§ 3.03.00. Stream buffer protection.

3.03.01.

Description. This section provides a framework for local governments to develop buffer zones for streams, as well as the requirements that minimize land development within those buffers. It is the purpose of these buffer zone requirements to protect and stabilize stream banks, protect water quality and preserve aquatic and riparian habitat.

3.03.02.

Title. This section shall be known as the "Henry County Stream Buffer Protection Ordinance."

3.03.03.

Findings and purposes.

A.

Findings. Buffers adjacent to streams provide numerous benefits:

1.

Protecting, restoring and maintaining the chemical, physical and biological integrity of streams and their water resources;

2.

Removing pollutants delivered in urban stormwater;

3.

Reducing erosion and controlling sedimentation;

4.

Protecting and stabilizing stream banks;

5.

Providing for infiltration of stormwater runoff;

6.

Maintaining base flow of streams;

7.

Contributing organic matter that is a source of food and energy for the aquatic ecosystem;

8.

Providing tree canopy to shade streams and promote desirable aquatic habitat;

9.

Providing riparian wildlife habitat;

10.

Furnishing scenic value and recreational opportunity;

11.

Providing opportunities for the protection and restoration of greenspace.

B.

Purpose. It is the purpose of this section to protect the public health, safety, environment and general welfare; to minimize public and private losses due to erosion, silt and water pollution; and to maintain stream water quality by provisions designed to:

1.

Create buffer zones along the streams of Henry County for the protection of water resources; and

2.

Minimize land development within such buffers by establishing buffer zone requirements and by requiring authorization for any such activities.

3.03.04.

Applicability. This section shall apply to all land development activity on property containing a stream protection area as defined in chapter 3 of this appendix. These requirements are in addition to, and do not replace or supersede, any other applicable buffer requirements established under state law and approval or exemption from these requirements do not constitute approval or exemption from buffer requirements established under state law or from other applicable local, state or federal regulations.

A.

Legal nonconformance. This section shall not apply to the following:

1.

Work consisting of the repair or maintenance of any lawful use of land that is zoned and approved for such use on or before the effective date of this appendix.

2.

Existing development and on-going land disturbance activities including, but not limited to, existing agriculture, silviculture, landscaping, gardening and lawn maintenance, except that new development or land disturbance activities on such properties will be subject to all applicable buffer requirements.

3.

Any land development activity that is under construction, fully approved for development, scheduled for permit approval or has been submitted for approval as of the effective date of this appendix.

4.

Land development activity that has not been submitted for approval, but that is part of a larger master development plan, such as for an office park or other phased development that has been previously approved within two (2) years of the effective date of this appendix.

B.

Exemptions. The following specific activities are exempt from this ordinance. Exemption of these activities does not constitute an exemption for any other activity proposed on a property.

1.

Activities for the purpose of building one (1) of the following:

a.

A stream crossing by a driveway, transportation route or utility line;

b.

Public water supply intake or public wastewater outfall structures;

c.

Intrusions necessary to provide access to a property;

d.

Public access facilities that must be on the water including boat ramps, docks, foot trails leading directly to the river, fishing platforms and overlooks;

e.

Unpaved foot trails and paths;

f.

Activities to restore and enhance stream bank stability, vegetation, water quality and/or aquatic habitat, so long as native vegetation and bioengineering techniques are used.

2.

Public sewer line easements paralleling the creek, except that all easements (permanent and construction) and land disturbance should be at least twenty-five (25) feet from the top of the bank. This includes such impervious cover as is necessary for the operation and maintenance of the utility, including, but not limited to, manholes, vents and valve structures. This exemption shall not be construed as allowing the construction of roads, bike paths or other transportation routes in such easements, regardless of paving material, except for access for the uses specifically cited in subsection 3.03.04.B.1., above.

3.

Land development activities within a right-of-way existing at the time this chapter takes effect or approved under the terms of this section.

4.

Within an easement of any utility existing at the time this chapter takes effect or approved under the terms of this chapter, land disturbance activities and such impervious cover as is necessary for the operation and maintenance of the utility, including, but not limited to, manholes, vents and valve structures.

5.

Emergency work necessary to preserve life or property. However, when emergency work is performed under this section, the person performing it shall report such work to Henry County on the next business day after commencement of the work. Within ten (10) days thereafter, the person shall apply for a permit and perform such work within such time period as may be determined by Henry County to be reasonably necessary to correct any impairment such emergency work may have caused to the water conveyance capacity, stability or water quality of the protection area.

6.

