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Home My WebLink About2009 03-02 City Council Manager Workshop Packet AGENDA MAPLEWOOD CITY COUNCIL MANAGER WORKSHOP 6:30 P.M. Monday, March 2, 2009 Council Chambers, City Hall A. CALL TO ORDER B. ROLL CALL C. APPROVAL OF AGENDA D. UNFINISHED BUSINESS 1. Discussion on Conservation Easement Applications to Maplewood Open Space Properties 2. Discussion on Issues Related to Consideration of Revisions to the Wetland Ordinance E. NEW BUSINESS F. ADJOURNMENT MEMORANDUM TO: Chuck Ahl, Acting City Manager FROM: DuWayne Konewko, Director Community Development and Parks Ginny Gaynor, Maplewood Natural Resources Coordinator Sarah Strommen, Minnesota Land Trust SUBJECT: Discussion on Conservation Easement Applications to Maplewood Open Space Properties DATE: February 23, 2009 INTRODUCTION In 2007 the City of Maplewood asked the Minnesota Land Trust (MLT) for assistance in exploring land protection options for the City?s Neighborhood Preserves. The goals of the initial phase of this project were to: Determine whether conservation easements are a potential tool to achieve permanent protection of the Neighborhood Preserves. Develop a proposal for implementing conservation easements on the Preserves. The proposal developed by the Land Trust recommended exploring conservation easements on five ?Tier 1? sites. This proposal was accepted by the City Council on October 22, 2007. After some additional research and discussion, the focus was narrowed to just two preserves, Jim?s Prairie and Priory Preserve. Easement terms were drafted and presented to the Parks Commission in 2008. After discussions with the Parks Commission, MLT recommended to staff that we complete the conservation easement for Priory Preserve but that we not pursue a conservation easement for Jim?s Prairie. Staff requests that City Council provides direction on whether we should continue with final easement preparation for Priory Preserve. DISCUSSION In 2008, MLT outlined basic terms of the conservation easements for Priory Preserve (Attachment 1) and Jim?s Prairie. The Parks Commission discussed the terms of the easements on April 16, 2008 and September 17, 2008 (minutes attached, Attachments 2 and 3). The commission recommended that the city not enter into a conservation easement for Jim?s Prairie (unanimous) and they split 4:4 on whether the city should pursue a conservation easement for Priory Preserve. After the September 17, 2008 Parks Commission meeting, Sarah Strommen from the Land Trust met with city staff to discuss options for moving forward. MLT and city staff recommend: 1. The city does not pursue an easement on Jim?s Prairie. While the quality and diversity of the native plant communities at Jim?s Prairie have incredible conservation value, we believe the most serious threat to Jim?s Prairie is not development but rather lack of management. Therefore, we recommend the city focus attention on a commitment to long-term management of the Prairie rather than on protection from development. 2. The city should consider pursuing a conservation easement for the Priory Preserve. This preserve is one of the city?s most treasured natural parks and would benefit from permanent protection through a conservation easement. MLT has worked with several communities to place conservation easements on publicly-owned nature parks. MLT thinks of these as signature parks. A signature park is a premier park that provides opportunities for the public to learn about, experience, and enjoy nature while permanently protecting natural habitat that is vital to the region. Attachment 4 profiles seven Minnesota communities that have protected natural parks through conservation easements with MLT. The Priory Neighborhood Preserve is the type of site that could be considered a signature park for the city. Land Protection Package for the Neighborhood Preserves Staff supports a strong preservation policy for the Neighborhood Preserves. City code section 2-5 specifies that land acquired with proceeds from the 1993 open space referendum (10 of our 14 preserves), shall not be sold, conveyed, leased or disposed of unless approved by 4/5 vote of city council after three public hearings. The ordinance can be revised by a 3/5 vote of city council. The draft comprehensive plan (Parks Chapter, page 6-26), if adopted, lays the foundation for stronger preservation mechanisms than we currently have. It proposes that: The city shall retain a minimum of 308 acres in the Neighborhood Preserve system, resulting in a no-net loss policy. The preserves are designated as open space on the land use plan. Changes to that land use th require a 4/5 vote by council and a comprehensive plan amendment. The City shall develop and enhance ordinances to support preservation. The City shall create a zoning designation that relates to activities allowed at preserves. If the comprehensive plan is adopted and the above programs are implemented, the preserve system as a whole will be well protected. Staff believes this is excellent and adequate protection for most of the preserves. However, it would still be possible to develop an individual site. In addition, an amendment to the plan or a future comprehensive plan could change these protections. We think it is appropriate to single out the Priory for the highest level of protection possible ? conservation easement. Its ecological quality, its position in a Natural Area Greenway, its size, and its value for passive recreation make it one of our most important city natural areas. If Maplewood protects just one site protected by a conservation easement, that site should be the Priory. Cost Maplewood paid MLT $2962 for the preliminary work completed on conservation easements in 2007. The contract negotiated in 2008 was: 1) $8000 to develop conservation easements for two sites, and 2) $25,000 stewardship and enforcement fee. MLT has submitted a new proposal for completion of an easement for just the Priory Preserve: $6,000 initial work (includes all the services provided in 2008 and 2009), and $15,000 stewardship and enforcement. RECOMMENDATION Staff requests that the City Council provides direction on whether we should continue to the final steps in completing a conservation easement for Priory Neighborhood Preserve. Attachments: 1. Terms of easement for Priory Preserve 2. Minutes from April 16 Parks Commission meeting 3. Minutes from September 17 Parks Commission meeting 4. Signature Parks, Minnesota Land Trust 2 Minnesota Land Trust Proposed Rights and Restrictions for a Conservation Easement The Priory City of Maplewood Land Use Restrictions & Rights Detail Industrial or commercial use Prohibited. Agricultural use Prohibited? this includes cultivation, forestry, livestock grazing or animal husbandry. Does not include harvest of native seed. Residential use and development Prohibited. Structures and improvements Prohibited except for: 1) minor rustic structures and 2) interpretive center of limited size (no more than 4000 square feet in footprint) and location. Utilities Utilities areallowedto serve those activities permitted by the easement but otherwise limited. Division of the property Limited to no more than two parcels. Development Rights Transfer of development rights to another property is prohibited. Rights of way Access across the property to develop adjacent land is prohibited. Mining Prohibited. SignsSmall, unlighted signs for informational or interpretive purposes is allowed. A sign designating the name of the park also is allowed. Roads and trails Roads are prohibited except as necessary for park maintenance and/or management. Trails are allowed, including footbridges and boardwalks. Surface alteration Alteration of the natural topography or surface of the land is limited. Vegetation and habitat Management of natural vegetation to improve its management habitat values is allowed, subject to an approved management plan. WaterAlteration of natural water bodies and wetlands, or actions detrimental to water quality are prohibited. Dumping Dumping or accumulation of trash or other unsightly material is prohibited. VehiclesProhibited except in conjunction with otherwise authorized activities (i.e. habitat restoration or management). Recreational and educational use Recreational and educational purposes that do not impact the conservation values of the land are allowed. This includes an interpretive center. Minnesota Land Trust Updated 11/18/08 CITYOF MAPLEWOOD PARK COMMISSION MEETING MINUTES Wednesday, September 17, 2008 6:30p.m. Council Chambers - Maplewood City Hall 1830 County Road B East I. CALL TO ORDER II. ROLL CALL: Present: Commissioner Binko Commissioner Fischer Commissioner Christianson Commissioner Peterson Commissioner Roman Commissioner Schmidt Commissioner Sonnek Commissioner Brannon Staff ? Ginny Gaynor, DuWayne Konewko Other Mark Gernes Absent: Commissioner Yang III. CONSERVATION EASEMENTS Ginny Gaynor reviewed the memo that was prepared for meeting. She asked the commission if they supported the city entering into conservation easements for Jim's Prairie and the Priory Neighborhood Preserve. She also discussed the management plan for Jim's Prairie. Commissioner Christianson asked for an explanation of the comment on the Jim?s Prairie easement that "the site will be managed for habitat for wildlife." Ms. Gaynor responded that means if we cannot manage the site for its biological diversity, we would have discussions with Minnesota Land Trust (MLT) and make a joint decision on whether to change the management goal to just managing for wildlife habitat. Ms. Gaynor estimates managing Jim?s Prairie will cost the city $500-$1000 annually. In addition, it would be nice to put some money up front for improvement on buffers. The maintenance and stewardship fee for the easements (for enforcement of the easement) is $25,000 for the two sites combined. Ms. Gaynor mentioned that another change regarding Jims Prairie is that the easement will be written to allow for trails. section. Ms. Gaynor discussed what would be covered in the Acts Beyond Owners Control Ms. Gaynor stated if the Comprehensive Plan passes, we will have more protection for our open space sights than we currently have. She asked the commissioners if these two sites deserve even more protection. If the commission wants to ensure that these particular sites are never developed, conservation easement is the tool to do that. Ms. Gaynor asked the commissioners to review, discuss and make a recommendation for each site individually on whether there should be a conservation easement on these sites. In addition, she mentioned that Mark Gernes from the Open Space Advisory Panel was present to participate in the discussion. Commissioner Fischer asked what other Open Space Advisory Panels members thought about the easements. Ms. Gaynor indicated that advisor Jack Frost commented he did not think conservation easements were necessary. He would prefer that the money be spent on site restoration and management. Mark Gernes, member of Open Space Advisory Task Force, stated the biggest threat for Jim's Prairie and Priory is lack of management. We need to put money into the preserves. Ms. Gaynor stated that if we only do one easements, the $25,000 fee would be reduced but not cut completely in half. Staff is requesting a recommendation for each of these preserves independently. Commissioner Binko asked if there would be a guarantee for maintenance on the prairie. Ms. Gaynor responded when we send this to City Council we will be making a recommendation on what budget the $25,000 is taken from. A suggestion was made that if money is appropriated to protect the Priory, whatever is remaining, should be put in an endowment so it is tied up and is generating money for long-term management. Mr. Konewko explained that general levy monies are being used. Funding for open space management is subject to budget discussions each year. The CIP plan allocates $50,000 a year for open space improvements over the next few years. Commissioner Brannon responded that future taxpayers will be paying for this decision without any possibility for a vote. How we spend our city money will be a right given to someone else, without a way to vote them out. Commissioner Christianson stated that we are still a democracy. His concern is that Maplewood has one of the premier park systems in the U.S. We were one of the first to set aside money for open space. To take a premier open space, the Priory, and give it to someone else to control, to give our privilege to make decisions on it to someone else forever seems like we are giving up our duties on this property. We are giving up a right to these properties. Control