(A) Findings of fact.
(1) The Chesapeake Bay is one of the most important and productive estuaries in the world, providing economic and social benefits to the citizens of the county and the state. The health of the Bay is vital to maintaining the county’s economy and the welfare of its citizens. Economic development and water quality protection not only may coexist, they must.
(2) The Chesapeake Bay waters have been degraded significantly by several factors including nonpoint source pollution from land uses and development. Existing high quality waters are worthy of protection from pollution to guard against further degradation. 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 county as Chesapeake Bay Preservation Areas (hereinafter “CBPAs”), need to be protected from destruction and damage in order to protect the quality of water in the Bay and consequently the quality of life in the county and the state.
(B) Purpose and intent.
(1) This Chesapeake Bay Preservation Area Overlay District is created to implement the requirements of VA Code §§ 10.1-2100 et seq. (the Chesapeake Bay Preservation Act). The intent of the County Board of Supervisors and the purpose of this Overlay District are to: protect existing high quality state waters; 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; safeguard the clean waters of the state from pollution; prevent any increase in pollution; reduce existing pollution; and promote water resource conservation in order to provide for the health, safety, and welfare of the present and future citizens of the county.
(2) This Chesapeake Bay Preservation Area Overlay District shall be in addition to and shall overlay all other zoning districts so that any parcel of land lying in the Chesapeake Bay Preservation Area Overlay District shall also lie in one or more of the other zoning districts provided for by this chapter. Unless otherwise stated in this chapter, the review and approval procedures provided for in the Subdivision (Chapter 154), Erosion and Sediment Control (Chapter 152), Wetlands (Chapter 156), and Floodplain Management (Chapter 151) chapters as adopted by the county, shall be followed in reviewing and approving development, redevelopment, and uses within this Overlay District.
(3) This Overlay District is created under the authority of VA Code §§ 10.1-2100 et seq. (the Chesapeake Bay Preservation Act).
(C) Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
AGRICULTURAL LANDS. Those lands used for the planting and harvesting of crops or plant growth of any kind in the open; pasture; horticulture; dairying; floriculture; or raising of poultry and/or livestock.
BEACH. The zone of sedimentary material that extends landward from mean high water level to the place where there is marked change in material of form, or the line of permanent vegetation.
BEST MANAGEMENT PRACTICES (BMPS). A practice, or a combination of practices, that is determined by a state or designated area wide planning agency to be the most effective, practical means of preventing or reducing the amount of pollution generated by nonpoint sources to a level compatible with water quality goals.
BUFFER AREA. An area of natural or established vegetation managed to protect other components of a resource protection area and state waters from significant degradation due to land disturbances.
CHESAPEAKE BAY PRESERVATION AREA (CBPA). Any land designated by the County Board of Supervisors pursuant to part III of the Chesapeake Bay Preservation Area Designation and Management Regulations, 9 VAC 10-20-10 et seq., and VA Code § 10.1-2107. A CHESAPEAKE BAY PRESERVATION AREA shall consist of a resource protection area and a resource management area.
CONSTRUCTION FOOTPRINT. The area of all impervious surface including, but not limited to, buildings, roads and drives, parking areas, and sidewalks and area necessary for construction of such improvements.
DEVELOPMENT. The construction, or substantial alteration, of residential, commercial, industrial, institutional, recreation, transportation, or utility facilities or structures.
DIAMETER AT BREAST HEIGHT (D.B.H.). The diameter of a tree measured outside the bark at a point four and one-half feet above the ground.
DRIPLINE. A vertical projection to the ground surface from the furthest lateral extent of a tree’s leaf canopy.
FLOODPLAIN. Those areas of the county subject to inundation by water of the 100-year flood as described by the Flood Insurance Study for the county and shown on the Flood Insurance Rate Map series, both prepared by the Federal Emergency Management Agency and dated March 16, 1989.
HIGHLY ERODIBLE SOILS. Soils (excluding vegetation) with an erodibility index (EI) from sheet and rill erosion equal to or greater than eight. The erodibility index for any soil is defined as the product of the formula RKLS/T; where R is the rainfall and runoff; K is the soil susceptibility to water erosion in the surface layer; LS is the combined effects of slope length and steepness; and T is the soil loss tolerance.
HIGHLY PERMEABLE SOILS. Soils with a given potential to transmit water through the soil profile. HIGHLY PERMEABLE SOILS are identified as any soil having a permeability equal to or greater than six inches of water movement per hour in any part of the soil profile to a depth of 72 inches (permeability groups “rapid” and “very rapid”) as found in the National Soil Survey Handbook of November 1996 in the Field Office Technical Guide of the U.S. Department of Agriculture Natural Resources Conservation Service.
IMPERVIOUS COVER. A surface composed of any material that significantly impedes or prevents natural infiltration of water into the soil. IMPERVIOUS SURFACES include, but are not limited to: roofs; buildings; streets; parking areas; and any concrete, asphalt, or compacted gravel surface.
INTENSELY DEVELOPED AREAS (IDAS). A portion of a resource protection area or resource management area designated by the County Board of Supervisors where development is concentrated and little of the natural environment remains.
NONPOINT SOURCE POLLUTION. Pollution consisting of constituents such as sediment, nutrients, and organic and toxic substances from diffuse sources, such as runoff from agricultural and urban land development and use.
NONTIDAL WETLANDS. Those wetlands other than tidal wetlands that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, as defined by the U.S. Environmental Protection Agency pursuant to § 404 of the Federal Clean Water Act, in 33 C.F.R. § 328.3b.
NOXIOUS WEEDS. Weeds that are difficult to control effectively, such as Johnsongrass, kudzu, multiflora rose, and Phragmites australis.
PLAN OF DEVELOPMENT. The process for site plan or subdivision plat review to ensure compliance with VA Code § 10.1-2109 and this chapter, prior to any clearing or grading of a site or the issuance of a building permit.
