5. Use Regulations
Permitted Uses
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Purpose:
- To identify the types of uses and activities allowed by right.
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Notes:
- The only uses permitted by right in wellfield areas are those that are
directly related to the operation of the wellfields. However, in some
cases, single-family and passive recreational uses are allowed by
right. In an overlay-type district, permitted uses are those that are
allowed by right in the underlying zoning district.
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Municipal water supply and treatment facilities in accordance with the City
of Dayton Master Plan for Water Supply and Treatment.
[City of Dayton, Ohio, Zoning Ordinance, Section 150.601(A), 1988]
The permitted uses, bulk and yard regulations within the WP Well Field
Protection Overlay District shall be those of the underlying zoning
district.
[City of Dayton, Ohio, Zoning Ordinance, Section 150.611, 1988]
Prohibited Uses
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Purpose:
- To identify prohibited uses and activities. Such prohibited
uses and activities remain prohibited in an overlay district even if they
are allowed by right in the underlying zoning district.
-
Notes:
- The primary reason that a use should be prohibited is tied to the threat
of contamination of groundwater by that use. Note that the criteria
for prohibition should be based on the association of known
contaminants with uses. Traditionally, State wellhead
protection programs and local ordinances associated land-use
activities with contaminants, but the emphasis in the ordinance should
be on the contaminants and not the use or activity. If the threat of
contamination can be adequately mitigated, some uses may be allowed
through other zoning provisions, such as conditional use permits,
special exception processes, or a variance procedure. In the case of
an overlay district, uses prohibited in the underlying zone are also
prohibited in the overlay zone.
Contaminants can be grouped under the following major categories:
- Inorganic compounds (e.g., nitrogen and phosphorus nutrients, heavy
metals, sodium, and chloride)
- Viral or bacterial contaminants (e.g., pathogens)
- Organic compounds (e.g., petroleum- and hydrocarbon-based projects,
PCBs, pesticides, and other volatile and semi-volatile compounds,
such as benzene, napthalenes and phenols)
An important component of the specifications of the prohibited uses
must include flexibility for the implementing authority to determine, and
document when necessary, the right to modify this section as information on
contaminants or land-use activities that might pose a threat to groundwater
quality becomes available. In determining which contaminants are
subject to this ordinance, the implementing authority may obtain
appropriate lists and confer with State and federal environmental and health
agencies.
- Sanitary landfills, landfills composed of demolition debris, and
dry wells are prohibited uses in the "WP" Well Field Protection
District.
[City of Harrison, Ohio, Zoning Ordinance, Section 2707, 1989]
The following uses are prohibited in the Columbia South Shore Plan
District;
-
- (1) Manufacturing and production of hazardous materials, excluding
production for on-site usage only. These materials include:
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- a) Any hazardous substance or hazardous waste as listed in the
following federal regulations:
- Superfund Amendments and Reauthorization Act (SARA) of 1986
Section 302 Extremely Hazardous Substances List (40 C.F.R. 300
App. A and B);
- Comprehensive Environmental Response Compensation and Liability
Act superfund (CERCLA) of 1980. Hazardous Substances List
(40 C.F.R. 302, Table 203.4);
- SARA of 1986, Section 313, Toxic Chemicals List (40 C.F.R.
Section 372.45); and
- Resource Conservation and Recovery Act (RCRA) of 1976 and 1984
Amendments, Hazardous Wastes Lists (P and U Categories) (40
C.F.R. Section 261.33(e) and (f).
Note: The lists reverenced in Section B.1.a. are summarized in
the Title III List of Lists - Chemicals Subject to Reporting
Under Title III of the Superfund Amendments and Reauthorization
Action (SARA) of 1986, published July 1987, U.S. EPA.
b) Nuclear or radioactive materials or wastes.
(2) The following specific uses are prohibited:
-
- a) Bulk plans for hazardous materials as defined in Subsection
33.455.125.C. including petroleum refining.
b) Permanent storage or disposal of hazardous wastes (as defined under
the Federal Resource Conservation and Recovery Act, Subpart D, 40 CFR
261.30; 261.31; 261.32; 261.33), industrial or municipal sludge, or
radioactive materials, including solid waste landfills.
c) Collection and transfer facilities for hazardous wastes, solid wastes
that contain hazardous materials from off-site sources, and
radioactive materials;
d) Wood-preserving operations using
formulations of Chrome-Copper-Arsenate (CCC), pentachlorophenol
(PENTA), and creosote and related chemicals;
e) Battery recycling and reprocessing;
f) Retain gas stations and truck stops;
g) Agricultural application of halogenated volatile liquid organic
pesticides (e.g., ethylene dibromide (EDB) and
dibromochloropropane (DBCP), related chemicals and their
commercial formulations);
h) Processing, reprocessing, and storage (and disposal) of PCB
containing oils;
i) Manufacturing and production of paving, roofing, and other
construction materials, using asphaltic- and petroleum-based
coating and preserving materials; and
j) Primary and secondary metal industries that manufacture,
produce, smelt, or refine ferrous and non-ferrous metals.
