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920.10 USES PERMITTED IN RIPARIAN AND WETLAND SETBACKS.
   (a)   By-Right Uses Without A Permit. Open space uses that are passive in character shall be permitted in riparian and wetland setbacks, including, but not limited to, those listed in this chapter. No use permitted under this chapter shall be construed as allowing public trespass on privately held lands.
      (1)   Recreational Activity. Passive recreational uses, as permitted by federal, state, and local laws, such as hiking, fishing, hunting, picnicking, and similar uses.
      (2)   Removal of Damaged or Diseased Trees. Damaged or diseased trees may be removed.
      (3)   Re-vegetation and/or Reforestation. Riparian and wetland setbacks may be revegetated with non-invasive plant species.
      (4)   Maintenance of lawns, gardens and landscaping. Lawns, gardens and landscaping, which existed at the time Ordinance 9472-2008 was passed, may be maintained as long as they are not increased in size.
   (b)   By-Right Uses With A Permit.
      (1)   Selective Harvesting of Timber. Selective harvesting of timber may be allowed upon presentation of a forest management and harvest plan prepared by a qualified forester and accepted by the City of Brook Park Engineer.
         A.   Any landowner harvesting timber for sale shall post a one-thousand dollar ($1,000.00) performance guarantee with the City of Brook Park. This performance guarantee shall be in the form of a security bond, escrow account, certified check or cash, and it shall be held until completion of the timber-harvesting operation.
         B.   Due to the potential for felled logs and branches to damage downstream properties and/or to block ditches or otherwise exacerbate flooding, logs or branches resulting from permitted selective harvesting that are greater than six inches in diameter at the cut end shall be cut into sections no longer than six feet or removed from the one- hundred-year floodplain. Harvested trees or felled logs and branches that are part of a designed and approved streambank stabilization and erosion control measure shall be allowed to remain in a designated watercourse.
         C.   The forest management and harvest plan must:
            1.   Show that the site will be adequately stocked after the approved selective harvest. "Adequately stocked" shall be defined as the residual stocking level greater than the B-Level on the Allegheny Hardwood Stocking Guide produced by the United States Forest Service, or other United States Forest Service stocking guides as dictated by the forest community to be harvested.
            2.   Show that trees located less than twenty-five feet from the ordinary high water mark will not be impacted by the proposed harvesting.
            3.   Include a map of the site. This map shall specify the location of any skid and haul roads required for transporting harvested trees and fire wood from riparian and wetland setbacks.
            4.   Include the method to be used to transport harvested trees from riparian and wetland setbacks.
            5.   Specify the erosion control Best Management Practices that will be employed during and after the proposed harvest. These erosion control practices shall be in conformance with the Ohio Department of Natural Resources, Division of Forestry's BMPs for Erosion Control on Logging Jobs in Ohio.
            6.   Provide the US Army Corps of Engineers and the Ohio EPA Wetland and Stream protection permit numbers and the associated permit requirements.
      (2)   Streambank Stabilization and Erosion Control Measures. Streambank stabilization and erosion control measures may be allowed provided that such measures are ecologically compatible and substantially utilize natural materials and native plant species where practical. The streambank stabilization and erosion control measures shall only be undertaken upon approval of a soil erosion and sediment control plan by the City of Brook Park.
      (3)   Crossings. Crossings of designated watercourses and through riparian setbacks by publicly and privately owned roads, drives, sewer and/or water lines and public and private utility transmission lines shall only be allowed upon approval of a crossing plan by the City of Brook Park Engineer. Such crossings shall minimize disturbance in riparian setbacks watercourse substrate and shall mitigate any necessary disturbances. Soil erosive materials will not be used in making stream crossings.
      (4)   Construction of Fencing. Construction of fencing shall be allowed with the condition that reasonable efforts be taken to minimize the destruction of existing vegetation, provided that the fence does not impede stream or flood flow, and the distributed area is replanted to the natural or preexisting conditions before the addition of the fence, as approved by the City of Brook Park Engineer.
(Ord. 9472-2008. Passed 5-20-08.)
920.11 USES PROHIBITED IN RIPARIAN AND WETLAND SETBACKS.
   Any use not authorized under these regulations shall be prohibited in riparian and wetland 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 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 non-commercial composting of uncontaminated natural materials, and except as permitted under the uses permitted in riparian and wetland setbacks section of this chapter.
