ORD 23-27Ordinance 23-27
An Ordinance Amending Chapter 30, Section 30-1850 through Section 30-1855,
Wetlands Protection Ordinance, of the City of Elk River, Minnesota, City Code
The City Council of the City of Elk River does hereby ordain as follows:
SECTION 1. That § Section 30-1850, Wetlands Protection of the City of Elk River Code of
Ordinances shall be amended to read as follows:
1. Purpose and Intent.
a) The VgMose of this section is to recognize, preserve and protect the environmental, aesthetic,
and hydrologic functions of the cin's wetlands by regulating the use of wetlands and their adjacent
properties. These functions include, but are not limited to, sediment control, pollution controL
filtration, fish and wildlife habitat and aquifer tech
arg
b) The intent of this section is to Protect wetlands to the maximum extent possible while allowing
a reasonable use of the propeM% This section adopts the regulations and standards of the Wetland
Conservation Act of 1991 MCA),, Laws of Minnesota 1991, chapter 354, as amended, and the rules
adopted pursuant to the WCA
2. Designation of Protected Wetlands and Exemptions.
a) The wetlands protected and regulated by this Section are tales 1.1 3. 4, 5, 6, 7, and 8 wetlands,
as defined in circular 39, "Wetlands of the United States", 1956 and 1971 editions, United States
Department of the Interior. Protected wetlands are further generally defined as follows:
Tvne 1 Seasonallv Flooded Basins or Floodnlains: Tvpe 1 wetlands are seasonah, flooded
basins or flats in which soil is covered with water or is waterlogged during variable seasonal periods
but usuall�-- is well -drained during much of the growing season. Tn2e 1 wetlands are located in
depressions and in overflow bottom lands along water courses. Vegetation varies greatly according,
to the season and duration of the flooding_ and includes bottom land hardwoods, as well as
herbaceous plants.
Type 2 Inland Fresh Meadow: Occurs along the shallow edges of lakes, marshes, and
floodnlains, or in perched depressions. The soil is usually without standing water during much of the
growing season but is waterlogged within at least a few inches of the surface. Vegetation includes
g.rasses,sedges, rushes and various herbaceous plants.
^Type 3 Inland Shallow Fresh Marsh: Soil is usually waterlogged during the growing season,
often covered with as much as six inches or more of water. Vegetation includes grasses, bulrushes,
cattails, arrowheads, smartweeds, and other emergent aquatic vegetation.
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Type 4 Inland Deep Fresh Marsh: Soil covered with six inches to three feet or more of water
during art owing season. Vegetation includes cattails, reeds, bulrushes. and wild rice. Open water areas
may contain pondweeds. naiads, coontA water milfoils and other submergent aquatic vegetation.
Tyke 5 Inland Open Fresh Water: Water is usually less than 10 feet deep and is fringed by a
border of emerVent vegeta�egetation includes pondweeds, naiads, coontail, water milfoils and
other submergent aquatic vegetation.
Type 6 Shrub Swamp: Occurs along sluggish streams or on floodplains. The soil is usually
waterlogged during the growink season and is often covered with as much as six inches of water.
Vegetation includes alder, willow, and dogwood.
Type 7 Wooded Swamp: Occurs alon,upgish streams, on floodplains, on flat perched
depressions and in shallow lake basins. The soil is waterlo,gVed to within a few inches of its surface
during the growing season and is often covered with as much as one foot of water. Vegetation
timical to this wetland includes tamarack, white cedar, black spruce, balsam fir. red maple and black
ash.
Type 8 Bog: Occurs along sluggish streams, on flat perched dg.12ressions and shallow lake basins.
The soil is waterlogged and sWports a spongy covering of mosses. Vegetation !Wical to this wetland
t�.ne includes sphagnum moss, heath shrubs and sedges. Minnesota bogs contain leatherlea.f,
Labrador tea, cranberries' and pitcher plants. Scattered stunted black spruce and tamarack are also
common features of boes.