[City of Portland, Oregon, Zoning Ordinance, Section 22.705.040.B,
1988]
It is a good idea to include language indicating that the use lists are not
exhaustive and that information pertaining to changing technology and
activities will require periodic evaluation of this list and the advice of
outside experts to assess risks associated with uses not included in the
ordinance.
-
- (3) Use List Not Exhaustive: The uses prohibited by this
district represent the State of present knowledge and most common
description of said uses. As other polluting uses are discovered, or
other terms of description become necessary, it is the intention to
add them to the list of uses prohibited by this district. To
screen for such other uses or terms for uses, no use shall be permitted
in this district without first submitting its building, site, and
operational plans for Planning Commission review and approval
under Section 17.05 of this ordinance.
(4) Changing Technology: The uses prohibited by this district are
prohibited based upon the combined pollution experience of many
individual uses, and the technology generally employed by that class of
uses, which technology causes the uses as a class to be groundwater
pollution risks. As the technology of identified use classes changes
to non-risk materials or methods, upon petition from such a use, and
after conferring with expert geological and other opinion, it is
the intention to delete from the prohibited list or allow
conditionally, uses which demonstrate convincingly that they
no longer pose a pollution hazard.
[Town of Weston, Wisconsin, Zoning Ordinance, Wellhead Protection
District, Section 17.11-14. 1993]
Conditional Uses and Special Uses
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Purpose:
- To set forth additional conditions and standards for some uses in the
wellhead protection zone.
-
Notes:
- Conditional and special uses require additional standards be provided in
the wellhead protection ordinance. In an overlay protection-type zoning
district, if a proposed use is deemed a conditional use in the underlying
zoning district, it must conform to both the provisions in the overlay
district and the provisions of the underlying zoning district. As the
conditional and special use applications are typically reviewed by
the Board of Zoning Appeals or a similar body independent of the
Planning Commission (e.g., any special body created to review applications
for uses in wellhead protection areas), the uses that will be
subjected to such additional review will have to be specifically
identified. Zoning ordinances often contain a separate chapter for the
submission and review requirements for conditional uses. But the specific
uses in wellhead protection zones that trigger review may also be included
here.
- The following standards shall be applicable to any conditional uses
permitted pursuant to the Article:
- The peak rate of stormwater runoff shall not exceed the
pre-development peak rate. Stormwater runoff volume shall not
exceed the pre-development volume for the duration of the
pre-development stormwater runoff hydrograph.
- The quantity and quality of groundwater recharge shall be
maintained at pre-development levels.
- In order to establish the pre-development standards required by
subparagraphs (1) and (2) above, a study shall be prepared under the
supervision of a Delaware registered professional geologist
or engineer trained and experienced in hydrogeology. The report of
the study shall be submitted to the New Castle County Departments of
Planning and Public Works, and the Water Resources Agency for New
Castle County.
- All development shall be maintained at a minimum sixty (60) day
horizontal time of travel from any public water supply well as
established by the on-site hydrogeologic study required by
subparagraph (3) above.
- To assure that the quality of groundwater recharge shall be
maintained, a groundwater monitoring program shall be
established as part of the report prepared pursuant to subparagraph
(3) above. The program shall establish the number of wells to be
installed, s well as the duration and frequency regarding the
monitoring of the wells to be installed. All laboratory test
results shall be submitted to New Castle County in order to assure
the County that satisfactory water quality is maintained.
[New Castle County, Delaware, Zoning Ordinance, Section 23-133 (a),
proposed]
Commercial and industrial uses are permitted when allowed in the
underlying zone subject to the procedures and restrictions in the
underlying zone and subject to the following additional limitations and restrictions:
- New commercial and industrial uses or changes I use or the
enlargement and alteration of commercial and
industrial uses existing as of the effective date of this ordinance
and permitted outright in the underlying zone are permitted
outright in the WPA when no chemicals or other products are
used, produced by, or commonly associated with the activity which,
in the event of introduction of a large quantity thereof into the
groundwater, might cause, materially contribute to, or create
a material risk of any adverse effect upon the city of Enterprise
municipal water source.
