GJT revised 11/02 BCWP District ordinance

CITY OF HOMER

HOMER, ALASKA

Kranich

ORDINANCE 03 – 11(S)(A)

AN ORDINANCE AMENDING SECTION 21.36.010 AND ADDING CHAPTER 21.59 TO THE HOMER CITY CODE CREATING THE BRIDGE CREEK WATERSHED PROTECTION DISTRICT TO REGULATE DEVELOPMENT IN THE BRIDGE CREEK WATERSHED FOR THE PROTECTION OF THE PUBLIC WATER SUPPLY

WHEREAS, the City of Homer operates a public water utility and provides water to its customers within its customer service area; and,

WHEREAS, the City of Homer relies exclusively on the Bridge Creek watershed for its water supply, which is situated partially outside of the city’s limits; and,

WHEREAS, the Kenai Peninsula Borough Assembly passed Ordinance 99-47 which approved the exercise by the City of Homer of the power necessary to protect its water supply and watershed, and

WHEREAS, the City of Homer finds it necessary to regulate the use of land in the Bridge Creek Watershed for the protection of the public water supply,

NOW, THEREFORE, THE CITY OF HOMER HEREBY ORDAINS:

Section 1. A new chapter HCC 21.59 is hereby added to the Homer City Code consisting of the following sections:

Chapter 21.59

Bridge Creek Watershed Protection District

Sections:

21.59.010 Purpose

21.59.020 Description of Area: Authority

21.59.021 Map of BCWP District

21.59.030 Definitions

21.59.040 Compliance

21.59.045 Permit Required

21.59.048 Permit Not Required

21.59.050 Permitted Uses and Structures

21.59.055 Prohibited Uses

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21.59.060 Conditional Uses and Structures

21.59.070 Requirements

21.59.080 Erosion and Sediment Control

21.59.090 Agricultural Practices and Operations

21.59.100 Timber growing and Harvesting Operations

21.59.110 Stream Buffers

21.59.120 Bridge Creek Reservoir Buffer

21.59.130 Exceptions to Buffers

21.59.140 Pollution Prohibited

21.59.150 Enforcement

21.59.160 Violations

21.59.010 Purpose. The purpose of this chapter is to prevent the degradation of the water quality and protect the Bridge Creek Watershed to ensure its continuing suitability as a water supply source for the City's public water utility. These provisions benefit the public health, safety, and welfare of the residents of the City of Homer and other customers of the city’s water system by restricting land use activities that would impair the water quality, or increase the cost for treatment.

21.59.020 Description of Area; Authority. a. This chapter applies to the following described area, referred to in this chapter as the Bridge Creek Watershed Protection District:

That area of land bounded by the following description:

Commencing at the intersection of West Hill Road and Skyline Drive, also being the section corner common to Sections 12 and 13, Township 6 South, Range 14 West and Sections 7 and 18, Township 6 South, Range 13 West;

Thence northeasterly along Skyline Drive within Section 7, Township 6 South, Range 13 West, approximately 0.9 miles to the intersection of Skyline Drive and an unnamed road to Bridge Creek Reservoir, and the Point of Beginning;

Thence northeasterly along the unnamed road passing by Bridge Creek Reservoir, within Sections 5, 6 and 7, Township 6 South, Range 13 West, approximately 1.5 miles, to the intersection of the unnamed road with the road commonly known as Crossman Ridge Road;

Thence easterly and southeasterly along the unnamed road commonly known as Crossman Ridge Road, within Sections 3, 4 and 5, Township 6 South, Range 13 West, approximately 2.5 miles, to the intersection of the unnamed road commonly known as Crossman Ridge Road and Skyline Drive;

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Thence southwesterly and northwesterly along Skyline Drive, within Sections 3, 7, 8, 9 and 10, Township 6 South, Range 13 West, approximately 3.9 miles, to the intersection of Skyline Drive and the unnamed road to Bridge Creek Reservoir, and the Point of Beginning;

All within the Seward Meridian, Alaska.

b. This chapter is adopted pursuant to the authority granted to the city under AS 29.35.020 and Kenai Peninsula Borough Ordinance 99-47. If there is a conflict between this chapter and any other law or regulation applicable to the Bridge Creek Watershed, then the more restrictive provision(s) shall apply.

c. Excluded from the regulations of the Bridge Creek Watershed Protection District are parcels which are within the Bridge Creek Watershed Protection District and from which all the surface waters drain away from the Bridge Creek Watershed, provided that the drainage of the entire parcel is proven by survey to be unable to enter the Bridge Creek Watershed. The determination of whether a parcel is excluded under this subsection will be made by the Planning Commission on a case-by-case basis after notice and a public hearing. The property owner has the burden of proof.

