(A) Title. This chapter shall be known and referenced as the Chesapeake / Atlantic Preservation Areas (CAP) of Northampton County.
(B) Findings of fact. The Chesapeake Bay and Atlantic Ocean, along with their tributaries, is one of the most important and productive estuarine systems in the world, providing economic and social benefits to the citizens of Northampton County and the Commonwealth of Virginia. The health of the Chesapeake Bay and Atlantic Ocean is vital to maintaining Northampton County's economy and the welfare of its citizens.
The Chesapeake Bay and Atlantic Ocean waters have been degraded significantly by many sources of pollution, including nonpoint source pollution from land uses and development. Existing high quality waters are worthy of protection from degradation to guard against further pollution. Certain lands that are proximate to shorelines have intrinsic water quality value due to the ecological and biological processes they perform. Other lands have severe development constraints from flooding, erosion, and soil limitations. With proper management, they offer significant ecological benefits by providing water quality maintenance and pollution control, as well as flood and shoreline erosion control. These lands together, designated by the Northampton County Board of Supervisors as Chesapeake / Atlantic Preservation Areas (hereinafter CAP), need to be protected from destruction and damage in order to protect the quality of water in the Chesapeake Bay and Atlantic Ocean and consequently the quality of life in Northampton County and the Commonwealth of Virginia.
(C) Purpose and intent. This chapter is enacted to implement the requirements of VA Code § 62.1-44.15:67 et seq. The intent of the Board of Supervisors and the purpose of the CAP is to:
(1) Protect existing high quality state waters;
(2) Protect and restore all other state waters to a condition or quality that will permit all reasonable public uses and will support the propagation and growth of all aquatic life, including game fish, which might reasonably be expected to inhabit them;
(3) Safeguard the clean waters of the Commonwealth from pollution;
(4) Prevent any increase in pollution;
(5) Reduce existing pollution;
(6) Promote water resource conservation in order to provide for the health, safety, and welfare of the present and future citizens of Northampton County; and
(7) Promote water quality because of its positive impacts upon the health of Northampton County's citizens and economy.
(8) The CAP shall be in addition to and shall overlay all other zoning districts where they are applied so that any parcel of land lying in the CAP shall also lie in one or more of the other zoning districts provided for by the Zoning Code.
(D) Areas of Applicability. This chapter shall apply to all lands identified in the CAP's as designated by the Board of Supervisors and shown on the general CAP map.
(1) The Resource Protection Area (RPA) includes:
(a) Tidal wetlands; (see Appendix A);
(b) Water bodies with perennial flow;
(c) Non-tidal wetlands connected by surface flow and contiguous to tidal wetlands;
(d) Non-tidal wetlands connected by surface flow and contiguous to water bodies with perennial flow;
(e) Tidal shores and beaches;
(f) Coastal primary sand dunes, including beaches (see Appendix B); and
(g) A 100-foot vegetated buffer area located adjacent to and landward of the components listed in the subsections (D)(1)(a)-(f) above and along both sides of any water body with perennial flow.
i. The buffer is an area located adjacent to and landward of the components listed in the subsections above and along both sides of any water body with perennial flow.
ii. To minimize the adverse effects of human activities on the other components of Resource Protection Areas, state waters, and aquatic life, a 100-foot buffer area of vegetation that is effective in retarding runoff, preventing erosion, and filtering nonpoint source pollution from runoff shall be maintained if present and established where it does not exist.
iii. The full buffer area shall be designated as the landward component of the RPA.
iv. The 100-foot buffer area shall be deemed to achieve a 75% reduction of sediments and a 40% reduction of nutrients.
(2) The Resource Management Area (RMA) is composed of all land in the Northampton County which is not designated as an RPA.
(3) The CAP map shows the general location of RPAs and should be consulted by persons contemplating activities within Northampton County prior to engaging in a regulated activity.
(4) Areas designated as redevelopment areas shall comply with all erosion and sediment control requirements and the performance standards for redevelopment in NCC § 154.2.163(M).
(E) Use Regulations. Permitted uses, special permit uses, accessory uses, and special requirements shall be as established by the underlying zoning district, unless modified by the requirements set forth herein.
(F) Lot Size. Lot size shall be subject to the requirements of the underlying zoning district(s), provided that any lot shall have sufficient area outside the RPA to accommodate an intended development, in accordance with the performance standards in NCC § 154.2.163(M), when such development is not otherwise allowed in the RPA.
(G) Conflict with Other Regulations. In any case where the requirements of this chapter conflict with any other provision of the Northampton County Zoning Code and / or other regulations or existing state or federal regulations, whichever imposes the more stringent restrictions shall apply.
(H) Interpretation of Resource Protection Area Boundaries. Delineation by the applicant. The site-specific boundaries of the RPA shall be delineated by the applicant through the performance of an environmental site assessment, subject to approval by the Zoning Administrator and in accordance with NCC § 154.2.163, Areas of Applicability et seq., and NCC § 154.2.163(N). The CAP map and the National Wetlands Inventory Maps may be used as a guide to the general location of RPAs.
(1) Delineation by the Zoning Administrator. The Zoning Administrator, when requested by an applicant wishing to construct a single-family residence, may waive the requirement for an environmental site assessment and perform the RPA delineation. The Zoning Administrator may use hydrology, soils, plant species, and other data, and consult other appropriate resources as needed to perform the delineation.
(2) Where a conflict arises over delineation. Where the applicant has provided a site-specific delineation of the RPA, the Zoning Administrator will verify the accuracy of the boundary delineation. In determining the site-specific RPA boundary, the Zoning Administrator may make adjustments to the applicant's boundary delineation, in accordance with NCC § 154.2.163(N). In the event the adjusted boundary delineation is contested by the applicant, the applicant may seek relief pursuant to the provisions of NCC § 154.2.163(N)(8) and NCC § 154.2.022 and NCC § 154.2.225, et seq.
(I) Encroachments into the RPA.
(1) General
(a) A water quality impact assessment as described in NCC § 154.2.163(O) shall be required for any proposed land disturbance, development or redevelopment within RPAs and for any development within RMAs when required by the Zoning Administrator because of the unique characteristics of the site or intensity of development.
(b) Any development or redevelopment 2,500 square feet or greater of land disturbance shall require the approval of a plan of development prior to any clearing or grading of the site or the issuance of any building permit.
