1220.06   LAND-DISTURBING ACTIVITIES.
   (a)   Permit Required.  No person shall conduct, or authorize another to conduct, any land-disturbing activity in the County, unless such person or his authorized agent first obtains from the Director of the Department of Building and Development, and maintains in good standing, a permit entitling such person and any contractor or agent of such person to conduct such activity.  No permit involving land-disturbing activity will be issued without an approved erosion and sediment control plan by Loudoun County and certification that the plan will be carried out by the designated Responsible Land Disturber. Prior to initiating grading or other on- site activities on any portion of a lot or parcel, all associated permits required by Federal. State and local laws and regulations shall be obtained and evidence of such permits submitted to the County. The approval of an erosion and sediment control plan shall not relieve the owner or applicant of any applicable local, State or Federal permit requirements.  However, if any person conducts, or authorizes another to conduct, any land-disturbing activity involving land under the jurisdiction of more than one local erosion control program, such person may, in lieu of obtaining a permit from the Director, obtain a permit from the State Water Control Board.  In the latter case, verification that a State permit has in fact been issued, and notice of any condition applying thereto, shall be filed with the Director before the land-disturbing activity applicable thereto commences.
   Electric, natural gas and telephone utility companies, interstate and intrastate natural gas pipeline companies and railroad companies shall file general erosion and sediment control specifications annually with the State Water Control Board for review and written comments. The specifications shall apply to construction, installation or maintenance of electric transmission, natural gas and telephone utility lines and pipelines and the construction of the tracks, right-of-way, bridges, communication facilities and other related structures and facilities of a railroad company.
   (b)   Permit Application.  Application for the permit required by this section to be obtained from the Director of the Department of Building and Development shall be made to such Director on forms furnished by him.  No application for such permit shall be made by any applicant, or accepted by the Director, unless such application is accompanied, where appropriate, by a valid preliminary zoning clearance issued as to the property which is the subject of such application.  Such application shall be made by, or on behalf of, the owner of the property on which it is proposed to engage in the land-disturbing activity for which the application is made, and such owner shall be deemed responsible for the acts of himself and of any other person engaging in any part of such land-disturbing activity.  Such responsibility shall be in addition to the responsibility which this chapter attaches to any applicant or person other than such owner.
   (c)   Erosion and Sediment Control Plan.  The application for a grading permit shall be submitted to and reviewed by the Loudoun County Department of Building and Development, which is the plan-approving authority. The application for a permit shall include a proposed erosion and sediment control plan for the proposed land-disturbing activity and certification from the applicant that the plan will be followed.  In addition, as a prerequisite to approval of an Erosion and Sediment Control Plan, the person responsible for carrying out the plan shall provide the name of an individual holding a certificate of competence, who will be in charge of and responsible for carrying out the approved plan. This designee shall be known as the “Responsible Land Disturber.”  Such erosion and sediment control plan shall propose that a minimum of land- disturbing activity take place in any flood plain and that where such is required, the land- disturbing activity shall be conducted as not to interfere with or otherwise change, other than temporarily, the normal flood flow on the land affected by such activity.  The Erosion and Sediment Control plan shall follow the criteria, guidelines and specifications set forth in the Virginia Erosion and Sediment Control Handbook, Third Edition, 1992, as amended, and, where the Director of the Department of Building and Development deems it appropriate, such plan shall provide for sequentially staging grading operations over time, so that the area and duration of exposure to the elements are minimized.  In addition, a two-phase erosion and sediment control plan will be required that specifically addresses the stages of construction.  This two- phase plan shall be designed to ensure adequate erosion and sediment control protection from the beginning of a project until its completion.  The first phase of the plan will describe the conservation measures required during the initial land clearing and rough grading and the second phase plan will describe the conservation measures required once the storm sewer system is installed and functional and the roads are in a stabilized condition.  A detailed narrative must accompany the plan that addresses the topographical and site drainage features and the stage of construction at which the transition is made from the initial plan to the secondary plan.  If the plans show stormwater management facilities, it must be clearly stated when such facilities shall be constructed.  The use of diversion berms to break up drainage divides to support the use of sediment traps as opposed to sediment basins will not be allowed if such diversion berms inhibit the constructability of the site.