Other: Areas that exhibit wetland characteristics but were created for a purpose other than to create
a wetland are exempt from this section. This includes areas such as storm water ponds, roadway
ditches, or other areas that receive artificial hydrology. The landowner has the responsibility to prove
by a preponderance of the evidence that an area is exempt under this paragraph.
The reconstruction and maintenance of existWg public roads and associated public utilities are
exempt from this section 30.1850 as long as they comply with the WCA as approved by city staff.
3. Interpretation of Wetlands Boundaries.
Whenever a delineated wetland boundary is disputed or uncertain, the city planner or desjoee may
convene the technical evaluation panel according to the WCA rules. The owner must have the
delineated wetland boundary staked in the field in order for the panel to evaluate the area. The
technical evaluation panel and city planner or designee may require additional information to resolve
the dispute or uncertainty. Persons aggrieved by a decision of the citesplanner, or designee may
appeal the decision as provided in section 30-1893 of this ordinance and the WCA rules as
applicable.
4. Wetland Buffer Areas.
a) This subsection establishes requirements for wetland buffer areas around protected type 1-8
wetlands. Buffer areas are necessary and beneficial to maintain the health of wetlands. Buffer areas
protect the edge of wetlands from erosion while filtering sediment. chemicals and other nutrients
from runoff that drains into wetlands. Buffer areas can improve the biological diversity and health of
a wetland environment while reducing the adverse impacts of human activities.
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b) Buffer areas regulated by this section are areas of vegetative cover that are Wland of the wetland
edge, and that occur in a natural condition or through restoration. Buffer areas consist of shrubbery
and trees, and native grasses or forbs or both that are not mowed,_ fertilized, or manicured in and
manner.
c With the exce tion of T e 1 wetlands that are manicured turf and not art of a.Proj2osed
develo 5ment wetland buffer areas must be cteatecL or existing buffer areas must be maintained
around all protected tie 1-8 wetlands in the following situations:
1) when wetlands are required to be replaced or restored;
2) when new development occurs. For purposes of this subsection, new development
means:
a) aM subdivision that creates a new lot that has no rind Sal use on i
b construction of a pringipal use on an existing vacant parcel of land,•
3) when redevelopment occurs. For purr oses of this section redevelol-ment means the
reconstruction of the pringiVal structure if it includes the removal of the principal structure b more
than 50 percent of the square footage of the building footprint or an increase of the square footage
of the building foorprint by more than 50 percent. This requirement does not apply if construction
is the result of more than 50 percent of the building being damaged by an involuntary force, such as
` fire, wind, or vandalism.
l _4) when the city requires a buffer as part of a variance, expansion permit, conditional use permit,
or a site plan review; or
5) on any preserve wetland when grading or construction is proposed that requires a city permit
and the proposed activit3- could potentially impact the duality of the wetland by increasing hard
surface run off, altering existing drainage, or impacting an existing buffer.
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SECTION 2. That § Section 30-1851, General Provisions of the City of Elk River Code of
Ordinances shall be amended to read as follows:
Sec. 30-1851. — General Provisions
(a) The Minnesota Wetland Conservation Act and Minnesota Rules, Chapter 8420, as amended
from time to time, are hereby incorporated by reference. In case of a conflict between this
division and the requirements of state law the more restrictive provision shall apply.
(b) No property owner or other person shall make any alteration to a wetland or wetland buffer
strip unless and until the provisions of this division have been complied with.
(c) Unless determined otherwise by the city or the technical evaluation panel (TEP), a property
owner, applicant for building permit, or applicant proposing work in or around wetlands shall
submit to the city prior to making any alteration to a wetland or wetland buffer strip the
following information:
(1) Wetland delineation plan and written report,
(2) Wetland impact plan,
(3) Wetland mitigation plan, and
(4) Any other information deemed necessary under this ordinance or the WCA as determined
by the city or TEP.
(d) A determination regarding wetland impacts must be made by the city or TEP prior to any
wetland alteration, issuance of a building permit, or approval of a subdivision by the planning
commission. Any conditions required by the city or the TEP will become conditions of
building permit issuance or subdivision approval.
