Beverly Shores City Zoning Code
WETLAND PROTECTION
§ 155.220 TITLE, FACT AND PURPOSE.
(A) Title. This subchapter may be cited as the Beverly Shores Wetland Protection Ordinance.
(B) Findings of fact.
(1) The wetlands of Beverly Shores are indispensable and fragile natural resources with significant development constraints due to flooding, erosion and soil imitations. In their natural state, wetlands serve humans and nature. They provide habitat areas for fish, wildlife and vegetation; water quality maintenance and pollution control; flood control; shoreline erosion control; natural resource education; scientific study; open space; and recreation opportunities.
(2) A considerable number of these important natural resources have been lost or impaired by draining, dredging, filling, excavating, building, pollution and other acts. Piecemeal or cumulative losses may, over time, destroy remaining wetlands. Damaging or destroying wetlands threatens public safety and the general welfare.
(3) It is therefore necessary for Beverly Shores to ensure maximum protection for wetlands by discouraging development activities in wetlands and those activities at adjacent upland sites that may adversely affect wetlands and to encourage restoration of already degraded or destroyed systems.
(C) Purpose.
(1) It is the policy of Beverly Shores to:
(a) Encourage or require planning to avoid or minimize damage to wetlands wherever prudent or feasible;
(b) Require that activities not dependent upon a wetland location be located at upland sites;
(c) Allow wetland losses only where all practicable measures have been applied to reduce those losses that are unavoidable and in the public interest;
(d) Provide for compensation in the form of wetland restoration or creation to offset further losses; and
(e) Provide for the protection of wetlands under additional ordinances already adopted by Beverly Shores.
(2) Furthermore, activities must not threaten public safety or cause nuisances by:
(a) Blocking flood flows, destroying flood storage area or destroying storm barriers, thereby raising flood heights or velocities on other land and increasing flood damages;
(b) Causing water pollution through any means, including location of waste water disposal systems in wet soils, unauthorized application of pesticides, herbicides and algaecides; disposal of solid wastes or storm water runoff at inappropriate sites; or the creation of unstabilized fills;
(c) Increasing erosion; or
(d) Increasing runoff of sediment and storm water.
(3) In addition, it is the policy of Beverly Shores that activities in or affecting wetlands do not destroy natural wetland functions important to the general welfare by:
(a) Decreasing breeding, spawning, nesting, wintering, feeding or other critical habitat for fish and wildlife, including rare, threatened and endangered plant and animal species and commercially and recreationally important wildlife;
(b) Interfering with the exchange of nutrients needed by fish or other forms of wildlife;
(c) Decreasing groundwater recharge;
(d) Destroying sites needed for education and scientific research as outdoor biophysical laboratories, living classrooms and training areas;
(e) Interfering with public rights in waters and the recreation opportunities for fishing, boating, hiking, bird watching, photography, camping and other activities in wetlands; or
(f) Destroying aesthetic and property values.
(Ord. 208, passed 12-19-1983) Penalty, see § 155.999
§ 155.221 DEFINITIONS.
For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
BUFFER. A naturally vegetated area or vegetated area established or managed to protect wetlands from human disturbances.
CREATION. A human activity bringing a wetland into existence at a site in which it did not formerly exist.
FUNCTIONS. The beneficial roles wetlands serve, including storage, conveyance and attenuation of flood waters and storm waters; groundwater recharge and discharge; protection of water quality and reduction of sediment and erosion; production of waterfowl, game and nongame birds, mammals and other living resources; protection of habitat for rare, threatened and endangered species; food chain support for a broad range of wildlife and fisheries; educational, historical and archeological value protection; and scenic, aesthetic and recreational amenities.
HYDROPHYTIC VEGETATION. Macrophytic plant life growing in water or a substrate that is at least periodically deficient in oxygen as a result of excessive water content.
IN-KIND. The restoration or creation of a wetland with vegetation and other characteristics closely approximating those of a specific wetland.
OFF SITE. Restoration or creation of a wetland at a location not adjacent to (or within 25 feet of) a previous, specified wetland.
ON SITE. Restoration or creation of a wetland adjacent to (or within 25 feet of) a previous, specified wetland.
