§ 8-614. Land disturbance permit.

(a)

Permit required. No person may engage in any land disturbance activity, including persons engaged in land disturbance activity related to utility installation or maintenance, without first obtaining a land disturbance permit from the unified government, except as provided in this article. Any land disturbance permit shall encompass all land disturbance activity at the locations and during the times covered by the permit, whether such land disturbance activity is performed by the permittee, his contractor or subcontractors, a utility or its contractors, or any other independent agent. The permit fee shall be doubled for sites where land disturbance has occurred without a permit in violation of this article.

(b)

Other construction permits delayed. When a person is developing a site and a permit is required in accordance with this article, no other construction permits shall be issued to make improvements on that site until the person has secured a land disturbance permit for the same site.

(c)

Exemptions. A permit is not required under this article for the following:

(1)

Any land disturbance activity that, in the course of the subject development, disturbs or will disturb a cumulative total of less than one acre of surface area;

(2)

All land farming operations, including plowing or tilling of land for the purpose of crop production or the harvesting of crops on land located in the agricultural districts, including AG and AG (county) zoning districts;

(3)

Any noncommercial garden in any zone that disturbs less than one acre of surface area; or

(4)

Any emergency activity that is immediately necessary for the protection of life, property, or natural resources.

(d)

Application.

(1)

To obtain a permit, the owner of the site where the land disturbance activity is to be performed or the site owner's authorized representative first must submit a complete application in writing upon forms acceptable by the unified government.

(2)

A land disturbance permit will only be issued in the name of the current property owner.

(e)

Review and approval. The unified government engineer will review each application to determine its conformance with the provisions of this article and the erosion and sediment control design criteria authorized hereby. The unified government engineer shall, in writing:

(1)

Approve the permit application if the application complies with all the requirements of this article and the unified government engineer determines that best management practices will be employed to control erosion and sedimentation to the maximum extent practicable;

(2)

Approve the permit application subject to conditions, as herein authorized, as may be reasonably necessary to secure the objectives of this article or prevent the creation of a nuisance or an unreasonable hazard to persons or to public or private property, and issue the permit subject to these conditions; or

(3)

Disapprove the permit application, indicating, in writing, the reason therefore.

(f)

Conditions of approval. In approving the issuance of any permit, the unified government engineer may impose conditions as may be reasonably necessary to secure the objectives of this article or prevent the creation of a nuisance or unreasonable hazard to persons or to public or private property. These conditions may include, but need are not limited to:

(1)

The granting (or securing from others) and the recording in county land records of easements for drainage facilities, including the acceptance of their discharge on the property of others, and for the maintenance of slopes or erosion control facilities;

(2)

Adequate control of dust by watering, or other control methods acceptable to the director of the health department air quality division;

(3)

Improvements of any existing grading, ground surface or drainage condition on the site (not to exceed the area as proposed for work or development in the application) to meet the standards required under this article for land disturbance, drainage and erosion control;

(4)

Installation of additional safety related devices when in the proximity of an elementary school, playground or other areas where small children may congregate without adult supervision;

(5)

Pollution prevention plan and any other conditions believed necessary to protect the general public's health, safety, and welfare; and

(6)

Liability insurance if, in the opinion of the unified government engineer, the nature of the work is such that it may create a hazard to human life or endanger adjoining property or property at a higher or lower elevation, or any street or street improvement, or any other private or public property, then the unified government engineer may, before issuing the permit, require the applicant to file a certificate of liability insurance. That certificate must be with an insurer admitted to do business in the state. The amount shall not be less than $1,000,000.00 per occurrence and $2,000,000.00 in aggregate. The insurance shall protect the permittee and the unified government from and against all claims by any person whatsoever for loss or damage from personal injury, bodily injury, death, or property damage to the extent caused or alleged to have been caused by the negligent acts or omissions of permittee, its employees, agents, or subcontractors. Neither issuance of a permit, nor compliance with these provisions or any condition imposed by unified government relieves any person from any responsibility for damage to persons or property otherwise imposed by law, nor imposes any liability upon the unified government for damages to persons or property.

(g)

Modification of plan.

(1)

Modifications of the approved plan must be submitted to the unified government, and shall be processed in the same manner as the original plan, where:

a.

Field inspection or evaluation reveals the inadequacy of the approved plan to accomplish its erosion and sediment control objectives; or

b.

The permittee or permittee's agent finds that because of changed circumstances or for other reasons, the approved plan cannot be effectively carried out.