(Ord. No. 06-07, § 2, 6-19-2006)
Sec. 30-1852. - Performance standards. (City of Elk River code section)
(a) Wletland buffer strip. A minimum 25-foot buffer strip from the delineated boundary of a wetland
or ordinary highwater level of a stormwater pond is hereby established. Wetland buffer strips
shallmeet the following standards:
i. No principle or accessory structures, patios, paving, or other impervious surfaces shall be
permitted within the wetland buffer strip.
ii. Alterations are prohibited within the wetland and wetland buffer strip unless a vegetation
management plan or other approval is granted by the city.
iii. The applicant shall establish and maintain wetland and wetland buffer strip vegetation in
accordance with the requirements found in section 30-1853.
iv. The applicant shall maintain the required wetland buffer strip monuments at each lot line
where it crosses a wetland buffer strip and at 200-foot intervals along the edge of the
wetland buffer strip. Each monument shall state "Wetland Buffer: Under the City Code,
no mowing, clearing or removal of vegetation in the buffer area is allowed. Call the City of
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Elk River for more information." The city reserves the right to eliminate this requirement
if it deems it impractical.
v. The city, at its sole discretion, following the city's master park trail plan, may allow nature
trails comprised of natural materials, to be located within the wetland buffer strip.
vi. Leisure activities such as hiking, nature studies, canoeing, boating and horseback riding,
including facilities such as nature trails and docks which allow for such activities are
permitted in the wetland buffer strip.
vii. Final plats for all subdivisions shall provide an easement over all wetlands and wetland
buffer strips for the purposes of identification and protection.
viii. Properties platted prior to June 19, 2006, shall be exempt from the vegetation
management requirements described in subsections ii—iv above.
(b) 1Y�etland buffer strip setback. A minimum 20-foot setback from wetland buffer strips is
hereby established by the city.
i. No principle or accessory structures, patios, paving, or other impervious surface
shall be located within this setback.
ii. Nature trails, at the city's approval, may be located within the wetland buffer strip
setback.
iii. On property that was platted prior to June 19, 2006, uncovered decks and
permeable pavement can be located within this setback.
(c) Exceptions. Properties platted prior to adoption of the wetland buffer strip and
Wetland buffer strip setback performance standards set forth in this section may
not be configured to accommodate the required performance standards. For this reason,
exceptions to the performance standards for properties platted prior to June 19, 2006, may
be approved by the planning manager pursuant to the site plan review process. Applicants
for site plan review shall pay the fee specified in the city's fee schedule. Site plan approvals
and required conditions shall be made by the planning manager on a case -by -case basis,
with the goal of maintaining consistency with the performance standards to the maximum
extent reasonably possible. Appeals from staff determinations and conditions may be made
pursuant to the appeal procedures set forth in section 30-634.
(d) Fences. Fences may encroach into the wetland buffer strip setback, but at no time
shall they be allowed within the wetland buffer strip or in delineated wetlands. Properties
platted prior to June 19, 2006, shall be exempt from this requirement.
(Ord. No. 06-07, § 2, 6-19-2006; Ord. No. 16-24, § 1, 11-21-2016; Ord. No. 17-07, 5 1, 4-
17-2017; Ord. No. 18-12, � 1, 7-16-2018)
Sec. 30-1853. - Vegetation standards.
(a) Where acceptable natural vegetation exists in wedand and wetland buffer strip areas, the
retention of such vegetation in an undisturbed state is required unless an applicant receives
approval to replace such vegetation. A wedand or wetland buffer strip has acceptable
natural vegetation if it:
1. Has a continuous, dense layer of perennial grasses that have been uncultivated or
unbroken for at least five consecutive years, or
2. Has an overstory of trees and/or shrubs with at least 80 percent canopy closure that
have been uncultivated or unbroken for at least five consecutive years, or
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3. Contains a mixture of the plant communities described in (1) and (2) above that have
been uncultivated or unbroken for at least five consecutive years.