(c) Any encroachments into the RPAs shall be mitigated by the appropriate use of best management practices and / or mitigation planting as described in NCC § 154.2.163(M).
(d) Approvable encroachments into the RPA are: buffer area maintenance, water-dependent facilities, roads, or driveway crossings satisfying the conditions set forth in NCC § 154.2.163(I)(2), (3) and (4) flood control or stormwater management facilities satisfying the conditions set forth in NCC § 154.2.163(I)(5) redevelopment, or development uses provided for through a waiver, exception, or exemption.
(e) If an encroachment is approved through the issuance of an administrative waiver by the Zoning Administrator, at the time the waiver is granted, written notification shall be sent to adjacent property owners advising them of the determination and the appeal process.
(2) Vegetation and Paths. In order to maintain the functional value of the buffer area, indigenous vegetation may be removed, subject to approval by the Zoning Administrator, only to provide for reasonable sight lines, access paths, general woodlot management, and best management practices including those that prevent upland erosion and concentrated flows of stormwater. The following encroachments into the buffer area are allowed:
(a) As described in the Riparian Buffers Modification & Mitigation Guidance Manual, see Appendix C link 9, trees may be pruned or removed as necessary to provide for sight lines and vistas, subject to approval by the Zoning Administrator, provided that where removed, they shall be replaced with other vegetation that is equally effective in retarding runoff, preventing erosion, and filtering nonpoint source pollution from runoff;
(b) Any path, subject to approval by the Zoning Administrator, shall be constructed and surfaced so as to effectively control erosion;
(c) Dead, diseased, or dying trees or shrubbery and noxious weeds (such as Johnson grass, kudzu, and multiflora rose) may be removed and thinning of trees allowed, subject to approval by the Zoning Administrator, pursuant to sound horticulture practices; and
(d) For shoreline erosion control projects, trees and woody vegetation may be removed, necessary control techniques employed, and appropriate vegetation established to protect or stabilize the shoreline in accordance with the best available technical advice and applicable permit conditions or requirement, subject to approval by the Zoning Administrator.
(3) Water dependent facilities. A new or expanded water-dependent facility may be allowed provided that the following criteria are met:
(a) It does not conflict with the county's Comprehensive Plan;
(b) It complies with the performance criteria set forth in NCC § 154.2.163(M);
(c) Any non-water-dependent component is located outside of the RPA; and
(d) Access to the water-dependent facility will be provided with the minimum disturbance necessary. Where practicable, a single point of access will be provided.
(4) Roads and driveways. Roads and driveways not exempt under NCC § 154.2.163(J) may be constructed in or across RPAs if each of the following conditions is met:
(a) The Zoning Administrator makes a finding that there are no reasonable alternatives to aligning the road or driveway in or across the RPA;
(b) The alignment and design of the road or driveway minimizes both encroachment into the RPA and adverse impacts on water quality;
(c) The design and construction of the road or driveway satisfy all applicable criteria of this chapter, including submission of a water quality impact assessment according to NCC § 154.2.163(O);
(d) Any applicable permit or approval from the Northampton County Wetlands Board, the Virginia Marine Resources Commission, or the U. S. Army Corps of Engineers is obtained;
(e) The plan for the proposed road or driveway in or across the RPA is reviewed in coordination with site plan, subdivision, and/or plan of development approvals.
(5) Flood control and stormwater management facilities that drain or treat water from multiple development projects or from a significant portion of a watershed may be allowed in RPAs if the following conditions are met. A best management practice that collects and treats runoff from only an individual lot or some portion of a lot may not be located within an RPA.
(a) The location of the facility within the RPA has been demonstrated to be the optimum location;
(b) The size of the facility is the minimum necessary to provide necessary flood control or stormwater management, or both;
(c) The facility must be consistent with a comprehensive stormwater management plan developed and approved in accordance with the Virginia Stormwater Management Program;
(d) All applicable permits for construction in state or federal waters must be obtained from the U.S. Army Corps of Engineers, the Virginia Department of Environmental Quality, and the Virginia Marine Resources Commission;
(e) Any required permit is obtained from the Northampton County Wetlands Board and a site plan is approved;
(f) Routine maintenance shall be performed on such facilities to assure that they continue to function as designed.
(6) Mitigation. In order to mitigate the effects of the buffer encroachment, other measures such as French drains, dry wells, and storage of construction materials outside the buffer must be implemented unless the Zoning Administrator determines that such measures are inappropriate or unnecessary due to the specific conditions of the site or the nature of the project.
(7) Redevelopment may be permitted only if there is no increase in the amount of impervious cover and no further encroachment within the RPA. Redevelopment shall conform to the stormwater management requirements outlined under NCC § 154.2.163(N)(4) and erosion and sediment control requirements outlined under NCC § 154.2.163(N)(5).
(8) Administrative Waiver Process. Development may occur upon the approval of an administrative waiver process when the following conditions exist.
(a) An applicant seeks to expand nonconforming uses and structures. For the purposes of the CAP, this shall be defined as the lawful use of a building or structure which existed on October 1, 1989, or which exists at the time of any amendment to this chapter, and which is not in conformity with the provisions of the CAP.
(b) The application of the buffer area would result in the loss of buildable area on a lot or parcel recorded prior to October 1, 1989.
(c) No waiver shall be granted unless the following conditions and findings are met:
1. Encroachments into the buffer areas shall be the minimum necessary to achieve a reasonable buildable area for a principal structure and necessary utilities;
2. The encroachment may not extend into the seaward 50 feet of the buffer area;
3. There will be no increase in nonpoint source pollution load;
4. Where practicable, a vegetated area that will maximize water quality protection, mitigate the effects of the buffer encroachment, and is equal to the area of encroachment into the buffer area shall be established elsewhere on the lot or parcel;
5. Any development or land disturbance exceeding an area of 2,500 square feet complies with all erosion and sediment control requirements of this chapter.
(d) A request for an administrative waiver to the requirements of this chapter shall be made in writing to the Zoning Administrator. It shall identify the impacts of the proposed waiver on water quality and on lands within the RPA through the performance of a water quality impact assessment which complies with the provisions of NCC § 154.2.163(O).