- A new commercial or industrial use or change in use not permitted
outright under subparagraph 1 above may be permitted by the Commission
after issuance of a special use permit, following public hearing,
upon a finding that the proposed use, considering the quantity and
character of the chemical or other product, the methods of use, and
the distance from the city of Enterprise municipal water source,
would not have an adverse effect upon the city of Enterprise
municipal water source in; the event of a major spill, improper
storage and ;handling, or improper disposal of said chemical or other
product. If said use is permitted outright in the underlying zone,
review by the Commission shall be limited to the determination of
whether the standard contained in this subparagraph is met.
Conditions may be imposed upon the permit by the Commission to insure
protection of the city of Enterprise municipal water source.
[Wallowa County, Oregon, Zoning Ordinance, Section 24.090.1,
1988]
Include the following utilities to the definition of special uses.
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(A) Public utility uses as follows:
- Electric and Telephone substations
- Gas Regulator and meter station buildings
- Police and fire stations that do not contain maintenance facilities)
- Electric transmission towers and structures (not related to oil
storage and disposal)
(B) Radio, Television, or other transmission towers or masts, and
the usual accessory buildings, only after their height and location
have been approved by the government agency charged with the
responsibility for maintaining air safety and provided there is a yard
area with a radius of half the height of the tower or mast.
[City of Dayton, Ohio, Zoning Ordinance, Section 150.602,
1988]
Sewage disposal systems are generally governed by a more stringent set of health
code regulations. However, allowing such systems as part of the utilities may be
subject to zoning provisions provided in the wellhead protection ordinance.
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I. the designed sewage flow is no greater than 450 gallons per five acres
per day, and
ii. the waste entering the on-site system is equivalent in quality to
typical residential waste.
[Thurston County, Washington, Resolution No. H3-90, Section 30(d),
1990]
Excavation, mineral extraction, borrow pits and other uses, when permitted under
conditional uses, impose conditions that include the following:
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The excavation, extraction, mining or processing of sand, gravel and limestone
from the earth for resale shall remain as conditional uses in the WP Well Field
Protection Overlay District subject to BZA approval of an excavation and
facilities plan that includes, but is not limited to:
-
(1) an existing site plan with topographic detail at two-foot
contour intervals, all planimetric information, depth to groundwater
and floodplain characteristics, where applicable
(2) the proposed extent and depth of excavations
(3) slope angle of excavation walls (any final slopes shall be at the
angle of repose for the remaining material)
(4) use and disposition of the spoil and/or overburden materials from
the excavations including a landscaping and vegetation plan to
stabilize any disturbed material
(5) surface drainage plan
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(a) drainage into on-site excavations from proximate off-site
transportation facilities, such as roadways and roadbeds, and
off-site watercourses is prohibited unless the applicant
provides a plan which otherwise protects the excavations from
off-site waterborne regulated substances.
(b) the final on-site grading shall minimize all surface drainage into the
excavations.
(6) a post-excavation and operation land-use plan
(7) a security plan (unauthorized access shall be strictly prohibited
as long as any excavations remain on site)
[City of Dayton, Ohio, Zoning Ordinance, Section 150.612(C),
1988]
The following uses are those industrial operations which normally produce
noise, glare, air pollution fire hazards or safety hazards; such uses may
only be permitted upon the granting of a special exception by the Zoning
Board of Appeals, subject to such standards or conditions as are imposed by
said Board and conditional to compliance with the provisions of Section 9:
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(A) Plants generating power, disposing of sewage and/or garbage
(B) The cooking, distillation, processing, and incineration of
animal or vegetable products including, but not limited to,
brewery, distillery, slaughterhouse, fat rendering, soap
manufacture, tannery, paper manufacture, wool-scouring and
cleaning, cotton textile sizing, scouring, bleaching, dyeing, and
similar operations.
(C) The production of corrosive and noxious chemicals including, but
not limited to, acids, acetylene gas, ammonia, chlorine, bleaching
compound
(D) The production, processing, and storage of coal, coal tar,
petroleum, and asphalt products including, but not limited to, coke
manufacture, illuminating gas production, petroleum refining,
bulk, gasoline and petroleum products storage, asphalt products,
linoleum manufacture oil cloth manufacture, roofing material
manufacture
(E) The processing or washing of earth materials including batching plants
(F) The use of hammer mills, ball mills, rolling mills, or drop
forges in any industrial process
(G) Accessory uses in accordance with the provisions of Section 2-01A.
