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Home My WebLink About04-16-2013 - Request for council action REQUEST FOR COUNCIL ACTION Date: 16 April 2013 Item No. 5— Department Approval: Administrator Appro al: Agenda Section: Staff: Melanie Curtis WV Planning&Zoning Coordinator Item Description: Building Permit#2012-00424— ay&Alyssa Kanive—950 Willow View Dr—Appeal Zoning District: RR-1B, One Family Rural Residential -2 acre List of Exhibits: Exhibit A. Homeowner's Request Exhibit B. Building Permit 2012-00424 Exhibit C. Submitted Survey 10/02/12 Exhibit D. Catherine Bach Email &Attachment Exhibit E. Site Photos Exhibit F. Aerial Photos Exhibit G. Kjolhaug 1999 Delineation & Buffer—by Arrowhead Exhibit H. Arrowhead 2012 & Kjolhaug 1999 Delineation—by Arrowhead Exhibit I. Orono Wetland Regulations Background In May of 2012 Jay and Alyssa Kanive submitted a permit application to construct a sport court on their property at 950 Willow View Drive. A Manage 3 wetland exists on their property. The Willow View plat was approved in 1999-2000. It was at that time the wetlands on the overall site were delineated by Kjolhaug Environmental. According to the Wetland Conservation Act, a wetland delineation is valid for a period up to 5 years. The City's wetland regulations have built-in triggers for implementation of a wetland buffer. Staff requested additional information be submitted with the permit application to evaluate whether or not a buffer was required. The Kanives were notified that a Manage 3 wetland was located on their property and additional information was requested including an updated wetland delineation as it appeared the wetland had expanded since the 1999 Kjolhaug delineation. A new wetland delineation was conducted by Arrowhead in June and submitted to the MCWD for approval. The Arrowhead delineation showed the wetland boundaries have expanded beyond the original delineation and mitigation expansion areas established with the plat (1999). When the homeowners provided the Arrowhead delineation to the MCWD for approval, the MCWD noted that per MCWD policy, because the original delineation conducted in 1999 and recorded with the plat was to be used for regulatory purposes, they would not require the new delineation. At that point the homeowners withdrew their Arrowhead delineation from the watershed's approval process. However, City staffs interpretation of the City code requirements is that, the apparent expansion in wetland boundary, coupled with the fact that wetland delineations are only valid for up to 5 years, suggests that in order to determine the setbacks a new delineation was needed in order to meet City Code requirements. 950 Willow View Dr/Permit 2012-00424 16 April 2013 Page 2 of 2 The applicant provided more detailed calculations regarding the amount of disturbance resulting from the project and it was under 50 cubic yards. From the City's perspective although their project will only disturb 42 cubic yards and does not trigger establishment of a buffer the Code requires delineation of the edge of the wetland for setback measurement purposes. This measurement assures that new structures are not built too close to the wetland resulting in a future nonconformity. Just prior to the final permit approval staff became aware of a patio and a small fire pit which were not shown on the survey; based on the Arrowhead delineation exhibits the fire pit and seating area is potentially located within the defined area that would be a future buffer. In an effort to not further delay permit issuance staff indicated to the homeowners that both items should be included in the as-built survey. Additionally, the Arrowhead wetland delineation should be approved by the MCWD and shown on the as-built survey once the project is completed. Absent the above information, it is unclear whether the fire pit is located within the drainage and utility easement or within the wetland delineation boundary or buffer area for the wetland. To expedite matters, Staff placed a condition upon the permit stating if the fire pit was found to be located within the delineated wetland boundary it would need to be removed or relocated prior to the release of the escrow. If the as-built survey showed the fire pit located only within the drainage and utility easement, the property owners would need to obtain an easement encroachment permit with the City prior to release of the escrow. The Kanives have paid their permit fees but they are contesting the conditions placed upon the permit and therefore have not obtained the permit. Staff Recommendation The Kanives' request indicates that they would like the City to issue the permit for the sport court without the conditions 1) regarding MCWD approval of the updated wetland delineation; 2) placement of the updated wetland delineation on the as-built survey; 3) placement of the constructed patio and fire pit areas on the as- built survey; and 4)that the fire pit be relocated should it be shown to be located within the 16.5 foot buffer from the updated wetland boundary. COUNCIL ACTION REQUESTED The City Council should review the information and direct staff and the applicant on how to proceed. Council 950 WILLOW VIEW BUILDING PERMIT Exhibit A Background: The purpose of this letter is to set forth the facts and circumstances related to the request by the homeowners located at 950 Willow View Drive in Orono, MN ("Homeowners")to construct a sport court on the subject property (the "Project"). Formal Request: The Homeowners hereby formally request action from the City Council of Orono, MN to approve and issue to Building Permit number 2012-00424 to the Homeowners without the two conditions added by staff. Facts: 1) Proposed Sport Court is 27 feet by 37 feet 2) Proposed location of sport court is replacing primarily existing hard cover (landscape area overlain by 3/4 inch river rock with underlying poly weed control fabric) 3) The city wetland map identifies a wetland on the subject property which is classified as a Manage 3 4) Proposed project does not result in the grading of 50 or more cubic yards or the disturbance of 5,000 or more square feet of area 5) A current wetland delineation and buffer line from April 7, 