CITY OF ROCKY RIVER
APRIL 28, 2008
Regular meeting of Council was called to order by Mr. Moran, President of Council, at 8:00 p.m. in the David J. Cook Council Chambers.
Council Members Present: Mr. Hunt, Mr. Mylen, Mr. Shepherd, Mr. Furry, Ms. Arabian, Mr. Long, Mr. Moran
Administration: Mayor Bobst, Mr. Linden, Mr. Thomas, Chief Flynn, Mrs. Whitman
Law Director: Mr. Bemer
Press: Mr. Saylor
The meeting was opened with the Pledge of Allegiance. Mr. Moran then turned to Mayor Bobst who expressed pleasure at being asked to administer the oath of office to a new captain and a new lieutenant in the Fire Division. These promotions occurred as a result of the retirement of Capt. Bob Rodgers in January. The Mayor introduced Sue Whitman who serves as secretary of the Civil Service Commission which oversaw the process. Chairman Chris Klym was unable to attend, but extended his congratulations to both fire fighters.
Fire Chief Flynn came forward and explained that ten people competed for these two positions in the Civil Service process which, for the first time, included an oral examination in addition to the customary written examination. All candidates did very well; the process was completed in March and the promotions were certified by the Civil Service Commission. He introduced George Kraus, currently a lieutenant, who was first hired on December 1, 1988 and promoted to lieutenant on November 17, 1994. Michael Abdelnour was hired on August 30, 1997 and was Chief Flynn's first hire.
The Mayor then administered the oath of office to both fire fighters, and Chief Flynn presented both with their new badges.
MOTION:
Moved by Mr. Moran, seconded by Ms. Arabian, that the reading of the minutes of the meeting of the Committee-of-the-Whole and the Executive Session of April 14 be waived, and that the minutes be accepted as submitted.
Vote: Hunt - aye Shepherd - aye Mylen - abstain Furry - aye
Arabian - aye Long - aye Moran - aye
6 ayes 0 nays 1 abstention PASSED
Moved by Mr. Moran, seconded by Mr. Furry, that the reading of the minutes of the meeting of the Committee-of-the-Whole of April 21 be waived, and that the minutes be accepted as submitted.
Vote: Hunt - aye Shepherd - aye Mylen - aye Furry - aye
Arabian - aye Long - aye Moran - aye
7 ayes 0 nays PASSED
MAYOR'S REPORT:
There was an overwhelming response to Saturday's shredding event to the extent that it had to be closed at 10:30 a.m. To accommodate those who were unable to have their material shredded, another date has been set for Saturday, May 17 from 8:30 until 10:30 a.m. The Mayor attributed the increased resident response to the fact that this event was well promoted, there was increased awareness by residents, and the scheduling followed tax time. The new date will be on the website and an e-update will be sent.
Letters have been sent to residents on Gasser Blvd. regarding the water line replacement project. Both the City and Utilicon, the contractor who will reline the pipe, included contact information. The Mayor noted that the City has worked with this firm before and been very satisfied with their work on Lakeview and Westover.
The Senior Center, through the Senior Council and the Beach Cliff Women's Club, held a "Strike it Rich" fundraiser. As a result, $3700 was raised to be divided among Meals on Wheels, the Rocky River paramedics and senior transportation.
The Mayor thanked members of City Council who met this evening at 6:30 p.m. to discuss Storm Water Management. Legislation formalizing this program will be presented over the next few weeks. She noted that the consultant, Mr. Koncelik, discussed the six minimum control measures which must be addressed by the City. The Mayor pointed out that ordinances were passed recently for a strategic partnership between the City and the Cuyahoga Soil and Water Conservation District: one ordinance was for minimum control measures 1 and 2 (Public Information, Public Education); the other for measures 4 and 5, (working with developers on site to provide storm water runoff protocols, etc.). The City is already on its way to address some measures, and she thanked Council once more for its interest at the 6:30 meeting.
On Friday, the birthdays of those 90+ in the community will be celebrated at the Senior Center. More than 150 honorees have already responded and will be in attendance. In all, there are 270-280 members of the community in this age group. As always, it promises to be a fun event.
Bradstreet's Landing, the fishing pier, will open on Wednesday.
Sweet Melissa's, a restaurant on Detroit Road in the former location of Max's Deli, opened today.
There was a bid opening for a project at the WWTP on Friday. The Engineer's Estimate for those capital improvements totaled $2.8 million, so the Mayor was happy to report that the bids ranged from $2.4 million to $2.9 million. The low bidder was Kokosing Construction, which is currently the contractor on site addressing other capital projects which have been implemented. The bid is currently being reviewed, and the legislation will be forwarded to Council shortly. The Mayor pointed out that this project again shows the success of the City's Ohio Public Works grant program: 45% of the cost will be met by an OPW grant; 30% from a zero interest loan and approximately 25% from local funds.
