Chapter 14.10
STREAM CORRIDOR REQUIREMENTS

Sections:

14.10.010    Purpose and findings.

14.10.020    Definitions.

14.10.030    Scope.

14.10.040    Designation of stream corridor.

14.10.050    Delineation of the stream corridor.

14.10.060    Stream bank stability.

14.10.070    Floodplain.

14.10.080    Allowable uses.

14.10.090    Maintenance of the stream corridor.

14.10.100    Deviations.

14.10.010 Purpose and findings.

A. Purpose. This chapter is created to establish acceptable minimum requirements to preserve and protect stream corridors and other valuable aquatic riparian resources within the City.

B. Findings. The Governing Body finds that stream corridors provide multiple benefits to the residents of Gardner which include:

1. Preservation of habitat for plants and animals;

2. Protection of water quality and base flow potential through infiltration, filtration, runoff velocity control and sediment retention;

3. Stabilization of stream banks thus minimizing bank erosion, stream migration and property damage due to stream bank instability;

4. Temporary storage and velocity reduction of flood waters;

5. Recreational and educational opportunities;

6. Beautification and aesthetic enhancement of the City;

7. Effective visual and auditory screening between adjoining land uses;

8. Enhanced property value;

9. Proper management of stream corridors will continue to enhance the quality of life for the citizens of Gardner and that conservation and preservation of stream corridors is necessary to protect the public health, safety and welfare;

10. Regulation of stream corridors by establishing acceptable minimum standards is an important component of the City’s overall stormwater management strategy and that such regulation is consistent with the provisions and goals of the Clean Water Act, the National Pollutant Discharge Elimination System, and other federal, state, and local requirements for water quality and environmental preservation; and

11. Natural channels migrate in response to a variety of factors, including changes in upstream and downstream land uses, and property owners must consider the potential for migration when locating facilities. (Ord. 2320 § 2, 2009)

14.10.020 Definitions.

For the purposes of this chapter, these words and phrases shall have the following meaning:

“Active stream zone” is the area of the stream that lies between the ordinary high water mark established on each side.

“Best management practices” (also known as “BMPs”) is the utilization of methods, techniques or products that have been demonstrated to be the most effective and reliable in minimizing adverse impacts on water bodies and the adjacent stream corridors.

“Ordinary high water mark” is the line on the shore established by the fluctuation of water indicated by a physical characteristic such as a clear natural line impressed on the bank, shelving, changes in the character of the soil, destruction of terrestrial vegetation, presence of litter or debris, or other appropriate means.

“Recreational field” is a facility such as picnic area, playground, soccer, baseball, softball and football fields, excluding parking lots and other paved facilities unless approved by the City Engineer.

“Storm sewer system” refers to structures such as pipes, culverts, reinforced concrete boxes, lined ditches or other manmade alterations, other than in situ materials, designed to convey storm water.

“Stream” is a body of running water moving over the earth’s surface in a channel or bed, such as a creek, rivulet or river that flows at least part of the year. Streams are dynamic in nature and their structure is maintained through buildup and loss of sediment. Streams are typically formed by natural forces but also includes drainageways, outside of street right-of-way, which were formed by man in the past. Storm sewer systems and roadside ditches in street right-of-way are not considered streams.

“Stream corridor” is a stream and the adjacent land that is set aside in conformance to this chapter and which is substantially preserved in a natural state. (Ord. 2320 § 2, 2009)

14.10.030 Scope.*

No land shall be disturbed nor structure built, located, converted or altered without full compliance with this chapter unless development occurs as allowed by the following exceptions:

A. A preliminary plat, site plan, or preliminary development plan for a planned zoning district that was approved prior to the effective date of the ordinance codified in this chapter, unless such approved preliminary plan or preliminary plat has expired.

B. Nonsubstantial revisions to an approved preliminary plat, site plan, or preliminary development plan for a planned zoning district specified in subsection (A) of this section after the effective date of the ordinance codified in this chapter which does not show improvements in or alterations to the stream corridor as designated in GMC 14.10.040 closer than the improvements or alterations already shown on the approved preliminary plan or plat. For the purpose of this section, “improvement” is defined as any improvement other than the uses allowed in GMC 14.10.080, Allowable uses. (Ord. 2320 § 2, 2009)

*    Note: After the effective date of the ordinance codified in this chapter, if revisions are proposed to an approved preliminary plat, site plan, or preliminary development plan for a planned zoning district that constitute a “substantial or significant change” as outlined by Chapter 17.03 GMC, then any development done pursuant to such revisions shall occur in accordance with this chapter.

