The purpose of the Source Water Protection Overlay District is to safeguard the public health, safety and welfare of the persons and property in the City of Westerville by protecting the ground water and surface water supplies along Alum Creek that serve as the City’s source of drinking water. The Source Water Protection Overlay District is intended to provide for the protection of the water supply into the future, maintain the natural aquifer recharging ability, reduce the potential for contamination of the water supply, and heighten awareness of the need to protect the City’s water supply. The District regulations of this Chapter are for the purpose of protecting the City’s potable water supply from contamination from existing and future potential pollution sources through the regulation of the use of those substances which could pose a threat to the City’s existing and future wellheads, the surrounding aquifer, and Alum Creek.

(Ord. 05-02A. Passed 3-1-05.)

   This Chapter applies to any use, structure, storage, activity or operation by a facility within the Source Water Protection Overlay District as shown on the Zoning District Map of the City of Westerville. Said District includes the portion of Alum Creek within the City that is up- and downstream of the Water Plant intake and the ground water resources in the area that have been defined by hydrogeological data and reports prepared for the City, Ohio Department of Natural Resources, and others. Any use, change in use or occupancy, construction, grading, structural relocation, alteration, addition or demolition shall be in conformance with the provisions of this Zoning Ordinance. Property owners, facility operators, and occupants shall comply with all applicable Federal, state and local regulations in addition to this Zoning Ordinance. Where other applicable regulations are in conflict with this Chapter, the more restrictive provision shall apply.

(Ord. 05-02A. Passed 3-1-05.)

   For the purposes of the Source Water Protection Overlay District, two protection area zones are hereby established. Protection Zone 1 defines the one-year ground water time-of-travel zone and the portion of Alum Creek immediately up- and downstream of the Water Plant as shown on the Zoning District Map. Protection Zone 2 defines the five-year ground water time-of-travel zone and the portion of Alum Creek beyond Protection Zone 1 and within the City boundaries as shown on the Zoning District Map. Protection Zone 1 and Protection Zone 2 are based on several engineering studies prepared for the City, including the July 1994 Hydrogeologic Investigation for Development of Water Supply Wells, and additional documented hydrogeologic data.

(Ord. 05-02A. Passed 3-1-05.)

   (a)   Agricultural Chemicals: Pesticides, herbicides and fertilizers.

   (b)   Aquifer: A porous, water-bearing geologic formation composed of materials capable of yielding significant quantities of water to wells and springs.

   (c)   Article: A manufactured item which:

      (1)   Is formed to a specific shape or design during manufacture;

      (2)   Has end-use functions dependent in whole or in part upon its shape or design during end-use; and

      (3)   Does not release a regulated substance under normal conditions for process or use of the item at the facility.

   (d)   Best Management Practices: Activities, prohibitions or practices, maintenance procedures, and other management practices to prevent or reduce the pollution of surface and ground waters. Best management practices also include treatment, operating procedures, and practices to control site runoff, spills or leaks, sludge or waste disposal, or drainage from raw material storage.

   (e)   City: The City of Westerville.

   (f)   Facility: Refers to individual parcel, owner, operator, tenant, household or business, whichever is the smallest unit.

   (g)   Ground Water: Water below the land surface in a zone of saturation.

   (h)   Nonconforming Use: A use that, if new, would not be allowed under the provisions of this Chapter. It includes uses that became located within Protection Zone 1 and/or Protection Zone 2 because of a change in the zone boundaries or by the adoption of this Chapter.

   (i)   Protection Zone 1: The area of influence around existing well(s) and sites within the wellfield identified as potential wells for public water supply, which is delineated by the one-year ground water time-of-travel contour and the portion of Alum Creek 7,000 river feet upstream and 500 feet downstream of the Water Plant intake, as shown on the Zoning District Map.

   (j)   Protection Zone 2: The area of influence around existing wells(s) and sites within the wellfield identified as potential wells for public water supply, which is delineated by the five-year ground water time-of-travel contour and the portion of Alum Creek beyond Protection Zone 1, as shown on the Zoning District Map. Protection Zone 2 does not include the area of Protection Zone 1.

