Township of Westtown, PA Article IV Natural Features Protection

§ 170-400 Statement of intent.

The standards and requirements in this article are intended to afford appropriate levels of protection to those natural features within Westtown Township that represent significant resource opportunities to the Township and its surrounding region or which, when subject to undue disturbance, may constitute threats to public health, safety, and welfare. The Township considers adherence to these standards a basic prerequisite to any land development or disturbance otherwise authorized under this chapter or other regulations, and has designed the balance of this chapter to work in harmony with the terms of this article. The Township reserves the right to hire professionals, at the expense of the land owner or developer, to assess adherence to these standards.

§ 170-401 Floodplain Regulations.

[Amended 11-4-1996 by Ord. No. 96-17; 10-16-2006 by Ord. No. 2006-3; 9-5-2017 by Ord. No. 2017-3]

A. Statutory authorization. The Legislature of the Commonwealth of Pennsylvania has, by the passage of the Pennsylvania Flood Plain Management Act of 1978, delegated the responsibility to local governmental units to adopt floodplain management regulations to promote public health, safety, and the general welfare of its citizenry. Therefore, the Board of Supervisors of the Township does hereby order as follows.

B. Intent. The intent of this section is to:

(1) Promote the general health, welfare, and safety of the community.

(2) Encourage the utilization of appropriate construction practices in order to prevent or minimize flood damage in the future.

(3) Minimize danger to public health and safety by protecting water supply, sanitary sewage disposal, and natural drainage.

(4) Protect the quality and quantity of surface and subsurface water supplies adjacent to and underlying floodplain areas.

(5) Contribute to the protection of stream waters against sedimentation; the prevention of stream bank erosion; the maintenance of cool water temperatures; and the preservation of fish and wildlife habitats, through the protection of trees and other riparian vegetation.

(6) Maintain the scenic and aesthetic character of the streams and stream valleys, consistent with the goals of the Westtown Township Comprehensive Plan.

(7) Reduce financial burdens imposed on the community, its governmental units, and its residents by preventing the unwise design and construction of development in areas subject to flooding.

(8) Fulfill the responsibility of the Township as a trustee of the people's right to clean air, pure water, and the preservation of the natural, scenic, historic and aesthetic values of the environment pursuant to Article I, Section 27 of the Pennsylvania Constitution.

(9) Comply with federal and state floodplain management requirements.

C. Applicability. Provisions of all other codes, ordinances, and regulations shall be applicable insofar as they are consistent with the provisions of this chapter and Westtown Township's need to minimize the hazards and damage resulting from flooding. It shall be unlawful for any person, partnership, business or corporation to undertake, or cause to be undertaken, any construction or development anywhere subject to floodplain regulations unless a permit has been obtained from the floodplain administrator.

D. Establishment of floodplain regulations. Floodplain regulations shall be applicable to those areas of Westtown Township, Chester County, which are classified as Special Flood Hazard Areas (SFHAs) in the Flood Insurance Study (FIS) and the accompanying Flood Insurance Rate Maps (FIRMs) for Westtown Township, Chester County, Pennsylvania, as prepared by the Federal Emergency Management Agency (FEMA), dated September 29, 2017, or the most recent revision thereof, including all digital data developed as part of the Flood Insurance Study, and the Soil Survey of Chester and Delaware Counties, as prepared by the United States Department of Agriculture, Soil Conservation Service. The above referenced FIS and FIRMs, and any subsequent revisions and amendments are hereby adopted by Westtown Township and declared to be a part of this section. Floodplain regulations shall be comprised of three subareas, as follows:

(1) Floodway Area (F1): An area identified as the "floodway" as established in the Flood Insurance Study referenced above and shown on the accompanying Flood Insurance Rate Map as Zone AE. The term shall also include floodway areas which have been identified in other available studies or sources of information for those floodplain areas where no floodway has been identified in the Flood Insurance Study. The floodway area is required to carry and discharge the waters of the base flood elevation without increasing the water surface elevation at any point more than one foot above existing conditions.

(2) Flood-Fringe Area (F2): An area identified as an AE Zone in the Flood Insurance Study referenced above and shown on the accompanying Flood Insurance Rate Map, where a floodway has been delineated.

(a) AE Area without floodway shall be those areas identified as an AE zone on the FIRM included in the FIS prepared by FEMA for which base flood elevations have been provided but no floodway has been determined. No encroachments, including fill, new construction, substantial improvements, or other development shall be permitted in a floodway or an AE Zone without floodway, unless it has been demonstrated through hydrologic and hydraulic analysis performed in accordance with standard engineering practice that the proposed development, together with all other existing and anticipated development, would not result in an increase in flood levels within the entire community during the occurrence of the base flood discharge.

(3) General Floodplain Area (F3): An area subject to inundation by the base flood, where a detailed study has not been performed, but where a base flood elevation boundary has been approximated by the Flood Insurance Study and shown as Zone A on the Flood Insurance Rate Map referenced above. Where the specific base flood elevation cannot be determined for this area using other sources of data such as the U.S. Army Corps of Engineers, Floodplain Information Reports, U.S. Geological Survey Flood-Prone Quadrangles, etc., then the applicant for the proposed use, development and/or activity shall determine this elevation in accordance with hydrologic and hydraulic engineering techniques. Hydrologic and hydraulic analyses shall be undertaken only by professional engineers or others of demonstrated qualifications, who shall certify that the technical concepts, studies, analyses, computations, etc., shall be submitted in sufficient detail to allow a thorough technical review by the Township.

(4) Revisions, amendments, and modifications.

(a) The delineation of areas subject to floodplain regulations may be revised, amended and modified by the Westtown Township Board of Supervisors in compliance with the National Flood Insurance Program when:

[1] There are changes through natural or other causes.

[2] Changes are indicated by future detailed hydrologic and hydraulic studies.

[3] Where studies or information provided by a qualified agency or person documents the need for such revision.

(b) Additionally, as soon as practicable, but not later than six months after the date such information becomes available, the Township shall notify FEMA of the changes to the special flood hazard area by submitting technical or scientific data.

E. Boundary dispute. Should a dispute concerning any boundary subject to floodplain regulations arise, an initial determination shall be made by the Zoning Officer. Any party aggrieved by this decision may appeal to the Zoning Hearing Board under the provisions of Article XXI of this chapter. The burden of proof shall be on the appellant.

F. Administration.

(1) Designation of the floodplain administrator. The Zoning Officer is hereby appointed to administer and enforce this ordinance and is referred to herein as the floodplain administrator. The floodplain administrator may: (A) Fulfill the duties and responsibilities set forth in these regulations, (B) Delegate duties and responsibilities set forth in these regulations to qualified technical personnel, plan examiners, inspectors, and other employees, or (C) Enter into a written agreement or written contract with another agency or private sector entity to administer specific provisions of these regulations. Administration of any part of these regulations by another entity shall not relieve the Township of its responsibilities pursuant to the participation requirements of the National Flood Insurance Program as set forth in the Code of Federal Regulations at 44 CFR 59.22.

(a) In the absence of a designated floodplain administrator, the floodplain administrator duties are to be fulfilled by the Township Engineer.

(2) Permits required. A permit shall be required before any construction or development is undertaken in areas subject to floodplain regulations.

(3) Duties and responsibilities of the floodplain administrator.

(a) The floodplain administrator shall issue a permit only after it has been determined that the proposed work to be undertaken will be in conformance with the requirements of this and all other applicable codes and ordinances.

(b) Prior to the issuance of any permit, the floodplain administrator shall review the application for the permit to determine if all other necessary government permits required by state and federal laws have been obtained, such as those required by the Pennsylvania Sewage Facilities Act (Act 1966-537, as amended); the Pennsylvania Dam Safety and Encroachments Act (Act 1978-325, as amended); the Pennsylvania Clean Streams Act (Act 1937-394, as amended); and the U.S. Clean Water Act, Section 404, 33, U.S.C. 1344. No permit shall be issued until this determination has been made.

(c) In the case of existing structures, prior to the issuance of any development/permit, the floodplain administrator shall review the proposed cost of improvements or repairs and the preimprovement market value of the structure, so that a substantial improvement/substantial damage determination can be made, in accordance with FEMA's Substantial Improvement/Substantial Damage Desk Reference.

(d) In the case of existing structures, prior to the issuance of any development/permit, the floodplain administrator shall review the history of repairs to the subject building, so that any cumulative substantial damage concerns can be addressed before the permit is issued.

