KPB Anadromous Streams
Habitat Protection Ordinance
Chapter 21.18
21.18.010. Findings
21.18.020. Purpose
21.18.025. Application
21.18.030. Periodic Review
21.18.035. Reserved
21.18.040. Habitat Protection District Established
21.18.050. Reserved
21.18.060. Reserved
21.18.065. Activities not requiring a permit
21.18.070. Reserved
21.18.071. Staff permits
21.18.072. Limited commercial activity within habitat protection area
21.18.075. Prohibited uses and structures
21.18.080. Reserved
21.18.081. Conditional use permit
21.18.082. Permit revocation
21.18.090. Prior existing uses and structures
21.18.091. Mitigation measures
21.18.100. Administration by cities--Delegation--Legal proceedings
21.18.110. Violations-Enforcement
21.18.120. Conflict with city land use authority or other laws or regulations
21.18.130. Administration and appeals
21.18.135 Exemption for emergency situations
21.18.140. Definitions
21.18.145. Variances
21.18.010. Findings
A. In enacting this ordinance the assembly finds numerous factors affect the habitat of the anadromous streams within the Kenai Peninsula Borough. These include bank erosion, bank trampling, pollution, inadequate tourism infrastructure, unsuccessful attempts to remedy bank erosion or protect and restore habitat, inconsistent regulations and enforcement, logging, grazing, mining, wetland fill and drainage, excavation and fill of property, dredging, inappropriately installed culverts, fuel storage, and maintenance of existing structures.
B. The assembly finds that the sensitivity of the river area requires general prohibition on activities within an area immediately adjacent to anadromous streams, and only activities which do not damage the habitat should be allowed.
C. The assembly finds that fuel storage and significant removal of vegetation within the 100-year floodplain along the anadromous streams require regulation to protect the salmon habitat.
D. The assembly finds that the uncontrolled use and pollution of shoreland and riparian areas adversely affects the public health, safety, convenience, and general welfare, and impairs the tax base.
E. The assembly finds that the legislature of Alaska authorizes the borough to provide for planning, platting, and land use regulation. AS 29.40.010, Planning, platting, and land use regulation, states in subsection (a) that "[a] first or second class borough shall provide for planning, platting, and land use regulation on an areawide basis."
F. The assembly finds that the riparian ecosystem includes stream bank and floodplain areas and recognizes that impacts to anadromous streams may be due to activities and uses within the greater watershed.
G. The assembly finds that the 1997 update of the Alaska Department of Natural Resources Kenai River Comprehensive Management Plan recognized the increased use of the Kenai River resource and its associated impacts and recognized the deterioration of nearshore habitat for juvenile salmon and stated in Section 2.2 that "[t]he importance of riparian (stream bank) vegetation to fish and wildlife values cannot be overestimated."
H. The assembly finds that it is in the public interest to further the maintenance of safe and healthful conditions; prevent and control water pollution; protect spawning grounds, fish, and aquatic life; control building sites, placement of structures, and land uses; and to preserve shore cover and natural beauty. These responsibilities are hereby recognized by the Kenai Peninsula Borough.
21.18.020. Purpose
For the purpose of promoting the public health, safety, and welfare, this chapter has been established to:
A. Protect and preserve the stability of fish and wildlife and other natural resources through:
B. Provide a guide for growth and development along anadromous streams in accordance with the Kenai Peninsula Borough Comprehensive Plan and through:
C. Achieve the goals and implement the policies of the Kenai Peninsula Borough Comprehensive Plan.
D. Protect and enhance real property values.
21.18.025. Application
The following anadromous streams, as identified in the "Atlas and Catalogue of Waters Important for Spawning, Rearing, or Migration of Anadromous Fish" published by the Alaska Department of Fish and Game, are subject to this chapter:
A. Within the east side of Cook Inlet as follows:
1. Kenai River, Stream No. 244-30-10010, and its following tributaries:
(a) Beaver Creek, Stream No. 24430-10010-2025
(b) Slikok Creek, Stream No. 24430-10010-2030
(c) Soldotna Creek, Stream No. 24430-10010-2039
(d) Funny River, Stream No. 24430-10010-2050
(e) Moose River, Stream No. 24430-10010-2063
(f) Killey River, Stream No. 24430-10010-2076
(g) Upper Killey River, Stream No. 24430-10010-2110
(h) Russian River, Stream No. 24430-10010-2158
(i) Quartz River, Stream No. 24430-10010-2177
(j) Trail River, Stream No. 24430-10010-2225
2. Swanson River, Stream No. 247-90-10020
3. Kasilof River, Stream No. 244-30-10050
4. Ninilchik River, Stream No. 244-20-10090
5. Deep Creek, Stream No. 244-20-10100
6. Stariski Creek, Stream No. 244-10-10050
7. Anchor River, Stream No. 244-10-10010
8. Fox River, Stream No. 241-14-10645
9. Seldovia River, Stream No. 241-11-10730
10. English Bay River, Stream No. 241-30-10500
11. Bradley River, Stream No. 241-1410625-2010
12. Bishop Creek, Stream No. 246-90-10030
13. Chickaloon Creek, Stream No. 247-60-10110
14. North Fork of Anchor River, Stream No. 24410-10010-2011
15. Seven Egg Creek, Stream No.24780-10010
B. In addition to the water bodies listed in 21.18.025(A), all anadromous waterbodies within the municipal boundaries of the Kenai Peninsula Borough which are listed in the "Atlas and Catalogue of Waters Important for Spawning, Rearing, or Migration of Anadromous Fish" as periodically updated and published by the Alaska Department of Fish and Game, excluding all portions of waterways found within the Seward-Bear Creek Flood Service area, are subject to this chapter as of January 1, 2012.
C. The additional anadromous streams set forth in KPB 21.18.025 (B) are subject to KPB 21.18.090 governing prior existing uses and structures, as of January 1, 2012, unless the anadromous stream is not published in the "Atlas and Catalogue of Waters Important for Spawning, Rearing, or Migration of Anadromous Fish" until a later date. The data that an anadromous stream is added to the Atlas will be the date that KPB 21.18.090 is effective for that stream."
(Ord. No. 2011-12, § 1, 6-21-11; Ord. No. 2000-08, § 4, 5-16-00)
21.18.030. Periodic Review
21.18.035. Reserved
Editor's note—
Ord. No. 2010-12, § 2, adopted April 6, 2010, amended the Code by repealing former 21.18.035 in its entirety. Former § 21.18.035 pertained to the Kenai River watershed district, and derived from Ord. No. 96-06.
21.18.040. Habitat Protection District Established
There is established an anadromous stream habitat protection district. Except as otherwise provided in this section, this district includes all lands within 50 horizontal feet of the streams set forth in KPB 21.18.025. This shall be measured from the ordinary high water mark or mean high water line in tidal areas. Where the banks within this 50-foot district consist of a 60 degree or more cut bank the habitat protection district shall consist of the greater of 50 feet from the river or to a point 25 feet back from the top of the cut bank.
(Ord. No. 2010-21, § 1, 6-8-10; Ord. No. 2000-08, § 5, 5-16-00; Ord. No. 96-06, § 1(part), 1996)
21.18.050. Reserved
Editor's note—
Ord. No. 2010-12, § 3, adopted April 6, 2010, amended the Code by repealing former 21.18.050 in its entirety. Former § 21.18.050 pertained to flood plain restrictions for habitat protection, permits, fuel storage tanks and logging, and derived from Ord. No. 96-06, and Ord. No. 2000-08, adopted May 16, 2000.
21.18.060. Reserved
Editor's note—
Ord. No. 2010-21, § 2, adopted June 8, 2010, amended the Code by repealing former § 21.18.060 in its entirety. Former § 21.18.060 pertained to prohibited activity within the protection area, and derived from Ord. No. 96-06 of 1996.
21.18.065. Activities not requiring a permit
The permit required by this chapter are not required for noncommercial recreational and other non-intrusive activities which do not involve construction, excavation, or fill of land and do not result in erosion, damage to the habitat protection district, or increase ground water pollution.