The Mayor thanked the Adventure Princesses. This ambitious and hardworking group, together with their families, did a wonderful job cleaning up the beach at Rocky River Park, stacking wood and improving the appearance of the park.
LAW DIRECTOR'S REPORT:
Mr. Bemer reported that, as indicated by the Mayor, a very informative public meeting was held earlier this evening concerning storm water management legislation and the potential green infrastructure/riparian setback proposal. In this combination of proposed legislation, many participated including Safety-Service Director Linden and his Coordinator, Mary Kay Costello, Building Commissioner Kevin Beirne, City Engineers Mike Mackay and Kim Kerber as well as Joseph Koncelik, the consultant who participated in drafting the some of the documents presented this evening. Mr. Bemer said that the City was fortunate to find Mr. Koncelik who has a great deal of expertise in this area. This is a creative and unique proposed legislation which will have significant impact on development within the City. The Law Director encouraged Council to make further directives to place this proposed legislation in ordinance form so that it can be further discussed.
The Charter Review Commission continues to meet every Thursday (except this coming week). They have already reviewed the entire Charter and identified 23 issues for further deliberations to determine whether they will be presented to Council for placement on November's ballot. At this point, the Commission is half way through this process and they will meet next on May 8 for further deliberations. It is anticipated that the process will conclude by the end of May.
A Civil Service Seminar will be held at the Don Umerley Civic Center through the efforts of Mrs. Whitman, Human Resources Director and secretary to the Civil Service Commission. She made contact with Jonathan Downs, a regular speaker at a seminar regularly attended by Ms. Whitman. Approximately 70 persons will be in attendance from all over northeastern Ohio to learn about new Civil Service provisions, both for classified and unclassified employees, ranging from hiring practices to layoffs and terminations.
Discussion: Mr. Moran commented on the expertise of storm water consultant Joseph Koncelik. He also expressed appreciation to the members of the Charter Review Commission for volunteering to give of their time and diligence.
COMMITTEE REPORTS: NONE
COMMUNICATIONS AND ANNOUNCEMENTS:
Mr. Moran mentioned that May 1 will mark the 57th National Day of Prayer. A service for all public civic leaders will be held in Westlake. The featured speaker will be Phil Savage of the Cleveland Browns, and Mayor Clough of Westlake will also speak on the importance of prayer.
AUDIENCE PARTICIPATION:
Phil Ardussi, 36 Pond Dr., mentioned that he is on the Senior Council Advisory Board, a volunteer computer instructor at the Senior Center and President of the Rocky River Historical Society. He said that he is appearing on behalf of a talented and dedicated Board of Directors who wished to pass along their thanks to Council members for their service.
Speaking about Ordinances No. 44-08 and 45-08, he said that he supported the acquisition of the property. He also introduced historian Dr. Dan Marsalek, praising him for the work he has done in researching and writing about Rocky River.
Mr. Ardussi then suggested the following uses for the newly acquired property:
Mr. Ardussi pointed out that these ideas are not mutually exclusive because the plot is large enough to accommodate several uses. Measured from the sidewalk to the back of the property, it is longer than two football fields.
Rodger Watjen, 2885 Pease Drive., asked about Ordinance No. 51-08, having heard that a right turn on red will be prohibited at Pease and Center Ridge Road. The Mayor responded that there is no signage there now and none is proposed at that intersection. Mr. Watjen was pleased, as he said that with a prohibition, turning on to Center Ridge would be very difficult. The Mayor said that the City was made aware that there was concern that signage would be placed. Visiting the site with Lt. Hudec, she found no sign in place, and indicated there are no plans prohibit the turn on red.
Louise M. Vatal, 2885 Pease Drive, #207, said that she has lived at the Heritage House for more than 30 years. She wished to express her appreciation to the City Administration and Council for what was done for the residents following the fire in 2006, 2007 and continuing into 2008, saying that it was "unbelievable". Laws were changed so that there are sprinklers in every bedroom, and smoke detectors in bedrooms and living rooms. Firemen have been there constantly making certain a good job was done. She especially thanked Council President Moran who came the day after the fire and repeatedly in the days and months following, as well as the Mayor who attended meetings and gave residents so much support. The Mayor commented that it was good to have those residents back in the community.
