Chapter 14.01 STORMWATER MANAGEMENT

The provisions of this chapter shall extend and apply to all land within the corporate limits of the City. Any person, firm, corporation or business proposing to construct buildings or develop land within the City shall make application to the City Engineer for approval of a stormwater management plan and issuance of a land disturbance permit as specified in this chapter. (Ord. 2603 § 1)

14.01.102 Interpretations.

The provisions of this chapter are intended to supplement existing zoning and land use ordinances of the City. The provisions herein shall be interpreted and applied as the minimum requirements for the promotion of the public health, safety and general welfare in the City.

In addition to the provisions of this chapter, any development or land disturbance within the regulatory floodplain as shown on the National Flood Insurance Program maps as developed for the City by the Federal Emergency Management Agency (FEMA) shall meet the requirements of Chapter 14.05 GMC, Floodplain Management. (Ord. 2603 § 1)

14.01.103 Definitions.

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

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

“Applicant” means a property owner or agent of a property owner who has filed an application for a permit that is subject to the requirements of this chapter.

“Best management practices (BMPs)” means the utilization of physical facilities, schedules of activities, prohibition of practices, maintenance procedures, and other management practices that have been demonstrated to be the most effective and reliable methods to prevent or reduce the pollution of and minimize adverse impacts on surface waters or the City’s MS4.

“Centralized stormwater treatment facility” means a system built to manage the peak flow and settlement of pollutants by efficiently transporting runoff through directly connected conduits (curbs, gutters, roadways, pipe systems, etc.) to a centralized facility, which controls the outflow at pre-developed levels or at levels determined by the responsible agency. Multiple stages are used at detention facilities to control the outflow at pre-developed levels.

“Certificate of occupancy” means a document issued by the proper authority allowing for the occupancy or use of a building and certifying that the structure or use has been constructed or will be used in compliance with all the applicable codes and ordinances of the City of Gardner.

“Certified professional in erosion and sediment control (CPESC)” means an individual who is currently holding such certification as issued by CPESC, Inc., or other person holding a state license authorizing them to prepare and submit an erosion and sediment control plan.

“CFR” means Code of Federal Regulations.

“Channel” means a watercourse of perceptible extent which periodically or continuously contains moving water or which forms a connecting link between two bodies of water.

“City” means the City of Gardner, Kansas.

“City Engineer” means the City Engineer for the City of Gardner, Kansas, or duly designated representative.

“Clean Water Act” means the federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.), and any subsequent amendments thereto.

“Detention” means a stormwater management technique of which the primary function is to control the peak rate of surface water runoff by utilizing temporary storage and a controlled rate of release. This may include, but not be limited to, the use of reservoirs, rooftops, parking areas, holding tanks, in-pipe and in-channel storage.

“Developer” means a person who engages in development of real estate, regardless of whether that person is the landowner.

“Development” means any manmade change to improved or unimproved real property, including the construction or reconstruction of buildings or structures; paving, excavation, grading, filling or similar operations; or the filing and recording of a subdivision plat.

“Director” means the Director of Public Works or his or her authorized representative.

“Discharge” means the addition or introduction, directly or indirectly, of any pollutant, stormwater, or any other substance into the MS4 or surface waters.

“Distributed stormwater treatment facility” means a system built to manage the peak flow and settlement of pollutants at their source and focuses on disconnecting impervious surfaces. Distributed stormwater practices include bioretention areas, green roofs, vegetation swales, pervious pavement, etc. The focus on this type of stormwater treatment is to create a hydrologically functional landscape that mimics pre-developed runoff conditions.

“Domestic sewage” means human excrement, gray water (from home clothes washing, bathing, showers, dish washing, and food preparation), other wastewater from household drains, and waterborne waste normally discharged from the sanitary conveniences of dwellings (including apartment houses and hotels), office buildings, retail and commercial establishments, factories, and institutions, that is free from industrial waste.

“EPA” means Environmental Protection Agency.

“Erosion” means the wearing away of land by the action of wind, water, gravity or ice or a combination thereof.

“Erosion and sediment control (ESC) plan” means a plan for the control of soil erosion and sedimentation resulting from land-disturbing activity, and may include, without being limited to, the drawings, specifications, construction documents, schedules, or other related documents which establish the best management practices (BMPs) on a project. The plan shall include any information required to review the design of the BMPs and to ensure proper installation, maintenance, inspection, and removal of the BMPs, along with the details required to construct any portion of the final storm sewer system that was impeded by a BMP.

“Floodplain” means a land area adjoining a river, stream, watercourse, or lake which is likely to be flooded in a 100-year flood.

“Governing Body” means the City Council for the City of Gardner, Kansas.

“Impervious cover” means those surfaces that cannot effectively permit the infiltration of rainfall, including, but not limited to, building rooftops, pavement, sidewalks, driveways, and the like.

“Industrial waste” means any waterborne liquid or solid substance that results from any process of industry, manufacturing, mining, production, trade, or business.

“Infiltration” means the process of percolating stormwater into the subsoil.

“KDHE” means Kansas Department of Health and Environment.

“Land disturbance activity” means any activity that changes the physical conditions of landform, vegetation and hydrology, creates bare soil, or otherwise may cause erosion or sedimentation. Such activities include, but are not limited to, clearing, removal of vegetation, stripping, grading, grubbing, excavating, filling, logging and storing of materials.

“Landowner” means the legal or beneficial owner or owners of a lot or tract. The holder of a contract to purchase or other person having an enforceable proprietary interest in a lot or tract shall be deemed a landowner.

“Maintenance agreement” means a legally recorded document that acts as a property deed restriction, and which provides for long-term maintenance of stormwater management practices.

“MARC” means Mid-America Regional Council.

“Municipal separate storm sewer system (MS4)” means the system of conveyances (including roads with drainage systems, municipal streets, private streets, catch basins, curbs, gutters, ditches, manmade channels, or storm drains) owned and operated by the City and designed or used for collecting or conveying stormwater, and which is not used for collecting or conveying sewage.

“NPDES” means the National Pollutant Discharge Elimination System. It is the program for issuing, modifying, revoking and reissuing, terminating, monitoring and enforcing permits, and imposing and enforcing pretreatment requirements under Sections 307, 318, 402 and 405 of the federal Clean Water Act.

“NPDES permit” means a permit issued by the United States Environmental Protection Agency (EPA) or the State of Kansas that authorizes the discharge of pollutants to waters of the United States, whether the permit is applicable on an individual, group, or general area-wide basis.

“Off-site facility” means a stormwater treatment facility located outside the subject property boundary described in the permit application for land development activity, including facilities that may accept runoff from multiple projects.

“Oil” means any kind of oil in any form, including but not limited to: petroleum, fuel oil, crude oil, synthetic oil, motor oil, biofuel, cooking oil, grease, sludge, oil refuse, and oil mixed with waste.

“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.

“Person” means any individual, partnership, co-partnership, firm, company, corporation, association, joint stock company, trust, estate, governmental entity, or any other legal entity; or their legal representatives, agents, or assigns, including all federal, state, and local governmental entities.

“Pesticide” means a substance or mixture of substances intended to prevent, destroy, repel, or migrate any pest, or substances intended for use as a plant regulator, defoliant, or desiccant.

“Planning Commission” means the Planning Commission for the City of Gardner, Kansas.

“Plat” means a legally recorded plan of a parcel of land showing the location and dimension of such features as streets, lots, easements, and other elements pertinent to a subdivision.

