(a)   It is hereby determined that the system of, streams, and other natural watercourses within the City contributes to the health, safety, and general welfare of the residents of the City. The specific purpose and intent of this chapter 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 woody debris from fallen or damaged trees, streambank 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 riparian habitat to a wide array of wildlife by maintaining diverse and connected riparian vegetation.

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

   (b)   The following chapter has been enacted to protect and enhance these functions of riparian areas by providing reasonable controls governing structures and uses within a riparian setback along designated watercourses in the City.

(Ord.2004-O-21. Passed 11-9-04.)

   (a)   This chapter shall apply to all zoning districts.

   (b)   This chapter shall apply to all structures and uses on lands containing a designated watercourse as defined in this chapter, except as provided herein.

   (c)   No approvals or permits shall be issued by the City without full compliance with the terms of this chapter.

(Ord.2004-O-21. Passed 11-9-04.)

   (a)   Where this chapter 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 chapter shall control.

   (b)   This chapter 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 division (a) of this section.

   (c)   If any clause, section, or provision of this chapter is declared invalid or unconstitutional by a court of competent jurisdiction, validity of the remainder shall not be affected thereby.

(Ord.2004-O-21. Passed 11-9-04.)

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

   (a)   "City." Throughout this chapter, this shall refer to the City of Mentor-on-the- Lake or its designated representatives, boards, or commissions.

   (b)   "Damaged or diseased trees." 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 on to a structure.

   (c)   "Designated watercourse." A watercourse within the City that is in conformity with the criteria set forth in this chapter.

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

   (e)   "Impervious cover." Any paved, hardened, or structural surface regardless of its composition including but not limited to buildings, roads, driveways, parking lots, loading/unloading areas, decks patios, and swimming pools.

   (f)   "Noxious weed." 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 chapter, the most recent version of this list at the time of application of this chapter shall prevail.

   (g)   "100-year floodplain." 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.

   (h)   "Ohio Environmental Protection Agency." Referred throughout this chapter as the "Ohio EPA."

   (i)   "Ordinary high water mark." The point of the bank to which the presence and action of surface water is so continuous 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.

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

   (k)   "Riparian setback." The real property adjacent to a designated watercourse located in the area defined by the criteria set forth in this chapter.

   (l)   "Soil and Water Conservation District." An entity organized under Ohio R.C. Chapter 1515 referring to either the Soil and Water Conservation District Board or its designated employee(s), hereinafter referred to as Lake SWCD.

   (m)   "Soil disturbing activity." 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.

   (n)   "Substantial damage." 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.

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

   (p)   "Wetland." 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 CFR 232, as amended).

(Ord.2004-O-21. Passed 11-9-04.)

   (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 SWCD or other technical experts. Any costs associated with such consultations shall be assessed to the applicant.

   (b)   Riparian setbacks on designated watercourses are established as follows:

      (1)   A minimum of 120 feet on each side of all watercourses draining an area greater than 20 square miles and up to 300 square miles.

      (2)   A minimum of 75 feet on each 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 each side of all watercourses draining an area less than one-half square mile and having a defined bed and bank as determined by this chapter.

   (c)   Riparian Setback Map. The City shall create a map identifying designated watercourses and their riparian setbacks. Said map is attached to original Ordinance 2004-O-21 and made a part of this chapter. The following shall apply to the Riparian Setback Map:

      (1)   It shall be used 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 City from amending the Riparian Setback Map from time to time as may be necessary.

      (4)   If any discrepancy is found between the Riparian Setback Map and this chapter, the criteria set forth in division (a) and (b) of this section 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 a designated watercourse.

      (2)   Except as otherwise provided in this chapter, riparian setbacks shall be preserved in their natural state.

      (3)   Where the 100-year floodplain is wider than a minimum riparian setback on either or both sides of a designated watercourse, the minimum riparian setback shall be extended to include the outermost boundary 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 City. Any costs associated with reviewing this site-specific floodplain delineation shall be assessed to the applicant.

