COMMENTS OF THE KENTUCKY REOURCES COUNCIL, INC.
REGARDING PROPOSED REVISIONS TO THE JEFFERSON
COUNTY LAND DEVELOPMENT CODE
(SUBMITTED AUGUST 9 AS REVISED AUGUST 12, 2002)
These comments are submitted by Tom FitzGerald, Director of the Kentucky Resources Council, Inc., concerning the proposed revisions to the Land Development Code for Jefferson County, Kentucky. The Kentucky Resources Council is a non-profit environmental advocacy organization whose membership includes many residents of Jefferson County, Kentucky who share a common interest in protection of the health and welfare of the residents of the county from irresponsible development.
Specific comments follow regarding portions of the proposed Land Development Code. Where possible, the date of the draft on which the comments are provided is included for reference purposes.
KRC would be remiss if we did not recognize the significant work and countless hours of effort put forth to produce and edit this document by Planning and Development Services staff and other county employees, and in particular:
J. Brian Davis
as well as Kurt Mason, Natural Resources Conservation Service, former Planning Commission Chair Jack Dulworth, who kept the process moving, and my colleagues on the ad hoc committee with whom I spent many Friday mornings hashing out and “clashing out” policy differences and producing a document that it is hoped will help shape the built environment and protect the natural environment of this community in a manner more responsible than has been the legacy with which we have grappled.
11.1.2B3f The inclusion of the Natural Resources Conservation Service among the advisory members is strongly supported, and will result in early identification of problematic developments and resolutions that will work to the benefit of all concerned.
11.3.3 Where there is a conflict between standards of the Planned Development District and those of the applicable form, the standard that will best assure compatibility of the development with the underlying form should prevail.
11.4.3A3 The list of examples of technical studies should include but not be limited to “hydrologic, geologic, hydrogeologic, historic and cultural resource, air, and traffic.”
11.4.3A4 The introduction of the concept of a “complete” application as the trigger for publication of notice and the running of the time clock is supported. The difficulties encountered by the public in reviewing “moving target” incomplete applications lacking basic studies of traffic, noise, hydrology, flooding, etc. have greatly complicated and often frustrated timely and effective neighborhood involvement.
11.4.4A The commitment by staff to endeavor to include notice to neighborhood groups is supported. Staff has greatly improved public notice over recent years with introduction of electronic publication of agendas and minutes of LDT and Commission actions, and the continuation mailing of notices after merger is likewise supported.
11.4.4B The inclusion of this section, requiring the applicant to submit any studies required during the review process at least two weeks prior to a hearing, is perhaps one of the most important procedural protections to be afforded under the new code, and is strongly supported. The language concerning deferral of the hearing in the event of failure to submit the required documents should be strengthened by replacing “shall be considered grounds for postponing the hearing” with “shall result in postponement of the hearing and deferring action on the proposal.”
11.4.5B Clarification is required for purposes of judicial review that where the legislative body includes additional binding elements on the development plan and the applicant refuses to accept those additional elements, the action of the legislative body shall be deemed “final” for purposes of judicial review on the day that the vote is taken to impose such conditions. Without providing this clarification, it is unclear when action would be final for review purposes.
11.4.6A In order to clarify that the binding elements have applicability to subsequent landowners and future uses, insert the word “future” in the last sentence after “the” and before “use”.
11.4.6B The language of this subsection is a bit confusing and should be rewritten for clarity. If the intent is that by agreeing to the binding elements the applicant is acknowledging that those elements apply even if a subsequent building permit or other approval doesn’t reference them, state it more clearly by indicating that the applicant acknowledges by filing that the binding elements are an implied condition in any subsequent permit or approval by any agency unless amended or waived by the Commission. Also add a phrase or sentence that any development shall be undertaken in conformity with the binding elements notwithstanding a lack of reference to the elements in any subsequent building permit or approval from any agency of the county.
11.4.4E1 For any amendment to a binding element of an approved development plan, notice should be given to all first and second tier landowners of record and to any party who testified at or participated in the initial process that resulted in the adoption of the binding elements. All too often in the past, elements and conditions painstakingly negotiated have been subsequently changed without adequate notice to those most directly affected by the proposal.
11.4.4E2f In order to better focus the review of the proposed amendment to the binding element, I would suggest rewriting subsection f to read:
Whether as amended the development plan will be as or more effective in achieving the goals of the comprehensive plan and Land Development Code that the Commission sought to advance by adopting the initial binding element.