(Ord. No. 2010-14, § 1, 4-6-10)
21.18.070. Reserved
Editor's note—
Ord. No. 2010-14, § 2, adopted April 6, 2010, amended the Code by repealing former § 21.18.070 in its entirety. Former § 21.18.070 pertained to activities not requiring a permit, and derived from Ord. No. 96-06, Ord. No. 97-26, and Ord. No. 2000-08, adopted May 16, 2000.
21.18.071. Staff Permits
A. An application for a permit shall be made and a permit issued before commencement of certain activities, uses, and structures set forth in this section if they do not result in erosion, damage within the habitat protection district, or an increase in ground or water pollution. An application for a permit shall be made to the Kenai Peninsula Borough at the river center. Upon determination that the submitted information of record supporting the permit application meets the requirements of this section, staff shall issue a permit for the following activities, uses, and structures in the habitat protection district:
1. Minor vegetation management (trimming, pruning, or removal of hazardous trees).
2. Elevated light penetrating structures. These structures include structures that are not ancillary to another use but are constructed solely for purposes of accessing the river and may include but are not limited to boardwalks, gratewalks, stairs, ramps, platforms, and gangplanks. Elevated light penetrating structures must be constructed of wood, plastic, fiberglass, aluminum, steel, or other nontoxic material. If the wood is treated, it must be certified as nontoxic to plants and animals by an independent laboratory or other appropriate agency. The topography of the bank and habitat protection district may not be altered to provide for the installation of these structures.
a. Elevated light penetrating structures with less than 60 percent but a minimum of 25 percent light penetration must not exceed six feet in width and must be constructed so that no part, other than the supporting posts, are less than 18 inches from the ground.
b. Elevated light penetrating structures with at least 60 percent light penetration must not exceed eight feet in width and must be constructed so that no part, other than the supporting posts, is closer than four inches from the ground. To ensure safety or to aid access, one side or edge of the elevated light penetrating structure may be lowered, provided that the frame on the riverward edge of the structure, is not less than four inches from the ground. Lowering of the surface shall not result in erosion or damage to the bank or vegetation, and the remainder of the structure must still meet the requirements of this chapter.
c. For elevated light penetrating structures under KPB 21.18.071(a) and (b), the total length of all elevated light penetrating structures that run along or parallel to the banks of the streams shall be limited in length to no more than one-third of the total lineal river frontage of the parcel on which it is constructed.
d. For all elevated light penetrating structures under KPB 21.18.071(a) and (b), the open space must be uniformly distributed throughout the structure surface.
e. Elevated light penetrating structures constructed prior to the effective date of this section may be brought into compliance with the standards of this section without obtaining a permit.
3. A single fish-cleaning station may be constructed, provided it has no enclosed sides or roof and that any shelf below the fish-cleaning surface must be at least 60 percent light penetrating and be elevated at least eight inches from the ground. Fish-cleaning stations shall not exceed 25 square feet, excluding the chute and drain pipes, if any.
4. Bank restoration and protection projects.
B. Applicants for a river center permit are responsible for abiding by all other federal, state, and local laws, regulations, and permitting requirements applicable to the project.
(Ord. No. 2010-14, § 3, 4-6-10)
21.18.072. Limited commercial activity within habitat protection area
The planning commission may issue a permit for activities to be conducted within or using the habitat protection area as provided in this section. Permits are required for commercial activities of the same nature as those allowed under 21.18.070 B. for private non-commercial use upon conditions that the activity is limited to pedestrian use over boardwalks, stair and docks necessary to alleviate the increased levels of activity attendant to the commercial activity. A permit may not be issued unless the planning commission determines the activity will be conducted in a manner that does not result in significant erosion, destruction of wetlands or riparian habitat, or result in or increase ground or water pollution. Permits are conditioned upon compliance with all applicable federal, state and local laws and regulations. In granting a permit, the planning commission may establish such conditions on the development, use or operation of the activity or facility for which the conditional use permit is granted as it determines necessary to prevent erosion, destruction of wetlands or riparian habitat or result in or increase ground or water pollution. The activity must be conducted on a portion of property adjacent to the property within the habitat protection area for which the permit is sought.
