§ 155.225  STANDARDS AND PROCEDURES FOR SPECIAL USE PERMITS.
   (A)   Special permits.
      (1)   Application for a special permit to conduct a regulated activity shall be made in duplicate to the Beverly Shores Board of Zoning Appeals on forms furnished by that office. Permits shall ordinarily be valid for a period of 1 year from the date of issue and shall expire at the end of that time unless a longer period is specified by the Beverly Shores Board of Zoning Appeals upon issuance of the permit.
      (2)   An extension of an original permit may be granted upon written request to the Beverly Shores Board of Zoning Appeals by the original permit holder or the successor in title.
      (3)   The Beverly Shores Board of Zoning Appeals may require additional hearings if, in its judgment, the original intent of the permit is altered or extended by the renewal or if the applicant failed to abide by the terms of the original permit.
      (4)   The request for renewal of a permit shall follow the same form and procedure as the original application except that the Beverly Shores Board of Zoning Appeals shall have the option of not holding a hearing if the original intent of the permit is not altered or extended in any significant way.
   (B)   Permit applications.
      (1)   Unless the Beverly Shores Board of Zoning Appeals waives 1 or more of the following information requirements, applications for a special permit for a regulated activity shall include:
         (a)   The purposes of the project and an explanation of why the proposed activity requires a wetland location or access to wetlands, or cannot be located at other sites;
         (b)   A site plan drawn to scale showing the wetland boundary as determined by field survey, the width, depth and length of all existing and proposed structures, roads, watercourses and drainage ways; water, waste water and storm water facilities; utility installations within 200 feet of a wetland; and the relationship of the proposed activity and any potentially affected wetland to the entire parcel of land owned by the applicant;
         (c)   A description of the wetland or wetlands that will be affected by the regulated activity, including a sketch plan at the scale of 1 inch equals 10 feet for the wetland within 200 feet of the site; the area that may be filled or impacted, vegetation type; wetland water sources; and a general characterization of the habitat, wildlife and common plants;
         (d)   Soil types on the site and the exact locations and specifications for all proposed draining, filling, grading, dredging and vegetation removal, including the amounts and methods;
         (e)   Adjacent land use; and
         (f)   Elevations of the site and adjacent lands within 200 feet of the site at contour intervals of no greater than 5 feet.
      (2)   The Beverly Shores Board of Zoning Appeals may require additional information, including, but not limited to:
         (a)   Documentation and evidence of a wetland boundary determination by field survey;
         (b)   An assessment of wetland functional characteristics;
         (c)   Documentation of the ecological, aesthetic, economic or other values of a wetland;
         (d)   A study of flood, erosion or other hazards at the site;
         (e)   Evidence of any protective measures that might be taken to reduce those hazards; and
         (f)   Any other information deemed necessary to verify compliance with the provisions of this subchapter or to evaluate the proposed use in terms of the purposes of this subchapter.
      (3)   Any person who wants to know whether a proposed activity or an area is subject this subchapter may request in writing a determination from the Beverly Shores Board of Zoning Appeals. A request for determination shall contain plans, data and other information as may be specified by the Beverly Shores Board of Zoning Appeals.
      (4)   (a)   At the time of an application or request for determination, the applicant shall pay a filing fee specified by the Beverly Shores Board of Zoning Appeals.
         (b)   Filing fees, which may be amended from time to time by the Town Council, of up to $2,500 may be required to evaluate the application or request for determination.
         (c)   These fees may be used to retain expert consultants who will provide services pertaining to wetland boundary determinations, functional assessment and mitigation measures, as deemed necessary by the Beverly Shores Board of Zoning Appeals.
      (5)   Upon receipt of the completed application, the Beverly Shores Board of Zoning Appeals shall notify the individuals and agencies having jurisdiction over or an interest in the matter including the Army Corps of Engineers, the Environmental Protection Agency and the Indiana Department of Environmental Management to provide individuals and agencies an opportunity to comment.
      (6)   The Beverly Shores Board of Zoning Appeals shall establish a mailing list of all interested persons and agencies who wish to be notified of the applications.
   (C)   Public hearing and recommendations.
      (1)   No later than 60 days after receipt of the permit application and after at least 10 days advance notice of the hearing has been published in 2 newspapers in Porter County representing the 2 political parties receiving the highest number of votes in Beverly Shores in the last preceding election for the Secretary of State and posted at the Beverly Shores Town Hall and the Beverly Shores Post Office and mailed certified mail return receipt requested to the record owners of property within 300 feet of the applicant's property, the Beverly Shores Board of Zoning Appeals shall hold a public hearing on the application, unless the Beverly Shores Building Commissioner finds that the activity is so minor as to not affect the wetland and the Beverly Shores Board of Zoning Appeals concurs.
      (2)   (a)   All hearings shall be open to the public.