      (4)   Where a wetland is identified within a minimum riparian setback, the minimum riparian setback shall be extended to include the outermost boundary of the wetland. Wetlands shall be delineated through a site survey prepared by a qualified wetlands professional retained by the landowner using delineation protocols accepted by the U.S. Army Corps of Engineers at the time an application is made under this chapter. Any costs associated with reviewing these delineations shall be assessed to the applicant.

(Ord.2004-O-21. Passed 11-9-04.)

   (a)   The applicant shall be responsible for delineating riparian setbacks as required by this chapter and shall identify such setbacks on a site plan included with all subdivision plans, land development plans, and/or zoning permit applications submitted to the City. The site plan shall be prepared by a professional engineer, surveyor, landscape architect, or such other qualified professional and shall be based on a survey of the affected land. Two copies of the site plan shall be submitted. 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 to ensure compliance with this chapter.

   (b)   The City may, in reviewing the site plan, consult with the Lake SWCD or other such experts. Any costs associated with this review shall 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 chapter, 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 identification of riparian setbacks on the affected land in conformance with this chapter.

(Ord.2004-O-21. Passed 11-9-04.)

   (a)   By Right Uses Without A Permit. Open space uses that are passive in character shall be permitted in riparian setbacks, including, but not limited to, those listed in this chapter. No use permitted under this chapter shall be construed as allowing trespass on privately held lands.

      (1)   Recreational activity. Hiking, fishing, hunting, picnicking, and similar passive recreational uses, as permitted by federal, state, and local laws.

      (2)   Removal of damaged or diseased trees. Damaged or diseased trees may be removed.

      (3)   Revegetation and/or reforestation. Riparian setbacks may be revegetated and/or reforested with native, noninvasive plant species.

   (b)   By Conditional Use Permit Granted by the Planning and Zoning Commission. When granting conditional use permits for the following uses, the Planning and Zoning Commission may, for good cause, attach such conditions as it deems appropriate. Permits issued under this chapter are issued to the applicant only, shall not be transferred, and shall be void if not implemented within one year of issuance.

      (1)   Crossings.

         A.   Crossings of designated watercourses through riparian setbacks with roads, driveways, easements, bridges, culverts, utility service lines, or other means may be permitted, provided such crossings minimize disturbance in riparian setbacks and mitigate any necessary disturbances. Such crossings shall only be undertaken upon approval of a crossing plan by the Planning and Zoning Commission. Any costs associated with review of crossing plans may be assessed to the applicant.

         B.   If work will occur below the ordinary high water mark of the designated watercourse, proof of compliance with the applicable conditions of a U.S. 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 also be provided to the City. Proof of compliance shall be the following:

            1.   A site plan showing that any proposed crossing conforms to the general and special conditions of the applicable nationwide permit; or

            2.   A copy of the authorization letter from the U.S. Army Corps of Engineers approving the activities under the applicable nationwide permit; or

            3.   A copy of the authorization letter from the U.S. Army Corps of Engineers approving activities under an individual permit.

      (2)   Streambank stabilization projects.

         A.   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.

         B.   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 13, including the Ohio State Certification Special Conditions and Limitations, or an individual permit, including Ohio 401 water quality certification) shall be provided to the City. Proof of compliance shall be the following:

            1.   A site plan showing that any proposed crossing conforms to the general and special conditions of Nationwide Permit 13; or

            2.   A copy of the authorization letter from the U.S. Army Corps of Engineers approving activities under Nationwide Permit 13; or

            3.   A copy of the authorization letter from the U.S. Army Corps of Engineers approving activities under an individual permit.

      (3)   Storm water retention and detention facilities. Storm water retention and detention facilities may be constructed in the riparian setback, provided:

         A.   Storm water quality treatment consistent with current Ohio EPA regulations is incorporated into the basin.

         B.   Storm water retention and detention facilities are located at least 50 feet from the ordinary high water mark of the designated watercourse.

