(a)   The specific purpose and intent of this regulation is to regulate uses and developments of land within designated riparian setbacks that are expected to:

      (1)   Reduce flood impacts on adjacent properties and structures thereon.

      (2)   Assist in stabilizing the banks of watercourses within the Village of Bentleyville to reduce woody debris from fallen or damaged trees, streambank erosion, and the downstream transport of sediments eroded from watercourse banks.

      (3)   Reduce pollutants in watercourses during periods of high flows by filtering, settling, and transforming pollutants in runoff before they enter watercourses.

      (4)   Benefit the Village of Bentleyville by minimizing encroachment on watercourse channels and the need for engineering solutions such as gabion baskets and rip rap to protect structures, reduce property damage and threats to the safety of Bentleyville residents.

   (b)   The following regulation has been enacted to provide reasonable controls governing structures and uses within a riparian setback along designated watercourses in the Village of Bentleyville .

(Ord. 2007-12. Passed 8-15-07.)

   (a)   This regulation shall apply to all zoning districts.

   (b)   This regulation shall apply to all structures and uses on lands containing a designated watercourse as defined in this regulation, except as provided herein.

(Ord. 2007-12. Passed 8-15-07.)

   (a)   This regulation shall not limit or restrict the application of other provisions of law, regulation, contract, or deed, or the legal remedies available thereunder.

   (b)   If any clause, section, or provision of this regulation is declared invalid or unconstitutional by a court of competent jurisdiction, validity of the remainder shall not be affected thereby.

(Ord. 2007-12. Passed 8-15-07.)

   For the purpose of this regulation, the following terms shall have the meaning herein indicated:

   (a)   “Community.” Throughout this regulation, this shall refer to the Village of Bentleyville or its designated representatives, boards, or commissions.

   (b)   “Damaged or diseased trees.” Trees that have split trunks; broken tops; heart rot; insect or fungus problems that will lead to imminent death; undercut root systems that put the tree in imminent danger of falling; lean as a result of root failure that puts the tree in imminent danger of falling; or any other condition that puts the tree in imminent danger of being uprooted or falling into or along a watercourse or onto a structure.

   (c)   “Designated watercourse.” A watercourse within the Village of Bentleyville that is in conformity with the criteria set forth in this regulation.

   (d)   “Federal Emergency Management Agency (FEMA).” The agency with overall responsibility for administering the National Flood Insurance Program.

   (e)   “Impervious cover.” Any paved, hardened, or structural surface regardless of its composition including, but not limited to, buildings, roads, driveways, parking lots, loading/unloading areas, patios, and swimming pools.

   (f)   “Noxious weed.” Any plant species defined by the Ohio Department of Agriculture as a “noxious weed” and listed as such by the Department. For the purposes of this regulation, the most recent version of this list at the time of application of this regulation shall prevail.

   (g)   “100-year floodplain.” Any land susceptible to being inundated by water from a base flood. The base flood is the flood that has a one percent or greater chance of being equaled or exceeded in any given year.

   (h)   “Ohio Environmental Protection Agency.” Referred throughout this regulation as the “Ohio EPA.”

   (i)   “Ordinary high water mark.” The point of the bank or shore to which the presence and action of surface water is so continuous as to leave a district marked by erosion, destruction or prevention of woody terrestrial vegetation, predominance of aquatic vegetation, or other easily recognized characteristic. The ordinary high water mark defines the bed of a watercourse.

   (j)   “Recreational motorized vehicle.” Any motorized vehicle such as four wheel ATV's, motocross or dirtbikes, go carts or any other motorized vehicles that does not have a utility purpose or is not used for maintenance of lawns, landscaping, trees or other maintenance purposes.

   (k)   “Riparian area.” Land adjacent to watercourses that, if appropriately sized, helps to stabilize streambanks, limit erosion, reduce flood size flows, and/or filter and settle out runoff pollutants, or performs other functions consistent with the purposes of this regulation.

   (l)   “Riparian setback.” The real property adjacent to a designated watercourse located in the area defined by the criteria set forth in this regulation.