21.59.030 Definitions. As used in this chapter, the following words and terms shall be interpreted as set forth below, unless the context otherwise requires:

1. “Agricultural activity” shall mean farming, including but not limited to plowing, tillage, fertilizing, cropping, irrigating, seeding, cultivating or harvesting for the production of food and fiber products (except commercial logging and timber harvesting operations); the grazing or raising of livestock (except in feedlots); aquaculture; sod production; orchards; Christmas tree plantations; nurseries; and the cultivation of products as part of a recognized commercial enterprise.

2. Animal-Unit Equivalents.

The animal-unit is a convenient denominator for use in calculating relative grazing impact of different kinds and classes of domestic livestock. An animal unit (AU) is generally one mature cow of approximately 1,000 pounds and a calf as old as six months of age, or their equivalent.

Animal unit equivalents vary somewhat according to kind and size of animals. The following table of AU equivalents applies.

Kinds and classes of animals Animal-unit equivalent

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Slaughter/feed cattle………………………………………………… 1.00

Mature dairy cattle …………………………………………………. 1.40

Young dairy cattle…………………………………………………… 0.60

Horse, mature………………………………………………………... 2.00

Sheep, mature……………………………………………………….. .20

Lamb, one year of age………………………………………………. .15

Goat, mature…………………………………………………………. .15

Kid, one year of age………………………………………………… .10

Exotic species (e.g., llamas, alpaca, reindeer, musk ox, bison and elk)…. *

* Property owner must apply to Planning Commission for determination.

3. "BCWP District" means the "Bridge Creek Watershed Protection District" described in section 21.59.020.

4. "Bridge Creek Watershed" means the watershed surrounding the city's Bridge Creek reservoir.

5. "Buffer" means an area of natural or planted vegetation through which storm water runoff flows in a diffuse manner so that the runoff does not become channelized and which provides for infiltration of the runoff and filtering of silt and pollutants. The buffer is measured landward from the normal full water elevation of impounded structures and from the top of the bank of each side of streams or rivers.

6. “Community sewer” means that portion of a non-public sewerage serving

A. one or more multi-family dwellings;

B. a mobile home park, a trailer park, or a recreational vehicle park;

C. two or more:

i. single-family homes or duplexes;

ii commercial establishments;

iii industrial establishments; or

iv institutions; or

D. a combination of two or more of the structures listed in C i-iv of this paragraph.

7. “Dog Lot” means any outdoor area grouping more than six dogs over the age of five months.

8. "Gardening, personal use" means gardening for personal purposes as an accessory use to the primary residential use of a lot.

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9. “Impervious Coverage" (also referred to as “Coverage”)” means an area of ground, which, by reason of its physical characteristics or the characteristics of materials covering it, does not absorb rain or surface water. All parking areas, driveways, roads, sidewalks and walkways, whether paved or not, and any areas covered by buildings or structures, concrete, asphalt, brick, stone, wood, ceramic tile or metal shall be considered to be or have impervious coverage.

10. "Intermittent stream" means a stream that does not flow continuously but stops or dries up from time to time.

11. “Mitigation Plan” means a plan designed to mitigate the effect of impervious cover on water flow and loss of ground cover, and may include systems of water impoundment, settling ponds, grease & sand traps, and leach fields among others.

12. "Off-road vehicle" means any motorized vehicle designed for or capable of cross-country travel on or immediately over land, water, sand, snow, ice, wetland, or other natural terrain, except that such terms exclude (a) registered motorboats, (b) military, fire emergency, and law enforcement vehicles when used for such military, emergency, and law enforcement purposes, and (c) any vehicle whose use is expressly approved by the City of Homer

13. "Perennial stream" means a stream that flows continuously throughout the year, in contrast to an intermittent stream.

14. "Public sewer" means a sewer system operated for the benefit of the public by the City of Homer or a public utility under a certificate of convenience and necessity issued by the Regulatory Commission of Alaska or by its predecessor or successor agency.

15. “Reservoir” means a pond, lake, or basin, either natural or artificial, for the storage, regulation, and control of water.

16. “Slash Pile” means a windrow or pile of woody debris from timber harvesting or land clearing.

17. “Stream” means any body of flowing water, including a river, creek, or tributary.