“Pollutant” means any substance or material which contaminates or adversely alters the physical, chemical or biological properties of the waters, including changes in temperature, taste, odor, turbidity, or color of the water. Such substance or material may include, but is not limited to, dredged spoil, spoil waste, incinerator residue, sewage, pet and livestock waste, garbage, sewage sludge, munitions, chemical waste, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, yard waste, hazardous household wastes, oil, petroleum products, used motor oil, antifreeze, litter, pesticides, and industrial, municipal, and agricultural waste discharged into water.

“Property owner” means the named property owner as indicated by the records of the Johnson County, Kansas, Records and Tax Administration.

“Redevelopment” means development on a tract of land with existing structures where all or most of the existing structures would be razed and a new structure or structures built.

“Sanitary sewer” means the system of pipes, conduits, and other conveyances which carry industrial waste and domestic sewage from residential dwellings, commercial buildings, industrial and manufacturing facilities, and institutions, whether treated or untreated, to a sewage treatment plant and to which stormwater, surface water, and groundwater are not intentionally admitted.

“Sediment” means any solid material, organic, or inorganic, that has been deposited in water, is in suspension in water, is being transported or has been removed from its site of origin by wind, water, ice or gravity as result of soil erosion. Sedimentation is the process by which eroded material is transported and deposited by the action of wind, water, ice or gravity.

“Sewage” means the domestic sewage and/or industrial waste that is discharged into the sanitary sewer system and passes through the sanitary sewer system to a sewage treatment plant for treatment.

“Stop work order” means an order issued by the City or other authorized regulatory or governmental agency which requires that all land disturbance activity or construction activity on a site be stopped.

“Storm sewer system” means any conveyance or system of conveyances for stormwater, including roads with drainage systems, streets, catch basins, curbs, gutters, ditches, manmade channels, or storm drains, as well as any system that meets the definition of a municipal separate storm sewer system or “MS4” as defined by the Environmental Protection Agency in 40 CFR 122.26.

“Stormwater” means stormwater runoff, snow melt runoff, and surface runoff and drainage.

“Stormwater pollution prevention plan (SWPPP)” means the plan required by the Kansas Department of Health and Environment (KDHE) and for which contents are specified by the Kansas Water Pollution Control and NPDES stormwater runoff from construction activities general permit. The purpose of the SWPPP is to help identify the sources of pollution that affect the quality of stormwater discharges from a site and to describe and ensure the implementation of practices to reduce pollutants in stormwater discharges and includes the erosion and sediment control plan as well as plans to prevent pollution from other construction site sources such as, but not limited to, concrete washout, litter, and sanitary waste.

“Stormwater runoff” or “runoff” means water resulting from precipitation which is not absorbed by the soil, evaporated into the atmosphere, or entrapped by ground surface depressions and vegetation and which flows over the surface.

“Stormwater treatment facilities” means all structures, plantings, natural features, or other physical elements that are designed, constructed and maintained in accordance with this chapter and which are provided to prevent or reduce stormwater pollution or to control stormwater runoff volume and discharges.

“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 build up and loss of sediment. Streams are typically formed by natural forces, but also include drainage ways, outside of street rights-of-way, which were formed by man in the past. Storm sewer systems and roadside ditches in street rights-of-way are not considered streams.

“Surface waters” means any body of water classified as surface waters by the State of Kansas, including streams, rivers, creeks, brooks, sloughs, draws, arroyos, canals, springs, seeps, cavern streams, alluvial aquifers associated with these surface waters, lakes, manmade reservoirs, oxbow lakes, ponds, and wetlands, as well as any other body of water classified by the federal government as a “water of the United States.”

“Tributary” or “tributary area” means all the area contributing stormwater runoff to a given point.

“Waste” means any garbage, refuse, sludge or other discarded material which is abandoned or committed to treatment, storage or disposal, including solid, liquid, semisolid or contained gaseous materials resulting from industrial, commercial mining, community and agricultural activities. Waste does not include solid or dissolved materials in domestic sewage or irrigation return flows or solid or dissolved materials or industrial discharges which are point sources subject to permits under the State of Kansas.

“Water bodies” means surface waters, including rivers, streams, lakes, ponds and wetlands, including all areas designated by the federal government as water of the United States.

“Watercourse” means any stream, creek, brook, branch, depression, reservoir, lake, pond, or drainageway in or into which stormwater runoff flows. It is a permanent or intermittent stream or other body of water, either natural or manmade, which gathers or carries surface water. (Ord. 2603 § 1)

14.01.104 Purpose and findings.

To promote the public health, safety, and general welfare of the citizens of the City, this stormwater management chapter is enacted for the general purpose of assuring the proper balance between human use of land and the preservation of a safe and beneficial environment.

A. The purpose of this chapter and the provisions of these regulations are intended to:

1. Reduce property damage and to minimize the hazards of personal injury and loss of life due to flooding and erosion;

2. Protect the overall health and stability of the City’s water bodies;

3. Minimize and prevent adverse water quality impacts from developed land into the surface waters of the City by establishing reasonable requirements for the treatment of stormwater runoff from new development and redevelopment activities;

4. Establish acceptable minimum requirements to preserve and protect stream corridors and other valuable aquatic riparian resources within the City;

5. Minimize erosion and prevent sediment from entering the City’s surface waters or stormwater collection system; and

6. Be consistent with the goals of and meet the requirements set forth by the Clean Water Act and the NPDES under the State of Kansas NDPES permit.

B. These objectives will be accomplished through the following:

1. Establishment of a stormwater management system pursuant to GMC 14.01.200;

2. Definition and establishment of stormwater management practices pursuant to this chapter;

3. Establishment of methods and guidelines for attenuating or avoiding flooding within the City from the cumulative effects of increased volume and peak discharge of surface water runoff;

4. Pursuant to GMC 14.01.300, 14.01.600, and 14.01.700, establishment of requirements for construction site erosion control, natural stream corridor preservation and protection, site post-construction stormwater treatment, and prevention of illicit discharges to the City’s municipal separate storm sewer system (MS4) pursuant to Chapter 14.20 GMC, Illicit Discharges;

5. Assigning the Board of Building Code Appeals, as established by and set forth in Chapter 2.60 GMC, and vesting the authority in the Board of Building Code Appeals to review decisions of the City Engineer and to mediate disputes regarding the interpretation and implementation of the provisions of this chapter. (Ord. 2603 § 1)

14.01.105 Relationship to other laws.

These regulations shall not be construed as abating any action now pending under, or by virtue of, prior existing regulations, or as discontinuing, abating, modifying or altering any penalty accruing or about to accrue, or as affecting the liability of any person, firm or corporation, or as vacating or annulling any rights obtained by any person, firm, or corporation, by lawful action of the City, except as shall be expressly provided for in these regulations. (Ord. 2603 § 1)

14.01.106 Disclaimer of liability.

The performance standards and design criteria set forth in this chapter establish minimum requirements which must be implemented with good engineering practice and workmanship. Use of the requirements contained herein shall not constitute a representation, guarantee or warranty of any kind by the City, or its officers and employees, of the adequacy or safety of any stormwater treatment facility or use of land, nor shall the approval of a stormwater treatment facility, stormwater management plan, or the issuance of a land disturbance permit or other permit or plan approval imply that land uses permitted will be free from damages caused by stormwater runoff. The degree of protection required by these regulations is considered reasonable for regulatory purposes and is based on historical records, engineering, and scientific methods of study. Larger storms may occur, or stormwater runoff heights may be increased by manmade or natural causes. These regulations therefore shall not create liability on the part of the City or any employee or officer of the City with respect to any legislative or administrative decision lawfully made hereunder. (Ord. 2603 § 1)

14.01.107 Appeals.

Any person aggrieved by a decision of the City Engineer in the enforcement of this chapter shall have the right to appeal any such order, requirement, decision or determination to the Board of Building Code Appeals, as established by Chapter 2.60 GMC, in accordance with the following procedures:

A. Any person aggrieved by a final order, requirement, decision or determination of the City Engineer may file a written application for appeal within 30 days of the issuance of such final order, requirement, decision or determination for hearing before the Board of Building Code Appeals.

