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ShoreProtectionOrdProposal revised 05/30/2008 ORDINANCE NO. 11-2008 AN ORDINANCE TO AMEND THE CODE OF ORDINANCES SECTION 5-010(J) REGARDING SHORE PROTECTION FOR THE CITY OF TYBEE ISLAND, GEORGIA WHEREAS, the duly elected governing authority for the City of Tybee Island, Georgia, is authorized under Article 9, Section 2, Paragraph 3 of the Constitution of the State of Georgia to adopt reasonable ordinances to protect and improve the public health, safety, and welfare of the citizens of Tybee Island, Georgia, and WHEREAS, the duly elected governing authority for the City of Tybee Island, Georgia, is the Mayor and Council thereof, and WHEREAS, the governing authority desires to adopt ordinances under it police, zoning, and home rule powers, WHEREAS, the City of Tybee Island desires to amend the Code of Ordinances in order to establish a shore protection ordinance and repeal the ordinance existing relating to shore protection, Section 5-010(J), NOW, THEREFORE, be it ordained by the governing authority of the City of Tybee Island that Code Section 5-010(J) is amended so that hereafter such section shall read as follows: Section 5-010(J) Shore Protection 1. TITLE This ordinance shall be known as the Shore Protection Ordinance for the City of Tybee Island. 2. AUTHORITY This ordinance is established as a new chapter/section of the City of Tybee Island code. The authority for this chapter is based on the home rule provisions of the Georgia Constitution, 1983, Article IX, Section II, ¶2, 1983. revised 05/30/2008 2 3. FINDINGS Coastal sand dunes, beaches, sandbars, and shoals comprise a vital, unique, irreplaceable and fragile natural resource system, known as the sand sharing system which acts as a buffer to protect real and personal property and natural resources from the damaging effects of floods, winds, tides and erosion. The Mayor and Council further find that the preservation of the sand dunes, even when isolated from the sand sharing system is critical to the prevention of flooding and drainage problems in the City and it is therefore advisable that the City establish guidelines for the construction, maintenance, and establishment of structures and for activities in or near sand dunes and/or the sand sharing system. It is necessary to protect the vital resource system that only certain activities and alterations of the sand dunes and beaches and areas adjacent thereto which are considered to be in the best interest of the City and which do not substantially impair the values and functions of the dunes and sand sharing system are allowed. The Mayor and Council further find that the shorelines near the City are different or have different characteristics in various areas of the City and that therefore it is appropriate that zones be established for setting appropriate protections in each unique area. It is necessary to evaluate on a recurring basis changes in erosion, dune fields, and natural characteristics to reassess the appropriate manner and level of protection. 4. DEFINITIONS All words and phrases used herein shall have those definitions established in the Shore Protection Act, O.C.G.A. § 12-5-230. Even if a particular word or term is defined differently in the City Land Development Code, in the interpretation of this Ordinance, the definition of the Shore Protection Act is to control. revised 05/30/2008 3 5. AREAS OF OPERATION/ZONES OF APPLICABILITY The City may establish areas for shore protection. The areas may be reflected as shown on a map, a written description, aerial photographs, or any combination thereof to be retained permanently in the offices of the Building and Zoning Department of the City of Tybee Island. Photographic, typed or other copies of such map or descriptions or photographs may be certified by the Clerk of Council and shall be admitted as evidence in all courts and shall have the same force and effect as would the original map, description or photograph. The shore protection area(s) may be reviewed and reestablished at such times as directed by the Mayor and Council in all zones or in any particular zone, as the Mayor and Council deems advisable at that time. A) Front Beach Zone The area of the City designated as “the front beach” is represented generally by the area between the northern federal groin and the southern federal groin. Within this zone there is a seawall running generally in a north-south direction. This area shall be classified as the “front beach” zone and depicted on a map or photograph. In this front beach zone, the following rules shall be applicable to construction applications therein for locating the appropriate shore protection area: In such zone there shall be a setback and no building activity within 18 feet of the landward most line of the seawall unless the toe of the dune, as delineated by the Department of Natural Resources, encroaches landward of the seawall in which event there shall be a 10 foot setback from the landward toe of the dune or 18 feet from the seawall, whichever is greater. In the front beach zone, the described area is a “no build” area, where no building activities for the construction of a structure shall be permissible without a variance from the revised 05/30/2008 4 Mayor and Council. For land disturbing activities other than building, special review may be required before a permit is issued. B) South Beach Zone In the area southwest of federal groin on the south end of Tybee Island to be classified as the “South Beach” zone, the following rules shall apply for establishing the appropriate shore protection area: 1) Where a seawall exists, there shall be no building activity within 18 feet of the landward most line of the seawall unless the toe of the dune, as delineated by the Department of Natural Resources, encroaches landward of the seawall in which event there shall be a 10 foot setback from the landward toe of the dune or 18 feet from the seawall, whichever is greater. No building activities for the construction of a structure shall be permissible without a variance from the Mayor and Council. For land disturbing activities other than building, special review may be required before a permit is issued. 2) For areas where there is no seawall and no dunes, any building activity within 250 feet of the ordinary high water mark requires special review. 3) For areas where there is no seawall, but dunes are present, there shall be no building activity within 10 feet of the landward toe of the landward most dune as designated by the Department of Natural Resources. 4) In areas where there is no beach but, rather, the coast is a stream or river buffer, then those laws applicable to buffers in and around state waters shall be applied. C) North Beach Zone In areas north of the northern federal groin, to be classified as the “North Beach” zone, the following rules shall apply for establishing the appropriate shore protection area: revised 05/30/2008 5 1) For areas where there is no seawall, but dunes are present, there shall be no building activity within 10 feet of the landward toe of the landward most dune, as designated by the Department of Natural Resources. 