by Charles L. Ruby, New Jersey
Reprinted from the Mid-Atlantic Koi Club newsletter
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Most people who build
ponds don’t realize there are uniform building codes and legalities
that should be adhered to. If the planning commission has codes for Koi
ponds and landscape designers submit their plans to the planning commission
there wouldn’t be so many unhappy Koi keepers. Has anyone reading this
ever checked with the planning commission? What were the results?
~phred
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For
those of you who are reading this article in a friend's issue of MAKC [Mid-Atlantic
Koi Club] or on the Internet, and may not already be a member of MAKC [worth
joining just for their newsletter; a magazine •ed.], I strongly recommend
that you become a member today and strengthen your relationships with existing
members (even if your first Koi pond is still years away). The reason I
am writing this article, and constructing my third and
final pond, is that I am a member of MAKC. Together, we were able to
co-develop a novel approach that allowed me to be
granted a variance to local land-use laws and receive permission to
construct a Koi pond, which exceeds the municipality's
maximum depth and surface area requirements.
The series of three articles, as well as my role as a panelist, will
provide you with a blueprint for sharing the knowledge that I
have accumulated in navigating through the local waters of the
city/town construction department and zoning boards.
Although my experience occurred in New Jersey, the information amassed
should be useful in any state, and will provide
guidance and oversight to the process necessary to achieve the end
goal - constructing a pond that will provide a healthy environment
for our fish and aesthetically appealing surroundings for us.
If you're looking to construct a water garden for a few goldfish and
water lilies, then all you may need to do is meet with the
local building department's construction official and conform to some
minor requirements (i.e., maximum depth, surface
area or volume) and you are well on your way to enjoying a beautiful
water feature with a few goldfish - but please, no Koi. If it
is your desire to build a Koi pond, then be prepared to jump through a
few hoops, educate anyone and everyone that will
listen to you, but most importantly, educate the individuals that must
grant you the permission necessary to build the pond.
If you build it, they will come and chances are something won't be up
to national, state or local code requirements, and fixing
the problem will be time consuming and impractical, if not impossible.
Also, should you ever want to sell your home
a
Certificate of Occupancy may not be issued if there are existing
construction, safety or health concerns.
I would not want to
be on either end of that transaction, the seller will have to correct
the defect (i.e., the Koi pond) and the buyer may not be
getting all that was expected (i.e., the Koi pond).
Establish a Game Plan
Ask permission first, as it is very expensive,
difficult and heartbreaking to have to remove a
pond and house our Koi in temporary quarters while we re-construct the
pond to current building code requirements.
Because most, if not all, MAKC members initially entered this hobby
for the relaxation and therapeutic benefits of having a
peaceful water feature and beautiful Koi in their yard, we do not need
the constant stress associated with the potential of a
neighbor complaining and then the municipality requiring that your
property conform to current building codes.
Prior to beginning the construction of your
Koi pond:
1. Understand all rules, regulations and requirements.
2. Maintain an open and honest line of communication with municipal
officials.
3. Design the proposed pond and include depths, location on the site
and elevations.
4. Proactively provide information about your project and be prepared
to answer all questions.
5. Providing photos of aesthetically appealing ponds will be helpful
in showing what you are requesting to construct.
Understand the Rules
Most municipalities have requirements governing
water features such as ponds and wading
pools, and all municipalities have requirements concerning swimming
pools, which are generally defined as any body of
water exceeding an arbitrary depth - usually between 18 and 24 inches.
Such swimming pool, pond and wading pool requirements include:
1. Minimum setbacks from property lines and structures
2. Maximum depth, volume and/or water surface area.
3. Electrical requirements for pumps, filters and lighting.
4. Plumbing requirements (i.e., backflow preventor).
Ponds Vs. Swimming Pools
Be very careful if you are told that, in
effect, you are building a swimming pool (albeit for
fish, but still a swimming pool). Just because your proposed pond
is deeper or larger than the municipality's current codes
mandate, you are building a pond and not a swimming pool.
There are national regulations that ensure swimming pool
construction and safety is consistent throughout the U.S. States
and municipalities have the option of relying on these national
minimum standards or mandating more stringent codes.