POND. An inland body of water of either artificial or natural construction not connected by surface flow or contiguous to tidal waters.
PUBLIC ROAD. A publicly owned road designed and constructed in accordance with water quality protection criteria at least as stringent as requirements applicable to the State Department of Transportation, including regulations promulgated pursuant to the Erosion and Sediment Control Law (VA Code §§ 10.1-603.1 et seq.). This definition includes those roads where the State Department of Transportation exercises direct supervision over the design or construction activities, or both, and cases where secondary roads are constructed and maintained, or both, by the county in accordance with the standards of the county.
RESOURCE MANAGEMENT AREA (RMA). The component of the Chesapeake Bay Preservation Area not classified as the resource protection area. RMAS include land types that, if improperly used or developed, have the potential for causing significant water quality degradation or for diminishing the functional value of the resource protection area.
RESOURCE PROTECTION AREA (RPA). The component of the Chesapeake Bay Preservation Area comprised of lands adjacent to waterbodies with perennial flow that have an intrinsic water quality value due to the ecological and biological processes they perform or are sensitive to impacts which may result in significant degradation to the quality of state waters.
SILVICULTURAL ACTIVITIES. Forest management activities including, but not limited to, the harvesting of timber, the construction of roads and trails for forest management purposes, and the preparation of property for reforestation that are conducted in accordance with the silvicultural best management practices developed and enforced by the State Forester pursuant to VA Code § 10.1-1105 and are located on property defined as real estate devoted to forest use under VA Code § 58.1-3230.
SUBSTANTIAL ALTERATION. Expansion or modification of a building or development that would result in disturbance of land exceeding an area of 2,500 square feet in the resource management area only.
TIDAL SHORE or SHORE. Land contiguous to a tidal body of water between the mean low water level and the mean high water level.
TIDAL WETLANDS. Vegetated and non-vegetated wetlands as defined in VA Code § 28.2-1300.
WATER-DEPENDENT FACILITY. A development of land that cannot exist outside of the resource protection area and must be located on the shoreline by reason of the intrinsic nature of its operation. These facilities include, but are not limited to: ports; the intake and outfall structures of power plants, water treatment plants, sewage treatment plants, and storm sewers; marinas and other boat docking structures; beaches and other public water-oriented recreation areas; and fisheries or other marine resources facilities.
WETLANDS. Tidal and nontidal wetlands.
(D) Areas of applicability.
(1) The Chesapeake Bay Preservation Area Overlay District includes all lands identified as CBPAs as designated by the County Board of Supervisors and as shown on the County Chesapeake Bay Preservation Area Map. The County Chesapeake Bay Preservation Area Map, together with all explanatory matter thereon, is hereby adopted by reference and declared to be a part of this section.
(a) The resource protection area (RPA), as delineated on the County Chesapeake Bay Preservation Area Map, includes:
1. Tidal wetlands;
2. Nontidal wetlands connected by surface flow and contiguous to tidal wetlands or waterbodies with perennial flow;
3. Tidal shores; and
4. A 100-foot vegetated buffer area located adjacent to and landward of the components listed in divisions (D)(1)(a)1. through (D)(1)(a)3. above, and along both sides of any waterbody with perennial flow.
(b) The resource management area (RMA) includes all areas of the county not included in the resource protection area. These areas include land types that, if improperly used or developed, have a potential for causing significant water quality degradation or for diminishing the functional value of the resource protection area. The following land categories were considered by the county in establishing the resource management area:
1. Floodplains;
2. Highly erodible soils, including steep slopes;
3. Highly permeable soils;
4. Nontidal wetlands not included in the resource protection area; and
5. Other lands adjacent to or in close proximity to lands aforementioned in this paragraph, which are necessary to protect the quality of state waters.
(2) The County Chesapeake Bay Preservation Area Map shows only the general location of CBPAs and should be consulted by persons contemplating activities within the county prior to engaging in a regulated activity. The specific location of RPAs on a lot or parcel shall be delineated on each site or parcel as required under division (L) below through the review and approval of the plan of development process or as required under division (K) below through the review and approval of a water quality impact assessment.
(3) Portions of RPAs and RMAs designated by the County Board of Supervisors as intensely developed areas shall serve as redevelopment areas. Areas so designated shall comply with all erosion and sediment control requirements and the performance standards for redevelopment in division (J) below.
(4) If the boundaries of a Chesapeake Bay Preservation Area include only a portion of a lot, parcel, or development project, the entire lot, parcel, or development project shall comply with the requirements of this Overlay District. The division of property shall not constitute an exemption from this requirement.
(E) Use regulations. Permitted uses, special exception uses, accessory uses, and special requirements shall be as established by the underlying zoning district, unless specifically modified by the requirements set forth herein.
(F) Development criteria for resource protection areas (RPAs).
(1) Land disturbance or development in resource protection areas may be allowed only when permitted by the Land Use Administrator and if it: is water-dependent; constitutes redevelopment; constitutes development or redevelopment within a designated intensely developed area; is a new use subject to the provisions of division (J)(3)(e) below; or is a road or driveway crossing satisfying the conditions set forth in division (F)(1)(c) below.
(a) A new or expanded water-dependent facility may be allowed provided that the following criteria are met:
1. It does not conflict with the Comprehensive Plan;
2. It complies with the performance standards set forth in division (J) below;
3. Any non-water-dependent component is located outside of the RPA; and
4. Access to the water-dependent facility will be provided with the minimum disturbance necessary. Where practicable, a single point of access will be provided.
(b) Redevelopment on isolated redevelopment sites outside of locally designated intensely developed area sites shall be permitted only if there is no increase in the amount of impervious cover and no further encroachment within the RPA and it conforms to the stormwater management requirements outlined under division (J)(2)(h) below and the erosion and sediment control requirements outlined under division (J)(2)(d) below.
