STATE OF SOUTH CAROLINA )
) ORDINANCE NO. 09-29-07
COUNTY OF NEWBERRY )
AN ORDINANCE SETTING ASIDE A ONE-HALF ACRE PARCEL WITHIN THE LYNCHES WOODS PARK AS AN AREA PROTECTED BY A RESTRICTIVE COVENANTS, AS A MEANS OF PROVIDING FOR WETLAND MITIGATION OF SMALL AREAS OF WETLANDS DISTURBED DURING THE NEWBERRY COUNTY AIRPORT IMPROVEMENT PROJECT, AND MATTERS RELATED TO THE IMPLEMENTATION OF THE MITIGATION PLAN.
WHEREAS, Newberry County owns and operates the Newberry County Airport, and is in the process of adding a new runway and making other improvements with the assistance of grants from the Federal Aviation Administration and the Aeronautics Division of the S.C. Department of Commerce, and
WHEREAS, environmental surveys of the Airport property have revealed the presence of small areas of wetlands within the area to be improved, and these wetlands areas must be mitigated by dedicating other areas of County property for permanent preservation and protection through the imposition of permanent restrictive covenants, which must be approved by the United States Army Corps of Engineers and the SC Department of Health and Environmental Control; and
WHEREAS, the County, acting though its engineering consultants for the Airport Project, W. K. Dickson Co., has applied for and obtained the necessary permit to implement the mitigation plan for the affected wetlands.
NOW, THEREFORE, BE IT ORDAINED
1. That the mitigation plan for the Airport property, as reflected in Permit Number SAC-2007-1216-6NF, is hereby approved, and the County Administrator is authorized to take such further action, and to execute such documents as may be necessary to comply with terms of said permit.
2. That the one half acre portion of the Lynches Woods Park, as described in the restrictive covenants attached hereto, shall be permanently protected from development and other activities described in the restrictive covenants, and upon approval of this Ordinance, the Chairman of County Council is authorized to execute the documents imposing the Restrictive Covenants on this property, as set forth in the document attached hereto as Exhibit “A”, and to take such other action as may be necessary to implement the approved mitigation plan.
AND IT IS SO ORDAINED by Newberry County Council this 19th day of December, 2007 in meeting duly assembled at Newberry, South Carolina.
NEWBERRY COUNTY COUNCIL
Henry B. Summer, Chairman
Susan C. Fellers, Clerk to Council
1st reading: September 5, 2007
Public Hearing: September 19, 2007 & December 5, 2007
2nd reading: December 5, 2007
3rd reading: December 19, 2007
Reviewed and approved as to form by:
Gary T. Pope, County Attorney
Wayne Adams, County Administrator
STATE OF SOUTH CAROLINA ) DECLARATION OF
) RESTRICTIVE COVENANTS
COUNTY OF NEWBERRY )
THIS DECLARATION OF RESTRICTIVE COVENANTS is made this 19th day of December, 2007 , by Newberry County ("Declarant").
WHEREAS, Declarant is the owner of certain real property ( "real property" includes wetlands, any interest in submerged lands, uplands, associated riparian/littoral rights) located in Newberry County, South Carolina, more particularly described as 0.5 acres of stream and streambank (see Attachment “A”) ("Property"); and
WHEREAS, as compensatory mitigation under Federal and State law for Department of the Army Permit No. SAC 2007-1216-6NF ("Permit") issued by the U.S. Army Corps of Engineers, Charleston District ("Corps" or “Charleston District,” to include any successor agency), and certification(s) and/or permit(s) issued by the S.C. Department of Health and Environmental Control ("DHEC," to include any successor agency), and in recognition of the continuing benefit to the permitted property, and for the protection of waters of the United States and scenic, resource, environmental, and general property values, Declarant has agreed to place certain restrictive covenants on the Property, in order that the Property shall remain substantially in its natural condition forever.
NOW THEREFORE, Declarant hereby declares that the Property shall be held, transferred, conveyed, leased, occupied or otherwise disposed of and used subject to the following restrictive covenants, which shall run with the land and be binding on all heirs, successors, assigns (they are included in the term, “Declarant,” below), lessees, or other occupiers and users.
1. Prohibitions. Declarant is and shall be prohibited from the following: filling, draining, flooding, dredging, impounding, clearing, burning, cutting or destroying vegetation, cultivating, excavating, erecting, constructing, releasing wastes, or otherwise doing any work on the Property; introducing exotic species into the Property (except biological controls pre-approved in writing by the Corps and DHEC); and from changing the grade or elevation, impairing the flow or circulation of waters, reducing the reach of waters, and any other discharge or activity requiring a permit under clean water or water pollution control laws and regulations, as amended. The following are expressly excepted from this paragraph: a) cumulatively very small impacts associated with hunting (excluding planting or burning), fishing, and similar recreational or educational activities, consistent with the continuing natural condition of the Property; b) removal or trimming of vegetation hazardous to person or property, or of timber downed or damaged due to natural disaster; c) restoration or mitigation required under law [ if reference is made to the Permit, or to a mitigation plan approved by the Permit, all exceptions (including regarding buffer areas) must be specifically spelled out in the Permit or plan; also, additional, specific exceptions may be listed in this paragraph, e.g., fire or wildlife management plans, boardwalks, etc.].