[City of Southington, Connecticut, Zoning Ordinance, Section 5-02.3,
1980]
Some industries have developed advances pollution control and waste management
techniques that may lessen the level or chance of pollution from their
activities. In recognizing such innovative approaches, the conditional use
process is applied to review proposed uses that would otherwise be prohibited.
-
Water Quality Impact Reviews. The uses listed below traditionally utilize
solvents and other hazardous materials. However, it is recognized that changes
in operational and containment process technology may be proposed. These uses
are not allowed unless approval is granted.
-
(1) The uses are as follows:
-
a) Furniture stripping or refinishing;
b) Exterior and vehicle salvage, drum recycling and cleaning, commercial
truck or rail tanker cleaning operations;
c) Industrial and commercial dry cleaning plants;
d) Rolling, drawing, extruding, casting, forging and heat treating
of ferrous and non-ferrous metals;
e) Industrial electroplating, plating, anodizing and coloring of ferrous
and non-ferrous metals; and
f) Other similar uses as may be determined by the Planning Director
to pose a high potential risk to the ground and surface water
resources. The applicant will be notified of any such determination
within ten working days after the pre-application conference.
[City of Portland, Oregon, Zoning Ordinance, Section
33.705.040.C, 1988]
Special Exceptions and Limited Exclusions
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Purpose:
- To set forth the types of uses that may be excluded from the provisions
of the permitted, prohibited, and conditional use sections.
-
Key Issues:
- Set maximum limits on the amount of cleaning agents and household
chemicals.
- Define temporary storage of construction material.
- Permit transportation of hazardous materials on roads in the wellhead
protection areas.
- Allow office and business supplies for administrative functions.
Include public utility functions associated with electric,
telephone, and gas substations that are excluded.
- Exclude family subdivisions of residential parcels that have adequate
public sewer and stormwater drains.
- Exclude fire, police, and public safety functions that do not use,
store, or dispose hazardous materials, generate sewer, or otherwise
violate the prohibited use provisions of this ordinance.
- Exclude repair and maintenance of working wells.
-
Notes:
- Special exceptions and limited exclusions provide for mechanisms to
handle uses and activities that are unique and incidental to other uses.
For example, the transportation of hazardous materials on roads in a
wellhead protection overlay zone may be excluded from the governance of
this ordinance. The use of household products containing hazardous
substances by facilities in the wellhead protection area also needs to
be addressed. While limited exclusions are normally exempt from
administrative review, special exceptions require an application and
demonstration of compliance with the provisions of the ordinance. As is
true for regulating special and nonconforming uses, some zoning
ordinances have specific sections describing submittal and review
requirements governing the special exception process. But the criteria
for determining the relief through a special exception should be included
here.
- Limited exclusions from the provisions of (Permitted and
Prohibited Uses Section), are authorized for:
(A) Non-Routine Maintenance or Repair of Property or Equipment: The use,
storage, handling, and/or production of Regulated substances
under this exclusion shall be limited to:
-
- (1) The aggregate of Regulated substances in use, storage,
handling, and/or production may not exceed fifty (50) gallons or
four hundred (400) pounds at any time.
(2) The total use, storage, handling, and/or production of Regulated
Substances may not exceed one hundred (100) gallons or eight
hundred (800) pounds in any twelve (12) month period.
(B) Medical and Research Laboratory Uses: Excluded Regulated Substances
shall be stored, handled, or used in containers not to exceed five
(5) gallons or forty (40) pounds of each substance and the aggregate
inventory of Regulated Substances shall not exceed two hundred and
fifty (250) gallons or two thousand (2000) pounds.
(C) Cleaning Agents: Excluded Regulated substances which are cleaning
agents shall be packaged for personal or household use or be
present in the same form and concentration as a product packaged
for use by the general public. The aggregate inventory of such
cleaning agents shall not exceed one hundred (100) gallons or eight
hundred (800) pounds at any time. In no case shall Regulated
Substances claimed under this exclusion include hydrocarbon or
halogenated gydrocarbon solvents.
(D) Construction Materials; Regulated substances associated with
construction for which a permit has been issued, paving or the pouring
of concrete shall be excluded from regulation while present on the
construction site provided such regulated substances do not pose a
real and present danger of contaminating surface and/or
groundwater.
(E) Office Supplies: Office supplies that are used solely for the
operation of on-site administrative offices, provided such supplies are
prepackaged in a form ready for use.
[City of Harrison, Ohio, Zoning Ordinance, Section 2708.02,
1989]
(a) Exemption for Public Utilities: Public utilities shall be exempt
from zone 1 and zone 2 prohibitions as set forth in section (on
prohibited uses). However, all such utilities in zone 1 and zone
2 shall comply with all provisions of section 27-379(b)(2) through
(4). The license exemption set forth in subsection (h) of this
section for regulated substances contained in storage tanks and
licensed under article X of this chapter shall apply. However,
compliance in zone 1 and zone 2 with the requirements set forth in
article X of this chapter shall be completed by August 28, 1988.