OUT-OF-KIND. The restoration or creation of a wetland with vegetation or other characteristics not resembling those of a specified wetland.
PRACTICABLE ALTERNATIVE. An alternative to the proposed project that would accomplish the basic purpose of the project and avoid or have less adverse impact on a wetland.
REGULATED ACTIVITY. An activity with a significant impact on wetlands, including:
(1) The removal, excavation or dredging of soil, sand, gravel, minerals, organic matter or materials of any kind;
(2) The changing of existing drainage characteristics, sedimentation patterns, flow patterns or flood retention characteristics;
(3) The disturbance of the wetland water level or water table by drainage, impoundment or other means;
(4) The dumping or discharging of material, or the filling of a wetland with material;
(5) The placing of fill or the grading or removal of material that would alter existing topography;
(6) The driving of piles, placement of obstructions and erection or repair of buildings or structures of any kind;
(7) The destruction or removal of plant life that would alter the character of a wetland; and
(8) The conduct of an activity that results in a significant change of water temperature, a significant change of physical or chemical characteristics of wetland water sources or the introduction of pollutants.
RESTORATION. A human activity that returns a wetland or former wetland from a disturbed or altered condition with lesser acreage or functions to a previous condition with greater wetland acreage or functions.
WETLAND. An area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions, commonly known as hydrophytic vegetation.
(Ord. 208, passed 12-19-1983)
§ 155.222 LANDS TO WHICH SUBCHAPTER APPLIES.
(A) Wetland District.
(1) This subchapter shall apply to all lands in or within 25 feet of a wetland located within the jurisdiction of Beverly Shores. Areas shown on the official wetlands map as being wetlands are presumed to be wetlands consistent with the definitions thereof.
(2) Wetlands not shown on the official wetlands map are presumed to exist in Beverly Shores and are hereby designated to be within the wetlands and are protected under all of the terms and provisions of this subchapter. The official wetlands map shows only the general location of wetlands and should be consulted by persons contemplating activities in or near wetlands before engaging in a regulated activity.
(3) The official wetlands map, together with all explanatory matter thereon and attached thereto, is hereby adopted by reference and declared to be a part of this subchapter. The official wetlands map shall be on file in the office of the Clerk-Treasurer.
(B) Rules for interpretation of wetland district boundaries.
(1) The boundaries of a wetland shall ordinarily be determined by the applicant through the performance of a field survey applying the wetland definition.
(2) The official wetlands map is to be used as a guide to the general location of wetlands.
(3) The applicant is required under § 155.225(B) to show a wetland boundary on a scaled drawing submitted as part of the permit application.
(4) Wetland delineations shall be performed in accordance with the procedures specified in the Federal Manual for Identifying and Delineating Jurisdictional Wetlands and any subsequent amendments thereto. Evidence documenting the results of the boundary survey may be required by the Beverly Shores Plan Commission.
(5) The Beverly Shores Building Commissioner, when requested by the applicant, may waive the delineation and, in the applicant, may waive the delineation and, in lieu of direct action by the applicant, perform the delineation.
(a) The Beverly Shores Building Commissioner may use remote sensing, hydrologists, soil scientists or other experts as needed to perform the delineation.
(b) The applicant may be charged for costs incurred in accordance with the provisions of § 155.225(B).
(6) Where the Beverly Shores Building Commissioner performs a wetland determination at the request of the applicant, the applicant may appeal the determination to the Beverly Shores Plan Commission which shall have the authority to review the evidence presented to the Beverly Shores Building Commissioner and to obtain additional information as it deems necessary to review the Beverly Shores Building Commissioner's determination. The decision of the Beverly Shores Plan Commission shall be considered a final determination.
(7) Where the applicant has provided a determination of the wetland boundary, the Beverly Shores Plan Commission shall verify the accuracy of, and may render adjustments to, the boundary delineation.
(8) In the event the adjusted boundary delineation is contested by the applicant, the Beverly Shores Plan Commission may attempt to set mutually agreeable boundaries; or, when an attempt is unsuccessful, shall, at the applicant's expense, obtain competent expert services to render a final delineation.
(Ord. 208, passed 12-19-1983)
§ 155.223 PERMIT REQUIREMENTS; ENFORCEMENT.
