(a) The Community 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 Community shall consider the potential harm or reduction in riparian and/or wetland area functions that may be caused by a proposed structure or use. The Board of Zoning and Building Appeals may consult with representatives from the Portage SWCD; the Ohio Department of Natural Resources, Division of Natural Areas; the Ohio Environmental Protection Agency, Division of Surface Water; the County Engineer; the Portage County Water Resource Department; the Portage County Health Department; or other technical experts as necessary to consider variance requests.
(b) Expansions of residential structures or uses exceeding 15% of the footprint area and expansions of all non-residential structures or uses are subject to provisions (1) through (4) below:
(1) The expansion conforms to the existing zoning regulations.
(2) The expansion must not impact the stream channel, wetlands or the 100-year floodplain.
(3) The expansion of a non-residential structure or use must not affect upstream or downstream hydrologic conditions which could cause damage from flooding or stream bank erosion to landowners in those areas. The hydrologic study must be completed by non-residential applicants only as a process of the variance application.
(4) The expansion of a non-residential structure or use will not exceed 25% of the footprint area. The 25% expansion limit is per the portion of the structure or use that lies within the Riparian Setback.
(c) 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 Riparian Setback width.
(d) 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 services, 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.
(e) In making a variance determination, the Community 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 pavers, and similar products) will do the job.
(f) In making a variance determination, the Community 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 100-year floodplain. The criteria of the Community's flood damage prevention regulations may be used as guidance when granting variances in the 100-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 Community.
(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 flooding 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 functions of the riparian zone.
(g) 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 losses must be mitigated upstream of the disturbed locations.
(4) Mitigation or riparian and wetland setback losses shall consist of a minimum of 150% of the area disturbed by the variance granted.
(5) Mitigation of actual wetland losses shall be at the rate of 150% 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 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 at 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 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 ordinance.
(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. 2009-73. Passed 6-22-09.)