11.5A.1A Where the applicant seeks to have the Conditional Use Permit application heard by the Commission in conjunction with a zoning or form district map amendment, the public notice should include a separate sentence indicating that one or more Conditional Use Permits are being sought in conjunction with the zoning or form map amendment, and identifying the specific conditional uses sought to be undertaken through the application for permit.
Also in this subsection, the sequencing of the review of zoning and form amendments with CUPs is important, since the CUP approval may either raise issues that require additional Commission review where the CUP is not sought as part of the Commission review of the zoning or form change, or the BOZA review may result in imposition of conditions that resolve a concern of the relationship of the proposed use and the underlying form or zone requirements. Where the applicant indicates that a CUP will be sought, or the Commission deems one necessary for the proposed use, the applicant shall obtain the CUP first from BOZA and include it as part of a “complete” application for zone or form change unless it elects issuance of the CUP from the Commission as part of the zoning of form change.
11.5A.1B Either in this section or in the subsequent 11.5.4D, it should be clarified that the Board shall include such conditions as it deems necessary or appropriate to assure that the proposed conditional use will not adversely affect the use of surrounding properties or unreasonably interfere with the use and enjoyment of such properties (i.e. won’t cause a nuisance). Also, in the list of factors that may be considered, intensity, duration, nature and volume of noise, and odors, should be included as considerations.
11.5A.1C The inclusion of notice to prior participants in the event of requests for extension of permits issued is supported. The last sentence should be slightly edited to replace “the original application process” with “a new original application in compliance with all requirements for such applications.” This will clarify that all requirements including filings, contents, review timeframes and public notice attach.
11.5A.4B The language “shall be considered grounds” should be replaced, as recommended above in similar context, with “shall result in” in order to clarify that no further official action is required and that deferral is automatic and categorical.
The last sentence needs slight clarification in order to provide that the applicant can suggest changes during the hearing to respond to comments received at the hearing.
11.5A.4D As suggested above the authority and obligation of the Board to impose conditions as it deems necessary or advisable should be made explicit.
11.5A.5 KRC has two comments concerning this section. First, the last phrase should be clarified to allow the Board to bring action at its election, in personam or in rem, or both, so that it can execute against the property where it cannot obtain jurisdiction over the absent permit holder. I would suggest also the section be modified by inserting this phrase in lieu of the word “the Board shall have” after “Furthermore,”: by applying for the conditional use permit the permit holder acknowledges and consents to the jurisdiction of the courts of the Commonwealth in order to allow the Board to maintain ....
11.5B.1A The public notice filed concerning the zoning or form district map application should include a separate sentence indicating that the applicant is also seeking a variance and indicating the nature of the variance(s) sought.
11.5B.1B The stringency of conditions for granting a variance are key to whether the requirements of the LDC will be honored, or will be honored in the breach. Recognizing that the “large print giveth and the small print taketh away,” KRC proposes that certain of the variance provisions be written more restrictively to recognize the legitimate expectations of developers but protecting the like expectations of settled landowners. A key consideration is the existence of much constrained land that is subject to vulnerable or sensitive resources, such as karst, wetland, floodplain, and other natural resource values that also constrain certain types or intensities of development.
To be avoided is the all-too-common situation where a unitary tract is developed in a fashion to provide more than reasonable return on the investment as a whole but which, towards the end of the development, results in constrained and previously avoided areas that now are claimed as appropriate subjects of a variance. To prevent or minimize gaming the process, B4 should also consider whether the requirements apply generally to “similarly situated lands” whether located nearby or not, such as wetlands, floodplains, karst, steep slope areas, etc. If so, no variance is warranted.
Likewise, B5 should refer to “reasonable use of the land considered as a whole in its condition existing at the time of market entry. This would require consideration of the totality of a development in determining whether undue hardship or unreasonable deprivation would occur; reflecting prevailing constitutional law and reasonable accommodation to reasonable investment-backed expectations, given natural constraints of the existing land condition. Market entry after adoption of the LDC or the provision sought to be avoided should militate strongly against any claim of hardship or unreasonable interference, since notice is presumed.
11.5B.3B The same comments as previously raised concerning replacing “grounds for” with “shall result in” and clarifying that the applicant can propose changes at the hearing to respond to comments received at the hearing apply to this subsection.
11.6.4B2, 3 Consistent with earlier text the applicant should submit the information 14 days before the meeting, not 10 days.