         (b)   Minutes of the hearing shall be made.
         (c)   The Beverly Shores Board of Zoning Appeals shall make the final determination on all special permit applications.
      (3)   Any person may present evidence and testimony at the hearing. At the hearing, the applicant shall have the burden of demonstrating that the proposed activity will be in accordance with the purposes of this subchapter and the standards set forth below.
   (D)   Standards for special permits. The Beverly Shores Board of Zoning Appeals, after according consideration to the comments of the general public, other affected municipalities and counties and federal and state agencies with jurisdiction over the area in question, shall issue a wetland permit only if it is found that the regulated activity is determined to be in the public interest in accordance with § 155.225(F) below and that the applicant has demonstrated by a preponderance of the evidence that the regulated activity:
      (1)   Is water-dependent or requires access to the wetland as a central element of its basic function, or is not water-dependent but has no practicable alternative;
      (2)   Will result in minimum feasible alteration or impairment to the wetland's functional characteristics and its existing contour, vegetation, fish and wildlife resources and hydrological conditions;
      (3)   Will not jeopardize the continued existence of species that appear on federal or state rare, threatened or endangered species lists;
      (4)   Will not cause significant degradation of groundwater or surface-water quality;
      (5)   Complies with all applicable state, local and federal laws, including those related to sediment control, pollution control, floodplain zoning and on-site waste water disposal;
      (6)   Will provide a wetland buffer area of not less than 25 feet between the wetland and upland activities for those portions of a regulated activity that need not be conducted in the wetland; and
      (7)   Complies with other standards contained in this subchapter, including those pertaining to wetland creation and restoration as required.
   (E)   Practicable alternative test.
      (1)   For all permit applications, an alternative site for the proposed activity shall be considered practicable if it is available and the proposed activity can be carried out on that site after taking into consideration costs, existing technology, infrastructure and logistics, in light of overall project purposes.
      (2)   There is no practicable alternative if the applicant demonstrates all of the following to the satisfaction of the Beverly Shores Board of Zoning Appeals:
         (a)   The basic purpose of the project cannot reasonably be accomplished using 1 or more other sites in the general region that would avoid or result in less adverse impact on a wetland;
         (b)   The basic purpose of the project cannot be accomplished by a reduction in the size, scope, configuration or density of the project as proposed or by changing the design of the project in a way that would avoid or result in fewer adverse effects on the wetland; and
         (c)   In cases where the applicant has rejected alternatives to the project as proposed due to constraints such as inadequate zoning, infrastructure or parcel size, the applicant has made reasonable attempts to remove or accommodate such constraints.
   (F)   Public interest test. In determining whether a proposed regulated activity in any wetland is in the public interest, the Beverly Shores Board of Zoning Appeals shall consider the following:
      (1)   The extent of the public need for the proposed activity;
      (2)   The extent and permanence of the beneficial or detrimental effects that the proposed regulated activity may have on the public and private uses for which the property is suited;
      (3)   The quality of the wetland that may be affected and the amount of wetland to be disturbed;
      (4)   The economic value of the proposed regulated activity to the general area; and
      (5)   The ecological value of the wetland and probable impact on public health and safety, fish, plants and wildlife.
   (G)   Special use permit conditions.
      (1)   The Beverly Shores Board of Zoning Appeals may attach conditions to the granting of a special use permit as deemed necessary to carry out the purposes of this subchapter.
      (2)   These conditions may include but are not limited to:
         (a)   Limitations on minimum lot size for any regulated activity;
         (b)   Requirements that structures be elevated on piles and otherwise protected against natural hazards;
         (c)   Modification of waste disposal and water supply facilities;
         (d)   Imposition of operational control, sureties and deed restrictions concerning future use and subdivision of lands, such as flood warnings, preservation of undeveloped areas in open space use and limitation of vegetation removal;
         (e)   Dedication of easements to protect wetlands;
         (f)   Establishment of vegetated buffer zones separating and protecting the wetland from proposed activities;
         (g)   Erosion control and storm water management measures;
         (h)   Setbacks for structures and restrictions on fill, deposit of soil and other activities in the wetland;
         (i)   Modification in project design to ensure continued water supply to the wetland and circulation of water;
         (j)   Creation or restoration of an area of wetland; and
         (j)   Development of a plan to guide actions involving the creation of a new wetland or the restoration of a damaged or degraded wetland.
      (3)   The Beverly Shores Board of Zoning Appeals may require a bond in an amount and with surety and conditions sufficient to secure compliance with the conditions and limitations set forth in the permit.
      (4)   The particular amount and the conditions of the bond shall be consistent with the purposes of this subchapter. In the event of a breach of any condition of any bond, the Beverly Shores Board of Zoning Appeals may institute an action in a court of competent jurisdiction upon the bond and prosecute the same to judgment and execution.