(e) During the construction period, the floodplain administrator or other authorized official shall inspect the premises to determine that the work is progressing in compliance with the information provided on the permit application and with all applicable municipal laws and ordinances. He/she shall make as many inspections during and upon completion of the work as are necessary.

(f) In the discharge of his/her duties, the floodplain administrator shall have the authority to enter any building, structure, premises or development in the identified floodplain area, upon presentation of proper credentials, at any reasonable hour to enforce the provisions of this ordinance.

(g) In the event the floodplain administrator discovers that the work does not comply with the permit application or any applicable laws and ordinances, or that there has been a false statement or misrepresentation by any applicant, the floodplain administrator shall revoke the permit and report such fact to the Board for whatever action it considers necessary.

(h) The floodplain administrator shall maintain in perpetuity, or for the lifetime of the structure, all records associated with the requirements of this section including, but not limited to, finished construction elevation data, permitting, inspection and enforcement.

(i) The floodplain administrator is the official responsible for submitting a biennial report to FEMA concerning community participation in the National Flood Insurance Program as requested.

(j) The responsibility, authority and means to implement the commitments of the floodplain administrator can be delegated from the person identified. However, the ultimate responsibility lies with the person identified in the floodplain ordinance as the floodplain administrator/manager.

(k) The floodplain administrator shall consider the requirements of 34 Pa. Code and the 2009 IBC and the 2009 IRC, or the latest revision thereof as adopted by the Commonwealth of Pennsylvania.

(4) Application procedures and requirements.

(a) Application for such a permit shall be made, in writing, to the floodplain administrator on forms supplied by Westtown Township. Such application shall contain the following:

[1] Name and address of applicant.

[2] Name and address of owner of land on which proposed construction is to occur.

[3] Name and address of contractor.

[4] Site location including address.

[5] Listing of other permits required.

[6] Brief description of proposed work and estimated cost, including a breakout of flood-related cost and the market value of the building before the flood damage occurred where appropriate.

[7] A plan of the site showing the exact size and location of the proposed construction as well as any existing buildings or structures.

(b) If any proposed construction or development is located entirely or partially within any identified floodplain area, applicants for permits shall provide all the necessary information in sufficient detail and clarity to enable the floodplain administrator to determine that:

[1] All such proposals are consistent with the need to minimize flood damage and conform with the requirements of this section and all other applicable codes and ordinances;

[2] All utilities and facilities, such as sewer, gas, electrical and water systems are located and constructed to minimize or eliminate flood damage;

[3] Adequate drainage is provided so as to reduce exposure to flood hazards;

[4] Structures will be anchored to prevent floatation, collapse, or lateral movement;

[5] Building materials are flood-resistant;

[6] Appropriate practices that minimize flood damage have been used; and

[7] Electrical, heating, ventilation, plumbing, air conditioning equipment, and other service facilities have been designed and located to prevent water entry or accumulation.

(c) Applicants shall file the following minimum information plus any other pertinent information as may be required by the floodplain administrator to make the above determination:

[1] A completed permit application form.

[2] A plan of the entire site, clearly and legibly drawn at a scale of one inch being equal to 100 feet or less, showing the following:

[a] North arrow, scale, and date;

[b] Topographic contour lines, if available;

[c] The location of all existing and proposed buildings, structures, and other improvements, including the location of any existing or proposed subdivision and development;

[d] The location of all existing streets, drives, and other accessways; and

[e] The location of any existing bodies of water or watercourses, identified floodplain areas, and, if available, information pertaining to the floodway, and the flow of water including direction and velocities.

[3] Plans of all proposed buildings, structures and other improvements, drawn at suitable scale showing the following:

[a] The proposed lowest floor elevation of any proposed building based upon North American Vertical Datum of 1988;

[b] The elevation of the base flood;

[c] Supplemental information as may be necessary under 34 Pa. Code, the 2009 IBC or the 2009 IRC, or the latest revision thereof as adopted by the Commonwealth of Pennsylvania.

[4] The following data and documentation:

[a] Detailed information concerning any proposed floodproofing measures and corresponding elevations.

[b] If available, information concerning flood depths, pressures, velocities, impact and uplift forces and other factors associated with a base flood.

[c] Documentation, certified by a registered professional engineer or architect, to show that the cumulative effect of any proposed development subject to floodplain regulations (see § 170-401D) when combined with all other existing and anticipated development, will not cause any increase in the base flood elevation.

[d] A document, certified by a registered professional engineer or architect, which states that the proposed construction or development has been adequately designed to withstand the pressures, velocities, impact and uplift forces associated with the base flood. Such statement shall include a description of the type and extent of floodproofing measures which have been incorporated into the design of the structure and/or the development.

[e] Detailed information needed to determine compliance with § 170-401I, Activities specifically prohibited when subject to floodplain regulations, including:

[i] The amount, location and purpose of any materials or substances referred to in § 170-401I which are intended to be used, produced, stored or otherwise maintained on site.

[ii] A description of the safeguards incorporated into the design of the proposed structure to prevent leaks or spills of the dangerous materials or substances listed in § 170-401I during a base flood.

[f] The appropriate component of the Department of Environmental Protection's "Planning Module for Land Development."

[g] Where any excavation or grading is proposed, a plan meeting the requirements of the Department of Environmental Protection, to implement and maintain erosion and sedimentation control.

(d) Applications for permits shall be accompanied by a fee, payable to the municipality based upon the estimated cost of the proposed construction as determined by the floodplain administrator.

(5) Review of application by others. A copy of all plans and applications for any proposed construction or development subject to floodplain regulations to be considered for approval may be submitted by the floodplain administrator to any other appropriate agencies and/or individuals (e.g., planning commission, municipal engineer, etc.) for review and comment.

(6) Changes. After the issuance of a permit by the floodplain administrator, no changes of any kind shall be made to the application, permit or any of the plans, specifications or other documents submitted with the application without the written consent or approval of the floodplain administrator. Requests for any such change shall be in writing, and shall be submitted by the applicant to floodplain administrator for consideration.

(7) Placards. In addition to the permit, the floodplain administrator shall issue a placard, or similar document, which shall be displayed on the premises during the time construction is in progress. This placard shall show the number of the permit, the date of its issuance, and be signed by the floodplain administrator.

(8) Start of construction. Work on the proposed construction or development shall begin within 180 days after the date of issuance of the development permit. Work shall also be completed within 12 months after the date of issuance of the permit or the permit shall expire unless a time extension is granted, in writing, by the floodplain administrator. The issuance of development permit does not refer to the zoning approval.

(a) The actual start of construction means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading, and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footings, piers, or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure. For a substantial improvement, the actual start of construction means the first alteration of any wall, ceiling, floor, or other structural part of a building, whether or not that alteration affects the external dimensions of the building.

(b) Time extensions shall be granted only if a written request is submitted by the applicant, who sets forth sufficient and reasonable cause for the floodplain administrator to approve such a request and the original permit is compliant with the ordinance and FIRM/FIS in effect at the time the extension is granted.

(9) Enforcement and penalties. Any person who fails to comply with any or all of the requirements or provisions of this article or who fails or refuses to comply with any notice, order of direction of the floodplain administrator or any other authorized employee of the Township shall be subject to the procedures, enforcement action, fines and/or penalties as set forth within Chapter 170, Articles XXI and XXIII, of the Township's Zoning Ordinance.

(10) Appeals.

(a) Any person aggrieved by any action or decision of the floodplain administrator concerning the administration of the provisions of this article may appeal to the Zoning Hearing Board as specifically provided for in Chapter 170, Article XXI, of the Township Zoning Ordinance. Such appeal must be filed, in writing, within 30 days after the decision, determination or action of the floodplain administrator.

(b) Upon receipt of such appeal, the Zoning Hearing Board shall consider the appeal in accordance with the Municipalities Planning Code and Article XXI of the Township Zoning Ordinance.

(c) Any person aggrieved by any decision of the Zoning Hearing Board may seek relief therefrom by appeal to court, as provided by the laws of this state including the Pennsylvania Flood Plain Management Act.