(e) The Zoning Administrator shall review the request for an administrative waiver and the water quality impact assessment and may grant the waiver with such conditions and safeguards as deemed necessary to further the purpose and intent of this chapter, but only if the Zoning Administrator finds:
1. Granting the waiver will not confer upon the applicant any special privileges that are denied by this chapter to other property owners in the CAP;
2. The waiver request is not based upon conditions or circumstances that are self-created or self-imposed, nor does the request arise from conditions or circumstances either permitted or non-conforming that are related to adjacent parcels;
3. The waiver request is the minimum necessary to afford relief;
4. The waiver request will be in harmony with the purpose and intent of this chapter, and not injurious to the neighborhood or otherwise detrimental to the public welfare and is not of substantial detriment to water quality;
5. Reasonable and appropriate conditions are imposed which will prevent the waiver request from causing a degradation of water quality;
6. In no case shall this provision apply to accessory structures; and
7. The waiver is permitted by NCC § 154.2.245 et seq.
(f) An administrative waiver request shall be made to and upon forms furnished by the Zoning Administrator and shall include, for the purpose of proper enforcement of this chapter, the following information:
i. Name and address of applicant and property owner;
ii. Legal description of the property and type of proposed use and development;
iii. A sketch of the dimensions of the lot or parcel, location of buildings and proposed additions relative to the lot lines, and boundary of the RPA;
Location and description of any existing private water supply or sewage system; and
iv. Justification for the waiver request, including how the criteria in NCC § 154.2.163(I)(8)(e) are satisfied by the waiver request;
v. A waiver shall become null and void 12 months from the date issued if no substantial work has commenced;
vi. If the Zoning Administrator cannot make the required findings or refuses to grant the waiver, the Zoning Administrator shall return the request for a waiver together with the water quality impact assessment and the written findings and rationale for the decision to the applicant, with a copy to the Board of Zoning Appeals. The applicant may then apply to the Board of Zoning Appeals for an exception.
(9) Exceptions by the Board of Zoning Appeals.
(a) Persons aggrieved by the denial of a waiver by the Zoning Administrator may appeal for an exception from the Board of Zoning Appeals ("BZA").
(b) A request for an exception to the requirements of this chapter shall be made in writing to the Board of Zoning Appeals on forms furnished by the Zoning Administrator and shall include the information specified in NCC § 154.2.163(I)(8)(f). The request shall identify the impacts of the proposed exception on water quality and on lands within the RPA through the performance of a water quality impact assessment which complies with the provisions of NCC.
(c) After notice and public hearing, the BZA shall review the request for an exception and the water quality impact assessment and may grant the exception with such conditions and safeguards as deemed necessary to further the purpose and intent of this chapter, if the BZA finds:
i. The exception request is the minimum to afford relief, and any encroachments into the buffer areas shall be the minimum necessary to achieve a reasonable buildable area for a principal structure and necessary utilities;
ii. There will be no increase in nonpoint source pollution load;
iii. Where practicable, a vegetated area that will maximize water quality protection, mitigate the effects of the buffer encroachment, and is equal to the area of encroachment into the buffer area shall be established elsewhere on the lot or parcel;
iv. Any development or land disturbance exceeding an area of 2,500 square feet complies with all erosion and sediment control requirements of this chapter;
v. Granting the exception will not confer upon the applicant any special privileges that are denied by this chapter to other property owners in the CAP;
vi. The exception request is not based upon conditions or circumstances that are self-created or self-imposed, nor does the request arise from conditions or circumstances either permitted or non-conforming that are related to adjacent parcels;
vii. The exception request will be in harmony with the purpose and intent of the CAP, and not injurious to the neighborhood or otherwise detrimental to the public welfare and is not of substantial detriment to water quality;
viii. Reasonable and appropriate conditions are imposed which will prevent the exception request from causing a degradation of water quality;
ix. In no case shall this provision apply to accessory structures; and
x. The waiver is permitted by NCC § 154.2.245 et seq.
(d) An exception shall become null and void 12 months from the date issued if no substantial work has commenced.
(e) An exception may be appealed in the same manner as a variance.
(J) Exemptions for Utilities, Railroads and Public Roads.
(1) Construction, installation, and maintenance of electric, natural gas, fiber optic, and telephone lines, railroads, and public roads and their appurtenant structures in accordance with regulations promulgated pursuant to the Erosion and Sediment Control Law (VA Code §§ 62.1-44.15:51 et seq.) and the Stormwater Management Act (VA Code §§ 62.1-44.15:24 et seq.) and an erosion and sediment control plan and a stormwater management plan approved by the Virginia Department of Environmental Quality, or local water quality protection criteria at least as stringent as the above state requirements are deemed to comply with this chapter.
(2) Construction, installation, and maintenance of water, sewer, natural gas, underground telecommunications and cable television lines owned, permitted or both by Northampton County or a regional service authority shall be exempt from this chapter provided that:
(a) To the degree possible, the location of such utilities and facilities shall be outside RPAs;
(b) No more land shall be disturbed than is necessary to provide for the proposed utility installation;
(c) All construction, installation, and maintenance of such utilities and facilities shall be in compliance with all applicable state and federal requirements and permits and designed and conducted in a manner that protects water quality; and
(d) Any land disturbance exceeding an area of 2,500 square feet complies with all Northampton County erosion and sediment control requirements.
(3) The exemption of public roads is further conditioned on the road alignment and design being optimized, consistent with all applicable requirements, to prevent or otherwise minimize the encroachment in the RPA and to minimize the adverse effects on water quality.
(K) Exemption for Agriculture and Silviculture.