B. A hearing before the Board of Building Code Appeals shall be held within 30 days of the filing of an application for appeal by any person aggrieved by a final order, requirement, decision or determination of the City Engineer, or as soon thereafter as the Board may be convened and the matter heard. The Board shall consider any information offered by the aggrieved person bearing on the dispute and shall recommend to the City Engineer as appropriate: reversal, modification or confirmation, subject to the provisions of Chapter 2.60 GMC. The City Engineer, who shall be present at the meeting, shall act upon the recommendation in a manner consistent with his/her responsibilities under these regulations.

C. Any person aggrieved by any final decision of the City Engineer, following review by the Board of Building Code Appeals, may seek review by a court of competent jurisdiction in the manner provided by the laws of the state. (Ord. 2603 § 1)

14.01.108 Penalty for violations – Actions.

The violation of any provision of this chapter is a misdemeanor, and any person, firm, association, partnership or corporation convicted thereof shall be punished by a fine not to exceed $500.00; and the City shall further have the authority to maintain suits or actions in any court of competent jurisdiction for the purpose of enforcing any provisions of this chapter and to abate nuisances maintained in violation thereof; and in addition to other remedies, institute injunction, mandamus, or other appropriate action or proceeding to prevent such unlawful erection, construction, reconstruction, alteration, conversion, maintenance, or use, or to correct or abate such violation, or to prevent the occupancy of the building, structure, or land. Each day any violation of this chapter shall continue shall constitute a separate offense. (Ord. 2603 § 1)

14.01.109 Severability.

If any section, subsection, paragraph, sentence, clause or phrase in this chapter or any part thereof is held to be unconstitutional, invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this chapter. (Ord. 2603 § 1)

14.01.200 Stormwater management system.

(Ord. 2603 § 1)

14.01.201 General.

This chapter establishes the stormwater management system of the City and the stormwater management controls, standards, and practices applicable to any development or redevelopment within the corporate limits of the City of Gardner. (Ord. 2603 § 1)

14.01.202 Stormwater management controls.

All development, redevelopment, and improvements with respect to managing stormwater runoff within the City of Gardner shall comply with the provisions of this chapter and utilize stormwater management controls consistent with the stormwater treatment standards adopted by the City Engineer as authorized in GMC 14.01.502, subject to the exceptions or exemptions and limitations set forth in this chapter. (Ord. 2603 § 1)

14.01.203 Public and private responsibilities under the stormwater management system.

A. Public Responsibilities. The City Engineer, or his or her designee, will administer the regulations and requirements contained in this chapter. In addition, where designated herein or upon the designation of the City Engineer, the Department of Public Works and the Community Development Department shall also be responsible for the administration of the provisions of this chapter.

B. Private Responsibilities. Any developer of land within the City has the responsibility to provide on such property all approved stormwater treatment facilities to ensure the adequate drainage, conveyance and control of stormwater both during and after construction of such facilities.

C. Maintenance.

1. Publicly Owned Stormwater Treatment Facilities. The City Department of Public Works shall be responsible for the maintenance of all stormwater treatment facilities and improved watercourses which are under City ownership or are within the public right-of-way; provided, that the City may enter into an agreement to permit limited privately owned and maintained stormwater treatment facilities within the public right-of-way in limited circumstances in which such facilities do not unduly interfere with the use of the public right-of-way and subject to the provisions of Chapter 12.05 GMC. The City does not assert jurisdiction under this chapter over any construction work on state rights-of-way.

2. Privately Owned Stormwater Treatment Facilities. Stormwater treatment facilities shall be maintained by the landowner, developer, occupant, homes or business association, or agent in charge of such property as required herein.

3. Failure to Maintain. If a property owner or responsible party fails to properly maintain a stormwater treatment facility or refuses to meet the requirements of the maintenance agreement, the City Engineer, after reasonable notice, may correct such violation of the stormwater treatment standards or maintenance agreement by performing all necessary work to place the stormwater treatment facility in proper working condition. The City may assess the property owner(s) of the facility or responsible party for said facility for the cost of repair work and any penalties provided in this chapter; and the cost of the work shall be a lien on the property, or prorated against the beneficial users of the property, and may be placed on the tax bill and collected as taxes by the County in compliance with K.S.A. 12-1617e. (Ord. 2673 § 8; Ord. 2603 § 1)

14.01.300 Stream corridor requirements.

(Ord. 2603 § 1)

14.01.301 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. Enhance 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. 2603 § 1)

14.01.302 Scope.

No land shall be disturbed, nor structure built, located, converted or altered, within the corporate limits of the City without full compliance with these sections (GMC 14.01.300 et seq.). (Ord. 2603 § 1)

14.01.303 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 GMC 14.01.303(B)
Including 25 acres up to 40 acres	30 feet (See GMC 14.01.303(C))
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 GMC 14.01.303(A) and 14.01.305.

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 the ordinary high-water mark to the limit of the 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 the 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 rights-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 application for development or redevelopment 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 or resubmit the required application, as appropriate. (Ord. 2603 § 1)

14.01.304 Delineation of the stream corridor.

The stream corridor shall be delineated on preliminary and final plats, site plans, and preliminary and final 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. 2603 § 1)

14.01.305 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 14.01.303; 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 14.01.303. 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 in the future. (Ord. 2603 § 1)

14.01.306 Floodplain.

Additional restrictions to activities within the stream corridor shall be applied in accordance with Chapter 14.05 GMC. (Ord. 2603 § 1)

14.01.307 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 reasonably minimized.

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. 2603 § 1)

14.01.308 Maintenance of the stream corridor.

A. Allowed maintenance 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 if 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, or such other ongoing business, association or trust, as the responsible party for maintaining the stream corridor, enforcing the maintenance agreement and which shall be responsible for implementation and enforcement of said maintenance agreement 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 homes and/or business association 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 in 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 GMC 14.01.300 et seq., 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. 2603 § 1)

14.01.309 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 GMC 14.01.300 (GMC 14.01.300 through 14.01.309) which would not be contrary to the public interest and where, owing to special conditions, a literal enforcement of the provisions of GMC 14.01.300 through 14.01.309 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 applicant.

B. An application for a deviation may only be granted upon a finding that all 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 that 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 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 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 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. 2603 § 1)

14.01.400 Stormwater management plans.

(Ord. 2603 § 1)

14.01.401 General.

No development shall increase the quantity and rates of stormwater emanating from said land areas except in accordance with an approved stormwater management plan as provided in this chapter. The stormwater management plan shall be prepared by a professional engineer licensed by the state. No building permits shall be issued prior to the approval of the final stormwater management plan by the City Engineer. (Ord. 2603 § 1)

14.01.402 Preliminary stormwater management plan.

A. A preliminary stormwater management plan shall accompany all preliminary applications or submittals for land development or redevelopment. The preliminary stormwater management plan must include conceptual stormwater management plans, sufficient information to evaluate the existing hydrologic and environmental characteristics of the development, impacts of the proposed development, preliminary sizing for detention and stormwater treatment facilities, and locations of any existing or proposed stream corridors, floodplains, access easements, conservation easements, or tracts, and a description of the maintenance responsibility for proposed private stormwater facilities. The City Engineer may set additional minimum submittal requirements.