21.18.075. Prohibited uses and structures.
Any use or structure not permitted in KPB 21.18.071 or 21.18.081 is prohibited.
(Ord. No. 2010-21, § 3, 6-8-10)
21.18.080. Reserved
Editor's note—
Ord. No. 2010-21, § 4, adopted June 8, 2010, amended the Code by repealing former § 21.18.080 in its entirety. Former § 21.18.080 pertained to conditional use permits, and derived from Ord. No. 96-06 of 1996; Ord. No. 97-26, adopted 1997; Ord. No. 2004-14, adopted June 1, 2004.
21.18.081. Conditional use permit
A. Intent. The intent of this section is to allow special uses and structures which may be compatible with KPB 21.18.071 in the habitat protection district through the approval of a conditional use, if certain standards and conditions exist.
B. Conditional uses and structures. The following conditional uses and structures may be approved in the habitat protection district:
1. Fish-cleaning stations;
2. Fences;
3. Signs;
4. Public owned facilities, parks, campgrounds, and their related uses and structures;
5. Transportation and utility infrastructure;
6. Structures compliant with the Americans With Disabilities Act and elevated light penetrating structures not meeting the standards of KPB 21.18.071
7. Wells and waterlines;
8. Lifts.
9. Private boat launches and related facilities that are established to serve the public provided the following standards are met:
a. A plan of operation is submitted that includes hours of operation, seasons of operation, daily boat launch capacity, parking plan, types of boats and clients to be served, fees charged, location of other public boat launches on the anadromous stream; ancillary facilities including but not limited to restrooms, storage sheds, waiting platforms or areas, a statement of need that the facility will serve, and other information requested to aid in the determination of habitat protection measures.
b. The boat launch must be open to the public and not have exclusive membership.
c. When no longer serving the public as defined in the plan of operation the boat launch must be removed and the area reclaimed, revegetated or otherwise subject to mitigation measures to restore habitat. A reclamation plan must be submitted with the application as part of the plan of operation.
d. The planning commission may establish additional conditions to protect and preserve the purposes of the habitat protection district.
e. A conditional use permit under this subsection expires two years after being granted, unless an application for renewal meeting the criteria of KPB 21.18.081(B)(9)(a) is approved by the planning commission which demonstrates that the applicant is in compliance with the original permit conditions and the provisions of this chapter.
C. Application procedure. A person seeking a conditional use permit must make application to the river center on a form provided by the river center and receive approval prior to commencement of the project. The application shall provide information describing the proposed use or structure and demonstrate that the use or structure meets the general standards for a conditional use permit. The planning commission may approve, deny, or conditionally approve an application for a conditional use permit. The planning commission has no obligation to ascertain whether special conditions can be developed or imposed unless the applicant has submitted adequate information to demonstrate that the proposed methods or conditions will mitigate the impacts of the use or structure within the habitat protection district.
D. General standards. All of the following standards shall be met before conditional use approval may be granted.
1. The use or structure will not cause significant erosion, sedimentation, damage within the habitat protection district, or an increase in ground or surface water pollution;
2. Granting of the conditional use shall be consistent with the purposes of this chapter, the borough comprehensive plan, other applicable chapters of the borough code, and other applicable planning documents adopted by the borough;
3. The development of the use or structure shall not physically damage the adjoining property;
4. The proposed use or structure is water-dependent.
5. Applicant or owner's compliance with other borough permits and ordinance requirements.
E. Conditions attached to conditional uses and structures. In granting a conditional use permit, the planning commission may establish such conditions on the development, use, or operation of the use or structure for which the conditional use permit is granted as it determines necessary to prevent significant erosion, sedimentation, damage within the habitat protection district, or result in or increase ground or surface water pollution. Such conditions may include specifications for type of vegetative shore cover, location of structures and uses, periods of operation, type of construction, and mitigation. Violation of any of these conditions shall be deemed a violation of this ordinance. To secure information upon which to base its determination, the planning commission may require the applicant to furnish the following information:
1. A plan of the area showing surface contours, ordinary high water or mean high water marks, vegetative cover, slope measurements, soil conditions, wetlands, and drainages;
2. Location of buildings, parking areas, access, walkways, and other manmade features on the landscape;
3. Other pertinent information necessary to determine if the proposed use meets the requirements of this ordinance.
F. If the planning commission denies a conditional use permit, a similar application for a conditional use permit may not be made within two years from the date of the denial unless there has been a substantial change in circumstances affecting the application.