   (c)   Roads or Driveways. There shall be no roads or driveways permitted in riparian and/or wetland setback area, except as permitted under the uses permitted in riparian and wetland setbacks section of this chapter. There shall be no roads or driveways or roads permitted in wetlands or watercourses without a permit issued by the US Army Corps of Engineers and/or the Ohio EPA.
   (d)   Motorized Vehicles. There shall be no use of motorized vehicles, except as permitted under the uses permitted in riparian and wetland setbacks section of this chapter.
   (e)   Disturbance of Natural Vegetation. There shall be no disturbance, including mowing, of the natural vegetation, except for such conservation maintenance that the landowner deems necessary to control noxious weeds; for such plantings as are consistent with this regulation; for such disturbances as are approved under the uses permitted in riparian and wetland setbacks section of this chapter; and for the passive enjoyment, access, and maintenance of landscaping or lawns existing at the time of passage of this chapter. Nothing in this chapter shall be construed as requiring a landowner to plant or undertake any other activities in riparian and wetland setbacks.
   (f)   Parking Lots. There shall be no parking lots or other human-made impervious cover, except as permitted under the uses permitted in riparian and wetland setbacks section of these regulations.
   (g)   New Surface and/or Subsurface Sewage Disposal or Treatment Areas. Riparian and wetland setbacks shall not be used for the disposal or treatment of sewage except in accordance with local county Board of Health regulations in effect at the time of application of this chapter.
   (h)   Crossings. Crossings of designated riparian and wetland setbacks by publicly and privately owned sewer and/or water lines and small public and small private utility transmission lines without a permit issued by the US Army Corps of Engineers and/or the Ohio EPA.
(Ord. 9472-2008. Passed 5-20-08.)
920.12 NON-CONFORMING STRUCTURES OR USES IN RIPARIAN AND WETLAND SETBACKS.
   (a)   A non-conforming use within a riparian and wetland setback which is in existence at the time of passage of this chapter, and which is not otherwise permitted under this chapter, may be continued. However, the use shall not be changed or enlarged unless it is changed to a use permitted under these regulations.
   (b)   A non-conforming structure within a riparian and wetland setback which is in existence at the time of passage of this chapter, and which is not otherwise permitted under these regulations, may be continued. However, the existing building footprint or roof line may not be expanded or enlarged in such a way that would move the structure closer to the stream or wetland.
   (c)   A non-conforming structure or use or deteriorated structure within a riparian and wetland setback which is in existence at the time of passage of this chapter, and which is discontinued, terminated, or abandoned for a period of six months or more, may not be revived, restored, or reestablished. This section shall also not prohibit ordinary repairs to a residence or residential accessory building that are not in conflict with other provisions in this chapter.
   (d)   A non-conforming structure or use that is discontinued may be resumed any time within six months from such discontinuance but not thereafter. No change or resumption shall be permitted that is more detrimental to riparian and wetland setbacks, as measured against the intent and objectives of these regulations as determined by the City of Brook Park, than the existing or former non-conforming structure or use.
   (e)   In the case of a non-conforming structure within a riparian or wetland setback, the City of Brook Park will allow a ten-foot maintenance access zone measured perpendicular to the structure, to temporarily extend further into the setback as long as disturbance to existing vegetation is minimized and vegetation is restored to the pre-existing state, as near as practical, upon completion. If any soil disturbance in a wetland will occur as part of any such maintenance activity, a permit from the U.S. Army Corps of Engineers or the Ohio EPA, as appropriate, must be submitted prior to onset of the soil disturbing activity.
   (f)   In the case of a non-conforming structure, the City of Brook Park Engineer may allow minor upgrades to the structure that extend further into the riparian setback, such as awnings and pervious decks/patios, provided the modifications do not extend more than ten feet further toward the watercourse than the original foundation of the structure existing at the time of passage of this regulation, and further provided that the modification will not impair the function of the riparian zone nor destabilize any slope nor stream bank, as determined by the City of Brook Park Engineer.
(Ord. 9472-2008. Passed 5-20-08.)
920.13 VARIANCES WITHIN RIPARIAN AND WETLAND SETBACKS.
   (a)   The City of Brook Park may grant a variance from this regulation as provided herein. In determining whether there is unnecessary hardship or practical difficulty such as to justify the granting of a variance, the City of Brook Park shall consider the potential harm or reduction in riparian and/or wetland area functions that may be caused by a proposed structure or use.