   (k)   Regulated Substances: Regulated substances are those chemicals, mixtures and other substances, or components thereof, that are known or suspected carcinogens, highly toxic or toxic agents, extremely hazardous or hazardous substances, corrosives or which have otherwise been determined to be a health hazard or require monitoring under the Safe Drinking Water Act of 1986 (Public Law 93-23), as amended. (Determination of whether a material is a Regulated Substance can generally be made upon review of the Material Safety Data Sheet. The most recent United States Environmental Protection Agency’s Title III Lists of Lists is a reference to potential Regulated Substances, but is not a comprehensive listing.) Regulated Substances include, but are not limited to:

      (1)   Petroleum or petroleum-based liquid products;

      (2)   Antifreeze, transmission fluids, brake fluids and coolants;

      (3)   Solvents (raw or spent), alcohols, hydrocarbons, and ketones;

      (4)   Inks, pigments, printing and photography chemicals;

      (5)   Paints, primers, thinners, stains, wood preservatives, varnishes, and cleaning compounds;

      (6)   Industrial and commercial cleaning supplies, drain cleaners, and sanitizers;

      (7)   Pesticides, herbicides, bactericides, algaecides and fertilizers;

      (8)   Acids and Bases with pH of 2 or less or greater than 12;

      (9)   Aqueous metals;

      (10)   Any other material containing one percent (1%) or more by weight of a product that is regulated as a Toxic Chemical regulated under Section 313 of Emergency Planning and Community Right-To-Know Act (EPCRA) (OAC 3745-100); an Extremely Hazardous Substance under Section 302 of EPCRA (OAC Chapter 3750-20); a Hazardous Substance under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) (OAC Chapter 3750-30); or any materials containing one tenth of one percent (0.1%) or more by weight of a carcinogen as defined in 29 CFR 1910.1200 (Occupational Safety and Health Standards).

   (l)   Spill: The spillage, leaking, pumping, pouring, emitting, or dumping of Regulated Substances or materials, which when spilled, become Regulated Substances, into or on any land or water.

   (m)   Storage or Stored: The temporary or permanent holding or containment of dry, semi-dry or liquid materials.

   (n)   Time-of-Travel Contour: A locus of points for which ground water takes an equal amount of time to reach a given destination such as a well or wellfield.

   (o)   Underground Storage Tank: Any one or combination of tanks (including underground pipes connected thereto) that contain an accumulation of Regulated Substances, the volume of which (including volume of underground pipes connected thereto) is ten percent (10%) or more beneath the surface of the ground.

   (p)   Use: When applied to Regulated Substances, “use” shall mean the handling, placement, deposit, production, transportation, processing, transfer, treatment, storage, disposal, maintenance, or installation of a Regulated Substance. Otherwise, the definition of Section 1105.10500 shall apply.

   (q)   Well: Any excavation for the purpose of removing ground water from an aquifer, or for the purpose of determining the quality, quantity or level of ground water on a continuing basis.

   (r)   Wellfield: A tract of land that contains existing well(s) and sites identified as potential well(s) for supplying potable water.

(Ord. 05-02A. Passed 3-1-05.)

   Where the boundary of the Source Water Protection Overlay District or the protection zones established by said District bisects a parcel of land, the entire parcel shall be considered within the District and/or the boundary of the most restrictive zone unless the Zoning Officer or Planning Commission makes the determination that the property can be used without potential adverse impacts on the source waters that this chapter is intended to protect. Factors that shall be taken into consideration when such determinations are made include, but are not limited to, the amount of area within and outside of the Source Water Protection Overlay District or protection zone, the size and shape of the parcel, access to the parcel, the degree to which the parcel may be subdivided, environmental features of the parcel, the proposed use of the parcel, and the ability to develop the parcel using that portion outside of the District.

(Ord. 05-02A. Passed 3-1-05.)

   Except as otherwise prohibited by this Chapter, permitted uses and conditional uses shall be those of the underlying zoning district. The development standards of the underlying zoning district shall apply to sites within the Source Water Protection Overlay District. Where a conflict exists between the standards of the underlying zoning district and this Chapter, the standards of this Chapter shall apply.

(Ord. 05-02A. Passed 3-1-05.)

   The following shall be prohibited in both the Protection Zone 1 and the Protection Zone 2 of the Source Water Protection Overlay District:

   (a)   Use of any Regulated Substance in violation of any local, state, or Federal law, statute, ordinance, rule or regulation.