(1) Exemptions for agriculture. On agricultural lands, the agricultural buffer area shall be managed to prevent concentrated flows of surface water from breaching the buffer area, and appropriate measures may be taken to prevent noxious weeds from invading the buffer area. Agricultural activities may encroach into the buffer area as follows:
(a) Agricultural activities may encroach into the landward 50 feet of the 100-foot buffer area when at least one agricultural best management practice, which, in the opinion of the Eastern Shore Soil and Water Conservation District Board, addresses the site's more predominant water quality issue (erosion control or nutrient management), is being implemented on the adjacent land, provided that the combination of the undisturbed buffer area and the best management practice achieves water quality protection, pollutant removal, and water resource conservation at least the equivalent of the 100-foot-wide buffer area. If nutrient management is identified as the predominant water quality issue on the site, a nutrient management plan, including soil test, must be developed consistent with the "Virginia Nutrient Management Training and Certification Regulations" (4 VAC 5-15 et seq.), administered by the Virginia Department of Conservation and Recreation;
(b) Agricultural activities may encroach into the landward 75 feet of the 100-foot wide buffer area when agricultural best management practices which address erosion control, nutrient management, and pest chemical control are being implemented on the adjacent land. The erosion control practices must prevent erosion from exceeding the soil loss tolerance level, referred to as "T," as defined in the National Soil Survey Handbook of November 1996 in the Field Office Technical Guide of the U.S. Department of Agriculture Natural Resource Conservation Service. A nutrient management plan, including soil test, must be developed consistent with the Virginia Nutrient Management Training and Certification Regulations (4 VAC 5-15 et seq.), administered by the Virginia Department of Conservation and Recreation. In conjunction with the remaining buffer area, this collection of best management practices shall be presumed to achieve water quality protection at least the equivalent of that provided by the 100-foot-wide buffer area; and
(c) The buffer area is not required to be designated adjacent to agricultural drainage ditches if the adjacent agricultural land has in place at least one best management practice considered by the Eastern Shore Soil and Water Conservation District to address the more predominant water quality issue on the adjacent land, either erosion control or nutrient management.
(d) When agricultural uses within the buffer area cease and the lands are proposed to be converted to other uses, the full 100-foot-wide buffer area shall be reestablished. In reestablishing the buffer, management measures shall be undertaken to provide woody vegetation that assures the buffer functions are maintained or established.
(2) Exemptions for silvicultural activities.
(a) Silvicultural activities are exempt from the requirements of this chapter provided that silvicultural operations adhere to water quality protection procedures prescribed by the Virginia Department of Forestry in the January 1997 edition of Best Management Practices for Forestry Operations [Technical Guide].
(b) When silvicultural uses within the buffer area cease and the lands are proposed to be converted to other uses, the full 100-foot-wide buffer area shall be reestablished. In reestablishing the buffer, management measures shall be undertaken to provide woody vegetation that assures the buffer functions are maintained or established.
(L) Exemptions in Resource Protection Areas. The following uses in RPAs may be exempted: water wells; passive recreation facilities such as boardwalks, trails, and pathways; and historic preservation and archaeological activities, provided that it is demonstrated to the satisfaction of the Zoning Administrator that:
(1) Any required permits, except those to which this exemption specifically applies, shall have been issued;
(2) Sufficient and reasonable proof is submitted that the intended use will not deteriorate water quality;
(3) The intended use does not conflict with nearby planned or approved uses; and
(4) Any land disturbance exceeding an area of 2,500 square feet shall comply with all Northampton County erosion and sediment control requirements.
(M) Performance Standards.
(1) Purpose and intent. The performance standards establish the means to minimize erosion and sedimentation potential, reduce land application of nutrients and toxins, and maximize rainwater infiltration. Natural ground cover, especially woody vegetation, is most effective in holding soil in place and preventing site erosion. Indigenous vegetation, with its adaptability to local conditions without the use of harmful fertilizers or pesticides, filters storm-water runoff. Minimizing impervious cover enhances rainwater infiltration and effectively reduces storm water runoff potential. The purpose and intent of these requirements are also to implement the following objectives: prevent a net increase in nonpoint source pollution from new development; achieve a 10% reduction in nonpoint source pollution from redevelopment; and achieve a 40% reduction in nonpoint source pollution from agricultural uses.
(2) General performance standards for development and redevelopment.
(a) Land disturbance shall be limited to the area necessary to provide for the proposed use or development.
i. In accordance with an approved site plan, the limits of land disturbance, including clearing or grading, shall be defined by the construction footprint plus up to 50 feet of open space around the primary structure. The Zoning Administrator shall review and approve the construction footprint through the plan of development process as required under NCC § 154.2.163(N). These limits shall be clearly shown on submitted plans and physically marked on the development site.
ii. Ingress and egress during construction shall be limited to one access point, unless otherwise approved by the Zoning Administrator.
(b) Indigenous vegetation shall be preserved to the maximum extent practicable consistent with the use and development proposed and in accordance with the Virginia Erosion and Sediment Control Handbook.
i. Existing trees over two inches in diameter at breast height (DBH) shall be preserved outside the construction footprint in the RMA; this provision does not apply to any component of the RPA.
ii. Diseased trees or trees weakened by age, storm, fire, or other injury may be removed as approved by the Zoning Administrator.
iii. Site clearing for construction activities shall be allowed only as approved by the Zoning Administrator through the plan of development review process outlined under NCC § 154.2.163(N).
iv. Prior to clearing or grading, suitable protective barriers, such as safety fencing, shall be erected five feet outside of the drip line of any tree or stand of trees to be preserved. These protective barriers shall remain so erected throughout all phases of construction. The storage of equipment, materials, debris, or fill shall not be allowed within the area protected by the barrier.
(c) Land development shall minimize impervious cover to promote infiltration of storm-water into the ground consistent with the proposed use or development.
i. Grid and modular pavements may be used for any required parking area, alley, or other low traffic driveway, unless otherwise approved by the Zoning Administrator.
ii. Parking space size. See NCC § 154.2.205 et seq.
iii. Water retention ponds shall be used where feasible.
(d) Notwithstanding any other provisions of this chapter or any land disturbing activity 2,500 square feet or greater, shall comply with the requirements of NCC § 153.01, et seq., Erosion and Sediment Control Ordinance.
(e) All development and redevelopment 2,500 square feet or greater of land disturbance shall be subject to a plan of development process, including the approval of a site plan in accordance with the provisions of NCC § 154.2.045 or a subdivision plat in accordance with the Northampton County Subdivision Ordinance, NCC § 156.001 et seq. However, the construction of (i) single-family homes or (ii) farm buildings or structures on a parcel of land with a total impervious cover percentage, including the impervious cover from the farm building or structure to be constructed, of less than 5% will be subject to a simplified plan of development process, pursuant to NCC § 154.2.163(N).