G. Uses permitted in floodways area (F1).

(1) The following uses (exclusive of buildings and paving) are permitted in the floodway area. However, within any floodway area (F1), no new construction, development, use, activity, or encroachment shall be permitted unless the effect of such development on flood heights is fully offset by accompanying stream improvements which have been approved by all appropriate local and/or state authorities. When a landowner or developer proposes to offset the effects of development in the floodway area by construction of stream improvements, he/she shall submit a hydrologic and hydraulic analysis performed in accordance with standard engineering practice which fully evaluates the effects of such construction. The report shall use the base flood as herein defined as the basis of analysis. All adjacent communities and the Pennsylvania Department of Community and Economic Development shall be notified by the landowner and/or developer by certified mail of all such intended activities prior to any alteration or relocation of a watercourse and shall submit copies of such notification to the Federal Emergency Management Agency. In addition, the landowner and/or developer shall assure the Township, in writing, that the flood-carrying capacity within the altered or relocated portion of the water course in question will be maintained.

(a) Agricultural uses, such as general farming, pasture, orchard, grazing, outdoor plant nurseries, and truck farming. Such activities should be conducted in accordance with a plan approved by the Chester County Conservation District and recognized soil conservation practices approved by the Township.

(b) Selective cutting of trees provided further that desirable mature shade trees are not totally eliminated, that particular attention is paid to retaining such trees within 25 feet of any stream bank, and that no such trees growing within or upon a stream bank shall be removed unless dead, diseased, or damaged and threatening the stability of the bank.

(c) Recreational uses, such as park, camp, picnic grounds, golf course, golf driving range, archery ranges, hiking and riding trails, fishing areas, game farm, fish hatchery, wildlife sanctuary, nature preserve and swimming areas.

(d) Passive open space uses, including private yard area.

(e) Construction of crossings of the floodway area by railroads, roads, bridges, and utility transmission lines that would not result in any increase in the flood level during the occurrence of the base flood.

(f) Sealed water supply wells and water pipe lines.

(g) Storm and sanitary sewer outlets, which shall take the shortest route across the area subject to floodplain regulations to the point of discharge.

(2) The following shall not be placed or caused to be placed in the designated floodway area: fences (except that which are necessary and appurtenant to agricultural uses and are either designed to permit the automatic entry and exit of floodwaters or collapse during flood events to permit the unimpeded flow of floodwaters), other matters which may impede, retard or change the direction of the flow of water or that will catch or collect debris carried by such water, or that are placed where the natural flow of the stream or floodwaters would carry the same downstream to the damage or detriment of either public or private property adjacent to the floodplain. The placement of mobile homes shall not be permitted in any designated floodway area.

H. Uses permitted in flood-fringe area (F2) and general floodplain area (F3).

(1) The following uses are permitted in the flood-fringe (F2) and general floodplain area (F3).

(a) Uses permitted within the floodway area as provided in Subsection E above.

(b) Sewage treatment plants and pumping stations when constructed to prevent flooding of the facilities.

(c) Placement of recreational vehicles, provided that when subject to floodplain regulations recreational vehicles shall:

[1] Be on the site for fewer than 180 consecutive days; and

[2] Be fully licensed and ready for highway use, i.e., on its wheels or jacking system and attached to the site by quick-disconnect utilities and security devices with no permanently attached additions.

(2) No development or use of land shall be undertaken when the effect of such development or use of land, when combined with all other existing and anticipated development, would increase the water surface elevation at any point above the base flood elevation unless the effect of such development on flood heights is fully offset by accompanying stream improvements which have been approved by all appropriate local and/or state authorities. When an owner and/or developer proposes to offset the effects of development by construction of stream improvements or to install fill or alter or relocate a watercourse, he/she shall submit an engineering study prepared by a registered professional engineer which fully evaluates the effects of such construction. The report shall use the base flood elevation as herein defined as the basis of analysis. All adjacent communities and the Pennsylvania Department of Community and Economic Development shall be notified by the developer by certified mail of all such intended activities prior to any alteration or relocation of a watercourse and the developer shall submit copies of such notification to the Federal Emergency Management Agency. In addition, the developer shall assure the Township, in writing, that the flood-carrying capacity within the altered or relocated portion of the watercourse in question will be maintained.

(3) All uses, activities, and other developments shall be undertaken in strict compliance with the floodproofing and related provisions contained herein, and in all other applicable codes, ordinances and regulations.

(4) No new construction or development shall be located within the area measured 75 feet landward from the top-of-bank of any watercourse.

I. Activities specifically prohibited in areas subject to floodplain regulations. Any use or activity not authorized as a permitted use under the terms of Subsections G and H above shall be prohibited in areas subject to floodplain regulations. In particular, the following activities, whether proposed in conjunction with a permitted use or otherwise, shall not occur in any area subject to floodplain regulations:

(1) Clear-cutting of trees, or the clearing of vegetation, except where such clearing is necessary:

(a) To prepare land for a use permitted by Subsections G and H above, or by action of the Zoning Hearing Board. Where clear-cutting is proposed in conjunction with the site of a stormwater management basin, such clear-cutting shall be authorized only when in accordance with an approved plan for development which the basin is to serve;

(b) As a reforestation measure; or

(c) As a means to eliminate dead, diseased, or hazardous tree stands. Where a clear-cutting operation is deemed permissible for one of the above reasons, it shall be consistent with the terms of a woodland management plan approved by the Board of Supervisors. Under no circumstances shall a clear-cutting operation be conducted within 25 feet of a stream.

(2) Sod farming.

(3) Storage of any material which, if inundated, would float, or of any flammable or toxic material or any other material which, if inundated or otherwise released to the stream, would degrade or pollute the stream, or cause damage if swept downstream.

(4) Toxic chemicals.

(a) Storage of, and the construction, enlargement or expansion of any structure which would be used for the production, storage, or maintenance of, a supply of the following toxic chemicals which are dangerous to human or animal life:

[1] Acetone.

[2] Ammonia.

[3] Benzine.

[4] Calcium carbide.

[5] Carbon disulfide.

[6] Celluloid.

[7] Chlorine.

[8] Hydrochloric acid.

[9] Hydrocyanic acid.

[10] Magnesium.

[11] Nitric acid and oxides of nitrogen.

[12] Petroleum products (gasoline, fuel oil, etc.).

[13] Phosphorus.

[14] Potassium.

[15] Sodium.

[16] Sulfur and sulfur products.

[17] Herbicides or pesticides (including insecticides, fungicides and rodenticides).

[18] Radioactive substances, insofar as such substances are not otherwise regulated.

[19] Any other dangerous materials or substances regulated by the appropriate federal or state agencies.

(b) Further, any substantial improvement to an existing structure which will be used for the production or storage of any such materials or substances, or which will be used for any activity requiring the maintenance of a supply (more than 110 gallons or other comparable volume or any amount of radioactive substances) of any such materials or substances on the premises, shall be prohibited.

(5) Installation of individual or community on-lot sewage disposal systems.

(6) The construction, enlargement, or expansion of mobile homes, mobile home parks, mobile home subdivisions, manufactured homes, or manufactured home parks or subdivisions.

(7) The construction, enlargement, or expansion of hospitals (public or private).

(8) The construction, enlargement, or expansion of nursing homes (public or private).

(9) The construction, enlargement, or expansion of jails or prisons.

(10) Junkyard.

J. Nonconforming structures and uses subject to floodplain regulations. Nonconforming structures and uses of land subject to floodplain regulations shall be regulated under the provisions of Article XIX of this chapter, but the following additional regulations also shall apply.

(1) Existing nonconforming structures or uses located in the floodway area (F1) shall not be expanded or enlarged.

(2) The modification, alteration, repair, reconstruction, or improvement of any kind to a nonconforming structure or use in a floodway area (F1) and the modification, expansion, enlargement, alteration, repair, reconstruction, or improvement of any kind to a nonconforming structure or use located in a flood-fringe area (F2) or general floodplain area (F3) must be authorized as a special exception by the Zoning Hearing Board under the provisions of Article XX of this chapter. In considering such special exceptions, the Zoning Hearing Board shall apply the following standards and criteria:

(a) The modification, alteration, repair, reconstruction or improvement of any structure in the floodway area (F1) shall be permitted only where the rise in flood heights caused by the proposed development is fully offset by accompanying improvements.

(b) The proposed change is consistent with the spirit, purpose, and intent of this chapter.

(c) The proposed use is feasible and suitable in relation to the land use capabilities of the property in question, particularly its capabilities in terms of a suitable water supply, drainage, sewage disposal, topography, soil conditions, and ecological consideration.

(d) The proposed change will serve the best interests of the Township, the convenience of the community, where applicable, and the public welfare.

(e) The adequacy of sanitation and public safety provisions, where applicable, is assured and a certificate of adequacy or permit for sewage and water facilities has been obtained from the Chester County Health Department or other appropriate governmental agencies required herein or deemed advisable by the Zoning Hearing Board.