B. Following the receipt of the preliminary stormwater management plan, a general review meeting shall be conducted and shall include the City Engineer, Community Development Department staff, representatives of the developer and the developer’s engineer. The purpose of this review shall be to jointly agree on the conceptual methods proposed to be utilized and the possible effects of the proposed development on existing or future adjacent developments. (Ord. 2673 § 9; Ord. 2603 § 1)

14.01.403 Final stormwater management plan.

A. Following the review of the preliminary stormwater management plan and after the general approval of the preliminary plan by the City Engineer, a final stormwater management plan shall be prepared for each phase of the proposed development as each phase is developed. The submittal of the final plan shall coincide with the application for final approval of the development and shall constitute a refinement of the concepts approved in the preliminary plan. If a development is to be phased, the total area of the development is to be considered in all calculations and facilities should be designed for each phase which would be compatible with those of the total development plan.

B. The final stormwater management plan, in addition to the information from the preliminary stormwater management plan, shall include all the information required in the stormwater treatment standards established in GMC 14.01.500 through 14.01.504 and any other submittal requirements as determined by the City Engineer, including but not limited to the following minimum landscape and stabilization requirements:

1. A list of vegetative stabilization and management techniques to be used at a site after construction is completed.

2. An explanation of how the site will be stabilized after construction.

3. Identify the responsible party for the maintenance of vegetation at the site.

4. Identify the practices that will be employed to ensure adequate vegetative cover is preserved.

5. The name and address of the state-registered landscape architect who prepared the design.

C. The final stormwater management plan shall be reviewed by the City Engineer. If it is determined that it meets the criteria and performance standards of the MARC BMP Manual adopted by the City as set forth in this chapter (GMC 14.01.500 through 14.01.504) and the Gardner Technical Specifications for Public Improvement Projects and Design Criteria for Public Improvement Projects and will not be detrimental to the public health, safety, and general welfare, the City Engineer shall approve the plan or conditionally approve the plan, setting forth the conditions for such approval.

If it is determined that the stormwater management plan submitted with and for the proposed development will not control stormwater runoff in accordance with these regulations, the City Engineer shall not approve the stormwater management plan. If not approved, the stormwater management plan shall be returned to the applicant for corrective action and resubmittal. (Ord. 2603 § 1)

14.01.500 Design criteria and performance standards.

(Ord. 2603 § 1)

14.01.501 General.

This chapter sets forth the rules that shall govern the design stormwater treatment facilities and design of improvements with respect to managing stormwater runoff within the City of Gardner. (Ord. 2603 § 1)

14.01.502 Stormwater treatment criteria.

A. The City Engineer shall adopt and maintain stormwater treatment standards to implement and interpret the provisions of this chapter. The 2012 edition of the Mid-America Regional Council and American Public Works Association Manual of Best Management Practices for Stormwater Quality (MARC BMP Manual), and all appendices, shall be the basis of these stormwater treatment standards. Additional technical guidance or exceptions to the MARC BMP Manual will be included in the Gardner Technical Specifications for Public Improvement Projects and Design Criteria for Public Improvements. The additional guidance or exceptions may include, but not be limited to, modified BMPs, design criteria, construction specifications, or standard details. Copies of all adopted standards shall be on file and available in the City’s Public Works Department.

B. All stormwater treatment facilities shall be designed to provide a combination of pollutant removal and water volume control that satisfies the level of service and value rating calculations set forth in the stormwater treatment standards (MARC BMP Manual) and other requirements established by City-approved watershed management plans or studies.

C. Nonstructural stormwater treatment practices are encouraged to minimize the reliance on structural practices. Applicants wishing to obtain credit for using nonstructural practices must ensure that these practices are documented and will remain unaltered by subsequent property owners by locating the facility in a conservation easement, separate tract dedicated for stormwater treatment facilities or similar instrument as approved by the City Engineer. (Ord. 2603 § 1)

14.01.503 Stormwater conveyance and detention criteria.

A. All drainage components shall be designed in accordance with the Gardner Technical Specifications for Public Improvement Projects and Design Criteria for Public Improvement Projects and the MARC BMP Manual.

B. Stormwater Detention Standards. The Gardner Technical Specifications for Public Improvement Projects and Design Criteria for Public Improvement Projects and MARC BMP Manual contain the complete requirements for detention.

C. Permanent easements for the detention and conveyance of stormwater, including easements of access to structures, shall be dedicated to the City. Any restrictions shall be clearly indicated on the plat. (Ord. 2603 § 1)

14.01.504 Modifications and appeals to standard criteria.

A. The City Engineer may modify or reduce requirements on redevelopment projects in the City.

B. The City Engineer may waive or modify any of the stormwater treatment standards to allow the implementation of alternative or innovative practices that implement the intent of the standards and provide equivalent public benefits without significant adverse impacts on surrounding developments. Such modifications may be granted for issues including, but not limited to:

1. Approval of alternate materials, devices, techniques, details or specifications for individual stormwater treatment facilities that would be expected to provide equivalent or better performance.

2. Evaluations of credits, ratings, or level of service calculations to account for unique or special technical considerations.

3. Corrections, clarifications or modifications to requirements which the City Engineer has found to give inadequate or undesirable performance.

C. Appeals of decisions made by the City Engineer related to the stormwater treatment standards shall be made to the Board of Building Code Appeals as set forth in this chapter. (Ord. 2603 § 1)

14.01.600 Land disturbance and erosion and sediment control.

(Ord. 2603 § 1)

14.01.601 Purpose.

The Congress of the United States amended the Clean Water Act of 1972 to reduce the discharge of pollutants into the waters of the United States by extending NPDES requirements to regulate stormwater and urban runoff discharge from land disturbance activity. The City of Gardner is subject to the NPDES requirements and is therefore obligated by federal law to develop, implement, and enforce minimum erosion and sediment control standards in compliance with the City’s Kansas Water Pollution Control general MS4 permit to regulate stormwater and urban runoff discharge from land disturbance activity and construction activities into the City’s storm sewer systems.

The purpose of these sections (GMC 14.01.600 through 14.01.608) is to implement and require construction-related procedures and practices or other land disturbance activity that will minimize erosion and prevent sediment from entering the City’s surface waters and/or stormwater collection system. (Ord. 2603 § 1)

14.01.602 General provisions.

A. No person shall authorize or maintain a land disturbance activity or construction site that fails to comply with the City of Gardner Technical Specifications, latest edition, and the requirements of this chapter.

B. No person shall authorize or initiate any land disturbance activity without an LDP approved by the City Engineer, or the City Engineer’s authorized representative, prior to any construction activity or land disturbance activity.

C. No person shall fail to immediately take all action necessary to completely abate any violation of this chapter including but not limited to the establishment or restoration of ESC BMPs as required by this chapter and remedial action to clean and/or remove sediment and other pollutants. (Ord. 2603 § 1)

14.01.603 Land disturbance permit (LDP).

A. The issuance of an LDP is contingent upon compliance with these sections (GMC 14.01.600 through 14.01.608) and all other City permits, specifications, and regulations. The LDP may be revoked or withdrawn by the City Engineer, or his or her designee, upon a failure to comply with the requirements stated in this chapter, and such failure shall be unlawful and shall constitute a violation of this chapter.