would be taken away from citizens and the City and City Council. Decisions made by an outside party may be counterintuitive to ours. Commissioner Schmidt thinks the Priory and Jim's Prairie do deserve more protection. Our money is a limited resource and she wonders if it would be better to put it into management. What?s the best way to spend our money? If we don't buy the easement do we get to use the $25,000? Mr. Konewko responded that the City Council would make the decision on the funds. The City Council has approved $50,000 in the CIP targeted for improvements to open space sites. Ms. Gaynor commented that the two sites are very different. She is not worried about the city being able to comply with the easement for the Priory in terms of management. It comes down to commission and council's desire to restrict the use of that property forever. Commissioner Peterson commented that she would like to tour Jim's Prairie. She agrees with what Ginny is saying regarding putting the preservation easement on the Priory. She does not believe Jim's Prairie would be in danger of development. Mr. Gernes commented that Jim's Prairie ecologically is a wet prairie. He wondered if the conservation easement is only going to protect the area within the property boundary. He questioned off-site impacts. Ms. Gaynor responded that acts beyond the owners control are covered in the easements. The land trust added a second clause enabling us to manage for wildlife if we are not able manage for a diverse wet prairie community. Mr. Gernes feels we do not gain additional protection if the feed supply business to the west sells their property. Redevelopment of that site has the potential of impacting JIm's Prairie and it doesn't sound like a conservation easement would give us further protection from those offsite impacts. Mr. Konewko responded that Mark Gernes is correct. The conservation easement does not control the land around the perimeter around Jim's Prairie. Commissioner Fischer asked if we think the city will be able to maintain the property or if we think we need to pay an outside group to force the city to make sure the sites are maintained in a proper way. He does not know what it is going to be like 20 years from now. Is this the best use of the money we have right now? Commissioner Peterson commented that it was the voter's intention to preserve the Priory forever. Mr. Konewko responded it is City Council's decision to ultimately decide where those proceeds will come from. Commissioner Fischer stated that the PAC funds used for this project ($33,000) would be better used to take care of the property, instead of turning the rights over to someone else. Commissioners commented on various concerns including lack of future open space opportunities, money issues, and there being few undeveloped parcels left in the city. Commissioner Peterson stated that there is little undeveloped land of size left except Carver Crossing in South Maplewood. She also indicated that the community paid for open space bonding. The intent of the referendum was that the sites be protected forever. Commissioner Roman commented that in the long term there will be considerable change surrounding Jim's Prairie. It cannot be sustained as it is today. Ms. Gaynor responded that even if development occurs, Jim?s Prairie will still be a natural area owned by the City of Maplewood. It might be lower ecological quality but it would still retain some value for habitat. Commissioner Fischer asked if the commissioners were ready to make a motion on Jim's Prairie and the Priory. Commissioner Binko made a motion that the city should enter into a conservation easement for Jim's Prairie, seconded by Commissioner Fischer. Ayes - 0, all nays. Parks Commission recommends the city does not pursue a conservation easement for Jim?s Prairie. Commissioner Christianson made a motion that the city not subject Priory Preserve or Jim's Prairie property to a conservation easement, seconded by Commissioner Brannon. Commissioner Sonnek aye, Commissioner Peterson nay, Commissioner Schmidt nay, Commissioner Roman nay, Commissioner Christianson aye, Commissioner Binko nay, Commissioner Fischer aye, Commissioner Brannon aye. Tie vote, motion fails. Commissioner Binko made a motion that the city should enter into a conservation easement for Priory Preserve, seconded by Commissioner Schmidt. Commissioner Brannon nay, Commissioner Binko aye, Commissioner Fischer nay, Commissioner Christianson nay, Commissioner Roman aye, Commissioner Schmidt aye, Commissioner Peterson aye, Commissioner Sonnek nay, tie vote, motion failed. Commissioner Sonnek stated that she does not like to tie our future hands on this. She supports preserving this land but does not want to speak for the next generation. Commissioner Fischer said they would not be able to come up with a recommendation for the Priory site. Minnesota Land Trust Signature Parks A signature park is a premiere park within a city that helps to capture three vital goals of the community: to maintain scenic character within the community by providing visual contrast to development; to restore and maintain habitat for plant and animal diversity; and to provide opportunities for low impact recreation, outdoor education, and interaction with nature. Signature parks provide opportunities for the public to learn about, experience, and enjoy nature while permanently protecting natural habitat that is vital to the region. Examples of signature parks that the Land Trust has helped to permanently protect through conservation easements Sunfish Lake Park (Lake Elmo, MN): Sunfish Lake Park is considered the crown jewel of the Lake Elmo park system and is an important illustration of the quiet, rural character Lake Elmo. The park?s untouched rolling landscape has remained virtually the same since the arrival of the first settlers and comprises an abundant variety of wildlife habitat including an oak forest, grasslands, wetlands and ponds. The park also provides public access to Sunfish Lake. Billings - Tomfohr Conservation Area (Red Wing, MN): Totaling 93 acres, the Billings - Tomfohr Conservation Area is Red Wing?s largest natural area park. The park includes prairie, oak savanna, and oak forest, as well as one of the most prominent undeveloped bluffs in the region. Musser Park (Sunfish Lake, MN): The 22-acre Musser Park was deeded to the City of Sunfish Lake by a local resident, Betty Musser. The park is one of the last large, open areas in the city and includes a landscape of wooded rolling hills and open fields. The City of Sunfish Lake quickly recognized the property as a Signature Park and decided to permanently protect it with a conservation easement. (Over) Henry?s Woods Park (Hassan, MN): This unique property in the Town of Hassan consists mostly of maple-basswood forest with a creek and wetlands scattered throughout. The forest at Henry?s Woods has been identified by the Minnesota County Biological Survey as one of the highest quality remants of "Big Woods" in the state. Henry's Woods is an important piece of the Town's park and open space network and helps to maintain its rural character. Grand Marais Harbor (Grand Marais, MN): This scenic landscape can be seen immediately by visitors to Grand Marais entering on the North Shore Scenic Drive (Highway 61), from the city streets, and also from Lake Superior. The undeveloped, natural character along Sweethearts Bluff and the scenic harbor and marina have been protected both to protect the significant wildlife habitat and to maintain the small, quaint setting that the lakeshore provides that entices tourists, artists, and photographers to visit this city each year. Fritz-Loven Park (Lake Shore, MN): Fritz-Loven Park totals 80 acres and includes hardwood and pine forests interspersed with wetlands. The park has over 1,000 feet of shoreline along Stony Brook, a DNR-designated trout stream flowing in to Gull Lake. The relatively secluded woodlands of the park provide a pleasing contrast to the heavily developed shoreline and surrounding areas. This natural and scenic city park provides opportunities for nature observation, study and recreation. Vetsch Park (La Crescent, MN): Located on the west edge of La Crescent, Vetsch Park is a locally-known quiet spot with a beautiful view of the Mississippi River Valley. The park contains an apple orchard, woodland areas, natural-surface hiking trails for public use, and a picturesque wooded hillside which can be seen from the city. ___________________________________________ Minnesota Land Trust ? 2356 University Avenue West, Suite 240, St. Paul MN 55114 ? 651.647.9590 ? www.mnland.org © February 2009 Printed on recycled paper MEMORANDUM TO: Charles Ahl, Acting City Manager FROM: DuWayne Konewko, Community Development and Parks Director Shann Finwall, AICP, Environmental Planner Ginny Gaynor, Natural Resources Coordinator SUBJECT: Wetland Ordinance Review DATE: February 23, 2009 for the March 2 City Council Workshop INTRODUCTION Wetlands serve beneficial environmental and economic functions. They maintain water quality by filtering pollutants and reducing flooding and erosion, provide food and habitat for wildlife, provide open space for human interaction, and are an integral part of the city's environment. Development surrounding wetlands may degrade, pollute, or accelerate the aging of wetlands. Regulating land use around wetlands is therefore in the public interest. Maplewood?s current wetland ordinance was adopted in 1996. Over the last few years the Environmental and Natural Resources (ENR) Commission has been reviewing the city?s current wetland regulations to ensure protection of wetlands while balancing property owner rights. The city council approved the first reading of the ENR Commission?s proposed wetland ordinance on March 24, 2008. During the meeting the city council requested that staff look into several issues prior to the second reading as well as notify all property owners within 500 feet of a proposed Manage A wetland (highest quality wetland) of the second reading of the ordinance. On April 28, 2008, the city council held the second reading of the ordinance. Of the 757 notices mailed to property owners within 500 feet of a proposed Manage A wetland, 12 residents attended and spoke at the city council meeting. Due to these resident?s concerns, the city council tabled the wetland ordinance and sent it back to the ENR commission for review. This memorandum will serve as a recap of the wetland ordinance reviews and revisions by the ENR Commission since last year. BACKGROUND April 24, 1995: The city council adopted a wetland ordinance and wetland classification map. The purpose of the ordinance was to preserve the beneficial functions of wetlands and streams by regulating the surrounding land uses, particularly by requiring various development setbacks (buffers) to wetlands. The city?s wetland ordinance references the Ramsey-Washington Metro Watershed District?s (RWMWD) definition of wetland classes (rating and condition). 