(f) All on-site sewage disposal systems not requiring a VPDES permit shall be pumped out at least once every five years, unless an exception is granted by the Zoning Administrator.
i. The following pump-out frequency (stated in years) standards will be considered upon request by a landowner and may apply if the Zoning Administrator is satisfied, based upon information furnished by the landowner, that the household size, occupancy per year, and septic tank size warrant an exception as described in NCC § 154.2.163(N)(2)(f).
ii. Septic Pump-Out Exception Policy. While the above regulation was adopted in compliance with requirements of the Chesapeake Bay Preservation Area Designation and Management Regulations (9 VAC 25-830 et seq.), the county and the Commonwealth of Virginia recognize that under some circumstances the requirement may impose an undue burden and hardship. Therefore, the county may grant administrative exceptions to this requirement according to the following guidelines.
iii. Each request for an exception will be reviewed on a case-by-case basis.
iv. At the time such request is made, the property owner(s) shall provide evidence that the septic system was pumped or installed within the previous five years.
v. When an exception is granted, subsequent pump-outs will be required according to the chart below. However, each exception will be reviewed after five-year intervals, and at the end of such five-year interval, property owners will be notified and requested to verify occupancy status.
vi. The county reserves the right to check, during the five-year interval, properties that have been granted pump-out exceptions for building permit activities or changes in property ownership that may indicate a change in status of the septic system.
(g) A reserve sewage disposal site with a capacity at least equal to that of the primary sewage disposal site shall be provided. This requirement shall not apply to any lot or parcel recorded prior to October 1, 1989, if such lot or parcel is not sufficient in capacity to accommodate a reserve sewage disposal site, as determined by the local Health Department. Building or construction of any impervious surface shall be prohibited on the area of all sewage disposal sites or on an on-site sewage treatment system which operates under a permit issued by the State Water Control Board, until the structure is served by public sewer.
(h) For any development or redevelopment, storm-water runoff shall be controlled by the use of best management practices consistent with the water quality protection provisions of the Virginia Stormwater Management Regulations (9 VAC 25-870 et seq.). This reference needs to be checked against the new guidance document language.
(i) Prior to initiating grading or other on-site activities on any portion of a lot or parcel, all wetlands permits required by federal, state, and local laws and regulations shall be obtained and evidence of such submitted to the Zoning Administrator, in accordance with NCC § 154.2.163(N).
(j) If a perennial stream is shown on the county's mapping on any portion of a lot or parcel, a perennial stream assessment must be submitted and accepted prior to approval of a plan of development.
(k) Land upon which agricultural activities are being conducted shall have a soil and water quality conservation assessment. Such assessments shall evaluate the effectiveness of existing practices pertaining to soil erosion and sediment control, nutrient management and management of pesticides, and where necessary, results in a plan that outlines additional practices needed to ensure that water quality protection is accomplished consistent with this chapter.
(l) When expansion of nonconforming uses and structures would result in an encroachment into the buffer area which lawfully existed on October 1, 1989, or which exists at the time of any amendment to this chapter, encroachment may be only permitted through an administrative waiver or formal exception in accordance with NCC § 154.2.163(I)(8)(e).
(m) When the application of the buffer areas would result in the loss of a buildable area on a lot or parcel recorded prior to October 1, 1989, encroachment into the buffer area may only be permitted through an administrative waiver or formal exception in accordance with NCC § 154.2.163(I).
(n) The buffer shall be maintained in accordance with NCC § 154.2.163(I)(2).
(3) Required mitigation planting. Establishment or re-establishment of the buffer is addressed by this subsection. Establishment or re-establishment of the buffer will be required for any encroachment into the buffer for any reason, including but not limited to, when a change of use occurs and when a natural buffer does not exist.
(a) Vegetation replacement rates.
VEGETATION REMOVED | PREFERRED REPLACEMENT | ACCEPTABLE ALTERNATIVE VEGETATION |
1 tree or sapling < 2-1/2" caliper | 1 tree @ equal caliper or | OR 2 large shrubs @ 3'-4' greater OR 10 small shrubs or woody groundcover* @ 15"-18" |
1 tree > 2-1/2" caliper | 1 tree @ 2" caliper, or 1 evergreen tree @ 6' min ht., per every 4" caliper of tree 3:1 ratio (ex: a 12" cal. tree would require 3 trees to replace it) | OR 75% trees @ 2" and 25% large shrubs @ 3'-4' per every 4" caliper of tree removed. (Ex: a 16" ca. tree removed would require 3 trees and 1 large shrub) OR 10 small shrubs or woody groundcover @ 15"-18" per 4' ca. of tree removed. (Ex.: an 8' ca. tree removed requires 20 small shrubs.) |
1 large shrub | 1 large shrub @ 3'-4' | OR 5 small shrubs or woody groundcover @ 15"-18" |
*Woody groundcover is considered to be a woody, spreading shrub that remains close to the ground, to 18" high, such as a shore juniper, juniperus conferta. Vines may not be considered "woody groundcover" for the purpose of vegetation replacement | ||
(b) Restoration / establishment Table A.
1. Definitions.
a. CANOPY TREE. A tree that reaches 35 feet in height or larger when mature.
b. LARGE SHRUB. A shrub that reaches ten feet of height or greater at maturity.
c. SMALL SHRUB. A woody plant that can reach up to ten feet of height at maturity.
d. UNDERSTORY TREE. A tree that matures to a height of 12 feet to 35 feet.
2. One-quarter acre or less of buffer (up to 10,890 square feet):
a. For every 400 square- foot unit (20 feet x 20 feet) or fraction thereof plant: one canopy tree at one and one-half to two inches caliper or large evergreen at six feet; and two understory trees at three-quarter inch to one and one- half inches caliper or evergreen at four feet or one understory tree and two large shrubs at three feet to four feet; and three small shrubs or woody groundcover at 15 inches to 18 inches.
b. Example: A 100-foot wide lot x 100-foot wide buffer is 10,000 square feet. Divide by 400 square feet (20 feet x 20 feet unit) to get: 25 units.
Units x | Plant/Unit | Number of Plants |
25 units x | 1 canopy tree | 25 canopy trees |
2 understory trees | 50 understory trees | |
3 small shrubs | 75 small shrubs | |
150 plants |
c. Restoration/establishment Table B. Greater than one-quarter acre of buffer (more than 10,890 square feet.)
i. Plant at the same rate as for one-quarter acre or less.
ii. The waterside 50% of the buffer (from the waterline inland for the first 50 feet): For every 400 square-foot unit (20 feet x 20 feet) or fraction thereof plant: one canopy tree at one and one-half inches to two inches caliper or large evergreen at six feet; and two understory trees at three-quarter inch to one and one-half inches caliper or evergreen at four feet or one understory tree and two large shrubs at three feet to four feet; and three small shrubs or woody groundcover at 15 inches to 18 inches; and
iii. The landward 50% of buffer (from 50 feet inland to 100 feet inland), either plant:
a. Bare root seedlings or whips at 1,210 stems per acre, approximately six feet x six feet on center (minimum survival required after two growing seasons: 600 plants), or
b. Container grown seedling tubes at 700 per acre approximately eight feet x eight feet on center (minimum survival required after two growing seasons: 490 plants).
