Development, excavation, clear cutting and other activities within the bluff and the bluff setback area may result in increased dangers of erosion, increased visibility to surrounding properties and thereby endanger the natural character of the land and jeopardize the health, safety, and welfare of the citizens of the city. To preserve the character of the bluff and the bluff setback area within the city, alteration to land or vegetation within will not be permitted except as regulated by this article and by the regulations of the underlying zoning district where the property is located.

The bluff is to be determined utilizing the process outlined in section 50-197.

The tier I buffer consists of the bluff and a 25-foot buffer immediately encircling the entire bluff.

The tier II setback consists of a 25-foot setback from the tier I buffer at the top of the bluff.

A.

For lots of record on which a structure existed on or before June 6, 2005, the setback from the top of the bluff is five feet or the existing setback, whichever is greater, for additions to an existing structure or for the construction of accessory structures on the site.

B.

Solely for the purpose of this section 50-190, the definition of structures set forth in section 50-5(21) is modified to exclude fences not in excess of four feet in height which are constructed to be as unobtrusive as possible and timber walls and rock walls which do not exceed three feet in height, all of which are conditional uses in the bluff setback area.

C.

Deck additions may be allowed without a variance to a structure not meeting the tier II setback requirements in section 50-189 if all of the following criteria are met:

1.

A thorough evaluation of the property and structure by the city planner reveals no reasonable location for a deck outside of the tier II setback;

2.

The portion of the deck within the tier II setback shall not be greater than 300 square feet including stairs and ramps;

3.

No more than eight support tiers for the deck and any stairway may be located in the overlay district;

4.

The support tiers must be timber or wood resting on concrete footings;

5.

The deck surface may not be impervious (concrete, bituminous, brick, or pavers are not allowed in the overlay district) and shall not be enclosed;

6.

The use of loose aggregate material and/or vegetation and bushes under the deck to help dissipate the flow of water from the deck is required; and

7.

The plans for the purposed construction must be reviewed by the building official and are subject to any conditions deemed necessary to comply as closely as possible with the intent of this section.

D.

Lots of record without an existing principal structure. Lots without an existing principal structure on June 6, 2005, may be issued a building permit and may construct within the building pad as depicted on the approved plat and plans. Plans shall be designed to minimally impact the bluff and tier I and tier II areas and shall comply to the greatest extent possible with the requirements of sections 50-192 through 50-195. Grading and erosion control plans with existing and proposed two-foot contours shall be provided at the time of building permit application and must be approved by the building official prior to the issuance of a building permit. Conditions may be placed on the approval of the plans for the purpose of minimizing impacts to the bluff and setback area.

E.

Additions may be permitted without a variance to a principal structure not meeting the bluff setback requirements in section 50-197 A. if all of the following criteria are met:

1.

The principal structure existed on June 5, 2005.

2.

The principal structure with addition must meet the height requirements of the underlying district.

3.

The addition must not cause the structure to occupy a larger or different building footprint.

4.

The addition must not utilize cantilevers, bay windows or other construction methods to cause the structure to extend past a vertical plane extending from the building footprint to the sky. Roof overhangs are excluded from this provided that they do not extend more than two feet past said vertical plane.

(Ord. No. 02-2017, § 9, 2-21-2017; Ord. No. 05-2017, § 1, 6-19-2017)

Subdivision applications subject to Chapter 42 of the Carver City Code of Ordinances [The subdivision chapter is not currently codified as the city will be updating it.], with the exception of previously approved preliminary plats and lot-line adjustments that do not result in the creation of additional lots of record, shall be subject to the following to be reviewed and approved at the time of subdivision approval:

A.

Permanent protection. The bluff and setback area must include appropriate permanent protections. Permanent protection may include the establishment of a conservation easement or donation of the property to an organization. The form of permanent protection shall be approved by the city council no later than the time of final plat approval. The area to be protected shall include the bluff area as well as the 25-foot tier I setback surrounding the bluff.

A.

Structures including, but not limited to, decks and accessory structures, except stairways and landings, are prohibited in the bluff, tier I buffer, and tier II setback unless allowed under an exception contained within this section.

B.

Solely for the purpose of this section 50-190, the definition of structures set forth in section 50-2 is modified to exclude fences not in excess of four feet in height which are constructed to be as unobtrusive as possible and timber walls and rock walls which do not exceed three feet in height, which are allowed in the tier II setback area subject to the city engineer's approval.

C.

Solely by means of illustration and not intended to be all inclusive, the following are included within the definitions of structures which are prohibited in the bluff and the bluff setback area:

Concrete or bituminous pads, pavers or patios, any other impervious surface pads, decks (subject to the exception contained within section 50-192) kennels, pools, hot tubs and accessory structures.

Stairways, lifts and landings may be permitted within the bluff, tier I buffer and tier II setback on suitable sites where construction will not redirect water flow direction and/or increase drainage velocity. Major topographic alterations are prohibited. Stairways, lifts and landings must receive a conditional use permit and must meet the following design requirements:

A.