(c) Roads and driveways not exempt under division (N) below and which comply with the provisions of this chapter, may be constructed in or across the RPAs if each of the following conditions are met:
1. The Land Use Administrator makes a finding that there are no reasonable alternatives to aligning the road or drive in or across the RPA;
2. The alignment and design of the road or driveway are optimized, consistent with other applicable requirements, to minimize encroachment in the RPA and minimize adverse effects on water quality;
3. The design and construction of the road or driveway satisfy all applicable criteria of this chapter; and
4. The Land Use Administrator reviews the plan for the road or driveway proposed in or across the RPA in coordination with the plan of development requirements as required under division (L) below or Chapter 154 of this code.
(2) A water quality impact assessment, as outlined in division (K) below, shall be required for any proposed land disturbance, development, or redevelopment within RPAs and for any development within RMAs when required by the Land Use Administrator because of the unique characteristics of the site or intensity of development.
(G) 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 resource protection area to accommodate an intended development, in accordance with the performance standards in division (J) below, when such development is not otherwise allowed in the RPA.
(H) Conflict with other regulations. In any case where the requirements of this Overlay District conflict with any other adopted land use regulations of the county or existing state or federal regulations, whichever imposes the more stringent restrictions shall apply.
(I) Interpretation of resource protection area boundaries.
(1) Delineation by the applicant. The site-specific boundaries of the resource protection area shall be determined by the applicant through the performance of an environmental site assessment, subject to approval by the Land Use Administrator and in accordance with divisions (K) and (L) below. The County Chesapeake Bay Preservation Area Map may be used as a guide to the general location of resource protection areas.
(2) Delineation by the Land Use Administrator. The Land Use 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 delineation. The Land Use Administrator may use remote sensing, hydrology, soils, plant species, and other data, and consult other appropriate resources as needed to perform the delineation. If the Land Use Administrator is unable to accomplish an adequate delineation, the applicant may be required to provide a site-specific RPA boundary delineation.
(3) Where conflict arises over delineation. Where the applicant has provided a site-specific delineation of the RPA, the Land Use Administrator shall verify the accuracy of the boundary delineation. In determining the site-specific RPA boundary, the Land Use Administrator may render adjustments to the applicant’s boundary delineation, in accordance with division (L) below. In the event the adjusted boundary delineation is contested by the applicant, the applicant may seek relief, in accordance with the provisions of division (L)(8) below.
(J) Performance standards.
(1) Purpose and intent.
(a) The performance standards establish the means to minimize erosion and sedimentation potential, reduce land application of nutrients and toxics, 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 stormwater runoff. Minimizing impervious cover enhances rainwater infiltration and effectively reduces stormwater runoff potential.
(b) The purpose and intent of these requirements is 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.
1. In accordance with an approved site plan, the limits of land disturbance, including clearing or grading, shall be strictly defined by the construction footprint through the plan of development process. These limits shall be clearly shown on submitted plans and physically marked on the development site.
2. Ingress and egress during construction shall be limited to one access point, unless otherwise approved by the Land Use Administrator.
(b) Indigenous vegetation shall be preserved to the maximum extent practicable consistent with the proposed use and development permitted and in accordance with the Virginia Erosion and Sediment Control Handbook.
1. Existing trees over ten inches diameter at breast height (d.b.h.) shall be preserved outside the construction footprint. Other woody vegetation on-site shall also be preserved, to the extent practicable, outside the approved construction footprint.
2. Site clearing for construction activities shall be allowed as approved by the Land Use Administrator through the plan of development review process outlined under division (L) below.
3. Prior to clearing or grading, suitable protective barriers, such as safety fencing, shall be erected five feet outside of the dripline 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 consistent with the proposed use or development.
1. Grid and modular pavement use shall be encouraged for any required parking area, alley or other low traffic driveway.
2. Parking space size shall be the minimum necessary to safely accommodate the anticipated parking load.
(d) Notwithstanding any other provisions of this chapter or exceptions or exemptions thereto, any land-disturbing activity exceeding 2,500 square feet, including construction of all single-family houses, septic tanks, and drain fields, shall comply with the requirements of Chapter 152 of this code of ordinances.
(e) All development and redevelopment exceeding 2,500 square feet 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 Chapter 153 of this code of ordinances; or a subdivision plat in accordance with Chapter 154 of this code of ordinances; or a water quality impact assessment in accordance with division (K) below.
(f) All on-site sewage disposal systems not requiring a VPDES permit shall be pumped out at least once every five years, in accordance with the regulations of the State Department of Health. As alternatives to pump-out:
1. An effluent filter may be installed and maintained in the outflow pipe from a septic tank as long as the filter satisfies the standards established in the sewage handling and disposal regulations under 12 VAC 5-610 et seq., as administered by the State Department of Health; or
2. Owners of on-site sewage treatment systems may submit documentation, every five years, certified by a sewage handler permitted by the State Department of Health, that the septic system has been inspected, is functioning properly, and does not need to be pumped out.
(g) 1. A reserve sewage disposal site with a capacity at least equal to that of the primary sewage disposal site shall be provided, in accordance with the regulations of the State Department of Health. This requirement shall not apply to any lot recorded prior to October 1, 1989, if such lot 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 until the structure is served by public sewer or an on-site sewage treatment system, which operates under a permit issued by the State Water Control Board.