Rose White, 1871 Wagar Road, asked about the acquisition of property and the steps which will follow. She said she was concerned that Wagar is becoming less residential. She acknowledged that no use is planned at present, but she wanted assurance that the public will be notified before any changes are made to the property. The Mayor said that the purpose in the property acquisition is to have an opportunity to control contiguous land. At present, there is no defined or immediate purpose. In the near term, the Mayor has talked about community gardens which joins the efforts of the Senior Center and the Ohio State Extension Office. When decisions are made-which could be five years or ten years-there would be a substantial community process. Asked if the house will remain, the Mayor said that it would be razed when the acquisition is finalized.
Leo M. Spellacy, 925 Euclid Avenue, Suite 1700, Cleveland 44115, is an attorney representing AT&T speaking on Ordinance No. 36-08 which creates a Code chapter concerning the right of way. He thanked the Law Director for meeting with them and working through issues outlined in their written comments. However, they still have concerns regarding the ordinance as currently drafted and would like the opportunity to continue to work with Mr. Bemer on revisions before the ordinance is passed. Mayor Bobst pointed out that the current version has been referred to the Planning Commission and has been recommended by them. If changes were to be made, it would be returned to the Planning Commission.
Among his concerns:
The permitting process, which means construction, usually requires approval by the Planning Commission. This ordinance has Planning Commission for registration, but the permit process is unclear.
The approval process is not clear: is it done annually, or when building in the City.
Mr. Spellacy said that his purpose is not to delay the ordinance, and he would like to see it pass as soon as possible so that AT&T can upgrade its network in Rocky River. He will be available for meetings to review the changes.
ORDINANCE NO. 36-08 BY JOHN B. SHEPHERD
AN ORDINANCE TO AMEND PART NINE OF THE CODIFIED ORDINANCES OF THE CITY OF ROCKY RIVER, OHIO TO INCLUDE A NEW CHAPTER 913 TITLED RIGHTS OF WAY ADMINISTRATION
2ND READING
Mr. Shepherd explained that a revised draft of this ordinance was referred to the Planning Commission. The minutes will not be approved until May 20, which will mean its return to the agenda on May 27. Based upon what has been heard this evening, Mr. Shepherd asked the Law Director if revisions will be made.
ORDINANCE NO. 44-08 BY THOMAS J. HUNT
AN EMERGENCY ORDINANCE AUTHORIZING THE MAYOR OF THE CITY OF ROCKY RIVER TO ENTER INTO A CONTRACT FOR THE PURCHASE OF VACANT REAL PROPERTY LOCATED ON WAGAR ROAD IN THE CITY OF ROCKY RIVER, OHIO, FOR THE SUM OF FIVE HUNDRED TWENTY-FIVE THOUSAND DOLLARS, AND AS FURTHER DESCRIBED IN THE ATTACHED EXHIBIT "A"
3RD READING
Moved by Mr. Hunt, seconded by Mr. Long, that Ordinance No. 44-08 be passed as read:
Discussion: Mr. Hunt indicated that this is the third reading of this ordinance with opportunity for public feedback regarding purchase of this property and the property in the following ordinance. He reiterated that there is no present need or plan to utilize this property for expansion, but it is a unique opportunity to purchase this property contiguous and adjacent to the City Hall campus andt it provides future possibilities. Since this has been discussed at length, he feels the time for a vote is at hand.
Mr. Moran commented that he has heard from residents, and the message he has received is that residents are pleased that the City has the opportunity to do this. This is a great acquisition, and the owners will be proud that their property will become a part of the City's assets.
Mr. Hunt reiterated that this is the "back land". The next ordinance covers the property which fronts on Wagar Road.
Vote: Hunt - aye Shepherd - aye Mylen - aye Furry - aye
Arabian - aye Long - aye Moran - aye
7 ayes 0 nays PASSED
ORDINANCE NO. 45-08 BY THOMAS J. HUNT
AN EMERGENCY ORDINANCE AUTHORIZING THE MAYOR OF THE CITY OF ROCKY RIVER TO ENTER INTO A CONTRACT FOR THE PURCHASE OF CERTAIN REAL PROPERTY, LOCATED ON WAGAR ROAD IN THE CITY OF ROCKY RIVER, OHIO, FOR THE SUM OF ONE HUNDRED TWENTY-FIVE THOUSAND DOLLARS, AND AS FURTHER DESCRIBED IN THE ATTACHED EXHIBIT "A"
3RD READING
Moved by Mr. Hunt, seconded by Mr. Furry, that Ordinance No. 45-08 be passed as read:
Discussion: Mr. Hunt mentioned that this is a companion ordinance to the one preceding, just passed. This will allow the Mayor to finalize the purchase of the property on Wagar Road. This also will be a tremendous asset to the City.