G. Applicants for a conditional use permit are responsible for abiding by all other federal, state, and local laws, regulations, and permitting requirements applicable to the project.
H. The construction or installation phase of a use requiring a conditional use permit must be completed within one calendar year from the date of the permit's issuance, or the conditional use permit shall expire unless the planning commission finds that more time is necessary to effectuate the purposes of this chapter, in which case the commission may extend the deadline for a maximum of six years from the date of issuance. The planning commission shall adopt findings consistent with the purposes of this chapter to support the issuance of a permit, or an extension thereof, totaling more than two years from the date of issuance. Prior to its expiration date, a conditional use permit issued for up to one year may be extended for up to twelve (12) months by the river center director upon written request.
(Ord. No. 2010-21, § 5, 6-8-10)
21.18.082. Permit Revocation
A conditional use permit issued pursuant to this chapter may be revoked by the planning commission if the applicant fails to comply with the provisions of this chapter or the terms of a permit issued under this chapter. River center staff shall provide at least 30 days written notice to the permittee of a revocation hearing before the planning commission. The notice shall provide specific grounds for the proposed revocation. If the permittee provides written evidence to the river center staff demonstrating reasonable compliance with this chapter and the terms of his permit within the 30 day period then the revocation hearing may be canceled at the discretion of the river center director.
(Ord. No. 2010-21, § 6, 6-8-10)
21.18.090. Prior existing activities and structures
A. Intent. There are uses which were conducted, and structures which were under construction, or exist and were in use before the enactment of this ordinance which would be prohibited or restricted under the terms of this ordinance or future amendments. It is the intent of this section to permit these prior existing uses or structures to continue but not be increased, expanded, or intensified. Any prior existing uses or structures must still comply with other applicable laws.
B. The burden of proof is on the applicant to show that a prior existing use or structure existed, when the use or structure was established, and the size, location, and level of use.
C. Structures. Structures which were under construction or in use before the effective date of any provision of this chapter, but that would be prohibited or restricted under the terms of this chapter, shall be allowed to continue, provided that a structure under construction must have been substantially completed by April 16, 1998 for the Kenai River and May 16, 2002, for the anadromous streams set forth in KPB 21.18.025(A)(1)(a) through (A)(15).
1. Upon application and approval of a prior-existing structure/use permit by river center staff principal structures may be replaced, repaired or reconstructed within two years after accidental damage or destruction by fire, explosion, natural disaster, flood, or other casualty, force of nature, or other force or act beyond the owner's control and not intentionally caused by the owner. If a principal structure is not substantially damaged and only a portion of the structure has been damaged or destroyed, only that portion may be repaired or replaced. The height of an original principal structure and area encompassed by the original footprint cannot be increased. The structure must be similar in size and use to the structure being repaired or replaced. Repair, replacement, or reconstruction may only encompass the same square footage that the structure occupied prior to damage or destruction, and the structure must be more compliant with this chapter which shall be determined by application of mitigation measures set forth in KPB 21.18.091 to the maximum extent practicable. Staff will determine the mitigation measures to be used consistent with the following conditions:
a. The structure will not cause significant erosion, sedimentation, damage within the habitat protection district, or an increase in ground or surface water pollution;
b. Permitting repair, reconstruction, or replacement shall be consistent with the purposes of this chapter as set forth in KPB 21.18.020, the borough comprehensive plan, another applicable chapters of the borough code, and other applicable planning documents adopted by the borough;
c. The reconstruction, replacement, or repair will not physically damage the adjoining property;
d. Removal of materials or debris remaining from the damage or destruction; and
e. Owner's compliance with other borough permits and ordinance requirements.
