(a)

This article shall apply to all land development activity on property containing a stream protection area as defined in article I of this chapter. After the effective date of the ordinance from which this article is derived, it shall apply to new subdividing and platting activities.

(b)

Any land development activity within a required stream buffer established by this article or any impervious cover within a setback established in this article is prohibited unless specifically grandfathered or exempted by this article, or if a variance is granted pursuant to this article and this chapter.

(Ord. of 5-17-2005(01), § 13(1901))

(a)

The requirements of this article are in addition to, and do not replace or supersede, any other applicable buffer requirements established under state law and this chapter. Approval or exemption from this article do not constitute approval or exemption from buffer requirements established under state law or from other applicable local, state or federal regulations.

(b)

This article is not intended to interfere with, abrogate or annul any other ordinance, rule or regulation, statute or other provision of law. The requirements of this article shall be considered minimum requirements, and where any provision of this article imposes restrictions different from those imposed by any other article of this chapter, other city ordinance, rule, regulation or other provision of law, whichever provisions are more restrictive or impose higher protective standards for human health or the environment shall take precedence.

(Ord. of 5-17-2005(01), § 13(1902))

This article shall not apply to the following activities:

(1)

Work consisting of the repair or maintenance of any lawful use of land that is zoned and approved for such use on or before the effective date of the ordinance from which this article is derived.

(2)

Existing development and ongoing land disturbance activities, including, but not limited to, existing agriculture, silviculture, landscaping, gardening and lawn maintenance, except that new development or land disturbance activities on such properties shall be subject to all applicable buffer requirements.

(3)

Any land development activity that is under construction, fully approved for development, scheduled for permit approval or has been submitted for approval as of the effective date of the ordinance from which this article is derived.

(4)

Land development activity that has not been submitted for approval but that is part of a larger master development plan, such as for an office park or other phased development that has been approved prior to the effective date of the ordinance from which this article is derived.

(Ord. of 5-17-2005(01), § 13(1903))

The following specified activities are exempt from this article. Exemption of these activities does not constitute an exemption for any other activity proposed on a property.

(1)

Activities for the purpose of building one of the following:

a.

A stream crossing by a driveway, transportation route or utility line;

b.

Public water supply intake or public wastewater outfall structures;

c.

Intrusions necessary to provide access to a property;

d.

Public access facilities that must be on the water including boat ramps, docks, foot trails leading directly to the river, fishing platforms and overlooks;

e.

Unpaved foot trails and paths;

f.

Activities to restore and enhance stream bank stability, vegetation, water quality and/or aquatic habitat, so long as native vegetation and bioengineering techniques are used.

(2)

Public sewer line easements paralleling the creek, except that all easements (permanent and construction) and land disturbance should be at least 25 feet from the top of the stream bank. This includes such impervious cover as is necessary for the operation and maintenance of the utility, including but not limited to manholes, vents and valve structures. This exemption shall not be construed as allowing the construction of roads, bike paths or other transportation routes in such easements, regardless of paving material, except for access for the uses specifically cited in this section.

(3)

Land development activities within a right-of-way existing at the time the ordinance from which this article is derived takes effect or is approved under the terms of this article.

(4)

Within an easement of any utility existing at the time the ordinance from which this article is derived takes effect or is approved under the terms of this article, land disturbance activities and such impervious cover as is necessary for the operation and maintenance of the utility, including but not limited to manholes, vents and valve structures.

(5)

Emergency work necessary to preserve life or property. However, when emergency work is performed under this section, the person performing it shall report such work to the zoning administrator on the next business day after commencement of the work. Within ten days thereafter, the person shall apply for a permit and perform such work within such time period as may be determined by the zoning administrator to be reasonably necessary to correct any impairment such emergency work may have caused to the water conveyance capacity, stability or water quality of the stream protection area.

(6)

Forestry and silviculture activities that are not incidental to other land development activity. If such activity results in land disturbance in the required stream buffer that would otherwise be prohibited, then no other land disturbing activity other than normal forest management practices will be allowed on the entire property for three years after the end of the activities that intruded on the required stream buffer.

(Ord. of 5-17-2005(01), § 13(1904))

(a)

An undisturbed natural vegetative buffer with a width of 50 feet, measured horizontally, shall be maintained on both banks (as applicable) of the stream as measured from the top of the stream bank.