2005: The RWMWD reclassified all of the wetlands within their district. The new classification system is based on the Minnesota Routine Assessment Method (MnRAM) of classifying wetlands, which is a more scientifically-based approach to wetland classification than their previous system. January 2006: The ENR Committee (not a commission at this point) appointed a wetland committee to recommend changes to Maplewood?s wetland ordinance in order to accommodate RWMWD?s new wetland classifications, recommend buffer widths for the new classifications, and recommend other changes to ensure that the ordinance is effective in protecting 1 Maplewood wetlands. The committee was made up of city staff, ENR Committee members, a resident expert, with watershed district participation. May 18, 2006: The city council held a workshop to discuss the RWMWD?s new classification system and how it affects Maplewood?s wetland ordinance; as well as review the wetland committee?s work and recommendations on changes to Maplewood?s wetland ordinance. September 2006: The RWMWD adopted new wetland management rules that regulate land disturbance or development of land adjacent to or in a wetland within their district. November 15, 2006: The Maplewood wetland committee recommended approval of a new wetland ordinance. November 7, 2007: The ENR Commission recommended approval of the wetland committee?s proposed wetland ordinance with modifications. November 20, 2007: The planning commission reviewed and gave comment on the proposed wetland ordinance. December 11, 2007: The community design review board reviewed and gave comment on the proposed wetland ordinance. January 29, 2008: The ENR Commission recommended approval of a new wetland ordinance based on research and comments received. March 24, 2008: The city council held the first reading of the draft wetland ordinance. April 28, 2008: The city council held the second reading of the draft wetland ordinance. Due to resident?s concerns regarding the ordinance, the city council tabled the wetland ordinance and sent it back to the ENR Commission for review. June 24, 2008: The ENR Commission took public testimony regarding the draft wetland ordinance. Approximately 30 people attended the meeting with 12 people formally testifying, including a representative of the RWMWD, Julie Vigness-Pint, who was available to answer questions regarding the watershed district?s wetland assessments. The ENR Commission tabled the wetland ordinance review until July 15. (The June 24, 2008, ENR Commission minutes are found at Attachment 1.) July 15, 2008: The ENR Commission reviewed the public testimony from the June 24, 2008, meeting and began to formulate recommendations to address the concerns raised. The ENR Commission tabled the wetland ordinance review until September 2, 2008. (The September 2, 2008, ENR Commission minutes are found at Attachment 2.) September 2, 2008: The ENR Commission continued to formulate recommendations to address the resident concerns. The ENR Commission tabled the wetland ordinance review until October 7, 2008. (The September 2, 2008, ENR Commission minutes are found at Attachment 3.) October 7, 2008: The ENR Commission recommended approval of the draft wetland ordinance with changes that attempt to address resident concerns expressed during the city council?s 2 second reading of the ordinance. The October 7, 2008, ENR Commission minutes are found at Attachment 4. The October 7, 2008, draft wetland ordinance is found at Attachment 5.) DISCUSSION Wetland Classifications The city?s current wetland ordinance references the RWMWD 1995 Wetland Inventory Map, which is a map of the district showing the category of all wetlands (based on their conditions and functions). (The 1995 RWMWD wetland map is found at Attachment 6.) In 2005, RWMWD reclassified wetlands in the district (including a majority of the wetlands in Maplewood) based on the MnRAM method of wetland classification. (The 2005 RWMWD wetland map is found at Attachment 7.) In comparing classifications from the old system to the new, 128 wetlands in Maplewood were upgraded, 55 were downgraded, and 60 remain the same. The main reason wetlands were downgraded since 1995 include: degradation of wetlands since 1995, the 1995 classification system was more subjective than the MnRAM system and may not have been as accurate, and forested wetlands or wetlands located in a school or natural area were automatically placed in the highest class regardless of quality. The reason wetlands were upgraded was because of the new criteria and scientific data collected through the MnRAM system, and the inaccuracies associated with the previous wetland classification system. RWMWD?s reclassification of wetlands was the main catalyst for the city?s new wetland regulations. If the city does not adopt the new RWMWD classifications as part of our wetland ordinance we will be relying on outdated wetland assessments, will not be protecting our wetlands based on their condition and function, and will not be consistent with the watershed district?s wetland classifications. Wetland Buffers The major component of wetland regulations are the requirement for wetland buffers. Wetland buffers are the lands that surround wetlands and streams. They are integral to maintaining the health and valuable functions wetlands and streams perform. The ENR Commission is proposing changes to the city?s existing buffer requirements, which currently range from 20 to 100 feet. The ENR Commission agreed that based on the scientific information available today a 50-foot buffer is the minimum buffer needed to adequately reduce the sediments and pollutants entering wetlands. Therefore, the minimum buffer for a wetland has been increased from 20 feet to 50, but the maximum buffer remains the same at 100 feet as shown on the following wetland buffer table: Wetland Proposed RWMWD Existing Class Buffer Buffer Buffer Manage A+ 200? Class 1: 100? avg, 100? min Manage A 100? 75? avg, 37.5? Class 2: 100? avg, 50? min min Manage B 75? 50? avg, 25? min Class 3: 50? avg, 25? min Manage C 50? 25? avg, 12.5? Class 4: 25? avg, 20? min min Utility 10? 10? Class 5: 0? 3 Maplewood?s current wetland classification system has one more wetland class than RWMWD?s previous classification system. These wetlands are defined as Class 1 wetlands and are determined to be the highest quality wetlands in Maplewood. The ordinance reviewed by the city council during the second reading last April also included a definition for an additional classification (A+ wetland). These wetlands had to meet criteria which defined it as a unique and special type of wetland in Maplewood (oligotrophic acid marsh, fen, wet prairie, sedge meadow, or a forested seasonal wetland). The ENR Commission believes there are a handful of these very special wetlands in Maplewood. In order to protect these rare wetlands the ENR Commission was originally proposing that these wetlands have an increased buffer of 200 feet. To determine which wetlands would fall into the above-mentioned unique wetland category, the city would need to survey all 74 of our Manage A wetlands. This assessment is not feasible at this time. For this reason, city staff is recommending that the Manage A+ definition and proposed 200-foot buffer be removed from the ordinance until further assessment of these wetlands can take place. Once the assessment of the wetlands is complete, city staff will bring this information back to the city council for further review. Property Owner Concerns The city council tabled the wetland ordinance last April and requested that the ENR Commission review issues brought forward by residents and property owners. Since that time the ENR Commission has reviewed the issues during four separate meetings, taking public testimony, debating, and recommending resolutions to each issue. The main issues and their resolutions follow: 1. Nonconforming Manufactured Homes: Concern was expressed by manufactured home park owners that variances would be required for the replacement of manufactured homes already located within a wetland buffer. This issue was resolved by an existing state statute (MN Stat., sec. 462.357, subd. 1.a.) that states ?a municipality must not enact, amend, or enforce a zoning ordinance that has the effect of altering the existing density, lot-size requirements, or manufactured home setback requirements in any manufactured home park constructed before January 1, 1995, if the manufactured home park, when constructed, complied with the then existing density, lot-size and setback requirement.? Alan Kantrud, city attorney, finds that this language would allow manufactured home parks within the city (all constructed prior to 1995) to replace older-style manufactured homes within an existing or proposed wetland buffer, with a new manufactured home, as long as the new manufactured home did not encroach closer to the wetland than the original ?setback requirement? approved when the manufactured home park was approved by the city council years ago. 2. Nonconforming Single Family Homes: MN Stat., sec. 462.357, subd. 1(e) states that ?if a nonconforming building, structure or use is destroyed by fire or other peril to the extent of greater than fifty (50) percent of its market value and no building permit has been applied for within one hundred and eighty (180) days from the date the building, structure, or use was damaged, subsequent use of such building or land shall be in conformity with this chapter. The city may impose reasonable conditions upon a building permit sought in order to maintain a damaged nonconforming building, structure, or use in order to mitigate any newly created impact upon adjacent property.? This means that 4 if a single family house located in an existing or proposed wetland buffer were to be destroyed to more than 50 percent of its fair market value, it could not be rebuilt in the exact location (within a buffer) unless a variance is approved by the city. The ENR Commission recommended language be added to the wetland ordinance that would allow nonconforming single family houses within a buffer that were destroyed by a natural disaster to greater than 50 percent of their fair market value to be rebuilt without a variance with the following conditions: a) the rebuilt house must maintain at least a 50- foot setback (buffer) from the wetland; and b) the property owner must implement best management practices to improve the buffer. This is a radical change from the city?s current wetland ordinance which follows state statute and would require that homeowners obtain a variance to rebuild closer to a wetland than city code allows, regardless of existing setback. 3. Nonconforming Use of Property: The ordinance reviewed by the city council last year any existing use of property not in stated that ?any existing building or structure, or conformity with the regulations prescribed in this chapter as of the date of the adoption of such regulation shall be regarded as nonconforming and may continue.? This language was meant to cover existing properties where the owner had mowed and was maintaining the existing or proposed buffer as lawn to be able to continue that use after the ordinance was adopted as a pre-existing, nonconforming use. Residents who spoke to this matter expressed concern that the language was too vague and did not clarify activities that could take place in an existing maintained lawn area within a buffer versus a naturalized buffer. The ENR Commission clarified the nonconforming ?use? language by defining what types of uses would be allowed within that area as follows: ?Any existing building or structure, or any existing lawn area or use of property not in conformity with the regulations prescribed in this chapter as of the date of the adoption of such regulation (insert date of new ordinance) shall be regarded as nonconforming and may continue. Continued use of such nonconforming lawn area includes uses such as gardens or the placement of temporary structures. Naturalized and native areas are not included in this nonconforming use clause.? In addition definitions were added for lawn areas (areas of mowed turf grass used for the purpose of outdoor enjoyment), naturalized areas (areas where non-native plant species have grown and are not maintained), and native areas (areas where native plant species have grown). 4 Department of Natural Resources (DNR) Public Waters Permitting: Some of Maplewood?s lakes have designated wetlands around the edges of the lakes, which was the norm for all lakes prior to European settlement. The RWMWD classifies and regulates these wetlands as any other wetland within their district. Property owners along lakes must obtain a permit from the DNR for alteration of vegetation within the ordinary high water mark of a public water (lake) or public wetland. These permits are normally issued for the clearing of vegetation for the installation of a dock or beach area. If the property is also adjacent a wetland, the property owner would need to remove wetland buffer vegetation in order to gain access to the dock or beach. The wetland ordinance reviewed by the city council last year would have required the property owner to obtain a variance for the removal of the wetland vegetation within a buffer. To allow property owners access to their docks or beach area without the need 5 for a variance, the ENR Commission is recommending that the wetland ordinance allow a trail to be cut through the wetland buffer the width of the approved DNR permit, which is normally 10 to 15 feet in width, without the need for a variance. Education Component One of the main purposes of the wetland ordinance is to educate the public on the new regulations and encourage property owners adjacent to or near wetlands and streams to be responsible stewards by managing and enhancing the quality of buffers and restoring the buffer to a diverse planting of deep-rooted native plants. The ENR Commission and city staff are committed to this purpose and strive to improve upon education of the importance of wetlands and their buffers as the city moves forward with the new wetland regulations. As part of the education component, the City of Maplewood and RWMWD will present a shoreline and wetland buffer series again this year. The series starts with a classroom session where participants learn about the types of wetlands, the importance of buffers, and what is entailed in wetland or shoreline restoration. Follow-up field trips provide an opportunity to visit a natural wetland and a restored shoreline. Additionally, the RWMWD offers a 50 percent cost-sharing grant for property owners who restore wetland and shoreline buffers to native plants. While the grant-sharing program is relatively successful, the RWMWD hopes to increase participation over the next few years. To determine how best to increase this participation, RWMWD and other watershed districts will be conducting a survey of property owners to determine what barriers are precluding them from implementing these projects. The results will determine if the watershed districts propose additional funding, technical support, etc. City staff will be working closely with RWMWD on this survey and implementation of results to educate and increase participation of wetland and shoreline buffer restoration for Maplewood property owners. RECOMMENDATIONS 1. Review the amendments proposed to the draft wetland ordinance by the ENR Commission since the city council?s second reading of the ordinance last April. 