2. The right to reconstruct in nonconformity with the chapter is forever lost if
a. the application for reconstruction or repair is not made within six months of the date of damage, or
b. the application is approved but the structure is not substantially reconstructed within 24 months of the date of the approval of the application for reconstruction.
(i) For reasonable and sufficient cause shown for the delay, the river center director may authorize an extension not to exceed 12 months to complete reconstruction.
(ii) To obtain an extension of time an applicant shall submit a written request for an extension to the river center prior to the expiration of the 24 month reconstruction period. The applicant must show reasonable and sufficient cause for the extension.
3. Nothing in this section prohibits reconstruction at any time in compliance with this chapter.
4. The provisions applicable to principal prior existing structures set forth in KPB 21.18.090(C)(1)(2)(3) also apply to the replacement, repair or reconstruction of accessory structures within the habitat protection district. In addition to those provisions the following rules apply to accessory structures:
a. Accessory structures may be replaced or reconstructed outside of the habitat protection district without a KPB 21.18 permit.
b. Not withstanding subsection a. above, accessory structures may not be replaced or reconstructed in KPB 21.06 mapped floodplains or floodways.
c. The applicant must document the specific circumstances that would prevent the accessory structure from being located outside of the habitat protection district in order to be permitted to repair, replace, or reconstruct the accessory structure within the habitat protection district.
D. Uses. This chapter shall not prohibit or restrict uses which were legally conducted before the effective date of this section, provided that, after the effective date, such uses are conducted in the same location and are not enlarged to include a greater number of participants or to occupy a greater area of land. Upon application and approval of a prior existing structure/use permit by river center staff a change to the prior existing use may be allowed. No change shall be granted unless the change reduces the noncompliance, by use of mitigation procedures set forth in KPB 21.18.091, to the maximum extent practicable. Staff will determine the mitigation measures to be used consistent with the following conditions:
a. The use will not cause significant erosion, sedimentation, damage within the habitat protection district, or an increase in ground or surface water pollution;
b. Permitting the use shall be consistent with the purposes of this chapter as set forth in KPB 21.18.020, the borough comprehensive plan, another applicable chapters of the borough code, and other applicable planning documents adopted by the borough;
c. The use will not physically damage the adjoining property;
d. Removal of materials or debris resulting from the prior-existing use; and
e. Owner's compliance with other borough permits and ordinance requirements.
E. Other provisions.
1. Any prior existing use or structure which is abandoned for two years or more shall thereafter not be conducted, used or occupied except in conformity with the provisions of this chapter.
2. The deliberate destruction of a prior existing structure by the owner terminates the prior existing status.
3. The river center may require removal or cessation of abandoned uses or structures.
4. Nothing in this chapter shall prevent any change of tenancy, ownership or management of any prior existing structure.
F. Impervious materials placed in the habitat protection district which are not structures are not allowed as either prior existing uses or prior existing structures. The river center may require removal of these materials.
G. River center determinations regarding prior existing structures and prior existing uses may be appealed to the planning commission.
(Ord. No. 2011-09, § 1, 5-17-11; Ord. No. 96-06, § 1(part), 1996)
21.18.091. Mitigation measures
Mitigation measures may be required by river center staff to address impacts to the habitat protection district from a proposed, ongoing, or completed project. These measures may include, but are not limited to:
A. Standard erosion and storm water runoff control measures;
B. Restoration and maintenance of native vegetation and water quality protection functions;
C. Restoration and maintenance of native vegetation and water quality protection functions along areas that immediately abut the habitat protection district;
D. Removal of non-conforming accessory structures from the habitat protection district;
E. Other measures as agreed upon by the river center and applicant. Examples include removal of seawalls, riprap, jetties, and other structures that may be detrimental to fish habitat; installation of approved bank protection measures; professional evaluation of privately owned waste water treatment system; removal of materials, structures and other items that may be present in the habitat protection district or along the shore.
21.18.100. Administration by cities--Delegation--Legal proceedings
A. The administration and enforcement of this ordinance may be undertaken by a city. B. A city may adopt the standards established in this chapter or prescribe standards more stringent than those established in this chapter for the areas of the city within the habitat protection area or other areas regulated by this chapter.