(b)

An additional setback shall be maintained for 25 feet, measured horizontally, beyond the undisturbed natural vegetative buffer, within which all impervious cover shall be prohibited. No septic tanks or septic tank drainfields shall be permitted within the required stream buffer or the setback required to be established by this section. Grading, filling, and earthmoving shall be minimized within the setback.

(Ord. of 5-17-2005(01), § 13(1905))

(a)

Any permit applications for property requiring stream buffers and setbacks under the terms of this article shall include the following:

(1)

A site plan showing:

a.

The location of all streams on the property;

b.

Limits of required stream buffers and setbacks on the property;

c.

Buffer zone topography with contour lines at no greater than five-foot contour intervals;

d.

Delineation of forested and open areas in the required stream buffer and stream protection area; and

e.

Detailed plans of all proposed land development in the buffer and of all proposed impervious cover within the setback.

(2)

Any other documentation that the zoning administrator may reasonably deem necessary for review of the application and to ensure that the purpose and intent of this article are addressed in the approval process.

(b)

All stream buffer and setback areas must be recorded on the final plat of the property following plan approval.

(Ord. of 5-17-2005(01), § 13(1906))

Variances from the stream buffer and setback requirements may upon application be considered and approved, conditionally approved, or denied by the board of zoning appeals in accordance with the provisions of article II of this chapter; provided, however, that instead of the criteria set forth in section 113-50 for the granting of variances, the following additional provisions shall apply:

(1)

Where a parcel was platted prior to the effective date of the ordinance from which this article is derived, and its shape, topography or other existing physical condition prevents land development consistent with this article, and the zoning administrator finds and determines that the requirements of this article prohibit the otherwise lawful use of the property by the owner, the board of zoning appeals may upon application grant a variance from the stream buffer and setback requirements of this article, provided that any such approval of a variance shall require mitigation measures to offset the effects of any proposed land development on the parcel for which a variance is approved.

(2)

Except as provided in subsection (1) of this section, the board of zoning appeals shall not grant a variance from any provision of this article without first conducting a public hearing on the application for variance in accordance with the requirements of section 113-114.

(3)

Variances shall not be approved when, following adoption of the ordinance from which this article is derived, actions of any property owner of a given property have created conditions of a hardship on that property. Variances will be approved only if a property's shape, topography or other physical conditions existing at the time of the adoption of this article prevents land development unless a buffer variance is granted; or in unusual circumstances when strict adherence to the minimal buffer requirements in this article would create an extreme hardship.

(4)

The following criteria must be considered before the board of zoning appeals may grant a variance to the requirements of this article:

a.

The shape, size, topography, slope, soils, vegetation, and other physical characteristics of the property;

b.

The locations of all streams on the property, including along property boundaries;

c.

The location and extent of the proposed stream buffer or setback intrusion;

d.

Whether alternative designs are possible which require less intrusion or no intrusion into the required stream buffer or stream protection area;

e.

The longterm and construction water-quality impacts of the proposed variance;

f.

Whether issuance of the variance is at least as protective of natural resources and the environment as the regulations specified in this article.

(Ord. of 5-17-2005(01), § 13(1907))

Applications for a variance to the terms of this article shall at minimum include the following information:

(1)

A site map that includes locations of all streams, wetlands, floodplain boundaries, and other natural features, as determined by field survey;

(2)

A description of the shape, size, topography, slope, soils, vegetation, and other physical characteristics of the property;

(3)

A detailed site plan that shows the locations of all existing and proposed structures and other impervious cover, the limits of all existing and proposed land disturbance, both inside and outside the required stream buffer and setback. The exact area of the stream buffer to be affected shall be accurately and clearly indicated;

(4)

Documentation of unusual hardship should the required stream buffer be maintained;

(5)

At least one alternative plan, which does not include a stream buffer or setback intrusion, or an explanation of why such a site plan is not possible;

(6)

A stormwater management site plan; and

(7)

Proposed mitigation, if any, for the intrusion. If no mitigation is proposed, the request must include an explanation of why none is being proposed.

(Ord. of 5-17-2005(01), § 13(1908))

Neither the issuance of a development permit nor compliance with the conditions thereof, nor compliance with the provisions of this article, shall relieve any person from any responsibility otherwise imposed by law for damage to persons or property; nor shall the issuance of any permit under the terms of this article serve to impose any liability upon the city, its officers or employees, for injury or damage to persons or property.

(Ord. of 5-17-2005(01), § 13(1909))