   (d)   Tree Preservation, Historic and Archaeological Resources and Environmentally Sensitive Areas. The application for a grading permit shall include detailed information on the erosion and sediment control plan and explained in the narrative where there are preservation areas, such as tree preservation areas, historic and archaeological resources, and cemeteries, where such areas are governed by proffers or State or Federal regulations, and areas voluntarily determined for reservation. Such sites to be reserved shall be demarcated with Super Silt Fence as described in the Loudoun County Facilities Standards Manual, or other approved commercially reasonable measures as described in the Virginia Erosion and Sediment Control Handbook to ensure that these resources shall not be impacted during development. Environmentally sensitive areas such as wetlands, steep slopes and floodplains shall be delineated on the erosion and sediment control plan, with appropriate erosion and sediment control measures provided to protect these resources during the course of development.
   (e)   Erosion Impact Area.  The Director of Building and Development may require an erosion and sediment control plan and a grading permit for any land deemed to be an erosion impact area.
   (f)   Financial Guarantee of Performance.  The application for a permit shall include a financial guarantee that the land-disturbing activity will be carried out in a manner consistent with the application, including any amendment to such application.  Such financial guarantee shall take the form of a reasonable performance and maintenance bond, cash escrow, letter of credit, or any combination of the same, or any other legal arrangement acceptable to the County. Such bond or such other financial guarantee shall incorporate a right in the Director of the Department of Building and Development to enter upon the property for the purpose of utilizing such financial guarantee to implement the proposed soil and sediment control plan of the applicant or to take whatever other measures are necessary to achieve the goals of such plan where it appears that the applicant is not performing, or that he will not perform, in substantial compliance with the terms of such plan.  If the County takes such conservation action upon such failure by the permittee, the County may collect from the permittee for the difference should the amount of the reasonable cost of such action exceed the amount of the security held.  No permit shall be granted by the Director unless he approves of the proposed financial guarantee of performance and/or maintenance proposed by the applicant.  Notwithstanding the foregoing, the Director shall waive the financial guarantee for disturbed land areas of less than 10,000 square feet where the land disturbing activity is for an individual single family detached dwelling and/or associated accessory structures and uses, or for any structure intended for agricultural use, except where such land disturbing activity is proposed within the Mountainside Development Overlay District, the Limestone Overlay District, or Steep Slopes areas, as defined in the Zoning Ordinance. Within sixty days of the achievement of adequate stabilization of the land-disturbing activity, as determined by the Department of Building and Development in any project or section of a project, and after the applicant has applied in writing to the Department of Building and Development for release of such security for performance and submitted any associated administrative fee for such release, the bond, cash escrow, letter of credit or other legal arrangement, or the unexpended or unobligated portion thereof, shall be refunded to the applicant or terminated, based upon the percentage of stabilization accomplished in the project or project section.  These requirements are in addition to all other provisions of law relating to the issuance of such permits and are not intended to otherwise affect the requirements for such permits.
   (g)   Right to Monitor Land-Disturbing Activities.  The application for a permit shall include a provision for appropriate agents and employees of the County Government, at reasonable times, to go upon the property on which permission has been sought to conduct land- disturbing activities and to monitor such activities.  In addition, the Director of Building and Development may require, as a condition for approval of an application for, or as an amendment to a permit, monitoring and reporting to the Director from the person responsible for carrying out the plan to ensure compliance with the approved plan and to determine whether the measures required in the plan are effective in controlling erosion and sediment.