B. The LDP application, SWPPP, ESC plans, and all other technical documents shall be prepared and sealed by a professional engineer or landscape architect licensed in the State of Kansas, include any plans, studies or certifications reasonably required by the City Engineer, and include application fee upon submission.

C. The landowner of the real property upon which activity takes place shall be responsible for obtaining the LDP, except for work conducted in the right-of-way or utility easements. The person or construction site operator conducting land disturbance activities in the right-of-way or in a utility easement shall be responsible for obtaining the LDP.

D. An LDP shall be obtained from the City Engineer prior to commencement of any activity that changes the physical conditions of landform, affects hydrology, creates bare soil, or otherwise may cause erosion or sedimentation. Such activities include, but are not limited to, clearing, removal of vegetation, stripping, grading, grubbing, excavating, filling, logging, and storing of materials.

E. An LDP is not required for the following:

1. Land disturbance activities that disturb 5,000 square feet or less. Land disturbing activities that are part of a larger phased, staged, or common plan of development shall be considered a single site for the purpose of calculating the disturbed area.

2. Work to correct or remedy emergencies, including situations that pose an immediate danger to life or property.

3. Agricultural uses.

4. Land disturbance activities specifically authorized by a public improvement permit which includes an ESC plan covering the entire area of disturbance.

5. Linear utility projects with less than 1,000 feet of cumulative open trench construction that are located outside the boundaries of a development project.

F. An LDP shall not be required for land disturbance activities resulting from development or redevelopment projects for which applications for said development or redevelopment projects have been approved prior to adoption of this chapter and applications for development or redevelopment projects that have been submitted prior to adoption of this chapter; provided, that:

1. This exemption does not apply to withdrawn or denied applications.

2. In the case of requests to revise previously approved applications, this exemption does not apply to revisions that require Planning Commission or Governing Body approval but does apply to revisions that can be administratively approved pursuant to Chapter 17.03 GMC.

3. In the case of requests to revise previously submitted but not approved applications, this exemption does not apply to revisions that require Planning Commission or Governing Body approval but does apply to revisions that can be administratively approved pursuant to Chapter 17.03 GMC.

G. A landowner or developer exempted from obtaining an LDP under the provisions of this chapter must nonetheless comply with basic erosion control practices defined in the City of Gardner Technical Specifications and NDPES requirements.

H. An LDP application shall be submitted on the City’s forms and shall include the minimum requirements set forth and provided by the City.

I. The City Engineer shall establish an expiration date for each LDP and shall consider the final City inspection and approval of the work undertaken. Requests for extension of the LDP must be made to the City Engineer in writing prior to the expiration of the LDP and are subject to the approval of the City Engineer.

J. The LDP holder shall keep a copy of the most current SWPPP and/or ESC plan at the site and any approved extension, if applicable, until the LDP is closed.

K. The LDP holder shall notify the City Engineer, or his or her designee, prior to commencing any land disturbance activity and/or construction activity.

L. The person(s) responsible for compliance with this chapter shall include, jointly and severally:

1. The landowner of the site upon which a land disturbance activity takes place. When an LDP is issued to a person, such person shall remain responsible for land disturbance activities notwithstanding a transfer of the site unless the City approves, in writing, an assignment of the person’s obligations; and

2. If the landowner is not the LDP holder, the person to whom an LDP is issued for a site upon which a land disturbance activity takes place is jointly and severally liable along with the landowner of the site for compliance with this chapter; and

3. Any person who undertakes land disturbance activities but fails to obtain an LDP or ensure that an LDP has been issued by the City for such land disturbance activities. (Ord. 2603 § 1)

14.01.604 Financial security.

Prior to issuance of the LDP, the permittee must provide financial security sufficient as surety for performance of the work, in addition to any required performance or maintenance bonds or other insurance or sureties otherwise required in this chapter or set forth within the Gardner Municipal Code. The form of the securities shall be as follows:

A. Land disturbances greater than or equal to one acre shall require a $3,000 deposit and either a letter of credit or abatement bond. The total performance surety shall be at least equal to the cost to replace the ESC measures prescribed by the SWPPP and as estimated by the project designer and approved by the City Engineer.

B. Land disturbances less than one acre but greater than 5,000 square feet shall require a $1,000 deposit to the City.

The financial security will be released when the site has been approved as stabilized following the final inspection by the City and all temporary erosion control measures have been removed. (Ord. 2603 § 1)

14.01.605 Inspections.

A. Maintenance of Erosion Control Measures. All ESC measures set forth in the SWPPP, ESC plan and as required by the LDP shall be maintained in good order at all times during and after construction and/or land disturbance activities until the LDP is closed.

B. Initial Inspection. The LDP holder shall notify the City Engineer when initial ESC measures are installed in accordance with the approved plan. No land disturbance activities shall begin prior to approval from the City Engineer that all pre-construction ESC measures are correctly installed per the approved plan.

C. Routine Inspection. It shall be the duty of the LDP holder to maintain effective ESC measures and to provide or obtain routine inspections of the site performed by a qualified erosion control specialist at least once per week. The LDP holder shall keep a log of routine inspections by a qualified erosion control specialist as a part of the SWPPP which shall be produced for review by City staff upon request. City staff may perform inspections at any time to confirm that all prescribed ESC measures are being maintained in good order and in compliance with all permits and associated documents. Any deficiencies shall be noted in a report of the inspection and include the required actions to correct the deficiencies.

D. Final Inspection. Once the site is stabilized, the LDP holder shall request a final inspection by the City. The site shall be considered stabilized when perennial vegetation, pavement, buildings, and/or structures cover all areas that have been disturbed. An LDP shall not be closed until a final inspection has been completed and approval of the site stabilization is issued by the City. No final certificate of occupancy shall be issued until the site is stabilized, restored, and the LDP requirements have been satisfied and the permit closed. (Ord. 2603 § 1)

14.01.606 Enforcement.

The Department of Public Works and the Community Development Department shall enforce the provisions of these sections (GMC 14.01.600 through 14.01.608) through routine activities that include inspecting the site and communicating with the contractor, permittee or landowner to resolve issues of noncompliance. If remedial action is not taken by the end of the following business day after being notified of violations, the City Engineer, or his or her designee, may proceed with any or all of the following enforcement measures listed below:

A. Refusal of Inspection. Request for an inspection of any permitted construction activity or land disturbance activity may be denied if it is found that ESC measures have not been implemented or maintained, or are found to be ineffective. No further inspections will be performed until the ESC measures have been implemented or violations of this chapter abated.

B. Stop Work Order. The City Engineer is authorized to issue a stop work order for any or all construction activity and/or land disturbance activity within the established boundary of the LDP. The stop work order shall be in writing and shall be given to the landowner of the property, the owner’s agent, LDP holder, or the person performing the work. Upon issuance of a stop work order, the cited work shall immediately cease.

1. The City Engineer may issue a stop work order if any one or more of the following conditions exist:

a. Inspection by the Department of Public Works, the Community Development Department, the City Engineer, or City staff reveals the LDP or the land disturbance activity conducted pursuant to the LDP is not in substantial compliance with the SWPPP and/or ESC plan as determined by the City Engineer, or his or her designee; or

b. Failure to comply with a written order from the City Engineer, or his or her designee, to bring the site into compliance with the LDP, correct a violation of this chapter or restore a disturbed area within the time limits defined by the City Engineer; or

c. Failure to pay a required fee; or

d. Failure to submit reports in accordance with the City of Gardner Technical Specifications and NDPES requirements; or

e. Any other violation of this chapter.