2. As an alternative to the 100% reserve sewage disposal site, an alternating drain field system may be provided, which meets the following conditions.
a. Each of the two alternating drain fields in the system shall have, at a minimum, an area not less than 50% of the area that would otherwise be required if a single primary drain field were constructed.
b. An area equaling 50% of the area that would otherwise be required for the primary drain field site must be reserved for subsurface absorption systems that utilize a flow diversion device, in order to provide for future replacement or repair to meet the requirements for a sewage disposal system. Expansion of the primary system shall require an expansion of this reserve area.
c. The two alternating drain fields shall be connected by a diversion valve, approved by the local Health Department, located in the pipe between the septic tank and the distribution boxes. The diversion valve shall be used to alternate the direction of effluent flow to one drain field or the other at a time.
d. Diversion valves shall not be used for the following types of treatment systems: sand mounds; low-pressure distribution systems; repair situations when installation of a valve is not feasible; and any other approved system for which the use of a valve would adversely affect the design of the system, as determined by the local Health Department.
e. The diversion valve shall be a three-port, two-way valve of approved materials (i.e., resistant to sewage and leakproof and designed so that the effluent from the tank can be directed to flow into either one of the two distribution boxes).
f. There shall be a conduit from the top of the valve to the ground surface with an appropriate cover to be level with or above the ground surface.
g. The valve shall not be located in driveways, recreational courts, parking lots, or beneath sheds or other structures.
h. In lieu of the aforementioned diversion valve, any device that can be designed and constructed to conveniently direct the flow of effluent from the tank into either one of the two distribution boxes may be approved if plans are submitted to the Local Health Department and found to be satisfactory.
i. The local government shall require that the owner(s) alternate the drain fields every 12 months to permit the yearly resting of half of the absorption system.
j. The local government shall ensure that the owner(s) are notified annually of the requirement to switch the valve to the opposite drain field.
(h) For any development or redevelopment, stormwater runoff shall be controlled by the use of best management practices consistent with the water quality protection provisions of the State Stormwater Management Regulations (4 VAC 3-20-10 et seq.).
1. For development, the post-development nonpoint source pollution runoff load shall not exceed the predevelopment load, based on the calculated average land cover condition for the state’s Chesapeake Bay Watershed.
2. For sites within intensely developed areas or other isolated redevelopment sites, the nonpoint source pollution load shall be reduced by at least 10%. The Land Use Administrator may waive or modify this requirement for redevelopment sites that originally incorporated best management practices for stormwater runoff quality control, provided the following provisions are satisfied:
a. In no case may the post-development nonpoint source pollution runoff load exceed the predevelopment load;
b. Runoff pollution loads must have been calculated and the BMPs selected for the expressed purpose of controlling nonpoint source pollution; and
c. If best management practices are structural, evidence shall be provided that facilities are currently in good working order and performing at the design levels of service. The Land Use Administrator may require a review of both the original structure design and maintenance plans to verify this provision. A new maintenance agreement may be required to ensure compliance with this chapter.
3. For redevelopment, both the pre- and post-development loadings shall be calculated by the same procedures. However, where the design data is available, the original post-development nonpoint source pollution loadings can be substituted for the existing development loadings.
(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 Land Use Administrator, in accordance with division (L) below.
(j) Land upon which agricultural activities are being conducted shall have a soil and water quality conservation assessment conducted that evaluates 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 being accomplished consistent with this chapter and the Chesapeake Bay Preservation Act (VA Code §§ 10.1-2100 et seq.).
(3) Buffer area requirements.
(a) 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 retained if present and established where it does not exist.
(b) The buffer area shall be located adjacent to and landward of other RPA components and along both sides of any waterbody with perennial flow. The full buffer area shall be designated as the landward component of the RPA, in accordance with division (D) above and division (L) below. Notwithstanding permitted encroachments and modifications, as set forth in this section, the 100-foot wide buffer area is not reduced in width.
(c) The 100-foot buffer area shall be deemed to achieve a 75% reduction of sediments and a 40% reduction of nutrients.
(d) In order to maintain the functional value of the buffer area, indigenous vegetation may be removed, subject to approval by the Land Use 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), as follows:
1. Trees may be pruned or removed as necessary to provide for sight lines and vistas, 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;
2. Any path shall be constructed and surfaced so as to effectively control erosion;
3. Dead, diseased, or dying trees or shrubbery and noxious weeds (such as Johnsongrass, kudzu, multiflora rose, and Phragmites australis) may be removed and thinning of trees allowed as permitted by the Land Use Administrator pursuant to sound horticultural practices; and
4. 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 requirements.
(e) When the application of the buffer areas would result in the loss of a buildable area on a lot recorded prior to October 1, 1989, the Land Use Administrator may, through an administrative process, allow encroachment into the buffer area in accordance with division (L) below and the following criteria:
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. Where practicable, a vegetated area that will maximize water quality protection, mitigate the effect of the encroachment, and is equal to the area encroaching the buffer area shall be established elsewhere on the lot or parcel; and
3. The encroachment shall not extend into the seaward 50-feet of the buffer area.
(f) Redevelopment within IDAs may be exempt from the buffer area, in accordance with division (L) below.
(g) 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 (such as Johnsongrass, kudzu, multiflora rose, and Phragmites australis) from invading the buffer area. Agricultural activities may encroach into the buffer area as follows.
1. Agricultural activities may encroach into the landward 50 feet of the 100-foot wide buffer area when at least one agricultural best management practice which, in the opinion of the local Soil and Water Conservation District Board, addresses the more predominant water quality issue on the adjacent land (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, a nutrient management plan, including soil tests, must be developed consistent with the State Nutrient Training and Certification Regulations (4 VAC 5-15) administered by the State Department of Conservation and Recreation.
2. Agricultural activities may encroach within 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 tests, must be developed, consistent with the State Nutrient Management Training and Certification Regulations (4 VAC 5-15) administered by the State 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.
3. The buffer area is not required to be designated adjacent to agricultural drainage ditches if at least one best management practice which, in the opinion of the local Soil and Water Conservation District Board, addresses the more predominant water quality issue on the adjacent land (erosion control or nutrient management) is being implemented on the adjacent land.
