HomeMy Public PortalAboutCity of Overland Bill No. 29-2008
•
Ordinance No. 2008- 2'9
AN ORDINANCE AMENDING THE ZONING CODE OF THE CITY OF
OVERLAND MISSOURI TO ADOPT STREAM BUFFER PROTECTION
REGULATIONS, WITH A SEVERABILITY CLAUSE.
WHEREAS, the United States Environmental Protection Agency requires all
operators of municipal storm sewer systems to implement programs and practices to
control polluted storm water runoff, and
WHEREAS, as part of the St. Louis County Phase II Storm Water Management
Plan the City of Overland is required to implement policies, procedures and ordinances
that protect water quality,and
WHEREAS, the Planning and Zoning Commission of the City of Overland has
conducted a public hearing concerning a proposed Stream Buffer Protection Ordinance,
and
WHEREAS, after due and lawful notice of a public hearing on the proposed
Stream Protection Buffer Ordinance, the City Council of the City of Overland has
conducted a public hearing on the proposed Stream Buffer Protection Ordinance,
NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF OVERLAND, MISSOURI AS FOLLOWS:
Section 1: The City Council of the City of Overland, Missouri hereby amends
the Zoning Code of the City of Overland, Missouri by adopting and enacting anew
Chapter, the Stream Buffer Protection Ordinance, to be added to the Municipal Code of
the City of Overland as Article IV, Chapter 401, as attached hereto as Exhibit A and
made a part of this ordinance as if fully set forth herein.
Section 2. The provisions of this ordinance shall be severable. In the event that
any provision of this ordinance is found by a court of competent jurisdiction to be
invalid, the remaining provisions of this ordinance are valid, unless the court finds the
valid provisions of this ordinance as so essentially and inseparably connected with and
dependent upon the void provision that it cannot be presumed the City Council would
have enacted the valid provisions without the invalid ones, or unless the court finds that
the valid provisions standing alone are incomplete and are incapable of being executed
in accordance with the legislative intent.
Section 3. This ordinance shall be in fall force and effect from and after its
passage and approval according to law.
1
PASSED AND APPROVED this 14th day of July, 2008.
MAYOR
/4! aoa.
ate of Approval
ATTEST:
AP _, .
CITY CLERK
2
EXHIBIT A
STREAM BUFFER PROTECTION ORDINANCE
Article I.Title,Findings and Purposes
Section 401.0101. Title. This ordinance shall be known as the "City of Overland,
Missouri Stream Buffer Protection Ordinance."
Section 401.020. Findings and Purposes
A. Findings. Whereas, the City Council of the City of Overland, Missouri (the
"City")finds that buffers adjacent to streams provide numerous benefits including:
(1) Protecting, restoring and maintaining the chemical, physical and biological
integrity of streams and their water resources
(2) Removing pollutants delivered in urban storm water
(3) Reducing erosion and controlling sedimentation
(4) Protecting and stabilizing stream banks
(5) Providing for infiltration of storm water runoff
(6) Maintaining base flow of streams
(7) Contributing organic matter that is a source of food and energy for the aquatic
Ecosystem
(8) Providing tree canopy to shade streams and promote desirable aquatic habitat
(9) Providing riparian wildlife habitat
(10) Furnishing scenic value and recreational opportunity
(11) Providing opportunities for the protection and restoration of greenspace
B.Purposes
The purpose of this Ordinance is to protect the public health, safety, environment and
general welfare; to minimize public and private losses due to erosion, siltation and
water pollution; and to maintain stream water quality by provisions designed to:
(1) Create buffer zones along the streams of the City for the protection of water
resources; and,
(2) Minimize land development within such buffers by establishing buffer zone
requirements and by requiring authorization for any such activities.
3
Section 401.030. Compatibility with Other Regulations and Requirements.
This ordinance is not intended to interfere with, abrogate or annul any other ordinance,
rule, regulation, statute or other provision of law. The requirements of this ordinance
should be considered minimum requirements, and where any provision of this
ordinance imposes restrictions different from those imposed by any other ordinance,
rule, regulation or other provision of law, whichever provisions are more restrictive or
impose higher protective standards for human health or the environment shall be
considered to take precedence.
Article II. Definitions
Section 401.100. Definitions. The following words, terms and phrases, when used
in this chapter, shall have the meanings set forth below in this section.
"Buffer" means, with respect to a stream, a natural or enhanced vegetated area
(established by Section 401.300.A.I below), lying adjacent to the stream.