(f) If improvements to the floodway area (F1), or any filling or alterations to the elevation of the ground in the floodway area (F1), flood-fringe area (F2) or general floodplain area (F3), or any alterations or relocations of any perennial stream are contemplated, the Zoning Hearing Board shall determine that the developer has complied with the provisions of Subsections E and F, above, with regard to the effect of such filling or alterations on base flood elevations and has notified in writing, by certified mail, all adjacent communities which may be affected by such alterations and has submitted copies of such notification to the Township, the Pennsylvania Department of Community and Economic Development, and the Federal Emergency Management Agency and has, in addition, obtained a permit from the Pennsylvania Department of Environmental Protection Regional Office.

(g) Any modification, alteration, repair, reconstruction, expansion, or improvement of any kind to a nonconforming structure or use located in the floodway area to an extent or amount less than 50% of its market value shall be elevated and/or floodproofed to the greatest extent possible.

(h) Any modification, alteration, repair, reconstruction, expansion, or improvement of any kind to a nonconforming structure or use, regardless of location within areas subject to floodplain regulations, to an extent or amount of 50% or more of its market value shall be undertaken only in full compliance with the provisions of this and any other applicable ordinances.

(i) All structures shall be constructed and placed on the lot so as to offer the minimum obstruction to the flow of water and shall be designed to have a minimum obstruction effect upon the flow and height of floodwater.

(j) Any structure or site listed in or determined eligible for the National Register of Historic Places (NRHP) undergoing repair or rehabilitation that would constitute a "substantial improvement" as defined in this chapter shall comply with all ordinance requirements that do not preclude the structure's continued designation as a historic structure. Documentation that a specific ordinance requirement will cause removal of the structure from the NHRP or the State Inventory of Historic Places shall be obtained from the Secretary of the Interior or the State Historic Preservation Officer. Any exemption from ordinance requirements shall be the minimum necessary to preserve the historic character and design of the structure.

(k) Nonconforming structures and uses shall be undertaken in strict compliance with the floodproofing and related provisions contained herein, and in all other applicable federal, state and local codes, ordinances and regulations, including those of the Pennsylvania Department of Environmental Protection and the Chester County Conservation District.

(3) If an existing manufactured home has incurred substantial damage as a result of a flood, the home must:

(a) Be elevated on a permanent foundation such that the lowest floor is elevated 1 1/2 feet or more above the base flood elevation; and

(b) Be securely anchored to an adequately anchored foundation system to resist flotation, collapse and lateral movement.

K. Alteration or relocation of watercourses. Any alteration or relocation of any perennial stream required for the construction or conduct of permitted uses subject to floodplain regulations, including nonconforming uses, and any of the aforesaid modifications, alterations, or relocations required in order to gain access across land subject to floodplain regulations shall be designed and constructed in accordance with the following:

(1) The developer shall submit a copy of a notification prepared, in writing, by certified mail to the Federal Emergency Management Agency, the Pennsylvania Department of Community and Economic Development, and to adjacent communities which may be affected by modifications to the elevation of ground in a floodplain, or alterations or relocations of streams.

(2) The developer shall submit a copy of a permit from the Pennsylvania Department of Environmental Protection Regional Office, for the modifications to the grade or alterations or relocations to the stream, or evidence from the said Pennsylvania Department of Environmental Protection Regional Office that such a permit is not required.

(3) Proposed fills shall meet the following minimum standards. Plans submitted under the provisions of this subsection shall be subject to the review and approval of the Board of Supervisors according to procedures set forth in Chapter 149, Subdivision of Land.

(a) Fill shall consist of soil or rock materials only. Sanitary landfills shall not be permitted.

(b) Fill material shall be compacted to provide the necessary stability and resistance to erosion, scouring, or settling.

(c) Fill slopes shall be no steeper than one vertical on three horizontal, unless substantiating data justifying steeper slopes are submitted to and approved by the Zoning Officer.

(d) Fill shall be used only to the extent to which it does not adversely affect adjacent properties.

(e) Care shall be taken to prevent erosion and sedimentation due to proximity to the stream. The Township Engineer shall approve the proposed erosion/sedimentation control methodology.

(4) Modifications to the floodplain or stream courses shall be undertaken in strict compliance with the floodproofing and related provisions contained herein, and in all other applicable federal, state and local codes, ordinances and regulations, including those of the Pennsylvania Department of Environmental Protection and the Chester County Conservation District.

L. Special requirements for subdivisions and land development. All subdivision proposals and land development proposals containing at least 50 lots or at least five acres, whichever is the lesser, in identified floodplain areas where base flood elevation data are not available, shall be supported by hydrologic and hydraulic engineering analyses that determine base flood elevations and floodway information. The analyses shall be prepared by a licensed professional engineer in a format required by FEMA for a conditional letter of map revision (CLOMR) and letter of map revision (LOMR). Submittal requirements and processing fees shall be the responsibility of the applicant.

M. Installation of utility facilities subject to floodplain regulations. Where utility lines or on-site facilities are required to be installed or replaced in an area subject to floodplain regulations, the following minimum standards shall apply:

(1) Water facilities. All new or replacement water facilities, whether public or private, shall be designed to minimize or eliminate infiltration of floodwaters into the system, and be located and constructed to minimize or eliminate flood damages.

(2) Sanitary sewer facilities. All new or replacement sanitary sewer facilities, and private package sewage treatment plants (including all pumping stations and collector systems, whether public or private) shall be designed to minimize or eliminate infiltration of floodwaters into the systems and discharges from the systems into the floodwaters. In addition, they should be located and constructed to minimize or eliminate flood damage and impairment.

(3) Drainage. Storm drainage facilities, whether public or private, shall be designed to convey the flow of stormwater runoff in a safe and efficient manner.

(4) All other new or replacement public or private utilities and facilities shall be designed to minimize or eliminate infiltration of floodwaters into the system, and be located and constructed to minimize or eliminate flood damages.

N. Minimum floodproofing standards. Where a special exception has been requested under the provisions of Subsection H above, in which it is anticipated that a structure or use will be modified, altered, repaired, reconstructed, expanded or improved in any way, when a sewage treatment plant or pumping station is contemplated under the provisions of Subsection F above, or where a special exception or variance is granted under the provisions of Subsection L below, the following minimum standards shall apply to floodproofing:

(1) Within any floodway area (F1), flood-fringe area (F2) or general floodplain area (F3), the lowest floor (including basement) of any new or improved residential structure shall be not less than 1 1/2 feet above the base flood elevation. Any nonresidential structure, or part thereof, made watertight below the regulatory flood elevation shall be floodproofed in accordance with the W1 or W2 space classification standards contained in the publication entitled "Flood-Proofing Regulations" published by the U.S. Army Corps of Engineers (June 1972, as amended March 1992) or with some other equivalent standard. All plans and specifications for such floodproofing shall be accompanied by a statement certified by a registered professional engineer or architect which states that the proposed design and methods of construction are in conformance with the above referenced standards. There should be a statement submitted with the permit application and a statement submitted with the as-built floodproofing certificate prior to the issuance of the certificate of occupancy.

(2) If fill is used to raise the finished surface of the lowest floor to the base flood elevation, such fill shall extend beyond a structure for a sufficient distance to provide acceptable access. For residential structures, fill shall extend laterally 15 feet beyond the building line from all points. For nonresidential structures, fill shall be placed to provide access acceptable for intended use. At-grade access, with fill extending laterally 15 feet beyond the building line, shall be provided to a minimum of 25% of the perimeter of a nonresidential structure.

(3) For all new construction and substantial improvements, fully or partially enclosed areas below the lowest floor (excluding basements) located within the floodplain which will be used solely for the parking of a vehicle, building access, or incidental storage in an area other than a basement shall be designed and constructed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must be certified by a registered professional engineer and must meet or exceed the following minimum criteria:

(a) A minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area installed on two separate walls.

(b) The bottom of all openings shall be no higher than one foot above grade.

(c) Openings may be equipped with screens, louvers, or other coverings or devices provided they permit the automatic entry and exit of floodwaters.

(4) All air ducts, large pipes and storage tanks located at or below the base flood elevation shall be firmly anchored to resist flotation.

(5) Depending on the type of structure involved, the following information shall also be included in the application and maintained on record by the Zoning Officer:

(a) For structures to be elevated to the base flood elevation:

[1] A plan showing the size of the proposed structure and its relation to the lot where it is to be constructed.