(h) Where land uses such as agriculture or silviculture within the area of the buffer cease and the lands are proposed to be converted to other uses, the full 100-foot wide buffer shall be reestablished. In reestablishing the buffer, management measures shall be undertaken to provide woody vegetation that assures the buffer functions set forth in this chapter.
(K) Water quality impact assessment.
(1) Purpose and intent. The purpose of the water quality impact assessment is to: identify the impacts of proposed land disturbance, development, or redevelopment on water quality and lands within RPAs and other environmentally sensitive lands; ensure that, where land disturbance, development, or redevelopment 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; to protect individuals from investing funds for improvements proposed for location on lands unsuited for such development because of high groundwater, erosion, or vulnerability to flood and storm damage; specify mitigation which will address water quality protection; and provide for administrative relief from terms of this Overlay District when warranted and in accordance with the requirements contained herein.
(2) Applicability. A water quality impact assessment shall be required for: any proposed land disturbance, development, or redevelopment activity within a resource protection area as permitted consistent with division (F) above; for any buffer area encroachment as provided for in division (J)(3)(e) above; or for any other development in resource management areas as deemed necessary by the Land Use Administrator due to the unique characteristics of the site or intensity of the proposed use or development. There shall be two levels of water quality impact assessments: a minor assessment; and a major assessment.
(3) Minor water quality impact assessment. A minor water quality impact assessment pertains only to land disturbance, development, or redevelopment within the CBPAs, which causes no more than 5,000 square feet of land disturbance and requires any encroachment into the landward 50 feet of the 100-foot buffer area as permitted under division (J) above. A minor assessment must demonstrate through acceptable calculations that the undisturbed buffer area, enhanced vegetative plantings, and necessary best management practices will result in removal of no less than 75% of sediments and 40% of nutrients from post-development stormwater runoff and that 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, 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 drain field sites;
(c) Type and location of proposed best management practices to mitigate the proposed encroachment;
(d) Location of existing vegetation on-site, including the number and type of trees and other vegetation to be removed in the buffer to accommodate the encroachment or modification; and
(e) Revegetation plan that supplements the existing buffer vegetation in a manner that provides for pollutant removal, erosion, and runoff control.
(4) Major water quality impact assessment.
(a) A major water quality impact assessment shall be required for any land disturbance, development, or redevelopment which: exceeds 5,000 square feet of land disturbance within CBPAs and requires any encroachment into the landward 50 feet of the 100-foot buffer area; disturbs any portion of any other component of an RPA or disturbs any portion of the buffer area within 50 feet of any other component of an RPA; or is located in an RMA and is deemed necessary by the Land Use Administrator. The information required in this division (K)(4) shall be considered a minimum, unless the Land Use Administrator determines that some of the elements are unnecessary due to the scope and nature or the proposed use and development of the land.
(b) The following elements shall be included in the preparation and submission of a major water quality assessment:
1. All of the information required in a minor water quality impact assessment;
2. A hydrogeological element that:
a. Describes the existing topography, soils, hydrology, and geology of the site and adjacent lands;
b. Describes the impacts of the proposed development on topography, soils, hydrology, and geology on the site and adjacent lands;
c. Indicates the following:
i. Disturbance or destruction of wetlands and justification for such action;
ii. Disruptions or reductions in the supply of water to wetlands, streams, lakes, rivers, or other waterbodies;
iii. Disruptions to existing hydrology including wetland and stream circulation patterns;
iv. Source location and description of proposed fill material;
v. Location of dredge material and location of dumping area for such materials;
vi. Location of and impacts on shellfish beds, submerged aquatic vegetation, and fish spawning areas;
vii. Estimation of pre- and post-development pollutant loads in runoff;
viii. Estimation of percent increase in impervious surface on-site and type(s) of surfacing materials used;
ix. Percent of site to be cleared for project;
x. Anticipated duration and phasing schedule of construction project; and
xi. Listing of all requisite permits from all applicable agencies necessary to develop project.
d. Describes the proposed mitigation measures for the potential hydrogeological impacts. Potential mitigation measures include:
i. Proposed erosion and sediment control concepts; 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;
ii. Proposed stormwater management system;
iii. Creation of wetlands to replace those lost; and/or
iv. Minimize cut and fill.
3. A vegetative element that:
a. Identifies and delineates the location of all significant plant material, including all trees on-site ten inches or greater d.b.h. Where there are groups of trees, stands may be outlined;
b. Describes the impacts the development or use will have on the existing vegetation. Information should include:
i. General limits of clearing, based on all anticipated improvements, including buildings, drives, and utilities;
ii. Clear delineation of all trees which will be removed; and
iii. Description of plant species to be disturbed or removed.
c. Describes the potential measures for mitigation. Possible mitigation measures include:
i. Proposed design plan and replanting schedule for trees and other woody vegetation removed for construction, including a list of possible plants and trees to be used;
ii. Demonstration that the revegetation plan supplements the existing buffer vegetation in a manner that provides for pollutant removal, erosion, and runoff control;
iii. 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; and
iv. Demonstration that indigenous plants are to be used to the greatest extent possible.
d. A wastewater element, where applicable, that:
i. Includes calculations and locations of anticipated drain field or wastewater irrigation areas;
ii. Provides justification for sewer line locations on environmentally sensitive areas, where applicable, and describes construction techniques and standards;
iii. Discusses any proposed on-site collection and treatment systems, their treatment levels, and impacts on receiving watercourses; and
iv. Describes the potential impacts of the proposed wastewater systems, including the proposed mitigative measures for these impacts.
e. Identification of the existing characteristics and conditions of sensitive lands included as components of the Chesapeake Bay Preservation Areas, as defined in this chapter; and
f. Identification of the natural processes and ecological relationships inherent in the site, and an assessment of the impact of the proposed use and development of land on these processes and relationships.