2000, approved by the MCWD already exists for the subject property 6) Project does not trigger the need for a new or updated wetland delineation by the MCWD, per e-mail from Catherine Bach at MCWD provided to staff 7) Project meets all applicable City setback requirements to property boundaries and is at least 30 feet setback from the MCWD buffer line and 46.5 feet setback from the MCWD wetland delineation 8) Building permit application was received by City of Orono ("City") on May 17, 2012 and assigned building permit number 2012-00424 9) The applicable deposit of$2,500 was received by the city of Orono on May 29, 2012 Position of Homeowner: Due to the fact that (i) a wetland delineation on the subject property, along with a buffer line already approved and acceptable to the MCWD exists on the property, (ii)the Project, based on the existing wetland delineation and buffer line, meets all the requirements for setbacks by the City, (note that Section 78-1608 (2)(a) of the Orono Code specifically excludes sport court type structures wetland buffer setbacks) and (iii) the Project does not trigger a need for a new wetland delineation or buffer line by the MCWD; the homeowner contends that the permit for the Project should be approved without conditions. CITY OF ORONO 11;11111 11111111 111111111 I 2750 KELLEY PARKWAY * 2 1 — 0 0 2 4 DATE ISSUED: 10/11 2/2012 ORONO,MN 55356- (952)249-4600 FAX: (952)249-4616 Council ADDRESS : 950 WILLOW VIEW DR Exhibit B PIN : 28-I18-23-44-0017 LEGAL DESC : WILLOW VIEW : LOT 006 BLOCK 003 PERMIT TYPE : ACCESSORY STRUCTURE PROPERTY TYPE : RESIDENTIAL CONSTRUCTION TYPE : SPORTS COURT ACTIVITY : 329-STRUCTURES OTHER THAN BUILDINGS VALUATION : $ 16,000.00 NOTE: SPORT COURT *MCWD TO APPROVE ARROWHEAD WETLAND DELINEATION PRIOR TO RELEASE OF$2500 ESCROW INITIAL *ANY ADDITIONAL FUTURE PERMITS INVOLVING DIRT WORK OR GRADING OR HARDCOVER WILL TRIGGER THE WETLAND BUFFER REQUIREMENT INITIAL *FIREPIT AND PATIO SHOULD BE SHOWN ON AS-BUILT. IF FIREPIT IS LOCATED WITHIN WETLAND OR BUFFER AREA IT MUST BE REMOVED PRIOR TO ESCROW RELEASE INITIAL • APPLICANT PERMIT FEE SCHEDULE 280.25 KANIVE,JUSTIN&ALYSSA STATE SURCHARGE(VALUATION) 8.00 950 WILLOW VIEW DR LONG LAKE,MN 55356- TOTAL 288.25 PAID WITH CC# 5367 OWNER KANIVE,JUSTIN&ALYSSA 950 WILLOW VIEW DR ; LONG LAKE,MN 55356- / AGREEMENT AND SWORN STATEMENT P /`'" 1/1,64• %%" - The work for which this permit is issued shall be performed according to the approved plans and specifications,applicable City approvals,and the �(LCrJI State Building Code. This permit is for only the work described and does not grant permission for additional or related work which requires separate permits. All provisions of laws and ordinances governing this type of work shall be compied with whether or not specified herein.This permit will expire and become null and void if construction authorized is not commenced within 180 days of the date of issuance,or if construction is suspended for a period of 180 days at any time after work has commenced. The applicant is responsible for assuring all required inspections are requested in conformance with the State Building Code.This permit may be revoked at any.time for due cause. Applicant Permitee Signature Date Issued By Signature Date SEPARATE PERMITS REQUIRED FOR WORK OTHER THAN DESCRIBED ABOVE. :'" (t030.0J Council (1o2e.a) (1027.4) l 305.29 w �- �-- - --- (1026.6) tO (1025. Exhibit C ��, __ - -� ___ 132`94____ _,,____ __-":_...... ;:. '\- ... 2 00 ; i''''_ i 11 �"-.-______-____1030 zss) S \4k4°46' 06" W ..---- / \ 1 , 147.35 110 -� I (1028.6) \ 17.26 / / ti. �ti _ - - _\ 15'SIDE SETBACK (\ \ I , Z I PROPOSE. -_ - -?'\ \ 1 / 11 I ------ cx •ETA NING \ ti. \ \\c/ ` / ti 1 /"�- `�0 , \ALL ° \\ \`� \ l+ 1 165Zbl ;... \ \ \ \ } �( \\ (1027.6) \ \ 1 `�0 ; // /�--.--. 1.034__.��! 1033. s \ \• �' (1035.0 : \ • (1028.3)1 \ J I 1_ 2 If � (1035.6) 1 PROPOSED b CO SOS\ �?5, �\ `\ "� " f 1 // / f. GARAGE 24.6 10 &.9 SPORT CIOURT 0 \ O 1 \ N 11 / !1 bi (os.1) N I+.� 1028.311 -�(\2s.a)11 \\ 6 ,.' 1 \ \ \ \ \, O 11 �y / I 2.0 w (1o3z.7) `_ 1�0 1 rJ I 27.0C \ \�C' �BLACKTOP 9 (1028,3) 1 6' \\\ 1 \\ \� 41/0, J 'I DRIVEWAY N D° i / 1 • 13.5 PORCH 1 ei,,s,,1 r \\ 1025.5) 'L tirI \111 \[A. \ 4` -9./1.cc• N ,I o 1 l \ �y��i� -1 '' , ` EXISTING 4.0 MN \ �\ ti \ \ A F� �, °�°ti �.._�_. s (1033.1) I a6.o DECK = (1026.9) 6 \ , \\ tis Vo 1 r .4;-L 1\� N HOUSE \fit `1 \\ `''��tio\ �" 0.4 i1 \ 5.3 N 1 \ \ \ \ � ti \ j 11 tl 1.1 #950 1 \\ \� No \ Y'o 4. \ 1\ j 1 1.1 6.0 LOWER \\ \\ \ Z \ r l 1 (1026.8) 1 \ O� \ 5 , G' 16 \ / 1 1 4.0 1 \ \ \ !zm ( (1028.5) 1 \ \ z / y 1I 7.0 • 0 tn 1 \ OZ I I 1 PORCH 2a.a 'co 14 (1026.2)CO° \\ l +' ` (1029.1) 1 (1027.0) o \ l + - 1 0 \ [! mil (1033.7) , y 1 7\ I II C l i j O 0 1 � \ N \ jf I , 04 c, 1 \ m ARROWHEAD 2012 WETLAND \ 1 �� 3' 13 1 \ m \ + DELINEATION BOUNDARY uo\ 1 / 1 + I 1 1 c� \ Z N I \ 1 cP 1 O 10 j � ! 1 { 11 -- \1 1 O I DRAINAGE AND 1 \ + 1 I I ,• "'°'UTILITY EASEMENTS~ �1 1 \ / I I 0 `\• T 1/q ' L I I � i ,i0 01- o \ \\ ;i I (1031.6) 186.72 r f' 1, -,1 ,, \ `�. ,': I ...-.- S 88°56' 48" W 298.52 LEGAL DESCRIPTION OF PREMISES : Q City of Orono 50 �,I� Lot 6, Block 3, WILLOW VIEW Planning&Zoning Plan Rev . � t ONt �' � Site Plan Review Date: o : denotes iron marker j (908.3) : denotes existing spot elevation, mean sea level datum APPROVED 910.8 : denotes proposed spot elevation, mean sea level datum PPROVED WITH REVISIONS(see notes) -----917.---: denotes existing contour line, mean sea level datum '} DENIED -\. f , 30;/7 Council Exhibit D Melanie Curtis From: Catherine Bach [cbach@minnehahacreek.org] Sent: Monday, August 20, 2012 10:18 AM To: Jay Kanive Cc: a.kanive@mchsi.com; Ben Carlson Subject: Buffer Map-950 Willow View Drive, Orono Attachments: 00-024_plan.pdf Jay, As we discussed during our meeting at your property, a wetland delineation was performed throughout the entire Willow View development for the subdivision permit in 2000(MCWD permit#00-024). The wetland on your property was expanded and re-graded as part of the developer's wetland replacement plan, and a 16.5' buffer was incorporated along the wetland boundary (see attached plan). If your current project triggered the need for a MCWD permit, we would just have you add the original wetland boundary and buffer as required for the development permit onto your current survey rather than have you perform a new delineation. Even if the wetland boundary changes from when it was originally delineated,the 16.5' buffer does not move with the boundary, and is shown on the attached plan. While a field delineation reflects the most accurate and current wetland boundary,for the purposes of consistency throughout the development (and logistics relating to buffer layout, etc.), this is how we would handle it. Please let me know if you have any questions. 