Although I support conforming to safety requirements (i.e.,
fencing and minimum setbacks) I would not want a Koi pond that
must conform to the construction requirements of a swimming pool,
such as a non-slip concrete apron six inches above
grade, entry/exit ladder, two inch bottom drain feeding an
approved swimming pool sand filter powered by a six horsepower
pump. Most of all, I don't think the Koi will enjoy the Health
Department's requirement that all swimming pools contain a
minimum level of chlorine and other chemicals to eliminate both
the good guy and bad guy bacteria.
The Process
Assuming you need a permit to construct the pond (and
most municipalities do require permits when a
homeowner makes substantial improvements to their property) and
your proposed pond will not conform to current
regulations, a variance needs to be obtained.
To start the process, a permit is requested at the local Building
Department. If the proposed pond is non-conforming to
existing regulations, a letter will be issued from the
construction official denying your request to build the pond as
described and allowing the applicant to appeal the decision to
the Zoning Board of Adjustment. The municipality must
receive this appeal within a specific period of time. The process
includes the completion of a formal application, drafting an
argument for requesting a variance from current requirements,
notifying in writing, either through hand delivery or
through certified mail, all your neighbors within 200 feet and
placing a legal advertisement in an approved newspaper. In
addition, there will be a nominal fee required to cover court
costs and town attorney fees.
The Hearing
On the day of your hearing, be prepared to deliver
your testimony in a clear and concise format. This is a
public hearing (usually audio taped and/or video recorded) and an
open forum to discuss your request. As the applicant, it is
your responsibility to prove your case and individuals may also
retain an attorney as a spokesperson. I chose to represent myself
because there were no direct precedents regarding what I
was trying to accomplish and I felt that I could more
convincingly plead my case and demonstrate my commitment to my
hobby and the health of my fish. It may be helpful, however, to ask
other MAKC members for their expert testimony in the field of
Koi health and pond construction. [I had the support of Tom
Burton and other MAKC members throughout the entire process
and would like to take this opportunity to formally acknowledge
their dedication to this hobby and the health of our Koi and
offer my sincerest thanks and gratitude].
Once the case is heard and the Board has asked its initial
questions, the meeting is opened for comments from the public. It
is very important, in my opinion, to have positive comments from
neighbors to reconfirm to the Board that the construction of
the pond will not cause public outcry or dismay. Local boards
tend to be very political and if one is asking for a variance so
as not to conform to the masses, then the argument must be strong
enough to overcome and outweigh any potential negatives.
The Site Tour and Decision
Prior to the next meeting, arrangements are typically made for the entire
Board to visit the property and tour the site. The proposed pond will need
to be
outlined using either string or line paint. In addition to
outlining the pond, I constructed a podium with a color artistic
rendering of what the finished project would look like
including pond depth, edging materials, placement on site and
existing/proposed landscaping. As a result of this detailed
drawing, I received very positive feedback from the Board, and
strongly recommend that this be done because it aids the
members in visualizing the completed project.
The Zoning Board of Adjustment will usually make its decision at
the second public hearing. However, if additional
questions or concerns arise, the decision will be tabled to the
following meeting. The decision (also know as a Resolution)
can be appealed by any member of the community within 45 days of
the ruling being published in an approved newspaper.
Once the appeal period has expired, the Resolution will forever
be associated with the property. Should rules or regulations
regarding new water features change in the future your existing
Koi pond will continue to be a legal non-conforming use
(i.e., you have done everything right and can sleep soundly at night).
PART II
Recently
back from KOI AMERICA 2001 in Chantilly, Virginia, I
enjoyed meeting many of you and answering various
questions regarding the politics behind our ponds. Over the last
ten years, this hobby has become very popular in the US.
State and local governments are just now starting to deal with
the specific construction, safety and health requirements
associated with maintaining a residential water feature with
sufficient depth to provide a healthy environment for our Koi.
As we discussed last month, there are material differences
between a Koi pond and a standard swimming pool, even if they are
both the same depth.