2. Give direction on the next steps for review of the draft wetland ordinance such as proceeding to a city council meeting for final reading of the ordinance, additional public notifications, or further review by the ENR Commission. P:\com-dev\ord\environmental protection\wetland\3-2-09 City Council Workshop Attachments: 1. June 24, 2008, ENR Commission minutes 2. July 15, 2008, ENR Commission minutes 3. September 2, 2008, ENR Commission minutes 4. October 7, 2008, ENR Commission minutes 5. Draft Wetland Ordinance 6. Maplewood Wetland Classification Map 7. RWMWD Wetland Classification Map 6 Attachment 1 ENVIRONMENTAL AND NATURAL RESOURCES COMMISSION MINUTES TUESDAY, JUNE 24, 2008 COUNCIL CHAMBERS ? MAPLEWOOD CITY HALL 1830 COUNTY ROAD B EAST I. CALL TO ORDER Chairperson Yingling called the meeting to order at 5:15 p.m. II. ROLL CALL Commissioner Ginny Yingling, Chair Present Commissioner Carole Lynne Present Commissioner Carol Mason Sherrill Present Commissioner Frederica Musgrave Present Commissioner Bill Schreiner Present Commissioner Dale Trippler Present Staff Present: Shann Finwall, Environmental Planner and Ginny Gaynor, Open Space Naturalist III. APPROVAL OF AGENDA Commissioner Musgrave would like to discuss what Home Depot is doing with recycling of CFL bulbs. Commissioner Trippler made a request to add to commission presentations a suggestion on Tyvek envelopes. Commissioner Trippler made a motion to approve the agenda as amended, seconded by Carol Mason Sherrill. The motion carried by a vote of 6 to 0. V. UNFINISHED BUSINESS a. Wetland Ordinance Planner Finwall discussed the staff report and discussed several issues to include: 1. If a yard is maintained as turf grass adjacent to a wetland and the ordinance is adopted with increased buffers can a resident still maintain this area as turf grass? Also, what other activities can take place within this area of the buffer? There is a need to clarify temporary and permanent structures in the definitions as well as added uses. 2. The edges of Wakefield Lake are currently classified as a Class 4. The watershed districts new classification would upgrade the wetland to a Manage B. The proposed wetland ordinance would require a 75 foot buffer from a Manage B wetland. Wakefield Lake is also located within the shoreland overlay district. So there is also a 50-foot building setback from the ordinary high water mark of Wakefield Lake within this district. 3. The City of Maplewood had four manufactured homes that are adjacent wetland buffers. The way the current wetland ordinance is written, the removal and replacement of one of these manufactured homes within a required buffer would require a variance. COMMENTS AND CONCERNS FROM MEMBERS OF THE PUBLIC REGARDING THE ORDINANCE: 2 1. Sharon Sandeen, 1748 Gulden Place, Maplewood: Her main concern relates to Ms. Sandeen's opinion that Maplewood as a city does not have the authority to regulate the edges of Wakefield Lake as wetland when the lake is defined as a public water. Also, Ms. Sandeen recommends that the ENR commission review language in the ordinance to ensure less ambiguity and allow for more active uses within buffer zones. 2. Steve Bryan, 1752 Gulden Place, Maplewood: He has concerns with water quality and current management practices of Wakefield Lake. 3. Linda Bryan, 1752 Gulden Place, Maplewood: She has concerns with water quality and current management practices of Wakefield Lake. 4. Tom Devnick, Attorney representing Gary Pearson, manager of the Beaver Lake Manufactured Home Park: Proposed language in the nonconforming portion of the wetland ordinance to allow manufactured homes to be removed and replaced if located within a buffer without a variance (Attachment 6). 5. Ralph Sletten, 2747 Clarence Street North, Maplewood: Has concerns with the wetland located to the north of his property. He claims wetland was manmade and any impacts the proposed wetland ordinance might have on his property would not be valid. 6. Veronica Sletten, 2747 Clarence Street North, Maplewood: Concerns with the wetland located to the north of her property. 7. Steve Lukin, 1661 County Road C East, Maplewood: Has concerns regarding the nonconforming portion of the existing and proposed ordinance, which would require him to obtain a variance from the city to rebuild his house within a wetland buffer. 8. Elizabeth Sletten, 2747 Clarence Street North, Maplewood: Concerns with the wetland located to the north of her property. 9. Jean Strait, 1706 Barclay Street North, Maplewood: Concerns with the water quality and current management practices of Wakefield Lake. 10. Richard Charpeneau, 1751 E. Cope Avenue - Vacant Property Owner: Concerns with upgraded classification of wetland on his vacant property and a 75-foot buffer which may cause the property to be unbuildable. COMMISSIONER COMMENTS REGARDING PUBLIC INPUT The commissioners thanked the public for their input. Planner Finwall commented that many of these concerns can be addressed at the July 15 meeting. Chair Yingling commented that this ordinance will continue to be revised with improvements in language. She also mentioned that the goal is to find a balanced approach. She stated that the Commission appreciates the input the public provided. Chair Yingling made a motion to table further wetland ordinance discussion to the July 15 meeting, Carol Mason Sherrill seconded. The motion carried by a vote of 5-1, with Commission Trippler voting against the motion. Attachment 2 ENVIRONMENTAL AND NATURAL RESOURCES COMMISSION MINUTES TUESDAY, JULY 15, 2008 COUNCIL CHAMBERS ? MAPLEWOOD CITY HALL 1830 COUNTY ROAD B EAST I. CALL TO ORDER: Chairperson Yingling called the meeting to order at 5:20 p.m. II. ROLL CALL Commissioner Ginny Yingling, Chair Present Commissioner Judith Johannessen Present Commissioner Carole Lynne Present Commissioner Carol Mason Sherrill Present Commissioner Frederica Musgrave Absent Commissioner Bill Schreiner Present Commissioner Dale Trippler Present City Council Liaison Present: Councilmember Kathleen Juenemann Staff Present: Shann Finwall, Environmental Planner and Ginny Gaynor, Open Space Naturalist V. UNFINISHED BUSINESS a. Wetland Ordinance Planner Finwall gave a brief summary of the public testimony from the last meeting. Discussion on Mobile Home Park Issue: Chair Yingling wondered if there should be some reference in the wetland ordinance regarding Minnesota statute discussed by Planner Finwall which would allow manufactured homes to be rebuilt with their existing setbacks. Discussion on Nonconforming Single Family Homes: Chair Yingling asked what is done about a home that is destroyed such as by fire or a natural disaster when it is a nonconforming property. If the plan is to rebuild on the existing foundation how does that apply the wetland ordinance? Is it prohibited because it is nonconforming structure or is there an exemption? Planner Finwall responded that if an ordinance is adopted and the structure becomes nonconforming and is destroyed to more than 50 percent of its fair market value then it could not be rebuilt without a variance. Planner Finwall commented that if homes within wetland buffers are damaged by a natural disaster and the property owner wants to rebuild, then the city would have the opportunity to review the request and make improvements such as increasing or improving the buffer through the variance process. She asked if the commission wanted to review language that would allow 2 those homes to be rebuilt without a variance if they met a minimum setback and if improvements were made to the buffer? Commissioner Trippler stated that the variance process would allow the city controls over the new house?s location and conditions to improve on the buffer. Commissioner Schreiner commented that from a homeowner's perspective he would like to see some kind of language that would protect the homeowner?s ability to rebuild their house rather than leaving it in the hands of an elected council. Maybe some kind of language such as if the home is totally destroyed that nothing gets any closer to the buffer than the existing foundation was. Chair Yingling responded that we would need to set some minimum requirements. Commissioner Mason Sherrill mentioned that we need to consider the damage of business as well as homes. Chair Yingling suggested language that would provide people with some level of comfort regarding what they can rebuild on their property. Commissioner Trippler commented that we need to put together a wetland ordinance that protects the wetlands and if there is a disaster that people will be reasonable enough to work out a compromise so that everyone is satisfied. Councilmember Kathleen Juenemann approached the podium and suggested standards for allowing rebuilding of homes within the buffer. Sharon Sandeen, resident at 1748 Gulden Place, approached the podium and made some suggestions and comments: The more restriction you impose by an ordinance the more issues you have affecting property owners. For some property owners existing buffers are being tripled. The whole width of buffer zones is an important component to this because if the recommended widths aren?t adopted then the result will be the tripling and doubling of buffers. You have to consider the existing setback requirements for homes. If the city?s current buffer widths currently exceed the states guidelines what is the rational and the basis for going beyond that? Chair Yingling stated that she would like to see language which would allow homeowners to rebuild as long as they were a minimum of 50 feet to the wetland. Commissioner Trippler would like a clear distinction made between setback and buffer requirements on a lake versus a wetland. A setback to the lake as required in the shoreland ordinance refers to how far a structure can be built from the lake and offers protection to the water quality of the lake. Buffers are areas which cannot be mowed or cut in addition to areas where structures cannot be built. They are intended to protect water quality and to provide some passage way, living space, etc., for wildlife. That is why our proposed wetland buffers exceed the shoreland setbacks. If a property is within the 50 foot setback and it gets destroyed it is up to the ruling body whether a variance is issued. He would not like to see language in the ordinance which would allow those properties to be rebuilt. 3 Chair Yingling suggested that there be a minimum setback of 50 feet to be able to rebuild without a variance. Chairperson Trippler asked what happens if they are in an area that has a 100-foot buffer? He feels if they are in a setback or buffer then they should be required to come in for a variance. Chair Yingling made a motion to put in language to give homeowners some assurances. Commissioner Mason Sherrill suggested that this might be an opportunity to enhance the wetland working with the city for the same goal. Commissioner Trippler will second the motion if it includes staff working with homeowners to develop best management practices to improve the buffer. Chair Yingling suggested that we use whatever the legal definition of a destroyed building. If the home is outside of that 50-foot buffer or setback area then they won?t need to come in for a variance as long as they work with staff to improve the buffer. Naturalist Gaynor stated that if they are grandfathered in they can use that existing setback as long as it is within 50 feet of a wetland. Planner Finwall responded that this would apply to Manage A and B wetlands only because Manage C wetlands require a 50-foot buffer. Commissioner Schreiner stated that the language should cover destruction of homes by natural disaster only, so that we are not creating a loophole for someone to destroy their home by tearing it down just to rebuild. The motion carried by a vote of 5 to 0 with Commissioner Johannessen abstaining. Staff will draft language and bring it back for the commission?s review. Discussion on Issues Raised by Resident Bruce Olsen in his May 7, 2008, Memorandum: Chair Yingling suggested taking a look at some of the recommendations that were submitted by Bruce Olsen. Chair Yingling suggested adopting the changes in language as follows: 1. Page 2, second paragraph, item three. 