Northeast Ohio has had the largest number of political subdivisions in Ohio enact riparian and wetland setback ordinances. Now, the City of Cleveland is proposing to get into the act with its proposed Setback Ordinance 1555-13.
News of the City's proposal got out this week when many property owners who could be subject to the ordinance received a standard public notice letter regard the proposed riparian setback ordinance. I received calls with concerns regarding the potential impact.
Applying setback requirements to an urban core will present more challenges than applying them to rural areas or even in the suburbs. As discussed below, urban areas are denser, with smaller lots which increases the impact of setback on landowners in the City.
Despite the difference in applying setback ordinances to an urban core, the City's proposal is based upon the model ordinance that had been circulated and was adopted by many suburban communities. No significant changes were made to account for the differences.
Cleveland Proposed Setback Ordinance
Here are some key elements of the proposed setback ordinance:
- Setbacks apply to all watercourses, except the Cuyahoga Navigation Channel and lake front areas;
- A map is referenced purporting to show which areas are covered by the setback ordinance. However, the ordinance states that if the map is inconsistent with the definition of watercourse in the ordinance, the ordinance trumps the map;
- River and stream setbacks are from 75 to 300 feet depending upon the size of the watercourse. However, if the 100 year flood plain extends further, then the setback is extended to the edge of the 100 year floodplain;
- New new structures can be constructed within the setback area without a variance;
- Existing structures are exempted from the the ordinance, so long as they are not abandoned for more than six months;
- Activities prohibited within the setback include:
- Grading or filling
- Any disturbance of natural vegetation
- Dredging or dumping
- Roadways or parking lots
- A violation of the ordinance is a criminal misdemeanor
Map versus the Ordinance- What Streams are Covered?
The ordinance includes a map which purports to show the location of all rivers and streams covered by the ordinance. However, the ordinance makes clear that setbacks apply to all "watercourses" except the Cuyahoga Navigation Channel and Lake Erie.
Watercourse is defined as anything with a "defined bed and bank." By this definition even drainage ditches will be potentially deemed covered by the setback requirements.
This has proved to be true with regard to Army Corps of Engineer jurisdictional determinations under the Clean Water Act. (Click here for article discussing controversy on Corps jurisdictional determinations).
Some may say this fear is overblown, however, in the 404/401 permitting process many small waterways are considered federal jurisdictional streams that many in the general public would not even consider a stream.
One way to address this issue would be to revise the definition of "watercourse" to apply the setback requirement to only perennial and intermittent streams (excluding ephemeral streams and man-made ditches).
Challenges to Applying Riparian Setback to More Urban Areas
The setback ordinance operates basically as a no build zone. Property owners are typically concerned that the restrictions will limit the productive use of their property. In urban areas, where lots typically are smaller, the setbacks have the potential for much greater effect on a landowner's "reasonable use" of their property.
Studies show that parcels of 1-2 acres can be significantly impacted by relatively narrow setback requirements. In some cities, such as Cupertino California, city planners attempted to address this concern by reducing the size of these setback based upon the lot size. Lots less than one acre in size must provide a 50-foot stream buffer zone; sites over one acre must leave 100-foot buffers.
Not many other major cities have enacted riparian setback ordinances, one such example is the City of Atlanta's Riparian Buffer Law.
Seeking a Variance
Construction within the setback is permissible, however, the property owner must obtain a variance. The legislation puts significant limitations on granting of variances. Some of the grounds for granting a variance include:
- A parcel existing at the time is rendered unbuildable- this is a very high standard, equating to a total taking of the parcel.
- Degree of hardship on the landowner weighed against the degree of hardship with respect to maintaining the setback. This includes the availability of alternatives to the proposed structure or use.
- The presence of impervious cover or maintain lawns in the setback area that diminish the value of the setback.
- Whether the building shape or design can be modified to minimize the impact to the setback.
- in cases where the lot is unbuildable, the minimum variance needed to make the lot buildable.
Takings Claims under the United States Constitution
I've been often asked whether imposing setback requirements on property owners constitutes a Takings under Constitution. The Takings Clause of Article V of the United States Constitution states that “nor shall private property be taken for public use, without just compensation.”
The general test as articulated by the U.S. Supreme Court (Pennsylvania Coal Co. v. Mahon, 260 U.S. .393, 413 (1922)) for whether government action constitutes a takings is as follows:
- The regulation “denies all economically beneficial or productive use of land.” Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992) (often referred to as the “Lucas test”); or
- The regulation, although falling short of denying all economic use of the
land, nonetheless effects a taking upon a review of a complex set of
factors, including: (i) the economic impacts of the regulation, including
the extent to which the regulations has interfered with “distinct
investment-backed expectations”; and (ii) the character of the
governmental action, specifically whether health, safety or general welfare
would be promoted by prohibiting particular uses of land. Penn Central,
438 U.S. at 124-25 (often referred to as the “Penn Central test”).
The Supreme Court also has stated that when evaluating whether something constitutes a Takings you must consider the "parcel as a whole," not just the portion subject to the law or restriction. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002)
The City's proposed legislation tries to build in some safeguards to prevent Takings Claims. For example, one ground for issuing a variance is whether the property is rendered "unbuildable."
Whether something constitutes a Takings under the proposed legislation will be property specific. It will also depend upon how the ordinance is applied in practice, if it passes.
Given the impacts of the proposed legislation, it is certain to attract a lot of attention. If the setback ordinance is enacted, a entirely new regulatory program will impact development within the City. It is also likely legal claims will be brought to either challenge the ordinance or its application to specific property.