Elkhart City Zoning Code

WETLANDS CONSERVATION

OVERLAY DISTRICT

§ 151.145 GENERAL PROVISIONS.

(A) Purpose. The intent of this section is to prevent harm to the human and natural environment from water pollution, increased flooding and loss of ground water supply that may result when natural wetlands are drained, filled or otherwise subjected to uses incompatible with public health, safety and welfare. This purpose is consistent with the Comprehensive Plan of the city. The provisions of this section are intended to achieve this purpose by:

(1) Providing a method of identifying wetlands within the planning and zoning jurisdictions of the city;

(2) Establishing regulations that permit reasonable economic use of wetlands consistent with sound wetland conservation practices;

(3) Guiding development adjacent to wetlands to prevent harm to wetlands and protect property from potential flood damage; and

(4) Establishing procedures to assure compliance with the Federal Clean Water Act (33 U.S.C. §§ 1251 et seq., as amended) and with state regulations that may affect wetlands.

(B) Definitions. Words or terms used in this section should be interpreted by their common-sense meanings unless more specifically defined otherwise. The definitions and rules of construction that apply to the other parts of the zoning ordinance shall apply to this section unless a different definition or rule is provided for in this division.

ADVERSE IMPACT. Anything that would destroy, harm, impair, diminish or degrade the value or utility of a wetland for pollution control, flood preservation, ground water recharge or habitat for fish and wildlife.

FILL MATERIAL. Any solid material that displaces water or reduces water holding capacity.

HYDROPHYTIC VEGETATION. Plant life growing in water or on a substrate that is at least periodically deficient in oxygen as a result of excessive water content. Plant species of this type are listed in: P.B. Reed, Jr., National List of Plant Species that Occur in Wetlands (North Central - Region 3), Biological Report 88 (24) Washington, D.C.: U.S. Fish and Wildlife Services, 1988.

NATIONAL WETLANDS INVENTORY (NWI). A series of maps produced by the U.S. Fish and Wildlife Services showing the location and classification of wetlands in standard topographic areas. Such maps, as amended, are hereby incorporated into this chapter by reference.

NATURAL WATER STORAGE CAPACITY. The maximum volume of water a wetland can contain up to its ordinary high water mark without alterations to its natural grade or contour.

ORDINARY HIGH WATER MARK. A mark delineating permanent or periodic inundation or prolonged soil saturation sufficient to support hydrophytic vegetation. In general terms, it indicates the highest water level that has been maintained for a sufficient period of time to leave evidence upon the landscape.

PERIODIC MAINTENANCE. Ordinary inspection and repair of facilities accessory to use of a wetland. This includes erosion control and removal of silt and non-hydrophytic vegetation in ways that do not substantially disturb hydrophytic plant and animal life. PERIODIC MAINTENANCE does not include any modification of a wetland’s contour or natural water storage capacity.

PRACTICABLE ALTERNATIVE. An alternative in terms of the size or location of a proposed development that would accomplish the development’s basic purpose and avoid or have less adverse impact on a wetland.

UNIFIED FEDERAL METHOD FOR WETLAND DELINEATION. A standard method for identifying wetlands and delineating their boundaries as described in: Federal Interagency Committee for Wetland Delineation, Federal Manual for Identifying and Delineating Jurisdictional Wetlands, (Washington, D.C.: U.S. Government Printing Office, 1989).

(1) The Wetland Districts that are established by this subchapter are overlay districts.

(2) No development may take place in a Wetland District without a zoning clearance/building permit.

(3) Only uses that are permitted by right or by special exception may be placed in a Wetland District. All other uses are prohibited.

(D) Application.

(1) This subchapter does not apply to:

(a) Artificially-constructed ponds, drainage ditches, storm water retention/detention basins, gravel pits, stone quarries or waste treatment lagoons, except to the extent that such uses are restricted or prohibited in Wetland Districts;

(b) Wetlands or portions thereof for which federal or state permits for fill were issued prior to the extension of the planning and zoning jurisdiction of the city over the areas for which the permits were issued; or to

(2) Notwithstanding division (D)(1)(b), if a wetland has been divided by the discharge or placement of fill material, the separated parts shall be considered a single wetland.

(3) Wetlands of different National Wetlands Inventory (herein the “NWI”) classification that are contiguous to one another shall be considered a single wetland.