18. “Stream banks” are defined by the steep or sloping ground that borders a stream and confines the water in the natural channel when the water level, or flow is normal.

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19. “Stream buffer” means a designated distance on each side of a stream measured perpendicularly from the top of the stream bank.

20. “Turbidity” means an expression of the optical property that causes light to be scattered and absorbed rather than transmitted in straight lines through a water sample; turbidity in water is caused by the presence of suspended matter such as clay, silt, finely divided organic and inorganic matter, plankton, and other microscopic organisms.

21. "Watershed" means any area of land that water flows or drains under or across ground on its way to a lake, pond, river, streams, or wetlands. Watersheds can be delineated on a topographical map by connecting the high points of the contour lines surrounding any water body.

             22.            "Wetland" means land that:

                              a.)   Has predominance of hydraulic soils;

                b.)   Is inundated or saturated by surface or groundwater at a frequency and duration sufficient to support a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions.

21.59.040 Compliance. No land or structures within the BCWP District shall be used, constructed, occupied, or altered except in conformance with the requirements of this chapter and the other applicable provisions of Title 21 of this code. Chapter 21.42 does apply to the entire BCWP District, notwithstanding the fact that a portion of the district may lie outside of the boundaries of the city.

21.59.045 Permits Required. A Zoning Permit issued under Chapter 21.42 is required for all activity in the BCWP District described in HCC 21.42.010. Notwithstanding any exemptions or contrary provisions in HCC 21.42.010 or any other provision of the code, a Zoning Permit is also required for the following activity in the BCWP District:

a. Building construction or reconstruction, which creates Coverage of 500 square feet or more;

b. Construction, storage or other activities that, in the aggregate, would exceed 75% of the allowed Coverage;

c. Building construction or activity that requires a septic or sewer system;

d. Construction or installation of a septic or sewer system, including tanks and leach fields;

e. Repair that requires excavation of a septic or sewer system or leach field, in whole or in part;

f. Disturbance of ground cover in excess of 2500 square feet;

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g. Disturbance of ground cover within the setback or buffer zone of creeks or reservoir;

h. Construction in public right-of-ways of roads, trails or driveways;

i. Construction on private land of roads, trails or driveways longer than 100';

j. Storage of matter, which produces an impervious cover in excess of 500 square feet for more than thirty days;

k. For any conditional use;

1. Construction of runways;

m. Construction of bridges;

n. Installation of culverts, or drainage ditches not included in activities previously listed;

o. Diversion of stream courses;

p. Cutting or clearing of brush or trees that cover an area greater than 2500 square feet.

21.59.048 Zoning Permit Not Required. Provided they occur outside of stream and reservoir setbacks and buffers, the following uses do not require a Zoning Permit under Chapter 21.42. Although excluded from Zoning Permit requirements, these uses are still subject to all other applicable requirements of this chapter:

a. Personal use gardens of 5000 square feet or less.

b. Other customary accessory uses to permitted uses, provided that the principal use and all accessory uses do not cumulatively exceed 75% of HCC 21.59 limits for impervious cover.

c. Cutting or clearing of brush and trees which cover an area less than 2500 square feet, provided the underlying ground cover is undisturbed.

d. Development of lawns 5000 square feet or smaller.

21.59.050 Permitted uses and structures. The following uses are permitted outright in the BCWP District, subject to the other requirements of this chapter and the permit requirements of Chapter 21.42:

a. Single family dwelling;

b. Duplex dwelling;

c. Multiple family dwelling, provided the structure conforms to HCC 21.45.040(a)(2);

d. Public parks and playgrounds;

e. Rooming houses or bed and breakfast establishments;

f. Storage of personal commercial fishing gear in a safe and orderly manner;

g. Private storage in yards, in a safe and orderly manner, of equipment, including trucks, boats, recreational vehicles and automobiles, provided that all are in good mechanical and operable condition, and if subject to licensing, currently able to

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meet licensing requirements, provided that the stored items do not create impervious cover in excess of the requirements of HCC 21.59.070;

h. Other customary accessory uses to any of the permitted uses listed in the BCWP District such as, personal non-commercial greenhouses;

i. Temporary (seasonal) roadside stands for the sale of produce grown on the premises;

j. Mobile homes, subject to the requirements set forth in HCC 21.61.080 g. 1. and g. 2;

k. Day care homes;

l. Temporary storage of commercial equipment being used in conjunction with a specific construction project on that lot for the duration of that project only;

m. Mobile commercial structures on a temporary basis during construction of a new permanent structure. If the mobile commercial structure is used in conjunction with a road, water or sewer construction project for which no zoning permit is issued, said use of a mobile commercial structure would be allowed for the duration of the project only;

n. Up to four recreational vehicles as a temporary dwelling not to exceed ninety days occupancy per vehicle in any calendar year;

o. Churches;

p. Public schools and private schools;

q. Day care facilities;

r. Mini storage.