2. Change in language as suggested on page 3, item 7. 3. Change in language as suggested in Item 8. 4. Change in language as suggested in Item 9. 5. Change in language as suggested in Item 10. 6. Items 12 and 14. 7. Item 20 Chair Yingling made a motion to adopt the changes as specified, seconded by Commissioner Trippler. The motion passed by a vote of 5 to 0 with Commissioner Johannessen abstaining. Commissioner Yingling suggested that the commission take a look at the memo from Sharon Sandeen. She also proposed that time is set aside to have a workshop. She reviewed the issues that were brought up in the memo. She feels it is worth looking at exemptions of what people can do within their existing mowed lawn. What practical things we can suggest for exemptions for activities on properties that are already developed. 4 Commissioner Trippler stated that the purpose of having the buffer is to provide wildlife an area to move from one wetland to another and to create habitat. He feels that common sense would dictate what a homeowner can do within the buffer as long as it allows wildlife the freedom to move about. He is hoping that staff can come up with suggestions. Planner Finwall stated that maybe there needs to be some clarification regarding what a homeowner can do with their mowed yard that is in a buffer versus what is allowed within a naturalized buffer. Chair Yingling feels there needs to be some language that gives people clarification that there are activities in that maintained lawn area. Naturalist Gaynor stated that we are talking about people who are grandfathered in with their lawn. We need to be clear about lawns that are grandfathered in. Commissioner Trippler would like to see the city staff work with property owners who have mowed lawns within a wetland buffer about installing a rain garden. Naturalist Gaynor asked whether the commission needs a definition of what is meant by yard activities. Chair Yingling commented that we need to differentiate between the lawn areas versus, naturalized areas, versus native areas. Ginny Gaynor stated that what she is hearing is that gardens and temporary structures should be okay in an existing lawn area that is grandfathered in. But a patio with a foundation would not be okay in a buffer. Would a bench, fire pit, or compost pile be okay in the buffer? Commissioner Lynne thinks that portable objects are fine but not something permanent on the property. Commissioner Schreiner is concerned with sheds in the buffer. Commissioners directed staff to come up with language for specific items and to schedule a wetland workshop in August to complete the review. Attachment 3 ENVIRONMENTAL AND NATURAL RESOURCES COMMISSION MINUTES TUESDAY, September 2, 2008 COUNCIL CHAMBERS ? MAPLEWOOD CITY HALL 1830 COUNTY ROAD B EAST 1 CALL TO ORDER Chair Yingling called the meeting to order at 5:17 p.m. 2. ROLL CALL Commissioners Present: Commissioner Judith Johannessen Commissioner Carole Lynne Commissioner Bill Schreiner Chair Ginny Yingling Commissioner Carol Mason Sherrill Commissioner Dale Trippler Council Liaison Present: Councilmember Kathleen Juenemann Staff Present: DuWayne Konewko, Deputy Director of Public Works Virginia Gaynor, Open Space Naturalist Shann Finwall, Environmental Planner 5. UNFINISHED BUSINESS Wetland Ordinance Planner Finwall stated that the city council approved the first reading of the ordinance on March 24 and second reading on April 28 with some concerns voiced by residents who attended that meeting. Due to the concerns, the city council tabled the ordinance and sent it back to the ENR commission for additional review. The ENR commission reviewed it on June 24 and heard from the public. On July 15 the ENR commission reviewed some of those points and made further modifications. Tonight we will go over the points that the ENR commission had agreed upon and continue discussions of what staff thinks are the remaining main points of concern by a few property owners. Discussion Points: 1 1. Non-conforming manufactured homes: Planner Finwall indicated that there is a Minnesota statute that allows protection to these non- conforming manufactured homes. Three of the manufactured homes are adjacent wetlands, with some of those homes within existing or proposed buffers. A manufactured home property owner had concerns that replacing those homes once removed would require a variance. The city attorney reviewed this statute and finds that this language would allow those manufactured homes to be replaced as long as they do not encroach further on that wetland setback. 2. Non-conforming single family homes: Minnesota statute allows non- conforming buildings that are destroyed by natural causes, greater than 50% of its fair market value to be rebuilt. There are existing homes within existing or proposed wetland buffers. Does the ENR commission feel that it would be appropriate for these homeowners to go through a variance process to rebuild, which is the case currently, or allow an exemption to allow these property owners to rebuild if they are within at least 50 feet from a wetland? 3. Concerns submitted by Bruce Olson, a Maplewood resident: In reference to his May 7 memo, minor language changes were made and are outlined on item 3 of the staff report. 4. Non-conforming use of property: Staff has expanded language within the exemption section of the ordinance specifying what can be done on nonconforming lots where the buffer is currently used as lawn. The ordinance would allow the homeowner to utilize the lawn as you would any lawn because it is a pre-existing nonconforming use. 5. Concerns submitted by Sharon Sandeen, a Maplewood resident: City staff met with Ms. Sandeen to discuss her concerns. The main points that staff and Ms. Sandeen agreed needed modification are A2, item 4 on page 5; item C on page 6; E2 on page 7. Summary of these changes include adding a description of activities that are allowed in the buffer zone when a property is currently using that buffer as lawn area, adding an exception for non-conforming structures, and allowing an exception for impacts in a buffer for permits issued to a homeowner from the DNR. Chair Yingling made a motion to adopt the changes outlined above to the draft wetland ordinance, Commissioner Mason Sherrill seconded. The motion carried by a vote of 6 to 0. The commission requested that the changes be made and brought back to them for final review in October. 2 Attachment 4 ENVIRONMENTAL AND NATURAL RESOURCES COMMISSION MINUTES TUESDAY, October 7, 2008 COUNCIL CHAMBERS ? MAPLEWOOD CITY HALL 1830 COUNTY ROAD B EAST 1 CALL TO ORDER - 5:17 p.m. 2. ROLL CALL Commissioners Present: Commissioner Judith Johannessen Commissioner Carole Lynne Commissioner Frederica Musgrave Commissioner Bill Schreiner Commissioner Carol Mason Sherrill Commissioner Dale Trippler Chair Ginny Yingling Council Liaison Present: Kathleen Juenemann Staff Present: Shann Finwall - Environmental Planner Ginny Gaynor - Open Space Naturalist Ann Hutchinson - Lead Naturalist 5. UNFINISHED BUSINESS: a. Wetland Ordinance Planner Finwall reviewed three main changes made during the September 2 meeting. She mentioned that the revised Wetland ordinance with changes is also included in the packet. Tonight the Environmental Commission is being asked to review the changes for accuracy and once the Commission makes their final recommendation, the ordinance will be forwarded to the City Council. The commissioners reviewed the ordinance and suggested six minor modifications. Chair Yingling then asked if there were any comments from the visitors. Sharon Sandeen, 1748 Gulden Place stated that the definition of lawn does not include all uses referenced in the September 2 packet. She stated that this is not consistent with what the staff recommendations are on this point. She feels that language needs to be clarified. Under nonconforming use Ms. Sandeen stated it would allow homeowners to rebuild only if best management practices were implemented on the 1 property. She said this does not seem consistent with the intent, which was to allow people to rebuild and use their lawn the way they were using them. And last is the item on access to a lake, the added language only allows removal of vegetation which is under the DNR?s jurisdiction, within the ordinary high water mark. Lake owners need to access the lake by walking through the vegetation which is in the buffer zone. Tom Devink, 220 South Sixth Street (attorney for Rolling Hills Manufactured Home Park) states that he would like to see the non- conforming language added which states that ?after the date of adoption of this chapter, it shall be permitted nonconforming use to place any manufactured home on property that is of the date of the adoption of this chapter, either occupied by manufactured home or located in a manufactured home community.? Paul Ruby, 1334 Pearson Drive, president of Rolling Hills Association. Mr. Ruby stated that even though the city attorney states that state statute would cover the replacement of nonconforming manufactured homes in the buffer, he would prefer that the nonconforming language be added into the city?s wetland ordinance as an added precaution. Elizabeth Sletten, 2747 North Clarence Street, stated that federal laws have been broken during this process. She said that you cannot create a wetland and then call it a wetland because you are creating a wetland ordinance. Council Member Juenemann suggested that the legal issue of whether to add the nonconforming language requested by Attorney Devink might be something for the city council to tackle since the city attorney has already recommended to the commission that the language not be added. Commissioner Yingling suggested incorporating the following language changes: Redefine lawn area under definitions - "Lawn area means an area of mowed turf grass or other areas used for the purpose of outdoor enjoyment which may include gardening, non-permanent structures, and patios or play areas." Page 10 item I, add language - "have access as described by section 2.f. to be consistent with the access approved by the permit. Chair Yingling made a motion to adopt the language for lawns and DNR permits. Seconded by Commissioner Schreiner, the motion carried by a vote of 6 to 1 with Commissioner Musgrave voting against the motion. Commissioner Schreiner made a motion to keep the nonconforming language regarding manufactured home parks out of the ordinance and to recommend approval of the ordinance, seconded by Commissioner Trippler. The motion carried by a vote of 6 to 1 with Commissioner Musgrave against. 2 Attachment 5 MAPLEWOOD WETLAND ORDINANCE DRAFT 10-7-08 (Changes to the city?s current wetland ordinance are underlined if added and stricken if deleted.) 