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II 1 Il If Al 'n".4.• - , h 1 1 IS. . - . _ "itMil_111_,PAINI1 Billaill I - 1 aWi Map of Wetland Delineation Ai._ Overlaid on Site Plan '''r arrowhead r environmental — 1Feet 950 VAllow View Dr. Orono,KC 55356 C onsulting 0 50 100 200 Kanive Parcel Council ARTICLE XI.-WETLANDS PROTECTION DIVISION 1. -GENERALLY Exhibit I DIVISION 2. - DESIGNATION OF PROTECTED WETLANDS DIVISION 3. - BUFFER AREAS DIVISION 4. - USES DIVISION 5. -STANDARDS FOR THE WETLAND OVERLAY DISTRICT, BUFFER AREAS AND NEIGHBORING LANDS DIVISION 1. -GENERALLY Sec. 78-1601. - Purpose and intent. Sec. 78-1601. - Purpose and intent. (a) The purpose of this section is to recognize, preserve and protect the environmental, aesthetic and hydrologic functions of the city's wetlands by regulating the use of wetlands and their adjacent properties in conjunction with the goals of the environmental protection plan within the community management plan. These functions include, but are not limited to, sediment control, pollution control, filtration, fish and wildlife habitat and aquifer recharge. The surface water management plan will provide guidance for stormwater treatment requirements and wetland restoration opportunities in order to protect the integrity of wetlands. (b) The intent of this section is to protect wetlands to the maximum extent possible while allowing a reasonable use of the property. This section adopts the regulations and standards of the Wetland Conservation Act of 1991 (WCA), Laws of Minnesota 1991, chapter 354, as amended, and the rules adopted pursuant to the WCA. It also establishes a wetland overlay district. This overlay district further regulates the underlying land use as allowed by other districts or the WCA. (c) This article applies to, and wetland buffer areas must be created or existing buffer areas must be maintained around, a protected wetland located partially within, wholly within, or directly adjacent to the property in the following situations: (1) When the wetland is required to be replaced or restored, or when the wetland is being altered; (2) When new development occurs. For purposes of this subsection, new development means: a. Any subdivision that creates a new lot that has no principal structure on it; b. Construction of a principal structure on an existing vacant parcel of land; (3) When redevelopment occurs that has the potential to adversely impact a wetland. For purposes of this subsection redevelopment means the removal of the principal structure to the extent of more than 50 percent of its market value and volume and reconstruction on the same property. This requirement does not apply if construction is the result of less than 75 percent of the building being damaged by an involuntary force, such as fire, wind, or vandalism; (4) When any construction or land alteration activity that does not fall within the meaning of "redevelopment" has the potential to adversely impact a wetland. For purposes of this section, "the potential to adversely impact a wetland" exists when all of the following three conditions exist: a. The portion of the property disturbed by construction or land alteration activity drains to the wetland; and b. The amount of grading exceeds 50 cubic yards or the construction activity involves the disturbance of more than 5,000 square feet of area; and c. The redevelopment activity results in a net increase in the square footage of hardcover that drains to the wetland, or results in the relocation of hardcover closer to the wetland, or results in changes to drainage patterns (slopes, meander patterns, etc.) that the city engineer determines will increase the velocity or rate of runoff to the wetland. For new development, all wetlands on the property shall be subject to the buffer requirements. For redevelopment or other grading or construction situations that are not new development, only the wetland that is potentially adversely impacted shall be subject to the buffer requirement. In the event that the wetland is on an adjacent property but near enough to the subject property so that buffers to said wetland would extend into the subject property, the buffer requirements apply. (Ord. No. 28 3rd series, § 1, 8-22-2005; Ord. No. 94 3rd series, § 8, 9-24-2012) DIVISION 2.-DESIGNATION OF PROTECTED WETLANDS Sec. 78-1602. -Wetland types. Sec. 78-1603. - Boundaries of the wetland overlay districts and designation of official city wetland map. Sec. 78-1604. - Interpretation of wetlands boundaries. Sec. 78-1602. -Wetland types. The wetlands protected and regulated by this section are types 1, 2, 3, 4, 5, 6, 7, and 8 wetlands, as defined in circular 39, "Wetlands of the United States", 1971 edition, United States Department of the Interior, unless the wetland is within a shoreland district in which case the more restrictive rules regarding setbacks would apply. Protected wetlands are further defined as follows: (1) Type 1—Seasonally flooded basins or floodplains: Type 1 wetlands are seasonally flooded basins or flats in which soil is covered with water or is waterlogged during variable seasonal periods but usually is well-drained during much of the growing season. Type 1 wetlands are located in depressions and in overflow bottom lands along water courses. Vegetation varies greatly according to the season and duration of the flooding, and includes bottom land hardwoods, as well as herbaceous plants. (2) Type 2—Inland fresh meadow: Occurs along the shallow edges of lakes, marshes and floodplains, or in perched depressions. The soil is usually without standing water during much of the growing season, but is waterlogged within