(a) The requirements of this subsection shall apply to Riparian Buffers in the City, which shall be provided and maintained in accordance with the United States Department of Agriculture’s Chesapeake Bay Riparian Handbook: A Guide for Establishing and Maintaining Riparian Forest Buffers 6, which is hereby adopted by reference. Additional requirements for protecting Riparian Buffers are as follows:
6 Roxane Palone and Albert Todd, Chesapeake Bay Riparian Handbook: A Guide for Establishing and maintaining Riparian Forest Buffers (Washington, D.C.: U.S. Department of Agriculture, Forest Service, 1998), available online at https://www.chesapeakebay.net/content/publications/cbp_13019.pdf
(1) All lands within a Riparian Buffer shall be left in an undisturbed, vegetated condition, except that removal of dead trees or trees of immediate threat to human safety, as well as reasonable pruning of existing trees, is permitted.
(2) The creation of new lawn areas within Riparian Buffers is not permitted. Property Owners already encroaching on the Riparian Buffer are encouraged to return mowed areas to their naturally vegetated state. Supplemental planting with appropriate native vegetation to restore and enhance the effective filtering and bank Stabilization functions of a Riparian Buffer is encouraged.
(3) Any areas within a Riparian Buffer that are not vegetated or that are disturbed during construction shall be seeded with a naturalized mix of grasses rather than standard lawn grass.
(4) Permitted Uses. The following activities are permitted within a Riparian Buffer:
A. The control of non-native species of nuisance plants including Eurasian milfoil, water chestnut, purple loosestrife and reed grass (Phragmites), where such control is by hand pulling of invasive plants;
B. Buffer re-establishment projects that use “soft” techniques such as tree revetments and root wads; and
C. Encroachments necessary to rectify a natural catastrophe for the protection of the public health, safety and welfare. All Stream encroachment activities shall be authorized and permitted under the West Virginia Department of Environmental Protection.
(5) Special Exception Uses. The Board of Zoning Appeals may authorize the following as Special Exception Uses within Riparian Buffers subject to the standards and conditions enumerated for each Use and subject to the jurisdiction of the Department of Environmental Protection and Army Corps of Engineers:
A. Clearing of vegetation and filling or excavating of earth materials, only to the extent directly necessitated for the construction or safe operation of a Special Exception Use on the same property and where the Board of Zoning Appeals finds that:
1. There is no practical alternative to the Clearing, filling or excavating within the Riparian Buffer; and
2. The purposes of these regulations will be protected through erosion controls, plantings, protection of existing vegetation, and/or other measures.
B. Encroachments necessary for providing for or improving public facilities where the Board of Zoning Appeals finds that:
1. There is no practical alternative to the Clearing, filling or excavating within the Riparian Buffer; and
2. The purposes of these regulations will be protected through erosion controls, plantings, protection of existing vegetation, and/or other measures.
C. Unpaved footpaths for the purpose of public recreation located at least ten (10) feet horizontal distance measured from the Top of Slope, where the channel runs adjacent to a valley wall or high terrace, or Top of Bank, where the channel has access to its Flood Plain.
D. Paved paths for the purpose of public recreation located at least fifty (50) feet horizontal distance measured from the Top of Slope, where the channel runs adjacent to a valley wall or high terrace, or Top of Bank, where the channel has access to its Flood Plain. Access points are allowed but shall be limited to areas where the Stream or river channel is already confined and/or permanently constrained.
E. Stormwater treatment facilities meeting the stormwater treatment practices specified herein where the City Engineer/Planning Director or designee find that:
1. There is no practical alternative to the Clearing, filling or excavating within the Riparian Buffer;
2. The purposes of these regulations will be protected through erosion controls, plantings, protection of existing vegetation, and/or other measures; and
3. Evidence of an approved permit from the West Virginia Department of Environmental Protection for coverage under the applicable permitting requirements shall be required to meet this criterion for encroachment into a Riparian Buffer;
F. Roadways or Access Drives for purposes of crossing a Riparian Buffer to gain access to land on the opposite side of the buffer, or for purposes of providing safe access to an approved Use, in cases where there is no feasible alternative for providing safe access. A roadway crossing or Access Drive shall occur at a right angle to the Stream Channel.
G. Public utility easements to the extent necessary to cross or encroach into the Riparian Buffer where there is no feasible alternative for providing or extending utility services.
H. Outdoor recreation and education facilities provided that any Building or Structure (including parking and Driveways) associated with such Use is located outside the Riparian Buffer.
I. Stream restoration projects, including dam removals, in accordance with a plan approved by the West Virginia Department of Environmental Protection.
(6) Expansion of Legally Nonconforming Uses within Riparian Buffers. Notwithstanding the nonconforming Use provisions of subsection (a)(5)H. above, any Building, Structure, or land, or Use thereof, in or upon a Riparian Buffer, which is made nonconforming by reason of the adoption of these regulations, may be expanded or reconstructed, subject to the following provisions:
A. The Structure to be expanded or reconstructed was originally constructed prior to the effective date of these regulations;
B. The Legally Nonconforming Use shall not be changed to another nonconforming Use;
C. A Legally Nonconforming Use that is discontinued for one year or otherwise abandoned shall not be resumed;
D. A Legally Nonconforming Use that is replaced by a conforming Use may not revert to a nonconforming Use;
E. If a Structure made nonconforming by reason of the adoption of this Ordinance is damaged or destroyed over fifty percent (50%) of its market value by flood water inundation or fluvial erosion, the Structure shall not be rebuilt within the Riparian Buffer unless a variance and Use and Occupancy Permit are obtained in accordance with this Ordinance;
F. Enlargement, repair or reconstruction of pre-existing Structures within Riparian Buffers shall be permitted if the City Planning Commission determines that the development activity will not decrease the existing Structure setback from the waterbody or increase the encroachment within the Riparian Buffer, and the total Building footprint area of the expanded or reconstructed Structure is no more than fifty percent (50%) larger than the footprint of the Structure lawfully existing on or before the effective date of these regulations; and
G. New Accessory Structures appurtenant to a pre-existing Structure within a Riparian Buffer shall only be permitted if it is determined that the Accessory Structures do not extend into the buffer any further than the existing Structure and the total Building footprint area of the new Accessory Structure is no more than fifty percent (50%) of the footprint of the pre-existing Structure.
(Ord. 2021-07. Passed 7-21-21.)