(a)   It is hereby determined that the system of rivers, streams and other natural watercourses within Kirtland contributes to the health, safety and general welfare of the residents of Kirtland. The specific purpose and intent of this regulation is to regulate uses and developments within riparian setbacks that would impair the ability of riparian areas to:

      (1)   Reduce flood impacts by absorbing peak flows, slowing the velocity of flood waters and regulating base flow;

      (2)   Assist in stabilizing the banks of watercourses to reduce bank 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 already present in watercourses;

      (4)   Reduce pollutants in watercourses by filtering, settling and transforming pollutants in runoff before they enter watercourses;

      (5)   Provide watercourse habitats with shade and food;

      (6)   Reduce the presence of aquatic nuisance species to maintain a diverse aquatic system;

      (7)   Provide habitat to a wide array of wildlife by maintaining diverse and connected riparian vegetation; and

      (8)   Benefit Kirtland economically by minimizing encroachment on watercourse channels and the need for costly engineering solutions such as dams, retention basins and rip rap to protect structures and reduce property damage and threats to the safety of watershed residents; and by contributing to the scenic beauty and environment of Kirtland, and thereby preserving the character of Kirtland, the quality of life of the residents of Kirtland, and corresponding property values.

   (b)   The following regulation has been enacted to protect these services of riparian areas by providing reasonable controls governing structures and uses within a riparian setback along designated watercourses in Kirtland.

(Ord. 02-O-33, passed 7-8-2002; Am. Ord. 24-O-53, passed 8-19-2024)

   (a)   This regulation shall apply to all lands that are within the jurisdiction of Kirtland and that border designated watercourses as defined in § 1294.05 of this regulation.

   (b)   No approvals or permits shall be issued by Kirtland without full compliance with the terms of this regulation where applicable.

(Ord. 02-O-33, passed 7-8-2002; Am. Ord. 24-O-53, passed 8-19-2024)

   (a)   Where this regulation imposes a greater restriction upon land than is imposed or required by any other provision of law, regulation, contract or deed, the provisions of this regulation shall control.

   (b)   This regulation shall not limit or restrict the application of other provisions of law, regulation, contract or deed, or the legal remedies available thereunder, except as provided in § 1294.03(A) of this regulation.

   (c)   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. 02-O-33, passed 7-8-2002; Am. Ord. 24-O-53, passed 8-19-2024)

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

   (a)   Damaged or diseased trees. "Damaged or diseased trees" means 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.

   (b)   Designated watercourse. "Designated watercourse" means a watercourse that is contained within, flows through or borders Kirtland and meets the criteria set forth in § 1294.05 of this regulation.

   (c)   Federal Emergency Management Agency. "Federal Emergency Management Agency (FEMA)" means the agency with overall responsibility for administering the National Flood Insurance Program.

   (d)   Impervious cover. "Impervious cover" means any surface that cannot effectively absorb or infiltrate water. This may include roads, streets, parking lots, rooftops and sidewalks.

   (e)   Kirtland. "Kirtland", throughout this regulation, this shall refer to the City of Kirtland, its designated representatives, boards or commissions.

   (f)   In-Line Pond. “In-Line Pond” means a permanent pool of water created by impounding a designated watercourse.

   (g)   Noxious weed. "Noxious weed" means 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.

   (h)   Ohio Environmental Protection Agency. "Ohio Environmental Protection Agency" is referred throughout this regulation as the "Ohio EPA."

   (i)   100-year floodplain. "100-year floodplain" means 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.

   (j)   Ordinary high water mark. "Ordinary high water mark" means the point of the bank or shore to which the presence and action of surface water is so frequent 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.

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

   (l)   Riparian setback. "Riparian setback" means those lands in Kirtland that fall within the area defined by the criteria set forth in § 1294.05 of this regulation.

   (m)   Soil and Water Conservation District. "Soil and Water Conservation District" means an entity organized under Ohio R.C. Chapter 1515 referring to either the Soil and Water Conservation District Board or its designated employees.

   (n)   Soil disturbing activity. "Soil disturbing activity" means 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.

   (o)   Substantial damage. "Substantial damage" means 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.

   (p)   Watercourse. Any brook, channel, creek, river, or stream having banks, a defined bed, and a definite direction of flow, either continuously or intermittently flowing.