21.59.055 Prohibited Uses. All uses not described in HCC 21.59.050 and HCC 21.59.060 are prohibited in the BCWP District. Without limiting the generality of the foregoing sentence, the following are examples of uses that under all circumstances are prohibited:

a. Junkyards;

b. Impound Yards;

c. Dog lots or aggregations of more than six dogs over the age of five months~~, or any number of dogs over the age of five months aggregating more than 300 lbs in weight~~;

d. Farming of swine;

e. Use of motorized vehicles, off-road vehicles, personal motorized watercraft or motorized boats on City of Homer properties or upon or in the waters on those properties, unless the use is expressly authorized by the City of Homer;

f. Racetracks;

g. Any use requiring an Alaska Department of Environmental Conservation (ADEC) approved septic or sewer system that is not connected to a properly functioning ADEC approved septic or sewer system;

h. Salvage Yards or recycling yards;

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i. All uses are prohibited that would cause a degradation of the water quality or endanger the suitability of the Bridge Creek Reservoir as a water supply source for the City’s public water utility.

21.59.060 Conditional uses and structures. The following uses are permitted in the Watershed District if authorized by a conditional use permit granted in accordance with Chapter 21.61 and subject to the other requirements of this chapter:

a. Cemeteries;

b. Public utility facilities and structures;

c. Timber harvesting operations, timber growing, and forest crops, provided they conform to HCC 21.59.100;

d. Agricultural activity, including general farming, truck farming, livestock farming, stables, nurseries, and greenhouses, provided that they conform to HCC 21.59.090;

e. Other similar uses as determined by the Planning Commission.

21.59.070 Requirements. The following requirements shall apply to all uses in the BCWP District unless more stringent requirements are otherwise provided for in Chapter 21.61 Conditional Use Permits:

a. Impervious Coverage

1. Unless reduced under HCC 21.59.070 c. 1., parcels subdivided after February 25, 2003 and parcels two acres and larger shall have a total Coverage of 4.2 percent or less.

2. All parcels smaller than two acres in area shall have a total Coverage of 4.2% or less, except that these parcels may contain Coverage up to 6.4 percent if the owner or owner’s representative submits a mitigation plan for Planning Commission approval, and, if approved, thereafter implements and continuously complies with the approved plan. The mitigation plan must be designed to mitigate the effect of impervious Coverage on water flow and the effect of loss of vegetation created by the impervious Coverage.

b. Parcel Size.

1. Except as provided in subparagraph 2., the minimum area of any parcel shall be 4.5 acres.

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2. Parcels of less than 4.5 acres existing prior to February 25, 2003 as a result of an instrument recorded or a plat finally approved before that date may be used in any way that otherwise complies with this chapter and other applicable laws.

c. New Subdivisions.

1. Except as otherwise provided in this section, parcels of land subdivided after February 25, 2003 shall be allowed a total Coverage of 4.2 percent including Right-Of-Way (ROW) dedication. ROW Coverage area shall be calculated as 50% of the total area of the dedicated ROW. The Coverage allowed for the subdivided parcels shall be calculated after deducting the ROW Coverage from the total parcel allowance according to the following formula.

Formula:

(Area of Parcel being subdivided) x .042 = Total Allowed Coverage (TAC)

(Area of ROW dedication) x .5 = ROW Coverage (ROW C)

(TAC) – (ROW C) = Allowed Coverage for remainder of parcel being subdivided

(Area of Parcel being subdivided) – (area of ROW dedication) = New Parcel area

(Allowed Coverage for remainder) ¸ (New Parcel area) x 100 = Percent Coverage allowed on subdivided parcels.

2. Subdivisions, dedications, and vacations of easements and right-of-ways in the BCWP District must be approved by the City of Homer Advisory Planning Commission prior to submission to the Kenai Peninsula Borough.

d. Building Setbacks: Buildings must be set back from the Bridge Creek Reservoir and from streams as provided in sections 21.59.110 and 21.59.120.

e. The City of Homer water utility is exempt from this section.

f. Sewer Systems: Appropriate to the use of the parcel, each parcel shall be served by a septic or sewer system approved by the Alaska State Department of Environmental Conservation (ADEC). Stream setbacks of 100-feet for drain fields and subsurface discharge and 250-feet from raised septic systems are required.