Vote: Hunt - aye Shepherd - aye Mylen - aye Furry - aye
Arabian - aye Long - aye Moran - aye
7 ayes 0 nays PASSED
ORDINANCE NO. 51-08 BY JOHN B. SHEPHERD
AN ORDINANCE AMENDING APPENDIX A OF SECTION 313.03(c)(5) OF THE CODIFIED ORDINANCES OF THE CITY OF ROCKY RIVER REGARDING PROHIBITED RIGHT TURN ON RED
2ND READING
Mr. Shepherd explained that this ordinance modifies the list of intersections where right turns on red are prohibited, adding three new ones and removing four currently on the list. It also changes the hours for prohibited turns on school days to specific morning and afternoon hours, from 7:00 to 9:00 a.m. and 2:00 to 4:00 p.m. Mr. Shepherd asked the Mayor if she has heard from the Board of Education. She said that she has not. However, the Police Chief has reviewed the ordinance and there is one modification that he would like Council to consider. Therefore, a new exhibit is being forwarded. Mr. Shepherd indicated that the new exhibit will be discussed at the next meeting of the Committee-of-the-Whole.
ORDINANCE NO. 53-08 BY JAMES W. MORAN
AN EMERGENCY ORDINANCE TO MAKE SUPPLEMENTAL APPROPRIATIONS FOR THE CURRENT EXPENSES OF THE CITY OF ROCKY RIVER, OHIO, DURING THE FISCAL YEAR ENDING DECEMBER 31, 2008 AND TO AMEND ORDINANCE NO. 123-07
2ND READING
Moved by Mr. Moran, seconded by Mr. Shepherd and Mr. Long, that the rule requiring that Ordinance No. 53-08 be read on three separate days be suspended, and that Ordinance No. 53-08 be placed upon its passage:
Discussion: Mr. Moran commented that now that Ordinances 44-08 and 45-08 have been passed, there is an important reason to transfer funds so that those purchases can be carried out. There are also other general housekeeping items included in this ordinance which have been explained by Mr. Thomas.
Vote: Hunt - aye Shepherd - aye Mylen - aye Furry - aye
Arabian - aye Long - aye Moran - aye
7 ayes 0 nays PASSED
Moved by Mr. Moran, seconded by Mr. Long, that Ordinance No. 53-08 be passed as read:
Discussion: Mr. Moran commented that in order to complete the transactions passed earlier this evening, this ordinance must be passed.
Vote: Hunt - aye Shepherd - aye Mylen - aye Furry - aye
Arabian - aye Long - aye Moran - aye
7 ayes 0 nays PASSED
ORDINANCE NO. 56-08 BY THOMAS J. HUNT
AN EMERGENCY ORDINANCE ESTABLISHING A VIDEO SERVICE PROVIDER FEE TO BE PAID BY COX COMMUNICATIONS UPON OFFERING VIDEO SERVICE IN THE CITY, AND CERTIFYING THE MAYOR'S NOTICE TO COX COMMUNICATIONS OF THE VIDEO SERVICE PROVIDER FEE
1ST READING
Moved by Mr. Hunt, seconded by Mr. Long, that the rule requiring that Ordinance No. 56-08 be
read on three separate days be suspended, and that Ordinance No. 56-08 be placed upon its passage:
Discussion: Mr. Hunt explained that on April 16, a communication was received by Cox notifying the City that in accordance with the new law in September, 2007, it intends to seek a statewide franchise. Attached to the ordinance is the Mayor's reply notifying them of the VSP (video service provider) fee which is consistent with the current fee as well as that which will be paid by AT&T when they offer video service. Since the letter has been sent, it needs to be certified so this ordinance should be passed.
Vote: Hunt - aye Shepherd - aye Mylen - aye Furry - aye
Arabian - aye Long - aye Moran - aye
7 ayes 0 nays PASSED
Moved by Mr. Hunt, seconded by Mr. Shepherd and Mr. Furry, that Ordinance No. 56-08 be passed as read:
Discussion: The VSP fee established by passage of this ordinance would be 3%. AT&T has already provided the City with a notice of intent. Passage of this ordinance would allow the City to collect franchise fees provided by Cox.
Vote: Hunt - aye Shepherd - aye Mylen - aye Furry - aye
Arabian - aye Long - aye Moran - aye
7 ayes 0 nays PASSED
MISCELLANEOUS BUSINESS: NONE
AUDIENCE PARTICIPATION:
Kevin Connors,200061 Bonnie Bank, commented on both AT&T and the Quiet Zone. He noted that both of these issues show the City's diligence and perseverance. The boxes on Bonnie Bank are still ugly with no landscaping. The persistence of the City is very much in the interests of the residents. While he appreciates his phone and internet service from AT&T, he feels that both must work together.