If it is your desire to build a Koi pond, and the municipality
you live in has maximum pond depth, surface area or volume
requirements less than you desire, you may need to request a
variance from the local Zoning Board of Adjustment. Another
option may be to work directly with the Mayor and Council to
create new legislation, changing the current land-use laws in
your municipality. Assuming you proceed to request a variance,
three separate and distinct items need to be addressed by the
applicant, and the members of the Board must be convinced beyond
a reasonable doubt that all three items have been satisfied.
To be successful in requesting a variance to construct a Koi
pond, two major issues need to be addressed during the
application process. First, it must be demonstrated that adding
large amounts of water to dry land will not be detrimental to
the public welfare or injurious to the property. Should everyone
that wanted aswimming pool have to go through the
variance process, the success rate would be minimal because there
is a strong argument that solid ground, at least for safety
reasons, is indeed better than water. In addition, it is almost
impossible to argue that by adding additional water to a
property, a hardship to the land such as a high water table or
poor drainage can be cured.
The second argument that needs to be addressed is the applicant's
exceptional circumstances or conditions applicable to the
property involved. This is the novel approach that we used, and
through our research, it appears that this approach has
never been used in an attempt to obtain a variance to construct
a
pond. By demonstrating my commitment to the project and
The Club's commitment to this industry, I argued that for the health
and welfare of the Koi and my exceptional dedication to this
hobby, a variance should be granted to allow the construction of
the pond.
Dog
Show Vs. Koi Show
A strong analogy was one of an individual who enjoys competing in
"dog shows" and can take their pets out for daily walks
around the neighborhood to maintain good health. We have "Koi
shows" but do not have the luxury of maintaining good
condition for our Koi by exercising them anywhere else than in
their own homes (i.e., the Koi pond). In order to even have a
chance to compete for best in show; the pond would need to be
large enough to allow the Koi room for exercise, with both
ample vertical and horizontal swimming area.
Another item that may need to be addressed is adequate filtration
and fish load to minimize or eliminate potential health
risks associated with stagnant water and mosquitoes. In
New Jersey, the mosquito carried West Niles Virus has caused much
public concern and we took great efforts to document the
fact that our Koi will consume mosquitoes and the pond would not
be a breeding area for these pests, which definitely would
be detrimental to the public welfare.
Pigeons,
Pigs
Now, what do our living jewels really have in common with Pigeons
and Pot-bellied pigs? The answer is a lot. The argument
that MAKC and I co-developed and utilized to request the variance
(i.e., the exceptional and intended use of my property will
not generally apply to other properties) has been used by
applicants to allow the construction of pigeon coops and the
housing of pet pot-bellied pigs.
Pigeon keeping and competitions were once a very popular pastime
in urban areas. Today, many municipalities have limited
the keeping of pigeons by passing legislation outlawing the
raising and breading of poultry and other exotic animals
such as pot-bellied pigs. Just like all laws, however,
individuals have stated that it should not apply to them and
depending on and ...the strength of their argument and the merit
of their request,
some have been granted the right to enjoy their pastime.
I was able to argue that unlike a pigeon that will fly over my
property line and land on my neighbor's roof, my Koi will live
their entire life beneath the surface of the water. Also, unlike
a 200-pound pot-bellied pig, my Koi will not make noise and with
a state-of-the-art filtration system, I can guarantee the Koi
pond will not be a pigsty. My involvement with The Club and passion
for this hobby demonstrated to the Board that the intended use of
the property would be an exceptional use and warranted an
exclusion from current land-use laws.
PART III
A
s I highlighted last month, I received approval to construct a Koi
pond that
Is larger and deeper than allowed by my municipality's current land-use
laws. The
entire process, from initial application to the building department
through the
zoning board's pubic hearings and final approval took just over
six months
but was well worth all the efforts. You can not put a value on the
peace of mind of knowing that everything was done right and the
Koi pond is in compliance with all state and local
requirements.
It has been my intention, through this series of articles and my
role as a
panelist at KOI AMERICA 2001, to provide an individual who is interested
in
entering this hobby with the information and education necessary
to, as Tom
Burton says, "...build your last pond first." Complying
with current regulations
or petitioning the government for the right to construct what is
best for you
and your Koi is the right thing to do and should always be considered
at the
start of the process.