11.7.2B1 The provisions for appealing decisions to the Board should be clarified in several key aspects: where the appeal is to be filed; whether electronic filing or faxed filing followed by an original copy is sufficient, whether in computing the time the day of the action is included and whether if the last day to appeal falls on a weekend or holiday, the date is extended to the next day that is neither; and whether an appeal not on the form but containing needed information will be accepted.
11.7.4B The phrase “or resolution adopted” is in the wrong sentence. The next sentence should clarifying that it is the date of publication of the adoption of the minutes by the Commission.
11.7.4E This section raises several very significant policy questions concerning the intended scope of review by the legislative body of Commission action. As written, it implies de novo review including introduction of new evidence at the legislative body level, including evidence that could presumably have been introduced before the Commission but was not.
In order to assure that the Commission, rather than the legislative body, considers appropriate evidence in the first instance, several clarifications are in order to the extent consistent with state law requirements. First, where new evidence is sought to be introduced, and the party satisfies the legislative body that the new evidence could not reasonably have been presented to the Commission, the matter will be remanded to the Commission for reconsideration on the basis of the new evidence and either alteration or ratification of the decision, after which time the Legislative Body will review the evidence in the record and determine de novo based on the record presented to the Commission initially and as amended, whether to adopt the recommendation from the Commission.
Additionally, for purposes of judicial review, it should be clarified when an action is considered “final” where the legislative body acts with respect to a commission recommendation.
As the commission is aware, significant effort has been expended to provide incentives for open space and affordability in housing throughout the county. The incorporation of the PDD must be bounded sufficiently to prevent it from undercutting the goal of affordability by providing an “easy out” for not including such housing styles and sizes.
In order to tighten up the new PDD, KRC suggests these changes.
2.7.3B The applicant should be required in all cases to meet either 1 or 2, and either 3 or 4, and 5, in order to be eligible for the PDD, thus assuring that at a minimum open space and diversity and either infill or natural resource protection goals are being met.
2.7.3C Clarification is needed that any accessory uses, home occupations, or other uses are also subject to the performance standards and requirements that generally attach to such uses. Also, it should be clarified that the lack of a standard in the PDD addressing a particular issue for which the underlying zone or form does have a standard doesn’t create a conflict, but instead that the underlying zone or form standard should be followed except as otherwise provided in the PDD.
4.7.2B The manner in which the existence and extent of environmentally constrained sites will be identified and demarcated (the extent and condition delineated) is crucial to the implementation of all of the environmental performance standards and incentive-based protections afforded such areas under the new code.
This section is flawed as currently drafted since it relies on the threshold determination of the presence of environmentally constrained features based either on available mapping or a site-specific survey by qualified personnel.
The reality is that there is a wide range of detail and accuracy on existing mapping regarding the presence of many environmentally constrained features. In order to prevent the situation where an applicant relies on mapping that is insufficient in detail or accuracy (such as wetland and stream mapping by the NWS or USGS), this section should be rewritten to require that the applicant conduct a site specific survey for the presence of any environmentally constrained features and if any are noted, provide for the delineation of those features within a site. A second approach, not as effective in identifying such areas, would be where any map indicates the presence of an environmentally constrained feature, a site-specific survey is automatically required to validate that information and to delineate the nature and extent of that feature.
The assumption in the regulation that the presence of such a feature makes the property a constrained site until the delineation occurs is supported.
4.7.3A In the second sentence, the word “feature” should be replaced with “site” since at that point, the assessment of the extent of the feature within the site has not been validated. Also, it should be clarified that the assessment is due no later than when the applicant submits the first application required by the Code for development of the site.
4.7.5B The measures that are proposed for minimizing harm should be acceptable to the county and to any agency with jurisdiction over the resource sought to be protected. Additionally, the measures should not merely “substantially minimize” the impacts, but “adequately mitigate” the impacts, since one could substantially minimize devastating impacts in gross terms and still be unacceptable in terms of adverse impacts in a relative sense.
4.8.2B2 The agricultural exemption should be limited to those lands for which an agricultural water quality plan has been developed.
4.8.4A2c The report should not only include erosion and sediment control measures but should be required to “conclude that erosion and sediment control measures can be installed and maintained in a manner consistent with the requirements of that ordinance, and include evidence of approval of such a plan by MSD.”