      (4)   Landscaping. The removal of natural vegetation within a riparian setback and the subsequent cultivation of lawns, landscaping, shrubbery, or trees may be allowed provided that such cultivation is done in conformance with a landscaping plan approved by the Planning and Zoning Commission. Any costs associated with review of landscaping plans may be assessed to the applicant. Landscaping plans shall meet the following criteria:

         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 practicable.

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

(Ord.2004-O-21. Passed 11-9-04.)

   Any use not authorized under this chapter 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:

   (a)   Construction. There shall be no buildings or structures of any kind.

   (b)   Dredging or Dumping. There shall be no drilling, filling, dredging, or dumping of soil, spoils, liquid, or solid materials, except for noncommercial composting of uncontaminated natural materials and except as permitted under this chapter.

   (c)   Fences and Walls. There shall be no fences or walls.

   (d)   Roads or Driveways. There shall be no roads or driveways, except as permitted under this chapter.

   (e)   Motorized Vehicles. There shall be no use of motorized vehicles, except as permitted under this chapter.

   (f)   Disturbance of Natural Vegetation. There shall be no disturbance of natural vegetation within riparian setbacks except for the following:

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

      (2)   Cultivation of lawns, landscaping, shrubbery, or trees in accordance with an approved landscaping plan submitted in conformance with this chapter.

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

   (g)   Parking Spaces or Lots and Loading/Unloading Spaces for Vehicles. There shall be no parking spaces, parking lots, or loading/unloading spaces.

   (h)   New Surface and/or Subsurface Sewage Disposal or Treatment Areas. Riparian setbacks shall not be used for the disposal or treatment of sewage, except in accordance with recommendations of the Lake County General Health District.

(Ord.2004-O-21. Passed 11-9-04.)

   (a)   A non-conforming use, existing at the time of passage of this chapter and within a riparian setback, that is not permitted under this chapter may be continued but shall not be changed or enlarged unless changed to a use permitted under this chapter.

   (b)   A non-conforming structure, existing at the time of passage of this chapter and within a riparian setback, that is not permitted under this chapter may be continued but shall not have the existing building footprint or roofline expanded or enlarged.

   (c)   A non-conforming structure or use, existing at the time of passage of this chapter and within a riparian setback, that has substantial damage and that is discontinued, terminated, or abandoned for a period of six months or more may not be revived, restored, or re-established.

(Ord.2004-O-21. Passed 11-9-04.)

   (a)   The Planning and Zoning Commission may grant a variance to this chapter 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 this chapter, 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 Section 1286.09(a) of this chapter, 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 1444, Flood Damage Prevention, 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 this chapter, placed on the landowner by this chapter 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 lawns, in the riparian setback compromises its benefits to the City. 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 the City, will be made unbuildable because of this chapter.

   (c)   In order to maintain the riparian setback to the maximum extent practicable, 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 this chapter, the Planning and Zoning Commission, for good cause, may impose such conditions that it deems appropriate to maintain the purposes of this chapter.

(Ord.2004-O-21. Passed 11-9-04.)

   (a)   Any applicant seeking a variance to the conditions imposed under this chapter or an appeal to an administrative decision made under this chapter, 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 of one hundred dollars ($100.00), 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 this chapter 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 chapter from which a variance is sought;

         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 this chapter shall be final.

(Ord.2004-O-21. Passed 11-9-04.)

   The identification of riparian setbacks shall be inspected by the City:

   (a)   Prior to soil disturbing activities authorized under this chapter. The applicant shall provide the City with at least five working days written notice prior to starting such soil disturbing activities.

   (b)   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 chapter.

(Ord.2004-O-21. Passed 11-9-04.)

   (a)   Any person who shall violate any section of this chapter shall be guilty of a misdemeanor of first degree 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 the City 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 chapter or other applicable laws, ordinances, rules, or regulations, or the orders of the City Service Director/Zoning Inspector.

(Ord.2004-O-21. Passed 11-9-04.)