(b) Exemption for Continuous Transit: the transportation of any regulated
substances through zone 1 shall be allowed provided the transporting
vehicle is in continuous transit.
(c) Exemption for Vehicular Fuel and Lubricant Use: the use of any
regulated substances solely as fuel in a vehicle fuel tank or as
lubricant in a vehicle shall be exempt from the provisions of this
article.
(d) Exemption for Use of Certain Regulated substances: The use of
certain of the regulated substances such as pesticides, herbicides and
fungicides in recreational, agricultural, pest control and
aquatic weed control activities shall be allowed provided that:
-
(1) In all zones, the use is in strict conformity with the use
requirements as set forth in the substances EPA registries and as
indicated on the containers in which the substances are sold;
and
(2) In all zones, the sue is in strict conformity with the
requirements as set forth in chapters 482 and 487, Florida
Statues, and chapters 5E-2 and 5E-9 Florida Administrative Code.
(3) In a zone 1, the use of any of the regulated substances shall be
flagged in the records of the certified operator supervising
the use. The certified operator shall provide specific
notification in writing to the applicators under his or her
supervision that they are working at a site located in a zone 1 for
which particular care is required. Records shall be kept
of the date and amount of regulated substances used at each location.
(4) In a zone 1, the regulated substances shall not be handled
during use in a quantity exceeding seven hundred (700)
gallons of formulation.
(5) All nonresidential uses of regulated substances in zone 1
and zone 2 shall comply with all
the provisions of section 27-379(b). The use of regulated
substances on nonresidential landscape areas smaller than five
thousand (5,000) square feet shall be exempted from the
provisions of this article, However, commercial or government
services in all zones shall not be required to obtain individual
licenses for every site at which they use the regulated
substances, and these services shall be exempt from the
provisions of this article with regard to the sites they serve
provided the use is in accordance with (1), (2), (3), and (4)
above. However, all records for such sites as required by chapter
482. Florida States, and chapter 10D-55, Florida Administrative
code, shall be available for inspection by the county.
[Broward County, Florida, General Ordinance, Section
27-380,1984; 1989]
The following activities or uses are exempt from the provision of this Article:
(1) The transportation of any hazardous substance through either or both
the Primary or Secondary Well field Protection zone, provided the
transporting vehicle is in transit.
(2) Agricultural uses, including mosquiteo control, except that said
uses shall comply with Chapter 487.011, et seq., the Florida
Pesticide Law and the Florida Pesticide Application Act of 1974
and Rule 5E 2.001 et seq., and Rule 5E-9.001, et seq., Florida
Administrative code.
(3) The use of any hazardous substance solely as fuel in a vehicle fuel
tank or as a lubricant in a vehicle.
(4) Fire, police, emergency medical services, emergency management
center facilities and public utilities of this Article.
(5) Retail sales establishments that store and handle hazardous
substances for resale in their original unopened containers.
(6) Office uses, except for the storage, handling or use of
hazardous substances as provided for in applicable administrative
codes.
(7) Repairing or maintaining any existing facility of improvement on
lands within the Primary or Secondary Well Field Protection
Zone.
(8) Storage tanks which are constructed and operated in accordance with the
storage tank regulations as set forth in Chapter
17-61, Florida Administrative Code.
(9) Geotechnical borings.
(10) Residential activities.
(11) Public utility emergency generating facilities
except that permanently installed fuel storage facilities
exempted under Chapter 17-61, Florida
Administrative Code, shall have secondary
containment.
(12) Provided, however, that a local government may at
its option delete in whole or in part, any of the above
described exemptions, but in no case shall the
local government include any additional
exemptions in its ordinance adopted
pursuant to this Article unless otherwise
approved by the County Council.
[Volusia County, Florida, Zoning Ordinance, Section 7606.00. Draft]
Public utilities, in some wellhead protection ordinances, are treated as
special exception uses when conditions or standards are not included in the
ordinance. Although this allows greater flexibility in development reviews, it
should be noted that, for consistency and expedition, some basic conditions or
standards will have to be eventually included in the wellhead protection
ordinance.