2. It shall be a violation of this chapter for a person to undertake, allow, consent or permit another to undertake work or land disturbing activity upon a site subject to a stop work order.

3. If the stop work order is not cured within a reasonable period, the LDP may be revoked by the City Engineer, and thereafter no person shall continue any work described in the LDP without first obtaining a new LDP and paying a new LDP fee as required by this chapter.

4. The landowner and LDP holder are responsible for City expenditures, and administrative costs to correct or abate the site shall be billed to the LDP holder and the landowner in the event the City must make such corrections or abatements following a stop work order.

C. Abatement. The City Engineer is authorized to correct or abate violations and may authorize the use of either City departments or external contractors to perform such abatement. City expenditures and administrative costs to correct or abate a violation, including but not limited to the expenses for any contractors or subcontractors, shall be billed to the LDP holder. If the City does not receive payment within 30 days, the City will draw upon any and all financial securities to cover the costs. If the City’s expenditures and costs exceed the financial securities provided by the landowner and/or LDP holder, the City Engineer shall report the costs of such abatement and related work to the City Clerk. The City Clerk shall comply with the provisions of K.S.A. 12-1617e to collect the City’s cost, including mailing a statement of costs to the last known address of the property owner, occupant or agent in charge of the property and if such costs are not paid to the City within 10 days of such notice, the Governing Body shall pass an ordinance levying a special assessment for such costs against the property on which the facility exists or abuts, and the City Clerk shall certify such assessment to the County Clerk for collection and payment to the City the same as other assessments and taxes are collected and paid.

D. Violations and Penalties.

1. Any person who violates a provision of this section, fails to comply with the requirements of this chapter regarding land disturbance activity, or fails to comply with a stop work order or an authorized directive issued by the City Engineer is guilty of a public offense and shall be subject to the penalties as provided in GMC 14.01.108.

2. The City Engineer is authorized to cite the landowner, LDP holder and any other persons identified on an LDP as responsible to the City for violations of the LDP or any provisions of this chapter relating to land disturbance activities. (Ord. 2673 § 10; Ord. 2603 § 1)

14.01.607 Fees.

A. Prior to the issuance of the LDP, upon submission of an application for an LDP, each applicant shall pay to the City a fee. This fee shall be set by the Governing Body by resolution. Fees paid for an LDP which is subsequently revoked by the City Engineer are not refundable. A person operating in compliance with the regulations of this chapter shall not be charged a permit fee when obtaining an LDP for land disturbance activities, construction or renovation of City-owned and City-financed capital improvement projects.

B. Any person who permits, authorizes, or maintains a land disturbance activity without first obtaining a valid LDP required by this chapter shall pay additional permit fees as established by the City Council. (Ord. 2653 § 4; Ord. 2603 § 1)

14.01.608 Miscellaneous.

A. Other Laws. Neither these sections (GMC 14.01.600 through 14.01.608) nor any administrative decision made under them exempts the LDP holder or any other person from other requirements of this chapter, state and federal laws, provisions of the Gardner Municipal Code, or from procuring other required permits, including any state or federal stormwater permits authorized under the NPDES, or limits the right of any person to maintain, at any time, any appropriate action at law or in equity, for relief or damages against the LDP holder or any person arising from the activity regulated by these sections (GMC 14.01.600 through 14.01.608).

B. Severability. If any section, subsection, paragraph, sentence, clause or phrase in these sections (GMC 14.01.600 through 14.01.608) or any part thereof is held to be unconstitutional, invalid or ineffective by any court of competent jurisdiction or administrative or regulatory agency lawfully acting in a judicial or quasi-judicial capacity, such decision shall not affect the validity or effectiveness of the remaining portions of this chapter. (Ord. 2603 § 1)

14.01.700 Post-construction stormwater treatment.

(Ord. 2603 § 1)

14.01.701 Purpose and findings.

A. The purpose of these sections (GMC 14.01.700 through 14.01.710) is to minimize and prevent adverse water quality impacts from developed land into the surface waters of the City by establishing reasonable requirements for the treatment of stormwater runoff from new development and redevelopment activities.

B. The Governing Body finds:

1. Land development and the associated increases in impervious cover can increase the quantity and nature of pollutants carried by stormwater runoff, increase stormwater runoff rates and volumes, aggravate stream channel erosion and sediment transport, and impact the surface waters of the City and downstream water bodies.

2. Stormwater treatment facilities and requirements can minimize and prevent adverse water quality impacts from developed land and remove or reduce the concentrations of pollutants carried in stormwater runoff, reduce erosion, reduce stream bank erosion, and maintain stormwater runoff rates and volumes closer to pre-development levels. (Ord. 2603 § 1)

14.01.702 Applicability.

No land shall be developed in the City without full compliance with the provisions of this chapter, unless such development is exempted as set forth herein; provided, that the City does not assert jurisdiction under this chapter over any construction work on state rights-of-way.

A. Projects meeting any of the following criteria are exempt from the provisions of this chapter:

1. Land disturbances of less than one acre that are not part of a common plan for development that will cumulatively disturb more than one acre.

2. Expansions and modifications to previously constructed developments otherwise subject to this chapter where the proposed increase in impervious surface is less than 5,000 square feet.

3. Land disturbances for linear utility construction and City-administered street projects.

4. Agricultural land uses.

5. Single lot residential developments that are not part of a larger common plan for development.

6. Repairs to any stormwater management facility or practice conducted by the City or a contractor on behalf of the City as deemed necessary by the City Engineer.

B. Applications for development or redevelopment projects that are approved prior to adoption of this chapter and applications for development or redevelopment projects that are submitted prior to adoption of this chapter are exempt from the provisions of these sections (GMC 14.01.700 through 14.01.710), subject to the following:

1. This exemption does not apply to withdrawn or denied applications.

14.01.703 Performance criteria.

Stormwater treatment facilities shall be designed in accordance with the criteria and standards set forth in GMC 14.01.500 et seq. (Ord. 2603 § 1)

14.01.704 Site location and placement.

Stormwater treatment facilities’ locations shall be approved by the City Engineer, and ownership and maintenance responsibility established in accordance with GMC 14.01.708. All stormwater treatment facilities will be shown on final construction plans and reflected in the maintenance agreement and any required maintenance plan(s).

A. Centralized Stormwater Treatment Facilities. All centralized stormwater treatment facilities for stormwater management will be shown on preliminary plats, preliminary plans, final plans and final plats. The facility shall be documented in the form of a separate tract.

B. Distributed Stormwater Treatment Facilities. If a distributed stormwater treatment facility cannot be described practically as a tract, the facility’s location shall be documented on the preliminary plans, final plans and maintenance agreement and properly recorded with Johnson County, Kansas, Records and Tax Administration.

C. Residential Single-Family and Two-Family Areas. Generally, stormwater treatment facilities for residential single-family and two-family developments shall be centralized and located on a common tract, to be owned and maintained by a homes and/or business association, or such other ongoing business, association or trust, as the responsible party for maintaining stormwater treatment facilities, enforcing the maintenance agreement, and responsible for implementation of and compliance with said maintenance agreement consistent with the provisions of this chapter. The City Engineer may allow a limited number of distributed stormwater treatment facilities on individual residential tracts, provided the applicant demonstrates that adequate provisions are in place to ensure long-term operation, maintenance and inspection of such facilities without undue burden on the City for tracking or monitoring compliance.

D. Private Facilities in the Public Street Right-of-Way. Privately owned and operated stormwater treatment facilities shall be located outside of the public street right-of-way unless approved in writing by the City Engineer. A corresponding right-of-way maintenance agreement shall be recorded with the Johnson County Records and Tax Administration that provides for private maintenance responsibility of said stormwater treatment facility.