at least a few inches of the surface. Vegetation includes grasses, sedges, rushes and various herbaceous plants. (3) Type 3—Inland shallow fresh marsh: Soil is usually water logged during the growing season, often covered with as much as six inches or more of water. Vegetation includes grasses, bulrushes, cattails, arrowheads, smartweeds and other emergent aquatic vegetation. (4) Type 4—Inland deep fresh marsh: Soil covered with six inches to three feet or more of water during growing season. Vegetation includes cattails, reeds, bulrushes and wild rice. Open water areas may contain pondweeds, naiads, coontail, water milfoils and other submergent aquatic vegetation. (5) Type 5—Inland open fresh water: Water is usually less than ten feet deep and is fringed by a border of emergent vegetation. Vegetation includes pondweeds, naiads, coontail, water milfoils and other submergent aquatic vegetation. (6) Type 6—Shrub swamp: Occurs along sluggish streams or on floodplains. The soil is usually waterlogged during the growing season, and is often covered with as much as six inches of water. Vegetation includes alder, willow and dogwood. (7) Type 7—Wooded swamp: Occurs along sluggish streams, on floodplains, on flat perched depressions and in shallow lake basins. The soil is waterlogged to within a few inches of its surface during the growing season and is often covered with as much as one foot of water. Vegetation typical to this wetland includes tamarack, white cedar, black spruce, balsam fir, red maple and black ash. (8) Type 8—Bog: Occurs along sluggish streams, on flat perched depressions and shallow lake basins. The soil is waterlogged and supports a spongy covering of mosses. Vegetation typical to this wetland type includes sphagnum moss, heath shrubs and sedges. Minnesota bogs contain leatherleaf, Labrador tea, cranberries and pitcher plants. Scattered stunted black spruce and tamarack also are common features of bogs. (Ord. No. 28 3rd series, § 1, 8-22-2005) Sec. 78-1603. -Boundaries of the wetland overlay districts and designation of official city wetland map. This section establishes wetland overlay districts. These districts are subject to additional requirements beyond those required by the WCA. The boundaries of the wetland overlay districts are identified graphically on the official city wetland map (CWM)which is hereby adopted by reference, a copy of which shall be kept on file in the office of the city clerk and shall be available for public review during all normal office hours. Wetlands in addition to those shown on the city wetland map may exist, and may be identified by wetland delineations under WCA rules. If a specific wetland delineation has been done under WCA rules, then the boundaries of the wetland overlay district for that location will be as shown in the delineation. The city may require wetland delineations to determine compliance with WCA rules and to determine administrative wetland boundaries; however, property owners may have wetland delineations done for their properties on their own initiative. The delineation must be done by a qualified professional according to WCA rules and be acceptable to the planning director, who may require review by city consultants or a technical evaluation panel if necessary. Approved WCA wetland delineations must be provided to the city in a hard copy format and a CAD or GIS format in Hennepin County coordinates. The planning director will have the approved WCA wetland delineations shown on the official city wetland map. Public waters are not included in the overlay district, unless a wetland is part of a public water. (Ord. No. 28 3rd series, § 1, 8-22-2005) Sec. 78-1604. -Interpretation of wetlands boundaries. Whenever a wetland boundary is disputed or uncertain, the planning director may require the submission of a registered survey of the property and field staking showing the city-designated wetland contour or a delineation of the wetland, and such other information as the director may require in order to resolve the dispute or uncertainty. The planning director may require review by city consultants or a technical evaluation panel if necessary. No boundary change may be authorized on the basis of fill that was placed on the site after the city designated the area as part of the wetland overlay district. Persons aggrieved by a decision of the planning director may appeal such decision in accordance with the provisions of section 78-99 of this chapter and the WCA rules. (Ord. No. 28 3rd series, § 1, 8-22-2005) DIVISION 3. -BUFFER AREAS Sec. 78-1605. -Wetland buffer areas. Sec. 78-1605. -Wetland buffer areas. (a) This subsection establishes requirements for wetland buffer areas around protected wetlands. Buffer areas are necessary and beneficial to maintain the health of wetlands. Buffer areas protect the edge of wetlands from erosion while filtering sediment, chemicals and other nutrients from runoff that drains into wetlands. Buffer areas can improve the biological diversity and health of a wetland environment while reducing the adverse impacts of human activities. (b) Buffer areas regulated by this section are areas of vegetative cover that are upland of the wetland edge, and that occur in a natural condition or through restoration. Buffer areas consist of shrubbery and trees, native grasses and/or forbs that are not mowed, fertilized or manicured in any manner. Mowing, fertilizing, manicuring, or vegetation removal within a buffer area is not allowed unless the city has issued a permit for such activity in conjunction with an approved buffer management plan. (1) Acceptable buffer areas shall have the following qualities: a. A continuous dense layer of perennial grasses that have been uncultivated or unbroken for at least ten consecutive years, or b. An over story of trees and/or shrubs with at least 80 percent canopy closure that have been uncultivated or unbroken for at least ten consecutive years, or c. A mixture of the plant communities described in a. and b. above, which have been uncultivated or unbroken for at least ten consecutive years. (2) Unacceptable buffer areas have the following qualities, including but not limited to: a. Undesirable plant species (including but