[2] A determination of elevations of the existing ground, proposed finished ground, lowest floors, to be certified by registered professional engineer, surveyor or architect.

[3] Plans showing the method of elevating the proposed structure, including details of proposed fills, pile structures, retaining walls, foundations, erosion protection measures, etc. These plans shall be prepared by a registered professional engineer or architect.

[4] Plans showing the methods used to protect utilities (including sewer, water, telephone, electric, gas, etc.) from flooding to the base flood elevation at the building site.

(b) For structures to be floodproofed to the base flood elevation (nonresidential structures only):

[1] A registered professional engineer or architect shall develop the structural design, specifications, and plans showing details of all floodproofing measures, and showing the size of the proposed structure and its relation to the lot where it is to be constructed. The plan must include a determination of elevations of existing ground, proposed finished ground, lowest floors and floodproofing limits.

[2] A certificate prepared by the registered professional engineer or architect who prepared the plans in § 170-401F(4), above, that the structure in question, together with attendant utility and sanitary facilities, is designed so that:

[a] Below the base flood elevation the structure is watertight with walls substantially impermeable to the passage of water.

[b] The structure will withstand the hydrostatic, hydrodynamic, buoyant impact and other forces resulting from the flood depths, velocities, pressures, and other factors associated with the base flood elevation.

[3] A certificate must be provided to the Township which includes the specific elevation (in relation to mean sea level) in North American Vertical Datum of 1988 to which the structures are floodproofed to be maintained with the Township Zoning Officer.

(6) Structures accessory to a principal building need not be elevated or floodproofed to remain dry, but shall comply, at a minimum, with the following requirements:

(a) The structure shall not be designed or used for human habitation, but shall be limited to the parking of vehicles, or to the storage of tools, material, and equipment related to the principal use or activity.

(b) Floor area shall not exceed 200 square feet.

(c) The structure will be located on the site so as to cause the least obstruction to the flow of floodwaters.

(d) Power lines, wiring, and outlets will be at least 1 1/2 feet above the base flood elevation.

(e) Permanently affixed utility equipment and appliances such as furnaces, heaters, washers, dryers, etc., are prohibited.

(f) Sanitary facilities are prohibited.

(g) Lateral movement and shall be designed to automatically provide for the entry and exit of floodwater for the purpose of equalizing hydrostatic forces on the walls. Designs for meeting this requirement must either be certified by a registered professional engineer or architect, or meet or exceed the following minimum criteria:

[1] A minimum of two openings having a net total area of not less than one square inch for every square foot of enclosed space.

[2] The bottom of all openings shall be no higher than one foot above grade.

[3] Openings may be equipped with screens, louvers, etc., or other coverings or devices provided that they permit the automatic entry and exit of floodwaters.

(h) If a variance is granted, a signed declaration of land restriction (nonconversion agreement) shall be recorded on the property deed prior to issuance of the certificate of occupancy.

(i) The storage of hazardous materials in accessory structures is prohibited.

O. Hardships.

(1) When the provisions of this § 170-401 are deemed by the applicant to be unreasonable or to create a substantial hardship, the applicant shall have a right to:

(a) In the case of applications for permitted uses under Subsections G or H, above, make an appeal to the Zoning Hearing Board in accordance with the provisions of Article XXI of this chapter.

(b) In the case of an appeal to the Zoning Hearing Board for a special exception under the provisions of Subsection J, above, supply additional testimony and evidence to the Zoning Hearing Board as part of his request for relief from such hardship.

(2) All decisions on such appeals shall adhere to the following criteria:

(a) Any person aggrieved by any action or decision of the floodplain administrator concerning the administration of the provisions of this section may appeal to the Zoning Hearing Board. Such appeal must be filed, in writing, within 30 days after the decision, determination or action of the floodplain administrator.

(b) The Zoning Hearing Board shall not grant a variance or special exception for any construction, development, use or activity within an area subject to floodplain regulations that would cause any increase in the base flood elevation.

(c) The Zoning Hearing Board shall grant special exceptions only upon a showing of good and sufficient cause; a determination that failure to grant the appeal would result in exceptional hardship to the applicant; and a determination that the granting of an appeal will not result in increased flood heights, additional threats to public safety, extraordinary public expense, creation of nuisance, fraud on or victimization of the public or conflict with existing local laws or ordinances.

(d) The Zoning Hearing Board shall grant a special exception only upon determination that it is the minimum necessary to afford relief, considering the flood hazard. In the case of requirements for floodproofing, the highest feasible class of floodproofing as defined by floodproofing regulations promulgated by the U.S. Army Corps of Engineers, shall be provided.

(e) The Zoning Hearing Board shall not grant a special exception for new construction and substantial improvements of residential structures within Zones AE and A as shown on the Flood Insurance Rate Map having the lowest floor (including basement) 1.5 feet above base flood elevation.

(f) The Zoning Hearing Board shall notify the applicant in writing over the signature of the Chairman of the Zoning Hearing Board that the issuance of a decision to allow construction of a structure below the base flood elevation will result in increased premium rates for flood insurance; and such construction below the base flood elevation increases risks to life and property. Such notification shall be maintained with a record of all decisions as required in Subsection O(2)(g) below.

(g) The Zoning Hearing Board shall maintain a record of all decisions including justification for their issuance and report such decisions issued in its annual report submitted to the Federal Emergency Management Agency.

(h) No special exception or variance shall be granted for any requirement pertaining to developments which may endanger human life [as described in § 170-401I(4), (6), (7), (8), and (9) of this chapter], hospitals, nursing homes, jails/prisons or manufactured home parks in accordance with the Pennsylvania Flood Plain Management Act, P.L. 851, No. 166 of 1978, as amended.

(i) Upon receiving an application for a special exception or variance, the Zoning Hearing Board shall, prior to rendering a decision thereon, require the applicant to furnish such of the following material as is deemed necessary by the Board:

[1] Plans in triplicate drawn to scale showing the nature, location, dimensions and elevation of the lot and existing and proposed uses; photographs showing existing uses and vegetation; soil types and other pertinent information.

[2] A series of cross-sections at twenty-five-foot intervals along the lot shoreline, showing the stream channel and elevation of adjoining land areas to be occupied by the proposed uses, and high water information. Cross-sections shall be field-run topography based on a known USGS benchmark.

[3] Profile showing the slope of the bottom of the channel.

[4] Specifications for building materials and construction, floodproofing, filling, dredging, grading, storage, and water supply and sanitary facilities.

[5] Computation of the increase, if any, in the height of the base flood which would be attributable to any proposed uses.

[6] A deed notation or lease notation, to be placed on record to run with the land, which notation shall contain the following provision: "This lot is entirely (partially) within an area subject to floodplain regulations as defined by Article IV of the Westtown Township Zoning Ordinance."

(j) In considering any application for a special exception or variance, the Zoning Hearing Board may request at the hearing the testimony of any Township Board, Commission, or technical advisor concerning the extent to which the proposed use would diminish the capacity of areas subject to floodplain regulations to store and absorb floodwaters, to moderate flood velocities, and to accommodate sediment; be subject to flood damage; cause erosion and impair the amenity of areas subject to floodplain regulations; or adversely affect the area contiguous to areas subject to floodplain regulations as well as areas downstream; or on any other pertinent aspect of the case.

(k) In all proceedings before the Zoning Hearing Board, including application for special exception from the provisions of this section, the burden of proof shall be on the applicant to show that the use required will be in general conformity with the objectives of this section, that proper safeguards will be observed, and that the use will not be injurious to the public health, safety, and general welfare.

(l) The applicant shall demonstrate that the use will be in accordance with all applicable federal, state and local agency codes, ordinances and regulations including those of the Pennsylvania Department of Environmental Protection and the Chester County Conservation District, and that permits will be obtained from these agencies as a condition of receiving a building or construction permit from Westtown Township for the work identified in the application to the Zoning Hearing Board.

(m) Upon receipt of such appeal the Zoning Hearing Board shall consider the appeal in accordance with the Municipal Planning Code and any other local ordinance.

(n) Any person aggrieved by any decision of the Zoning Hearing Board may seek relief therefrom by appeal to court, as provided by the laws of this state, including the Pennsylvania Flood Plain Management Act.

§ 170-402 Steep Slope Conservation District.