   (q)   Wetland. "Wetland" means 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 C.F.R part 232, as amended).

(Ord. 02-O-33, passed 7-8-2002; Am. Ord. 24-O-53, passed 8-19-2024)

   (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 city may consult with representatives of the Lake County SWCD or other technical experts as 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 120 feet on either side of all watercourses draining an area greater than 20 square miles.

      (2)   A minimum of 75 feet on either side of all watercourses draining an area greater than one-half square mile and up to 20 square miles.

      (3)   A minimum of 25 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 in § 1294.05(a)(2) of this regulation.

   (c)   Riparian Setback Map. The Planning and Zoning Commission shall create a map identifying designated watercourses and their riparian setbacks. The following shall apply to the Riparian Setback Map.

      (1)   It shall be published as a reference document and the information contained therein shall be believed to be accurate.

      (2)   It shall be a guide only.

      (3)   Nothing herein shall prevent the Planning and Zoning Commission from making additions, amendments or deletions to the Riparian Setback Map.

      (4)   If any discrepancy is found at the time of application of this regulation between the Riparian Setback Map and the criteria for designated watercourses or riparian setbacks as set forth in § 1294.05(a) and (b) of this regulation, § 1294.05(a) and (b) shall prevail.

   (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.

      (3)   Where the 100-year floodplain is wider than a riparian setback on either or both sides of a designated watercourse, the riparian setback shall be extended to the outer edge of the 100-year floodplain. The 100-year floodplain shall be defined by FEMA. If a FEMA defined floodplain does not exist for a designated watercourse, the city may require a site-specific floodplain delineation in conformance with standard engineering practices and approved by the Planning and Zoning Commission. Any costs associated with reviewing this site-specific floodplain delineation shall be assessed to the applicant.

      (4)   Where wetlands are identified within a riparian setback, the minimum riparian setback width shall be extended to the outer boundary of the wetland. Wetlands shall be delineated by a site survey approved by the Planning and Zoning Commission using delineation protocols accepted by the U.S. Army Corps of Engineers and the Ohio EPA at the time of application of this regulation. If a conflict exists between the delineation protocols of these two agencies, the delineation protocol that results in the most inclusive area of wetland shall apply. Any costs associated with such a delineation shall be assessed to the applicant.

      (5)   The minimum riparian setback on an in-line pond existing at the time of application of this regulation shall be measured from the ordinary high water mark of the designated watercourse as it enters said pond and through the impoundment along the centerline of the designated watercourse as it flows through the in-line pond. Riparian setbacks on in-line ponds existing at the time an application is made under this regulation shall be expanded to include wetlands and floodplains as detailed in § 1294.05. The creation of new in-line impoundments shall not be permitted under these regulations.

(Ord. 02-O-33, passed 7-8-2002; Am. Ord. 24-O-53, passed 8-19-2024)

   (a)   The applicant shall be responsible for delineating riparian setbacks, including any expansions or modifications as required by § 1294.05(d)(3) and (d)(4) of this regulation, and identifying these setbacks on all subdivisions, land development plans, and/or zoning permit applications submitted to the city. This delineation shall be shown on the Lake County Geographic Information System base map and shall be submitted to the city in both electronic and paper copy formats. This delineation shall be subject to review and approval by the Planning and Zoning Commission. Any costs associated with such review shall be assessed to the applicant. 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 information as may be necessary for the City of Kirtland to ensure compliance with this regulation.

   (b)   The City of Kirtland may, in reviewing the site plan, consult with the Lake County SWCD or other such experts. Any costs associated with this review may be assessed to the applicant.

   (c)   If soil disturbing activities will occur within 50 feet of the outer boundary of the applicable riparian setback as specified in this regulation, the riparian setback shall be clearly identified by the applicant on site with construction fencing as shown on the site plan. Such identification shall be completed prior to the initiation of any soil disturbing activities and shall be maintained throughout soil disturbing activities.

   (d)   No approvals or permits shall be issued by the city prior to delineation of riparian setbacks in conformance with this regulation.