4.8.6 The phrase “for cause shown” is without ready meaning, and should be replaced with a provision clarifying that an independent review may be requested at the applicant’s expenses on recommendation of the Natural Resource Conservation Service or MSD or the DPDS Director.
4.1.2 The regulations for lighting should include a requirement that the lighting shall be focused on the feature or features intended to be illuminated in order to prevent light pollution. The loss of night sky views is a significant problem that can readily be mitigated by directing lighting and installing shielding, and this value should be reflected in the general design requirements for the lighting, as a form of light trespass or light nuisance to be avoided to the extent possible through proper design and installation of mitigating features.
4.4.2A3d.iii In order to attempt to minimize the harmful effect of the state law changes that make even the most basic information in the application exempt from open records laws, the Confidentiality section should be amended to read that the form shall include a provision allowing the applicant to voluntarily elect to allow disclosure of the application information, and staff, at the time of filing, will inquire whether the applicant voluntarily wishes to allow disclosure of the information in the application to the public, and indicating that such disclosure is not a requirement of the filing or review.
4.4.3A4a To address those cases in which the grade is different across an area that is proposed for use of razor wire, the wire must at all points be located at least 8 feet above grade.
4.4.4A The introductory sentence needs rewriting to move the clause “that are no longer needed or used at the site of the sale” to follow immediately after “The sale of goods”.
4.4.6 KRC has several general comments concerning this section. First, if there exists an indeterminate cemetery (one with unidentified boundaries,) KRC believes that in order to best protect the integrity of the cemetery and to comply with state law, the entire parcel of land must be considered as a cemetery until the applicant has conducted a Phase I archeological and cultural resources survey by a professional archaeologist in order to delineate the boundaries, and this report is reviewed and approved by the historic preservation office at the local or state level, or the boundaries are delineated by the Board or governing body that controlled and managed the cemetery. Placing a mere 10-foot perimeter around where one thinks the boundaries may be is asking for problems later when the guess proves wrong and remains are encountered, halting the project for potentially long periods while the Phase I work is then done.
The second concern is that it should be categorically stated that all inactive cemeteries must be protected unless they are abandoned and relocated in accordance with KRS 381.720 or 381.755.
4.4.6B1 In section 4.4.6B1, federal regulations should be referenced as well.
In section 4.4.6B1, the office should be notified prior to relocation, not during.
4.4.6B11 The “proper authorities” should be specifically spelled out in the regulation.
4.4.7A This section should include a specific reference to the Erosion and Sediment Ordinance, and require a demonstration of compliance with an approved plan.
A3 is entirely too generous in allowing nine months for site stabilization. Immediate measures should be implemented for stabilization and erosion prevention in accordance with the EPSC regulations and approved plan.
A5 should identify who are the “reviewing governmental officials” and should eliminate the requirement that the feature be peculiar to that area.
4.8 Waterways and Wetlands Protection
KRC will submit additional comments before the end of the calendar day, but in order to assure that these comments are received by COB today, KRC generally includes two points that it urges be incorporated.
First, KRC does not disagree that the width of vegetated buffers can vary depending on the slope of the site, the soils, and the size of the drainage area, and would recommend consultation with the NRCS and Division of Water for reference to buffer scales that can accommodate these distinctions and assure an adequate buffer to satisfy the Comprehensive Plan elements and goals.
The second point is that, in order to best assure conformity of local decisions with state and federal law, all waters of the Commonwealth should be required to be considered and protected through appropriate measures, including intermittent streams. Limiting protections to perennial streams will place applicants in conflict with state and federal law and undercut the legal obligations of the county to effectively control erosion and sediment from construction and development sites.
These comments were added on August 12, 2002 as supplemental to those submitted before close-of-business on August 9:
Among the stated goals of the regulation should be compliance with the goals of the Clean Water Act and state water pollution laws, and satisfaction of the obligations of the community with respect to the state water quality and antidegradation goals.
Section 2.B1 should be limited to agricultural operations as defined by and in compliance with . . . .
No agricultural operation falling under the purview of that statute should be without an agricultural water quality plan. The absence of such a plan is a valid indicator of whether the operation is a legitimately exempt agricultural activity.
In the establishment of buffer areas, these considerations should be included:
a. Native vegetation conforming to the specifications of MSD should be utilized.
b. All "waters of the commonwealth," which under state law include perennial, intermittent and ephemeral streams with defined banks, should be deemed "protected" for purposes of erosion, sediment control, and water quality and quantity assessment and protection. The width of the vegetated buffer should be tiered from 25-100 feet, depending on geologic and hydrologic factors, not on the built form in which the stream is located (which bears no rational relationship to the protection of the functions and values of the waterway).