   (H)   Wetland restoration and creation.
      (1)   As a condition of a permit issued or as an enforcement action under this subchapter, the Beverly Shores Board of Zoning Appeals may require that the applicant engage in the restoration or creation of wetlands in order to offset, in whole or in part, the losses resulting from an applicant's or violator's actions.
      (2)   In making a determination of whether a like requirement will be imposed, and if so, the degree to which it would be required, the Beverly Shores Board of Zoning Appeals will consider the following:
         (a)   The long and short-term effects of the action upon the wetland and associated aquatic ecosystem, and the reversible or irreversible nature of the impairment or loss;
         (b)   The type and benefit of the wetland functions and associated resources lost;
         (c)   The type, size and location of the wetland altered, and the effect it may have upon the remaining system or watershed of which the wetland is a part;
         (d)   Observed or predicted trends with regard to the gains or losses of this type of wetland in the watershed, in light of natural and human processes;
         (e)   The cost and likely success of the possible compensation measures in relation to the magnitude of the proposed project or violation; and
         (f)   The degree to which the applicant has demonstrated a good-faith effort to incorporate measures to minimize and avoid wetland impacts within the proposed project.
      (3)   The applicant or violator may prepare or be required by the Beverly Shores Board of Zoning Appeals to develop a wetland restoration or creation plan for review and approval of the Beverly Shores Board of Zoning Appeals. The creation or restoration of wetlands shall not be an alternative to the standards set forth in division (D) above but shall be used only to compensate for unavoidable losses.
      (4)   The plan should state the location, by metes and bounds description, of the proposed site; ownership; size, type and complete ecological assessment (flora, fauna, hydrology, wetland functions and the like) of the wetland being restored or the area where a new wetland will be created; and the natural suitability of the proposed site for establishing the replacement wetland (i.e., water source and drainage patterns, topographic position, wildlife habitat opportunities, value of the existing area to be converted and the like).
      (5)   In addition, plane view and cross-sectional, scaled drawings; topographic survey data, including slope percentage and final grade elevations; and other technical information are required in sufficient detail to explain, illustrate and provide for:
         (a)   Soil and substrate conditions; topographic elevations; grading and excavation; erosion and sediment control needed for wetland construction and long-term survival;
         (b)   Planting plans specifying plant species types, quantities, locations, size, spacing or density; source of plant materials, propagules or seeds; timing, season, water and nutrient requirements for planting; and where appropriate, measures to protect plants from predation;
         (c)   Water-quality parameters, water source, water depths, water-control structures and water-level maintenance practices needed to achieve the necessary ambient water conditions and hydrocycle/hydroperiod characteristics;
         (d)   Mid-course corrections and a 3-year monitoring and replacement plan establishing responsibility for removal of exotic and nuisance vegetation and permanent establishment of the wetland system and all its component parts; and
         (e)   A demonstration of fiscal, administrative and technical competence of sufficient standing to successfully execute the overall project.
   (I)   Wetland restoration and creation alternatives.
      (1)   Ordinarily, the applicant or violator shall undertake restoration or creation efforts on or adjacent to the site where permanent losses have been sustained or where restoration of a former wetland is possible. Replication “in-kind” of the impacted wetland will be the preferred alternative for creation or restoration efforts.
      (2)   Where the applicant has demonstrated to the satisfaction of the Beverly Shores Board of Zoning Appeals that this approach is infeasible due to technical constraints, such as parcel or wetland size or wetland type, or that a wetland of a different type or location is strongly justified based on regional needs or the functional value of the impacted wetland, the Beverly Shores Board of Zoning Appeals may accept or recommend an alternative proposal.
      (3)   The proposal may involve monetary compensation as provided for in this section or the creation or restoration “out-of-kind” and “off site.”
      (4)   The Beverly Shores Board of Zoning Appeals shall set reasonable fees for compensation of wetland losses based upon the amount that would be required to perform on-site, in-kind restoration or creation.
      (5)   Where the Beverly Shores Board of Zoning Appeals determines that the public interest is better served, the Beverly Shores Board of Zoning Appeals may require a fee in lieu of direct action on behalf of the applicant or violator to initiate restoration or creation projects.
      (6)   The fees shall be held in escrow for the express use of wetland creation and restoration projects and shall not be commingled with other funds.
   (J)   Suspension; revocation.
      (1)   The Beverly Shores Board of Zoning Appeals may suspend or revoke a permit if it finds that the applicant has not complied with the conditions or limitations set forth in the permit or has exceeded the scope of the work set forth in the permit.
      (2)   The Beverly Shores Board of Zoning Appeals shall cause notice of its denial, issuance, conditional issuance, revocation or suspension of a permit to be published in a daily newspaper having a broad circulation in the area wherein the wetland lies.
(Ord. 208, passed 12-19-1983)