2) For areas where there is no seawall and no dunes, the shore protection area shall be as established under the state Shore Protection Act by the Department of Natural Resources. Special review is required for building activities within the covered area. 6. PERMIT REQUIRED A) No person shall construct or erect any structure or construct, erect, conduct, or engage in any shoreline engineering activity or engage in any land alteration which alters the natural topography or vegetation of any area within the Area of Operation as defined in this ordinance, except in accordance with the terms and conditions of a permit therefore issued in accordance with the Shore Protection Act and a permit issued by the Mayor and Council of the City of Tybee Island. A permit may authorize the construction or maintenance of the project proposed in an application. After construction of a project pursuant to a permit, the project may be maintained without a permit so long as it does not further alter the natural topography or vegetation of the site or increase the size or scope of the project. Permits hereunder shall only be granted as a conditional permit subject to special review under the zoning ordinances of the city. B) No permit shall be required for a structure, shoreline engineering activity, or land alteration which existed as of July 1, 1979 with respect to permits under the Shore Protection Act and as of ____ day of __________, 2008 with respect to permits from the Mayor and Council provided that a permit must be obtained for any modification or expansion which would increase the encroachment into the shore protection area and provided further that if any structure, revised 05/30/2008 6 shoreline engineering activity, or land alteration is more than 80% destroyed by wind, water, or erosion as determined by an appraisal of the fair market value of the structure by a real estate appraiser certified pursuant to Chapter 39A of Title 43 of the Code of Georgia, a permit is required for reconstruction. 7. CRITERIA FOR GRANTING PERMIT A) An applicant shall first secure any necessary permit from the Mayor and Council of the City and may then apply for any necessary permit under the Shore Protection Act, and/or any other applicable law. 1) If the applicant is seeking a variance, the provisions of Land Development Code § 5-090 shall apply, in addition to the criteria set forth below. 2) If the applicant is seeking special review, the provisions of the Land Development Code § 5-070 shall apply, in addition to the criteria set forth below. B) In considering applications for permits hereunder, the Mayor and Council should consider in addition to the provisions in the Shore Protection Act, specifically, O.C.G.A. §§ 12- 5-231, 12-5-232, and 12-5-239, which are hereby incorporated herein, the following criteria: 1) The applicant shall provide data sufficient to indicate to the Mayor and Council that the proposed activity or project will maintain the normal functions of the beach, sand dunes or vegetation thereon. Consider O.C.G.A. § 12-5-239(c)(1)(E). 2) The applicant shall provide sufficient data for the Mayor and Council to conclude that the proposed structure or activity will not materially reduce the normal functions of the beach and dunes as a means of protection from the effect of high winds and water. 3) The project must comply with applicable zoning district requirements. revised 05/30/2008 7 8. NON-CONFORMING USES AND EXEMPTIONS A. Any lawful use of land or building existing on the effective date of this article or on the effective date of any subsequent amendment hereto located within the area to which this ordinance applies is hereby declared to be a non-conforming use. A non-conforming use of buildings, structures or land may be continued with the following limitations: 1) No use shall be extended to occupy a greater area of land or space seaward of the shore protection line previously established. 2) Vacant use - a tract or structure of land which has housed a non- conforming use may not continue in use after it has remained vacant for a period of 12 months. 3) Damaged use - a building or structure which has housed or houses a non- conforming use shall not be reoccupied by a non-conforming use after it has been damaged to the extent of 80% or more of the total fair market value of the building or structure prior to the damage. B. Exemptions - the provisions of this article shall not apply to public structures, access roads, parking facilities constructed or maintained by the City, or to educational, historic or cultural facilities. Routine landscaping and maintenance activities within the area, including a “no build zone,” is exempt from the provisions of this Ordinance, however permits for all such activities must be secured from the Building and Zoning Department of the City and, if the applied for activity is such that the Building and Zoning Department of the City believes that special review should be appropriate for such activity, it may refer the matter to the Planning Commission and Mayor and Council for consideration. revised 05/30/2008 8 9. FORM AND CONTENTS OF APPLICATION FOR PERMIT Those provisions of the Shore Protection Act, O.C.G.A. §12-5-230 et seq. relating to the contents of applications for a permit, the completion of a permit and notice requirements and restrictions regarding issuance of a permit, shall be complied with in connection with permits required hereunder and for proposed structures or shoreline engineering activity within the City and in addition thereto, in order for a permit to be issued by the Mayor and Council, a public hearing must be held following publication and posting of the location for the proposed project. The procedures established in the Land Development Code for conducting public hearings and notice thereof shall be applicable to such applications and hearings thereon. 10. SEVERABILITY AND CONFLICT If any section, subsection, clause, or provision of these regulations shall be held to be invalid or unconstitutional by any court of competent jurisdiction, such holdings shall not affect any other section, subsection, clause, provision or portion of these regulations which is not invalid or unconstitutional. Where the enforcement of the provisions of this ordinance would result in conflict with other ordinances, or with each other the most restrictive provision shall be enforced. 11. REPEALER All other laws and parts of laws in conflict with this Act are hereby repealed. Ordinances controlling beach equipment rental, beach rules and non-development activities are not in conflict herewith and therefore remain in force. It is the intention of the governing body, and it is hereby ordained, that the provisions of this ordinance shall become and be made a part of the Code of Ordinances, City of Tybee Island, Georgia, and the sections of this ordinance may be renumbered to accomplish such intention. revised 05/30/2008 9 This Ordinance shall become effective on ________ day of __________________, 2008. ADOPTED THIS DAY OF , 2008. _________________________________ MAYOR ATTEST: CLERK OF COUNCIL FIRST READING: SECOND READING: ENACTED: G:/EMH/TYBEE/ORDINANCES/2008/Land Use Activities-Shore Protection DRAFT 05.30.08