(2)

When a modified plan is required the unified government engineer may require the installation of interim erosion and sediment control measures to protect stream channels, other properties, or the general public from damage. Interim measures will remain in effect until modifications or revisions to the plan are approved and implemented.

(h)

Assignment or transfer.

(1)

If the permittee sells any portion of the property before the termination of the permit, the permittee will remain responsible for that portion of the property until the new owner of the property obtains a permit or until a completion certificate is issued for the portion sold.

(2)

A new owner of a portion of property covered by an approved plan with respect to which a completion certificate has not been issued, shall, before a building permit is issued, obtain a permit, if, and as, required by this article.

(i)

Termination upon completion. To terminate the permit, the permittee shall submit a request to terminate permit form, as provided by the unified government, to the unified government engineer. The unified government engineer will then inspect the site and make a determination as to whether the permit can be terminated. The site will be considered stabilized when perennial vegetation, pavement, buildings, or structures using permanent materials cover all areas that have been disturbed. The permittee will be notified in writing of the determination.

(j)

Revocation of permit.

(1)

Permittees hold land disturbance permits pursuant to this article as a privilege and not as a right. The unified government reserves its right, as provided herein, to revoke any land disturbance permit, without refund of the permit fee, in the event of a breach of the terms and conditions of the land disturbance permit. A breach shall include but is not be limited to the following:

a.

Violation of any material provision of the land disturbance permit;

b.

Evasion or attempt to evade any material provision of the land disturbance permit;

c.

Any material misrepresentation of any fact in the permit application;

d.

Failure to maintain the required insurance;

e.

Failure to implement the soil, erosion and sediment control measures in a timely manner;

f.

Failure to correct a defect or condition indicated on an order issued pursuant to this article;

g.

Failure to secure inspection as required by any provisions of this article.

(2)

If the unified government engineer determines that the permittee has committed a breach of a condition placed in the land disturbance permit, the unified government engineer shall, prior to revocation of the permit issue a notice of default pursuant to section 8-616(d). The permittee's failure to take corrective action shall be cause for immediate revocation of the permit.

(3)

If a permit is revoked, the permittee shall also reimburse the unified government for the unified government's reasonable cost including administrative costs, restoration costs, the costs of collection and legal and attorneys' fees incurred in connection with such revocation.

(4)

A revoked permit shall not be reinstated. A new permit application based on a revised plan that addresses the causes of nonperformance must be submitted. Such plan will be processed in the same manner as the original plan.

(5)

The unified government engineer may, in emergency situations require the installation of interim erosion and sediment control measures to protect stream channels, other properties, or the general public from damage. Such measures will remain in effect until the new plan is approved and implemented.

(k)

Appeals.

(1)

Whenever a person shall deem themselves aggrieved by any decision or action taken by the unified government engineer acting under the authority of this article, the person may file an appeal with the county administrator with a copy to the engineer within ten calendar days of the date of notice of such decision or action.

(2)

The person shall be afforded a hearing on the matter before the county administrator or his designated representative within 30 days of filing the appeal. A written decision will be issued within 30 days of the hearing. At any hearing held pursuant to this chapter, testimony taken must be under oath and recorded. The transcript, so recorded, will be made available to any member of the public or any party to the hearing upon payment of the usual charges thereof. The county administrator will affirm, modify, or rescind the action in writing within 30 calendar days of the hearing.

(3)

In cases where compliance with the decision or action taken by the unified government engineer would cause undue hardship and the county administrator finds that it is in public interest to extend the time limit for such decision or action, or grant exceptions to, or waive requirements of, or grant a variance from a specific provisions than the county administrator may extend the time limit of such decision or action, or may grant exceptions to, or waive requirements of, or grant a variance from a specific provision. The county administrator shall give due consideration to the purposes for this article as stated in section 8-611.

(4)

Once an appeal has been taken, the order of the unified government engineer shall be stayed until a decision is rendered by the county administrator, unless the unified government engineer determines in writing that a stay will pose a threat to public safety, natural resources, other properties, or the integrity of the public infrastructure.

(5)

Any such person shall have 30 days after the county administrator's written decision is issued to institute an action in the district court of the county. An action pending before the court shall stay compliance with the county administrator's decision, unless the county administrator determines in writing that a stay will pose a threat to public safety, natural resources, other properties, or the integrity of the public infrastructure.

Ord. No. O-125-06, § 1(8-614), 12-14-2006; Ord. No. O-27-14, § 1, 4-10-2014)