not limited to reed canary grass, common buckthorn, purple loosestrife, leafy spurge and noxious weeds), or b. Lacking a layer of organic thatch or duff, or c. Topography which tends to channelize the flow of surface runoff, or d. Is characteristically unlikely to retain nutrients and sediment. (3) Buffer areas which have been broken or cultivated within the past ten consecutive years must be restored to a condition consistent with an acceptable buffer area defined in section 78-1605(b)(1), a restoration or landscape plan must be submitted to the planning director, which restoration shall include, replanting and maintaining according to each of the following guidelines: a. Buffer areas shall be planted with a seed mix containing 100 percent perennial native plant species, except for a one-time planting of an annual nurse or cover crop such as oats or rye. b. The seed mix to be used shall consist of at least 12 pounds pure live seed (PLS) per acre of native prairie grass seed and five pounds PLS per acre of native forbs. Native prairie grass and native forb mixes shall contain no fewer than four and five species respectively. c. The annual nurse or cover crop shall be applied at a rate of 20 pounds per acre. d. Native shrubs and or trees may be used in addition to forbs and grasses. Shrubs shall be distributed so as to provide a natural appearance and shall not be planted in rows. e. Native prairie grasses and forbs shall be planted by a qualified contractor. f. No fertilizer shall be used in establishing new buffer zones, except on highly disturbed sites when deemed necessary to establish acceptable buffer vegetation and then limited to amounts indicated by an accredited soil testing laboratory. g. All seeded areas shall be mulched immediately with clean straw at a rate of one and one-half tons per acre. Mulch shall be anchored with a disk or tackifier. h. Buffer areas (both natural and created), shall be protected by silt fence during construction and the fence shall remain in place until the area crop is established, and at that time the fence shall be removed. (c) Buffer area widths will be based on the wetland protection strategies established in the Orono Surface Water Management Plan (SWMP) (December 2002). A protection classification has been assigned to each wetland in Orono based on the stormwater susceptibility and functional assessment for each wetland. The four protection classifications are described as follows: Protection Susceptibility Description Classification Rating "Preserve" 1 Highly Highly susceptible to both quantity and quality impacts from runoff; have the highest degree of protection Susceptible "Manage 1" Moderately Moderately susceptible to quantity and impacts;-protection is le--s—s. stringent than Preserve, Susceptible provides protection to maintain their characteristics I"Manage 2" Slightly Less stringent protection than Manage 1 wetlands;maintenance of characteristics is desirable Susceptible "Manage 3" Least Wetlands are significantly degraded (e.g.,cultivated or canary grass monotype)or lack of wetland Susceptible characteristics; not typically impacted by runoff; no quantity and only limited quality treatment of runoff is required The protection classification for each wetland will be found on the "Wetland Management Classification Map & List" which is hereby adopted by reference, a copy of which shall be kept on file in the office of the city clerk and shall be available for public review during all normal office hours. The following are the required buffer area widths for each protection classification: Protection Width of Additional Protection Requirements Buffer Area I(B= Bounce=Change in water level due to runoff event) Classification from (P= Phosphorus) Wetland Boundary "Preserve" 50 feet B: Maintain bounce at or below existing conditions P: Limit loadings to predevelopment loading(0.14 Lbs./Ac/Yr) "Manage 1" 35 feet ,I B: Maintain bounce at or below existing conditions plus 0.5 foot P: Limit loadings to predevelopment loadings times 2 (0.28 Lbs/Ac/Yr) "Manage 2" 25 feet B: Maintain bounce at or below existing conditions plus 1.0 foot P: Limit concentration to predevelopment concentrations(200 ppb) "Manage 3" 16.5 feet B: No quantity requirement P: Limit concentration to 225 ppb (d) In cases of new development or redevelopment the city shall require that vegetation in the wetland buffer be installed prior to the issuance of the certificate of occupancy. The city may waive this requirement in lieu of a cash escrow or letter of credit equal to 150 percent of the cost to install the required buffer. (e) The city may allow the disturbance of an existing buffer area during the course of construction activity. This disturbance must be kept to a minimum, soils must be decompacted to a level that will accommodate root growth, and the buffer area must be re-established as required by the city. The city will determine the amount of allowable disturbance. The city may require a cash escrow or letter of credit equal to 150 percent of the cost to re-establish the buffer to its original condition. (f) The city may require buffer area planting and maintenance when the city determines that there is inadequate vegetation in the buffer area to meet the intent of this section. The city may require a cash escrow or letter of credit equal to 150 percent of the estimated cost of the vegetation and installation. The escrow or letter of credit must be valid for up to two years and may be used by the city to replace any vegetation that dies. (g) The affected property owner or homeowner association that is responsible for the maintenance must: (1) Maintain and repair damage to buffer areas from such activities as mowing, cutting, grading or other prohibited activities, unless mowing is approved by the city as a buffer management plan. Permission must be obtained from the city before implementing buffer management plans, which may include mowing, burning, and the use of herbicides. (2) Maintain only the permitted vegetation in the buffer area and must remove all noxious weeds and invasive, non- native species such as European buckthorn, upon obtaining a vegetation removal permit from the city in conjunction with an approved