Bay Village Debates Riparian Setback Ordinance

Bay Village has been debating establishing a riparian setback for the last few years.  The proposal which began with a 75 foot setback has now been scaled down to 25 feet.  Yet the ordinance is still controversial and City Council decided to delay its vote enacting the provision.

The debate before Council was covered in the West Shore Sun:

Council took the items off the March 21 meeting agenda after hearing concerns voiced by Lake Road resident and attorney, Homer Taft... 

Taft told council he felt the proposed legislation was onerous, would impose unfair hardships on some residents, and could be found unconstitutional.

Residents near creeks wanting to make changes on their property could face thousands of dollars in additional engineering expenses, he said. In addition, some residents could find themselves facing restrictions on developing significant portions of their property.

“I believe this ordinance is unfair to property owners and rather draconian,” Taft said.

He also questioned whether the city is really obligated to pass the legislation.

“I know you are being told the EPA requires this,” Taft said. “I challenge anyone to provide written evidence that’s true.”

Riparian setback ordinances are appearing all over Northeast Ohio due to a strong push by the Northeast Ohio Areawide Coordinating Agency, local officials with Ohio EPA and the Cuyahoga Soil & Water Conservation District.  I am willing to bet that more areas are covered by riparian setback requirements in Northeast Ohio than anywhere else in Ohio.

From the article is appears there is still confusion as to whether Ohio EPA is mandating local municipalities adopt the ordinances to comply with NPDES permit requirements to control stormwater.  As discussed in a previous post, setbacks are but one option municipalities can utilize to meet their stormwater control requirements.

From an environmental standpoint do setback have value?  There is no debate setbacks have value by providing flood retention, filtering of pollutants and habitat to improve water quality.  While there are benefits, they also restrict owners ability to fully utilize their property. 

Many municipalities passed setback ordinances without really understanding what they were placing on their books.  City Councils then faced outraged citizens who complained about "no build zones" on their properties.  Some Boards of Zoning Appeals were faced with controversial variance requests to appease local citizens.  Given the controversy its a good idea that Bay Village is having a robust debate. 

 

Are Local Government's Mandated to Adopt Riparian Setbacks

Northeast Ohio has led the state in the adoption of ordinances that establish setback requirements from streams and wetlands.  Buried within municipal codes is the requirement to stay out of buffer areas surrounding streams and wetlands. 

Homeowners, businesses and developers often learn of these requirements after they go to the City with their designs for additions, expansions or subdivisions. 

There is a lot of misinformation as to whether cities are required to adopt these ordinances.  Some municipalities are telling citizens and developers they were mandated by Ohio EPA to adopt them. While there was a very big effort to try and push adoption of these ordinances, let's be clear, there is no legal mandate in Ohio at this time to adopt them. 

The two most common model ordinance that many municipalities have adopted are either the Northeast Ohio Storm Water Task Force and Chagrin River Watershed Partners model ordinances.  (The Chagrin River Watershed Partners website provide very good information regarding riparian setbacks and their purpose.)

What are municipalities required to do to control stormwater?

The legal requirement for local governments to adopt various stormwater control ordinances stems from Ohio EPA's implementation of the MS4 program (Small Municipal Separate Storm Sewer Systems).  Each local government that has ownership and control over an MS4 is required to develop a Stormwater Management Program (SWMP).  There are certain required elements of the SWMP, including the adoption of certain storm water ordinances, including:

  • Pre-construction stormwater controls
  • Post-construction stormwater controls
  • Illicit discharge, detection and elimination
  • Erosion and sediment controls

As part of the post-construction stormwater program, the municipality must include information on any non-structural stormwater requirements it has imposed.  One possible non-structural stormwater control technique can be wetland and stream setbacks (buffers). 

Where are Ohio EPA's legal requirements specified?

Ohio EPA's NPDES General Permit for the MS4 program permit (Permit #OHQ000002) only requires a rational statement that discusses what non-structural BMPs were selected, including BMPs designed to protect riparian areas and buffers protecting sensitive water bodies. See, Section III.B.5.e.iii of Permit #OHQ00002. Ohio EPA's permit  does not require the MS4 community to adopt riparian setbacks.

OAC Chapter 3745-39, which establishes the minimum regulatory requirements for MS4 program, does not mandate adoption of setbacks. It only discusses setbacks as one option for implementing non-structural stormwater controls. Ohio EPA's comment below the regulation establishing minimum requirements for MS4 communities:

Non-structural best management practices are preventative actions that involve management and source controls such as: policies and ordinances that provide requirements and standards to direct growth to identified areas, protect sensitive areas such as wetlands and riparian areas, maintain or increase open space (including a dedicated funding source for open space acquisition), provide buffers along sensitive water bodies, minimize impervious surfaces, and minimize disturbance of soils and vegetation; policies or ordinances that encourage infill development in higher density urban areas, and areas with existing infrastructure; education programs for developers and the public about project designs that minimize water quality impacts; and measures such as minimization of per cent impervious area after development and minimization of directly connected impervious areas.

In other words, communities are free to consider a mix of non-structural controls which could include riparian setbacks.

What about distances of setbacks?

Model ordinances have between 25 - 300 feet as required buffers.  Does Ohio EPA mandate a specific distance?  No.

