04-15-2013 Planning Commission Packet

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Wetland Ordinance Review March 26,2013 Page 3 Code Provisions Causing Concern Residents often voice concerns about the City being more restrictive than MCWD, and question why we don't defer to MCWD regulations since they are the designated LGU (or `Local Government Unit') for WCA rules. It should be noted that most of the concerns relate to the Orono and MCWD code provisions that are beyond the scope of WCA rules, which focus on the wetlands themselves and not the land use around them. Specific concerns expressed by residents and others include: 1) Applicability of buffer requirements to existing developed single family homes. The concerns stem from the costs incurred, the extra time involved in fulfilling the City's requirements, and the perceived taking of certain property rights. 2) Resident perception that distance from construction activity to downslope wetland should be a mitigating factor that precludes the need for a buffer (Example: new swimming pool 400' uphill from wetland). 3) Requirement for avoidance of future nonconformities even when buffer requirement is not triggered, which means a delineation is still needed. 4) Requirement to create buffer when wetland is entirely on adjacent property - code requires this, although difficult to justify enforcing it.... 5) Stringent requirements for upgrading buffer areas that are already vegetated (such as requiring invasives removal from a buffer area, or requiring `correct' buffer vegetation to be planted). 6) Inconsistency between City Code and MCWD rules or standards that leads to resident confusion. Comparison with MCWD Regulations The lack of consistency between Orono code and MCWD code lies primarily in the applicability of buffer requirements to existing single family homes. This is purely a result of a divergence in regulatory philosophy between MCWD and Orono codes: - MCWD exem ts existing single family homes and their ancillary land alteration activities and building projects from the buffer requirements, except or unless the principal residence is being rebuilt and hardcover is increasing. In effect, they have chosen to only apply buffer requirements to new development. The reasons for this may be practicality as well as a choice as to how to best direct District resources. MCWD rules likely will not eventually result in buffers being established around every wetland in the District. - Orono requires that existing single family homes and their ancillary land alteration activities and building projects be subject to buffer requirements. Orono code as a result is more restrictive, and stems from the philosophical position that eventually all wetlands should be buffered. Orono's code goes so far as to restrict activities today that would create buffer encroachments at some future date when establishment of a buffer might be required, even though no buffer is required today [code section 78-1608(3)c]. This means that wetland delineations to establish wetland boundaries will be required now, even though a construction activity doesn't trigger creation of a buffer at this time. And a delineation is only valid for 5 years.