[Ord. No. 2008-29 §1, 7-14-2008]
A.
Buffer And Setback Requirements. All land development activity
subject to this Chapter shall meet the following requirements:
1.
For streams depicted as a solid blue line on the U.S.G.S. map, an
undisturbed natural vegetative buffer shall be maintained for fifty
(50) feet, measured horizontally, on both banks (as applicable) of
the stream as measured from the top of the stream bank. For all other
streams subject to this Chapter, an undisturbed natural vegetative
buffer shall be maintained for twenty-five (25) feet, measured horizontally,
on both banks (as applicable) of the stream as measured from the top
of the stream bank.
2.
An additional setback shall be maintained for twenty-five (25) feet,
measured horizontally, beyond the undisturbed natural vegetative buffer,
in which all impervious cover shall be prohibited. Grading, filling
and earthmoving shall be minimized within the setback.
3.
No septic tanks or septic tank drain fields shall be permitted within
the buffer or the setback.
B.
Variance Procedure. Variances from the above buffer and
setback requirements may be granted in accordance with the following
provisions:
1.
Where a parcel was platted prior to the effective date of this Chapter
and its shape, topography or other existing physical condition prevents
land development consistent with this Chapter and the Director of
Public Works finds and determines that the requirements of this Chapter
prohibit the otherwise lawful use of the property by the owner, the
Board of Adjustment may grant a variance from the buffer and setback
requirements hereunder, provided such variance requires mitigation
measures to offset the effects of any proposed land development on
the parcel.
2.
Except as provided above, the Board of Adjustment shall grant no variance from any provision of this Chapter without first conducting a public hearing on the application for variance and authorizing the granting of the variance by an affirmative vote of the Board of Adjustment. The Board of Adjustment shall give public notice of each such public hearing in a newspaper of general circulation within the City of Overland. The Board of Adjustment shall require that the applicant post a sign giving notice of the proposed variance and the public hearing. The sign shall be of a size and posted in such a location on the property as to be clearly visible from the primary adjacent road right-of-way. All notice provisions applicable to Board of Adjustment hearings as provided for in Section 400.930 shall be applicable.
Variances will be considered only in the following cases:
a.
When a property's shape, topography or other physical conditions
existing at the time of the adoption of this Chapter prevents land
development unless a buffer variance is granted.
b.
Unusual circumstances when strict adherence to the minimal buffer
requirements in the Chapter would create an extreme hardship.
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Variances will not be considered when, following adoption of
this Chapter, actions of any property owner of a given property have
created conditions of a hardship on that property.
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3.
At a minimum, a variance request shall include the following information:
a.
A site map that includes locations of all streams, wetlands, floodplain
boundaries and other natural features as determined by field survey;
b.
A description of the shape, size, topography, slope, soils, vegetation
and other physical characteristics of the property;
c.
A detailed site plan that shows the locations of all existing and
proposed structures and other impervious cover, the limits of all
existing and proposed land disturbance, both inside and outside the
buffer and setback. The exact area of the buffer to be affected shall
be accurately and clearly indicated;
d.
Documentation of unusual hardship should the buffer be maintained;
e.
At least one (1) alternative plan which does not include a buffer
or setback intrusion or an explanation of why such a site plan is
not possible;
f.
A calculation of the total area and length of the proposed intrusion;
g.
A storm water management site plan, if applicable; and
h.
Proposed mitigation, if any, for the intrusion. If no mitigation
is proposed, the request must include an explanation of why none is
being proposed.
4.
The following factors will be considered in determining whether to
issue a variance:
a.
The shape, size, topography, slope, soils, vegetation and other physical
characteristics of the property;
b.
The locations of all streams on the property, including along property
boundaries;
c.
The location and extent of the proposed buffer or setback intrusion;
d.
Whether alternative designs are possible which require less intrusion
or no intrusion;
e.
The long-term and construction water-quality impacts of the proposed
variance; and
f.
Whether issuance of the variance is at least as protective of natural
resources and the environment.
[Ord. No. 2008-29 §1, 7-14-2008]
A.
Any
permit applications for property requiring buffers and setbacks hereunder
must include the following:
1.
A site plan showing:
a.
The location of all streams on the property;
b.
Limits of required stream buffers and setbacks on the property;
c.
Buffer zone topography with contour lines at no greater than five
(5) foot contour intervals;
d.
Delineation of forested and open areas in the buffer zone; and
e.
Detailed plans of all proposed land development in the buffer and
of all proposed impervious cover within the setback.
2.
A description of all proposed land development within the buffer
and setback; and
3.
Any other documentation that the Director of Public Works may reasonably
deem necessary for review of the application and to insure that the
buffer zone ordinance is addressed in the approval process.
All buffer and setback areas must be recorded on the final plat
of the property following plan approval. A note to reference the vegetated
buffer shall state: "There shall be no clearing, grading, construction
or disturbance of vegetation except as permitted by the Stream Buffer
Protection Ordinance (Ordinance No. 2008-29)".