(N) Plan of development process. Any development or redevelopment exceeding 2,500 square feet of land disturbance shall be accomplished through the approval of a plan of development prior to any clearing or grading of the site or the issuance of any building permit, to assure compliance with all applicable requirements of this chapter.
(1) Required information. In addition to the requirements of this chapter or the requirements of NCC Chapter 156, the plan of development process shall consist of the plans and studies identified below. These required plans and studies may be coordinated or combined, as deemed appropriate by the Zoning Administrator. The Zoning Administrator may determine that some of the information otherwise required is unnecessary due to the scope and nature of the proposed development. The following plans or studies shall be submitted, unless otherwise provided for:
(a) A site plan in accordance with the provisions of NCC § 154.2.045, a subdivision plat in accordance with the provisions NCC Chapter 156, or, for a single-family dwelling unit, a plat showing the proposed house location and any other improvements;
(b) An environmental site assessment;
(c) A landscaping plan;
(d) A stormwater management plan except as provided for in § 154.2.163(N)(4);
(e) An erosion and sediment control plan in accordance with the provisions of the Northampton County Soil and Sediment Control Ordinance; and
(f) A water quality impact assessment when one is required.
(2) Environmental site assessment. An environmental site assessment shall be submitted in conjunction with a request for preliminary site plan or preliminary subdivision plan approval.
(a) The environmental site assessment must be drawn to scale with a narrative and clearly delineate the following environmental features:
i. Tidal wetlands;
ii. Water bodies with perennial flow;
iii. Non-tidal wetland connected by surface flow and contiguous to tidal wetlands;
iv. Non-tidal wetlands connected by surface flow and contiguous to water bodies with perennial;
v. Tidal shores and beaches;
vi. Primary sand dunes, including beaches;
vii. A 100-foot buffer area located adjacent to and landward of the components listed in items 1 through 4 above, and along both sides of any water body with perennial flow; and
viii. Other sensitive environmental features as determined by the Zoning Administrator.
(b) Wetlands delineations shall be performed consistent with the procedures specified in the Federal Manual for Identifying and Delineating Jurisdictional Wetlands, 1989.
(c) A perennial stream assessment determining water bodies with perennial flow be undertaken using a scientifically valid system of in-field indicators such as those described in the Chesapeake Bay Local Assistance guidance document entitled Determination of Water Bodies with Perennial Flow.
(d) The environmental site assessment shall delineate the site-specific geographic extent of the RPA as required under NCC § 154.2.163(D); and
(e) The environmental site assessment shall be drawn at the same scale as the preliminary site plan or subdivision plat, and shall be certified as complete and accurate by a professional engineer or a certified land surveyor licensed in Virginia. This requirement may be waived by the Zoning Administrator when the proposed use or development would result in less than 5,000 square feet of disturbed area.
(3) Landscaping plan. A landscaping plan or landscaping element shall be required in conjunction with a request for site plan approval or as part of subdivision plat approval. No clearing or grading of any lot or parcel shall be permitted without an approved landscaping plan when required.
(a) Contents of the landscaping plan.
i. The landscaping plan shall be drawn to scale and clearly delineate the location, size, and description of existing and proposed plant material. All existing trees on the site two inches or greater DBH shall be shown on the landscaping plan. Where there are groups of trees, stands may be outlined instead. The specific number of trees two inches or greater DBH to be preserved outside of the construction footprint shall be indicated on the plan. Trees to be removed to create a desired construction footprint shall be clearly delineated on the landscaping plan.
ii. Any required RPA buffer area shall be clearly delineated and any plant material to be added to establish or supplement the buffer area, as required by this chapter, shall be shown on the landscaping plan.
iii. Within the RPA buffer area, trees and other woody vegetation to be removed for sight lines, vistas, access paths, and best management practices, as provided for in this chapter, shall be shown on the plan. Vegetation required by this chapter to replace any existing trees or other woody vegetation within the buffer area shall also be shown on the landscaping plan.
iv. Trees or other woody vegetation to be removed for shoreline stabilization projects and any replacement vegetation required by this chapter shall be shown on the landscaping plan.
v. The plan shall depict grade changes or other work adjacent to trees which would affect them adversely. Specifications shall be provided as to how grade, drainage, and aeration would be maintained around trees to be preserved.
vi. The landscaping plan will include specifications for the protection of existing trees during clearing, grading, and all phases of construction.
vii. If the proposed development is a change in use from agricultural or silvicultural to some other use, the plan must demonstrate the reestablishment of woody vegetation in the buffer area as required is subsection (3) above.
(b) Plant specifications.
i. All plant materials necessary to supplement the buffer area or vegetated areas outside the construction footprint shall be installed according to standard planting practices and procedures.
ii. All supplementary or replacement plant materials shall be living and in a healthy condition. Plant materials shall conform to the standards of the most recent edition of the American Standard for Nursery Stock, published by the American Association of Nurserymen.
iii. Where areas to be preserved, as designated on an approved landscaping plan, are encroached a mitigation plan in compliance with subsection (3) above will be required when the encroachment is within the buffer area. When the encroachment is outside the buffer area replacement of existing trees and other vegetation will be achieved at a ratio of three planted trees or shrubs to one removed. Replacement trees shall be a minimum two-inch caliper at the time of planting and shrubs shall be a minimum of three-gallon container, measured in accordance with standards provided in the most recent edition of American Standard for Nursery Stock published by the American Nursery and Landscape Association.
iv. Use of native or indigenous species is required.
(c) Maintenance.
i. The applicant shall be responsible for the maintenance and replacement of all vegetation as may be required by the provisions of this chapter.
ii. In buffer areas and areas outside the construction footprint, plant material shall be tended and maintained in a healthy growing condition and free from refuse and debris. Unhealthy, dying, or dead plant materials shall be replaced during the next planting season, as required by the provisions of this chapter.
