(1) Purpose
It is the purpose of the WP Well Field Protection Overlay District to safeguard the public health, safety and welfare of the customers of protected public water supplies and to protect the community's potable water supply against contamination by regulating land use and the storage, handling, use and/or production of regulated substances as defined in § 154.14(B). The land within the overlay district is that land in the city that lies within a one-year travel time contour adjacent to existing and proposed public wells of a protected public water supply.
(2) Applicability
(a) The provisions of this section shall be applicable to all lands shown as being located within the boundaries of the Well Field Protection Overlay District on the zoning map and shall be supplemental to the regulations of the underlying zoning district.
(b) It shall be the responsibility of any person owning real property and/or owning or operating a business within the city to make a determination of the applicability of this section as it pertains to that property and/or business, and failure to do so shall not excuse any violations of this section.
(3) Allowed Uses
(a) The permitted principal (including permitted with standards), accessory, and temporary uses within WP shall be controlled by the underlying base zoning district with exceptions as established in this section.
(b) The special uses within WP shall be controlled by the underlying base zoning district with exceptions as established in this section.
(c) Soil and mineral extraction activities for resale shall remain a special use in the WP District subject to § 154.04(G)(31) and Planning Board approval of an excavation and facilities plan that includes, but is not limited to:
(i) An existing site plan with topographic detail at 2-foot contour intervals, all planimetric information, depth to groundwater, and flood plain characteristics where applicable;
(ii) The proposed extent and depth of excavations;
(iii) Slope angle of excavation walls (any final slopes shall be at the angle of repose for the remaining material);
(iv) Use and disposition of the spoil and/or overburden materials from the excavations, including a landscaping and vegetation plan to stabilize any disturbed material;
(v) Surface drainage plan:
A. Drainage into on-site excavations from proximate off-site transportation facilities such as roadways and roadbeds and off-site watercourses is prohibited unless the applicant provides a plan which otherwise protects the excavations from off-site waterborne regulated substances.
B. The final on-site grading shall minimize all surface drainage into the excavations.
(vi) A post-excavation and operation land use plan; and
(vii) A security plan (unauthorized access shall be strictly prohibited as long as any excavations remain on site).
(4) Prohibited Uses
Sanitary landfills, dry wells, landfills comprised of demolition debris or other non-approved matter, and junk yards are prohibited in the WP District.
(5) Site Development Standards
The site development standards shall be as established for the underlying base zoning district.
(6) Standards for Well Field Sites
The standards of this subsection shall apply to all properties actively used for well field sites for the purposes of safeguarding the public health, safety and welfare of the customers, to safeguard and protect public water supplies, and to protect the community's potable water supply against contamination by regulating land use and the storage, handling, use and/or production of regulated substances as defined in § 154.14(B).
(a) Determination of Applicability
It shall be the responsibility of any person owning real property and/or owning or operating a business within the city to make a determination of the applicability of this section as it pertains to the property and/or business, and failure to do so shall not excuse any violations of this section.
(b) Groundwater Protection Standards for Well Field Sites
The following standards shall apply to all uses and activities on a lot used for a water well field:
(i) Use and/or storage of regulated substances in conjunction with municipal water supply and treatment activities shall not be restricted by this section.
(ii) Use of regulated substances in conjunction with active parks, playgrounds, ball fields, community centers, or other similar uses shall be in accordance with the city's management plan for maintenance of sensitive areas now or subsequently adopted by the city.
(iii) Use of regulated substances in conjunction with special uses in this district shall be limited to:
A. The aggregate of regulated substances in use may not exceed 20 gallons or 160 pounds at any time.
B. The total use of regulated substances may not exceed 50 gallons or 400 pounds in any 12 month period.
C. A limited exclusion from the provisions of this division (iii) is authorized for non-routine maintenance or repair of property or equipment. The use of regulated substances under this exclusion shall be limited to:
1. The aggregate of regulated substances in use may not exceed 50 gallons or 400 pounds at any time.
2. The total use of regulated substances may not exceed 100 gallons or 800 pounds in any 12 month period.
D. A limited exclusion from the provisions of this division is authorized for the application of agricultural chemicals to cropland where such chemicals are brought in from other locations. This exclusion is subject to the condition that such substances are applied to cropland under best management practices as indicated by soil tests, agricultural experts, or label directions approved by the United States Environmental Protection Agency (U.S.E.P.A.) or the Ohio Department of Agriculture. This exclusion does not apply to the inventory reporting requirements of § 154.05(E)(9)(g)(i)A.4 and the spill reporting requirements of § 154.05(E)(9)(g)(ii).