1. Findings and purposes. The findings and purposes of this section are as follows: a. Wetlands serve a variety of beneficial functions. Wetlands maintain water quality by filtering pollutants and reducing flooding and erosion., They provide food and habitat for wildlife, provide open space for human interaction, and are an integral part of the city's environment. Wetlands, depending upon their type, size, and location within a watershed, may represent are an important physical, educational, ecological, aesthetic, recreational, and economic assets to the city. The ability of a wetland to provide any of these benefits must be evaluated on a case-by-case basis because of the uniqueness of local physiographic, biological, cultural, and land use characteristics. Properly managed wetlands are needed to support the city?s efforts to reduce flooding and to protect the public They are critical to the city?s health, safety, and general Surrounding development may degrade, pollute, or accelerate the aging of or welfare. eliminate wetlands. Regulating land use around wetlands is therefore in the public interest. b. Streams are also significant elements of the city's hydrologic system. Streams flow into wetlands and lakes, provide food and habitat for wildlife, provide open space, and are an integral part of the city's environment. Like wetlands, streams are an important physical, educational, ecological, aesthetic, recreational, and economic asset. Surrounding development may degrade, pollute, or damage streams and, in turn, degrade other surface waters downstream. Regulating land use around streams is therefore in the public interest. Requiring buffers recognizes that the surrounding uplands relate to the woodland and stream quality and function and, therefore, are in the public interest. c. Buffers are the lands that surround wetlands and streams which contain a protective zone of vegetation within a specified distance. They are integral to maintaining the valuable functions many wetlands and streams performand to maintaining a wetland?s or stream?s health. Requiring buffers recognizes that the surrounding uplands impact relate to the wetland?s and stream's quality and function and, therefore, is are in the public interest. Buffers have the following functions: (1) Rreduce the impacts of surrounding land use on wetlands and streams by stabilizing soil to prevent erosion by stormwater; and filtering suspended solids, nutrients, pollutants, and harmful substances. (2) Moderateing water level fluctuations during storms. (3) Buffers also pProvide essential wildlife habitat. (4) and Provide shade to reduce the temperature of both stormwater runoff and the wetland or stream. Water temperature is one of the factors controlling the ability 1 of water to hold dissolved oxygen. This ability decreases with increasing water temperatures. The dissolved oxygen level needs to be maintained at a minimum level to maintain healthy aquatic life. (5) Finally, buffers rReduce the adverse impacts of human activities on wetlands and streams. (d)The purposes of this section are to: a.Preserve wetlands and streams in a natural state. ab. Preserve the beneficial functions of wetlands and streams by regulating the surrounding land uses within the buffered areas that are defined under this section. bc. Reduce erosion and the resulting sediment loading to wetlands or streams by stabilizing the landscape within the buffered areas that are defined under this section.Stabilize the soil around wetlands to prevent stormwater erosion. cd. PreserveFiltering and enhance surface water quality by reducing the input of suspended solids, nutrients, and harmful chemical substances that may adversely impact public health or aquatic habitat. before theyfrom reaching wetlands, streams, and public waters. de. Reduce human disturbances of wetlands and streams by visually separating wetlands from yards. ef. P Reduce or prevent the flooding and of public and private property and to reduce or eliminate the costs that are associated with of reclaiming water quality improvements necessary to support the beneficial uses of impaired wetlands or streams. g.Protect property. fh. Protect beneficial plant and wildlife habitat. gi. Educate the public, including appraisers, owners, potential buyers, or developers, to regarding the development limitations of wetlands, streams, and associated buffers that are defined under this section. j. Encourage property owners who live adjacent to and/or near wetlands and streams to be responsible stewards including managing and enhancing the quality of buffers and restoring the buffer to a diverse planting of deep-rooted native plants. 2. Definitions: The following words, terms, and phrases when used in this section shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning. Alteration means any human action that adversely affects a buffer. Alterations include, but are not limited to, the following: grading, filling, dumping, dredging, draining, cutting, pruning, topping, clearing, relocating or removing vegetation, applying herbicides or pesticides or any hazardous or toxic substance, discharging pollutants except stormwater, paving, construction, application of gravel, discharging pollutants, compacting or disturbing soil through vehicle or 2 equipment use, or any other human activity that adversely affects the vegetation, hydrology, wildlife or wildlife habitat. Alteration does not include the following: a. Walking, passive recreation, fishing or other similar low-impact activities. b. Planting that enhances native vegetation, once the planting plan is approved by city staff. c. The selective clearing, pruning, or control of trees or vegetation that are dead, diseased, noxious, weeds or hazardous. d. Wetland enhancement measures which have been approved by other regulatory bodies. Average buffer width means the average width of a buffer within a single development, lot or phase. Best management practices (BMP?s) mean measures taken to minimize negative effects of stormwater runoff on the environment including, but not limited to, installation of rain gardens, infiltration basins, infiltration trenches, retention basins, filters, sediment traps, swales, reduction of impervious surfaces, planting of deep-rooted native plants, landscape and pavement maintenance. Bog means a peatland with acidic pH as described in the Minnesota Land Cover Classification System. Buffer means a stream or wetland buffer or lands that surround wetlands and streams which contain a protective zone of vegetationwithin a specified distance. along a stream or around a wetland. Clearing means the cutting or removal of vegetation. Enhancement means an action that increases the functions and values of a wetland, stream, or wetlandbuffer. Erosion means the movement of soil or rock fragments, or the wearing away of the land surface by water, wind, ice, and gravity. Fen means a peatland fed by ground water as described in the Minnesota Land Cover Classification System. Forested seasonal wetland means a wooded wetland with hydric soils that may have standing water year round or may dry up seasonally. Infiltration basin means a pond or basin that captures stormwater and allows it to soak into the ground. An infiltration basin will typically drain within 48 hours of a storm event. Lake means an area of open, relatively deep water that is large enough to produce a wave-swept shore. Lawn area means an area of mowed turf grass used for the purpose of outdoor enjoyment which includes, but is not limited to, gardening, placement of temporary structures, and impervious patios. 3 Mitigationmeans an action that reduces, rectifies, eliminates, or compensates for the alteration of a buffer, wetland, or stream. Native area means an area where native vegetation has grown. Native vegetation means tree, shrub, grass, or other plant species that are indigenous to the Twin Cities metropolitan area that could have been expected to naturally occur on the site. Native vegetation does not include noxious weeds. Naturalized area means an area where naturalized vegetation has grown and is not maintained. Naturalized vegetation means tree, shrub, grass, or other plant species that exists on a site naturally without having been planted. It may be a native or non-native species. Some naturalized species are appropriate in a buffer and some are considered weeds. Noxious weed means plants listed as prohibited noxious weeds in the Minnesota Noxious Weed Law. (See also weed.) Oligotrophic acid marsh means a shallow or deep marsh with low pH, high dissolved oxygen, and low levels of nutrients. Ordinary high water mark (OHWM) means a mark delineating the highest water level maintained for enough time to leave evidence upon the landscape. The ordinary high water mark is commonly that point where the natural vegetation changes from predominantly aquatic to predominantly terrestrial. Rain garden means an infiltration basin that is planted as a garden that allows water to infiltrate within 48 hours of a storm event. Restoration means returning a wetland, stream, or buffer to a condition that is similar to that before development of the surrounding area. Sedge meadow means a wetland with saturated soils or standing water that contains a significant number of sedge species (Carex spp.), as defined as wet meadow in the Minnesota Land Cover Classification System. Semipublic means land that is maintained by a private organization for public use. Setback means the minimum horizontal distance between a structure and the nearest edge of the buffer, wetland, or stream. Straight-edge setback is measurement to determine the allowable setback of an addition to an existing house, garage, deck, or driveway which is located closer to or within the required buffer setback. Straight-edge setback additions are measured by using the existing edge of the house, garage, deck, or driveway located nearest to the edge of a buffer, wetland, or stream and extending that line in a parallel direction. No portion of the addition can encroach closer to the edge of a buffer, wetland, or stream than the existing structure. Stream means those areas where surface waters produce a defined channel or bed. A defined channel or bed is land that clearly contains the constant passage of water under normal summer 4 conditions. This definition does not include drainage swales or ditches that channel intermittent stormwater runoff. Stream buffer means land that is in direct drainage to a stream and within the boundary described by this article. A person shall measure all buffers from the ordinary high water mark (OHWM) as identified in the field. If a person cannot determine the OHWM, the stream buffer shall be from the top of the stream bank. Structure means anything constructed or erected that requires location on the ground or attached to something having location on the ground. Sustainable design means a development design which minimizes impacts on the landscape. Temporary erosion control means methods of keeping soil stable during construction or grading. Temporary erosion control measures include, but are not limited to, silt fencing, erosion control blankets, bale slope barriers, or other best management erosion control methods approved by the city. Variancemeans a deviation from the standards of this section that is not specifically allowed. Vegetation means any organic plant life growing at, below, or above the soil surface. Water quality pond means a pond that has been created to capture stormwater runoff. These are not natural wetlands. Stormwater is often piped into these ponds but may also enter through sheet runoff. These are also called utility ponds. Water quality pond edge means the normal high water level for a water quality pond. Wetland buffer means land that is in direct drainage to a wetland within the boundary described by this section. All buffers shall be measured outward from the wetland edge. Weed means a plant which is causing damage in some way to native vegetation or ecosystems. (See also noxious weed.) Wet prairie means a wetland with saturated soils containing a significant number of plant species found in wet prairie communities as defined in the Minnesota Land Cover Classification System. Wetlands means those areas of the city inundated or saturated by groundwater or surface water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas as defined in the (Army Corps of Engineers regulations 33 CFR 328.3 1988). Where a person has removed or mostly changed the vegetation, one shall determine a wetland by the presence or evidence of hydric or organic soil and other documentation of the previous existence of wetland vegetation such as aerial photographs. Wetland classes. The city defines the wetland classes used in this section as follows: (a)Class 1 wetlands means wetlands assigned the unique/outstanding rating in the Ramsey- Washington Metro Watershed District Wetlands Inventory, 1995. Class 1 wetlands are 5 those with conditions and functions most susceptible to human impacts, are most unique, have the highest community resource significance and similar characteristics. (b)Class 2 wetlands mean high value (definition based onWatershed wetlands inventory results). (c)Class 3 wetlands mean wildlife habitat value. (d)Class 4 wetlands mean moderate value impacts. (e)Class 5 wetlands means wetlands assigned the highly impacted rating in the Ramsey- Washington Metro Watershed District Wetlands Inventory, 1995. Class 5 wetlands are those with conditions and functions most affected by human activities, with the least diverse vegetation communities, least community resource significance and similar characteristics. For the purposes of this section, the U.S. Fish and Wildlife Service's Classification of Wetlands and Deepwater Habitats of the United States, FWS/OBS-79/31 (Cowardin et al, 1979) contains the descriptions and photographs of wetland classes and subclasses. a.Manage A+ means wetland types that are very rare in our community, are particularly sensitive to impacts from development, and provide much needed habitat for wildlife. These wetlands are special wetlands and deserve additional protection to ensure that they remain in that state. Class A+ wetlands are defined as a Manage Class A wetlands utilizing in the Ramsey-Washington Metro Watershed District Rules definition (which is based on the Minnesota Routine Assessment Methodology [MnRAM] classification system) and also are one of the following unique and special types of wetlands in Maplewood: 1) oligotrophic acid marsh 2)wet prairie 3)sedge meadow 4)forested seasonal wetland 5)fen 6)bog b.Manage A wetlands are defined as a Manage A wetland in the Ramsey-Washington Metro Watershed District Rules definition and based on the Minnesota Routine Assessment Methodology (MnRAM) classification system. These wetlands are exceptional and the highest-functioning wetlands in Maplewood. All streams in the City of Maplewood are also defined as Class A. c.Manage B wetlands are defined as a Manage B wetland in the Ramsey-Washington Metro Watershed District Rules definition and based on the Minnesota Routine Assessment Methodology (MnRAM) classification system. These wetlands are high- quality wetlands. 