"Impervious Cover" means any manmade paved, hardened or structural surface
regardless of material. Impervious cover includes but is not limited to rooftops,
buildings, streets,roads, decks, swimming pools and any concrete or asphalt.
"Land Development" means any land change, including but not limited to clearing,
grubbing, stripping, removal of vegetation, dredging, grading, excavating, transporting
and filling of land,construction, paving and any other installation of impervious cover.
"Land Development Activity" means those actions or activities which comprise,
facilitate or result in land development.
"Land Disturbance" means any land or vegetation change, including, but not limited
to, clearing, grubbing, stripping, removal of vegetation, dredging, grading, excavating,
transporting and filling of land, that do not involve construction, paving or any other
installation of impervious cover.
"Land Disturbance Activity" means those actions or activities which comprise,
facilitate or result in land disturbance.
"Floodplain"means any land area susceptible to flooding, which would have at least a
one percent probability of flooding occurrence in any calendar year based on the basin
being fully developed as shown on the current land use plan;i.e., the regulatory flood.
"Parcel" means any plot, lot or acreage shown as a unit on the latest county tax
assessment records.
"Permit" means the permit issued by the City required for undertaking any land
development activity.
"Person" means any individual, partnership, firm, association,joint venture, public or
private corporation, trust, estate, commission, board, public or private institution,
4
utility,cooperative,city,county or other political subdivision of the State, any interstate
body or any other legal entity.
"Protection Area, or Stream Protection Area" means, with respect to a stream, the
combined areas of all required buffers and setbacks applicable to such stream.
"Riparian" means belonging or related to the bank of a river, stream, lake, pond or
impoundment.
"Setback"means, with respect to a stream, the area established by Section 401.300.A.2
extending beyond any buffer applicable to the stream.
"Stream"means any stream,beginning at:
1. All natural watercourses depicted by a solid or dashed blue line on the
most current United States Geological Survey (U.S.G.S.) 7.5 Minute
Series (Topographic)Maps for Missouri; or
2. A point in the stream channel with a drainage area of 25 acres or more.
"Stream Bank" means the sloping land that contains the stream channel and the
normal flows of the stream. Where no established top-of-bank can be determined, the
stream bank will be the "ordinary high water mark" as defined by the Corps of
Engineers in Title 33 of the Code of Federal Regulation,Part 328.3.
"Stream Channel" means the portion of a watercourse that contains the base flow of
the stream.
Article III.Applicability
Section 401.200. Applicability. This ordinance shall apply to all land development
activity on property containing a stream protection area as defined in Section Article II
of this chapter. These requirements are in addition to, and do not replace or supersede,
any other applicable buffer or flood plain requirements established under state law and
approval or exemption from these requirements do not constitute approval or exemption
from buffer requirements established under state law or from other applicable local,
state or federal regulations.
A. Lawful Pre-existing Uses and Grandfather Provisions
This ordinance shall not apply to the following activities:
(1) Work consisting of the repair or maintenance of any lawful use of land that is
zoned and approved for such use on or before the effective date of this ordinance.
(2) Existing development and on-going land disturbance activities including but not
limited to existing agriculture, silviculture, landscaping, gardening and lawn
maintenance, except that new development or land disturbance activities on such
properties will be subject to all applicable buffer requirements.
5
(3) Any land development activity that is under construction, fully approved for
development scheduled for permit approval or has been submitted for approval as of the
effective date of this ordinance.
(4) Land development activity that has not been submitted for approval, but that is
part of a larger master development plan, such as for an office park or other phased
development that has been previously approved within two years of the effective date
of this ordinance.
B. Exemptions
The following specific activities are exempt from this ordinance. Exemption of these
activities does not constitute an exemption for any other activity proposed on a
property.
(1) Activities for the purpose of building one of the following:
a stream crossing by a driveway, transportation route or utility line;
public water supply intake or public wastewater structures or stormwater
outfalls;
intrusions necessary to provide access to a property;
public access facilities that must be on the water including boat ramps,
docks, foot trails leading directly to the river, fishing platforms and
overlooks;
foot trails and paths;
activities to restore and enhance stream bank stability, vegetation, water
quality and/or aquatic habitat, so long as native vegetation and
bioengineering techniques are used.
(2) Public sewer line easements. This includes such impervious cover as is necessary
for the operation and maintenance of the utility, including but not limited to manholes,
vents and valve structures. This exemption shall not be construed as allowing the
construction of roads, bike paths or other transportation routes in such easements,
regardless of paving material, except for access for the uses specifically cited in Section
401 .300.B (1), above.