buffer management plan. (3) Ensure that all soil surfaces in the buffer area are planted with the permitted vegetation and that there is no open soil surface that may result in erosion. (4) Ensure that livestock or other domesticated animals which have the potential to permanently disturb the buffer area by compaction or vegetation removal be kept from entering the buffer area and wetland by a fence or other suitable means. (h) The final upslope edge of the buffer shall be provided to the city in a hard copy and in a CAD or GIS format in Hennepin County coordinates. (i) Golf course partial exemption. Public and private golf courses existing and in operation on the date of adoption of this article shall be allowed a partial exemption from buffer creation and maintenance requirements with regards to mowing or cutting buffer vegetation in areas subject to golf play, subject to the following: (1) At such time that this article requires establishment of a buffer, applicant shall submit a certificate of survey identifying the location, size and type of the wetland for which buffer exemption is requested. (2) Applicant shall submit a buffer management plan for city council approval, identifying those areas where exemption is requested and providing for alternative methods of wetland protection equivalent to an unmowed buffer. (Ord. No. 28 3rd series, § 1, 8-22-2005) DIVISION 4. - USES Sec. 78-1606. - Permitted uses. Sec. 78-1607. -Conditional uses. Sec. 78-1606. -Permitted uses. (a) Within the wetland overlay districts no land may be used except for one or more of the following uses: (1) Native wetland vegetation, provided that no change is made to the ground elevation; (2) Wildlife and nature preserves; (3) Overhead utility lines and poles that are less than two feet in diameter; (4) Docks which provide reasonable access to the lakeshore and do not exceed eight feet in width; (5) Public and private flood control structures, ponding and drainage facilities and associated accessory appurtenances as approved by the city; or (6) Environmental monitoring or control facilities, including those related to water quality and wildlife regulation. (b) Within wetland buffer areas no land may be used except for one or more of the following uses: (1) Native vegetation, provided that no change is made to the ground elevation; (2) Wildlife and nature preserves; (3) Boardwalks, docks or other reasonable access to the wetland not exceeding eight feet in width, poles that are less than two feet in diameter to be used for boardwalks and bridges; (4) Public and private flood control structures, ponding and drainage facilities and associated accessory appurtenances as approved by the city; (5) Environmental monitoring or control facilities, including those related to water quality and wildlife regulation; (6) Overhead utility poles and lines that are less then two feet in diameter, under-ground utility lines and distribution equipment, light poles, traffic signals, traffic regulatory signs, mailboxes and other equipment that provides an essential public service; (7) Retaining walls if the city determines that the retaining wall will protect the wetland from conditions of erosion, when approved as part of a wetland permit application. (Ord. No. 28 3rd series, § 1, 8-22-2005) Sec. 78-1607. -Conditional uses. (a) Within the wetland overlay districts and the wetland buffer areas no land may be used for the following except by conditional use permit and except in conformance with the standards specified in section 78-1608 of this article: (1) Private and public recreational uses, including golf courses, impervious trails, picnic grounds and boat ramps; (2) Public utilities, including necessary structures; (3) Other non-structural facilities similar to those permitted by this section which also meet the intent of this section, as determined by the city; or (4) Public structures associated with recreational uses permitted by this section or by section 78-1606 of this section that are designed in an environmentally sensitive manner and will withstand periodic flooding, except for structures designed or used for habitation or the storage of equipment. (5) Unpaved hiking, skiing and horseback riding trails which comply with WCA standards. (b) No conditional use permit will be granted unless its approval will not adversely impact wetlands, the wetland buffer area, and surrounding properties, the intent of this article or the goals and policies of the community management plan. If applicable, granting of a conditional use permit will be conditioned upon approval of the request by all other appropriate regulatory governmental agencies, including but not limited to the Minnehaha Creek Watershed District (MCWD), the Lake Minnetonka Conservation District(LMCD), or the Minnesota Department of Natural Resources. (Ord. No. 28 3rd series, § 1, 8-22-2005) DIVISION 5. -STANDARDS FOR THE WETLAND OVERLAY DISTRICT,BUFFER AREAS AND NEIGHBORING LANDS Sec. 78-1608. - Standards. Sec. 78-1609. - Removal of lands from the wetlands overlay district. Sec. 78-1610. -Alteration of wetlands. Sec. 78-1611. - Public control of wetlands. Sec. 78-1612. -Wetland buffer markers. Sec. 78-1613. -Violations. Sec. 78-1614. -Authority/enforcement actions. Secs. 78-1615-78-1630. - Reserved. Sec. 78-1608. -Standards. The following standards apply to all land within the wetland overlay districts, wetland buffer areas, and to neighboring lands: (1) Protection of wetlands and wetland buffer areas. a. Except as modified or regulated by the standards of this subsection, all requirements of the underlying zoning district apply. b. No structures are allowed in the wetland overlay districts, or wetland buffer area except those allowed as of right or by conditional use permit by sections 78-1606 or 78-1607 of this article. c. Activities including, but not limited to, building (other than a boardwalk or dock), paving, mowing, vegetation removal, filling, dumping, yard waste disposal or fertilizer application are prohibited, except that certain such activities may be permitted when approved by the city as a buffer management plan. Invasive non-native vegetation, such as European buckthorn and noxious weeds, may be removed by