1001.05 ESTABLISHMENT OF DESIGNATED WATERCOURSES, RIPARIAN, AND WETLAND SETBACKS.

   (a)   Designated watercourses shall include those watercourses meeting any ONE of the following criteria:

      (1)   All watercourses draining an area equal to or greater than one-half (1/2) square mile; or

      (2)   All watercourses draining an area less than one-half (1/2) square mile and having a defined bed and bank. In determining if watercourses have a defined bed and bank, the City may consult with a representative of the Cuyahoga County SWCD or other technical experts as necessary. Any costs associated with such consultations may be assessed to the applicant.

   (b)   Wetland and riparian setbacks on designated watercourses are established as follows:

      (1)   A minimum of one hundred and twenty (120) feet on either side of all watercourses draining an area equal to or greater than twenty(20) square miles and up to three hundred (300) square miles.

      (2)   A minimum of seventy five (75) feet on either side of all watercourses draining an area equal to or greater than one-half (1/2) square mile and up to twenty (20) square miles.

      (3)   A minimum of twenty five (25) feet on either side of all watercourses draining an area less than one-half (1/2) square mile and having a defined bed and bank as determined by the City in accordance with this regulation.

   (c)   For wetlands setbacks, no buildings, structures, or parking areas shall be located closer than:

      (1)   Fifty (50) feet from the outermost boundary of a category 3 wetland; or

      (2)   Thirty (30) feet from the outermost boundary of a category 2 wetland; and

      (3)   Where a wetland is wider than the minimum required 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 wetland, plus the following additional setback widths based upon the particular wetland category; and

      (4)   Wetlands shall be delineated through a site survey prepared by a qualified wetlands professional using delineation protocols accepted by the U.S. Army Corps of Engineers and Ohio EPA at the time an application is made.

   (d)   Wetland and Riparian Setback Guide Map. The City shall create a guide map identifying designated watercourses and their wetland and riparian setbacks. Said guide map is attached hereto and made part of this regulation and is identified as Exhibit A. The following shall apply to the Wetland and Riparian Setback Guide 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)   The map was prepared as a Wetland and Riparian Setback Guide Map by the City in accordance with Section 1001.05 of Chapter 1001. Digital data is a representation of recorded plats, surveys, deeds, and other collected information for use within a Geographic Information System for purposes of analysis. These and other digital data do not replace or modify land surveys, deeds, and/or other legal instruments defining land ownership or use. The City assumes no legal responsibility for this information.

      (4)   Nothing herein shall prevent the City from amending the Wetland and Riparian Setback Guide Map from time to time as may be necessary.

      (5)   If any discrepancy is found between the Wetland and Riparian Setback Guide Map and this regulation, the criteria set forth in Section 1001.05(a) and (b) shall prevail.

   (e)   The following conditions shall apply in wetland and riparian setbacks:

      (1)   Wetland and riparian setbacks shall be measured in a horizontal direction outward from the ordinary high water mark of each designated watercourse, except for in-line ponds as addressed in Section 1001.05.

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

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

      (4)   Where a wetland is identified within a minimum wetland and riparian setback, the minimum wetland and riparian setback width shall be extended to 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 regulation. Any costs associated with reviewing these delineations may be assessed by the City to the applicant.

      (5)   The minimum wetland and 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. Wetland and 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 Section 1001.05. The creation of new in-line impoundments shall not be permitted under these regulations.

         (Ord.  2020-56.  Passed 4-20-20.)

1001.06 APPLICATIONS AND SITE PLANS.

   (a)   The applicant shall be responsible for delineating wetland and riparian setbacks as required by this regulation and shall identify such setbacks on any Site Development Plan included with all subdivision plans, land development plans, and/or zoning/building permit applications submitted to the City. The Site Development Plan shall be prepared by a professional engineer, surveyor, landscape architect, or such other qualified professional as determined by the City and shall be based on a survey of the affected land. Two (2) copies of the Site Development Plan shall be submitted. The Site Development Plan 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 wetland and riparian setbacks.

      (4)   The existing topography at intervals of two (2) 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 regulation.

   (b)   The City may, in reviewing the Site Development Plan, consult with the Cuyahoga 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 fifty (50) feet of the outer boundary of the applicable wetland and riparian setback as specified in this regulation, the wetland and riparian setback shall be clearly identified by the applicant on site with construction fencing as shown on the Site Development 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 wetland nd riparian setbacks on the affected land in conformance with this regulation.

(Ord.  2020-56.  Passed 4-20-20.)

1001.07 USES PERMITTED IN WETLAND AND RIPARIAN SETBACKS.

   (a)   By Right Uses Without a Permit. Open space uses that are passive in character shall be permitted in wetland and riparian setbacks, including, but not limited to, those listed in this regulation. No use permitted under this regulation 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. Wetland and riparian setbacks may be revegetated and/or reforested with native, noninvasive plant species.