B. A city may adopt the standards established in this chapter or prescribe standards more stringent than those established in this chapter for the areas of the city within the habitat protection area or other areas regulated by this chapter. A conditional use permit issued by a city planning commission may serve to satisfy the requirements of 21.18.072 and 21.18.080.
C. A city wishing to administer and enforce this chapter shall enact an ordinance adopting the provisions of this chapter by reference, providing the city will undertake the administration in conjunction with the administration of land use regulations and building and health codes enacted by the city. Within 30 days of passage of the ordinance the mayor shall transfer the administration and enforcement to the city. The city may relinquish and transfer the administration and enforcement back to the borough by ordinance, however the transfer shall not take effect until 90 days after the city approves the transfer or the commencement of a new fiscal year for the borough, whichever is greater.
D. If a city assumes administration of this chapter, conditional use permit determinations shall be made by the city planning commission, or by the city council, as provided by city ordinance. Appeals or legal proceedings taken from actions of the city in administering shall be the sole responsibility of the city.
21.18.110. Violations - Enforcement
Violations of this chapter are infractions and are subject to civil fines. Enforcement of the provisions of this chapter shall be done in accordance with the remedies set forth in KPB 21.24.
(Ord. No. 97-55, § 4, 1997; Ord. No. 96-06, § 1(part), 1996)
21.18.120. Conflict with city land use authority or other laws or regulations
To the extent this chapter may conflict with any previous grant or delegation of land use regulation authority from the borough, such previous delegation of authority is modified or limited so as not to conflict with this chapter. Except as otherwise specifically provided by another provision of this chapter, the restrictions on use of land activity established by this chapter shall be in addition to any other restrictions adopted by any state, federal or local authority having authority to adopt those restrictions.
21.18.130. Administration and appeals
Applications for permits, conditional use permits or determinations under this chapter will be administered in accordance with the provisions of KPB 21.20 governing application, notice and conduct of hearings. Appeals from action taken under this chapter will be handled in accordance with the appeal procedures set forth in KPB 21.20
21.18.135. Exemption for emergency situations
A. In an emergency, the river center, through its authorized representative, may issue temporary oral permits to protect life and property from imminent danger or to restore, repair, or maintain public works, utilities, or services destroyed, damaged, or interrupted by the emergency.
B. An emergency permit shall only authorize the minimum amount of work required to mitigate the emergency situation. An emergency permit is not intended to provide for any work beyond that necessary to provide for a safe environment. Any additional work shall follow applicable permitting procedures set forth in this chapter. Work shall be conducted using best management practices to ensure that any adverse effect on the habitat protection district and anadromous waters is minimized.
C. Conditions may be attached to emergency permits to comply with the purposes of this chapter. A final report that includes the plans and specifications for the work that was completed must be submitted to the river center within 60 days of the date of the emergency. The borough may require mitigation to repair damage to the habitat protection district.
D. Emergency permits shall be valid until the date of expiration stated on the permit.
E. This section is intended to provide for the immediate response to emergency situations for life and safety issues when time is not adequate to process permits in accordance with the other applicable permitting provisions of this chapter.
(Ord. No. 2010-16, § 3, 5-4-10; Ord. No. 97-26, § 4, 1997)
21.18.140. Definitions
As used in this chapter:
A. "Commercial use" shall mean an occupation, employment, or enterprise that is carried on for sale of goods or services or for profit.
B. "Conditional use" shall mean a use that would not be appropriate without restrictions throughout the habitat protection area but which, if controlled as to number, area, location, relation to the habitat or method of operation, would not cause or lead to significant erosion, destruction of wetlands or riparian habitat, or result in or increase ground or water pollution.
C. "Cut bank" shall mean banks of anadromous streams with exposed soil surface that have occurred from natural or manmade causes whether the exposed surface extends to the high water mark or not.
D. "Erosion" shall mean significant sloughing, washout, or discharge of soil arising from manmade sources or causes.
E. "Fuel storage tank" shall mean any vessel for the storage of petroleum based fuels including gasoline, diesel, kerosene and heating oil having a liquid volume of 200 gallons or more.