-
(A) Public utility uses as follows:
- Electric and telephone substations
- Gas regulator and meter station buildings
- Electric and communication transmission towers and structures
[City of Huber Heights, Ohio, Zoning Ordinance, Section 36.04, 1990]
Although there are few uses that are not prohibited in the wellhead protection
overlay district and are either a conditional or special use in the underlying
district, include a standard statement of "subject to approval" based on the
performance standards of the wellhead protection ordinance. This reinforces the
applicability of performance standards of both the underlying zoning district
and the wellhead protection overlay district.
All special exceptions allowed in underlying districts may be approved by
the board of Adjustment provided they can meet Performance
Standards outlined for the Aquifer Protection Overlay Zones.
[Brookings County, South Dakota, Zoning Ordinance, Section 1106, 1989]
Family subdivisions (or minor subdivisions) are also commonly excluded from
further administrative reviews provided they meet some distance and size
requirements. The definition of a family or minor subdivision is provided in
the subdivision regulations; such subdivisions are generally five parcels
or less in residentially zoned areas.
-
Excluded developments: There shall be excluded from the procedures and
requirements of this section all residential minor partition applications
if the site thereof is more than 1320 feet from the exterior boundary of
the city of Enterprise municipal water source, provided the
residential use is permitted [by right] in the underlying zone and none of the
parcels is less than five acres in size. All other partitions and subdivisions
shall be subject to review under the procedures of this section.
[Wallowa County, Oregon, Zoning Ordinance, Section 24.090.1. 1988]
Nonconforming Uses
-
Purpose:
- To set forth provisions for existing uses that do not conform to the
wellhead protection standards.
Key Issues:
- Identifying nonconforming uses that were existing on the date of adoption of
the wellhead protection ordinance and are permitted by right, by special
exception, or by conditions.
- Making sure that it is understood that prohibited uses are excluded from
obtaining relief under this section.
- Setting a limit for the expansion of nonconforming uses; beyond that limit,
a nonconforming use will be treated as new use and will be subject to a complete
review.
-
Notes:
- Typically, nonconforming uses in wellhead protection areas are either
permitted, special exception, and conditional uses that were
conforming before the designation of the wellhead protection area. Such
uses are commonly nonconforming due to violations of the new lot size or
minimum yard requirements set by the new district. These provisions
should also set limits for expansion of a nonconforming use before it
must become conforming. Under certain circumstances (e.g.,
discontinuation of use, destruction of a use by fire or flood, etc.), a
nonconforming use may be required to become a conforming use.
The issue of nonconforming uses is probably one of the most contentious
aspects of local zoning. In crafting appropriate safeguards in the wellhead
protection ordinance, ensure that there is general conformity with the
nonconforming sections of other parts of the zoning ordinance. Any deviation
from established standards or precedents has to be associated with a
substantially justifiable claim. Almost all courts have generally looked at
nonconforming uses as uses that have a right to continue, at least for a time,
as they were on the date of adoption of the more restrictive zoning
ordinance--provided there is no substantial change. The debate is primarily
about issues related to defining the time limit and what constitutes substantial
change. These definitions vary from state to state and sometimes also within
a state. Inclusion of any stricter nonconforming standards in the wellhead
protection ordinance will have to be justified. Note that protection of
nonconforming uses does not extend to the continuation of any
prohibited use.
- The samples provided here are very specific to the local conditions and
precedents. Some of the standards for expansion and time limits may have very
limited, if any, relevance outside the jurisdiction from which the example is
cited.
If a non-conforming use of any land, building, or structure is discontinued
for six (6) months or more, any further use shall be in conformity to this
District.
[City of Huber Heights, Ohio, Zoning Ordinance, Section 36.06, 1990]
Non-conforming uses may continue in this District in the form in which
they exist at the time of the adoption of this Ordinance. Any change of
title or right to possession shall not affect such continuation of an
existing use. Whenever a non-conforming use has been abandoned for a period
of one (1) year, such use shall not thereafter be re-established and any
future use shall only be in compliance with the provisions of this Chapter.
In the event such non-conforming use shall pose a direct hazard to the public
water supply, New Castle County may take any action permitted by law to abate
the hazard.
[New Castle County, Delaware, Zoning Ordinance, Section 23-137,
proposed]
Expansion of up to 25% of land uses or activities previously existing at
the time of adoption of the Ordinance and which do not conform to the Wellhead
Protection Area Table is allowed, provided that
-
- Best Management Practices (Section I of this Ordinance) are followed.
The addition or expansion does not increase the non-conformity of the
use or activity.
The expansion of the non-conforming use may not be for the purpose of
changing that use to another non-conforming use unless the applicant
can demonstrate that the new use poses a lesser threat to
groundwater than the current use.