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g. Ongoing Construction and Timber Harvesting: All activities including, but not limited to, timber harvesting, road building, subdivision and building activities involving loss of vegetation ground cover or soil disturbance and which are in process on February 25, 2003 shall be required to obtain permits under HCC 21.59 and shall fully conform to the terms HCC 21.59. Activities leaving disturbed or lost vegetative ground cover, disturbed soils without revegetation or leaving slash piles will be considered in process for the purposes of this subsection, regardless of when the activity occurred.

h. Pending Subdivisions: Subdivisions which have not received final plat approval by February 25, 2003, shall obtain approval from the Homer Advisory Planning Commission and shall be required to conform to the requirements of HCC 21.59.

21.59.080 Erosion sediment control. a. All activities within the BCWP District involving the disturbance of the existing ground cover (i.e., topsoil or vegetation or both) resulting from excavation, grading or filling or other similar activity and involving (i) any area within 500-feet of Bridge Creek Reservoir or 100-feet from any known stream or tributary or (ii) an area in excess of 6,000 square feet, require a conditional use permit approved by the Planning Commission. The conditional use permit must require that the activity comply with a site‑specific Erosion and Sediment Control Plan prepared and signed by a certified hydrologist, professional engineer, or soil scientist whose qualifications to prepare such a plan are reviewed and approved by the ~~City Engineer~~ Public Works Director.

b. The Erosion and Sediment Control Plan shall ensure compliance with the following requirements:

1. A drainage system shall be provided to direct all runoff from impervious Coverage or the disturbed site either into an engineered drainage system or into a natural drainage, but no runoff shall be discharged untreated directly into the Bridge Creek Reservoir, or any associated stream, or other watercourse.

2. Where open-ditch construction is used to handle drainage within the tract, a minimum of thirty feet shall be provided between any structures and the top of the bank of the defined channel.

3. When a closed system is used to handle drainage within the tract, all structures shall be a minimum of ten feet from the closed system.

~~4. Drainage from impervious Coverage cannot be drained off site.~~

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4.5. Natural vegetation shall remain undisturbed except as necessary to construct improvements and to eliminate hazardous conditions, in which case it must be replanted with ~~native~~ approved materials including ground cover, shrubs and trees. Native materials are preferred for replanting operations, and will be used where practicable.

5. 6. Grading must not alter the natural contours of the terrain except as necessary for building sites or to correct unsafe conditions. The locations of buildings, roads and rights of way must be planned to follow and conform to existing contours as nearly as possible.

6. 7. Upon completion of earthwork, all exposed slopes, and all cleared, filled, and disturbed soils shall immediately be given sufficient protection by appropriate means, such as landscaping, planting, and maintenance of vegetative cover, or temporary protective measures to prevent erosion.

7. 8. All exposed, cleared, filled and disturbed soils shall be revegetated within the current growing season, unless required to be revegetated sooner by other provisions of this code or other law.

8. 9. Drainage, erosion, siltation, slope failure and other adverse effects may be prevented or controlled by means other than vegetation, if approved by the Planning Commission.

9. ~~10.~~ Development activities shall not adversely impact other properties or watershed water quality by causing adverse alteration of surface water drainage, increased turbidity above natural conditions, surface water ponding, slope failure, erosion, siltation, intentional or inadvertent fill, root damage to neighboring trees, or other adverse physical impacts. The Erosion and Sediment Control Plan shall address this requirement, and the property owner and developer shall take such steps, including installation of culverts or buffers, or other methods, as necessary to comply with this requirement.

21.59.090 Agricultural activity. a. Except as provided in subsection (c), agricultural activity requires a conditional use permit approved by the Planning Commission.

b. The application for a conditional use permit must include a written plan for each proposed agricultural activity or operation that includes the following:

1. Name, address, phone number and approving signature of the landowner and operator.

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2. A map showing the area of proposed activity and a written description detailing the activity within that area as follows:

(a) the location of all streams, both intermittent and perennial, ponds, wetland and other surface waters.

(b) the boundaries of the agricultural area(s), types of equipment and techniques to be used in the area(s), and the specific operational period(s) for the area(s).

(d) the location of all buffer areas required to protect water quality;

(e) the location of all slopes greater than 20% within the affected property.