Stairways, lifts and landings may not exceed four feet in width on residential lots. Wider stairways may be used for commercial properties, public open space recreational properties and planned unit developments.

B.

Canopies or roofs are not allowed on stairways, lifts or landings.

C.

Stairways, lifts and landings may be either constructed above the ground on posts or placed into the ground, provided they are designed and built in a manner that ensures control of soil erosion.

D.

Stairways, lifts and landings must be located in the most visually inconspicuous portions of the bluff and/or the bluff setback area.

E.

Facilities such as ramps, lifts or mobility paths for physically handicapped persons are also allowed, provided that the dimensional and performance standards of sub-items A. to E. are complied with.

(1)

Removal or alteration of vegetation within a bluff or tier I buffer area is prohibited, except for removal and control of exotic species and the planting of certain approved types of vegetation. The city may maintain and update a list of exotic species and plantings that are permitted to be removed or added under this paragraph and may make available fact sheets and best management practices describing appropriate methods of treating exotic species. Exotic species that may be found in these areas include European buckthorn, exotic honeysuckles, staghorn and smooth sumac, Siberian elm and white poplar. Other species may be added to the exotic species or approved plantings list upon approval of the building official from time to time.

(2)

Removal or alteration of vegetation within a tier II setback area which is at least 25 feet away from the top of the bluff may be cleared so that a lawn may be installed provided that no tree, the diameter of six inches or greater, may be removed. Removal or alteration of vegetation within a tier II setback area must receive prior written approval of the building official or designee. An on-site review will be made to determine if the removal or alteration of vegetation will require new ground cover.

(Ord. No. 02-2017, § 10, 2-21-2017; Ord. No. 05-2017, § 2, 6-19-2017)

(1)

No earth may be moved, nor may fill or excavated material be placed in a bluff or within the tier I bluff area.

(2)

Movement of more than ten cubic yards of material within the tier II setback area may be permitted with the approval of the building official. The approval shall be granted if the proposed alteration does not adversely affect the tier II area or other property. Topographic alterations/grading and filling within the tier II area shall not be permitted to increase the rate of drainage. The drainage from property within a bluff or a bluff setback area may not be redirected without approval from the city engineer. Any application involving the movement of earth or the placement of fill within the bluff setback area shall provide a detailed landscape plan which shall include an erosion control plan and is subject to any conditions determined necessary by the building official.

(Ord. No. 05-2017, § 3, 6-19-2017)

A.

For any violation of this section the city building official may issue a summary order (red tag) to stop construction, which order shall remain in place until the property owner or contractor provides evidence satisfactory to the building official that construction can be completed in compliance with this section;

B.

If any violation of this section continues and is not brought into compliance after written order from the building official, the city may proceed under the provisions of chapter 10 of the City Code relating to nuisance abatement to cause compliance and removal of the structure (or the portion which is not in compliance with this section);

C.

Any continuous violation of this section is deemed hazardous to the sensitive bluff area of the city and, to secure compliance, the city may proceed under the Minnesota Hazardous Building Act and cause the structure (or the portion which is not in compliance with this section) to be removed;

D.

Any violation of the terms of this section is a misdemeanor and each day the violation continues is a separate misdemeanor. Any cost incurred by the city in compelling conformance with the provisions of this section shall be paid by the property owner and the city may assess such costs against the property to be included in the taxes. The remedies set forth herein are cumulative and the city may elect any or all of the remedies.

(Ord. No. 05-2017, § 4, 6-19-2017)

The following process is used by the city in determining whether a bluff exists on a piece of land or parcel:

A.

Locate the apparent toe of the bluff based on provided contours.

B.

Verify if the apparent bluff rises 25 feet or more from this apparent toe of bluff.

C.

Verify if the slope averages 30 percent or more from the apparent toe of bluff to a point 25 feet above the toe of the bluff. If the slope does average 30 percent or more above the apparent toe of the bluff within this distance, then the slope is considered a bluff and items D. and E. are used to determine the top and toe of bluff. If not, the slope is not considered a bluff.

D.

Determination of top of bluff. Proceeding from the toe of bluff and working up the slope, any slope with an average slope of 18 percent or more over 0 feet is considered part of the bluff. (Note: The existing slope averaging 30 percent or more is considered part of this 50-foot distance.) Generally, the top of the bluff is located along a contour line where the slope between that contour line and the next contour line is less than 18 percent. This top of bluff location is checked with the 50-foot requirement proceeding from the toe of bluff.

E.

Determination of the toe of bluff. Proceeding from the apparent toe of the bluff and working away from the bluff, any slope with an average slope of 18 percent or more over 0 feet is considered part of the bluff. (Note: The existing slope averaging 30 percent or more is considered part of this 50-foot distance.) Generally, the toe of the bluff is located along a contour line where the slope between that contour line and the next contour line is less than 18 percent. This toe of bluff location is checked with the 50-foot requirement proceeding from the toe of bluff.