2. Amendment. After recording, these restrictive covenants may only be amended by a recorded document signed by the Corps and DHEC and Declarant. The recorded document, as amended, shall be consistent with the Charleston District model conservation restrictions at the time of amendment. Amendment shall be allowed at the discretion of the Corps and DHEC, in consultation with resource agencies as appropriate, and then only in exceptional circumstances. Mitigation for amendment impacts will be required pursuant to Charleston District mitigation policy at the time of amendment. There shall be no obligation to allow an amendment.
3. Notice to Government. Any permit application, or request for certification or modification, which may affect the Property, made to any governmental entity with authority over wetlands or other waters of the United States, shall expressly reference and include a copy (with the recording stamp) of these restrictive covenants.
4. Reserved Rights. It is expressly understood and agreed that these restrictive covenants do not grant or convey to members of the general public any rights of ownership, entry or use of the Property. These restrictive covenants are created solely for the protection of the Property, and for the consideration and values set forth above, and Declarant reserves the ownership of the fee simple estate and all rights appertaining thereto, including without limitation the rights to exclude others and to use the property for all purposes not inconsistent with these restrictive covenants.
5. Compliance Inspections. The Corps, DHEC, and its/their authorized agents shall have the right to enter and go upon the lands of Declarant, to inspect the Property and take actions necessary to verify compliance with these restrictive covenants.
6. Enforcement. The Declarant grants to the Corps, the U.S. Department of Justice, and/or DHEC, a discretionary right to enforce these restrictive covenants in a judicial action against any person(s) or other entity(ies) violating or attempting to violate these restrictive covenants; provided, however, that no violation of these restrictive covenants shall result in a forfeiture or reversion of title. In any enforcement action, an enforcing agency shall be entitled to a complete restoration for any violation, as well as any other judicial remedy such as civil penalties. Nothing herein shall limit the right of the Corps to modify, suspend, or revoke the Permit.
7. Property Transfers. Declarant shall include the following notice on all deeds, mortgages, plats, or any other legal instruments used to convey any interest in the Property (failure to comply with this paragraph does not impair the validity or enforceability of these restrictive covenants):
NOTICE: This Property Subject to Declaration of Restrictive Covenants Recorded in Record Book _____ at page ____ in the Office of the Clerk of Court for Newberry County on _____________, 200___.
8. Marking of Property. The perimeter of the Property shall at all times be plainly marked by permanent signs saying, "Protected Natural Area," or by an equivalent, permanent marking system. A survey, approved drawing or approved site plan is attached hereto and incorporated herein by reference.
9. Recording of Plat. A plat depicting the boundaries of the Property subject to these restrictive covenants shall be recorded in the deed records office for each county in which the Property is situated prior to the recording of these restrictive covenants. The plat was recorded on ________________, 200____ in Plat Book ________ at page ____ in the Office of the Clerk of Court for Newberry County.
10. Separability Provision. Should any separable part of these restrictive covenants be held contrary to law, the remainder shall continue in full force and effect.
IN WITNESS WHEREOF, the Declarant, acting though its duly authorized officials, has duly executed this Declaration of Restrictive Covenants the date written above.
IN THE PRESENCE OF: Declarant- Newberry County
_________________________ By: ________________________________
[ type name of witness under signature line] Henry B. Summer
_________________________ Its: Chairman of Newberry County Council
[ type name of witness under signature line]
Susan C. Fellers,
Its: Clerk to County Council
STATE OF SOUTH CAROLINA )
) P R O B A T E
COUNTY OF NEWBERRY )
PERSONALLY appeared before me, the undersigned subscribing witness, and made oath that he/she saw the within named Declarant, Newberry County, by Henry B. Summer, its Chairman of Newberry County Council and attested by Susan C. Fellers, its Clerk to Newberry County Council, sign, seal and as its act and deed, deliver the within named Declaration of Restrictive Covenants; and that he/she with the other witness named above witnessed the execution thereof.
SWORN to and subscribed before me )
this 19th day of December, 2007. )
NOTARY PUBLIC FOR SOUTH CAROLINA (Subscribing Witness)
My Commission Expires:
ATTACHMENT “A” TO RESTRICTIVE COVENANTS
All that certain piece, parcel or tract of land containing 50/100 of an acre, more or less, and being located within the boundaries of that certain tract of land commonly known as Lynches Woods, owned by the Declarant, and said 50/100 acre parcel being more particularly described on the plat, or sketch, or site map attached hereto and incorporated herein by reference. This 50/100 acre parcel is a portion of those tracts of land in which the City of Newberry deeded its interests therein to the County of Newberry by deed recorded on September 28, 1987 in Deed Book 269 at page 278 in the office of the Clerk of Court for Newberry County.