(5) Submission and review requirements.
(a) Five copies of all site drawings and other applicable information, as required by divisions (K)(3) and (K)(4) above, shall be submitted to the Land Use Administrator for review.
(b) All information required in this division (K)(5) shall be certified as complete and accurate by a professional engineer or a certified surveyor.
(c) A minor water quality impact assessment shall be prepared and submitted to and reviewed by the Land Use Administrator in conjunction with a site plan.
(d) A major water quality impact assessment shall be prepared and submitted to and reviewed by the Land Use Administrator in conjunction with a request for rezoning, special exception, or in conjunction with division (L) below, as deemed necessary by the Land Use Administrator.
(e) As part of any major water quality impact assessment submittal, the Land Use Administrator may require review by the Chesapeake Bay Local Assistance Department (CBLAD). Upon receipt of a major water quality impact assessment, the Land Use Administrator will determine if such review is warranted and may request CBLAD to review the assessment and respond with written comments. Any comments by CBLAD shall be incorporated into the final review by the Land Use Administrator, provided that such comments are provided by CBLAD within 90 days of the request.
(6) Evaluation procedure.
(a) Upon the complete review of a minor water quality impact assessment, the Land Use Administrator shall determine if any proposed modification or encroachment into the buffer area is consistent with the provisions of this chapter and make a finding based upon the following criteria:
1. The necessity of the proposed encroachment and the ability to place improvements elsewhere on the site to avoid disturbance of the buffer area;
2. Impervious surface is minimized;
3. 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;
4. Proposed mitigation measures will work to retain all buffer area functions: pollutant removal, erosion, and runoff control;
5. Proposed best management practices, where required, achieve the requisite reductions in pollutant loadings;
6. The development, as proposed, meets the purpose and intent of this chapter; and
7. 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) Upon the completed review of a major water quality impact assessment, the Land Use Administrator shall determine if the proposed development is consistent with the purpose and intent of this chapter and make a finding based upon the following criteria:
1. Within any RPA, the proposed development is water-dependent or redevelopment;
2. The percentage of existing wetlands disturbed by the development. The number of square feet or acres to be disturbed;
3. The development will not result in significant disruption of the hydrology of the site;
4. The development will not result in unnecessary destruction of plant materials on-site;
5. Proposed erosion and sediment control concepts are adequate to achieve the reductions in runoff and prevent off-site sedimentation;
6. Proposed stormwater management concepts are adequate to control the stormwater runoff to achieve no net increase in pollutant loadings;
7. Proposed revegetation of disturbed areas will provide optimum erosion and sediment control benefits, as well as runoff control and pollutant removal equivalent of the full 100-foot undisturbed buffer area;
8. The design and location of any proposed drain field will be in accordance with the requirements of division (J) above; and
9. The development, as proposed, is consistent with the purpose and intent of this Overlay District.
(c) The Land Use Administrator shall require additional mitigation where potential impacts have not been adequately addressed. Evaluation of mitigation measures will be made by the Land Use Administrator on the criteria listed above in divisions (K)(6)(a) and (K)(6)(b) above.
(d) The Land Use 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 shall be made by the Land Use Administrator based on the criteria listed above in divisions (K)(6)(a) and (K)(6)(b) above.
(L) Plan of development process. Any land disturbance, development, or redevelopment exceeding 2,500 square feet of land disturbance shall be accomplished through a plan of development process 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.
(a) In addition to the requirements of Chapter 153 of this code of ordinances or the requirements of Chapter 154 of this code of ordinances, 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 Land Use Administrator. The Land Use Administrator may determine that some of the following information is unnecessary due to the scope and nature of the proposed development.
(b) The following plans or studies shall be submitted, unless otherwise provided for:
1. A site plan in accordance with the provisions of Chapter 153 of this code of ordinances or a subdivision plat in accordance with the provisions of Chapter 154 of this code of ordinances;
2. An environmental site assessment;
3. A landscape plan;
4. A stormwater management plan; and
5. An erosion and sediment control plan in accordance with the provisions of Chapter 152 of this code of ordinances.
(2) Environmental site assessment. An environmental site assessment shall be submitted in conjunction with preliminary site plan or preliminary subdivision plat approval.
(a) The environmental site assessment shall be drawn to the same scale as the preliminary site plan or subdivision plat and shall clearly delineate the following environmental features:
1. Tidal wetlands;
2. Tidal shores;
3. Nontidal wetland connected by surface flow and contiguous to tidal wetlands or waterbodies with perennial flow;
4. A 100-foot vegetated buffer area located adjacent to and landward of the components listed in divisions (L)(2)(a)1. through (L)(2)(a)3. above, and along both sides of any waterbody with perennial flow; and
5. Other sensitive environmental features as determined by the Land Use Administrator.
(b) Wetlands delineations shall be performed consistent with the procedures specified in the Federal Manual for Identifying and Delineating Jurisdictional Wetlands, 1986.
(c) The environmental site assessment shall delineate the site-specific geographic extent of the RPA on the specific site or parcel as required under division (D)(2) above.
(d) 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, a certified land surveyor, or a certified landscape architect. This certification requirement of the environmental site assessment may be waived by the Land Use Administrator when the proposed use of development would result in less than 5,000 square feet of disturbed area.
(3) Landscaping plan.
(a) A landscaping plan shall be submitted in conjunction with preliminary site plan or preliminary subdivision plat approval. No clearing or grading of any lot or parcel shall be permitted without an approved landscaping plan.
(b) Landscaping plans shall be prepared and/or certified by design professionals practicing within their areas of competence as prescribed by the VA Code.