A. Intended purposes. The purposes of this section are as follows:

(1) To promote the public health, safety and welfare by the protection of steep slope areas and by encouraging the retention of open space located and designed so as to constitute a harmonious and appropriate part of the physical development of Westtown Township.

(2) To permit only those uses of steep slope areas which are compatible with the conservation of natural conditions and which maintain stable soil conditions by minimizing disturbances to vegetative ground covers and restricting the regrading of steep slope areas.

(3) To limit soil erosion and the resultant destruction of the land, siltation of streams, and damage to the property of individuals.

(4) To protect low-lying areas from flooding by limiting the increase in stormwater runoff caused by grading of sloped areas, changes of ground cover, or the erection of structures.

(5) To maintain the ecological integrity and habitat value of steeply sloped areas, i.e., indigenous vegetation and wildlife, which could be adversely affected by otherwise permitted disturbances.

(6) To allow the continuing replenishment of groundwater resources and the maintenance of springs.

B. General provisions.

(1) Compliance. No area within the Steep Slope Conservation District shall hereafter be used without full compliance with the terms of this section and other applicable regulations.

(2) Steep Slope Conservation District overlay concept. The Steep Slope Conservation District shall be deemed an overlay on any zoning district(s) now or hereafter enacted to regulate the use of land in Westtown Township.

(a) The Steep Slope Conservation District shall have no effect on the permitted uses in the underlying zoning district, except where said uses are intended to be located within the boundaries of the Steep Slope Conservation District, as defined herein, and said uses are in conflict with the permitted uses set forth in this section.

(b) In those areas of the Township where the Steep Slope Conservation District applies, the requirements of the Steep Slope Conservation District shall supersede the requirements of the underlying zoning district(s).

(c) Should the Steep Slope Conservation District boundaries be changed as a result of legislative or administrative actions or judicial decision, the zoning requirements applicable to the area in question shall revert to the requirements of the underlying zoning district(s) without consideration of this section.

(d) For any parcel or any part thereof on which the Steep Slope Conservation District is an overlay, should the underlying zoning classification(s) be changed as a result of legislative or administrative actions or judicial decision, such change(s) in classification shall have no effect on the boundaries of the Steep Slope Conservation District, unless an amendment to said boundaries was included as part of the proceedings from which the subsequent change(s) originated.

(3) Preservation of other restrictions. It is not intended by this section to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this section imposes greater restrictions, the provisions of this section shall prevail.

(4) Municipal liability. Any determination that a proposed use complies with this chapter, or any approval of a subdivision or land development plan, or any issuance of a building permit within or near the Steep Slope Conservation District shall not constitute a representation, guarantee, or warranty of any kind by the Township, or by any official or employee thereof, of the practicability or safety of the proposed use and shall create no liability upon the Township, its officials or employees. This chapter does not imply that areas outside the Steep Slope Conservation District boundaries or land uses permitted within said District will always be totally free from the adverse effects of erosion, or other effects of nearby steep slopes.

C. Designation and interpretation of district boundary.

(1) The Steep Slope Conservation District consists of two areas which are delineated and defined as follows:

[Amended 5-20-1996 by Ord. No. 96-5]

(a) Prohibitive slope. Prohibitive slopes are those of greater than 25% delineated and measured over a six-foot or greater difference in vertical elevation, as based on a site survey or on the United States Geological Survey Topographic Maps of the Regional Base Map Series of 1973 for the West Chester Quadrangle (i.e., sloping more than 25 feet vertical over a distance of 100 feet horizontal), where such slope exists over any continuous horizontal distance of 50 feet or more, as measured parallel to the contour lines.

(b) Precautionary slope. Precautionary slopes are those of 15% to 25% delineated and measured over a six-foot or greater difference in vertical elevation, as based on a site survey or on the United States Geological Survey Topographic Maps of the Regional Base Map Series of 1973 for the West Chester Quadrangle (i.e., sloping 15 to 25 feet vertical over a distance of 100 feet horizontal), where such slope exists over any continuous horizontal distance of 50 feet or more, as measured parallel to the contour lines.

(2) Accurate topography shall be shown. If a more detailed topographic survey has not been completed, see the topographic mapping of the Chester County Department of Computing and Information Services.

[Amended 3-3-2003 by Ord. No. 2003-2]

(3) Boundary interpretation and appeals procedure.

(a) Each application for construction or land disturbance within the Steep Slope Conservation District shall be submitted in accordance with § 170-402E(1) below. Any area of the Steep Slope Conservation District that falls within the subject lot or lots shall be interpolated and shown on the site plan required under § 170-402E(1)(a) through shading of such area or areas. The site plan shall contain a certification by the registered professional engineer or surveyor having prepared the plan as to the accuracy of the slopes as depicted on the plan. Areas shown as less than 10% slope may be based on United States Geological Survey information. Any area shown as 10% or greater slope shall be delineated on the basis of an actual field survey of the topography of the site.

(b) Where the exact location of the boundaries of the district in relation to a given parcel is in question, the applicant's site plan may be supplemented by a topographic survey of the property and any other documentation deemed pertinent. The Township Engineer shall evaluate all such material submitted and shall make a written report of the results of his determination, a copy of which shall be provided to Board of Supervisors.

(c) Any party aggrieved by any such determination of the Township Engineer or other decision or determination under this section may appeal to the Zoning Hearing Board. The party contesting the location of the district boundary shall have the burden of proof in case of any such appeal.

D. Permitted uses.

(1) Standards applicable to all uses within the steep slope conservation district.

(a) All grading shall be minimized, and no grading shall be undertaken within any area of the Steep Slope Conservation District except where approved in conjunction with a use permitted under the terms of this section.

(b) Finished slopes of all cuts and fills shall not exceed 33%, unless the applicant can demonstrate that steeper slopes can be stabilized and maintained adequately.

(2) Uses permitted in areas of prohibitive slope. The following are the only uses permitted as of right in areas of prohibitive slope. Such uses also shall be in compliance with the base zoning district, and shall not involve the erection of buildings, construction of streets, installation of sewage disposal systems, or permanent removal of topsoil.

(a) Parks and outdoor recreational uses, consistent with the goals of watershed protection.

(b) Logging and woodcutting, where such activity is limited to highly selective removal of trees. Maximum precautions shall be taken to avoid destruction of or injury to understory brush and trees.

(c) Grading for the minimum portion of a driveway necessary to access a single-family dwelling when it can be demonstrated that no other routing which avoids slopes exceeding 20% is feasible.

(d) Yard area of any permitted building, so long as such building is itself not within the prohibitive slope area. The yard area may not be disturbed by grading or clearing.

(3) Uses permitted in areas of precautionary slope; lot area; impervious coverage.

[Amended 5-20-1996 by Ord. No. 96-5; 3-3-2003 by Ord. No. 2003-2]

(a) In areas of precautionary slope, the same uses shall be allowed as provided in the underlying zoning district.

(b) All grading of precautionary slope shall be conducted in a manner that minimizes alteration of the landscape, that maximizes preservation of natural vegetation and that avoids erosion.

(c) The Zoning Officer may require that the applicant for activity within areas of over 15% slopes submit an erosion and sedimentation control plan for review and approval by the Chester County Conservation District and/or Township Engineer, and/or submittal and approval of a stormwater management plan by the Township Engineer.

[1] The Zoning Officer shall place conditions upon any permit to incorporate mitigation measures to ensure compliance with this chapter and state regulations and to provide for stable slopes, based upon any review of the Township Engineer or Conservation District. If such reviews are required, the applicant shall be required to fund the costs of such reviews.

[2] The procedures and standards contained in § 170-402E shall also apply.

(d) Any vegetation removal shall be conducted in a selective manner that minimizes erosion.

(e) Any road or driveway shall be designed in a manner that minimizes alteration of slopes over 15%. To the maximum extent feasible, roads and driveways shall follow the natural topography to minimize cuts and fills.

(f) If the total of all area(s) of precautionary slopes on a lot exceed 25% of the total area of a lot, then no more than 50% of the precautionary slopes on that lot shall be disturbed, graded or modified.

(g) Alteration shall not occur in areas of natural springs. Alteration shall be minimized around other important groundwater resource features.

E. Administration. Administration of this section is governed by Article XX of this chapter. In addition, the following requirements shall apply:

[Amended 5-20-1996 by Ord. No. 96-5; 3-3-2003 by Ord. No. 2003-2]

(1) Application procedures. Before a permit is issued for any construction or land disturbance activity on land within or affecting the Steep Slope Conservation District, the following material, in full or in pertinent parts, shall be submitted for review by the Township Engineer:

(a) An earthmoving plan of the property which indicates existing grades with contour lines at two-foot intervals. Proposed grades within the area of any proposed activity, disturbance, or construction also shall be shown. All areas within the Steep Slope Conservation District shall be shaded accordingly.