On the Quiet Zone, he also thinks it important to note that no funds have been allocated for the pursuit of the Quiet Zone except for the initial application fee, which was waived. It shows that the City is being responsible. As he feels in his relationship with his son, safety first is the City's motto with its residents.
Brian Ruic, 20358 Westover, congratulated Capt. Kraus and Lt. Abdelnour on their appointments. He also congratulated Capt. Rogers on his retirement and commented that he has always appreciated the level of service he has received.
Mr. Ruic also asked about Rockport Shopping Center, having been unable to obtain information from the owners, Wald Fisher, beyond what is listed on the website.
As there was no further business by members of Council, the meeting was adjourned at 9:10 p.m.
_____________________________ _______________________________
James W. Moran Misao Kurokawa
President of Council Clerk of Council
CITY OF ROCKY RIVER
APRIL 28, 2008
STORM WATER MANAGEMENT
The Public Meeting to discuss Storm Water Management was opened by Mr. Moran, President of Council, at 6:30 p.m.
Council Members present: Mr. Hunt, Mr. Shepherd, Mr. Mylen, Mr. Furry, Ms. Arabian
Mr. Long, Mr. Moran
Administration: Mayor Bobst, Mr. Linden, Mr. Thomas, Mrs. Costello, Mr. Mackay,
Chief Flynn, Mr. Gottschalk
Consultants: Mr. Koncelik, Esq., Ms. Kerber, P.E.
Law Director: Mr. Bemer
Mr. Moran opened the meeting, called to discuss proposed storm water management legislation by turning to Kim Kerber, an engineer with Mackay Engineering, to discuss the proposed Chapter 1311.
Ms. Kerber indicated that she would first discuss the portion of the proposed legislation which deals with construction site soil erosion, sediment, storm water quantity management, post-construction water quality runoff.
She explained that Chapter 1311 is needed because Phase II of the federally mandated storm water program required the Ohio EPA to begin a permitting process for cities the size of Rocky River which operate small Municipal Separate Storm Sewer Systems (MS4s). This process requires cities to establish programs to reduce pollution in streams, rivers and lakes. The proposed Chapter 1311 will regulate construction sites and is one of the City's programs which will meet the MS4 permitting process. This chapter is based on model ordinances developed by NOACA and other public agencies and which have been adopted by most northeast Ohio communities.
Ms. Kerber then explained what is covered by Chapter 1311: it defines the standards that must be met during construction to minimize soil erosion that will minimize the amount of sediment which is deposited in streams, rivers and lakes, to control the volume and rate at which storm water runs off the site, and to control the level of pollution in the storm water.
The three general topics covered by this chapter are:
Ms. Kerber then dealt with the applications of Chapter 1311. She noted that it applies differently, depending upon the size and use of the site.
Using a chart, (Exhibit "A") she showed that:
Finally, Ms. Kerber addressed the ordinance to prevent illicit discharge. This is water that is not comprised entirely of storm water. Provisions of the illicit discharge ordinance are based on recommendations of the Cuyahoga County Board of Health, and would apply to the entire city.
Discussion and Questions:
What other municipalities have passed this legislation?
Fairview Park, Middleburg Hts, North Olmsted, Parma, and others. Those that have not passed it are in the process of doing so.
Section 1311.02 contains regulations for coal surface mining operations and those that deal with farming-are those needed?
Some of those are regulated under other sections of the Ohio Code. Mr. Koncelik indicated that they can be removed if not applicable, but there is no harm in including them.
Mr. Long added that in Chapter 1311.13 Best Management Practices are defined, but not in 1311.11, suggesting that it be included.
How do the thresholds of one acre and 7500 s.f. compare to ordinances of other cities or the NOACA model?
The one acre is the Ohio EPA requirement. As to 7500 s.f., Fairview Park has 5000 s.f., North Olmsted is 8000 s.f., Parma is 8000 s.f. The standard was chosen for Rocky River because of the capacity and condition of the sewers and the goal to reduce storm water flow into the sewers as much as possible.
Is there a date when this must be implemented?
It is based on when the first application for a permit was submitted. For Rocky River, it is this May.
With an acre approximately 100 x 400 ft. or approximately, 40,000 s.f., what is defined as disturbance?
Only the specific area being worked. In the case of a parking lot, for example, only the area actually being worked on would count toward the threshold. Any part of the parcel which is not being changed would not count.
Regarding the permit, does that refer to the WWTP permit?
No. The City has an MS4 permit from the EPA to operate the storm system.
The second part of the meeting was conducted by Joseph Koncelik, an environmental attorney with Frantz Ward, LLP. Mr. Koncelik was formerly the director of the Ohio EPA and its chief legal counsel, so he said that he was familiar with these types of ordinances.