   (m)   “Soil disturbing activity.” Clearing, grading, excavating, filling, or other alteration of the earth's surface where natural or human made ground cover is destroyed and which may result in, or contribute to, erosion and sediment pollution.

   (n)   “Substantial damage.” Damage of any origin sustained by a structure whereby the cost of restoring the structure to its before damaged condition would be equal to, or would exceed, 50% of the market value of the structure before the damage occurred.

   (o)   “Watercourse.” Any brook, channel, creek, river, or stream having banks, a defined bed, and a definite direction of flow, either continuously or intermittently flowing. This does not include man-made drainage swales, ditches or channels.

   (p)   “Wetland.” Those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, including swamps, marshes, bogs, and similar areas. (40 CFR 232, as amended).

(Ord. 2007-12. Passed 8-15-07.)

   (a)   Designated watercourses shall include those watercourses meeting any one of the following criteria:

      (1)   All watercourses draining an area greater than one-half square mile, or

      (2)   All watercourses draining an area less than one-half square mile and having a defined bed and bank. In determining if watercourses have a defined bed and bank, the Village of Bentleyville may consult with the Chagrin River Watershed Partners or other comparable technical experts as deemed necessary. Any costs associated with such consultations may be assessed to the applicant.

   (b)   Riparian setbacks on designated watercourses are established as follows:

      (1)   A minimum of one hundred twenty feet on either side of all watercourses draining an area greater than twenty square miles and up to three hundred square miles.

      (2)   A minimum of seventy-five feet on either side of all watercourses draining an area greater than one-half square mile and up to twenty square miles.

      (3)   A minimum of twenty-five feet on either side of all watercourses draining an area less than one-half square mile and having a defined bed and bank as determined by the Village of Bentleyville in Section 1271.05 of this regulation.

   (c)   Riparian Setback Map. The Village of Bentleyville shall create a map identifying designated watercourses and their riparian setbacks. Said map is attached to Ordinance 2007-12 as Exhibit A, and made part of this regulation. It shall be used as a reference guide with determination as to its accuracy made at the time of application.

   (d)   The following conditions shall apply in riparian setbacks:

      (1)   Riparian setbacks shall be measured in a horizontal direction outward from the ordinary high water mark of each designated watercourse.

      (2)   Except as otherwise provided in this regulation, riparian setbacks shall be preserved in their natural state.

(Ord. 2007-12. Passed 8-15-07; Ord. 2009-23. Passed 11-23-09.)

   (a)   For all developments, individual new homes, or additions on property with designated riparian setbacks, the applicant shall be responsible for delineating riparian setbacks as required by this regulation and shall identify such setbacks on a site plan included with all subdivision plans, new home plans, or addition plans submitted to the Village of Bentleyville. If required by the Village of Bentleyville, based upon concerned encroachments to a riparian setback, the site plan shall be prepared by a professional engineer, surveyor, landscape architect, or such other qualified professional and shall be based on a survey of the affected land. Two copies of the site plan shall be submitted. The site plans shall include the following information:

      (1)   The boundaries of the lot with dimensions.

      (2)   The locations of all designated watercourses.

      (3)   The limits, with dimensions, of the riparian setbacks.

      (4)   The existing topography at intervals of two feet.

      (5)   The location and dimensions of any proposed structures or uses, including proposed soil disturbance, in relationship to all designated watercourses.

      (6)   North arrow, scale, date, and stamp bearing the name and registration number of the qualified professional who prepared the site plan.

      (7)   Other such reasonable information as may be necessary for the Village of Bentleyville to ensure compliance with this regulation.

   (b)    The Village of Bentleyville may, in reviewing the site plan, consult with other experts. Any costs associated with this review by the Village or its experts will be assessed to the applicant.

   (c)   If soil disturbing activities will occur within fifty feet of the boundary of the riparian setback as specified, the riparian setback shall be clearly identified by the applicant on the site with construction fencing as shown on the site plan. Such identification shall be completed prior to initiation of any soil disturbing activities and shall be maintained throughout soil disturbing activities.