(f) the location and a description of all areas where fuel, equipment and chemicals will be stored and how spills and other potential threats to water quality will be prevented and responded to.

(g) the location of all roads, trails and all structures that will be part of the proposed agriculture operation.

(h) Proposed use of fertilizers, pesticides, and herbicides including type, quantities, storage, use and spill contingency plans.

3. An Erosion and Sediment Control Plan if the proposed operation will include ground disturbance covered by section 21.59.080.

4. A copy of the Homer Soil and Water Conservation District’s Soil, Water, Slope and Vegetation Report for the proposed activity.

5. A copy of an executed Cooperative Agreement with the Homer Soil and Water Conservation District.

c. Agricultural activities that are customary and accessory to single‑family residential use are exempt from the requirements of this section only. For purposes of this section, personal use gardening of not more than five separate gardening plots not exceeding 1,000 square feet each with a minimum ten-foot separation of undisturbed ground and incidental keeping of livestock (not more than 3 animals with a density equal to or less than 2.5 animal units per five acres) for personal use will be considered customary and accessory to single-family

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residential use. Larger or more dense activities will not be considered customary and accessory uses.

21.59.100 Timber growing and harvesting operations. a. Except as provided in subsection (c), no timber harvesting, timber growing, or forest crop activities are allowed without a conditional use permit approved by the Planning Commission.

b. The application for a conditional use permit must include a written plan for each proposed timber harvesting, timber growing, or forest crop use or operation that includes the following:

1. Name, address, phone number and approving signature of the landowner, timber rights owner, and operator/logger.

2. A map showing the area of proposed activity and a written description detailing the activity within that area as follows:

(a) the location of all streams, both intermittent and perennial, ponds, wetlands and other surface waters.

(b) the location and proposed means of all stream crossings associated with the above waters.

(c) the boundaries of the harvest area(s), types of equipment and techniques to be used in the area(s), and the specific operational period(s) for the area(s).

(d) the location of all roads that will be constructed, and the location of construction materials if they are to be obtained onsite.

(e) the location of all trails not included in (d) that will be used for the harvesting, processing, or transportation of timber.

(f) the location of all buffer areas required to protect water quality;

(g) the location of all slopes greater than 20% within the affected property.

(h) the location and a description of all areas where fuel, equipment and chemicals will be stored and how spills and other potential threats to water quality will be prevented and responded to.

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(i) the location of all structures, logging yards, and storage areas that will be part of the proposed operation.

3. An Erosion and Sediment Control Plan as described in section 21.59.080.

4. In the case of timber harvesting, the reforestation plan specifications.

5. A restoration plan for logging yards, storage areas, stream crossings, log landings, trails, and roads that will not be maintained after a timber harvesting operation.

6. A plan for maintenance and operation for all roads and trails that will remain after the operation.

7. A copy of the Homer Soil and Water Conservation District’s Soil, Water, Slope and Vegetation Report for the proposed activity.

8. A copy of an executed Cooperative Agreement with the Homer Soil and Water Conservation District.

9. A plan for elimination of slash piles within six months of completion of timber harvesting.

c. Clearing of trees comprising less than twenty cords in one calendar year per lot for noncommercial purposes is exempt from the requirements of this section.

21.59.110 Stream buffers. a. A stream buffer must be preserved and maintained along all perennial and intermittent streams in the BCWP District. The stream buffer must be at least fifty feet on each side of the stream measured from the top of the stream bank. Buildings and other features that require grading or construction must be set back at least ten additional feet from the edge of the buffer. To avoid a decrease in the buffer's effectiveness in protecting the stream the buffer shall remain in natural and undisturbed vegetation.

b. The following exceptions or intrusions into the stream buffer may be granted by conditional use permit approved by the Planning Commission:

1. Street, driveway, culvert, recreational features, intakes, utilities, bridges or other crossings, provided that they are designed to minimize the amount of intrusion into the buffer. The aforementioned structures and improvements may run generally within the stream buffer only where no other access route is available and when their design minimizes the amount of intrusion of the stream buffer.

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2. Passive recreational activities, such as walking trails, provided that service facilities for such activities, including but not limited to parking, picnicking and sanitary facilities, are located outside of the buffer.

3. Clearing and re-vegetating the stream buffer for the purposes of improving its pollutant and silt removal efficiency may be permitted based upon clear and convincing proof that efficiency will be improved.