(b) Notwithstanding the performance standards set forth above in subsection (a) the
city environmental administrator and/or his/her designee may determine existing
wetland or wetland buffer strip vegetation to be unacceptable if it:
1. Is composed of weeds or
2. Has topography that tends to channelize the flow of surface runoff, resulting in
erosion issues, or
3. Is unlikely to retain nutrients and sediment.
(c) Where wetlands or wetland buffer strips, or a portion thereof, are not vegetated or have
unacceptable vegetation or have been cultivated or otherwise disturbed within five years of
the permit application, such areas shall be re -planted and maintained. The wetland and
wetland buffer strip landscaping shall be planted according to the city's planting guidelines,
or the applicant shall submit a planting plan for approval by the city. (Ord. No. 06-07, § 2,
6-19-2006)
d] In cases of new development or redevelopment the city may require that vegetation in the
wetland buffer be installed prior to the issuance of the certificate of occupancy. To ensure
installation of the buffer the city may require a cash escrow or letter of credit equal to 150
percent of the cost to install the required buffer.
e1 The city may allow the disturbance of an existinc, buffer area during the course of
construction activity. This disturbance must be ke t to a minimum soils must be decom . acted
to a level that will accommodate root growth, and the buffer area must be re-established as
required by the cite. The cite will determine the amount of allowable disturbance. The city: may
require a cash escrow or letter of credit eaual to 150 percent of the cost to re-establish the buffer
to its original condition.
The city may require buffer area nlantina and maintenance when the city determines that
there is inadequate vegetation in the buffer area to meet the intent of this section. The city may
require a cash escrow or letter of credit equal to 150 percent of the estimated cost of the
vegetation and installation. The escrow or letter of credit must be valid for up to two years and
may be used by the cite to rel)lace any vegetation that dies.
4 The affected property owner or homeowner association that is responsible for the
maintenance must:
11 maintain and repair damaLe to buffer areas from such activities as mowing. cuttin
grading or other prohibited activities, unless mowingis approved by- ciry staff as a buffer
management strategy-. Permission must be obtained from the cin before implementing,
buffer management stratwies. which may include mowinL,_ burning. and the use of
herbicides.
2) be responsible for maintaitung only, the permitted vegetation in the buffer area and
must remove all noxious weeds and invasive, non-native species such as European
buckthorn
3) ensure that all soil surfaces in the buffer area are planted with the permitted vegetation
and that there is no open soil surface that may result in erosion.
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6. Permitted Uses.
a) Within the wetland no land may be used except for one or more of the following uses:
1 native wetland vegetation, provided that no change is made to the ground elevation
2) wildlife and nature preserves:
3) public overhead utility lines and Poles that are less than two feet in diameter;
5)_pervious hiking and skiing trails that coM31l with WCA standards. Pervious will mean an area
where water is able to infiltrate into the ground;
6) public and private flood control structures,�pon" and drainage facilities and associated
accessory appurtenances if the cite determines that there is no other viable alternative and as
approved by the city engineer:
7) environmental monitoring or control facilities, including those related to water quality and
wildlife regulation;
8) in wetlands where imnpervious, public trails exist, maintenance of the trail will be allowed as
long as there is not an increased impact to the wetland.
bl Within wetland buffer areas no land may be used except for one or more of the following uses:
1) native vegetation, provided that no change is made to the ground elevation:
2) wildlife and nature preserves:
3)_pervious hiking and skiing trails. Pervious will mean an area where water is able to infiltrate
into the ground:
4) public and private flood control structures,, ponding and drainage facilities and associated
accessory appurtenances:
5) environmental monitoring or control facilities including those related to water tmak and
wildlife regulation;
6) public overhead utility poles and lines that are less than two feet in diameter,_ under round
public utility lines and distribution equil)menr. Wht poles; traffic signals, traffic regulatory signs.
mailboxes and other eyuinment that provides an essential public service:
7) fences;
8 retaining walls if the g4 determines that the retaiping wall will protect the wetland from
existing conditions of erosion;
9 in wetland buffer areas where impervious, public trails exisL maintenance of the trail will be
allowed as long as there is not ajjy additional impact act to the wetland buffer area.