   (b)   By Conditional Use Permit Granted by the Commission: When granting Conditional Use Permits for the following uses, the Commission may, for good cause, attach such conditions as it deems appropriate. Permits issued under this regulation are issued to the applicant only, shall not be transferred, and shall be void if not implemented within one (1) year of issuance.

      (1)   Crossings: Crossings of designated watercourses through wetland and riparian setbacks with roads, driveways, easements, bridges, culverts, utility service lines, or other means may be permitted provided such crossings minimize disturbance in wetland and riparian setbacks and mitigate any necessary disturbances. Such crossings shall only be undertaken upon approval of a Crossing Plan by the Commission. Any costs associated with review of Crossing Plans may be assessed to the applicant.

If work will occur 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 also be provided to the City. Proof of compliance shall be the following:

         A.   A Site Development Plan showing that any proposed crossing conforms to the general and special conditions of the applicable Nationwide Permit, or

         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 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 City.  Proof of compliance shall be the following:

         A.   A Site Development Plan showing that any proposed stabilization conforms to the general and special conditions of the applicable Nationwide Permit, or

         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.

      (3)   Landscaping:   The removal of natural vegetation within a wetland and 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 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 wetland and riparian setback larger than nine (9) inches in caliper (diameter) as measured fifty-four (54) inches above the ground to the maximum extent practicable.

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

            (Ord.  2020-56.  Passed 4-20-20.)

1001.08 USES PROHIBITED IN WETLAND AND WETLAND AND RIPARIAN SETBACKS.

   Any use not authorized under this regulation shall be prohibited in wetland and 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 regulation.

   (c)   Fences and Walls: There shall be no fences or walls, except as permitted under this regulation.

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

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

      (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 this regulation.

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

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

   (g)   New Surface and/or Subsurface Sewage Disposal or Treatment Areas. Wetland and riparian setbacks shall not be used for the disposal or treatment of sewage, except as necessary to repair or replace an existing home sewage disposal system and in accordance with recommendations of the Cuyahoga County Board of Health.

      (Ord. 2020-56.  Passed 4-20-20.)

1001.09 NON-CONFORMING STRUCTURES OR USES IN WETLAND AND RIPARIAN SETBACKS.

   (a)   A non-conforming use, existing at the time of passage of this regulation and within a wetland or 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 structure, existing at the time of passage of this regulation and within a wetland or riparian setback, that is not permitted under this regulation 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 regulation and within a wetland or riparian setback, that has substantial damage and that is discontinued, terminated, or abandoned for a period of six (6) months or more may not be revived, restored, or re-established.    (Ord.  2020-56.  Passed 4-20-20.)

1001.10 VARIANCES WITHIN WETLAND AND RIPARIAN SETBACKS.

   (a)   The 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 wetland and riparian setback as established in this regulation, such as to justify the granting of a variance, the Commission shall consider the potential harm or reduction in riparian functions that may be caused by a proposed structure or use.

      (2)   The 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 (1) year of the date of issuance.

   (b)   In making a determination under Section 1001.10(a) of this regulation, the 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 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 wetland and 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 wetland and riparian setback as established in 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 wetland and 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 wetland and riparian setback compromises its benefits to the City. Variances should not be granted for asphalt or concrete paving in the wetland and 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 regulation.

   (c)   In order to maintain the wetland and riparian setback to the maximum extent practicable, the Commission may consider granting variances to other area or setback requirements imposed on a property by the Zoning Code. These may include, but are not limited to, parking requirements, requirements for the shape, size, or design of buildings, or front, rear, or side lot setbacks.

   (d)   In granting a variance under this regulation, the Commission, for good cause, may impose such conditions that it deems appropriate to maintain the purposes of this regulation and to mitigate any necessary impacts in the wetland and riparian setbacks permitted by variance. In determining appropriate mitigation, the Commission may consult with the Engineer or other agencies including the Cuyahoga County SWCD.

(Ord.  2020-56.  Passed 4-20-20.)

1001.11 PROCEDURES FOR VARIANCES AND APPEALS.

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

      (1)   When filing an application for an appeal of an administrative decision, the applicant shall file a written notice of appeal specifying the grounds therefor with the administrative official within twenty (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 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 fourteen (14) days prior to a regularly scheduled meeting of the 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 Commission.

      (3)   Applications for appeals or variances made under this regulation shall contain all of 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.

         G.   Names and addresses of each property owner within five hundred (500) feet as shown in the current records of the Cuyahoga Auditor typed on gummed labels.

      (4)   Applications for variances or appeals of administrative decisions shall not be resubmitted to the Commission within one (1) year of the date of a final decision by the Commission on the original application, unless the applicant shows the 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 Commission in response to an application for a variance request or an appeal of an administrative decision filed pursuant to this regulation shall be final.

(Ord.  2020-56.  Passed 4-20-20.)