(a) Applications for variances to the provisions of this chapter shall be submitted to the Board of Zoning Appeals.
(b) The Board of Zoning Appeals may consult with representatives from the Cuyahoga SWCD; the Ohio Department of Natural Resources, Division of Natural Area; the Ohio Environmental Protection Agency, Division of Surface Water; the Army Corps of Engineers; the County of Cuyahoga Engineer; the Cuyahoga County Health Department or other technical experts at the expense of the applicant as necessary to consider variance requests.
(c) Expansions of structures or uses exceeding 50% of the footprint area are subject to the following subsection (c)(1) through (c)(4):
(1) The expansion conforms to the existing zoning regulations.
(2) The expansion must not impact the stream channel or the 100-year floodplain.
(3) The expansion of a structure or use must not affect upstream or downstream hydrologic conditions which could cause damage from flooding or streambank erosion to landowners in those areas. A hydrologic study must be completed by nonresidential applicants only, as a process of the variance application.
(4) The expansion requires the execution of a Chapter 1492 Variance Release and Waiver form by the applicant.
(d) Requests for variances for subdivisions will be considered for the following:
(1) An additional stream crossing or crossings for a subdivision or open space development which is necessary for the health, welfare and safety of the residents of the subdivision.
(2) A reduction of the setback width, not to exceed 10% of the prescribed setback width.
(e) No variances shall be granted for expansion of the following structures or uses:
(1) Facilities which use, store, distribute or sell petroleum-based products or any hazardous materials. Such facilities include, but are not limited to: asphalt plants, dry cleaners, gasoline service stations and road maintenance facilities.
(2) Facilities which use, store, distribute or sell products which may contribute higher than acceptable concentrations of dissolved or particulate matter to storm water runoff around the facility. Such facilities include, but are not limited to: landfills or transfer stations, junk yards, recycling facilities, quarries and borrow pits, sand and gravel extraction operations and road salt storage barns.
(f) In reviewing whether to grant variances, the Board of Zoning Appeals shall consider the following:
(1) 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 evidence as provided by the applicant and the agencies, at the applicant's expense, listed in subsections (a) through (e) hereof.
(2) The soil type and natural vegetation of the parcel as well as the percentage of the parcel that is in the 100-year floodplain. The criteria of the City's flood damage reduction regulations (Chapter 1466) may be used as guidance when granting variances in the 100-year floodplain.
(3) Varying the front, rear and side yard setbacks before the riparian and wetland setbacks are varied.
(4) 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 pavers and similar products) will do the job.
(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.
(7) A reduction in storm water infiltration into the soil on wetland areas will occur.
(8) The degree of hardship these regulations place on the applicant and the availability of alternatives to the proposed activity.
(9) A parcel existing at the time of passage of this section is made substantially unbuildable.
(10) A requested above-ground fence does not increase the existing area of mowed grass or lawn.
(11) Modifying parking requirements before varying the riparian setback.
(12) Modifying building shape, size or design to avoid or minimize intrusion into the riparian setback.
(13) In the case of a lot made substantially 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.
(14) Whether the variance will increase the likelihood for flood or erosion damage to either the applicant's property or to other properties.
(15) Culverting of watercourses should be avoided.
(16) 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.
(g) Any variances to the provisions of this chapter which are granted require the execution of a Chapter 1492 Variance Release and Waiver form by the applicant.
(h) When a variance is granted that results in a loss of riparian or wetland function, that loss must be mitigated according to the following:
(1) If the loss will result in increased flooding, stream bank erosion, or in-stream sedimentation, the loss shall be mitigated at the site or upstream of the site in the same watershed.
(2) If biological functions are the only loss, mitigation will occur upstream whenever feasible. If not, a downstream site will be sought. If no suitable mitigation sites can be found on the affected stream, a site located anywhere in the community shall be selected.
(3) All wetland setback losses must be mitigated upstream of the disturbed location.
(4) Mitigation or riparian and wetland setback losses shall consist of a minimum of 100% of the area disturbed by the variance granted.
(5) Mitigation of actual wetland losses shall be at the rate of 100% of the area lost by the variance granted.
(6) Mitigation of wetland setback losses can occur at any previously impacted site in the community or in an upstream tributary area outside of the community.
(7) Prior to granting any variance that results in a loss of riparian or wetland function or wetland setback area, the applicant must submit a statement that identifies all requested losses, an evaluation of mitigation needs and documentation of the planned mitigation to offset the losses; this statement will be submitted to Ohio EPA as part of the community's Annual Storm Water Program Report.
(8) Prior to granting any variance that results in a loss of riparian or wetland function or wetland setback area, the applicant must submit a statement that legally binds the applicant to complete, at his or her personal expense, any future mitigation, and to pay any penalties or fines that may be assessed or assigned to the community by any regulatory authority relative to the granting of any of the applicants requested variances under this section.
(9) Completion of all mitigation projects resulting from the granting of variances under this section shall be completed before any construction or maintenance guarantee for the project can be released.
(Ord. 05-172. Passed 12-5-05; Ord. 06-88. Passed 7-18-06; Ord. 07-102. Passed 7-1-08.)