(Ord. 24-O-53, passed 8-19-2024)

         A.   A site plan showing that any proposed crossing conforms to the general and special conditions of the applicable Nationwide Permit;

         B.   A copy of the authorization letter from the U.S. Army Corps of Engineers approving activities under the applicable Nationwide Permit; or

         C.   A copy of the authorization letter from the U.S. Army Corps of Engineers approving activities under an Individual Permit.

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

         If streambank stabilization work is proposed below the ordinary high water mark of the designated watercourse, proof of compliance with the applicable conditions of a US Army Corps of Engineers Section 404 Permit (either a Nationwide Permit, including the Ohio State Certification Special Conditions and Limitations, or an Individual Permit, including Ohio 401 water quality certification) shall be provided to the [community]. Proof of compliance shall be the following:

         A.   A site plan showing that any proposed crossing conforms to the general and special conditions of the applicable Nationwide Permit;

         B.   A copy of the authorization letter from the U.S. Army Corps of Engineers approving activities under the applicable Nationwide Permit; or

         C.   A copy of the authorization letter from the U.S. Army Corps of Engineers approving activities under an Individual Permit.

         A.   Maintain trees in the riparian setback larger than nine inches in caliper (diameter) as measured 54 inches above the ground to the maximum extent possible; and

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

(Ord. 02-O-33, passed 7-8-2002; Am. Ord. 24-O-53, passed 8-19-2024)

   Any use not authorized under this regulation shall be prohibited in riparian setbacks. By way of example, the following uses are specifically prohibited, however, prohibited uses are not limited to those examples listed here.

      (1)   Maintenance of lawns, landscaping, shrubbery or trees existing at the time of passage of this regulation;

      (2)   Cultivation of lawns, landscaping, shrubbery or trees in accordance with an approved Landscaping Plan submitted in conformance with § 1294.07(b)(3) of this regulation; and

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

(Ord. 02-O-33, passed 7-8-2002; Am. Ord. 24-O-53, passed 8-19-2024)

   Non-conforming structures and uses are defined in Chapter 1282.

   (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 but shall not be changed or enlarged unless changed to a use permitted under this regulation.

   (b)   A non-conforming residential or commercial 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 or replaced. Such structures may also be enlarged provided such enlargement remains a minimum distance from the ordinary high water mark of the designated watercourse of no less than the distance between the ordinary high water mark and the foundation of the existing residential or commercial structure at its nearest point to the designated watercourse.

   (c)   A nonconforming accessory structure, existing at the time of passage of this regulation and in the riparian setback, that is not permitted under this regulation may be continued or replaced but shall not have the existing building footprint or roofline expanded or enlarged.

   (d)   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 one year or more may not be revived, restored or reestablished.

(Ord. 02-O-33, passed 7-8-2002; Am. Ord. 24-O-53, passed 8-19-2024)

   (a)   The Planning and Zoning Commission may grant a variance to this regulation as provided herein. In granting a variance, the following conditions shall apply.

      (1)   In determining whether there is unnecessary hardship with respect to the use of a property or practical difficulty with respect to maintaining the riparian setback as established in § 1294.05 of this regulation, such as to justify the granting of a variance, the Planning and Zoning Commission shall consider the potential harm or reduction in riparian functions that may be caused by a proposed structure or use.

      (2)   The Planning and Zoning Commission may not authorize any structure or use in a Zoning District other than those authorized in the Zoning Code.

      (3)   Variances shall be void if not implemented within one year of the date of issuance.

   (b)   In making a determination under § 1294.10(a) of this regulation, the Planning and Zoning Commission may consider the following.

      (1)   The natural vegetation of the property as well as the percentage of the parcel that is in the 100-year floodplain. The criteria of Chapter 1446 Flood Plain Management may be used as guidance when granting variances in the 100-year floodplain.

      (2)   The extent to which the requested variance impairs the flood control, erosion control, water quality protection or other functions of the riparian setback. This determination shall be based on sufficient technical and scientific data.

      (3)   The degree of hardship, with respect to the use of a property or the degree of practical difficulty with respect to maintaining the riparian setback as established in § 1294.05 of this regulation, placed on the landowner by this regulation and the availability of alternatives to the proposed structure or use.

      (4)   Soil-disturbing activities permitted in the riparian setback through variances should be implemented to minimize clearing to the extent possible and to include Best Management Practices necessary to minimize erosion and control sediment.