7. Conditional Uses.
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Within the wetland buffer areas, no land may be used for the followin, except by conditional use
permit and except in conformance with the standards specified in subsection 8 of this section:
a) private and public recreational uses, including golf courses, impervious trails, picnic grounds and
boat ramps;
b) public utilities not permitted under subdivision 6 of this section, includingne_ cessaly structures:
c) other non-structural facilities similar to those permitted by this section which also meet the
intent of this section, as determined by the city, or
d) public structures associated with recreational uses permitted by this subsection or by subsection
6 of this section that are designed in an environmentally sensitive manner and will withstand
periodic flooding, except for structures designed or used for habitation or the storage of equipment.
SECTION 3. That § Section 30-1853, Standards for Wetlands, Buffer Areas, and Neighboring
Lands of the City of Elk River Code of Ordinances shall be amended to read as follows:
8. Standards for Wetlands, Buffer Areas, and Neighboring Lands.
The following standards apply to all land within wetlands, wetland buffer areas, and to neighboring
lands:
a) Protection of wetlands and wetland buffer areas.
11 _ Except as modified or regulated by the standards of this subsection, all requirements of the
underlying zoning district apply.
2) Activities including, but not limited to, building paving, mowing,, cutting, filling, dumping,
yard waste disposal or fertilizer application are prohibited. Mowing may be permitted when
approved bby city staff as a buffer management strategy. However,_ invasive non-native vegetation,
such as European buckthorn and noxious weeds, may be removed.
3) Before grading or construction near a wetland overlay district, the owner or contractor must
lace erosion control fencing on the upland side of the perimeter of the wetland overlay district,
whichever is more restrictive or as rep uired b the cii � . This fencing must remain in place until all
development activities that may affect the wetland and the wetland buffer area have been finished
and adequate vegetative cover has been established.
t All structures must have a minimum basement floor elevation not less than two feet above the
100-year flood elevation.
5) All hard surface runoff must be treated in accordance with the requirements of the city and the
appropriate watershed district. Treatment may include site retention, skimmers. weirs, bioretention
or infiltration basins, or sedimentation ponds of appropriate scale. Structures and ponds serving this
purpose must be properly- maintained and serviced by the property owner.
6) Discharge into the wetlands must occur at a rate no greater than allowed by the city engineer
in accordance with the city-'s water resources management plan.
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10. Public Control of Wetlands.
a] The cinv council may require that the owner of anv ntonerty affected by this ordinance must
record wetland and buffer area easements or restrictive covenants within the property's chain of tide.
These easements or covenants must describe the boundaries of the wetland and buffer area and
prohibit an: building, paying, myowing (unless approved as a management strateg). cutting,.
dumping. Ward waste disposal or fertilizer application within the wetland and the buffer area. The
owner or developer must record these easements or covenants with the final plat with deeds from a
lot division or, if no subdivision is involved, before the city issues a grading rjermit or building
nermit for an affected nroraerm The annlicant must submit evidence that the easement or covenant
has been submitted to the county for recordin
b] If the city council does not require an easement or covenant, the city may record a notice of the
wetland and buffer area rgQuirements against the pro petty. The proper - owner must still comply
with the requirements of this section.
11. Wetland Buffer Markers.
When new development or redevelopment results in multifamily residential or a business use. the
developer may be required to place markers at the upland boundary of the wetland buffer edge at
least evM two hundred feet. The developer must use uniform markers provided by the city. The
ci will char e a reasonable cost for the markets.
Sec. 30-1854. - Variances.
Variances may be considered for deviations from the strict application of the standards set forth in
sections 30-1850 to 30-1853, pursuant to the procedures and requirements of section 30-633 of
this Code.
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(Ord. No. 06-07, j 2, 6-19-2006)
Secs. 30-1855-30-1860. - Reserved.
SECTION 4. That this ordinance shall take effect upon adoption and be published as provided by
law.
Passed and adopted by the City Council of the City of Elk River this 18th day of December 2023.