(Ord. 2007-12. Passed 8-15-07.)

   (a)   By Right Uses Without A Permit. Open space uses that are passive in character shall be permitted in riparian setbacks, including, but not limited to, those listed in this regulation. No use permitted under this regulation shall be construed as allowing trespass on privately held lands.

      (1)   Recreational Activity. Hiking, fishing, hunting, picnicking, and similar passive recreational uses, as permitted by federal, state, and local laws.

      (2)   Removal of Damaged or Diseased Trees. Damaged or diseased trees may be removed.

      (3)   Revegetation and/or Reforestation. Riparian setbacks may be revegetated and/or reforested.

      (4)   Maintenance of lakes, ponds and associated areas around their perimeters.

   (b)   Conditional Use Permit. The Planning Commission may, for good cause, approve conditional uses of property in riparian setbacks as listed below. Permits issued under this regulation shall be void if not implemented within one year of issuance.

      (1)   Crossings. Crossings of designated watercourses through riparian setbacks with roads, driveways, easements, bridges, culverts, utility service lines, or other means may be permitted provided such crossings minimize disturbance in riparian setbacks. Such crossings shall be allowed upon approval of a crossing plan by the Planning and Zoning Commission. Any costs associated with review of crossing plans will be assessed to the applicant. Any required Federal or State permits for such crossing shall be complied with before commencement of work, with approvals provided to the Village of Bentleyville.

      (2)   Streambank Stabilization Projects. Streambank stabilization projects along designated watercourses will be allowed, provided that such measures are ecologically compatible and substantially utilize natural materials to the maximum extent practicable. Such streambank stabilization measures shall be undertaken upon the consent of the Planning and Zoning Commission. Any costs associated with review of streambank stabilization plans may be assessed to the applicant.

      (3)   Storm Water Management Facilities. Storm water management facilities may be constructed in the riparian setback, provided:

         A.   Where the minimum riparian setback is less than or equal to fifty feet, the storm water management facilities are located outside the minimum riparian setback.

         B.   Where the minimum riparian setback is greater than fifty feet, storm water management facilities are located at least fifty feet from the ordinary high water mark of the designated watercourse.

      (4)   Landscaping. The landscaping of riparian setback areas shall meet the following criteria:

         A.   Maintain trees in the riparian setback larger than nine inches in caliper (diameter) as measured fifty-four inches above the ground to the maximum extent practicable.

         B.   Maintain trees, shrubbery, and other non-lawn, woody vegetation in the riparian setback to the maximum extent practicable.

         C.   The Chagrin River Watershed Partners, or other comparable experts, shall be consulted to provide guidance for landscaping of riparian areas.

      (5)   Decks. With a maximum area of three hundred square feet will be acceptable if encroaching into the riparian setback, if the dwelling is in existence at the time of the passage of this chapter.

(Ord. 2007-12. Passed 8-15-07.)

   The following uses are specifically prohibited in riparian setbacks:

   (a)   Construction. There shall be no buildings or structures of any kind.

   (b)   Dredging or Dumping. There shall be no drilling, filling, dredging, or dumping of soil, spoils, liquid, or solid materials, except for noncommercial composting of uncontaminated natural materials and except as permitted under this regulation.

   (c)   Fences and Walls. There shall be no fences or walls, except as permitted under this regulation.

   (d)   Roads or Driveways. There shall be no roads or driveways, except as permitted under this regulation.

   (e)   Recreational Motorized Vehicles. There shall be no uses of recreational motorized vehicles.

   (f)   Disturbance of Natural Vegetation. There shall be no disturbance of natural vegetation within riparian setbacks except for the following:

      (1)   Maintenance of lawns, landscaping, shrubbery, or trees.

      (2)   Cultivation of lawns, landscaping, shrubbery, or trees in conformance with this regulation.

      (3)   Conservation measures designed to remove damaged or diseased trees or to control noxious weeds or invasive species.