(iv) Underground storage of fuel and lubricants for vehicle operations in conjunction with permitted and special uses in this district shall be in tanks placed above the floor surface of a below grade vault. Said vault shall allow access for physical inspection of the tank for leakage and the interior of the vault shall be continuously monitored and alarmed to provide for automatic and immediate detection of any release from the tank.
(v) Notwithstanding other provisions of this section, nonconforming uses in this district utilizing underground storage tanks for fuel and lubricants for vehicle operations at the effective date of this section shall be permitted to replace existing tanks with those constructed to meet the specifications of subdivision (iv) of this division and not exceeding the capacity of existing tanks. Replacement of underground tanks for regulated substances other than fuel and lubricants for vehicle operations is not permitted.
(vi) Except as otherwise permitted by this section, storage of regulated substances other than fuel and lubricants for vehicle operations in conjunction with permitted and special uses in this district is prohibited.
(vii) As part of the findings required prior to issuance of a zoning permit or a certificate of occupancy, the Zoning Administrator shall utilize the hazard potential rating system (identified in § 154.05(E)(8) and Appendix A) to assist in the determination of intensity of use within this district. No substitutions of a non-conforming use shall be permitted which result in an increase of the hazard potential rating on a parcel within this district.
(viii) All uses within this district shall be connected to the public wastewater disposal system within a 3 year period from the effective date of this chapter or have a wastewater disposal system approved by the Miami County Public Health.
(7) Additional Groundwater Protection Standards for all Other Sites in the WP Overlay District
Within this WP District, the following standards shall apply:
(a) Use, storage, handling and/or production of regulated substances in conjunction with permitted and special uses in this overlay district shall be limited to:
(i) The aggregate of regulated substances in use, storage, handling and/or production may not exceed 20 gallons or 160 pounds at any time.
(ii) The total use, storage, handling and/or production of regulated substances may not exceed 50 gallons or 400 pounds in any 12 month period.
(iii) A limited exclusion from the provisions of subdivision (a) above is authorized for non-routine maintenance or repair of property or equipment. The use, storage, handling and/or production of regulated substances under this exclusion shall be limited to:
(iv) The aggregate of regulated substances in use, storage, handling, and/or production may not exceed 50 gallons or 400 pounds at any time.
(v) The total used storage, handling and/or production of regulated substances may not exceed 100 gallons or 800 pounds in any 12 month period.
(vi) The application of U.S.E.P.A. approved agricultural chemicals by licensed personnel using U.S.E.P.A. best recommended practices. Below ground applications in excess of 100 gallons or 800 pounds in any 12 month period shall require 72 hour prior notice to the Zoning Administrator.
(b) A limited exclusion from the provisions of subdivision (a) above is authorized for each research and development facility. This exclusion is subject to the conditions that regulated substances shall be stored, handled or used in containers not to exceed 5 gallons or 40 pounds of each substance; and the aggregate inventory of regulated substances shall not exceed 250 gallons or 2,000 pounds.
(c) A limited exclusion from the provisions of subdivision (a) above is authorized for regulated substances which are cleaning agents. This exclusion is subject to the conditions that such cleaning agents are packaged for personal or household use or are present in the same form and concentration as a product packaged for use by the general public; and the aggregate inventory of such cleaning agents shall not exceed 100 gallons or 800 pounds at any time. In no case shall regulated substances claimed under this exclusion include hydrocarbon or halogenated hydrocarbon solvents.
(d) A limited exclusion from the provisions of subdivision (a) above is authorized for on-site storage of a maximum one-year supply of agricultural chemicals to be used for routine on-site agricultural operations. This exclusion is subject to the condition that such substances are stored in standard approved packaging and such chemicals are applied to cropland under best management practices as indicated by soil tests, agricultural experts, or label directions approved by the United States Environmental Protection Agency (U.S.E.P.A.) or the Ohio Department of Agriculture. This limited exclusion also applies to the application of agricultural chemicals to cropland where such chemicals are brought in from other locations. This provision does not exempt such agricultural chemicals either stored on-site or brought in from other locations from the inventory, spill reporting and underground storage tank protection requirements of this overlay district.
(e) NOTE: THIS REGULATION DOES NOT RESTRICT THE USE OF AGRICULTURAL CHEMICALS APPLIED IN ACCORDANCE WITH BEST MANAGEMENT PRACTICES AND/OR LABEL DIRECTIONS.
(f) Unless regulated by the Ohio Fire Marshal, Bureau of Underground Storage Tank Regulation (BUSTR), and with the exception of residential use of heating fuels in tanks having a capacity of 500 gallons or less, the underground storage of fuel and lubricants for vehicle operations and of fuel for building and/or process heating in conjunction with valid uses in this district shall be in tanks secondarily contained (as defined by the Ohio State Fire Marshal, Bureau of Underground Storage Tank Regulation) and monitored. Such installations shall be subject to approval by the Zoning Administrator.