Reasons for Controlling Storm Water
With the assistance of a Power Point presentation, Mr. Koncelik explained that the idea of storm water control is to deal with runoff, which goes into the city's storm sewer and then to Lake Erie. It is important to prevent contaminants such as fertilizers, chemicals, etc. from flowing into the lake. The other problem is that when new developments or parking lots are built, rain water is prevented from going into the ground. This is harmful because streams, rivers and Lake Erie are recharged by ground water. His illustration showed that with natural ground cover, there is a 10% runoff; with impervious surfaces, there is a 55% runoff and only 10% infiltration to recharge water sources.
He showed two slides of what happens in Lake Erie during a typical storm event. One showed typical sediment runoff which has a detrimental impact on wildlife and the health of the lake. Because Lake Erie is the shallowest of the Great Lakes, there is more impact than on the others. As runoff occurs from developed areas, it picks up fertilizer, oil and grease, unsanitary waste and other illicit discharges and washes it into the lake. The whole environmental purpose behind storm water regulations is to try to prevent as much of this type of runoff from entering the lake and to try to prevent sediment loading into streams.
Legal Requirements
When this impact was observed, a Clean Water Act was passed at the federal level that directed the EPA to control storm water discharges. The USEPA delegated this authority to the Ohio EPA which developed a permitting program that mandates that every municipality in the state must do a better job of controlling storm water and construction development that occurs within its jurisdictions. They created a general permit that applies to the entire state, so all municipalities and construction sites are held to the same standards. Because Rocky River has a storm water system and also development, it must get coverage under that general permit. Otherwise, it will have an illegal discharge, and be subject to enforcement by the USEPA or the Ohio EPA.
Smaller communities, under 100,000 population, were required to obtain initial permit coverage in 2003. At that time, Rocky River developed a Storm Water Management Plan which it submitted to the Ohio EPA. As part of that plan, the City was required to implement six minimum control measures:
The City was given five years to implement the overall focus, so action is necessary to meet the deadline of spring, 2008.
Ordinance Development
In 2003, the Ohio EPA did not develop a model ordinance which all municipalities could adopt. Instead, gatherings of environmental groups or government agencies met and developed models. In the case of northeastern Ohio, NOACA put together a task force of municipal members, the Northeast Ohio Regional Sewer District, and environmental members and developed a series of model ordinances. The Chagrin River Watershed Partnership also put together its own version. These model ordinances were endorsed by the Ohio EPA who said that they fulfilled the six minimum control measures, and many municipalities adopted them with only minor changes. The ordinances presented by Ms. Kerber, e.g. illicit discharge ordinance, the soil erosion and sediment control and post construction ordinances, were based on these models.
In northeast Ohio, Cuyahoga Soil & Water and environmental groups have encouraged communities to adopt these ordinances. Among municipalities that have adopted ordinances are Bay Village, Bratenahl, Broadview Hts, Brunswick, Independence, North Olmsted, North Royalton, Parma, Middleburg Hts, Strongsville, and many others throughout the state.
Reviewing the list of minimum control measures, Mr. Koncelik indicated that illicit discharge is controlled by the illicit discharge ordinance. Soil erosion and sediment from new construction is fulfilled by passing the soil erosion sediment control. Post construction after new residential development or commercial development is also addressed.
Riparian and Wetland Setback Ordinance
This ordinance is not a mandate of the Ohio EPA. The expectation is that, as part of the six minimum controls, action will be taken post construction to control storm water runoff. The post construction ordinance controls a good part of it, but the EPA does like to see other provisions in place within a municipality to control storm water. One of those options is a setback, but it is not the only option.
To define a setback ordinance, he said it is an ordinance which prohibits building within a specified number of feet of a stream, river, lake or pond. No new development can take place within that area. This has a great impact on development which is now pushed farther away from water to preserve the natural habitat by streams for wildlife. The controversy arises when a city is tells residents they cannot build on their property. These setbacks are applied to any development, such as a patio, as opposed to the typical ordinances already discussed which do not affect properties under one acre.
A typical setback ordinance applies to all development near a stream, lake or wetland, even smaller than one acre. Within the setback, nothing can be built. If there is an existing structure, it may be maintained, but nothing can be added without a variance. The setback distances range from 25 ft to 300 ft, depending on the drainage area of the stream or river. Larger drainage areas (from larger rivers), need larger riparian areas, and greater setbacks (150' to 300') for the environmental benefit.
Very limited uses are allowed within the setback: dead vegetation may be removed, lawns and gardens may be maintained, but a new garden would require a variance.