F. "Ground or water pollution" shall mean the discharge, application, spread or release of chemicals, toxic materials, fuels, pesticides, petroleum based fuels on or into the soil and waters within the habitat protection area.
G. "Kenai River" shall mean the main stem of the river from and including Kenai Lake to the mouth including Skilak Lake. The main stem shall include all sloughs, channels, boat basins, distributaries, and lagoons. For the purpose of this chapter, the mouth shall be described as the western most section line common to Section 5 and Section 8, T5N, R11W, Seward Meridian.
H. "Logging" shall mean removal or cutting down more than 50 trees per acre that have a breast diameter height of 6˝ or more.
I. "Mean high water line" or "ordinary high water line" shall have the definition given in 11 AAC 53.900(15) as it currently exists or as it may be renumbered or revised.
J. "Ordinary high water mark" shall have the definition given in 11 AAC 53.900(23) as it currently exists or as it may be renumbered or revised.
K. "Riparian habitat" shall mean the areas within and adjacent to the river containing spawning and rearing habitat for salmon or that provide immediate cover or stability for salmon and eggs at all stages of development.
L. "Soil erosion" shall mean the increased movement of soils that occurs as a result of human activities or development.
M. "Structure" shall mean anything which is constructed, erected or moved to or from any premises and which is located above, on, or below the ground, including buildings, roads, signs, billboards, satellite antennas and other communication structures, fences, and mobile homes. Building materials including but not limited to doors, windows, carpet, roofing, posts, and beams which have not been assembled, incorporated, or erected into a structure do not alone or collectively constitute structures.
N. "Wetlands" shall have the meaning given in 16 USC § 1302 as applied to land within the habitat protection area.
O. "Gratewalks" shall mean elevated light penetrating (ELP) walkways utilizing some variety of open grate material as a surface.
P. "Substantially complete" shall mean essentially completed and available for the owner's beneficial use for the purpose and in the manner intended for the structure.
Q. "River center" shall mean the Kenai Peninsula Borough Donald E. Gilman River Center.
R. "Best management practices" means that combination of conservation measures, structures, or management practices that reduces or avoids adverse impacts of development on land, water or waterways, and waterbodies.
S. "Emergency" means a sudden unexpected occurrence, either the result of human or natural forces, necessitating immediate action to prevent or mitigate significant loss or damage to life, health, property, essential public services, or the environment.
T. "Watershed" means a land area, also known as a drainage area, which collects precipitation and contributes runoff to a receiving body of water or point along a watercourse.
U. "Conditional use" means a use or associated structure which, owing to some special characteristics attendant to its operation or installation, is permitted in a district subject to special standards and conditions in addition to the usual requirements for the district in which the conditional use may be located.
V. "Lift" means a structure which elevates and lowers boats, floatplanes, people, and cargo to and from the river or adjacent shoreland.
W. "Accessory structure" means a use or structure that is subordinate in size or purpose to the principal structure or use of the same lot or parcel of ground and serving a purpose customarily incidental to the use of the principal structure or use of land.
X. "Principal structure" means a structure in which is conducted the principal use of the lot on which it is located.
Y. "Abandoned" means to cease a use or use of a structure for a specified time period, whether the cessation of use is intentional or unintentional, and whether or not the use is seasonal.
Z. "Substantially damaged" shall mean that the cost to repair the damage equals or exceeds 50% of the structures' assessed value prior to the damage.
AA. "Substantially reconstructed" shall mean completed to a point where the structure is available for the owner's beneficial use or occupancy.
(Ord. No. 2011-09, § 2, 5-17-11; Ord. No. 2010-21, §§ 8, 9, 6-8-10; Ord. No. 2010-16, § 4, 5-4-10; Ord. No. 2010-14, § 4, 4-6-10; Ord. No. 2000-08, § 10, 5-16-00; Ord. No. 97-26, §§ 5, 6, 1997; Ord. No. 96-06, § 1(part), 1996)
21.18.145. Variances
Variances from the requirements of this chapter may be requested pursuant to KPB Chapter 21.05.