Wiletz
ATTEST:
-4-( V-"
Tina Allard, City Clerk
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1Iw tl Et
hIATU#'E
AFFIDAVIT OF MLICATION
STATE OF MINNESOTA ) ss 1 COUNTY OF SHERBURNE 1111
Rhonda Herberg being duly sworn on an
oath, states or affirms that he/she is the
Publisher's Designated Agent of the newspa-
pers) known as:
Star News
with the known office of issue being located
in the county of-
SHERBURNE
with additional circulation in the counties of:
WRIGHT
and has full knowledge of the facts stated
below:
(A) The newspaper has complied with all of
the requirements constituting qualifica-
tion as a qualified newspaper as provided
by Minn. Stat. §331A.02.
(B) This Public Notice was printed and pub-
lished in said newspaper(s) once each
week, for 1 successive week(s); the first
insertion being on 12/23/2023 and the last
insertion being on 12/23/2023.
MORTGAGE FORECLOSURE NOTICES
Pursuant to Minnesota Stat. §580.033
relating to the publication of mortgage
foreclosure notices: The newspaper complies
with the conditions described in §580.033,
subd. 1, clause (1) or (2). If the newspaper's
known office of issue is located in a county
adjoining the county where the mortgaged
premises or some part of the mortgaged
premises described in the notice are located,
a substantial portion of the newspaper's
circulation is in the II Gou: ty,
By:
esignated ,gem
Subscribed and sworn to or affirmed before
me on 12/23/2023 by Rhonda Herberg.
Notary Public
as ,� ,,{IMBERLY A HANSON
.: Notary Public
State of Minnesota
My Commission Expires
k January 31, 2028
Rate Information:
(1) Lowest classified rate paid by commercial users
for comparable space:
$999.99 per column inch
Ad ID 1362390
CITY OF ELK RIVER
Councilmember Westgeard in-
troduced the following resolution
and moved Its adoption:
RESOLUTION 23-64
A RESOLUTION OF THE
CITY OF ELK RIVER
APPROVING NOTICE OF
SUMMARY PUBLICATION
OF ORDINANCE #23-27
AN ORDINANCE OF
WETLANDS PROTECTION.
WHEREAS, on Dec 18, 2023,
the Elk River City Council adopted
Ordinance 23-27 amending Sec-
tions 30-1850 through Sections
30-1855, of the Elk River Code of
Ordinances; and
WHEREAS, this Wetland Ordi-
nance is expanded to protect wet-
lands to the maximum extent pos-
sible while allowing a reasonable
use of the property; and
WHEREAS, this ordinance
adopts the regulations and stan-
dards of the Wetland Conservation
Act of 1991 (WCA), Laws of Minne-
sota 1991, chapter 354, as amend-
ed, and the rules adopted pursuant
to the WCA; and
WHEREAS, this ordinance pro-
vides additional information and
detail on the permitted uses al-
lowed to assist residents in their
planning and development pro-
cess, and
WHEREAS, this ordinance pro-
vides additional information to
residents on the Standards for Wet-
lands. Buffer Areas, and Neighbor-
ing Lands, and
WHEREAS, a copy of the full
text of the ordinance is available
for inspection by any person at the
office of the Elk River City Clerk,
13065 Orono Parkway, during reg-
ular business hours; and
NOW, THEREFORE, BE IT RE-
SOLVED by the City Council, by at
least four -fifths vote, authorizes the
publication of the title and summa-
ry of Ordinance 23-27.
The motion for adoption of the
foregoing resolution was duly sec-
onded by Councilmember Gruoa,
and upon vote being taken thereon,
the following voted in favor thereof
Mayor John Dietz, Councllmem-
bers Cory Gruoa. Mike Beyer, Matt
Westgeard. and Jennifer Wagner.
and the following against: none,
whereupon said resolution was de-
clared duly passed and adopted.
The following members were
present: Mayor John Dietz. Coun-
cilmembers Cory Grupa. Mike Bev-
er. Matt Westgagrd. and Jennifer
yy�ga� and the fallowing absent:
none
Passed and adopted this 180,
day of December 2023.
John J. Dietz, Mayor
ATTEST:
Tina Allard, City Clerk
Published in the
Star News
December 23, 2023
1362390