(4) Stormwater management plan. Stormwater management plan shall be submitted as part of the plan of development process required by this chapter and in conjunction with site plan or subdivision plat approval consistent with the provisions of the Virginia Stormwater Program Management Regulations except that single-family residences separately built and disturbing less than one acre and not part of a larger plan of development or sale, including additions or modifications to existing single-family detached residential structures shall be exempt as long as when this development or redevelopment exceeds 16% lot coverage, a best management practice (BMP) mitigating for the percentage exceeding 16% shall be installed on the same lot as the development or redevelopment. Completion of the BMP installation shall be required before the issuance of a certificate of occupancy, certificate of compliance, letter of completion or passing final inspection.
(5) Erosion and sediment control plan. An erosion and sediment control plan shall be submitted that satisfies the requirements of this chapter and is in accordance with the Northampton County Soil and Sediment Control Ordinance, in conjunction with site plan or subdivision plat approval, consistent with the provisions of the Virginia Erosion and Sediment Control Regulations.
(6) Final plan. Final plans for property within the CAP shall be final plats for land to be subdivided or site plans for land not to be subdivided as required in NCC § 154.2.045 and NCC Chapter 156, Northampton County Subdivision Code.
(a) Final plans for all lands within the CAP shall include the following additional information:
(1) The delineation of the Resource Protection Area boundary, including the 100-foot buffer area;
(2) Plat or plan note stating that no land disturbance is allowed in the RPA buffer area without the review and approval by the Zoning Administrator;
(3) All wetlands permits required by law; and
(4) A maintenance agreement as deemed necessary and appropriate by the Zoning Administrator to ensure proper maintenance of best management practices in order to continue their functions.
(b) Installation and bonding requirements:
i. Where a plan of development requires improvements such as but not limited to the buffer area establishment, landscaping, stormwater management facilities or other specifications, the plan shall not be approved until bonding / surety is provided for the completion of the improvements. No certificate of occupancy shall be issued until the installation of all required improvements are completed in accordance with the approved plan.
ii. The cost of the improvements will be determined, to the satisfaction of the Zoning Administrator, by the applicant providing two guaranteed estimates or an estimate provided by a licensed engineer.
iii. All required landscaping shall be installed and approved by the first planting season following issuance of a certificate of occupancy or the surety may be forfeited to Northampton County.
iv. All required stormwater management facilities or other specifications shall be installed and approved within 18 months of project commencement through the issuance of a land disturbance permit. Should the applicant fail, after proper notice, to initiate, complete, or maintain appropriate actions required by the approved plan, the surety may be forfeited to Northampton County. Northampton County may collect from the applicant the amount by which the reasonable cost of required actions exceeds the amount of the surety held.
v. After all required actions of the approved plan have been completed, the applicant must submit a written request for a final inspection. If the requirements of the approved plan have been completed, such unexpended or unobligated portion of the surety held shall be refunded to the applicant or terminated within 60 days following the receipt of the applicant's request for final inspection. The Zoning Administrator may require a certificate of substantial completion from a professional engineer or Class III B Surveyor before making a final inspection.
(7) Administrative responsibility. Administration of the plan of development process shall be in accordance with the site plan provisions of NCC § 154.2.045 and / or NCC Chapter 156.
(O) Water Quality Impact Assessment. The purpose of the water quality impact assessment is to:
(1) Identify the impacts of proposed land disturbance, redevelopment, or development on water quality and lands within RPAs and other environmentally-sensitive lands;
(2) Ensure that, where land disturbance, redevelopment, or development does take place within RPAs and other sensitive lands, it will be located on those portions of a site and in a manner that will be least disruptive to the natural functions of RPAs and other sensitive lands;
(3) Protect individuals from investing funds for improvements proposed for location on lands unsuited for such development because of high ground water, erosion, or vulnerability to flood and storm damage;
(4) Specify mitigation which will address water quality protection.
(5) A water quality impact assessment is required for:
(a) Any proposed land disturbance, redevelopment, or development within an RPA, including any buffer area modification or encroachment as provided for in NCC § 154.2.108; and
(b) Any land disturbance, redevelopment, or development in an RMA as deemed necessary by the Zoning Administrator due to the unique characteristics of the site or intensity of the proposed development. There shall be two levels of water quality impact assessments: a minor assessment and a major assessment.
(6) Minor water quality impact assessment. A minor water quality impact assessment pertains only to development activities within the CAP which cause no more than 5,000 square feet of land disturbance and require any modification of or encroachment into the landward 50 feet of the 100-foot buffer area as permitted under this chapter. A minor assessment must demonstrate that the undisturbed buffer area, enhanced vegetative plantings, and any required best management practices will result in removal of no less than 75% of sediments and 40% of nutrients from post-development stormwater runoff and will retard runoff, prevent erosion, and filter nonpoint source pollution the equivalent of the full undisturbed 100-foot buffer area. A minor assessment shall include a site drawing to scale which shows the following:
(a) Location of the components of the RPA, including the 100-foot buffer area;
(b) Location and nature of the proposed encroachment into the buffer area, if needed, including: type of paving material; areas of clearing or grading; location of any structures, drives, or other impervious cover; and sewage disposal systems or reserve drainfield sites;
(c) Type and location of proposed best management practices to mitigate the proposed encroachment;
(d) The area to be disturbed necessitated by the construction;
(e) Location of existing vegetation onsite, including the number and type of trees and other vegetation to be removed in the buffer to accommodate the encroachment or modification; and
(f) Re-vegetation plan that supplements the existing buffer vegetation in a manner that provides for pollutant removal and erosion and runoff control.