E. Coordination with Utility Easements. Stormwater treatment facilities shall not be collocated within utility easements unless approved by the City Engineer.

F. Detention Ponds. When detention facilities for peak flood control are required under the provisions of GMC 14.01.500 through 14.01.504, such facilities may be collocated with stormwater treatment facilities; provided, that the facilities are designed to meet the requirements of both uses.

G. Off-Site Facilities. The City Engineer may consider proposals to manage stormwater runoff in off-site facilities that treat runoff from the proposed development and comply with the stormwater treatment standards. The off-site facility shall be in place prior to or concurrently with the proposed development. Long-term operations and maintenance responsibilities for the facilities must be established by legal agreements, approved by the City and recorded with Johnson County Records and Tax Administration.

H. Stream corridors as required in GMC 14.01.300 through 14.01.309 are considered a beneficial stormwater treatment facility; therefore credit will be granted by the stormwater treatment standards. (Ord. 2603 § 1)

14.01.705 Deviations.

A. The City Engineer may approve deviations from specific terms of this chapter owing to special circumstances as described in subsection (B) of this section. Upon consideration of the factors listed in subsection (B) of this section and the purposes of this chapter, the City may attach such conditions to the granting of deviations as it deems necessary or appropriate to further the purpose of this chapter.

B. The City Engineer may approve deviations from the specific terms of this chapter upon a finding that all the following conditions have been met:

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

2. The strict application of the provisions of this chapter would constitute unnecessary and undue hardship upon the landowner.

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

4. Granting the deviation will comply with the spirit and intent of this chapter.

5. Granting of a deviation will not result in significant public expense, create a nuisance, cause fraud on or victimization of the public, place a burden upon others, or conflict with existing local, federal, or state laws.

C. In considering deviation applications, the City Engineer has the discretion to use any or all of the following considerations or project evaluations when, in his or her judgment, these evaluations are relevant and appropriate:

1. That alternative standards for stormwater management, water quality protection, and ecological preservation have been established, and/or that mitigation measures are undertaken.

2. That existing physical or natural characteristics of the site make strict application of the chapter infeasible.

3. That concerns for flooding, stream bank erosion, stream instability, and maintenance of culverts, bridges or other structures are addressed.

4. That the deviation is the minimum necessary to afford relief.

5. No individual or combination of evaluations are necessarily required for an application to be approved and the City Engineer may weigh these evaluations in light of all relevant considerations in determining whether to approve an application. (Ord. 2603 § 1)

14.01.706 Bonds and assurances for stormwater treatment facilities.

A. Public Improvements.

1. Performance Bond. Upon approval of the final stormwater management plan, but before the issuance of a land disturbance permit, the City Engineer shall require the applicant to post a performance bond for and in the amount of the work to be done pursuant to the approved stormwater management plan for stormwater treatment facilities dedicated to the public.

2. Maintenance Bond. A two-year maintenance bond against defects in workmanship will be required by the City for any portion of the stormwater treatment facilities dedicated to the public.

B. Private Improvements. The City Engineer shall have the authority to set minimum construction plan submittal requirements.

1. Performance Bond.

a. The City Engineer shall require the submittal of a performance bond. The amount of the performance bond shall be one and one-quarter times the total construction cost of the stormwater treatment facilities as estimated by the developer’s engineer and approved by the City Engineer.

b. If stormwater treatment facilities only serve a single building lot and a building is being constructed, a performance bond may be waived by the City Engineer, provided all stormwater treatment facilities are constructed and certified prior to issuance of a certificate of occupancy.

c. When seasonal or environmental conditions cause a delay in constructing the stormwater treatment facilities, the City Engineer may approve issuing a certificate of occupancy, provided a performance bond is posted in accordance with this section.

d. The performance bond will be released only when all the following conditions have been met:

i. At least 80 percent of the land area served by the stormwater treatment facilities has permanent stabilization in place.

ii. All of the stormwater treatment facilities covered by the bond have been constructed and certified in accordance with this chapter.

iii. If the stormwater treatment facility is constructed prior to final stabilization of at least 80 percent of the land area served by the facility, and the most recent certification of the facility is more than 90 days old, an updated certification by the City Engineer shall be required to verify that the facility is fully functional.

2. Maintenance Bond.

a. Prior to issuance of a land disturbance permit for construction of a stormwater treatment facility, the developer and/or contractor shall submit a maintenance bond.

b. The developer and/or contractor shall be responsible for all regular maintenance and repairs to the stormwater treatment facility while the maintenance bond is in effect, including, but not limited to, repairs necessary due to damage caused by intentional or unintentional acts of others.

c. The maintenance bond shall be in the amount of 100 percent of the construction cost of the facilities and can be utilized for any maintenance or rehabilitation costs associated with the stormwater treatment facility deemed necessary by the City, including, but not limited to, removal of siltation, mowing, replacement of vegetation, piping repairs, replacement of underdrains, other repairs to the facility, and any administrative or engineering costs associated with such maintenance and repairs.

d. The maintenance bond shall remain in effect for a period of two years following initial certification of the stormwater treatment facility.

3. Stormwater treatment facilities shall be constructed as early as is feasible during the development process. However, since some commonly used stormwater treatment facilities are sensitive to construction generated silt when upstream areas are under construction, the following provisions are allowable for timing of such facility construction:

a. For a stormwater treatment facility serving a single building lot, the facility shall be constructed concurrently with the development of the site and building, subject to exceptions set forward in GMC 14.01.702(A)(2).

b. When stormwater treatment facilities serve multiple development lots within a common plan of development, a stormwater treatment facility can be final graded, and permanent vegetation installed, only after 80 percent of the land area served by the facility has achieved permanent stabilization, unless the City Engineer approves a shortened schedule. Additionally, stormwater treatment facilities must be installed and certified within six months of permanent stabilization of the entire land area served by the facility. Land area served by the facility shall mean those areas served by the facility within the common plan of development and shall not include off-site facilities even if the off-site facilities are tributary to the facility.

c. For stormwater treatment facilities serving multiple development lots within a common plan of development, no certificate of occupancy shall be issued for any building or site unless a land disturbance permit has been issued authorizing construction of required facilities to serve the building or site.

4. When construction of a stormwater treatment facility is delayed beyond the limits as provided in this section, the City Engineer may utilize any or all of the following enforcement mechanisms to ensure timely construction of the facility:

a. Draw upon performance bond funds as necessary to construct the stormwater treatment facility. If the performance bond funds are not adequate to cover all costs associated with construction of said facility, the City Engineer may assess the property owners for any additional costs in accordance with this chapter.

b. Withhold issuance of building permits for properties proposed to be served by such stormwater treatment facility.

c. Withhold issuance of certificates of occupancy for permitted work that is proposed to be served by such stormwater treatment facility.

d. Issue stop work orders for permitted work for any or all property that is proposed to be served by such stormwater treatment facility. (Ord. 2603 § 1)

14.01.707 Construction inspections.

A. Inspections. Regular inspections of the stormwater management system construction shall be the responsibility of the developer’s engineer or other property owner’s representative who has been approved by the City Engineer and inspection results forwarded to the City. For certain types and locations of stormwater treatment facilities, the City Engineer may at her/his discretion require additional or parallel inspections by City staff. A final inspection by the City is required before the release of any performance bonds can occur.