(4) In the event of a conflict between the provisions of this subchapter and those of any other section of the zoning ordinance that governs the management of flood hazard areas, this section shall take precedence.

(E) Coordination with federal and state agencies. No application made under this subchapter for a zoning clearance/building permit, shall be accepted unless the applicant first obtains all necessary federal and state permits, approvals, waivers or letters of non-applicability.

(1979 Code, § 151.115) (Ord. 4370, passed 7-20-1998) Penalty, see § 151.999

§ 151.146 WETLAND DISTRICT.

(A) Designation.

(1) A Wetland District is any wetland area other than those exempted in § 151.145(D)(1) that is at least 1 acre in size that appears on the most current NWI map or maps published by the U.S. Fish and/or Wildlife Services for areas subject to the planning and zoning jurisdiction of the city. The most current edition of the applicable NWI map or maps and any subsequent revisions thereto are hereby adopted by reference and declared to be part of this section. A Wetland District must also meet the standards of the Unified Federal Method for Wetland Delineation, applied according to the procedures set forth in this subdivision.

(2) The NWI shows only the general location of wetlands. Precise delineation shall be made by the applicant for a zoning clearance/building permit through the performance of a full field survey applying the wetland delineation methodology in affect at the time of application. Areas containing hydric soils as mapped and designated by the Natural Resource Conservation Service; or soils containing hydric inclusions must be assessed via full field survey, as well. All permit applications for development in a Wetland District or areas containing soils that may harbor wetlands shall be accompanied by a scaled drawing showing the district boundary. The applicant shall document the results of the boundary survey to the Planning and Zoning Office. The documentation shall include:

(a) Statement of qualifications of individual(s) and/or firm conducting the boundary delineation;

(b) Certified copy of the boundary delineation; and

(c) All other documentation submitted to the Indiana Department of Environmental Management (IDEM) and/or the U.S. Army Corps of Engineers (COE).

(d) Documentation shall be submitted to the city no later than the date of submittal to IDEM and/or COE. The Planning and Zoning staff may review the documentation to determine its general accuracy and completeness.

(3) The city, through the Planning and Zoning Office, may forward to IDEM and/or COE any recommendation, question or concern regarding an application for any state and/or federal permits that pertain to the area described in the application for the zoning clearance/building permit.

(4) In applying for a zoning clearance/building permit, the applicant consents to allowing the Planning and Zoning Office to enter upon the applicant’s land to gather information to obtain a basis for a recommendation described at division (A)(3).

(B) Permitted uses. The following uses are permitted by right, provided they do not involve erecting a building or structure, opening an excavation, depositing or discharging fill material, dredging, earth moving, extending existing drainage systems or creating new drainage systems:

(1) Agriculture uses, except animal feed lots, but including general farming, grazing, gardening, sustained-yield forestry in accordance with a management plan approved by the State Forester, nurseries and the erection and maintenance of wire agricultural fences;

(2) Hunting, trapping and fishing, where not otherwise prohibited by law;

(3) Parks, when left in a natural state, wildlife and natural preserves, recreational uses, including swimming, boating and natural-surface hiking and bridle paths, and educational and scientific uses;

(4) Uses incidental to the enjoyment of residential properties, provided that the impact of such uses does not affect more than ½ acre of wetlands (Nationwide Permit 29); and

(5) Maintenance and repair of existing streets, roads, highways and public utilities; provided that, the uses are not enlarged and that such maintenance or repair is done in a way that minimizes or avoids adverse impacts to wetlands.

(C) Special exceptions. The following special exceptions may be permitted upon approval by the Board of Zoning Appeals in accordance with § 151.285 of the Zoning Ordinance; such special exceptions are expressly contingent upon the receipt of all required federal and state permits:

(1) Structures accessory to permitted uses, provided that they do not significantly obstruct circulation of water in the wetland, threaten water quality, create erosion hazards or disrupt significant wildlife habitat. The structures include, but are not limited to:

(a) Temporary structures not intended for human habitation or sheltering livestock;

(b) Boat anchorages, moorings and piers;

(d) Residential wells.

(2) Enhancement of wetlands to improve wildlife habitat in accordance with a plan approved by the I.D.N.R.