(A) Permit requirements, compliance.
(1) No activity in or within 25 feet of a wetland may be conducted without a permit from the Beverly Shores Board of Zoning Appeals and full compliance with the terms of this subchapter and other applicable regulations.
(2) All activities that are not permitted as of right or as special permit uses shall be prohibited.
(B) Temporary emergency permit.
(1) Notwithstanding the provisions of this subchapter or any other law to the contrary, the Beverly Shores Building Commissioner may issue a temporary wetlands permit through oral or written authorization, provided a written permit is accomplished within 5 days, if he or she deems that an unacceptable threat to life or severe loss of property will occur if an emergency permit is not granted.
(2) The emergency permit may be terminated at any time without process upon a determination by the Beverly Shores Building Commissioner that the action was not or is no longer necessary to protect human health or the environment.
(3) The Beverly Shores Board of Zoning Appeals may, within 90 days of the emergency permit, require that the action be reconsidered as an after-the-fact permit, subject to any or all of the terms and provisions of this subchapter.
(C) Enforcement.
(1) The Beverly Shores Plan Commission, its agents, officers and employees shall have authority to enter upon privately owned land for the purpose of performing their duties under this subchapter and may take or cause to be made examinations, surveys or sampling as the Beverly Shores Plan Commission deems necessary.
(2) The Beverly Shores Plan Commission shall have authority to enforce this subchapter; a permit issued thereto; and a violation or threatened violation thereof by violation notices, administrative orders and civil and criminal actions. All costs, fees and expenses in connection with these actions may be recovered as damages against the violator.
(3) Law enforcement officials or other officials having police powers shall have authority to assist the Beverly Shores Plan Commission in enforcement.
(4) Any person who commits, takes part in or assists in any violation of any provision of this subchapter is guilty of a misdemeanor and may be fined no more than $20,000, which may be amended from time to time by the Town Council, for each offense. Each violation of this subchapter shall be a separate offense, and, in the case of a continuing violation, each day's continuance shall be deemed to be separate and distinct offense.
(5) (a) In the event of a violation, the Beverly Shores Plan Commission shall have the power to order wetland restoration and creation measures for the damaged or destroyed wetland area by the person or agent responsible for the violation.
(b) If the responsible person or agent does not complete these measures within a reasonable time following the order, the Town of Beverly Shores may restore the affected wetland to its prior condition and create or restore other wetlands for the purpose of offsetting losses sustained as a result of the violation. The person or agent responsible for the original violation shall be liable to the Town of Beverly Shores for the cost of those actions.
(6) To guide restoration and creation actions, the Beverly Shores Plan Commission shall have the power to order the violator to develop a plan as described in § 155.225(H) for the approval of the Beverly Shores Board of Zoning Appeals.
(D) Abrogation and greater restrictions.
(1) It is not intended that this subchapter repeal, abrogate or impair any existing state and federal laws, regulations, easements, covenants and deed restrictions.
(2) However, where this subchapter imposes greater restrictions, the provisions of this subchapter shall prevail.
(E) Interpretation. The provisions of this subchapter shall be held to be minimum requirements in their interpretation and application and shall be liberally construed to serve the purposes of this subchapter.
(Ord. 208, passed 12-19-1983) Penalty, see § 155.999
§ 155.224 USES BY RIGHT; SPECIAL PERMIT USES IN WETLAND.
(A) Uses by right. The following uses shall be allowed as a right within a wetland to the extent that they are not prohibited by any other ordinance or law and provided they do not require structures, grading, fill, draining or dredging except as provided herein or authorized by special permit:
(1) Conservation or preservation of soil, water, vegetation, fish, shellfish and other wildlife;
(2) Outdoor recreational activities, including fishing, trapping, bird watching, hiking, boating, horseback riding, swimming and canoeing;
(3) The harvesting of wild crops, such as marsh hay, ferns, moss, wild rice, berries, tree fruits and seeds in a manner that is not injurious to natural reproduction of crops and provided the harvesting does not require alteration of the wetland by changing existing wetland water conditions or sources, tilling of soil or planting of crops:
(4) Education, scientific research and nature trails; and
(5) Uses by right that do not require a special permit and that may involve filling, flooding, draining, dredging, ditching or excavating to the extent specifically provided herein: maintenance or repair of lawfully located roads or structures and of facilities used in the service of the public to provide transportation, electric, gas, water, telephone, telegraph, telecommunication or other services, provided that the roads, structures or facilities are not materially changed or enlarged and written notice prior to the commencement of work has been given to the Beverly Shores Plan Commission and provided that the work is conducted using best management practices to ensure that flow and circulation patterns, and chemical and biological characteristics of the wetland, are not impaired and that any adverse effect on the aquatic environment will be minimized.