Following is a copy of the information submitted to my municipality's
Zoning
Board of Adjustment. Please free to contact me
should
you have any questions or wish to discuss your specific project
in detail. I
would also like to take this opportunity to thank MAKC and its members
for all
the advice and guidance I have received over the years.
Sample Letter to the Zoning Board of
Adjustment
To: [Members of the Board]
Zoning Board of Adjustment
From: [Applicant]
Re: Zoning Variance to Construct a Koi Pond
We respectfully request that the Zoning Board of Adjustment consider
granting a
variance to the Zoning Code of the [Municipality-include Ordinance
Number] and
allow the construction and maintenance of a fish pond at [Address
and, Real Estate Parcel Number] that would exceed the maximum allowable
size. We propose the construction of a pond of approximately [XI
square feet in size in order to accommodate a collection
of Japanese Koi, an ornamental fish that typically grows in excess
of 30 inches
and can weigh upwards of 25 pounds.
Because Koi are very large fish and require ample room to swim,
both
horizontally and vertically, we are proposing to construct a Koi
pond of
approximately [X] feet long, [X] feet wide and [X] feet deep. Thus,
the
restrictive dimensions of a typical backyard pond pose difficulties
for
maintaining a healthy Koi environment.
Due to the large size of adult Koi and their intolerance for poor
water quality
and temperature fluctuations, the traditional "backyard garden
pond" with
limited, if any, water circulation/filtration cannot adequately
support Koi,
resulting in outbreaks of disease and death, with the largest most
mature fish
dying first. Unlike traditional goldfish, Koi are very susceptible
to problems
associated with reduced oxygen levels, poor water quality, inadequate
filtration and insufficient swimming area. In addition to a mechanical
filtration system, the Koi pond will have a waterfall basin with
water plants
to provide additional biological filtration. The common phrase "the
solution to
pollution is dilution" summarizes the fact that in order to
maintain a healthy
Koi environment, every effort must be made to ensure the pond has
the largest
volume possible.
It is our opinion that the intended use of our property and the
proposed pond
(to house a collection of Japanese Koi to be judged at amateur competitions)
is
an exceptional circumstance and will not generally apply to other
properties
within [Municipality]. Unlike showing a dog in a dog show and maintaining
a
healthy dog by taking the pet for a daily walk, our fish are confined
to the
pond only. The larger the pond, the healthier the fish and the more
vibrant the
colors will be. If we are unable to construct a pond
large enough to adequately house our collection of show-quality
Koi, we will be
unable to participate in club shows - something that is very important
to us.
Since [Date], I have been an active member in the [Club], a national
not-for-profit organization dedicated to providingin-depth knowledge
and educational opportunities for the Koi hobbyist. [The Club] publishes
a monthly magazine and sponsors numerous lecture and Koi Shows (similar
to dog competitions - giving awards for Best of Breed and Best in
Show). Our intention for constructing the pond is to house our Koi
and compete
in the competitions. The size, shape, color and health of our fish
will be
directly affected by the Koi's environment.
We strongly believe that granting permission to construct and maintain
a Koi
pond as described above will not be a material detriment to the
public welfare
or injurious to the property. Actually, the reverse is true and
the property
and neighborhood would directly benefit from the addition of the
proposed pond
The proposed pond will act as a natural catch basin and collect
rainwater,
thereby reducing run-off that may flow onto the street and into
the sewer
system. In addition, the pond will reduce the number of mosquitoes
in the area.
The mosquito larvae breathe oxygen and must stay near the surface
of the water.
Koi will consume all the mosquito larvae resulting in fewer breeding
adults and
thus naturally reducing the number of mosquitoes.
Finally, [Member], author and frequent lecturer on subjects such
as pond
construction and filtration, Koi varieties and health maintenance,
will attend
the [Date] Zoning Board of Adjustment hearing to provide testimony
and answer
any additional questions the Board or public may have. [Member]
an expert in
Koi and their environment, supports this project and provides
advice/consultation to Koi owners throughout the US.
Thank you for your time and consideration. Should you have any questions
regarding this application please do not hesitate to call me at
[Phone Number].
Respectfully Submitted,
[Applicant]
[Address]