   (g)   Parking Spaces or Lots and Loading/Unloading Spaces for Vehicles. There shall be no parking spaces, parking lots, or loading/unloading spaces.

   (h)   New Surface and/or Subsurface Sewage Disposal or Treatment Areas. Riparian setbacks shall not be used for the disposal or treatment of sewage, except as necessary to repair or replace an existing home sewage disposal system and in accordance with recommendations of the Cuyahoga Board of Health.

(Ord. 2007-12. Passed 8-15-07.)

   (a)   A non-conforming use, existing at the time of passage of this regulation and within a riparian setback that is not permitted under this regulation may be continued.

   (b)   A non-conforming structure, existing at the time of passage of this regulation and within a riparian setback, that is not permitted under this regulation may be continued but shall not have the existing building footprint expanded or enlarged further into the riparian setback.

   (c)   A non-conforming structure or use, existing at the time of passage of this regulation and within a riparian setback, that has substantial damage and that is discontinued, terminated, or abandoned for a period of twenty four months or more may not be revived, restored, or re-established.

(Ord. 2007-12. Passed 8-15-07.)

   (a)   Any person believing that the use and development standards of these regulations would result in practical difficulties may file an application for a variance. The application shall first be submitted to the Planning Commission for its recommendation and then to the Village Council for final decision. The Village Council shall have the power to authorize, in specific cases, such variances from the standards of these regulations as will not be contrary to the public interest as determined by Council where, owing to special conditions of the lot or parcel, a literal enforcement of the provisions of these regulations would result in practical difficulties.

      (1)   Application for a Variance and Appeal. The application process for variances to these regulations and the procedure for appeal will follow the application procedures for zoning variances set forth in Section 1262.02 of the Village ordinances.

      (2)   Additional Conditions of Variances Specific to this Section. Along with the standards for granting a variance, Planning Commission and Council shall also consider whether granting a variance impairs flood control, erosion control, water quality protection, or other functions of the riparian setback. Council may also consider whether a property, otherwise buildable under the ordinances of the Village, will b e made unbuildable or less desirable due to this regulation.

      (3)   Applications for variances or appeals under this section shall not be resubmitted within one year of the date of a final decision by the Planning Commission unless the applicant shows either of the following:

         A.   Newly discovered evidence that could not have been presented with the original submission, or

         B.   Evidence of a substantial change in circumstances since the time of the original submission.

   (b)   A decision by Council in response to an application for a variance request or an appeal of an administrative decision filed pursuant to this regulation shall be final.

(Ord. 2007-12. Passed 8-15-07; Ord. 2009-19. Passed 11-23-09.)

   The identification of riparian setbacks shall be inspected by the Village of Bentleyville:

   (a)   Prior to soil disturbing activities authorized under this regulation. The applicant shall provide the Village of Bentleyville with at least two working days written notice prior to starting such soil disturbing activities.

   (b)   Any time evidence is brought to the attention of the Village of Bentleyville that uses or structures are occurring that may reasonably be expected to violate the provisions of this regulation.

(Ord. 2007-12. Passed 8-15-07.)

   At the time of submission of the application the applicant shall deposit with the Village Fiscal Officer and amount of funds as determined by the Village Engineer, not less than three hundred dollars ($300.00), to cover the cost and expense of such review of the application and prepare a report for the Planning Commission. The cost and expense of such investigation shall be deducted from such deposit. If such expenditure exceeds the deposit, such excess shall be paid to the Village by the applicant. If such deposit exceeds such expenditure, the balance shall be refunded to the applicant.

(Ord. 2007-12. Passed 8-15-07.)

   (b)   The imposition of any other penalties provided herein shall not preclude the Village of Bentleyville from instituting an appropriate action or proceeding in a court of proper jurisdiction to prevent an unlawful development, or to restrain, correct, or abate a violation, or to require compliance with the provisions of this regulation or other applicable laws, ordinances, rules, or regulations, or the orders of the Village of Bentleyville Zoning Inspector.

(Ord. 2007-12. Passed 8-15-07.)