6 d.Manage C wetlands are defined as a Manage C wetland in the Ramsey-Washington Metro Watershed District Rules definition and based on the Minnesota Routine Assessment Methodology (MnRAM) classification system. These wetlands provide moderate quality. e.Utility Class ? Defined as water quality ponds. Wetland easement means a designated area that includes the wetland or buffer where disturbance from mowing, cutting, or similar activities is prohibited. Wetland functions means the natural processes performed by wetlands, such as helping food chain production, providing wildlife habitat, maintaining the availability and quality of water such as purifying water, acting as a recharge and discharge area for groundwater aquifers, and moderating surface water and stormwater flows, and performing other functions, including but not limited to those set out in U.S. Army Corps of Engineers regulations at 33 CFR 320.4(b)(2)(1988). Wetland or stream edge means the line delineating the outer edge of a wetland or stream. This One shall establish this line by shall be established using the Federal Manual for Identifying and Delineating Jurisdictional Wetlands dated January 10, 1989, and jointly published by the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service, the U.S. Army Corps of Engineers and the U.S. Soil Conservation Service. The applicable watershed district must verify this line. 3. Applicability: This section shall apply as follows: a. This section shall apply tTo any person or use that would alter a wetland, stream, or buffer after April 24, 1995add date of adoption of new ordinance. b. When any provision of any ordinance conflicts with this section, the provision that provides more protection for buffers, wetlands, or streams shall apply unless specifically provided otherwise in this section. This also applies to the applicable watershed district. c.Public and semipublic streets, utilities, or trails, whether built by a public agency or private developer, shall be subject to this section. 4. General Exemptions: This section shall not apply to the following: a. Non-chemical control and removal of noxious weeds within the buffer. Refer to section 5.k.3.b. (Manage Weeds in Buffer) regarding the use of chemical treatment. b. Planting native plants within the wetland buffer after approved by city staff. c. Removal of limbs, brush, or branches that are dead or pose a safety hazard. d. Removal of trees that are dead, diseased, or pose a safety hazard after approval by city staff. a.The construction or maintenance of publicor semipublic drainage facilities, sedimentation ponds, or erosion control facilities. 7 b.The maintenance of public or semipublic facilities including streets, utilities and trails. c.Where the city council waives these requirements for the construction of public and semi- public utilities or trails, whether built by a public agency or private developer. e. Public or semipublic streets, utilities, and trails. The city councilmay waive the requirements for construction or maintenance of public or semipublic streets, utilities, and trails where there would be a greater public need for the project than to meet the requirement of this section. The city council shall hold a public hearing before declaring such a waiver. The city shall notify the property owners within 350 feet of the buffer at least ten days before the hearing.In waiving these requirements the city council shall follow the standards listed below: in subsection (e) of this section. (1) The city may only allow the construction of public or semipublic utilities and streets through buffers where there is no other practical alternative and the following requirements are met: (a) The city council must approve the waiver to allow public or semipublic utilities or streets to be located within a buffer. Before the city council acts on the waiver the planning commission and the environmental and natural resources commission shall make a recommendation to the city council. The planning commission shall hold a public hearing for the waiver. The city staff shall notify the property owners within five hundred (500) feet of the buffer at least ten days before the hearing. (b) Utility or street corridors shall not be allowed when endangered or threatened species are found in the buffer. (c) Utility or street corridors, including any allowed maintenance roads, shall be as far from the wetland or stream as possible. (d) Utility or street corridor construction and maintenance shall protect the wetland, stream, or buffer and avoid large trees as much as possible. The city shall not allow the use of pesticides herbicides or other hazardous or toxic substances in buffers, streams, or wetlands. In some situations the use of herbicides may be used if prior approval is obtained from city staff. (e) The owner or contractor shall replant utility or street corridors with appropriate native vegetation, except trees, at preconstruction densities or greater after construction ends. Trees shall be replaced as required by city code. (f) Any additional corridor access for maintenance shall be provided as much as possible at specific points rather than to road which is parallel to wetland edge. by parallel roads.If parallel roads are necessary they shall be no greater than fifteen (15) feet wide. (g) Mitigation actions must be met as specified in section 6 below (Mitigation and Restoration of Buffers). 8 (2) The city may allow public or semipublic private trails in buffers. Trails must be approved by city staff and are subject to the following guidelines: (a) Trails shall not be allowed when endangered or threatened species are found to be present in the buffer. (b) The trail shall not beofhaveaimpervious surfacematerials.An elevated boardwalk shall not be considered an impervious surface. (b) Buffers shall be expanded, where possible, equal to the width of the trail corridor. (c) The owner or contractor shall replant all disturbed areas next to the trail in a timeframe approved by city staff. after completing the trail. (d) All necessary erosion control measures must be in place before constructing a trail. The erosion control measures must also be maintained and inspected by the city to ensure that the wetland or stream is not compromised by trail construction activities. (e) The trail must be designed and constructed with sustainable design methods. (f) The trail may provide one access point to the wetland but such an access shall be no more than four (4) feet wide. (g) Boardwalks are allowed within the buffer and shall be a maximum of six (6) feet in width for semipublic use and twelve (12) feet in width for public use. (i) Trails or boardwalks shall not be constructed entirely around the wetland. (h) City staff may require additional mitigation actions as specified in section 6 below (Mitigation and Restoration of Buffers). b. Structures, vegetation and maintenance activities and practices in existence on the effective date of the ordinance from which this section derives. A contractor or owner may remodel, reconstruct or replace affected structures if the new construction does not take up more buffer land than the structure used before the remodeling, reconstruction or replacement. c. Where this section would deny all reasonable use of a lot of record. In such case, the owner or contractor shall construct any building to maximize the setback from a buffer. Federal, state or watershed district rules and regulations shall apply. Alterations to a buffer shall be the minimum necessary to allow for the reasonable use of the property. Where feasible, the city may require the mitigation of any alteration of a buffer. f. Additions to a house, garage, deck, or driveway using the existing straight-edge setbacks to a wetland or stream if the following apply: (1) Property is zoned or is being used as a single family residence. 9 (2) There is no other reasonable alternative than encroachment toward the wetland or stream with the addition. (3) The house, garage, deck, or driveway is a minimum of twenty-five (25) feet from the wetland or stream edge. (4) Addition does not cause degradation of the wetland, stream, or the existing buffer. (5) Mitigation actions must be met as specified in section 6 below (Mitigation and Restoration of Buffers). g. A property which is located within a wetland buffer, but is separate from the wetland by an existing road. h. A nonconforming single or double dwelling residential structure which loses its nonconforming status as described in Minnesota Statutes, section 462.357, subdivision 1(e) is allowed to be rebuilt in the buffer if the new single or double dwelling residential structure meets the following conditions: (1) maintains at least a fifty (50) foot setback from the wetland; (2) best management practices are implemented to improve the wetland buffer; (3) city staff approves the location and best management practices through the building permit process. i. Work within a buffer which was approved by the Minnesota Department of Natural Resources water permitting process and access to those areas by a trail which is limited to the width of the water permit. 5. Buffer Sstandards: Standards for this section buffers are as follows: a. Wetland Filling: The city does not allow the filling of wetlands.Where the watershed district has approved a wetland filling permit. The city shall require mitigation for any disturbed buffer land. b.Minimum Buffer Widths: The minimum buffer widths shall apply to all wetlands, including those created, restored, relocated, replaced, or enhanced. c. Maintenance of Buffers: Buffers shall remain in a natural state with naturalized or native vegetation. d. Restoring Buffers: Property owners interested in voluntarily restoring their buffer to native plants should submit a restoration plan to the city. Property owners should reference section 5.k.3.a. (Restoration of Buffer with Native Plantings) for guidance on how to proceed. Restoration plans require approval by to city staff. e. Wetland, Stream, or Buffer Easements: The property owner of any property affected by this section may be required to shall record wetland, stream, or buffer easements with the county. These easements shall describe the boundaries of the buffer and prohibit any building, mowing, cutting, filling, or dumping within the buffer, stream, or wetland. The 10 owner or developer shall record such easements with a final plat, with deeds from a lot division or before the city issues a building permit for an affected property. The applicant shall submit proof that the owner or developer has filed the notice. f. Stormwater: The discharging of stormwater to a wetland or stream must comply with section 44-1245 of the City of Maplewood ordinances (Storm Management). g. Plantings in Buffers: An affected property owner shall maintain a buffer. Any planting in a buffer shall be done with native vegetation after the planting plan has been approved by city staff. h. Alterations in Buffers: The city prohibits the alteration of buffers except as allowed in general exemptions. The city may waive this requirement where the watershed district has approved a permit for filling all or part of a wetland. i. Minimum buffers: The following are the minimum required buffer widths and structure building foundation setbacks: Buffer Wetland Classes Manage A2 Utility Manage A+ 1 & Streams ManageB3 Manage C 4 Class 5 * Average buffer width 100 ft. 100 ft. 50 ft. 25 ft. 0 ft. Minimum Buffer Width 200100 ft. 10050 ft. 7525 ft. 5020ft. 100 ft. Building Foundation Structure Setback from Edge of Buffer 10 ft. 10 ft. 10 ft. 10 ft. 10 ft. j. Buffer Measurement: Buffers shall be measured horizontally from wetland or stream edge, not across the buffer landscape. On slopes greater than eighteen percent (18%) the buffer width shall be increased to 10 feet beyond the apex of the slope. Extension of the buffer for steep slopes shall apply to all wetland classes. The city may require a variable buffer width to protect adjacent habitat that the city determines is valuable to the wetland, stream, wildlife or vegetation. k. Alternative Minimum and Average Buffers: Recognizing that there are instances where, because of the unique physical characteristics of a specific parcel of land, alternative size buffers may be necessary to allow for the reasonable use of the land. In such cases an alternative minimum and average buffer width will be permitted on ten percent (10%) of the linear wetland buffer within the parcel, which will be compensated for by increased buffer widths elsewhere in the same parcel to achieve the required average buffer width. (1) The alternative average buffer standards set forth below may be applied based on an assessment of the following: (a) Undue hardship would arise from not allowing the alternative, or would otherwise not be in the public interest. (b) Size of parcel. 