(7) Major water quality impact assessment. A major water quality impact assessment shall be required for any development activities which exceed 5,000 square feet of land disturbance within the CAP and propose to modify or encroach into the landward 50 feet of the 100-foot buffer area; propose to disturb or encroach into any portion of the seaward 50 feet of the 100-foot buffer area or any other component of an RPA; or are located completely in an RMA and is deemed necessary by the Zoning Administrator. The information required in this section shall be considered a minimum, unless the Zoning Administrator determines that some of the elements are unnecessary due to the scope and nature of the proposed use and development of land. The following elements shall be included in the preparation and submission of a major water quality assessment:
(a) All of the information required in a minor water quality impact assessment, as specified in subsection (6) above;
(b) A hydro-geological element that:
i. Describes the existing topography, soils, hydrology and geology of the site and adjacent lands;
ii. Describes the impacts of the proposed development on topography, soils, hydrology and geology on the site and adjacent lands;
iii. Indicates the following:
(a) Disturbance or destruction of wetlands, primary and secondary dunes and justification for such action;
(b) Disruptions or reductions in the supply of water to wetlands, streams, or other water bodies;
(c) Disruptions to existing hydrology including wetland and stream circulation patterns;
(d) Source location and description of proposed fill material, if applicable;
(e) Location of dredge material and location of dumping area for such material, if applicable;
(f) Estimation of pre- and post-development pollutant loads in runoff;
(g) Estimation of percent increase in impervious surface on site and type(s) of surfacing materials used;
(h) Percent of site to be cleared for project;
(i) Anticipated duration and phasing schedule of construction project; and
(j) Listing of all requisite permits from all applicable agencies necessary to develop project; and
iv. Describes the proposed mitigation measures for the potential hydro-geological impacts. Potential mitigation measures include:
(a) Additional proposed erosion and sediment control concepts beyond those normally required under this chapter; these additional concepts may include minimizing the extent of the cleared area, perimeter controls, reduction of runoff velocities, measures to stabilize disturbed areas, schedule and personnel for site inspection; and
(b) Proposed storm water management system.
(c) A vegetative element that:
i. Identifies and delineates the location of all woody plant material on site, including all trees two inches or greater DBH or, where there are groups of trees, stands may be outlined;
ii. Describes the impacts the development or use will have on the existing vegetation. Information should include:
(a) General limits of clearing, based on all anticipated improvements, including buildings, drives, and utilities;
(b) Clear delineation of all trees and other woody vegetation which is proposed to be removed; and
(c) Description of all plant species proposed to be disturbed or removed; and
iii. Describes the proposed measures for mitigation. Possible mitigation measures include:
(a) Proposed design plan and replanting schedule for trees and other woody vegetation proposed to be removed for construction, including a list of proposed plants and trees to be used;
(b) Demonstration that the design of the plan will preserve to the greatest extent possible any significant trees and vegetation on the site and will provide maximum erosion control and overland flow benefits from such vegetation;
(c) Demonstration that indigenous plants are to be used to the greatest extent possible; and
(d) Demonstration that the revegetation plan supplements the existing buffer vegetation in a manner that provides for pollutant removal and erosion and runoff control.
(8) Submission and review requirements.
(a) Eight copies of all site drawings and other applicable information as required NCC § 154.2.045 shall be submitted to the Zoning Administrator for review.
(b) All information shall be completed by persons qualified to perform the scope of work required in this section and certified by a professional engineer or surveyor licensed in Virginia.
(c) A minor water quality impact assessment shall be prepared and submitted to and reviewed by the Zoning Administrator in conjunction with NCC § 154.2.163(N).
(d) A major water quality impact assessment shall be prepared and submitted to and reviewed by the Zoning Administrator in conjunction with a request for rezoning, special use permit, or in conjunction with NCC § 154.2.163(N).
(e) As part of any major water quality impact assessment submittal, the Zoning Administrator may require review by the Virginia Department of Environmental Quality (DEQ) and other agencies to assist in a complete review. Upon receipt of a major water quality impact assessment, the Zoning Administrator and other state and local agencies will determine if such review is warranted and may request DEQ to review the assessment and respond with written comments. Any comments by such agencies will be incorporated into the final review by the Zoning Administrator, provided that such comments are provided by said agencies within 60 days of the request.
(9) Evaluation procedure.
(a) The Zoning Administrator may determine that a modification or reduction of the buffer area is appropriate if, after review of a complete minor water quality impact assessment, it is established that:
i. The proposed encroachment is necessary to allow use of the property and improvements may not be placed elsewhere on the site to avoid disturbance of the buffer area;
ii. Impervious surface is minimized;
iii. Proposed best management practices, where required, achieve the requisite reductions in pollutant loadings;
iv. Proposed mitigation measures, including the revegetation plan and site design, result in minimal disturbance to all components of the RPA, including the 100-foot buffer area;
v. Proposed mitigation measures will work to retain all buffer area functions: pollutant removal, erosion and runoff control;
vi. The development, as proposed, is consistent with the purpose and intent of this chapter; and
vii. The cumulative impact of the proposed development, when considered in relation to other development in the vicinity, both existing and proposed, will not result in a significant degradation of water quality.
(b) Prior to the approval of a proposed project or development, the Zoning Administrator may determine that a modification or reduction of the buffer area is appropriate if, after review of a complete major water quality impact assessment, it is established that:
i. Within any RPA, the proposed development is water-dependent or constitutes redevelopment;
ii. The disturbance of any wetlands will be minimized by noting the percentage of existing wetlands to be disturbed and the acreage or square footage of proposed wetland disturbance;
iii. The development will not result in significant disruption of the hydrology of the site;
iv. The development will not result in unnecessary destruction of plant materials on site;
v. Proposed erosion and sediment control concepts are adequate to achieve the reductions in runoff and prevent off-site sedimentation;
vi. Proposed stormwater management concepts are adequate to control the stormwater runoff to achieve the required performance standard for pollutant control;
vii. Proposed revegetation of disturbed areas will provide optimum erosion and sediment control benefits as well as runoff control and pollutant removal equivalent to the full 100-foot undisturbed buffer area;
viii. The design and location of any proposed drainfield will be in accordance with the requirements of section 110 of Virginia State Health Department; and
ix. The development, as proposed, is consistent with the purpose and intent of the CAP.
(c) The Zoning Administrator shall require additional mitigation where potential impacts have not been adequately addressed. Evaluation of mitigation measures will be made by the Zoning Administrator based on the criteria listed above in NCC § 154.2.163(N)(9) (a) and (b).
(d) The Zoning Administrator shall find the proposal to be inconsistent with the purpose and intent of this chapter when the impacts created by the proposal cannot be mitigated. Evaluation of the impacts will be made by the Zoning Administrator based on the criteria set forth in NCC § 154.2.163(N)(9)(a) and (b).
(Ord. passed 4-12-2016; Am. Ord. passed 2-13-2024)