Green Infrastructure Ordinance
As the City looked at the impact of a setback ordinance on residents, knowing that the Ohio EPA will eventually ask municipalities to take steps over and above the standard construction ordinance, Mr. Koncelik was asked, as part of his work for the City, to explore other options. The option he developed is a proposal for a green infrastructure ordinance. This has not been used in northeast Ohio as an alternative, but it is viable and endorsed by the USEPA. Currently the City of Cincinnati is evaluating it as a comprehensive tool to deal with their WWTP issues.
To explain green infrastructure, Mr. Koncelik compared it with standard practice in a typical construction project to build a store with a parking lot on a one-acre lot. The typical method of handling storm water is to route it to a large retention pond where it collects and is slowly drained out over time. The post-construction ordinance under consideration would require that approach. In this approach, rainwater does not soak into the ground and there is still a 55% runoff into a retention pond instead of recharging the streams by percolating through the ground water or being brought up by plants.
In green infrastructure, controls are modified to allow those actions to occur. Mr. Koncelik showed an example, in which a vegetated strip was created with soil and rocks placed underneath. Rain water is directed to this area to soak down into the ground or be brought up by the plants. The benefits are more groundwater infiltration, which is good for the environment, and less storm water runoff from the site. This would benefit Rocky River because it has a treatment plant and storm water in either the storm or sanitary system could result in capacity issues with the WWTP. This would help control those issues.
Applicability of Green Infrastructure:
Standards under the Green Infrastructure Ordinance:
Mr. Koncelik pointed out that some neighboring communities will pass riparian setback ordinances. If Rocky River does not pass any measure, it could be inviting attention from environmental groups.
Discussions and Questions
Has any community implemented green infrastructure?
In Ohio, no. But across the country, Chicago has passed a city-wide green infrastructure ordinance. Portland also has such an ordinance and New Jersey has a statewide ordinance. The USEPA just signed a national document to encourage communities to use this method of controlling storm water.
For a community as built out as Rocky River with a minimum of large surface disruption projects, will this really have an impact on the runoff and quality of water?
For any new development, it will have a significant impact. Also there is an option for those living in the City to use rain barrels at homes instead of allowing water from gutters to go down the storm sewers. With barrels, the rain is captured and re-used. The City of Milwaukee just bought 500,000 rain barrels and distributed them as a way of removing water from the sewer system. The current construction code would prohibit their use. This ordinance would allow it to be collected. Mr. Koncelik noted that these are special covered barrels with spigots which would allow the water to be tapped for watering lawns and gardens.
Why is the standard ½" of rain?
That standard was taken from the City of Chicago as a reasonable amount of green infrastructure that could be required. Eighty-five percent of all rainfalls in the state are ½" or less.
Have Cleveland or Lorain adopted a setback ordinance?
Both of those are larger municipalities and do not fall under this program. They have their own separate requirements which are mandatory with the Ohio EPA. For comparison, communities of 100,000 population or less must be used. Mr. Koncelik said that he does not believe that either city has addressed the setback situation. Columbus has a setback ordinance, however.
The riparian setback is not mandated. Did you say that you feel that the Ohio EPA will eventually implement a higher standard?
Mr. Koncelik was indicated that he was told by the Ohio EPA management for the storm water program that this spring the focus will be on cities which do not pass illicit discharge, post construction and soil erosion ordinances. However, after this initial priority, they will want to see "something" over and above the standard post construction to control storm water. That could be a green infrastructure ordinance, or a setback ordinance. There could even be other options.
Standards in ordinances vary greatly from high water mark, low water mark or the 100-year flood plain.
Mr. Koncelik has seen ordinances crafted based upon the 100-year flood plain, 25' to 125' or the 100-year flood plain, whichever is greater. He has also seen 25' to 125' from the high water mark. If the City should decide on the setback plan, he has asked the Ohio EPA if there is a minimum. The response was that it should be in the 25' to 50' range, although Standards could be changed in the future. Some believe that it is not sensible to allow building on a 100-year flood plain because their development could be washed out and it would also impact those who are downstream.
Do you know how Columbus handles the setback ordinance?
They have gone through several versions. Earlier, they tried an engineering mathematical formula to calculate the setback. Now they generally go with a 25' to 50' setback for new development in the Olentangy River watershed.
What is the down side to waiting to see how other cities' ordinances turn out?
The only downside is added environmental harm caused by doing nothing or being singled out as a community which took fewer steps than other communities. In his experience, northeast Ohio has the most vigorous intensive environmental and community groups of anywhere in the state. They are fixated on the setback issue. From a legal enforcement standpoint, the Ohio EPA has said there will be no enforcement action at this time.