B. As-Built Plans. All applicants are required to submit as-built plans for any constructed stormwater treatment facilities. The plan must show the locations and details of all stormwater treatment facilities and must be certified by the developer’s engineer. The City Engineer will determine required elements of the as-built plans.

C. Certification. Prior to refunding of performance bonds, the developer’s engineer, or other party approved by the City Engineer, must certify that the stormwater treatment facility is fully functional and has been installed in accordance with the approved plans. For developments not requiring a performance bond, the certification shall be made prior to issuance of a certificate of occupancy. (Ord. 2603 § 1)

14.01.708 Maintenance.

A. Required Maintenance Agreement. Prior to issuance of any permit that includes construction of a stormwater treatment facility, the applicant or property owner of the site shall provide a maintenance agreement for approval by the City Engineer. At a minimum, the maintenance agreement shall:

1. Identify the responsible party for maintaining all stormwater treatment facilities.

2. Include an attachment showing the locations of all stormwater treatment facilities.

3. Provide access easements reserved for the responsible party to access and maintain all stormwater treatment facilities, as well as right of access to the City as provided in other sections of this chapter.

4. Establish a maintenance plan, minimum frequency and levels of maintenance and inspections to be done. Identify and itemize anticipated annual maintenance expenditures that will be required during each of the first five years of operation after termination of the contractor maintenance period, so that the responsible party may better plan for future maintenance costs.

5. Identify resources available to provide maintenance.

6. Identify prohibited practices and homes and/or business association enforcement process for restoration.

7. Identify the City’s rights if the responsible party fails to or is unable to perform any of the obligations of the maintenance agreement.

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

9. 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 stormwater treatment facilities if the responsible party fails to or is unable to perform any of the obligations in the maintenance agreement.

B. Formation of Homes or Business Association. The property owner or developer shall form a homes or business association, or such other ongoing business, association or trust, as the responsible party for maintaining the stormwater treatment facility and responsible for implementation and enforcement of said maintenance agreement prior to the sale of any lots, and the homes or business association covenants shall include, or reference, the provisions of the approved maintenance agreement. The homes association or business association or such responsible party shall include covenants establishing provisions for collecting maintenance costs for stormwater treatment facilities.

C. Notice on Plat or Title. The final plat and homes or business association deed restrictions shall contain language approved by the City Engineer to provide notice of facility presence and maintenance obligations. Said deed restriction shall be recorded with the Johnson County, Kansas, Records and Tax Administration concurrent with or prior to recording of the final plat or approval of final plans. 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 and state law. The notice shall be in a form approved by the City Engineer and substantially as set forth below:

Notice: This site includes Stormwater Treatment Facilities, as defined and regulated in the Gardner Municipal Code. Restrictions on the use or alteration of the said Facilities may apply. This property is also subject to the obligations and requirements of the Stormwater Treatment Facility Maintenance Agreement approved by the City.

When the proposal involves a final plat, this notice shall appear on the plat, as recorded. When the proposals do not involve a final plat, the notice shall be in the form of a notice of presence recorded with the Johnson County, Kansas, Records and Tax Administration. The notice shall include the legal description of the property, the current property owner, the application date, and the notarized signature of the property owner or owners.

D. City Inspection of Stormwater Treatment Facilities. The City may perform routine inspections and random inspections. Inspections may include, but are not limited to, reviewing maintenance and repair records, sampling discharges, surface water, groundwater, and material or water in drainage control facilities, and evaluating the condition of drainage control facilities and other stormwater treatment practices. The City may also perform the following additional inspections:

1. Inspections based upon complaints or other notice of possible violations;

2. Inspection of drainage basins or areas identified as higher than typical sources of sediment or other contaminants or pollutants;

3. Inspections of businesses or industries of a type associated with higher than usual discharges of contaminants or pollutants or with discharges of a type which are more likely than the typical discharge to cause violations of state or federal water or sediment quality standards or the NPDES stormwater permit; and

4. Joint inspections with other agencies inspecting under environmental or safety laws.

E. Right of Entry for Inspection. When any stormwater treatment facility is installed on private property, or when any new connection is made between private property and a public storm sewer system, the property owner shall grant to the City, in a manner and form acceptable to the City Engineer, the right to enter the property at reasonable times and in a reasonable manner for the purpose of inspection. This includes the right to enter a property when the City Engineer has a reasonable basis to believe that a violation of this chapter is occurring or has occurred, and to enter when necessary for abatement of a public nuisance or correction of a violation of this chapter.

F. Records of Installation and Maintenance Activities. Parties responsible for the operation and maintenance of a stormwater treatment facility shall make records of the installation and of all maintenance and repairs and shall retain the records for at least five years. These records shall be made available to the City Engineer during inspection of the facility and at other reasonable times upon request.

G. Failure to Maintain Practices. If a property owner or responsible party fails to or refuses to meet the requirements of the maintenance agreement or to properly maintain a stormwater treatment facility, the City Engineer, after reasonable notice, may correct a violation of the standards or maintenance needs by performing all necessary work to place the stormwater treatment facility in proper working condition. If the stormwater treatment facility becomes a danger to public safety or public health, the City Engineer shall notify the party responsible for maintenance of the stormwater treatment facility in writing. Upon receipt of that notice, the responsible person shall have 30 days to effect maintenance and repair of the facility in an approved manner. In the event of an emergency, when the City Engineer determines that the facility poses an immediate danger to life or property, no notification period shall be required prior to beginning mitigation work. After proper notice, the City Engineer will enforce the maintenance provisions of this chapter with any or all of the following enforcement measures:

1. Notice of Violation. The City Engineer is authorized to serve a notice of violation or order on any person or entity responsible for maintaining the facility. Such notice shall order abatement of the violation by the responsible person or entity.

2. Lien on Property. The City Engineer may proceed to cause the necessary remedial work to be performed and shall report the costs of such remedial work to the City Clerk. The City Clerk shall follow the provisions of K.S.A. 12-1617e to collect the City’s cost, including mailing a statement of costs to the last-known address of the property owner, occupant or agent in charge of the property and if such costs are not paid to the City within 10 days of such notice, the Governing Body shall pass an ordinance levying a special assessment for such costs against the property on which the facility exists or abuts, and the City Clerk shall certify such assessment to the County Clerk for collection and payment to the City the same as other assessments and taxes are collected and paid. (Ord. 2603 § 1)

14.01.709 Enforcement and penalties.

A. Violations. Any person or entity violating any provision of this chapter is guilty of a public offense and shall be subject to penalties as provided in GMC 14.01.108. The City Engineer shall be permitted to cite the property owner, or any/all persons identified on the permit, as being legally responsible to the City for any violations of this chapter pertaining to that permit.

B. Restoration of Lands. Any violator may be required to restore land to its undisturbed condition. If restoration is not undertaken within a reasonable time after notice, the City Engineer may take necessary corrective action, of which the cost to the City shall become a lien upon the property until paid. (Ord. 2603 § 1)

14.01.710 Miscellaneous.

A. Compatibility with Other Permit and Title Requirements. This chapter is not intended to interfere with, abrogate, or annul any other ordinance, rule or regulation, statute, or other provision of law. The requirements of this chapter should be considered minimum requirements, and where any provision of this chapter imposes restrictions different from those imposed by any other ordinance, rule or regulation, or other provision of law, whichever provisions are more restrictive or impose higher protective standards for human health or the environment shall be considered to take precedence.

B. Authority. The City Engineer shall be responsible for the administration and enforcement of this chapter. The City Engineer shall have the authority to adopt regulations, policies and procedures as necessary for the enforcement of this chapter. (Ord. 2603 § 1)