   (b)   Use of any Regulated Substance not exempted in Section 1166.08.

   (c)   Mining of industrial minerals and extraction of petroleum products.

   (d)   Private water wells not exempted in Section 1166.08(a)(13).

   (e)   Underground storage tanks.

   (f)   Yard waste storage/composting greater than 250 square feet.

   (g)   Storage of road deicing chemicals outside or storage of road deicing chemicals inside in excess of 500 gallons or 4000 pounds.

   (h)   Subsurface floor area and structures where permanent ground water dewatering will be required. This may include, but is not limited to, basements, crawl spaces and underground parking. Where engineering or design measures are taken to eliminate the need for permanent dewatering, subsurface floor area and structures may be permitted provided the applicant submits a report from a Professional Engineer describing the measure, what it will do, and how it will be applied to the site, and further that such measures are approved by the City.

(Ord. 05-02A. Passed 3-1-05.)

   (a)   Exemptions: The following shall have limited exemption from the requirements of this Chapter. Any exemption shall not remove or limit the liability and responsibility of any person or activity.

      (1)   Regulated Substances that are gases at ambient temperatures.

      (2)   Materials present in an article.

      (3)   Regulated Substances used at a facility that are packaged in original consumer-use containers, provided that the aggregate inventory per facility at any one time does not exceed one gallon or eight pounds in Protection Zone 1 and two gallons or sixteen pounds in Protection Zone 2.

      (4)   Household, office, landscaping and maintenance/janitorial use of Regulated Substances, provided the aggregate inventory per facility at any one time does not exceed 55 gallons or 440 pounds in Protection Zone 1 and 110 gallons or 880 pounds in Protection Zone 2.

      (5)   Regulated Substances that are an integral component of and stored on individual vehicles or equipment that are used specifically and solely for the operation of the equipment in which the substances are contained.

      (6)   Sale or storage for sale of Regulated Substances packaged as consumer products in original containers when the aggregate quantity per facility at any one time does not exceed 250 gallons or 2000 pounds in Protection Zone 1 and 500 gallons or 4000 pounds in Protection Zone 2.

      (7)   Regulated Substances in use in laboratories that are under the supervision of a technically qualified individual, provided that the aggregate inventory per facility at any one time does not exceed 20 gallons or 160 pounds in Protection Zone 1 and 50 gallons or 400 pounds in Protection Zone 2.

      (8)   Regulated Substances which are agriculture chemicals to be used for routine on-site commercial agricultural operations or turfgrass maintenance, provided such quantities do not exceed a one year supply and the substances are stored in standard approved packaging and in a manner to prevent accidental spills; such substances shall be applied under the Best Management Practices such as indicated by soils tests, the OSU Cooperative Extension Service, the Soil and Water Conservation District and label directions approved by the United States Environmental Protection Agency and Ohio Department of Agriculture.

      (9)   Drinking water treatment or swimming pool chemicals.

      (10)   Construction materials associated with a permitted site provided such Regulated Substances do not present a real and present danger of causing contamination.

      (11)   Oils and fluids within electrical utility transformers/switches not containing PCBs. Siting of new transformers shall be such that any potential fluid leaks will be isolated from and not drain directly to a surface water drainage feature.

      (12)   Transportation of Regulated Substances to facilities in and through Protection Zone 1 and Protection Zone 2, provided that the transporting vehicle is in compliance with applicable City Ordinances and federal and Ohio laws and regulations and provided that the Regulated Substances are fueling the vehicle or the vehicle is in continuous transit, making a delivery, or is stopped for a period not to exceed twenty-four (24) hours.

      (13)   Dewatering wells used during the process of construction and private wells located in Protection Zone 2 for the sole purpose of recharging aesthetic ponds. Such private wells shall have a maximum pumping capacity of 50 gallons/minute, shall be registered by the well owner with the Water Utility Manager no later than thirty (30) days prior to the installation of the well, and shall upon written notification by the Water Utility Manager, discontinue operation during period of drought or other condition wherein the quantity or quality of the groundwater is at risk. Owner accepts all risk of any change in the water table and installs and operates such well(s) at owner’s sole risk.

      (14)   Existing uses preceding the adoption of this Chapter as provided in Section 1166.09.

