owner of the property, and any adjoining landowners affected by the action join in the request for such relief. 

                        3.                 In all other cases road closings may be done in accordance with S.C. Code § 57-17-10, et seq., as amended, or by such other method as may be provided by law.

            B.            In the event that a property owner wishes to relocate a road, the relocation must be in accordance with sections of the S.C. Code of Laws 1976, as amended. have a public road relocated or altered, the relocation or alteration must first be approved by County Council, after the holding of a duly advertised public hearing, and upon approval of the relocation, the County Council may authorize by Resolution the release of the County’s interest in the former right of way by quitclaim deed, and the acceptance of the relocated or altered right of way by appropriate deed from the property owner.   The Council shall determine whether the property owner or the County or other entity shall bear the cost of such relocation or alteration.  

            C.            In the event that the County wishes to abandon the maintenance of a road or bridge without closing the road, it shall do so in accordance with the South Carolina Code of Laws 1976, as amended by Ordinance of Newberry County Council adopted after the holding of a duly advertised public hearing and upon the notification by certified mail of the public hearing which shall be given to any property owner whose property will be materially affected by such action.   Within 30 days of such action by Council to abandon the maintenance thereof, the affected road and/or bridge location shall be posted once by County personnel with proper permanent signs notifying the public that the maintenance of such road or bridge has been abandoned, and that persons use the road or bridge at their own risk, but this duty of posting the road or bridge shall not be a continuing duty.

 

                        The remaining subparagraphs in Section 91.32 are unchanged.

 

5.         Amend Section 91.21(B) (6) so as to delete the following language:

(6) Newberry County shall not accept title or easement to any road until the road meets the dedication requirement of 2 years. A bond or cash advancement shall be deposited with the County Treasurer in the amount of the cost per mile.

 

            and that language will be replaced with the following language:

 

            (6) (a) Acceptance of the road is subject to requirements of the Dedication Period, as defined in this Code.  No road may be accepted unless accompanied by a surety in the form of a commercial bond or letter of credit or cash deposit in the amount specified in Section 91.20(7), or in such greater amount determined by the County to be sufficient to cover any estimated cost of repairs for a period of two years from the date of acceptance.

            (b) In the event that the road, as constructed, does not continue to meet the minimum standards approved for such road during the entire two year Dedication Period, the County will be entitled  to pursue its remedies under the bond or other surety given to the County, and if such are insufficient to bring the road up to standards, then the County may pursue civil remedies against the developer,

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contractor or other responsible party, and shall be entitled to collect  all of its attorneys fees and court costs from such responsible party in so doing.  

(c) If the acceptance of the road by the County was procured by fraudulent act, or if the road cannot be brought into compliance with the funds available from the surety and from other resources readily obtainable from the responsible party, then the County may seek a Court order authorizing it to revoke its acceptance of such road and to remove it from the public road system, in addition to any other remedies it may have pursued or been entitled to pursue.  If such relief is sought, the County shall be entitled  to collect  all of its attorney’s fees and court costs in pursuing such relief, whether or not it is successful in obtaining such relief.   

 

6.         Amend Section 91.33 so as to add the following additional subparagraph:

            (G)            Notwithstanding any other provision of this Chapter or of this Code of Ordinances, after July 31, 2007, no road shall be accepted into the County Road unless it has been paved to final specifications including a final top coat of paving, or unless adequate provision has been made in the form of the posting of an adequate commercial bond, cash deposit or Letter of Credit to cover the cost of finishing the paving of the road.  This bond is in addition to the surety required for the two year warranty period.  The only exception to this requirement is that the County may accept a deed of easement or of fee simple of a definite right of way for a long-time unpaved County road, the use of which has been established through prescriptive easement, or by imprecise delineation and dedication on a  plat and/or deed more than 20 years old, by Court Order or otherwise. 

 

 

7.         Amend Section 91.29, POLICY STATEMENTS, so as to add the following subparagraphs:

            C.             Roads in existing subdivisions which have already been paved to County standards, but which have less than the required width of right of way, may be accepted into the County road system, upon a further determination by County Council that special circumstances exist which justify the acceptance of the road right of way, and that the customary right of way width is not readily available for acquisition.

            D. The developer of a subdivision may be required to sell 50% of the parcels of a subdivided tract before the County will accept the roads therein, but this requirement may be waived by Newberry County Council for good cause shown.  The purpose of this provision is to keep the County from accepting financial responsibility for new roads which may be damaged by the heavy truck traffic generally associated with the development of property and construction of new homes or businesses, and which roads may need extensive, costly  repairs after being exposed to such traffic.

            E. Concerning roads in approved subdivisions, in the event that there is any material difference between the requirements of this Chapter and the Chapter providing standards for road acceptance and construction in subdivisions, the provisions of the subdivision regulations shall govern.  The provisions of this Chapter shall govern in all other situations.

 

8.         Amend Section 91.34(B)  so that it will read as follows: The County Council shall not accept any right of way less than 40 feet. The County Council, for good cause shown, may accept a road right of way that is less than 66 feet in width but at least 40 feet in width,  provided, however, that a smaller right of way may be accepted by deed of title or easement to clarify the widths of the road rights of way for long-time County roads, as specified in Sections 91.20(B)(3)(b) and  91.33(G).

 

            AND IT IS SO ORDAINED by Newberry County Council this 6th day of

 

June, 2007  in meeting duly assembled at  Newberry, South Carolina.

 

                                                                                    NEWBERRY COUNTY COUNCIL

            (SEAL)

By:__________________________

Henry B. Summer, Chairman

Attest:

___________________________

Susan C. Fellers, Clerk to Council

1st reading:  May 2, 2007                              Reviewed and approved as to form:

Public Hearing:  May 16,2007                             _____________________________

2nd reading:  May 16, 2007                            Gary T. Pope, County Attorney

3rd reading:  June 6, 2007                              _____________________________

                                                                        Wayne Adams, County Administrator