obtaining a vegetation removal permit from the city. d. Before grading or construction near a wetland overlay district or buffer area, the owner or contractor must place erosion control fencing on the upland side of the perimeter of the wetland overlay district or wetland buffer area, which ever is more restrictive, or as required by the city. This fencing must remain in place until all development activities that may affect the wetland and the wetland buffer area have been finished and adequate vegetative cover has been established at which time the fencing must be removed. e. All structures must have a minimum basement floor elevation not less than one foot above the 100-year flood elevation. f. All hard-surface runoff must be treated in accordance with the requirements of the city and the appropriate watershed district. Treatment may include site retention, skimmers, weirs or sedimentation ponds of appropriate scale. Structures and ponds serving this purpose must be properly maintained and serviced by the property owner. g. Discharge into the wetlands must occur at a rate no greater than allowed by the city engineer in accordance with the city's surface water management plan and the appropriate MCWD requirements. (2) Setbacks. a. All buildings (principal and accessory), must be setback at least 20 feet from the upslope edge of the wetland buffer. Exceptions: Play structures (including sport court type structures), grade-level decks, patio slabs, driveways, sidewalks and parking lots. b. A setback from the buffer area is not required for overhead utility poles and lines that are less than two feet in diameter, underground utility lines and distribution equipment, light poles, traffic signals, traffic regulatory signs, mailboxes, entrance monuments meeting section 78-1405(8) and other equipment that provides an essential public service. c. A setback from the buffer area is not required for fences or retaining walls. (3) Nonconformities. a. Effect of wetland boundary expansion. An existing structure, driveway or parking area meeting the required setback from a city-designated wetland boundary or buffer area is considered a legal nonconforming development if a later wetland delineation or implementation of a wetland buffer shows that the wetland or its buffer is closer than the required setback. b. Existing nonconformities. An existing structure, driveway or parking area that does not meet the required setback from a city-designated wetland boundary or buffer area, is considered a legal nonconforming development. c. Avoiding future nonconformities. In order to avoid the creation of future nonconformities, in situations where development, redevelopment or construction activity does not trigger the establishment of a buffer, the following setbacks shall apply: 1. All new buildings shall maintain a setback from a delineated wetland boundary equivalent to the width of the buffer area per the chart in section 78-1605(c) plus the required 20 foot buffer setback. 2. All new non-structural impervious surfaces and those structures listed as exceptions in section 78- 1608(2)(a) above shall maintain a setback from the delineated wetland boundary equivalent to the width of the buffer area per the chart in [section] 78-1605(c). d. Buffer flexibility. Where existing structures or surfaces are located within an area that would be required for establishment of a buffer under this article, alternative methods of wetland protection may be approved by the city council to avoid creating unreasonable impacts on the existing use of a property. Such methods may include but are not limited to buffer width averaging, redirection of drainage to an area where buffer is feasible, use of rain gardens, cisterns or rain barrels, etc. (Ord. No. 28 3rd series, § 1, 8-22-2005) Sec. 78-1609. - Removal of lands from the wetlands overlay district. (a) Removal of wetlands from a wetland overlay district (i.e. by filling, etc) requires a zoning amendment and an amendment of the official city wetland map. The amendments must be made pursuant to the provisions of section 78-43 of this chapter and WCA replacement rules. These amendments must be consistent with the purpose of this article, the city's surface water management plan and the goals and policies of the community management plan. In determining the appropriateness of a rezoning request, the city council will consider the size of the wetland overlay district, the magnitude of the area proposed for removal, hydrological and ecological effects and the type and function of wetlands involved in order to provide the maximum feasible protection. (b) Wetlands within an overlay district may only be removed according to WCA rules and if at least an equal area of wetland replacement is created to compensate for the wetland being filled. Unless otherwise approved by the city council, compensatory wetland area must be provided within Orono and within the same subwatershed (Painter's Creek, Long Lake Creek, Classen Creek, Lake Minnetonka) as the wetland being altered, if available. (c) In addition to application requirements, the city may require submission and approval of the following information: (1) A copy of the wetland replacement plan application submitted to the MCWD; (2) A concept plan showing the ultimate use of the property; (3) A grading plan, in hard copy format and a CAD or GIS format in Hennepin County coordinates, with appropriate drainage calculations and erosion controls prepared by a registered engineer; (4) A landscaping or revegetation plan; (5) Such other information as may be necessary or convenient to evaluate the proposed permit; and (6) A MnRAM assessment approved by the MCWD. (Ord. No. 28 3rd series, § 1, 8-22-2005) Sec. 78-1610. -Alteration of wetlands. (a) No alteration of land within a wetland overlay district or a wetland buffer is allowed without a wetlands alteration permit, subject to recommendation by the planning commission and approval of the city council. The planning commission must hold a public hearing after notifying the property owners within 350 feet of the property on which the proposed alteration will occur. Activities that constitute an alteration regulated by this section include changes