(B) Special permit uses. Regulated activities other than those specified in division (A) above may not be conducted except upon application to the Beverly Shores Board of Zoning Appeals and issuance of a special permit.
(Ord. 208, passed 12-19-1983)
§ 155.225 STANDARDS AND PROCEDURES FOR SPECIAL USE PERMITS.
(A) Special permits.
(1) Application for a special permit to conduct a regulated activity shall be made in duplicate to the Beverly Shores Board of Zoning Appeals on forms furnished by that office. Permits shall ordinarily be valid for a period of 1 year from the date of issue and shall expire at the end of that time unless a longer period is specified by the Beverly Shores Board of Zoning Appeals upon issuance of the permit.
(2) An extension of an original permit may be granted upon written request to the Beverly Shores Board of Zoning Appeals by the original permit holder or the successor in title.
(3) The Beverly Shores Board of Zoning Appeals may require additional hearings if, in its judgment, the original intent of the permit is altered or extended by the renewal or if the applicant failed to abide by the terms of the original permit.
(4) The request for renewal of a permit shall follow the same form and procedure as the original application except that the Beverly Shores Board of Zoning Appeals shall have the option of not holding a hearing if the original intent of the permit is not altered or extended in any significant way.
(B) Permit applications.
(1) Unless the Beverly Shores Board of Zoning Appeals waives 1 or more of the following information requirements, applications for a special permit for a regulated activity shall include:
(a) The purposes of the project and an explanation of why the proposed activity requires a wetland location or access to wetlands, or cannot be located at other sites;
(b) A site plan drawn to scale showing the wetland boundary as determined by field survey, the width, depth and length of all existing and proposed structures, roads, watercourses and drainage ways; water, waste water and storm water facilities; utility installations within 200 feet of a wetland; and the relationship of the proposed activity and any potentially affected wetland to the entire parcel of land owned by the applicant;
(c) A description of the wetland or wetlands that will be affected by the regulated activity, including a sketch plan at the scale of 1 inch equals 10 feet for the wetland within 200 feet of the site; the area that may be filled or impacted, vegetation type; wetland water sources; and a general characterization of the habitat, wildlife and common plants;
(d) Soil types on the site and the exact locations and specifications for all proposed draining, filling, grading, dredging and vegetation removal, including the amounts and methods;
(e) Adjacent land use; and
(f) Elevations of the site and adjacent lands within 200 feet of the site at contour intervals of no greater than 5 feet.
(2) The Beverly Shores Board of Zoning Appeals may require additional information, including, but not limited to:
(a) Documentation and evidence of a wetland boundary determination by field survey;
(b) An assessment of wetland functional characteristics;
(c) Documentation of the ecological, aesthetic, economic or other values of a wetland;
(d) A study of flood, erosion or other hazards at the site;
(e) Evidence of any protective measures that might be taken to reduce those hazards; and
(f) Any other information deemed necessary to verify compliance with the provisions of this subchapter or to evaluate the proposed use in terms of the purposes of this subchapter.
(3) Any person who wants to know whether a proposed activity or an area is subject this subchapter may request in writing a determination from the Beverly Shores Board of Zoning Appeals. A request for determination shall contain plans, data and other information as may be specified by the Beverly Shores Board of Zoning Appeals.
(4) (a) At the time of an application or request for determination, the applicant shall pay a filing fee specified by the Beverly Shores Board of Zoning Appeals.
(b) Filing fees, which may be amended from time to time by the Town Council, of up to $2,500 may be required to evaluate the application or request for determination.