14.10.040 Designation of stream corridor.

The stream corridor shall consist of the stream and all lands adjacent to the stream on both sides for the minimum distance from the ordinary high water mark specified below:

 

Stream tributary area:

*Minimum distance from ordinary high water mark to the limit of stream corridor on each side:

Less than 25 acres

See subsection (B) of this section

Including 25 acres up to 40 acres

30 feet (See subsection (C) of this section)

Including 40 acres up to 160 acres

60 feet

Including 160 acres up to 5,000 acres

100 feet

5,000 acres and greater

120 feet

*Distances in excess of the minimum may be required as indicated in subsection (A) of this section.

A. A stream corridor shall be designated along streams with a tributary drainage area of 40 acres or more with the following exceptions:

1. Streams of less than 300 feet in length measured along the center of the active stream zone and which are between portions of an existing storm sewer system may be enclosed within a pipe or box structure.

2. Streams adjoining an existing storm sewer system may be enclosed within a pipe or box structure, if the application of this chapter would otherwise leave a stream remnant less than 300 feet in length measured along the center of the active stream zone.

B. Streams with tributary areas less than 25 acres may construct a storm sewer system. If a storm sewer system is not constructed, a stream corridor may be delineated which may be variable in width but is generally not less than 15 feet from ordinary high water mark to the limit of stream corridor on each side. The actual corridor width shall be adequate to provide for: stream geomorphology, stream bank stability, preservation of tree canopy, flood control and maintenance access.

C. Streams with tributary areas including 25 acres up to 40 acres may construct a storm sewer system. If a storm sewer system is not constructed, a stream corridor shall be delineated of not less than 30 feet from ordinary high water mark to the limit of the stream corridor on each side.

D. Stream corridors shall be terminated when a stream discharges into a pond, lake or other body of water and shall resume at the outlet from the water body. Property reserved for the pond, lake or other body of water shall include at a minimum all areas that would have been reserved for a stream corridor had there been no pond, lake or body of water.

E. Stream corridor delineation is not required for manmade ditches within street right-of-way or farm swales.

F. Stream corridor designation is not required for construction projects which are undertaken to explicitly protect existing buildings or property from flooding and/or erosion caused by actions such as channel migration or bank instability.

G. Regardless of the stream or stream corridor size, buildings must maintain a minimum distance of 40 feet from the ordinary high water mark of a stream.

H. Delineation of stream corridors under this chapter is based on the existing location of the stream. Relocation of existing streams to new locations is not authorized by this chapter.

All developments which do not dedicate a stream corridor in accordance with this chapter shall construct storm sewer systems to meet the requirements of the City of Gardner. In the event an approved final plat, site plan, or final development plan showing the construction of a storm sewer system cannot obtain a permit from the appropriate state or federal agencies, then the owner of such property is required to comply with this chapter and reapply for a site plan, preliminary plat, preliminary development plan, special use permit or rezoning, as appropriate. (Ord. 2320 § 2, 2009)

14.10.050 Delineation of the stream corridor.

The stream corridor shall be delineated on preliminary and final plats, site plans, and preliminary and final site development plans. The boundary of the stream corridor shall be documented by a legal boundary description in such instrument as the City Engineer may require, which could include, but is not limited to, a separate tract of land, a conservation easement, or dedication on the final plat. The City Engineer may adopt written regulations to implement the provisions of this section. The instrument used to document the boundary must also identify the area as a natural stream preservation corridor and shall stipulate that these areas are subject to the restrictions and protections provided for in this chapter. The instrument shall further stipulate that restrictions and protections are subject to change by action of the Governing Body in accordance with the provisions of this chapter. (Ord. 2320 § 2, 2009)

14.10.060 Stream bank stability.

A. To minimize the need for future bank stability measures, the City Engineer may require geotechnical or geomorphological studies of streams prior to approval of development plans or building permits for any structure to be located adjacent to a stream. Such studies may be used to increase the stream corridor width requirement and could include the delineation of the maximum expected natural channel migration, analyses of slope stability, and foundation analysis of adjacent structures. At a minimum, for slope stability and foundation analysis purposes, it will be assumed streams migrate at least one half the distance of the minimum stream corridor indicated in GMC 14.10.040; provided, however, the same studies may also be required to be performed assuming the maximum channel migration has occurred. The City Engineer is authorized but not required to issue technical guidance to assist applicants in making this estimate of channel migration potential.