If an ordinance is passed and variances are granted, how would that be regarded and evaluated?
The Ohio EPA will audit the storm water program. It would be likely that, at some point during the audit they would look at the storm water management plan and look at the variances granted during that time period and evaluate whether the variance was granted for less than the hardship standard.
Rocky River does not have a great deal of new property, but in existing locations if the home should be razed, would it be grandfathered and a new structure substituted, or would a variance be required?
A portion of a home could be in a setback, but it would be unlikely to have an entire home in that category. For the portion that is included, there is a carveout in the setback ordinance for existing structures. There is even an allowance in most ordinances he has seen for a small expansion to the existing footprint, so the structure could be rebuilt and slightly enlarged.
How does the proposed setback ordinance vary from the NOACA model?
Regarding the size of the wetland setback, Rocky River has followed the NOACA model which is 75' to 125' for wetlands, which is the standard model ordinance number, and the 25' to 300' is very close to the NOACA model.
Then the 120' would apply to the Yacht Club Basin? How low could we go?
Mr. Koncelik said he felt a defensible argument could be made for 50'. The homes and properties in the Yacht Club Basin will feel the most effect from the setback ordinance. It all depends upon the size, and what provisions are included.
What about the properties close to Lake Erie? Can we make some consideration for those properties?
The standard NOACA ordinance would apply to properties abutting Lake Erie. It also allows the City to implement measures within a setback for erosion purposes. That is a permitted use, even in a setback. If Lake Erie properties are carved out of an ordinance, there is a danger of raising issues of whether a setback ordinance is truly being implemented or whether the majority of areas affected are all excluded. If the Yacht Club Basin and Lake Erie were carved out of a setback ordinance, Mr. Koncelik felt that the Ohio EPA would give little value to the ordinance.
Does the model provide for mitigation by variance?
No, the NOACA model does not provide much flexibility. However, the ordinance worked out for Middleburg Hts, for instance, has a great deal of flexibility as far as being able to do mitigation, including varying the size of the setback with a demonstration of the same environmental benefits. That is an option which may be included in the ordinance.
Is there a possibility of mitigation with green infrastructure as well?
Comparing setbacks with green infrastructure is like comparing apples to oranges because green infrastructure applies to the entire city, not just properties adjacent to riparian areas, and is only in effect for new development. The setback applies only to properties adjacent to waters, but impacts even the smallest development and the ability to build into the setback area. Both are valid ways of going above and beyond a standard post construction storm water ordinance, and would be favorably considered by the Ohio EPA.
What about the cost of green infrastructure?
That would be very site specific. However, studies have shown that requiring green infrastructure has led to less expensive compliance with storm water requirements, because, for example, the retention pond can be smaller because it will need to hold less water. The difficulty is that, particularly in Ohio where developers are not familiar with the procedure, education is an issue so that everyone understands the requirements. But it has been done in many other jurisdictions.
Would you address clay composition and whether that would be a factor in whether green infrastructure would be effective?
A site specific study could be done to see if any specific project is suitable. A grass swale or infiltration swale may not be the best choice with clay soil. There are other options; for example in Portland, one of the most common is to build a planter next to developments and direct the storm water to them and soak up a great deal of water. Green infrastructure legislation is crafted to give a great deal of discretion to the city so that if a study shows that a developer has done as much as possible with clay soil or other constraints, then the city can modify the ½" standard.
Along the Lake, properties may be high and the cliffs may be steep. Do measurements include the vertical component in computing the setback or only horizontal.
No, only horizontal. In fact, for steep cliffs, many ordinances build in a longer setback.
Can docks be repaired or added?
Yes, certainly existing docks can be repaired. Any existing structure within a setback can be repaired. Building a new structure in the setback area will require a variance. Even with a dock which goes into the river, if a portion must be built within the setback, a variance is required. New docks can be added as long as no part of them is in the setback area.
Green roofs are a new concept for many. What does that mean and how can it be implemented?
This is one option of a green infrastructure control. When a developer is looking at a site, he can use rain barrels, vegetated filler strip, the planters or green roofs. It is difficult to find many in Ohio, although the new Ohio EPA building in downtown Columbus has a green roof. Elsewhere, for example in Chicago, it is becoming a very popular option. For a green roof, a layer of soil is placed on top of the roof and plants are added. When the rain falls on the roof, it is soaked up by the soil and vegetation instead of going into the gutter and flowing through the storm water system. If the City chose the green infrastructure option, this would be one viable method of complying with the ordinance.
As there were no further public comments or questions or comments from members of Council, the hearing was adjourned at 7:40 p.m.
______________________________ ______________________________
James W. Moran Misao Kurokawa
President of Council Clerk of Council