(g) Notwithstanding other provisions of this section, nonconforming uses in this district utilizing underground tanks to store fuel and lubricants for vehicle operations and fuel for building and/or process heating at the effective date of this section shall be permitted to replace existing tanks with those constructed to meet the specifications of subdivision (f) above and not exceeding the capacity of existing tanks. Replacement of underground tanks for regulated substances other than the above noted fuels and lubricants are not permitted.
(h) As part of the findings required prior to issuance of a zoning permit, zoning compliance permit, or certificate of occupancy, the Zoning Administrator shall utilize the hazard potential rating system (identified in § 154.05(E)(8) and Appendix A) to assist in the determination of intensity of use within this district. No substitutions of a nonconforming use shall be permitted that will result in an increase of the hazard potential rating on a parcel within this district. If the quantities of regulated substances initially exceed the de minimis quantities above, they shall be considered legally nonconforming. Such legally nonconforming quantities cannot be increased to any degree or extent, however.
(8) Hazard Potential Rating System
(a) In order to assess the risk for potential groundwater contamination, a hazard rating has been developed for various activities categorized by their Standard Industrial Classification (SIC) code. This rating is based on the kind of materials commonly associated with each use, looking only at the most critical hydrologic factors.
(b) Table 1 in Appendix A lists the site hazard potential by land use activity (source) on a scale of 1 to 9, with 1 being a low hazard and 9 a very high hazard. This rating is based on the intrinsic hazards posed by different land uses and is related to the materials commonly used or stored on the site or the types and amounts of wastes commonly discharged. This table refers to many land uses not permitted (and not existing as nonconforming uses) in the underlying zoning district of any land included in this overlay district, but that fact shall not be deemed to constitute an express or implied legislative statement that such uses are permitted by this section.
(c) Table 2 in Appendix A lists the hazard potential determined on the basis of materials known to be used, stored, or disposed of at a specific site.
(d) If the 2 tables referenced above indicate different site hazard potential ratings for the SIC-coded land use activity and the materials found on-site, the higher of the 2 scores is the rating for the site.
(9) Enforcement Provisions
(a) Scope
Nothing contained in this section shall be construed so as to interfere with any existing or future lawful requirements that may be, or heretofore were, imposed by any other public body authorized to enact sanitary, health or water pollution abatement restrictions so long as such requirements are consistent with, or more stringent than, the stated purpose of this section.
(b) Administration
Except as otherwise provided herein, the Zoning Administrator shall be authorized to administer, implement, and enforce the provisions of this section.
(c) Notice of Violation
(i) Any person found in violation of any provisions of this section or any order, requirement, rule or regulation issued under the authority of this section will be served with a written notice stating the nature of the violation and providing reasonable time for compliance; but such written notice of violation may be dispensed with under the conditions described in § 154.05(E)(9)(g)(ii). Further, that if the Zoning Administrator has previously promulgated a schedule of compliance or issued an order addressing the same type of or a similar violation and the time for compliance has passed, the Zoning Administrator may dispense with establishing another time period for compliance.
(ii) The notice shall be served in the manner provided by law for the service of civil process. Where the address of the violator is unknown, service may be made upon the owner of the property involved at the tax-mailing address of the owner as shown on the county tax record.
(d) Inspections
Subject to applicable provisions of law, the Zoning Administrator bearing proper identification, shall be permitted to enter private property at any reasonable time, with reasonable cause or with prior notification, for such purposes as inspection, observation, measurement, sampling, and records examination pertaining to the requirements of this section. Upon request of the entity which is the subject of the inspection, and if permitted by the state public records law, information obtained as a result of the inspection shall be maintained as confidential. If the owner or tenant does not consent to the entry of the Zoning Administrator, the Zoning Administrator may apply to a court of competent jurisdiction for an appropriate warrant or other authority to enter said property; but no consent is necessary for entry into areas then open to the public or to customers.
(e) Handling of Regulated Substances
(i) No person shall place, deposit, or permit to be deposited, store, process, use, produce, dispose of, transport, or discharge, hereinafter referred to as "handle," any regulated substance on public or private property within the WP Overlay District except as provided by law, statute, ordinance, rule or regulation.
(ii) Any violation of this section is hereby determined to be a nuisance and must be abated.
(f) Underground Storage Tanks
Underground storage tanks declared to constitute dangerous nuisances.