(b) A site plan indicating existing and proposed structures, other impervious surfaces, storm drainage facilities, and retaining walls. The site plan also shall locate and identify existing vegetation and ground cover within areas of prohibitive and precautionary slopes, as well as proposed landscaping material to be installed.

(c) Architectural plans, elevations, and sections.

(d) A statement, signed and sealed by a registered architect or engineer, explaining the building methods to be used in overcoming foundation and other structural problems created by slope conditions, preserving the natural watersheds, and preventing soil erosion and excessive surface water runoff to neighboring properties and/or streets.

(e) Plan, profile, and typical cross sections of any proposed street, emergency access, or driveway, with the seal of a registered professional engineer thereon.

(f) A statement, signed by the owner or future occupant at the time of subdivision, land development, or building permit application, that there is a full understanding of any difficulties associated with access stemming from steep slopes.

No approval or building permit shall be authorized by the Zoning Officer without the Township Engineer's review of this material and his recommendation thereon.

§ 170-403 Wetlands; soils with seasonally high water table.

A. Soils with seasonally high water table. No on-site sewer system, or any portion thereof, shall be constructed or located on or within any soil area where the seasonal high water table, according to the Soil Survey of Chester and Delaware Counties (Soil Conservation Service, 1063), is within one foot of the ground surface.

B. Wetlands.

[Amended 3-3-2003 by Ord. No. 2003-2]

(1) Wetlands shall be determined to exist when indicated by one or more of the following:

(a) The National Wetlands Inventory Maps, as prepared by the U.S. Fish and Wildlife Service;

(b) Hydric soils, as depicted in the Soil Survey of Chester and Delaware Counties; and

(c) The existence of hydrophytic vegetation or hydrologic conditions, as determined by on-site investigations.

C. Should the existence of wetlands be indicated as per the requirements of § 170-403B(1) above, a wetlands delineation shall be performed by a licensed professional engineer, hydrogeologist, soil scientist, or similarly qualified professional experienced in wetlands ecology, the selection of such at the discretion of the applicant. Plans shall be submitted to the Township for review which show the delineation and indicate any disturbance of wetlands anticipated. The qualifications of the consultant performing the delineation shall be submitted with such plans. Further, unless it is clearly evident in such plans that no disturbance to the designated wetlands is anticipated, the delineation performed shall be submitted to the appropriate regulatory agencies, including but not limited to the US Army Corps of Engineers and the Pennsylvania Department of Environmental Protection (PADEP) for boundary confirmation and/or requisite wetlands permits. All potential impacts on wetlands shall conform to applicable regulations, as amended.

[Amended 3-3-2003 by Ord. No. 2003-2]

D. Should the Township conclude per the requirements of § 170-403B(1) that wetlands exist on the site, contrary to the applicant's findings, the Township shall, at its discretion, request that either the Corps of Engineers or PADEP verify the Township's findings and perform a delineation. In the event such agencies verify the Township's findings, the applicant will be required to secure any required wetlands permits, unless the applicant's activity clearly will not impact existing wetlands.

[Amended 3-3-2003 by Ord. No. 2003-2]

E. Where wetlands exist and disturbance permits and/or mitigation activities are required, final plan approval or granting of applicable permits from the Township shall be contingent upon the applicant receiving all necessary permits from the PADEP.

[Amended 3-3-2003 by Ord. No. 2003-2]

§ 170-404 Existing vegetation; management practices.

A. Conservation of woodlands and other vegetation.

(1) Except in conjunction with routine property maintenance, disturbance to the following shall be minimized:

(a) Healthy, well-stocked woodlands. In instances where disturbance or tree cutting is unavoidable or considered desirable in accordance with sound forest management practice, an effort shall be made, with consultation from a qualified professional, to retain as much of the woodland as possible, of a size and configuration which would promote its growth and natural regeneration.

(b) Vegetation, other than woodlands, providing wildlife food and cover or visual amenity. This may include, but not necessarily be limited to, single or groups of specimen trees, hedgerows, and other vegetation not considered as woodland.

(2) Disturbance or removal of vegetation occupying environmentally sensitive areas shall be undertaken only when necessary and on a limited, selective basis to minimize the adverse impacts of such actions. This shall include but not necessarily be limited to vegetation performing important soil stabilizing functions on floodplains, stream and pond banks, and sloping lands.

B. Protection of vegetation from mechanical injury and grading change.

(1) All woody vegetation to be retained within 25 feet of a building site, parking area, or other proposed improvement shall be protected from equipment damage by snow fencing or other effective barriers.

(2) Heavy equipment operators shall minimize damage to existing tree trunks and root systems by not driving heavy equipment within the area circumscribed by the drip line of any tree. In addition, roots shall not be cut or disturbed within the area circumscribed by the dripline of any tree.

(3) Tree trunks and exposed roots damaged during construction shall be protected from further damage by fencing or other structural barrier. Treatment of damaged areas shall be dictated by the nature of the injury, e.g., damaged bark shall be cut back to a point where the bark is intact and tight to the tree, exposed roots shall be cleaned up and covered with topsoil.

(4) Trees shall not be used for roping, cables, signs, or fencing. Nails and spikes shall not be driven into trees.

(5) The area around the base of existing woody vegetation shall be left open. No impervious cover, storage of equipment, materials, debris, or fill shall be allowed within the dripline of any existing tree.

(6) Grade changes to occur at any location on the property shall not result in an alteration to soil or drainage conditions which would adversely affect existing vegetation to be retained following site disturbance, unless adequate provisions are made to protect such vegetation and its root systems.

C. Protection of vegetation from excavations.

(1) When digging trenches for utility lines or similar uses, disturbance to the root zones of all woody vegetation shall be minimized.

(2) If trenches must be excavated in the root zone, all disturbed roots shall be cut as cleanly as possible. The trench shall be backfilled as quickly as possible, avoiding soil compaction.

D. Vegetated area maintenance standards for all districts.

(1) Intent of regulations. It is the intent of these regulations that, within or adjacent to predominantly residential areas, property owners shall not permit vegetation to become overgrown to the point of becoming unsightly and/or unhealthy. At the same time, plants that are grown for a useful or ornamental purpose, fields in agricultural use, and areas of significant natural value should not be subjected to excessive, unnecessary, or hindering standards of maintenance.

(2) Terms of management. Where applicable [as determined by Subsection D(3) and (4) below], the following practices for the control of vegetation on properties within Westtown Township shall be adhered to:

(a) On developed properties, grassed areas shall be controlled to a maximum height of 12 inches during the growing season.

(b) Mowing shall be timed for the most effective control of the specific vegetation (e.g., ragweed and Canada thistle to be mowed in midsummer before flower buds are set).

(c) Selective control of noxious vegetation, as defined, may be practiced by means other than mowing. Selective control shall include the following, in order of preferred method: hand pulling, mechanical removal, burning, trimming; use of herbicides shall be the least preferable means of control. No method shall be used which would completely strip vegetation off the soil.

(3) Conditions of applicability.

(a) Except as exempted under Subsection D(4) below, the terms of this section shall apply to:

[1] Any lot within a subdivision or land development in which average lot size is two acres or less; or

[2] Any preexisting lot of two acres or less, whether or not created through a prior subdivision.

(b) Lots shall be considered established, for purposes of this section, upon final approval by the Township and recording in the office of the Recorder of Deeds of Chester County.

(4) Exemptions from the terms of this section.

(a) Character of the lot: uses, existing vegetation. The terms of this section, where otherwise applicable, may be waived when a lot, or portion thereof, exhibits one or more of the following uses and/or vegetative characteristics:

[1] Floodplain (as delineated in § 170-401 of this chapter) or marsh;

[2] Meadow, wildflower meadow, berry patch;

[3] Hedgerow;

[4] Agriculture, including land left fallow for up to one year; and

[5] Areas undergoing a directed process of natural succession.

(b) Character of abutting uses.

[1] The terms of this section may be waived where:

[a] None of the lands abutting or across a road from the lot are being put to development uses (residential, institutional, commercial, industrial); or

[b] All abutting developed lands are owned by (and occupied by no one other than) the party owning the lot in question, and/or abutting landowners waive enforcement of the terms of this section against the lot.