[Ord. No. 2008-29 §1, 7-14-2008]
Neither the issuance of a development permit nor compliance
with the conditions thereof nor with the provisions of this Chapter
shall relieve any person from any responsibility otherwise imposed
by law for damage to persons or property; nor shall the issuance of
any permit hereunder serve to impose any liability upon the City of
Overland, its officers or employees for injury or damage to persons
or property.
[Ord. No. 2008-29 §1, 7-14-2008]
A.
The
Department of Public Works may cause inspections of the work in the
buffer or setback to be made periodically during the course thereof
and shall make a final inspection following completion of the work.
The permittee shall assist the Department of Public Works in making
such inspections. The City shall have the authority to conduct such
investigations as it may reasonably deem necessary to carry out its
duties as prescribed in this Chapter and for this purpose to enter
at reasonable time upon any property, public or private, for the purpose
of investigating and inspecting the sites of any land development
activities within the protection area.
B.
No
person shall refuse entry or access to any authorized representative
or agent who requests entry for purposes of inspection and who presents
appropriate credentials, nor shall any person obstruct, hamper or
interfere with any such representative while in the process of carrying
out official duties.
[Ord. No. 2008-29 §1, 7-14-2008]
A.
Any
action or inaction which violates the provisions of this Chapter or
the requirements of an approved site plan or permit may be subject
to the enforcement actions outlined in this Section. Any such action
or inaction which is continuous with respect to time is deemed to
be a public nuisance and may be abated by injunctive or other equitable
relief. The imposition of any of the penalties described below shall
not prevent such equitable relief.
1.
Notice of violation. If the Director of Public Works
determines that an applicant or other responsible person has failed
to comply with the terms and conditions of a permit, an approved site
plan or the provisions of this Chapter, he shall issue a written notice
of violation to such applicant or other responsible person. Where
a person is engaged in activity covered by this Chapter without having
first secured the appropriate permit therefore, the notice of violation
shall be served on the owner or the responsible person in charge of
the activity being conducted on the site.
The notice of violation shall contain:
a.
The name and address of the owner or the applicant or the responsible
person;
b.
The address or other description of the site upon which the violation
is occurring;
c.
A statement specifying the nature of the violation;
d.
A description of the remedial measures necessary to bring the action
or inaction into compliance with the permit, the approved site plan
or this Chapter and the date for the completion of such remedial action;
e.
A statement of the penalty or penalties that may be assessed against
the person to whom the notice of violation is directed; and
f.
A statement that the determination of violation may be appealed to
the Board of Adjustment by filing a written notice of appeal within
thirty (30) days after the notice of violation (except that in the
event the violation constitutes an immediate danger to public health
or public safety, twenty-four (24) hours' notice shall be sufficient).
2.
Penalties. In the event the remedial measures described
in the notice of violation have not been completed by the date set
forth for such completion in the notice of violation, any one (1)
or more of the following actions or penalties may be taken or assessed
against the person to whom the notice of violation was directed. Before
taking any of the following actions or imposing any of the following
penalties, the Director of Public Works shall first notify the applicant
or other responsible person in writing of his intended action and
shall provide a reasonable opportunity of not less than ten (10) days
(except that in the event the violation constitutes an immediate danger
to public health or public safety, twenty-four (24) hours' notice
shall be sufficient) to cure such violation. In the event the applicant
or other responsible person fails to cure such violation after such
notice and cure period, the Director of Public Works may take any
one (1) or more of the following actions or impose any one (1) or
more of the following penalties:
a.
Stop work order. The Director of Public Works may
issue a stop work order which shall be served on the applicant or
other responsible person. The stop work order shall remain in effect
until the applicant or other responsible person has taken the remedial
measures set forth in the notice of violation or has otherwise cured
the violation or violations described therein, provided the stop work
order may be withdrawn or modified to enable the applicant or other
responsible person to take necessary remedial measures to cure such
violation or violations.
b.
Withhold certificate of occupancy. The Director
of Public Works may refuse to issue a certificate of occupancy for
the building or other improvements constructed or being constructed
on the site until the applicant or other responsible person has taken
the remedial measures set forth in the notice of violation or has
otherwise cured the violations described therein.
c.
Suspension, revocation or modification of permit. The Director of Public Works may suspend, revoke or modify the permit
authorizing the land development project. A suspended, revoked or
modified permit may be reinstated after the applicant or other responsible
person has taken the remedial measures set forth in the notice of
violation or has otherwise cured the violations described therein,
provided such permit may be reinstated (upon such conditions as the
Director of Public Works may deem necessary) to enable the applicant
or other responsible person to take the necessary remedial measures
to cure such violations.
d.
Penalties. For violations of this Chapter, the Director
of Public Works may issue a citation to the applicant or other responsible
person, requiring such person to appear in the Overland Municipal
Court to answer charges for such violation. Upon conviction, such
person shall be punished by a fine not to exceed one thousand dollars
($1,000.00) or imprisonment for ninety (90) days or both. Each act
of violation and each day upon which any violation shall occur shall
constitute a separate offense.