Forestry and silviculture activities on land that is zoned for forestry, silvicultural or agricultural uses and are not incidental to other land development activity. If such activity results in land disturbance in the buffer that would otherwise be prohibited, then no other land disturbing activity other than normal forest management practices will be allowed on the entire property for three (3) years after the end of the activities that intruded on the buffer.

After the effective date of this chapter, this section shall apply to new subdividing and platting activities.

Any land development activity within a buffer established hereunder is prohibited unless a variance is granted pursuant to subsection 3.03.05 below.

3.03.05.

Land development requirements. All land development activity subject to this section shall meet the following:

1.

An undisturbed natural vegetative buffer shall be maintained for fifty (50) feet, measured horizontally, on both banks (as applicable) of the stream as measured from the top of the stream bank. If defined banks are not identifiable, the protected buffer shall be measured from other identifiable features such as the "point of wrested vegetation" (O.C.G.A. 12-7-6(15)(A)) or the "ordinary high water mark" (33 CFR 328.3(e)).

2.

An additional setback shall be maintained for twenty-five (25) feet, measured horizontally, beyond the undisturbed natural vegetative buffer, in which all impervious cover shall be prohibited. Grading, filling and earthmoving shall be minimized within the setback, as determined by the director of stormwater management or designee.

3.

For all proposed residential site developments utilizing mass grading/master drainage plans, an undisturbed natural vegetative buffer shall be maintained for seventy-five (75) linear feet, measured horizontally, on both sides of all streams (as applicable) on or adjacent to the subject property, as measured from the top of the streambank(s). If defined banks are not identifiable, the protected buffer shall be measured from other identifiable features such as the "point of wrested vegetation" (O.C.G.A. 12-7-6(15)(A)) or the "ordinary high water mark" (33 CFR 328.3(e)). An additional setback shall be maintained for twenty-five (25) linear feet, measured horizontally, beyond the undisturbed natural vegetative buffer, in which all impervious cover shall be prohibited (totaling one hundred (100) linear feet). Additionally, an undisturbed natural vegetative buffer shall be maintained for fifty (50) linear feet, measured horizontally, from all wetlands located on or adjacent to the subject site.

4.

No septic tanks or septic tank drain fields shall be permitted within the buffers described above in subsections 3.03.05.1., 3.03.05.2., and 3.03.05.3.

3.03.06.

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

3.03.07.

Additional information requirements for development on buffer zone properties. Any permit applications for property requiring buffers hereunder shall be prepared by a Georgia-registered professional engineer and include the following:

1.

A site plan showing:

a.

The location of all streams on the property;

b.

Limits of required stream buffers on the property;

c.

Buffer zone topography with contour lines at no greater than five-foot contour intervals;

d.

Delineation of forested and open areas in the buffer zone; and

e.

Detailed plans of all proposed land development in the buffer;

2.

A description of all proposed land development within the buffer; and

3.

Any other documentation that Henry County may reasonably deem necessary for review of the application and to ensure that the buffer zone ordinance is addressed in the approval process.

All buffer areas must be recorded on the final plat of the property following plan approval.

3.03.08.

Responsibility. Neither the issuance of a development permit nor compliance with the conditions thereof, nor with the provisions of this chapter shall relieve any person from any responsibility otherwise imposed by law for damage to persons or property; nor shall the issuance of any permit hereunder serve to impose any liability upon Henry County, its officers or employees, for injury or damage to persons or property.

3.03.09.

Inspection. Henry County may cause inspections of the work in the buffer to be made periodically during the course thereof and shall make a final inspection following completion of the work. The permittee shall assist Henry County in making such inspections. Henry County shall have the authority to conduct such investigations as it may reasonably deem necessary to carry out its duties as prescribed in this chapter, and for this purpose to enter at reasonable time upon any property, public or private, for the purpose of investigating and inspecting the sites of any land development activities within the protection area.

No person shall refuse entry or access to any authorized representative or agent who requests entry for purposes of inspection, and who presents appropriate credentials, nor shall any person obstruct, hamper or interfere with any such representative while in the process of carrying out official duties.

3.03.10.

Violations, enforcement and penalties. Any violation of the provisions of this section or the requirements of an approved site plan or permit may be subject to the enforcement actions outlined in this subsection. Any continued violation is deemed to be a public nuisance and may be abated by injunctive or other equitable relief. The imposition of any of the penalties described below shall not prevent such equitable relief.

A.