[2] The waivers in Subsection D(4)(a) and (b) above shall not apply to that portion of the lot within 50 feet of an existing road surface, said portion still requiring vegetation control as per § 170-404D(2) above.

(5) Enforcement.

(a) Interpretation, administration, and enforcement of the terms of this section shall be the responsibility of the Westtown Township Zoning Officer. Any appeal from his decision shall be handled in accordance with the terms of Article XXI of this chapter.

(b) In evaluating the applicability of these requirements and exemptions, the Zoning Officer shall, as he/she deems necessary, consult with the Township Engineer or other organizations or individuals with conservation expertise. Such consultation shall, to the maximum extent possible, involve the affected landowner, and shall be conducted for the purpose of attaining the greatest consistency with the stated intent of these regulations.

E. This § 170-404 shall not apply to forestry that meets the requirements of § 170-408.

[Added 3-3-2003 by Ord. No. 2003-2]

F. Subdivision and land development. See also the tree preservation and replacement requirements in § 149-924D of the Township Code.

[Added 3-3-2003 by Ord. No. 2003-2]

§ 170-405 Agriculturally suited soils conservation.

A. In any use or development of a tract where permanent open space is to be created and/or retained, the landowner or applicant shall, whenever possible and in conjunction with other applicable ordinances, include in such open space those agriculturally suited soils whose acreage, configuration, and location offer future opportunity for agricultural use.

B. In the siting of individual structures on lots, areas of agriculturally suited soils should be left free of structures or paving whenever possible, to allow opportunities for gardens and other agricultural uses.

§ 170-406 Topsoil retention.

A. Permission to remove required. No person shall excavate or otherwise remove topsoil for sale or for use other than on the premises from which the topsoil shall be taken, except in connection with the construction or alteration of a building on such premises in conjunction with an approved plan, and excavation or grading incidental thereto, without first having procured permission therefor from the Board of Supervisors.

B. Application.

(1) The Board of Supervisors shall not consider any application for the removal of topsoil from the premises for sale or otherwise unless and until the owner of the premises shall first file with the Zoning Officer an application requesting such permission, together with a map of the premises prepared by a registered surveyor, showing the contour lines and proposed contour grades resulting from such intended removal of topsoil in relation to the topography of the premises, and the proposed contour lines, proposed grades, and an estimate of the amount of topsoil in cubic yards to be removed, shall be subject to the inspection and approval of the Board of Supervisors.

(2) An erosion and sedimentation control plan and erosion control permit approved by the Chester County Conservation District must accompany the application for the removal of topsoil from the premises.

(3) No such permission for topsoil removal shall be issued until such map plan and permit has been filed, and until the proposed contour lines and grades have been approved by the Board of Supervisors.

C. Review procedure. A hearing before the Board of Supervisors shall be granted to an applicant for permission to remove topsoil within 30 days after the applicant request such a hearing. The Board of Supervisors in considering and reviewing the application and in arriving at its decision shall be guided and take into consideration the public health, safety or general welfare and particular consideration shall be given to the following factors.

(1) Soil erosion by water and wind.

(2) Drainage.

(3) Soil fertility.

(4) Lateral support slopes and grades of abutting streets and lands.

(5) Land values and land uses.

(6) Such other factors that may relate to the public health, safety or general welfare.

D. If after examining the application and the map provided for in § 170-406B(2) of this chapter, and after the hearing in the event a hearing is requested by the applicant, and the Board of Supervisors is of the opinion that the proposed topsoil removal will not create conditions inimical to the public health, welfare or safety, and will not result in the creation of any sharp declivities, pits or depressions, topsoil erosion or fertility problems, depressed land values, nor create any drainage, sewerage problems or other conditions of danger, permission to remove the topsoil shall be granted.

E. Conduct of operation:

(1) If permission to remove the topsoil shall be granted, the owner or person in charge shall so conduct the operations that there shall be no sharp declivities, pits or depressions and in such a manner that the area shall be properly leveled off, cleared of debris, and graded to conform with the contour lines and grades as approved by the Board of Supervisors.

(2) The topsoil removal operations shall not be permitted within 60 feet of a property line.

(3) The owner of the premises or the person in charge of the removal of topsoil, when permission has been duly granted, shall not remove from the premises the top layer of arable soil to a depth of six inches, but such top layer of arable soil to a depth of six inches shall be set side for retention on the premises, and shall be respread over the premises when the rest of the soil has been removed, pursuant to levels and contour lines approved by the Board of Supervisors.

(4) The soil removal operation may not take place during the months of December, January, and February.

(5) Dust and mud on public roads resulting from the topsoil removal operation shall be removed or controlled within 24 hours of notice by the Township to the owner or person in charge.

(6) All areas where topsoil has been stored, or removed and respread shall be reseeded with an appropriate ground cover within 30 days.

F. Permit required:

(1) No excavation shall be made and no topsoil shall be removed under the provisions of this chapter unless a permit therefor shall have been first obtained as provided herein, and no excavation shall be made and no topsoil shall be removed except in conformity with the provisions of this section and Chapter 149, Subdivision and Land Development. At the time of application, a fee to the order of the Township shall be paid by the applicant for the permit for removal of the topsoil from the premises. Said fee shall be as provided for in § 170-2304 of this chapter.

(2) In the event of refusal of the topsoil removal permit the fee paid by the applicant shall be refunded, except that all monies and costs incurred by the Township for engineering surveys and reports, inspection fees and legal fees shall be retained by the Township and balance remaining shall be refunded to the applicant, together with a statement of the costs and expenses incurred by the Township in the processing of said application.

G. Guarantees. The Board of Supervisors shall require a guaranty in the form of a bond or escrow funds, to be provided prior to issue of the permit for removal of topsoil from the premises. The bond or funds shall be furnished under such conditions and form with surety as shall be approved by the Board to guarantee the operation pursuant to the application and map, Erosion and Sedimentation Control Plan, and § 170-406D of this chapter. The amount of the bond shall not be less than $10,000.

§ 170-407 Setback from perennial creek.

[Added 3-3-2003 by Ord. No. 2003-2; amended 5-2-2005 by Ord. No. 2005-4]

A. No new principal or accessory building or use, parking or commercial or industrial storage area shall be located within a minimum of 75 feet from the top bank of a perennial creek.

B. Where the majority of existing trees and shrubs are removed from areas between a perennial creek and a distance of 75 feet from the top bank of such creek, new trees and shrubs shall be planted and maintained that will have the same or better impact upon controlling erosion and filtering pollutants from runoff.

§ 170-408 Forestry.

[Added 3-3-2003 by Ord. No. 2003-2]

A. Forestry, as defined by § 170-201, shall be permitted by right in all zoning districts. These provisions in § 170-408 shall only apply to the removal of trees for use as firewood or wood products that are unrelated to any current or prospective development of land or buildings. Tree cutting as part of current or prospective development shall be regulated by § 170-404. The cutting down of trees of less than six inches trunk diameter is not regulated by this § 170-408. For the purposes of this section, all trunk diameters shall be measured at 3.5 feet above the ground level.

B. On any lot, a maximum of 10% of the trees of six inches or more trunk diameter may be cut down in any calendar year without a zoning permit.

C. On any lot, if more than 10% of the trees of six inches or more trunk diameter are proposed to be cut down in any calendar year, then a Township zoning permit shall be required. This § 170-408 shall not regulate Christmas tree farms. If such forestry involves more than one acre of forested land, then the following additional requirements shall apply:

(1) The applicant shall submit a written forest management plan prepared by a professional forester that shows that the land will be managed according to accepted professional standards to result in the long-term productivity of the forest and that shows and describes the extent of tree cutting. The forestry shall comply with the management plan.

(2) The applicant shall submit and comply with a soil and sedimentation control plan. This plan shall include, but not be limited to, measures to address creek and wetland crossings and logging roads.

(3) Clearcutting shall be prohibited, except for areas that need to be cleared to construct a use or structure that has received Township approval.

(4) A minimum of 20% of the forest cover (canopy) shall be kept and residual trees shall be well distributed.

D. No cutting down of live trees shall occur within a street right-of-way without a Township permit, except for forestry conducted by Penn DOT or its contractors or public utilities.

E. In any forestry operation, the majority of trees with trunks located within 20 feet of a lot line or street right-of-way shall not be cut down or otherwise killed.

F. Debris from any forestry operation shall be removed, except as otherwise provided for in the forest management plan.