to the size, depth or contour of the wetlands or its buffer, dredging, or alterations of wetlands or buffer vegetation. Alterations do not include wetland planting or the selective clearing or pruning of trees or vegetation that are dead, diseased, noxious weeds or similar hazards. A wetland alteration permit is not required when a wetland district is rezoned to another zoning classification. (b) Alteration of land within a wetland overlay district will only be allowed if water storage is provided in an amount compensatory to that removed. Unless otherwise approved by the city council, compensatory wetland area must be provided within the same subwatershed district as the wetland being altered. In determining the appropriateness of an alteration request, the city council will consider the size of the total wetland district, the magnitude of the area proposed for alteration, the aesthetic, hydrological and ecological effect, the type and function of wetlands involved, and such other factors as may be appropriate in order to provide the maximum feasible protection to the wetlands. Application for a wetlands alteration permit must be accompanied by such information as required by the city, including: (1) A copy of the wetland replacement plan application submitted to the MCWD; (2) A concept plan showing the ultimate use of the property; (3) A grading plan, in hard copy format and a CAD or GIS format in Hennepin County coordinates, with appropriate drainage calculations and erosion controls prepared by a registered engineer; (4) A landscaping or revegetation plan; (5) Such other information as may be necessary or convenient to evaluate the proposed permit; and (6) A MnRAM assessment approved by the MCWD. (Ord. No. 28 3rd series, § 1, 8-22-2005) Sec. 78-1611. - Public control of wetlands. (a) The city council may require that the owner of any property affected by this article must establish wetland and buffer area easements or restrictive covenants to be recorded within the property's chain of title. These easements or covenants must describe the boundaries of the wetland and buffer area; document the obligations of the property owner with regards to the wetland buffer; and prohibit any building, paving, mowing (unless approved as a buffer management plan), cutting, filling, dumping, yard waste disposal or fertilizer application within the wetland and the buffer area. The owner or developer must record these easements or covenants with the final plat, with deeds from a lot division or, if no subdivision is involved, before the city issues a grading permit or building permit for an affected property. The applicant must submit evidence that the easement or covenant has been submitted to the county for recording. (b) If the city council does not require an easement or covenant, the city may record a notice of the wetland and buffer area requirements against the property. The property owner must still comply with the requirements of this section. (Ord. No. 28 3rd series, § 1, 8-22-2005) Sec. 78-1612. -Wetland buffer markers. When new development or redevelopment results in multifamily residential or a business use, the developer must place markers at the upland boundary of the wetland buffer edge at least every 200 feet, subject to city approval. The developer must submit a location plan in hard copy format and a CAD or GIS format in Hennepin County coordinates and must use uniform markers provided by the city. The city will charge a reasonable cost for the markers and approve the location of the markers prior to installation. (Ord. No. 28 3rd series, § 1, 8-22-2005) Sec. 78-1613. -Violations. Violation of the provisions of this article or failure to comply with any of its requirements (including violations of conditions and safeguards established in connection with grants of variances or conditional uses) shall constitute a misdemeanor and shall be punishable as defined by law. (Ord. No. 28 3rd series, § 1, 8-22-2005) Sec. 78-1614. -Authority/enforcement actions. Nothing herein contained shall prevent the city from taking such other lawful action as is necessary to prevent or remedy any violation. Such actions may include but are not limited to: (1) In responding to a suspected article violation, the planning director and the city may utilize the full array of enforcement actions available to it including but not limited to prosecution and fines, injunctions, after-the-fact permits, and/or orders for corrective measures to the guilty party. (2) When an article violation is either discovered by or brought to the attention of the planning director, the planning director shall immediately investigate the situation and document the nature and extent of the violation of the official control. As soon as is reasonably possible, this information will be submitted to the MCWD along with the community's plan of action to correct the violation to the degree possible. (3) The planning director shall notify the suspected party of the requirements of this article and all other official controls and the nature and extent of the suspected violation of these controls. If the structure and/or use is under construction or development, the planning director may order the construction or development immediately halted until a proper permit or approval is granted by the community. If the construction or development is already completed, then the planning director may either: (1) issue an order identifying the corrective actions that must be made within a specified time period to bring the use or structure into compliance with the official controls; or (2) notify the responsible party to apply for an after-the-fact permit/development approval within a specified period of time not to exceed 30-days. (4) If the responsible party does not appropriately respond to the planning director within the specified period of time, each additional day that lapses shall constitute an additional violation of this article and shall be prosecuted accordingly. The planning director shall also upon the lapse of the specified response period notify the landowner to restore the land to the condition which existed prior to the violation of this article. (Ord. No. 28 3rd series, § 1, 8-22-2005)