11 (c) Configuration of existing roads and utilities. (d) Percentage of parcel covered by wetland. (e) Configuration of wetlands on the parcel. (f) Will not cause degradation of the wetland or stream. (g) Will ensure the protection or enhancement of portions of the buffer which are found to be the most ecologically beneficial to the wetland or stream. (2) The following are the alternative average buffer widths and structure setbacks: Buffer Wetland Classes Manage A & Streams Manage B Manage C Minimum Buffer Width* 75 ft. * 50 ft*. 50 ft. Average Buffer Width 100 ft. 75 ft. N/A Structure Setback From Outer Edge of Buffer 10 ft. 10 ft. 10 ft. *The minimum buffer width may be used on no more than ten (10) percent of the linear wetland buffer area located within the parcel. (3) The appropriateness of using the alternative average buffers will be evaluated as part of the review of the contractor?s or owner?s development application. The alternative average buffer used must be within the spirit and intent of this code and must meet one or more of the requirements set forth by the city to include, but not limited to, the following strategies: (a) Restoration of buffer with native plantings. Submittal of a buffer restoration plan. The plan may need to be drafted by a professional experienced in wetland or stream restoration based on the size of the restoration project as deemed necessary by city staff including: 1. Existing vegetation. 2. Restoration methods. 3. Maintenance procedures proposed during first three years of establishment. 4. Erosion control measures. 5. List of plants to be planted. 12 6. Qualifications of contractor. Only contractors with experience and success restoring wetland or stream buffers or natural vegetation shall be approved. 7. Maintenance agreement which states that the owner will maintain the buffer to its improved state. 8. The city may require a cash escrow or letter of credit to cover 150 percent of the required work. (b) Manage weeds in buffer. All weeds listed on the Minnesota noxious weed list must be controlled by the property owner. Owners are encouraged to control other weeds that are not on the noxious weed list but can threaten the health of a wetland. Submittal of a weed management plan drafted by a professional experienced in wetland and stream restoration including: 1. Target weeds. 2. Appropriate management techniques, including the use of chemical treatment if approved by city staff as part of the management plan. 3. Management schedule. 4. Potential erosion and reseeding if management will create large areas of dead vegetation. 5. Cash escrow or letter of credit to cover 150 percent of the required work. (c) Reduction in stormwater runoff and/or improvement of quality of stormwater runoff entering wetland or stream. This may be achieved through the following strategies or other staff approved best management practices for dealing with stormwater. These practices are to be located outside of the wetland buffer. 1. Reduce amount of pavement on site (i.e. fewer parking stalls, narrower driveways, shared parking with other businesses). 2. Use pervious pavement such as pavers or porous asphalt. 3. Use turf pavers or modified turf areas for overflow parking. 4. Install rain garden or infiltration basin. 5. Install rock trench or rock pit. 6. Install filter strip of grass or native vegetation. 7. Install surface sand filter or underground filter. 13 8. Install native plantings on site to reduce fertilizer use and improve infiltration. 9. Install a green roof on buildings. 10. Install grit chambers, sediment traps, or forebays. l. Stormwater Drainage Facilities: The city does not allow the construction of stormwater drainage facilities, sedimentation ponds, infiltration basins, and rain gardens within the buffer. m. Construction Practices: Special construction practices shall be required on projects or developments next to wetlands or streams and their buffers. Practices to be approved by city staff before issuance of a grading or building permit include, but are not limited to, the following: (1) Grading. (2) Sequencing. (3) Vehicle tracking platforms. (4) Additional silt fences. (5) Additional sediment control. 6.Fencing and sign standards: n.a. Erosion Control Installation: Before grading or construction, the owner or contractor shall put into place erosion control measures around the borders of buffers. Such erosion control measures must remain in place until the owner and contractors have finished all development activities that may affect the buffer. o.b. Wetland Signs: The city may require that a property owner or developer install wetland signs bBefore grading or starting construction.,The wetland signs will be placed on the boundary between a buffer and adjacent land shall be identified using permanent signs. These signs shall mark the edge of the buffer and shall state there shall be no mowing, cutting, filling, or dumping beyond this point. These signs shall be installed at each lot line where it crosses a wetland or stream buffer, and where needed to indicate the contour of the buffer, with a maximum spacing of one-hundred (100) feet of wetland or stream edge. p.c. Erosion Control Breaches: All erosion control measures must be maintained and inspected to ensure compliance and protection of wetlands, streams, and buffers. The contractor or owner shall be responsible for all erosion/sedimentation breaches within the buffer and shall restore impacted areas to conditions present prior to grading or construction activities. q.d. Platting: When platting or subdividing property, the plat or subdivision must show the wetland boundaries as approved by the applicable watershed district. 14 r.e. Erosion Control Removal: After completion of grading or construction, the contractor or owner may remove the erosion control measures only after inspection and approval by the city and the applicable watershed district to ensure the areas affected have been established per requirements. s.f. It is the responsibility of the owner to alleviate any erosion during and after completion of grading or construction. The owner or contractor must remove erosion control measures after final approved inspection by the city and the applicable watershed district. 6.7. Mitigation and Restoration of Buffers:The city requires mitigation when a property owner or contractor has altered or will alter a wetland, stream, or buffer. The property owner or contractor shall submit a mitigation plan to city staff for approval. In reviewing the plan, the city may require the following actions:in descending order of preference. a. Reducing or avoiding the impact by limiting the degree or amount of the action, such as by using appropriate technology. b. Rectifying the impact by repairing, rehabilitating, or restoring the woodlandbuffer. c. Reducing or eliminating the impact over time by prevention and maintenance operations during the life of the actions. d. Compensating for the impact by replacing, enhancing, or providing substitute buffer land at up to a twoone-to-one ratio. e. Monitoring the impact and taking appropriate corrective measures. f. Where the city requires restoration or replacement of a buffer, the owner or contractor shall replant the buffer with native vegetation. at a similar density to the amount before alterationA replanting plan must be approved by the city before planting. g. Any additional conditions required by the applicable watershed district and/or the soil and water conservation district shall apply. h. All strategies as listed in item 5.k.3. (Alternative Average Buffer). 7. Nonconforming Buildings, Structures, and Properties: Any existing building or structure, or any existing lawn area or use of property not in conformity with the regulations prescribed in this chapter as of the date of the adoption of such regulation (insert date of new ordinance) shall be regarded as nonconforming and may continue. Continued use of such nonconforming lawn area includes uses such as gardens or the placement of temporary structures. Naturalized and native areas are not included in this nonconforming use clause. 8. Variances: Procedures for granting variances from this section are as follows: a. The city council may approve variances to the requirements in this section. All variances must follow Minnesota state law governing variances. b. Before the city council acts on a variance the environmental and natural resources commission will make a recommendation to the planning commission, who will in turn make a recommendation to the city council planning commission.The planning 15 commission city council shall hold a public hearing for the variance. before approving a variance. The cCity staff shall notify the property owners within five hundred (500) 350 feet of the buffer at least ten days before the hearing. c. The city may require the applicant to mitigate any wetland, stream, or buffer alteration impacts with the approval of a variance, including but not limited to, implementing one or more of the strategies as listed in item 5.k.3. (Alternative Average Buffer). b. To approve a variance, the council must make the following findings: 1) Strict enforcement would cause undue hardship because of circumstances unique to the property under consideration. The term "undue hardship" as used in granting a variance means the owner of the property in question cannot put it to a reasonable use if used under conditions allowed by the official controls; the plight of the landowner is due to circumstances unique to his property, not created by the landowner; and the variance, if granted, will not alter the essential character of the locality. Economic considerations alone are not an undue hardship if reasonable use for the property exists under the terms of this section. 2) The variance would be in keeping with the spirit and intent of this section. 9. Wetland or Buffer Surety: The applicant shall post a wetland or buffer mitigation surety with the city, such as a cash deposit or letter of credit, of one hundred and fifty (150) percent of estimated cost for mitigation. The surety will be required based on the size of the project as deemed necessary by staff. Funds will be held by the city until successful completion of restoration as determined by the city after a final inspection. Wetland or buffer mitigation surety does not include other sureties required pursuant to any other provision of city code or city directive. 10. Enforcement: The city reserves the right to inspect the site or property during regular city business hours or upon notice to the property owner or its designated representative one business day in advance if the inspection is to occur at a different time for compliance with this ordinance. The city shall be responsible for the enforcement of this ordinance. Any person who fails to comply with or violates any section of this ordinance shall be deemed guilty of a misdemeanor and, upon conviction, shall be subject to punishment in accordance with section 1-15. All land use building and grading permits shall be suspended until the developer has corrected the violation. Each day that a separate violation exists shall constitute a separate offense. 16