Ohio EPA has only included setbacks in a couple NPDES General Permits for specific sensitive water bodies (the Big Darby and the Olentangy). Here is the requirement from the Big Darby general construction stormwater permit:

The stream setback corridor (calculated using one of the methods in Part III.G.2.b of this permit) consists of up to 3 zones.  Zone 1 extends from 0 to 25 feet from the stream edge. Zone 2 extends from 25 to 100 feet from the stream edge, and Zone 3 extends from 100 feet to the outer edge of the setback corridor.

There is a formula for determining the stream setback corridor.  Then the Agency divides up the setback area into three zones.  Each zone has its own mitigation requirements.

While Ohio EPA has selected two sensitive rivers to mandate riparian setbacks, it is still not determined a minimum setback distance.  The NPDES General Permit for the MS4 program does not establish a minimum setback distance if a community elects to utilize this non-structural BMP.

OAC Chapter 3745-39 does not contain a rule specifying minimum distances for riparian or wetland setbacks. 

(For more information on the purpose of Riparian Setbacks, click here)

A Primer on Riparian and Wetland Setbacks

Municipalities and counties are utilizing riparian and wetland setbacks in their zoning and planning efforts on a more frequent basis.  Setbacks can be an effective tool to control growth, protect valuable natural resources as well as meet federal and state Phase II stormwater requirements. 

While setbacks are beneficial, officials must understand the level of impact on both large scale and small development within their communities before adopting them.  Are they prepared to require alteration of major new commercial or residential developments?  Are they prepared to face angry residents whose plans for a deck or storage shed are influenced by no build zones?  Do they understand the environmental benefits gained by adopting setbacks?

Some local officials that quickly enacted setbacks without fully comprehending the requirements or educating their residents have faced strong push back.  Some communities have responded by frequently issuing variances that dilute the effectiveness of setbacks. Other communities are delaying action on stormwater ordinances until ordered to by the State.

I have worked with local governments on stormwater ordinances, including setbacks.  In my experience, it is critical for local officials to gain a thorough understanding of the ordinances, how they will be applied, as well as the benefits and consequences of setbacks. 

QUICK PRIMER ON RIPARIAN SETBACKS:

Riparian and wetland setbacks are typically adopted through local ordinance.  The most common form prohibits any development, with narrow exceptions, within specified distances from either wetlands or streams. 

In Northeast Ohio, many communities have used the model ordinances developed by NOACA and the Chagrin River Watershed Partners.  The basic approach used in these ordinances is to establish  "no-build" areas equal to specific distances from all streams or wetland.  The distances in the model ordinances range from 300 ft to 25 ft based on the drainage area of the stream or quality of wetland.  A property owner can try and obtain a variance from the setback requirements by demonstrating hardship.

Some local governments have taken this basic approach much further.  They have invested significant resources to map all of the sensitive environmental resources within their communities.  Once mapped, areas are either designated for planned development or are to be avoided and protected.   

An excellent example of this approach is the Chippewa Creek Balanced Growth Plan developed by the Cuyahoga River Community Planning Organization through a Balanced Growth grant awarded by the Lake Erie Commission.

 

 

 

 

 

 

 

The map on the left show the entire watershed.  Each color designates a different environmental attribute (such as wetlands, streams or steep slopes) that should be protected.  The map on the right is a satellite image with the critical areas highlighted.  Dark green are "no build zones" (PCAs- Priority Conservation Areas) and light green are designated for future development (PDAs- Priority Development Areas).

Creative approaches can be used to compensate landowners whose land lies in area designated for protection. 

  • Transfer of Development Rights- compensating a landowner for the development value of the land that is being preserved by allowing higher density development elsewhere in the community.  (A good primer on Transfer of Development Rights)
  • Mitigation Banking- establish wetland or restoration areas that can be used to compensate if an impact occurs to a setback area.  This provides flexibility while ensuring the environmental benefits stay within the watershed.

WHAT TO CONSIDER BEFORE ENACTING SETBACK ORDINANCES

1. Flexibility-  Have you built in a level of flexibility within the ordinance that fits your community's needs?  For instance, will you allow development in a setback if mitigation is provided for the impacts.

2.  Takings-  Do the legal standards for granting a variance provide sufficient protection against taking claims?  Because takings case law is fact specific, requirements within the ordinances must have inherent legal flexibility to avoid providing a basis for a claim.  Application of a setback ordinance that results in a valid takings claims can result in significant compensation to the landowner thus draining local government finances.

3.  Distance of the Setback-  Currently in Ohio there is no minimum setback distance specified in state law.  In addition, there are many different distances utilized.  Some are based upon a formula like the one in the Ohio Department of Natural Resources Rainwater Manual.  Others use standard distances like the approach in the NOACA model ordinance.  The key consideration in choosing a distance is whether it will provide the protection your desire without unnecessarily burdening property owners.

4.  Alternatives to Setbacks-  In Ohio, Phase II stormwater communities must adopt both structural and non-structural "best management practices" as part of their stormwater management plans.  Right now, the State does not mandate adoption of setback ordinances unless the community committed to one in their stormwater management plan.  Would an alternative non-structural BMP requirement, such as mandating use of green infrastructure (green roofs, pervious pavement, rain gardens) be more palatable to residents?

5.  Education-  It is critical that communities use effective public education techniques so citizens understand the value of setbacks.  Good education can be the difference between local governments effective implementation of a setback ordinance or a community that issues frequent variances to avoid confrontation with residents.