4. Storm water control structures and temporary erosion control structures, provided that:

(a) The property owner or applicant demonstrates to the satisfaction of the ~~City Engineer~~ Public Works Director and Planning Commission that such facilities cannot be practicably located outside of the stream buffer, and that any proposed storm water control structure is sited and designed to minimize disturbance of the stream and stream buffer. Siting storm water control structures away from the stream channel is preferable to siting such structures in the stream channel.

(b) A vegetated buffer of a width not less than the minimum recommended by the ~~City Engineer~~ Public Works Director is provided around the storm water control structures.

5. Timber harvest operations, provided that:

(a) Along perennial streams the buffer must consist of a 50-foot permanent buffer of undisturbed natural vegetation and an additional 75-foot buffer area of selective logging leaving no less than 30% of the original standing timber; and

(b) Along intermittent streams or drainages the buffer must consist of a 25-foot buffer area of selective logging leaving no less than 30% of the original standing timber.

21.59.120 Bridge Creek Reservoir Buffer. A 500-foot reservoir buffer must be maintained from the banks of the Bridge Creek Reservoir, measured at normal full water level.

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The reservoir buffer must remain in undisturbed natural vegetation. The facilities and improvements of the city water utility are exempt from this section.

21.59.130 Exceptions to buffers. a. A conditional use permit is required for any intrusion into a required buffer including, but not limited, to those intrusions and exceptions listed in subsection 21.59.110(b). When any approved intrusion into a buffer involves excavation or clearing, the conditional use permit must require the disturbed area to be revegetated immediately.

b. Upon application of the property owner, the Planning Commission may grant a conditional use permit to reduce the reservoir buffer requirements on a case-by-case basis only if it finds that:

1. The full reservoir buffer would result in an exceptional hardship, depriving the property owner of the economic advantages of ownership, i.e., all potential for appreciation and all opportunity for development of the property. Mere failure to realize the maximum appreciation or full development potential from the property shall not be considered an exceptional hardship.

2. The intrusion into the reservoir buffer is the minimum necessary to relieve that exceptional hardship.

3. The intrusion will not cause a degradation of the water quality or endanger the suitability of the Bridge Creek Reservoir as a water supply source for the City's public water utility.

In making such findings, the Planning Commission must consider topography, water quality protection, erosion potential, surrounding uses, the size of the parcel, and any other relevant factors. A site plan and an erosion and sediment control plan must be provided by the property owner. The Planning Commission must impose any conditions necessary to protect the water quality and ensure continued suitability of the Bridge Creek Reservoir as a water supply source for the City's public water utility.

c. Upon application of the property owner, the Planning Commission may grant a conditional use permit, on a case-by-case basis, to pipe an intermittent or perennial stream, thereby reducing or eliminating stream buffer requirements, only if it finds that:

1. For intermittent streams, the owner demonstrates that such piping is necessary to allow reasonable use of the property or for purposes of public safety.

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2. For perennial streams, the owner or applicant demonstrates that use of the property without such piping will cause an exceptional hardship, depriving the property owner of the economic advantages of ownership, i.e., all potential for appreciation and all opportunity for development of the property. Mere failure to realize the maximum appreciation or full development potential from the property shall not be considered an exceptional hardship.

3. The intrusion will not cause a degradation of the water quality or endanger the suitability the Bridge Creek Reservoir as a water supply source for the City's public water utility.

If the Planning Commission approves a conditional use permit for stream piping, it must impose conditions requiring a vegetated buffer area or other device approved by the ~~City Engineer~~ Public Works Director to protect the stream at any intake structure and other conditions as necessary to control erosion and sedimentation. All buffers and physical improvements related to the stream piping must be located entirely on the affected property or on easements adjacent to the property.

21.59.135 Nonconforming lots, uses, and structures. a. Except as otherwise provided in this section, lawfully developed lots, lawful existing uses, and lawfully constructed existing structures or improvements that are rendered unlawful by the adoption of this chapter or by any amendment to this chapter shall be treated as nonconforming and subject to Chapter 21.64.

b. No aspect of any nonconforming lot, use, structure, improvement, or any other kind of nonconformity shall expand or increase in degree of nonconformance beyond the nonconformity existing on the effective date of the enactment that rendered it unlawful.

c. Nothing in this section shall be construed to exempt ongoing activities or pending plats from the requirements from the requirements of HCC 21.59.070 (g) or (h) or to be an exemption from any other provision of this chapter that specifically applies to any activity or thing in progress on the effective date of the enactment.

d. Nothing in this section shall be construed to allow any preexisting or ongoing violation of HCC 21.59.140 to continue.