B. The use of rip-rap, retaining walls, gabions, revetments or other bank armoring techniques shall not be used to reduce the stream corridor boundaries established in GMC 14.10.040. Such activities are allowed only when the City Engineer determines them to be necessary to protect structures, primarily when stream migration has exceeded the original estimate of natural channel migration. The City Engineer may allow bank stabilization measures that are designed to incorporate natural channel features and vegetation in situations where projects will enhance the value of the stream corridor and minimize the likelihood of more extreme measures being needed at a later time. (Ord. 2320 § 2, 2009)

14.10.070 Floodplain.

Additional restrictions to activities within the stream corridor shall be applied in accordance with Chapter 14.05 GMC. (Ord. 2320 § 2, 2009)

14.10.080 Allowable uses.

A. “Active stream zone” allowable uses should utilize best management practices to minimize disturbance to and impacts on the stream corridor and include:

1. Sanitary sewer line crossings.

2. Other utilities crossings as approved by the City Engineer.

3. Roadway crossings, limited to minimum required to provide access for orderly development.

4. Crossings for foot, bicycle, golf cart, and similar uses.

5. Flood control structures.

6. Stream restoration projects and bioengineered bank stabilization.

7. Storm sewer pipe discharge.

8. Stream gauging and water quality monitoring.

9. Pump stations and structures required to transport water from the stream.

Crossing the active stream zone shall be minimized, crossing at skewed angles shall be avoided, and the length and area disturbed shall be restricted, to the maximum extent feasible.

B. “Stream corridor” allowable uses shall utilize best management practices to minimize disturbance or impacts to the stream corridor and include:

1. All activities allowed in the “active stream zone.”

2. Paved or unpaved paths for foot, bike, golf carts, and other similar uses. Paths must be constructed near natural grade to minimize clearing, filling and grading.

3. Utility installations are allowed provided it is demonstrated installing the utility outside the stream corridor isn’t feasible. Storm sewer pipes may discharge into the active stream zone or stream corridor if appropriate measures to prevent erosion and scouring are taken. Utility easements will be dedicated on the subdivision plat, or by separate document after platting if City Engineer approval is obtained for the utility location. The City Engineer may establish minimum standards for utility construction in the stream corridor.

4. Other uses approved by the City Engineer that meet the intent of this chapter. Allowable uses in the stream corridor are limited to low-impact passive uses that require little or no disturbance, grading, clearing, or filling of the existing native vegetation, and are related to recreation, public enjoyment, and protection of the stream and stream corridor. These uses may include small nonhabitable structures ancillary to the approved use. Examples of allowable structures include play equipment, gazebos and picnic shelters. Allowable uses do not include parking facilities or private detention basins.

5. Recreational fields, public parklands and golf course fairways which may encroach into the stream corridor, contingent upon submittal and approval of a site plan and other necessary documentation to show that there is no negative impact to the stream corridor.

6. Existing agricultural uses. (Ord. 2320 § 2, 2009)

14.10.090 Maintenance of the stream corridor.

A. Allowed maintenance (as approved in the maintenance agreement discussed in subsection (C) of this section) includes:

1. Removal of dead trees/brush and trash.

2. Removal of debris that could cause flooding.

3. Selective City-approved tree trimming or tree removal to mitigate safety hazards or that could cause flooding.

4. Selective (spot) chemical spraying for noxious weeds.

5. Periodic mowing and/or burning to enhance natural conditions.

6. Maintenance of all City-approved improvements.

7. Maintenance of City-approved bank stabilization measures.

B. Prohibited Maintenance.

1. Regular mowing outside of recreational use areas.

2. Nonselective chemical spraying.

C. Stream Corridor Maintenance Agreement. A stream corridor maintenance agreement shall be submitted with all final development plans, site plans, and final plats approved by the City. At a minimum, the maintenance agreement should:

1. Identify the responsible party for maintaining the stream corridor, or segment thereof, the boundaries of which are identified as an attachment to the maintenance agreement.

2. Establish the minimum frequency and levels of maintenance to be done.

3. Establish the frequency of inspection.

4. Identify resources available to provide maintenance.

5. Identify prohibited practices and homes association’s enforcement process for restoration.

6. Identify the City’s rights in the event that the responsible party fails or is unable to perform any of the obligations in the maintenance agreement.

7. Clarify how modifications or additions can be made to the maintenance agreement.

8. Be filed as a covenant to the recorded deeds of all lots to enforce the imposition of any special tax assessment that may be necessary to maintain the stream corridor if the responsible party fails or is unable to perform any of the obligations in the maintenance agreement.

9. The property owner or developer shall form a homes and/or business association prior to the sales of any lots, and the homes and/or business association covenants shall include the provisions of the approved maintenance agreement. Should a home and/or business no longer exist, or be viable, the City Engineer shall have the option to require adjacent property owners to provide maintenance of the stream corridor as set forth is this chapter.