(3) Public infrastructure, other than buildings and electrical substations, but including public utilities, streets, roads and bridges, provided that:

(a) There is no practicable alternative route outside the wetland;

(b) The public need cannot be met by existing facilities of the modification thereof;

(c) The proposed facility is designed to permit the unimpeded circulation of water in the wetland, control runoff from paved surfaces in accordance with division (C)(4), and otherwise minimize adverse impacts on the wetland;

(d) Any filling, excavating or draining must be necessary for the construction and maintenance of the proposed facility and done in a way that minimizes adverse impacts on the wetland;

(e) Erosion control measures are taken in accordance with the U.S. Department of Agriculture oil Conservation Service Field Office Technical Guide; and

(f) Underground utilities are installed in watertight conduits; and

(g) Such activities comply with the General and Specific conditions of Nationwide Permits 12 and 14.

(4) Storm water retention/detention, provided that there is no practicable alternative site outside a wetland and that a wetland utilization plan is prepared by the applicant and approved by the Board of Zoning Appeals listing steps for monitoring surface and subsurface water quality and a schedule of periodic maintenance of the wetland while in use as a storm water retention/detention facility; and further provided that net flow does not exceed the wetland’s natural water storage capacity and that the storm water undergoes pre-treatment to prevent silt, debris and chemical pollutants from entering the wetland.

(a) No special exception for storm water retention/detention use of a wetland shall involve decreasing the wetland’s natural water storage capacity or placing more than 25% of the surface area of the retention/detention pond in the Wetland District. No retention/detention pond shall occupy more than 10% of the area of a Wetland District. The natural outflow from the Wetland District shall not be changed so as to increase or decrease the normal pool elevation. Minor alteration of a wetland’s contour may be permitted for the installation of facilities accessory to storm water inflow and outflow, provided that it does not significantly alter the wetland’s pre-existing hydrology.

(b) Pre-treatment measures may include sedimentation basins, vegetated swales and buffer strips. Rip-rap made of natural rock may be used only where vegetation cannot control erosion. Storm drains may not discharge directly into a wetland. Lining of swales with paving materials shall not be permitted.

(c) No retention/detention facility shall be constructed within a forested wetland, but overflow into a forested wetland may be permitted.

(d) No more than 1 retention/ detention pond may be placed within a single Wetland District.

(e) Any portion of a Wetland District used for storm water retention/detention shall remain part of the Wetland District.

(f) No special exception shall be granted for storm water retention/detention in a wetland subject to divided ownership unless the applicant first obtains and records an easement of use from the owners of all other affected properties.

(g) A constructed outflow to a regulated county drain requires approval of the county drainage board or appropriate joint drainage board and/or the county surveyor.

(5) Maintenance of existing boat channels, provided that the applicant has received a permit from the I.D.N.R. under I.C. 14-26-2, as amended, (Lakes Preservation) and that dredging will be limited as follows:

(a) Dredging shall be located so as to minimize adverse impacts on vegetation;

(b) Dredging shall not adversely change water circulation;

(d) Dredged material shall not be disposed of within any lake, wetland or flood hazard area or in any manner that is unlawful or would constitute a public or private nuisance.

(e) Activities shall comply with all other general and specific conditions of Nationwide Permits 1, 2, 3, 9, 10 and 22.

(1979 Code, § 151.116) (Ord. 4370, passed 7-20-1998) Penalty, see § 151.999

§ 151.147 GENERAL DEVELOPMENT STANDARDS.

In order to guide development outside a Wetland District to prevent harm to wetlands inside the district, the following standards are established:

(A) No building, structure, street, road, alley, driveway parking area or paved surface shall be placed closer than 75 feet from the boundary of a Wetland District.

(B) No septic system shall be installed closer than 150 feet from the boundary of a Wetland District.

(C) The lowest ground floor elevation of all buildings or additions to existing buildings within 50 feet of the boundary of a Wetland District shall be at least two feet above the ordinary high water mark.

(D) No soil storage pile shall be placed nearer than 25 feet from the boundary of a Wetland District. Erosion from all soil storage piles placed within 200 feet of the boundary of a Wetland District shall be controlled by placing straw bales, filter fence or other effective containment barriers around the piles. Soil loss from any construction site within 200 feet of the district boundary shall be controlled by measures described in the U.S. Department of Agriculture Soil Conservation Service Field Office Technical Guide.

(E) No storm water runoff from a development shall be directed into a Wetland District except as provided in § 151.146(C)(4).

(1979 Code, § 151.117) (Ord. 4370, passed 7-20-1998) Penalty, see § 151.999

§ 151.148 NONCONFORMING USES.