   (b)   Request for Exemption: Regulated Substances that are not exempt, and pose no threat to the water supply, may be requested for exemption from the Water Utility Manager by supplying supporting documentation. The Water Utility Manager will maintain a list of so approved substances. It shall be the decision of the Water Utility Manager whether to exempt any Regulated Substances so requested for exemption.

   (c)   Underground Storage Tanks and their contents, in conjunction with uses having received Preliminary Development approval and not yet built as of the effective date of this section and which would otherwise be prohibited by this chapter, shall comply with the protection requirements outlined by OAC 1301:7-9-10 (underground storage tanks located within sensitive areas). The Planning Commission with the concurrence of the Water Utility Manager shall approve the quantities of substances to be stored and the appropriate protective measures. Said underground storage tanks shall thereafter be considered non-conforming and comply with Section 1166.09 of this Chapter.

   (d)   Exemptions, other than for Regulated Substances and those exemptions above, shall require the approval of the Planning Commission or Zoning Officer.

(Ord. 05-02A. Passed 3-1-05.)

   (a)   Pre-existing Uses: It is the intent of this section to allow nonconforming uses to continue, but not to encourage their survival. Uses that existed at the effective date of this section that would otherwise be prohibited by this Chapter, shall be permitted to continue at the level existing at the time of adoption of this Chapter provided the following are met.

      (1)   Owners, facility operators or occupants of nonconforming underground storage tanks and Regulated Substance uses shall register annually with the City Water Utility Manager per the requirements of Section 1166.09(c).

      (2)   Nonconforming uses shall adhere to all other current regulations.

      (3)   Nonconforming uses shall make reasonable precautions to prevent and contain a release of any Regulated Substance.

      (4)   Nonconforming uses shall not expand, extend or increase the prohibited uses beyond that which existed at the time of passage of this Chapter, unless rigorous protection measures are provided and approved by the Planning Commission.

      (5)   Underground Storage Tanks systems or parts thereof which are replaced or upgraded must comply with the requirements of OAC 1301:7-9-10 (Underground storage tanks located in sensitive areas) or convert to above ground storage tanks with secondary containment as approved by the Water Utility Manager in accordance with standards established by Federal, state and local regulations. A registered Professional Engineer shall certify that all replacement tanks systems are in compliance with applicable regulations.

      (6)   Nonconforming uses that are destroyed by any means to the extent of more than 50% of its replacement cost at the time of destruction shall not be reconstructed except in conformity with this Zoning Ordinance.

      (7)   Nonconforming uses that cease for any reason for a period of more than six months shall not be permitted to re-establish. Any subsequent use shall conform to the requirements of this Zoning Ordinance.

   (b)   The requirements of Chapter 1115 Nonconforming Uses shall be met. Where a conflict exists between this Chapter and Chapter 1115 Nonconforming Uses, this Chapter shall take precedence.

   (c)   Registering Nonconforming Uses: Underground storage tanks and regulated substance uses in existence prior to the adoption of this Chapter that otherwise would not be permitted under this Chapter, shall be registered with the Water Utility Manager within six (6) months of adoption of this Chapter. Thereafter, owners, facility operators or occupants of nonconforming uses shall register on an annual basis by February 15th of each year. Owners, facility operators or occupants of the above nonconforming uses shall submit to the Water Utility Manager the following:

      (1)   A report indicating all Regulated Substances used on the site in the previous year and for the upcoming year. For the previous year list, the applicant shall provide the maximum quantity of each Regulated Substance at any one time and the total quantity for the year. For the upcoming year list, the applicant shall provide the estimated maximum quantity of each Regulated Substance at any one time and the total estimated quantity for the year. Maximum quantities estimated shall not exceed the maximum amount at any one time in the three (3) years preceding the adoption of this Chapter or, if the use was established under Section 1166.08 (c), as stated in the Final Development Text. Owners, facility operators or occupants may be required to provide appropriate documentation of inventories to illustrate such maximum amounts. The Water Utility Manager has the authority to verify any documentation with the City of Westerville Fire Department, Franklin County Health Department, Delaware County Health Department, Ohio EPA, US EPA, manufacturing facility, or other such entity as deemed necessary.