      (5)   The presence of significant impervious cover or smooth vegetation such as maintained ]awns, in the riparian setback compromises its benefits to Kirtland. Variances should not be granted for asphalt or concrete paving in the riparian setback. Variances may be granted for gravel driveways when necessary.

      (6)   Whether a property, otherwise buildable under the ordinances of Kirtland, will be made unbuildable because of this regulation.

   (c)   In order to maintain the riparian setback to the maximum extent possible, the Planning and Zoning Commission may consider granting variations to other area or setback requirements imposed on a property by the Zoning Code.

   (d)   In granting a variance under § 1294.10, the Planning and Zoning Commission, for good cause, may impose such conditions that it deems appropriate to maintain the purposes of this regulation as outlined in § 1294.01.

(Ord. 02-O-33, passed 7-8-2002; Am. Ord. 24-O-53, passed 8-19-2024)

   (a)   Any applicant seeking a variance to the conditions imposed under this regulation or an appeal to an administrative decision made under this regulation, other than a decision by the Planning and Zoning Commission, may apply to or appeal to the Planning and Zoning Commission. The following conditions shall apply.

      (1)   When filing an application for an appeal to an administrative decision, the applicant shall file a notice of appeal specifying the grounds therefor with the administrative official within 20 days of the administrative official's decision. Upon determining that the application is complete and upon receipt of the required fee as stated in the Fee Schedule in § 236.07 of the City of Kirtland Codified Ordinances, the administrative official shall transmit to the Planning and Zoning Commission the application and a transcript constituting the record from which the administrative decision subject to appeal was based. This transmission shall occur no less than 14 days prior to a regularly scheduled meeting of the Planning and Zoning Commission in order to be placed on the agenda for that meeting.

      (2)   When applying for a variance, the applicant shall file a variance request with the Planning and Zoning Commission.

      (3)   Applications for appeals or variances made under § 1294.11(a)(1) or (a)(2) of this regulation shall contain the following information:

         A.   The name, address and telephone number of the applicant;

         B.   Proof of ownership or authorization to represent the property owner;

         C.   The location of the property, including street address and permanent parcel number;

         D.   The current zoning of the property;

         E.   A description of the project for which the appeal or variance is sought;

         F.   A description of the administrative decision being appealed or the conditions of the regulation from which a variance is sought; and

         G.   Names and addresses of each property owner within 500 feet as shown in the current records of the Lake County Auditor typed on gummed labels.

      (4)   Applications for variances or appeals of administrative decisions shall not be resubmitted to the Planning and Zoning Commission within one year of the date of a final decision by the Planning and Zoning Commission on the original application, unless the applicant shows the Planning and Zoning Commission 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 the Planning and Zoning Commission in response to an application for a variance request or an appeal of an administrative decision filed pursuant to § 1294.11(a) of this regulation shall be final.

(Ord. 02-O-33, passed 7-8-2002; Am. Ord. 17-O-20, passed 7-3-2017; Am. Ord. 24-O-53, passed 8-19-2024)

   (a)   The delineation of riparian setbacks shall be inspected by the city:

      (1)   Prior to soil disturbing activities authorized by the Planning and Zoning Commission under a subdivision, land development plan, and/or zoning permit. The applicant shall provide the city with at least two working days' notice prior to starting such soil disturbing activities; and

      (2)   Prior to activities authorized by the Planning and Zoning Commission under § 1294.07(b) of this regulation. The applicant shall provide the city with at least two working days' notice prior to starting such activities.

   (b)   Riparian setbacks shall also be inspected at any time evidence is brought to the attention of the city that uses or structures are occurring that may reasonably be expected to violate the provisions of this regulation.

(Ord. 02-O-33, passed 7-8-2002; Am. Ord. 24-O-53, passed 8-19-2024)

   (a)   Any person who shall violate any section of this regulation shall be guilty of a misdemeanor of first degree and, upon conviction thereof, shall be subject to punishment as provided in Chapter 1262 and shall be required to restore the riparian setback through a restoration plan approved by the Planning and Zoning Commission.

   (b)   The imposition of any other penalties provided herein shall not preclude Kirtland 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 City Engineer.

(Ord. 02-O-33, passed 7-8-2002; Am. Ord. 24-O-53, passed 8-19-2024)