Any building, structure or other use that does not conform to § 151.147 is a non-conforming use and is subject to the following provisions:

(A) A non-conforming use may be altered, enlarged or extended on a 1-time-only basis, provided that:

(1) The lowest ground floor elevation of any addition to an existing building is at least 2 feet above the ordinary high water mark;

(2) The proposed alterations, enlargements or extensions, excluding improvements made solely to comply with state or local health, sanitary or safety codes or to assure safe living conditions, do not increase the value of the use by more than 40% of its pre-improvement market value, excluding the value of the land; and

(3) No extension of a non-conforming use that does not conform to the setback requirements of § 151.147(A) shall be constructed in the direction of a Wetland District.

(B) A non-conforming use that is damaged by accident, flood, fire, explosion, natural disaster or the public enemy may be restored to its original dimensions and condition provided the damage does not reduce the value of the use, excluding the value of the land, by more than 40% of its pre-damaged value.

(1979 Code, § 151.118) (Ord. 4370, passed 7-20-1998) Penalty, see § 151.999

§ 151.149 BOARD OF ZONING APPEALS.

(A) The Board of Zoning Appeals may grant variances from the provisions of this subchapter, provided the applicant establishes that:

(1) The grant of the proposed variance complies with I.C. 36-7-4-918.4 as amended and § 151.287(A) and (B) of the Zoning Ordinance; and that

(2) The grant of the proposed variance will not adversely affect the water quality, volume of ground water supply or flood storage capacity of the Wetland District.

(B) Variances shall give the minimum relief necessary to alleviate the applicant’s hardship.

(C) No variances shall permit storm water runoff from a street, parking area or roof of an industrial or commercial building to be directed into a Wetland District.

(D) Variances and special exceptions may be granted contingent upon receipt by the Planning and Zoning Staff of all required federal and state permits.

(E) No variance or special exception shall allow construction or dredging to disturb waterfowl breeding areas during breeding season or fish spawning areas during spawning season.

(F) Whenever a variance or special exception is granted for a use that may alter the grade or contour of land in a Wetland District, the Board of Zoning Appeals shall require that, upon completion of the proposed construction, the applicant will restore the land as closely as possible to its original grade and contour.

(G) No variance or special exception shall allow a net loss of wetland area. Where all or part of a wetland in a Wetland District would be destroyed or substantially altered by a proposed development, the Board of Zoning Appeals shall require mitigation by the applicant and his or her successors in interest according to the following standards:

(1) Acre-for-acre replacement of the same or a better type of wetland providing the environmental benefits that would be lost because of the proposed development.

(2) Replacement wetlands shall be located reasonably close to the Wetland District, as determined by the Board of Zoning Appeals, in which the losses are sustained and shall become part of the District, if practical.

(3) Periodic maintenance for replacement wetlands shall be carried out by the applicant for a minimum of 3 years to control erosion, remove nuisance vegetation and assure the establishment and survival of predominantly hydrophytic vegetation.

(4) The Board of Zoning Appeals may require the applicant to post a bond or other performance guarantee sufficient to assure the city the satisfactory completion of replacement wetlands.

(5) If replacement of the same or better type of wetland is not possible adjacent to the Wetland District in which the projected losses would be sustained, the Board of Zoning Appeals may consider replacement at ratios greater than one to one of a lesser quality wetland adjacent to the Wetland District.

(6) The Board of Zoning Appeals may require replacement of wetland losses of less than 1/3 of an acre even when the applicant has received federal or state approval for the proposed construction without mitigative conditions.

(7) The authorization of replacement wetlands shall not be used as a means of permitting avoidable losses of natural wetlands.

(1979 Code, § 151.119) (Ord. 4370, passed 7-20-1998; Am. Ord. 4683, passed 7-1-2002)

§ 151.150 ENFORCEMENT.

In addition the enforcement powers and penalties for violation prescribed in §§ 151.280 et seq., the Planning and Zoning Staff, Plan Commission or Board of Zoning Appeals, pursuant to I.C. 36-7-4-1000 et seq. (Local Planning and Zoning -1000 Series-Remedies and Enforcement) may institute civil proceedings in a court of competent jurisdiction to compel complete restoration of wetlands damaged in violation of this section.

(1979 Code, § 151.120) (Ord. 4370, passed 7-20-1998; Am. Ord. 4683, passed 7-1-2002)