5. Use Regulations

Permitted Uses

Purpose:

To identify the types of uses and activities allowed by right.

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.

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

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:

a) Any hazardous substance or hazardous waste as listed in the following federal regulations:

1. Superfund Amendments and Reauthorization Act (SARA) of 1986 Section 302 Extremely Hazardous Substances List (40 C.F.R. 300 App. A and B);
2. Comprehensive Environmental Response Compensation and Liability Act superfund (CERCLA) of 1980. Hazardous Substances List (40 C.F.R. 302, Table 203.4);
3. SARA of 1986, Section 313, Toxic Chemicals List (40 C.F.R. Section 372.45); and
4. 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

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:

1. 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.
2. The quantity and quality of groundwater recharge shall be maintained at pre-development levels.
3. 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.
4. 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.
5. 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:

1. 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.
2. 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.

(A) Public utility uses as follows:

1. Electric and Telephone substations
2. Gas Regulator and meter station buildings
3. Police and fire stations that do not contain maintenance facilities)
4. 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.

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:

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

(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:

(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]

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

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:

1. Electric and telephone substations
2. Gas regulator and meter station buildings
3. 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.

1. The Appeal Board as established by the community shall hear and render judgment on requests for variances from the requirements of this ordinance.
2. 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.
3. Any person or persons aggrieved by the decision of the Appeal Board may appeal such decision in the courts of competent jurisdiction.
4. 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).
5. The Wellhead Protection Area Administrator shall maintain a record of all actions involving an appeal.
6. 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.
7. 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.

8. 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:

1. 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.
2. 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.
3. 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]

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Appendices
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Wellhead Protection Program Guidance Document Contents
Wyoming Department of Environmental Quality