(c) These fees may be used to retain expert consultants who will provide services pertaining to wetland boundary determinations, functional assessment and mitigation measures, as deemed necessary by the Beverly Shores Board of Zoning Appeals.
(5) Upon receipt of the completed application, the Beverly Shores Board of Zoning Appeals shall notify the individuals and agencies having jurisdiction over or an interest in the matter including the Army Corps of Engineers, the Environmental Protection Agency and the Indiana Department of Environmental Management to provide individuals and agencies an opportunity to comment.
(6) The Beverly Shores Board of Zoning Appeals shall establish a mailing list of all interested persons and agencies who wish to be notified of the applications.
(C) Public hearing and recommendations.
(1) No later than 60 days after receipt of the permit application and after at least 10 days advance notice of the hearing has been published in 2 newspapers in Porter County representing the 2 political parties receiving the highest number of votes in Beverly Shores in the last preceding election for the Secretary of State and posted at the Beverly Shores Town Hall and the Beverly Shores Post Office and mailed certified mail return receipt requested to the record owners of property within 300 feet of the applicant's property, the Beverly Shores Board of Zoning Appeals shall hold a public hearing on the application, unless the Beverly Shores Building Commissioner finds that the activity is so minor as to not affect the wetland and the Beverly Shores Board of Zoning Appeals concurs.
(2) (a) All hearings shall be open to the public.
(b) Minutes of the hearing shall be made.
(c) The Beverly Shores Board of Zoning Appeals shall make the final determination on all special permit applications.
(3) Any person may present evidence and testimony at the hearing. At the hearing, the applicant shall have the burden of demonstrating that the proposed activity will be in accordance with the purposes of this subchapter and the standards set forth below.
(D) Standards for special permits. The Beverly Shores Board of Zoning Appeals, after according consideration to the comments of the general public, other affected municipalities and counties and federal and state agencies with jurisdiction over the area in question, shall issue a wetland permit only if it is found that the regulated activity is determined to be in the public interest in accordance with § 155.225(F) below and that the applicant has demonstrated by a preponderance of the evidence that the regulated activity:
(1) Is water-dependent or requires access to the wetland as a central element of its basic function, or is not water-dependent but has no practicable alternative;
(2) Will result in minimum feasible alteration or impairment to the wetland's functional characteristics and its existing contour, vegetation, fish and wildlife resources and hydrological conditions;
(3) Will not jeopardize the continued existence of species that appear on federal or state rare, threatened or endangered species lists;
(4) Will not cause significant degradation of groundwater or surface-water quality;
(5) Complies with all applicable state, local and federal laws, including those related to sediment control, pollution control, floodplain zoning and on-site waste water disposal;
(6) Will provide a wetland buffer area of not less than 25 feet between the wetland and upland activities for those portions of a regulated activity that need not be conducted in the wetland; and
(7) Complies with other standards contained in this subchapter, including those pertaining to wetland creation and restoration as required.
(E) Practicable alternative test.
(1) For all permit applications, an alternative site for the proposed activity shall be considered practicable if it is available and the proposed activity can be carried out on that site after taking into consideration costs, existing technology, infrastructure and logistics, in light of overall project purposes.
(2) There is no practicable alternative if the applicant demonstrates all of the following to the satisfaction of the Beverly Shores Board of Zoning Appeals:
(a) The basic purpose of the project cannot reasonably be accomplished using 1 or more other sites in the general region that would avoid or result in less adverse impact on a wetland;
(b) The basic purpose of the project cannot be accomplished by a reduction in the size, scope, configuration or density of the project as proposed or by changing the design of the project in a way that would avoid or result in fewer adverse effects on the wetland; and
(c) In cases where the applicant has rejected alternatives to the project as proposed due to constraints such as inadequate zoning, infrastructure or parcel size, the applicant has made reasonable attempts to remove or accommodate such constraints.
(F) Public interest test. In determining whether a proposed regulated activity in any wetland is in the public interest, the Beverly Shores Board of Zoning Appeals shall consider the following:
(1) The extent of the public need for the proposed activity;
(2) The extent and permanence of the beneficial or detrimental effects that the proposed regulated activity may have on the public and private uses for which the property is suited;
(3) The quality of the wetland that may be affected and the amount of wetland to be disturbed;
(4) The economic value of the proposed regulated activity to the general area; and
(5) The ecological value of the wetland and probable impact on public health and safety, fish, plants and wildlife.