   (h)   Application Procedure and Review.  Upon receipt of the application by the Director of the Department of Building and Development, it shall be referred to the Loudoun Soil and Water Conservation District, VESCP program authority, or town government where appropriate, for review.  Upon completion of review by such District or such town government, the application shall be returned to the Director of the Department of Building and Development, and after receiving the review and recommendation of such District and/or town government and after the posting of a financial guarantee as required by this chapter, but in any event within forty-five days after first officially receiving such application, the Director shall render a final written decision to the applicant either approving or denying the application on the basis of whether or not the plan meets the criteria, guidelines and specifications of the Virginia Erosion and Sediment Control Handbook, Third Edition, 1992, as amended, and whether or not the other applicable requirements of this chapter have been met. If the Director denies the application, he shall state in his written decision the specific reasons for such denial and shall specify such modifications, terms and conditions as would permit approval of the plan.  Where no final decision is rendered by the Director within such forty-five day period, the application shall be deemed approved and the applicant authorized to proceed with the proposed land-disturbing activity, provided that all fees have been paid as required in Section 1220.08 .  Where the final written decision of the Director has adversely affected the rights, duties or privileges of the applicant, such applicant may, within thirty days from the date of such final decision of the Director, file a writ of certiorari with the Circuit Court of the County for review of such decision.
   (i)   Variance Requirements.  The Loudoun County Department of Building and Development may waive or modify any of the regulations that are deemed inappropriate or too restrictive for site conditions by granting a variance. A variance must be requested by the applicant in writing and responded to by the Director of Building and Development or his designee, in writing to be considered approved. A variance may be granted under the following conditions:
      (1)   At the time of erosion and sediment control plan submission, an applicant may request a variance to be incorporated in the erosion and sediment control plan. The applicant shall explain the reasons for requesting the variance in writing. Specific variances, which have been approved by the Department, shall be documented in the plan.
      (2)   During construction, the person responsible for implementing the approved Erosion and Sediment Control Plan may request a variance in writing from the Department. The Department shall forward a written approval or denial of said request. If the Department does not approve a variance request within 10 days of receipt of the request, the request shall be considered to be denied. Following any denial the applicant may resubmit a variance request with additional information.
   (j)   Application Fee.  The Director of Building and Development shall charge a reasonable fee as established by the Board of Supervisors to defray the cost of program administration.
   (k)   Duration of Permit.  Any permit granted pursuant to this section shall be in effect for no longer than three years after the date of issuance.  In addition, any permit granted by this section shall automatically expire as of the date of expiration for, or termination of any financial guarantee tendered by the applicant. If a permitted project is not completed within the three-year time frame, then the applicant must re-apply according to the procedures as described in Section 1220.06 Land Disturbing Activities or appeal in writing to the Director of the Department of Building and Development for an extension of the grading permit period not to exceed an additional six months. Once a grading permit has been approved in writing by the County. the applicant shall have a period of six months (180 days) from the date of approval to submit and receive County approval of collateral for the project or the permit shall be considered expired.
   (l)   Re-application.  Any applicant whose application has been denied by the Director may re-apply to the Director at any time.  Such re-application shall follow the same procedures and meet the same requirements as are otherwise set forth in this chapter relative to an initial application, and there shall be no additional fee requirement for such re-application, except that there shall be charged such fees as are provided in Section 1220.08 for initial applications for a second or greater number of re-applications involving the same, or substantially the same, proposed land-disturbing activity.
   (m)   Relation of Permit to Other Governmental Review of Land Development.  In addition to the requirements set forth in subsection (l) hereof, if a permit required under this chapter is a prerequisite to approval by any department or agency of the County Government or any town for any proposed development of land, and if upon final review by any such department or agency or town, such proposed development is disapproved, such land-disturbing permit shall thereafter be subject to revocation by the Director of the Department of Building and Development.
(Ord. 95-08.  Passed 9-20-95; Ord. 05-01.  Passed 1-11-05; Ord. 11-13.  Passed 10-4-11; Ord. 17-12.  Passed 12-13-17.)