Notice of violation. If Henry County determines that an applicant or other responsible person has failed to comply with the terms and conditions of a permit, an approved site plan or the provisions of this appendix, it shall issue a written notice of violation to such applicant or other responsible person. Where a person is engaged in activity covered by this chapter without having first secured the appropriate permit therefor, the notice of violation shall be served on the owner or the responsible person in charge of the activity being conducted on the site.

The notice of violation shall contain:

1.

The name and address of the owner or the applicant or the responsible person;

2.

The address or other description of the site upon which the violation is occurring;

3.

A statement specifying the nature of the violation;

4.

A description of the remedial measures necessary to bring the action or inaction into compliance with the permit, the approved site plan or this ordinance and the date for the completion of such remedial action;

5.

A statement of the penalty or penalties that may be assessed against the person to whom the notice of violation is directed; and

6.

A statement that the determination of violation may be appealed to Henry County by filing a written notice of appeal within thirty (30) days after the notice of violation (except that in the event the violation constitutes an immediate danger to public health or public safety, twenty-four (24) hours' notice shall be sufficient).

B.

Penalties. In the event the remedial measures described in the notice of violation have not been completed by the date set forth for such completion in the notice of violation, any one (1) or more of the following actions or penalties may be taken or assessed against the person to whom the notice of violation was directed. Before taking any of the following actions or imposing any of the following penalties, Henry County shall first notify the applicant or other responsible person in writing of its intended action, and shall provide a reasonable opportunity, of not less than ten (10) days (except that in the event the violation constitutes an immediate danger to public health or public safety, twenty-four (24) hours' notice shall be sufficient) to cure such violation. In the event the applicant or other responsible person fails to cure such violation after such notice and cure period, Henry County may take any one (1) or more of the following actions or impose any one (1) or more of the following penalties:

1.

Stop work order. Henry County may issue a stop work order which shall be served on the applicant or other responsible person. The stop work order shall remain in effect until the applicant or other responsible person has taken the remedial measures set forth in the notice of violation or has otherwise cured the violation or violations described therein, provided the stop work order may be withdrawn or modified to enable the applicant or other responsible person to take necessary remedial measures to cure such violation or violations.

2.

Withhold certificate of occupancy. Henry County may refuse to issue a certificate of occupancy for the building or other improvements constructed or being constructed on the site until the applicant or other responsible person has taken the remedial measures set forth in the notice of violation or has otherwise cured the violations described therein.

3.

Suspension, revocation or modification of permit. Henry County may suspend, revoke or modify the permit authorizing the land development project. A suspended, revoked or modified permit may be reinstated after the applicant or other responsible person has taken the remedial measures set forth in the notice of violation or has otherwise cured the violations described therein, provided such permit may be reinstated (upon such conditions as Henry County may deem necessary) to enable the applicant or other responsible person to take the necessary remedial measures to cure such violations.

4.

Civil penalties. In the event the applicant or other responsible person fails to take the remedial measures set forth in the notice of violation or otherwise fails to cure the violations described therein within ten (10) days (or such greater period as Henry County shall deem appropriate) (except that in the event the violation constitutes an immediate danger to public health or public safety, twenty-four (24) hours' notice shall be sufficient) after Henry County has taken one (1) or more of the actions described above, Henry County may impose a penalty not to exceed one thousand dollars ($1,000.00) for each day the violation remains unremedied after receipt of the notice of violation.

5.

Criminal penalties. For intentional and flagrant violations of this ordinance, Henry County may issue a citation to the applicant or other responsible person, requiring such person to appear in the magistrate court of Henry County to answer charges for such violation. Upon conviction, such person shall be punished by a fine not to exceed one thousand dollars ($1,000.00) or imprisonment for sixty (60) days or both. Each act of violation and each day upon which any violation shall occur shall constitute a separate offense.

3.03.11.

Administrative appeal and judicial review.

A.

Administrative appeal. Any person aggrieved by a decision or order of Henry County, may appeal in writing within thirty (30) days after the issuance of such decision or order to Henry County and shall be entitled to a hearing before Henry County within sixty (60) days of receipt of the written appeal.

B.

Judicial review. Any person aggrieved by a decision of the board of commissioners of Henry County, may within thirty (30) days of the date of such decision, appeal the decision, by writ of certiorari to the superior court of Henry County.

3.03.12.

Severability. If any article, section, subsection, paragraph, clause, phrase or provision of this chapter shall be adjudged invalid or held unconstitutional, such decision shall not affect or invalidate the remaining portions of this chapter.

( Ord. No. 17-17, § I, 12-5-17 )