The stream buffer area division into zones is supported, but the overall are dedicated to buffer should rest on several factors, with a charted matrix determining the width of the buffer that is to be undisturbed or is, if previously disturbed, to be restored, maintained and enhanced. The factors are slopes, soil type, drainage area (catchment draining into the receiving stream) and projected velocity of overland flow, and other measures employed for water quality / quantity management.
c. Consistent with the above-paragraph and with the protection of the homes and lands of this community from adverse flooding impacts, KRC supports the use of a .1 acre threshold for wetland protection, but believes that the requirement that the wetlands be subject to COE and EPA jurisdiction to be inappropriate. Those federal agencies are constrained by commerce clause limitations under the federal constitution that do not similarly constrain state and local government enactments, so that wetlands deemed "isolated" by the COE may be regulated and protected by Jefferson County.
Basing the distinction on federal regulation rather than on science also will be underprotective of wetland resources. Where soils, vegetation and hydrology exist, any wetland over .1 acres should be protected in order to conserve what is left of a significant water management asset in this community that has been significantly stressed and impacted by past development with often catastrophic consequences in the form of periodic flood events and more subtle effects in the form of diminished capability of land areas to attenuate impacts to water quality and in diminished capacity of wetlands to provide base flow in low-flow conditions.
d. No application of pesticides or herbicides should be permitted within the buffer areas.
The determination of the existence of wetlands should be determined on the basis of the environmental assessment site inspection, and should include not only reference to the hydric soils mapping, but also based on soils and vegetation. Reliance of mapping alone is insufficient, since KRC is unaware that any area in the county has been adequately mapped and validated (the National Wetlands Inventory Maps, for example, can be both over- and under-inclusive).
4.8.5B1 should be revised. While compliance with federal regulations is a minimum requirement, the Comprehensive Plan is clear in not allowing disturbance that would destroy wetland resources. Federal law and regulations allow "two-step" destruction of wetlands through draining the resource prior to filling, since then the activity does not fall within the ambit of the "placement of dredged or fill material in a water of the US." The LDC cannot, consistent with the Comprehensive Plan element, allow draining of a wetland whether it would be allowable by the Army Corps of Engineers or not. B1 references "2c" as an exception to a qualified prohibition against draining a wetland, but there is no 2c below.
4.8.5B2 The retention of the requirement that the County not grant final approval to any land disturbing activity, development or subdivision in a wetland that is jurisdictional must be retained, consistent with the recommendation of the oversight committee, so that in determining whether to grant final approval appropriate conditions necessary to meet the LDC which may not have been addressed by those other agencies can be addressed, and to assure that the Commission or appropriate delegate of the DPDS office has reviewed the federal agency action and that any mitigating conditions or changes required by that agency are consistent with the prior approval of the DPDS or county.
Subsection B. should also reference the Erosion and Sediment Control Ordinance and require that compliance be demonstrated with that ordinance.
Subsection H. should be clarified to allow non-vehicular recreation as approved, but not motorized recreation (motorcycles, ATVs).
Subsection I. should be rewritten after review and consultation with the Non-Point Source Section of the Division of Water, which has additional conditions that are imposed on stream-crossings and should be included here, including crossing only under low-flow conditions, avoiding crossings during certain times of year to protect biological resources in the stream from excessive sedimentation and habitat disruption, and, where the crossing will occur on a routine basis during construction, installing reusable low-water crossings (temporary concrete panels with built-in culverts.
The definition of "protected waterway" should be made consistent with the state definition of "waters of the Commonwealth".
The definition of "riparian vegetation" should reference the MSD manual on appropriate and native riparian species.
The definition of "wetlands" should eliminate the last sentence, since it would eliminate the coverage under the Land Development Code of "isolated wetlands" which are beyond the Corps of Engineers' jurisdiction not because of the absence of function or value of the wetlands, but merely because of constraints imposed on federal jurisdiction over intrastate effects and actions under the Commerce Clause.
In closing, KRC again thanks those persons above-mentioned whose outstanding dedication to their work, professionalism under pressure, and commitment to a quality product made this process workable in a community deeply divided concerning quality of life, growth and development issues.
Thank you for your consideration of these comments.