   (b)   In making a variance determination, the City of Brook Park shall consider the following:
      (1)   Varying the front, rear and side yard setback before the riparian and wetland setbacks are varied.
      (2)   Variances should not be granted for asphalt or concrete paving in the riparian and wetland setbacks in any situation where gravel or porous pavement (i.e., porous payers, and similar products) will do the job.
   (c)   In making a variance determination, the City of Brook Park may consider the following:
      (1)   A parcel existing at the time of passage of this chapter is made unbuildable.
      (2)   The soil type natural vegetation of the parcel, as well as the percentage of the parcel that is in the one-hundred-year floodplain. The criteria of the City of Brook Park's flood damage prevention regulations may be used as guidance when granting variances in the one-hundred-year floodplain.
      (3)   The extent to which the requested variance impairs the flood control, soil erosion control, sediment control, water quality protection, or other functions of the riparian and/or wetland area. This determination shall be based on sufficient technical and scientific data.
      (4)   The degree of hardship this regulation places on the landowner, and the availability of alternatives to the proposed activity.
      (5)   Soil disturbing activities permitted in a riparian and/or wetland setback through variances should be implemented in order to minimize clearing to the extent possible, and to include Best Management Practices necessary to minimize soil erosion and maximize sediment control.
      (6)   The presence of significant impervious cover, or smooth vegetation such as maintained lawns, in riparian setback areas compromises their benefits to the City of Brook Park.
      (7)   A reduction in storm water infiltration into the soil in wetland areas will occur.
      (8)   A requested above ground fence does not increase the existing area of mowed grass or lawn.
      (9)   Modifying parking requirements before varying the riparian setback.
      (10)   Modifying building shape, size or design to avoid or minimize intrusion into the riparian setback.
      (11)   In the case of a lot made unbuildable by this regulation, consider the minimum variance needed to make it buildable for an appropriately sized and compatibly designed structure, while following the guidance provided in this section.
      (12)   Whether the variance will increase the likelihood for flood or erosion damage to either the applicant's property or to other properties.
      (13)   Culverting of watercourses should be avoided.
      (14)   Whether the variance will result in the need for artificial slope or bank stabilization measures that could interfere with the function of the riparian zone.
(Ord. 9472-2008. Passed 5-20-08.)
920.14 BOUNDARY INTERPRETATION AND APPEALS PROCEDURE.
   (a)   When an applicant or his or her designated representative disputes the boundary of a riparian or wetland setback or the ordinary high water mark of a watercourse, the applicant or his or her designated representative shall submit documentation to the City of Brook Park which describes the boundary, the applicant's proposed boundary, and justification for the proposed boundary change.
   (b)   The City of Brook Park shall evaluate this documentation and shall make a written determination within a reasonable period of time, not to exceed sixty days, a copy of which shall be submitted to the applicant. If during this evaluation the City of Brook Park requires further information, it may be required of the applicant. In the event that the City of Brook Park requests such additional information, the sixty-day limit on the City of Brook Park's review shall be postponed until the applicant provides such information.
   (c)   Any party aggrieved by any wetland or riparian setback determination under this regulation may appeal to the Board of Zoning Appeals.
(Ord. 9472-2008. Passed 5-20-08.)
920.15 INSPECTION OF RIPARIAN AND WETLAND SETBACK.
   The delineation of riparian and/or wetland setbacks shall be inspected by the City of Brook Park, as follows:
   (a)   Prior to any soil disturbing activities authorized by the City of Brook Park under for a subdivision/property/parcel split, land development plan, and/or building permit. The applicant or his or her designated representative shall provide the City of Brook Park with at least five working days notice prior to starting soil disturbing or land clearing activities.
   (b)   Prior to starting any of the activities authorized by the City of Brook Park under the uses permitted in riparian and wetland setbacks section of these regulations, the applicant or his or her designated representative shall provide the City of Brook Park with at least five working days notice prior to starting such activities.
   (c)   Any time evidence is brought to the attention of the City of Brook Park that uses or structures are occurring that may reasonably be expected to violate the provisions of these regulations.
(Ord. 9472-2008. Passed 5-20-08.)
920.16 VIOLATIONS.
   No person shall violate, or cause, or knowingly permit to be violated, any of the provisions of this chapter, or fail to comply with any such provisions or with any lawful requirements of any public authority made pursuant to this chapter, or knowingly use or cause or permit the use of any lands in violation of this chapter or in violation of any permit granted under this chapter.
(Ord. 9472-2008. Passed 5-20-08.)
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