(i) With the exception of the underground storage of fuel and lubricants for vehicular operations and of fuel for building heating and/or process heating in conjunction with permitted and special uses in this district, any storage of regulated substances in underground storage tanks within the WP Overlay District shall be deemed to constitute a dangerous nuisance. Every such nuisance must and shall be abated no later than 5 years from the effective date of this section.
(ii) With the exception of residential use of home heating fuel in tanks having a capacity of 500 gallons or less, any underground storage tank systems for vehicle fuel and lubricants and for fuel for building and/or process heating within the WP Overlay District not removed within 5 years from the effective date of this section must be secondarily contained and monitored in accordance with plans submitted to and approved by the Zoning Administrator and the Tipp City Fire Department.
(g) Reporting Requirements
(i) Regulated Substance Activity Inventory
A. Applicability
1. Except as provided in § 154.05(E)(9)(g)(i)B, any owner or occupant of any land in this WP Overlay District on the effective date of this code, shall file a regulated substance activity inventory report with the Zoning Administrator. Said report shall be filed within 180 days of the effective date of this section, and follow up reports shall be so filed at 24 month intervals thereafter.
2. Except as provided in § 154.05(E)(9)(g)(i)B, any new owner or occupant of any land in the WP Overlay District shall file a regulated substance activity inventory report prior to receipt of a zoning certificate or a certificate of occupancy and at 24 month intervals following the date of occupancy. For purposes of this paragraph, "new" shall be defined as subsequent to the effective date of this code.
3. Where a person owns, operates or occupies more than 1 location, regulated substance activity inventory reports shall be made for each location.
4. Agricultural uses shall file a regulated substance activity inventory report within 180 days of the effective date of this section and at 12 months intervals thereafter. Regulated substance activity inventory reports for agricultural uses shall include total annual on-site application of regulated substances for the reporting property.
B. Exclusions from Activity Inventory Reporting
1. Any exclusion set forth in this subsection shall apply if it does not substantially increase any risk or hazard to the public health or water supply, wells or well fields; but further that any spill, leak, discharge or mishandling shall be subject to the provisions of the subsequent § 154.05(E)(9)(g)(ii). Any exclusion granted herein shall not remove or limit the liability and responsibility of any person or activity involved, except as to inventory reporting.
2. A limited exclusion from regulated substance activity inventory reporting is hereby authorized for incidental uses of regulated substances provided the uses are limited as follows:
a. The aggregate of regulated substances in use may not exceed 20 gallons or 160 pounds at any time.
b. The total use of regulated substances may not exceed 50 gallons or 400 pounds in any 12 month period.
3. A limited exclusion from regulated substance activity inventory reporting is hereby authorized for non-routine maintenance or repair of property or equipment in this overlay district provided the uses are limited as follows:
a. The aggregate of regulated substances in use may not exceed 50 gallons or 400 pounds at any time.
b. The total use of regulated substances may not exceed 100 gallons or 800 pounds in any 12 month period.
4. A limited exclusion from regulated substance activity inventory reporting is hereby authorized for regulated substances which are cleaning agents. This exclusion is subject to the conditions that such cleaning agents are packaged for personal or household use or are present in the same form and concentration as a product packaged for use by the general public, and provided the aggregate inventory of such cleaning agents shall not exceed 100 gallons or 800 pounds at any time. In no case shall regulated substances claimed under the exclusion include hydro- carbon or halogenated hydro- carbon solvents.
5. A limited exclusion from regulated substance activity inventory reporting is hereby authorized for medical and research laboratory uses in this WP Overlay District. This exclusion is subject to the conditions that regulated substances shall be stored, handled or used in containers not to exceed 5 gallons or 40 pounds of each substance, and the aggregate inventory of regulated substances shall not exceed 250 gallons or 2,000 pounds.
6. A limited exclusion from regulated substance activity inventory reporting is hereby authorized for the transportation of regulated substances through this WP Overlay District. This exclusion is subject to the conditions that the transportation vehicle is in compliance with applicable local, state, and federal laws and regulations; the regulated substance is fueling the transportation vehicle; and the transportation vehicle is in continuous transit, making delivery, or is stopped for a period of time not to exceed 72 hours.
7. A limited exclusion from regulated substance activity inventory reporting is hereby authorized for owners and occupants of single or two-family dwellings. This exclusion is subject to the conditions that the storage and use of regulated substances are related to the maintenance of the residence or vehicles under control of the occupant, and waste regulated substances are appropriately disposed of to a permitted solid waste facility or a permitted publicly- owned wastewater treatment works.