1. Contents of the plan.
a. 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 ten inches or greater d.b.h. shall be shown on the landscape plan. Where there are groups of trees, stands may be outlined instead. The specific number of trees ten inches or greater d.b.h. to be preserved outside of the construction footprint shall be indicated on the plan. Trees and other woody vegetation to be removed to create a desired construction footprint shall be clearly delineated on the landscape plan.
b. 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.
c. Within the buffer areas, trees and other woody vegetation to be removed for sight lines, vistas, access paths, and best management practices, as provided for in division (J)(3)(d) above, shall be shown on the plan. Vegetation required by this chapter to replace any existing trees within the buffer area shall also be shown on the landscaping plan.
d. Trees and 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.
e. 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.
f. The landscaping plan shall include specifications for the protection of existing trees during clearing, grading, and all phases of construction.
g. If the proposed development is a change in use from agricultural or silvicultural to some other use, the plan must demonstrate the reestablishment of vegetation in the buffer area.
2. Plant specifications.
a. 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.
b. All supplementary or replacement plant materials shall be living and in a healthy condition. Plant materials shall conform to the standards for the most recent edition of the American Standard for Nursery Stock, published by the American Association of Nurserymen.
c. Where areas to be preserved, as designated on an approved landscaping plan, are encroached, replacement of existing trees and other vegetation will be achieved at a ratio of three planted trees to one removed. Replacement trees shall be a minimum two inches d.b.h. at the time of planting.
d. Use of native or indigenous species.
3. Maintenance.
a. The applicant shall be responsible for the maintenance and replacement of all vegetation as may be required by the provisions of this chapter.
b. 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. A 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.
(a) The stormwater management plan shall contain maps, charts, graphs, tables, photographs, narrative descriptions, explanations, and citations to supporting references as appropriate to communicate the information required by this division (L). At a minimum, the stormwater management plan must contain the following:
1. Location and design of all planned stormwater control devices;
2. Procedures for implementing nonstructural stormwater control practices and techniques;
3. Pre- and post-development nonpoint source pollutant loadings with supporting documentation of all utilized coefficients and calculations; and
4. For facilities, verification of structural soundness, including a professional engineer or class IIIB surveyor certification.
(b) Site specific facilities shall be designed for the ultimate development of the contributing watershed based on zoning, comprehensive plans, local public facility master plans, or other similar planning documents.
(c) All engineering calculations must be performed in accordance with procedures outlined in the current edition of the State Stormwater Management Handbook, State Erosion and Sediment Control Handbook, State Department of Transportation Drainage Manual, or any other good engineering methods deemed appropriate by the Land Use Administrator.
(d) The plan shall establish a long-term schedule for inspection and maintenance of stormwater management facilities that includes all maintenance requirements and persons responsible for performing maintenance. If the designated maintenance responsibility is with a party other than the Board of Supervisors, then a maintenance agreement shall be executed between the responsible party and the Board of Supervisors.
(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 Chapter 152 of this code of ordinances, in conjunction with the site plan or subdivision plat approval.
(6) Final plan. Final plans for property shall be final plats for land to be subdivided or site plans for land not to be subdivided as required by Chapter 153 of this code of ordinances.
(a) Necessary information. Final plans shall include information shown on the preliminary site plan and the additional information:
1. The delineation of the resource protection area boundary, including the 100-foot buffer component;
2. Plat notation of the requirement for pump-out and 100% reserve drain field sites for on-site sewage treatment systems, when applicable;
3. Plat or plan note stating that no land disturbance is allowed in the buffer area without review and approval by the Land Use Administrator;
4. All wetlands permits required by law; and
5. A maintenance agreement as deemed necessary and appropriate by the Land Use Administrator to ensure proper maintenance of best management practices in order to continue their functions.
(b) Installation and bonding requirements.
1. Where buffer areas, landscaping, stormwater management facilities, or other specifications of an approved plan are required, no certificate of occupancy shall be issued until the installation of required plant materials or facilities is completed, in accordance with the approved site plan.
2. When the occupancy of a structure is desired prior to the completion of the required landscaping, stormwater management facilities, of other specifications of an approved plan, a certificate of occupancy may be issued only if the applicant provides to the Board of Supervisors a form of surety satisfactory to the Land Use Administrator in an amount equal to the remaining plant materials, related materials, and installation costs of the required landscaping or facilities and/or maintenance costs for any required stormwater management facilities.
3. 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 the Board of Supervisors.
4. All required stormwater management facilities or other specifications shall be installed and approved within 18 months of project commencement. 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 the Board of Supervisors. The Board of Supervisors may collect from the applicant the amount by which the reasonable cost of required actions exceeds the amount of the surety held.
5. After all required actions of the approved site 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 to the satisfaction of the Land Use Administrator, 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 Land Use Administrator may require a certificate of substantial completion from a professional engineer or class IIIB surveyor before making a final inspection.
(7) Administrative responsibility. Administration of the plan of development process shall be in accordance with Chapter 153 of this code of ordinances or the Chapter 154 of this code of ordinances. The Land Use Administrator shall approve, approve subject to conditions, or disapprove the plans in accordance with the reviewing authorities recommendations. The Land Use Administrator shall return notification of plan review results to the applicant, including recommended conditions or modifications. In the event that the results and/or recommended conditions or modifications are acceptable to the applicant, the plan shall be so modified, if required, and approved.
(8) Denial of plan, appeal of conditions or modifications. In the event the final plan or any component of the plan of development process is disapproved and recommended conditions or modifications are unacceptable to the applicant, the applicant may appeal such administrative decision to the County Board of Zoning Appeals. In granting an appeal, the Board of Zoning Appeals must find such plan to be in accordance with all applicable ordinances and include necessary elements to mitigate any detrimental impact on water quality and upon adjacent property and the surrounding area, or such plan meets the purpose and intent of the performance standards in this chapter. If the Board of Zoning Appeals finds that the applicant’s plan does not meet the above stated criteria, it shall deny approval of the plan.