Expansion of greater than 25% of such existing uses is treated as a new use
(i.e., it is permitted, prohibited, or subject to Site Plan Review as per the
Wellhead Protection Area Table.
[Town of Norway, Maine, Wellhead Protection Ordinance, Section D (1b),
1993]
This is an example of a description of nonconforming use definitions and
procedures for evaluation. In lieu of restating the procedures, references to
nonconforming portions of the zoning ordinance can be made, if such standards
exists.
- Enlargement of, or alteration of a commercial or industrial use existing as
of the effective date of this ordinance, or the addition of a process or
ancillary facility in conjunction with a use existing as of the effective date
of this ordinance, not permitted outright under subparagraph I [Section
24.050.(1)] above, may be permitted in the WPA upon issuance of a special use
permit and upon finding the proposed enlargement or expansion of the use,
considering the quantities and character of the chemical or other product, the
method of use, and the distance from the city of Enterprise water source, would
not have an adverse effect, materially contribute to an adverse effect, or
create a material risk of an adverse effect, upon the city of Enterprise
municipal water source, and after consideration of any impoundment or
other mitigating measures imposed by State and federal law, this ordinance,
the Planning Director, or the Commission. Upon receipt of an
application to enlarge or alter an existing commercial or industrial use or
to add a process or ancillary facility in conjunction with a pre-existing use,
said permit not reviewable under the provisions of subparagraph 1 [Section
24.050.(1)] above, the Director shall notify the city and, prior to scheduling
a public hearing before the Commission, shall arrange a conference to be
attended by the applicant, the city's representative, and the Director. The
purpose of the conference shall be to review the application, the nature of
the processes and chemicals, and the impoundment and other mitigating
measures to be employed by the applicant to comply with the standards of this
subparagraph. If, following the conference, the city and the applicant
are in agreement, the application meets the burden of proof set forth in this
subparagraph, the director shall proceed to review and issue the special use
permit under the procedures set forth in Section 24.0801. If, following the
conference, the city and the applicant cannot reach agreement as to the
compliance of the application to the standards set forth in the subparagraph,
the Director shall schedule a public hearing before the Commission as
required by Section 24.0801. Failure to conduct the conference within 45 days
of the date of the application's submission shall require the Director to
schedule the hearing before the Commission. If the proposed use or development
is permitted outright in the underlying zone, review by the Director or
Commission shall be limited to determination of the application's
compliance with the standards set forth in this subparagraph. In the event the
proposed use complies with federal and State laws and regulations, the city of
Enterprise, or other opponent, shall have the burden of coming forth with
evidence sufficient to provide a reasonable basis for concluding that
said State and federal laws and regulations are inadequate to assure
compliance with the standards set forth in this subparagraph upon presentation
of such evidence the burden shall shift to the Director or Commission which
insures the protection of the city of Enterprise municipal water source.
[Wallowa County, Oregon, Zoning Ordinance, Section 24.050.(3), 1988]
Variances
-
Purpose:
- To set forth the guidelines for providing variances from the strict
interpretation of the provisions of the wellhead protection ordinance.
-
Key Issues:
- Ensure variance approval cannot be used to relax any standards for
prohibited or special uses (or to provide a right to pollute).
- Variances are seen as loopholes; therefore, minimize reasons for an
applicant to justify unnecessary hardship.
- Do not include more restrictive criteria to define when variances may
be granted; that constitutes a derogation of the enabling statutes.
-
Notes:
- Although variances can be obtained for any of the provisions of any
ordinance, the typical purpose for variances in wellhead protection
ordinance provisions is to provide relief in setback or performance
standards if a substantial hardship can be demonstrated under a strict
interpretation of the ordinance. For instance, a strict application
of setback or lot size standards may deprive the property of privileges
or safety enjoyed by other similarly located parcels. Variance
procedures, like those employed for special uses and conditional uses,
require a separate application and review process that involves final
adjudication by the Board of Zoning Appeals.
Since the power to grant variances by the zoning board comes directly from
an explicit statutory authorization, courts have held that a local ordinance
may not change the variance powers granted to the board. Zoning ordinances
sometimes do, and courts have voided such ordinances. In effect, from an
applicant's point of view, a more restrictive standard may not be invoked
to hinder an attempt to obtain a variance. Historically, a number of
states and local governments have held that variance powers involve a
usurpation of legislative power by the board of appeals.
The debate revolves around the usual standard for granting
variances--practical difficulty and unnecessary hardship. Defining
criteria in the ordinance for all such unique circumstances is nearly
impossible. However, in the context of wellhead protection, address the
issues related to contamination and the risk of contamination of drinking
water supplies if variances are granted. One way to do this might be to
require documentation, verification, and adequate guarantees that a
variance will not result in an increase in risk in contamination.