10. Approval of all site plans, final development plans, and final plats shall be subject to the City’s receipt of an acceptable stream corridor maintenance agreement. The final plat and homes and/or business association deed restrictions shall contain language approved by the City Engineer which identifies the homes and/or business association as the entity which will have permanent responsibility and authority to enter upon the stream corridor to fully perform all obligations pursuant to the stream corridor maintenance agreement. Said homes and/or business association deed restrictions shall be recorded with the Johnson County Records and Tax Administration concurrent or prior to recording of the final plat. The following title and plat notification requirements concerning stream corridors and associated development and use restrictions shall be required:

a. Notice on Plat. For all subdivision proposals within the stream corridor, the applicant shall include a notice on the face of the plat. The notice shall be substantially as set forth below:

Notice: This site lies within a protected Stream Corridor, as defined and regulated in the City of Gardner Municipal Code. Restrictions on the use or alteration of the Stream Corridor may apply. This property is also subject to the obligations and requirements of the Stream Corridor Maintenance Agreement approved by the City.

b. Notice on Title. The owner of any property within a stream corridor, upon the approval of a development application covering property containing a stream corridor (which does not involve the approval of a final plat), shall record a notice of presence for each stream corridor with the Johnson County Records and Tax Administration. This recording shall contain notice of the stream corridor requirements, as found in this chapter, as applied to the property, and the limitations on actions in or affecting such stream corridor. The applicant must submit proof that the notice has been legally recorded before final approval of the development is granted. The notice shall run with the land and failure to provide this notice to any purchaser prior to transferring any interest in the property shall be in violation of this chapter. The notice shall be substantially as set forth below:

STREAM CORRIDOR NOTICE

Legal Description:

Present Owner:

Notice: This property is located within or contains the following Stream Corridor, as defined and regulated in the City of Gardner, Kansas Municipal Code. Restrictions on the use or alteration of land within the Stream Corridor may apply. This property is also subject to the obligations and requirements of the Stream Corridor Maintenance Agreement approved by the City.

Application #___ filed on (Date).

Signature of owner(s).

Notarization:

State of Kansas )

) ss.

Johnson County )

On this day personally appeared before me to me known to be the individual(s) described in and who executed the within and foregoing instrument and acknowledged that they freely and voluntarily signed the same for the uses and purposes therein stated.

Given under my hand and official seal this _______ day of ___.

Notary Public in and for the state of Kansas, residing at ___________________.

D. A stream corridor maintenance agreement is not required if the property owner decides to dedicate the stream corridor to the City and the City agrees to accept the stream corridor for recreational purposes. (Ord. 2320 § 2, 2009)

14.10.100 Deviations.

A. The Planning Commission or Governing Body may, in the process of approving preliminary plats, final plats, site plans, preliminary development plans or final development plans, approve deviations from the specific terms of this chapter which would not be contrary to the public interest and where, owing to special conditions, a literal enforcement of the provisions of this chapter would result in unnecessary hardship for the applicant; and provided, that the spirit of this chapter shall be observed, the public safety and welfare secured and substantial justice done for the applicants.

B. An application for a deviation may only be granted upon a finding that all of the following conditions have been met:

1. That the granting of the deviation will not adversely affect the rights of adjacent landowners.

2. That the strict application of the provisions of this chapter would constitute unnecessary hardship upon the landowner represented in the application.

3. That the deviation desired will not adversely affect the public health, safety, morals, order, convenience, prosperity or general welfare.

4. That granting the deviation will comply with the general spirit and intent of this chapter.

5. That it has been determined the granting of a deviation will not result in extraordinary public expense, create nuisances, cause fraud on or victimization of the public or conflict with existing local, federal, or state laws.

Upon consideration of the factors listed above and the purposes of this chapter, the City may attach such conditions to the granting of deviations as it deems necessary to further the purpose of this chapter.

C. In considering deviation applications, the City has the discretion of using any or all of the following project evaluations when, in the judgment of the Planning Commission or Governing Body, these evaluations are relevant and appropriate. No individual or combination of evaluations are necessarily required for an application to be approved, and the Planning Commission or Governing Body may weigh these evaluations in light of all relevant considerations in determining whether or not to approve an application:

1. Any increase in danger to life and property due to flooding or erosion damage.

2. The susceptibility of the proposed facility to damage from factors such as flooding, stream bank erosion and channel migration and the effect of such damage on the individual owner.

3. The availability of alternative locations for the proposed development.

4. The compatibility of the proposed development with the Comprehensive Plan.

5. The deviation is the minimum necessary to afford relief.

6. Any decrease in the average width of the stream corridor set aside. Any increase to bank instability or bank erosion and the resulting effects on other properties.

7. The extent to which the proposed development retains the natural terrain within the stream corridor while avoiding such activities such as filling, grading and constructing retaining walls.

8. The extent to which the proposed development provides protection from negative impacts to: water quality, base flow potential through infiltration, runoff velocity, temporary storage area for flood waters and sediment retention capability which is compatible with the intent of this chapter.

9. The extent to which the proposed development provides aesthetic enhancement, preservation of habitat for plants and animals, recreational opportunities, educational value and effective screening from adjoining land uses which are compatible with the intent of this chapter. (Ord. 2320 § 2, 2009)