(M) Nonconforming uses and noncomplying structures.
(1) The lawful use of a building or structure which existed on the date of adoption of this Overlay District or which exists at the time of any amendment to this Overlay District, and which is not in conformity with the provisions of this Overlay District may be continued.
(2) No change or expansion of nonconforming use shall be allowed with the exception that:
(a) The Land Use Administrator may grant a nonconforming use and development waiver for structures on legal nonconforming lots or parcels to provide for remodeling and alterations to such nonconforming structures provided that:
1. There will be no increase in nonpoint source pollution load; and
2. Any development or land disturbance exceeding an area of 2,500 square feet complies with all requirements of Chapter 152 of this code of ordinances.
(b) An application for the expansion of a nonconforming structure may be approved by the Land Use Administrator through an administrative process provided that the following findings are made:
1. The request for the waiver is the minimum necessary to afford relief;
2. Granting the waiver will not confer upon the applicant any specific privileges that are denied by this chapter to other property owners in similar situations;
3. The waiver is in harmony with the purpose and intent of this chapter and does not result in water quality degradation;
4. The waiver is not based on conditions or circumstances that are self-created or self-imposed;
5. Reasonable and appropriate conditions are imposed, as warranted, that will prevent the waiver from causing a degradation of water quality;
6. Other findings, as appropriate and required by the county, are met; and
7. In no case shall this provision apply to accessory structures.
(c) An application for a nonconforming use and development waiver shall be made to and upon forms furnished by the Land Use Administrator and shall include for the purpose of proper enforcement of this chapter, the following information:
1. Name and address of applicant and property owner;
2. Legal description of the property (tax map and parcel number) and type of proposed use and development;
3. 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 resource protection area; and
4. Location and description of any existing private water supply or sewage system.
(d) A nonconforming use and development waiver shall become null and void 12 months from the date issued if no substantial work has commenced.
(N) Exemptions.
(1) Exemptions for public utilities, railroads, public roads, and facilities. Construction, installation, operation, and maintenance of electric, local gas lines, fiber-optic, and telephone transmission lines, railroads, and public roads and their appurtenant structures in accordance with: regulations promulgated pursuant to the Erosion and Sediment Control Law (VA Code §§ 10.1-560 et seq.) and the Stormwater Management Act (VA Code §§ 10.1-603.1 et seq.); an erosion and sediment control plan and a stormwater management plan approved by the State Department of Conservation and Recreation; or local water quality protection criteria at least as stringent as the above state requirements, are deemed to comply with this Overlay District. The exemption of public roads is further conditioned on the following:
(a) The road alignment and design has been optimized, consistent with all applicable requirements, to prevent or otherwise minimize the encroachment in the resource protection area and to minimize the adverse effects on water quality; and
(b) Exemptions for local utilities and other service lines.
(2) Exemptions for local utilities and other service lines. Construction, installation, and maintenance of water, sewer, natural gas, underground telecommunications, and cable television lines owned, permitted, or both, by a local government or regional service authority shall be exempt from the provisions of this Overlay District provided that:
(a) To the degree possible, the location of such utilities and facilities shall be outside the 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 county erosion and sediment control requirements.
(3) Exemptions for silvicultural activities. Silvicultural activities are exempt from the requirements of this Overlay District provided that silvicultural operations adhere to water quality protection procedures prescribed by the State Department of Forestry in the most recent edition of Forestry Best Management Practices for Water Quality (Technical Guide).
(4) Exemptions in resource protection areas. Land disturbances in resource protection areas, associated with: water wells; passive recreation facilities such as boardwalks, trails, and pathways; and historic preservation and archaeological activities, may be exempted from the requirements of this Overlay District provided that they comply with the requirements listed below:
(a) Any required permits, except those to which this exemption specifically applies, shall have been issued;
(b) Sufficient and reasonable proof is submitted that the intended use will not deteriorate water quality;
(c) The intended use does not conflict with nearby planned or approved uses; and
(d) Any land disturbance exceeding an area of 2,500 square feet shall comply with all county erosion and sediment control requirements.
(O) Exceptions.
(1) A request for an exception to the requirements of divisions (F) and (J)(3) above shall be made in writing to the County Board of Zoning Appeals. It 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 division (K) above.
(2) The Board of Zoning Appeals shall notify the affected public of any such exception requests and shall consider these requests in a public hearing in accordance with VA Code § 15.2-2204, except that only one hearing shall be required.
(3) (a) The Board of Zoning Appeals 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 Overlay District if the Board of Zoning Appeals finds:
1. Granting the exception will not confer upon the applicant any special privileges that are denied by this chapter to other property owners of the county;
2. 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 nonconforming that are related to adjacent parcels;
3. The exception request is the minimum necessary to afford relief;
4. The exception request will be consistent with the purpose and intent of this Overlay District, and not injurious to the neighborhood or otherwise detrimental to the public welfare, and is not of substantial detriment to water quality; and
5. Reasonable and appropriate conditions are imposed which will prevent the exception request from causing a degradation of water quality.
(b) If the Board of Zoning Appeals cannot make the required findings or refuses to grant the exception, the Board of Zoning Appeals shall return the request for an exception together with the water quality impact assessment and the written findings and rationale for the decision to the applicant.
(4) A request for an exception to the requirements of provisions of this Overlay District other than divisions (F) and (J)(3) above shall be made in writing to the Land Use Administrator. The Land Use Administrator may grant these exceptions, provided that:
(a) Exceptions to the requirements are the minimum necessary to afford relief;
(b) Reasonable and appropriate conditions are placed upon any exception that is granted, as necessary, so that the purpose and intent of this Overlay District is preserved; and
(c) All of the findings listed in division (O)(3) above are made.
(Ord. passed 11-9-1995; Ord. passed 11-13-2003; Ord. passed 6-14-2012)