(ii) Spills, Leaks or Discharges
A. Any person with direct knowledge of a spill, leak or discharge of a regulated substance within this overlay district shall, if such spill, leak or discharge escapes containment or contacts a pervious ground surface and is not immediately and completely remediated, give notice to the Zoning Administrator or the operator on duty at the affected or potentially affected water treatment facility or the Tipp City Fire Department by telephone within 30 minutes. The notification shall include at a minimum, the location of the incident, name and telephone number, date and time thereof, type of substance(s), concentration and volume, and control or corrective action taken. Such notification shall in no way alleviate other local, state, and federal reporting obligations as required by law.
B. The application of agricultural chemicals, fertilizers, mineral acids, organic sulphur compounds, etc. used in routine agricultural operations, including plant nutrients and crop protection materials, applied under best management practices as indicated by soil tests, agricultural experts, or label directions approved by the United States EPA or the Ohio Department of Agriculture, shall not be considered a spill, leak, or discharge subject to the reporting provisions of this paragraph.
C. Any entity or person who spills, leaks or discharges said substance(s) shall be liable for any reasonable expense, loss or damages incurred by the city in response to such an incident, in addition to the amount of any fines imposed on account thereof under state and federal law; said entity or person shall document and maintain sufficient records so as to reflect accurately the circumstances related to any such incident and develop and implement procedures to substantially eliminate the likeli- hood of reoccurrence of such spills, leaks or discharges as soon as practicable following the incident, but no later than 180 days after the incident.
(iii) Falsifying Information
No person shall make any false statement, representation, or certification in any report or other document filed or required to be maintained pursuant to this section.
(h) Public Water Supply Protection Authorities
(i) Application
If any activity or use of regulated substance is deemed by the Zoning Administrator to pose a real and present danger of contaminating surface and/or groundwater which would normally enter the public water supply, the Zoning Administrator, in accordance with R.C. § 713.13, is authorized to:
A. Cause cessation of said activity or use of the regulated substance;
B. Require the provision of administrative controls and/or facilities sufficient to mitigate said danger; and/or
C. Cause the provision of pollution control and/or abatement activities.
(ii) Considerations
When considering the exercise of any of the above authorities or actions, the Zoning Administrator shall consult with the appropriate administrative official of any potentially affected protected public water supply. Such consultation shall determine what measures need to be taken to ensure the public water supply is reasonably and adequately protected from contamination for the present and the future. The Zoning Administrator may take into consideration any evidence represented by the entity regarding cost effectiveness and the economic effectiveness and the economic impact imposed by the requirements or actions.
(iii) Exemption of Certain Regulated Substances
The Zoning Administrator is authorized to exclude certain regulated substances that pose no threat to ground water, from the provisions of these regulations. Prior to authorizing the exemption of any regulated substance, the Zoning Administrator shall have such request for exemption reviewed by the Planning Board. The recommendation of the Planning Board shall be binding on the Zoning Administrator.
(iv) Technical Consultants
Upon application for a zoning permit and/or certificate of occupancy for a use within this overlay district, the Zoning Administrator may employ such technical expertise as needed to ensure compliance with the provisions of these regulations. All costs incurred in the compliance review process shall be passed through to the applicant and shall be in addition to those fees normally charged by the city to review an application for a zoning permit and/or certificate of occupancy.
(i) Well Field Protection Appeals Board
(i) Appeals
Any person may appeal an action of the Zoning Administrator in accordance with § 154.03(M).
(ii) Appeals Board
The BZA shall act as and constitute a Well Field Protection Appeals Board and shall hear appeals under this section. The BZA shall have the authority to take appeals, issue subpoenas for witnesses and to deny, uphold, or otherwise modify or waive, the Zoning Administrator's actions on a case-by-case basis.
(iii) Findings of the Board
The appellant shall have the burden of proof. No modification or waiver of the requirements of this section shall be authorized by the BZA unless it finds by clear and convincing evidence that all of the following facts and conditions exist.
A. Exceptional Burden: That there are exceptional circumstances regarding the property or its lawful and valid uses which make enforcement of this section an unreasonable burden on the continuation of such uses.
B. Lack of Increased Hazard: That the waiver or modification will not significantly increase the threat of contamination of the community's potable water supply.
(j) Penalties for Violations
A first violation of the provisions of this section beyond the time limit for compliance set forth by the Zoning Administrator, notice of violation, or the compliance schedule established by the Zoning Administrator, shall constitute a minor misdemeanor punishable as provided in Section 154.13: Enforcement and Penalties. A second violation by the same defendant, whether of the same or another provision of this section, shall constitute a fourth degree misdemeanor. A third and each subsequent such violation by the same defendant shall constitute a second degree misdemeanor.
(Ord. 5-14, passed 3-17-2014)