      (2)   The purpose for any Regulated Substances that may be used on the site and how the materials will be handled, stored and disposed of.

      (3)   Material Safety Data Sheets.

      (4)   Any known prior releases of Regulated Substances to surface soil, subsoil, surface water and/or ground water and the corrective action taken.

      (5)   A physical description of the facility including a site plan and floor plan that clearly defines the location of the Regulated Substances, boundaries of the facility, buildings, and storage areas.

      (6)   Additional material, as deemed necessary by the Water Utility Manager, to accurately register the nonconforming use.

(Ord. 05-02A. Passed 3-1-05.)

   (a)   Application Requirements: Any development activity, including but not limited to new construction, reconstruction, addition, alteration, grading, demolition, or change of use or occupancy shall meet all of the appropriate application, review and approval procedures of this Zoning Ordinance. In addition to the stated application requirements of this Zoning Ordinance, applicants for Zoning Certificates, Site Plans, Preliminary Plans, Development Plans, Variances, and Conditional Use Permits in the Source Water Protection Overlay District shall provide the following:

      (1)   A description of the nature of the use planned.

      (2)   A statement regarding the use of Regulated Substances. Where Regulated Substances are to be used on the site, the applicants shall provide a list of such Regulated Substances (or hazardous materials) including the purpose for such materials, the amounts anticipated in any given one-year time period, the maximum amounts at any one time, and how the materials will be handled, stored and disposed of.

      (3)   Material Safety Data Sheets.

      (4)   A description of measures to be employed to protect surface water and ground water quality, quantity and aquifer recharge ability.

   (b)   Application Review: All applications for Zoning Certificates, Site Plans, Preliminary Plans, Development Plans, Variances, and Conditional Use Permits are reviewed and approved by the Zoning Officer or applicable reviewing Board per the requirements of this Zoning Ordinance. The Zoning Officer or applicable reviewing Board may request the review of any application by the Water Utility Manager to provide information regarding any Regulated Substances planned to be used on the site and any matters pertaining the City’s water system and the water supply, quality, quantity, and aquifer recharging ability.

   Where it is necessary for the City to hire an outside consultant to review, advise, and/or offer implementation recommendations on an application, the cost of the plan review shall be paid by the applicant in accordance with the fee schedule adopted and approved by City Council.

(Ord. 05-02A. Passed 3-1-05.)

   Applicants for any development activity are encouraged to incorporate design measures and best management practices into site planning activities and Regulated Substance containment plans for the purposes of protecting surface and groundwater quality and quantity, and for promoting aquifer recharge ability within the Source Water Protection Overlay District. Any measures proposed require the approval of the City and shall encourage the removal of pollutants from water before it reaches the ground water and/or surface water sources. Measures and procedures should be implemented to contain spills and immediately clean up spills.

   The measures most appropriate for a given site and the degree to which the measures promote source water protection should be carefully explored. Factors such as the soils, topography, water table, runoff potential, bedrock, type of development, size of the site, and others all contribute to the suitability of certain measures. A given site may need a combination of measures to be effective in protecting source water. Measures must be maintained in order for them to continue to be useful. Maintenance of site development measures is the responsibility of the property owner, facility operator or occupant and appropriate means shall be put in place to ensure such maintenance. Measures to protect the drinking water supply from contamination may include, but are not limited to:

   (a)   Limiting Impervious Cover: Measures beyond code requirements that limit the amount of land area covered by buildings, pavement and other impervious surfaces to reduce runoff, control erosion, and remove pollutants.

   (b)   Disconnection of Impervious Cover: Arranging a site to break up contiguous areas of impervious cover to promote aquifer recharge.

   (c)   Landscaping and Tree Preservation: Measures beyond code requirements that preserve existing trees and other vegetation in the natural state and incorporate landscaping treatments that will function to filter pollutants from water.

   (d)   Retention/Detention Ponds: Ponds intended to control runoff, settle solids and remove contaminants in storm water.

   (e)   Bioretention Areas: Areas designed to provide infiltration and plant uptake through temporarily storing, treating, and slowly releasing runoff to remove pollutants.

   (f)   Stormwater Wetlands: Constructed wetlands designed to treat storm water runoff, slow water flow, capture sediment, and remove pollutants.