21.59.140 Pollution Prohibited. No person shall poison, defile or corrupt the waters of the Bridge Creek Watershed nor throw or deposit offal, refuse, rubbish, garbage, dead animals, excrement, hazardous material, petroleum product, or any foul, offensive or noxious matter or things whatsoever into the waters of the Bridge Creek Watershed or upon these waters when frozen, or upon the shores of these waters and the land constituting the watershed. No person

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shall cause, allow or permit any sewage, drainage, refuse or polluting matter, which either by itself or in connection with other matter will tend to corrupt or impair the quality of the water of

said watershed, or tend to render it injurious to health, to discharge, drain, percolate or permeate into the watershed.

21.59.150 Enforcement. a. In the event that any person holding a conditional use permit issued under this chapter violates the terms of the permit or any person implements site development in such a manner as to adversely affect or endanger the water quality in the Bridge Creek Watershed, the City Manager or his designated staff may issue a stop work order or suspend or revoke a conditional use permit. A stop work order or suspension of a conditional use permit may be imposed immediately and without prior notice to stop or prevent imminent material harm to the water quality, provided that notice and a reasonable opportunity for a hearing must be provided promptly after the issuance of the order or suspension. A conditional use permit may be revoked permanently or suspended for longer than thirty days only after notice and a reasonable opportunity for a hearing. A revocation or suspension of a conditional use permit for longer than thirty days must be done by written decision.

b. The City may also exercise one or more other legal, equitable or other remedies available to it, including, but not limited to, criminal prosecution and the imposition of civil penalties by the City Manager under HCC 1.16.020.

c. In addition to the penalties provided for herein, the City may apply to a court of competent jurisdiction for an order upon the parties responsible to a re-establish or restore the grade, slope, stability, vegetation, and/or drainage systems of a property in order to eliminate and/or prevent an adverse impact upon any adjacent or subservient property located in the Bridge Creek Watershed or to prevent degradation of the water quality, and for such other and further relief as may be appropriate in the circumstances.

21.59.160 Violations. a. No person shall construct, enlarge, alter, repair, or maintain any grading, excavation, or fill, or cause the same to be done, contrary to or in violation of any terms of this chapter, nor shall any person engage in any activity or use of land, or cause the same to be done contrary to or in violation of the terms of this chapter or the terms of a conditional use permit issued under this chapter.

b. No person shall violate a stop work order, nor shall any person engage in a land use or activity for which a conditional use permit is required under this chapter without such a permit or after a conditional use permit for such land use or activity has been suspended or revoked, nor shall any person cause the same to be done.

Section 2. Section 21.36.010 of the Homer City Code is hereby amended to read as follows:

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21.36.010 Zoning districts. a. Section 21.04.010 of the Borough Code divides the borough into two zoning districts, rural and municipal. The municipal district of the City is further divided in zoning districts and within each district only certain uses and standards are allowed. The following zones are hereby established:

Zone Abbreviated

Designation

Rural Residential RR

Residential Office RO

Urban Residential UR

Central Business District CBD

Conservation CO

General Commercial 1 GC1

General Commercial 2 GC2

Marine Commercial CM

Marine Industrial IM

Open Space Recreational OSR

b. The zoning district boundaries shall be as shown on the Homer Zoning Map.

c. In addition to the zoning districts described in subsection (a), a special watershed protection district affecting the Bridge Creek watershed, designated the Bridge Creek Watershed Protection District or BCWP District, is established and described in Chapter 21.59. This Bridge Creek Watershed Protection District may be illustrated on the official zoning map or other maps, but the official description of the district is set forth in section 21.59.020, which shall prevail over any inconsistent illustration on a map.

Section 3. This ordinance is of a permanent and general character and shall be included in the City code

ENACTED BY THE CITY COUNCIL OF THE CITY OF HOMER, ALASKA, this 24th day of February, 2003.

CITY OF HOMER

Jack Cushing, Mayor

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ATTEST

Mary L. Calhoun, CMC, City Clerk

AYES: -5-

NOES: -0-

ABSTAIN:-0-

ABSENT: -1-

First Reading: 01/27/03

Public Hearing: 02/10/03

Second Reading: 02/24/03

Effective Date: 02/25/03

Reviewed and approved as to form:

Walt E. Wrede, City Manager Gordon J Tans, City Attorney

date: date:

Fiscal Note: Not identified.