- The Appeal Board as established by the community shall hear and render
judgment on requests for variances from the requirements of this
ordinance.
- The Appeal Board shall hear and render judgment on an appeal only
when it is alleged there is an error in any requirement, decision,
or determination made by the Wellhead Protection Area
Administrator in the enforcement or administration of this ordinance.
- Any person or persons aggrieved by the decision of the Appeal Board
may appeal such decision in the courts of competent jurisdiction.
- No variance may be requested nor granted as a means to circumvent
the intentions of this ordinance or as a remedy for a violation of this
ordinance (i.e., a variance cannot be issued after the fact).
- The Wellhead Protection Area Administrator shall maintain a
record of all actions involving an appeal.
- Upon consideration of the intent of this ordinance, the Appeal Board
may attach such conditions to the granting of variances as it deems
necessary to further the purpose and objectives of this ordinance.
- Prerequisites for granting variances:
-
- (a) Variances shall only be issued upon a determination that the
variance is the minimum necessary considering the potential threat of
contamination of the PWS well and aquifer, to afford relief.
(b) Variances shall only be issued upon: (I) showing a good and
sufficient cause; (ii) a determination that failure to
grant a variance would result in exceptional hardship to the
applicant; and (iii) a determination that the granting
of a variance will not result in additional threats to the public
safety, extraordinary public expense, create nuisances, cause
fraud on or victimization of the public or conflict with existing
local laws or ordinances.
(c) Any applicant to whom a variance is granted shall be given written
notice that the activity receiving this variance will
decrease the travel time for potential contaminants to reach
the PWS well and that any and all liability of a contamination
event as a result of this activity receiving the variance
is on the variance holder. Furthermore, the City, its
offices, and services, as well as its employees, are released from
any responsibility and liability for any damages and/or
contamination events due to activity receiving the variance.
- Variances may be issued by a community for new development
necessary for the conduct of the functionally dependent use provided
that: (I) the criteria outlined in Article 4, Section D(1)-(8) are
met; and (ii) the development is protected by methods that minimize
the risk of a contamination and creates no additional threats to
public safety.
[City of Sweeny, Texas, General Ordinance, Section D, 1990]
Variance to a regulation or restriction enacted through the WPA which
affects a use or development permitted by or unregulated within the
underlying zone may be permitted by the Commission, following public
hearing, provided the requested variance:
- Relates solely to a regulation or restriction of the WPA and is not
a variance which can be heard pursuant to the provisions of Article 8.
- The variance is the minimum variance necessary to alleviate a
hardship on the property owner related to the use and enjoyment of
the property caused by the regulation or restriction as
enacted within the WPA.
- The Commission finds the variance will not cause, materially
contribute to, or create a material risk of any adverse effect upon the
city of Enterprise municipal water source under reasonably possible
hydrologic or geologic conditions.
[Wallowa County, Oregon, Zoning Ordinance, Section 24.075, 1988]
- (a) The Planning Commission may grant a variance from the terms of
this Article only [when], because of special circumstances applicable
to the property involved, a strict application deprives such property
of privileges or safety enjoyed by other similarly situated property
with similarly timed development.
...[T]he variance permitted shall be the minimum departure from the terms
of this Article necessary to avoid such deprivation of privileges enjoyed
by such other property to facilitate a reasonable use, and which will not
create significant probabilities of harmful environmental consequences.
The Planning Commission may not grant a variance if it would provide the
applicant with any special privileges not enjoyed by other similarly
situated property with similarly timed development, or if based on a special
or unique condition which was created as a result of the method by which a
person voluntarily subdivides land after the effective date of this
ordinance.
(b) The Planning Commission may grant a variance [if the regulations
require] an unrealistic and unwarranted taking or an undue
hardship. However, no such variance may be granted if the
condition was created as a result of the method by which a person
involuntarily subdivides land after the effective date of this
ordinance. The granting or denial of this variance may be appealed to
the City Council by any citizen.
[City of Austin, Texas, General Ordinance, Section 107.1, 1981]
Reprinted with permission from A Guide to Wellhead Protection,
PAS Report No. 457/458 (Chicago: American Planning Association,
August 1995), Appendix D.
Sections
1 |
2 |
3 |
4 |
5 |
6 |
7 |
8
Appendices
A |
B |
C |
D |
E |
F |
G |
H |
I |
J |
K |
L |
M |
N |
O |
P |
Q |
R
Wellhead Protection Program Guidance Document Contents
Wyoming Department of Environmental Quality