(3) Land development activities within a right-of-way existing at the time this
ordinance takes effect or approved under the terms of this ordinance.
(4) Within an easement of any utility existing at the time this ordinance takes effect
or approved under the terms of this ordinance, land disturbance activities and such
impervious cover as is necessary for the operation and maintenance of the utility,
including but not limited to manholes, vents and valve structures.
(5) Emergency work necessary to preserve life or property. However, when
emergency work is performed under this section, the person performing it shall report
such work to the (review and permitting authority) on the next business day after
commencement of the work. Within 10 days thereafter, the person shall apply for a
permit and perform such work within such time period as may be determined by the
6
(review and permitting authority) to be reasonably necessary to correct any impairment
such emergency work may have caused to the water conveyance capacity, stability or
water quality of the protection area.
(6) Forestry and silviculture activities on land that is zoned for forestry, silvicultural
or agricultural uses and are not incidental to other land development activity. If such
activity results in land disturbance in the buffer that would otherwise be prohibited,
then no other land disturbing activity other than normal forest management practices
will be allowed on the entire property for three years after the end of the activities that
intruded on the buffer.
(7) Any activities approved under a 404 permit issued by the Corps of Engineers and
401 water quality certification issued by the Missouri Department of Natural
Resources.
After the effective date of this ordinance, it shall apply to new subdividing and platting
activities.
Any land development activity within a buffer established hereunder or any impervious
cover within a setback established hereunder is prohibited unless a variance is granted
pursuant to Section 401.300.B below.
Article IV. Land Development Requirements
Section 401.300. Land Development Requirements
A. Buffer and Setback Requirements. All land development activity subject to this
ordinance 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 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 ordinance, an undisturbed natural vegetative buffer shall be
maintained for 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 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 Procedures 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 ordinance, and its
shape, topography or other existing physical condition prevents land development
7
consistent with this ordinance, and the Director of Public Works finds and determines
that the requirements of this ordinance 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 ordinance 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 ordinance prevents land development
unless a buffer variance is granted.
b. Unusual circumstances when strict adherence to the minimal buffer
requirements in the ordinance would create an extreme hardship.
Variances will not be considered when, following adoption of this ordinance, actions of
any property owner of a given property have created conditions of a hardship on that
property.
(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 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;
8
j
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; and,
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;
f. Whether issuance of the variance is at least as protective of natural
resources and the environment.
Section 401.310. Additional Information Requirements for Development on Buffer
Zone Properties. 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.
9
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. )".
Section 401.320 Responsibility. Neither the issuance of a development permit nor
compliance with the conditions thereof, nor with the provisions of this ordinance 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.
Section 401.330. Inspection. 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 ordinance, 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.
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.
Section 401.340. Violations, Enforcement and Penalties. Any action or
inaction which violates the provisions of this ordinance 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.
A. 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 ordinance, 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 ordinance 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:
10
(1) The name and address of the owner or the applicant or the responsible person;
(2) The address or other description of the site upon which the violation is occurring;
(3) A statement specifying the nature of the violation;
(4) A description of the remedial measures necessary to bring the action or inaction
into compliance with the permit, the approved site plan or this ordinance and the
date for the completion of such remedial action;
(5) A statement of the penalty or penalties that may be assessed against the person to
whom the notice of violation is directed; and,
(6) 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,24 hours notice shall be sufficient).
B.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
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 days (except that in the
event the violation constitutes an immediate danger to public health or public safety, 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 or more of the following actions or
impose any one or more of the following penalties.
(1) 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.
(2) 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.
11
G
(3) 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.
(4) Penalties - For violations of this ordinance, 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 $1,000 or
imprisonment for 90 days or both. Each act of violation and each day upon which
any violation shall occur shall constitute a separate offense.
Article V. Administrative Appeal and Judicial Review
Section 401.400. Administrative Appeal and Judicial Review
A. Administrative Appeal
Any person aggrieved by a decision or order of the Director of Public Works may
appeal
in writing within 10 days after the issuance of such decision or order by the Director of
Public Works, and shall be entitled to a hearing before the Board of Adjustment.
B. Judicial Review
Any person aggrieved by a decision or order of the Board of Adjustment, after
exhausting all administrative remedies, shall have the right to seek review of the
decision or order of the Board of Adjustment by the Circuit Court of St. Louis County.
12