   (g)   Filter Strips: Vegetated bands located between development and surface water designed to hold soils in place, allow infiltration, remove pollutants, and slow runoff water spreading it over the area reducing channelization. Applied in combination with other measures.

   (h)   Sand Filters: Devices where sheet flow runoff from impervious surfaces are directed into a grate where it collects in a sediment chamber allowing heavy sediments to settle. Water is then filtered through sand removing finer sediment particles before it is released.

   (i)   Grassed Swales: Shallow vegetated ditches that accept water sheet flow to reduce water runoff volume and speed, promote aquifer recharge, remove contaminants, prevent erosion, filter sediments, and provide nutrient uptake.

   (j)   Buffers: Areas of trees, shrubs and grasses (most desirably in their natural state) located along streams to reduce runoff, minimize erosion, and filter sediment and pollutants.

   (k)   Infiltration Devices: Devices designed to capture runoff and release it into the ground for infiltration and pollutant removal. They work best where runoff contains little debris and sediment.

   (l)   Green Roof Technology: A system allowing for plant growth on rooftops that assists in reducing runoff.

   (m)   Deed Restrictions/Easements: Designated restrictions that run with the land to prohibit development, removal of natural vegetation, or certain activities on all or portions of the property promoting water quality, quantity, and aquifer recharge ability.

   (n)   Alternative Paving: Pavement options that are porous, such as pavers and porous pavement, that may reduce the amount of runoff and provide pollutant removal, ground water recharge, and erosion control. In no case shall gravel be utilized for drives, walkways, or parking lots.

   (o)   Limiting Channelization: Measures to limit the need to channelize, pipe, or redirect natural drainage courses.

   (p)   Limiting Clearing, Grading and Land Disturbance: Measures to minimize the need to impact the natural landscape leaving it in its natural state.

   (q)   Containment Measures: Berms, catchment areas, and other containment measures designed to contain substances and prohibit spills and leaks of hazardous materials.

   (r)   Oil/Water Separators: Tanks that collect water from parking lots containing vehicle oils. They are designed to separate the oil, chemicals, and dirt from the water.

   (s)   On-Site Construction Practices: Measures employed during construction to prevent and/or control soil erosion and sedimentation during land clearing, grading, and construction activity. Measures applied to protect trees and natural vegetation. Containment of hazardous materials utilized for construction purposes. Appropriate storage of machinery and material.

   (t)   Chemical Applications: Measures to ensure Best Management Practices for proper application and handling of pesticides, herbicides, fertilizers, deicing materials and the like.

   (u)   Waterway Setback: Undeveloped and undisturbed land between the development and the surface waterway.

(Ord. 05-02A. Passed 3-1-05.)

   Subject to applicable provisions of law, the Zoning Officer or Water Utility Manager or their authorized designees, bearing proper identification, may request permission to enter private property with reasonable cause or prior notification for such purposes as inspection, observation, measurements, sampling and records examination pertaining to the requirements of this chapter. Information obtained as a result of such inspection shall be subject to the Ohio Public Records law. If the owner or tenant does not consent to the entry of the Zoning Officer or Water Utility Manager or their designees, the Zoning Officer or Water Utility Manager may apply to a court of competent jurisdiction for an appropriate warrant or other authority to enter said property.

(Ord. 05-02A. Passed 3-1-05.)

   (a)   Reporting: Any person having direct knowledge of any spill, leak or discharge of a Regulated Substance to pervious surfaces, ground water, storm sewer, and/or surface waters within the Source Water Protection Overlay District shall report said spill, leak or discharge to the City of Westerville Fire Department by telephone. Such report shall be made as immediately as possible but within one (1) hour of the incident and shall include the location, a contact name and telephone number, date and time, type of Regulated Substance(s) involved, concentration and volume, and control or corrective action(s) being taken. Such reporting shall not alleviate other local, state or Federal reporting obligations as may be required by law.

   (b)   Liability: Any person or entity who spills, leaks or discharges a Regulated Substance(s) shall be liable for the reasonable expense, loss or damage incurred by the City.

(Ord. 05-02A. Passed 3-1-05.)

   The administration and enforcement of this Chapter shall be as provided in Chapter 1107 Administration and Enforcement of this Zoning Ordinance.

(Ord. 05-02A. Passed 3-1-05.)