(G) Special use permit conditions.
(1) The Beverly Shores Board of Zoning Appeals may attach conditions to the granting of a special use permit as deemed necessary to carry out the purposes of this subchapter.
(2) These conditions may include but are not limited to:
(a) Limitations on minimum lot size for any regulated activity;
(b) Requirements that structures be elevated on piles and otherwise protected against natural hazards;
(c) Modification of waste disposal and water supply facilities;
(d) Imposition of operational control, sureties and deed restrictions concerning future use and subdivision of lands, such as flood warnings, preservation of undeveloped areas in open space use and limitation of vegetation removal;
(e) Dedication of easements to protect wetlands;
(f) Establishment of vegetated buffer zones separating and protecting the wetland from proposed activities;
(g) Erosion control and storm water management measures;
(h) Setbacks for structures and restrictions on fill, deposit of soil and other activities in the wetland;
(i) Modification in project design to ensure continued water supply to the wetland and circulation of water;
(j) Creation or restoration of an area of wetland; and
(j) Development of a plan to guide actions involving the creation of a new wetland or the restoration of a damaged or degraded wetland.
(3) The Beverly Shores Board of Zoning Appeals may require a bond in an amount and with surety and conditions sufficient to secure compliance with the conditions and limitations set forth in the permit.
(4) The particular amount and the conditions of the bond shall be consistent with the purposes of this subchapter. In the event of a breach of any condition of any bond, the Beverly Shores Board of Zoning Appeals may institute an action in a court of competent jurisdiction upon the bond and prosecute the same to judgment and execution.
(H) Wetland restoration and creation.
(1) As a condition of a permit issued or as an enforcement action under this subchapter, the Beverly Shores Board of Zoning Appeals may require that the applicant engage in the restoration or creation of wetlands in order to offset, in whole or in part, the losses resulting from an applicant's or violator's actions.
(2) In making a determination of whether a like requirement will be imposed, and if so, the degree to which it would be required, the Beverly Shores Board of Zoning Appeals will consider the following:
(a) The long and short-term effects of the action upon the wetland and associated aquatic ecosystem, and the reversible or irreversible nature of the impairment or loss;
(b) The type and benefit of the wetland functions and associated resources lost;
(c) The type, size and location of the wetland altered, and the effect it may have upon the remaining system or watershed of which the wetland is a part;
(d) Observed or predicted trends with regard to the gains or losses of this type of wetland in the watershed, in light of natural and human processes;
(e) The cost and likely success of the possible compensation measures in relation to the magnitude of the proposed project or violation; and
(f) The degree to which the applicant has demonstrated a good-faith effort to incorporate measures to minimize and avoid wetland impacts within the proposed project.
(3) The applicant or violator may prepare or be required by the Beverly Shores Board of Zoning Appeals to develop a wetland restoration or creation plan for review and approval of the Beverly Shores Board of Zoning Appeals. The creation or restoration of wetlands shall not be an alternative to the standards set forth in division (D) above but shall be used only to compensate for unavoidable losses.
(4) The plan should state the location, by metes and bounds description, of the proposed site; ownership; size, type and complete ecological assessment (flora, fauna, hydrology, wetland functions and the like) of the wetland being restored or the area where a new wetland will be created; and the natural suitability of the proposed site for establishing the replacement wetland (i.e., water source and drainage patterns, topographic position, wildlife habitat opportunities, value of the existing area to be converted and the like).
(5) In addition, plane view and cross-sectional, scaled drawings; topographic survey data, including slope percentage and final grade elevations; and other technical information are required in sufficient detail to explain, illustrate and provide for:
(a) Soil and substrate conditions; topographic elevations; grading and excavation; erosion and sediment control needed for wetland construction and long-term survival;
(b) Planting plans specifying plant species types, quantities, locations, size, spacing or density; source of plant materials, propagules or seeds; timing, season, water and nutrient requirements for planting; and where appropriate, measures to protect plants from predation;
(c) Water-quality parameters, water source, water depths, water-control structures and water-level maintenance practices needed to achieve the necessary ambient water conditions and hydrocycle/hydroperiod characteristics;
(d) Mid-course corrections and a 3-year monitoring and replacement plan establishing responsibility for removal of exotic and nuisance vegetation and permanent establishment of the wetland system and all its component parts; and
(e) A demonstration of fiscal, administrative and technical competence of sufficient standing to successfully execute the overall project.
(I) Wetland restoration and creation alternatives.
(1) Ordinarily, the applicant or violator shall undertake restoration or creation efforts on or adjacent to the site where permanent losses have been sustained or where restoration of a former wetland is possible. Replication “in-kind” of the impacted wetland will be the preferred alternative for creation or restoration efforts.
(2) Where the applicant has demonstrated to the satisfaction of the Beverly Shores Board of Zoning Appeals that this approach is infeasible due to technical constraints, such as parcel or wetland size or wetland type, or that a wetland of a different type or location is strongly justified based on regional needs or the functional value of the impacted wetland, the Beverly Shores Board of Zoning Appeals may accept or recommend an alternative proposal.
(3) The proposal may involve monetary compensation as provided for in this section or the creation or restoration “out-of-kind” and “off site.”
(4) The Beverly Shores Board of Zoning Appeals shall set reasonable fees for compensation of wetland losses based upon the amount that would be required to perform on-site, in-kind restoration or creation.
(5) Where the Beverly Shores Board of Zoning Appeals determines that the public interest is better served, the Beverly Shores Board of Zoning Appeals may require a fee in lieu of direct action on behalf of the applicant or violator to initiate restoration or creation projects.
(6) The fees shall be held in escrow for the express use of wetland creation and restoration projects and shall not be commingled with other funds.
(J) Suspension; revocation.
(1) The Beverly Shores Board of Zoning Appeals may suspend or revoke a permit if it finds that the applicant has not complied with the conditions or limitations set forth in the permit or has exceeded the scope of the work set forth in the permit.
(2) The Beverly Shores Board of Zoning Appeals shall cause notice of its denial, issuance, conditional issuance, revocation or suspension of a permit to be published in a daily newspaper having a broad circulation in the area wherein the wetland lies.
(Ord. 208, passed 12-19-1983)
§ 155.226 NONCONFORMING ACTIVITIES.
A regulated or use activity that was lawful before the passage of this subchapter, but which is not in conformity with the provisions of this subchapter, may be continued subject to the following.
(A) No activity shall be expanded, changed, enlarged or altered in any way that increases its value at the time of its becoming a nonconforming structure, unless the structure is permanently changed to a conforming use.
(B) No structural alteration or addition to any nonconforming structure over the life of the structure shall exceed 50% of all its value at the time of its becoming a nonconforming structure, unless the structure is permanently changed to a conforming use.
(C) If a nonconforming use or activity is discontinued for 12 consecutive months, any resumption of the activity shall conform to this subchapter.
(D) If any nonconforming use or activity is destroyed by human activity or an act of God, it shall not be resumed except in conformity with the provisions of this subchapter.
(E) Activities or adjuncts thereof that are or become nuisances shall be not entitled to continue as nonconforming activities.
(Ord. 208, passed 12-19-1983) Penalty, see § 155.999
§ 155.227 JUDICIAL REVIEW.
(A) All final decisions of Beverly Shores Board of Zoning Appeals concerning denial, approval or conditional approval of a special permit shall be reviewable in the Porter Circuit Court.
(B) Based on these proceedings and the decision of the court, Town Council of the Town of Beverly Shores may, within the time specified by the court, elect to:
(1) Institute negotiated purchase or condemnation proceedings to acquire an easement or fee interest in the applicant's land;
(2) Approve the permit application with lesser restrictions or conditions; or
(3) Institute other appropriate actions ordered by the court that fall within the jurisdiction of the Town Council.
(Ord. 208, passed 12-19-1983)
§ 155.228 AMENDMENTS.
These regulations and the official wetlands map may from time to time be amended in accordance with procedures and requirements in the general statutes and as new information concerning wetland locations, soils, hydrology, flooding or botanical species peculiar to wetlands become available.
(Ord. 208, passed 12-19-1983)