The following sections contain provisions pertaining to overlay districts.

(Ord. No. 17-O-13, 8-8-2017)

Lands within the town may be classified into one of the zoning districts set forth in Article III, Residential Districts, Article IV, Business Districts, or Article VI, Planned Development Districts, and also one or more of the overlay districts set forth in this article, Article VI, Overlay Districts. Where land is classified into an overlay district as well as a standard zoning district, the regulations governing development in the overlay district(s) shall serve as supplement to the underlying zoning district provisions. In the event of an express conflict between the standards governing an underlying zoning district and those of one or more overlay districts, the provisions that are more restrictive in protecting the public health and safety shall apply.

(Ord. No. 17-O-13, 8-8-2017)

(a)

Purpose and intent. This section is adopted pursuant to the authority granted to localities by Virginia Code § 15.2-2280. The town welcomes the dedication of floodplain to the town wherever possible for preservation of the floodplain and its use as green space. The floodplain overlay district (FPO) is intended to:

(1)

Provide for safety from flood and other dangers;

(2)

Protect against loss of life, health, or property from flood or other dangers;

(3)

Prevent disruption of commerce and government services, the unnecessary expenditure of public funds for flood protection and relief;

(4)

Preserve and protect floodplains in as natural a state as possible for the preservation of wildlife habitats, for the maintenance of the natural integrity and function of the streams, for the protection of water quality, and for the promotion of a zone for ground water recharge; and

(5)

Prevent the impairment of the tax base by:

a.

Regulating uses, activities, and development which, alone or in combination with other existing or future uses, activities, and development, will cause unacceptable increases in flood heights, velocities, and frequencies;

b.

Restricting or prohibiting certain uses, activities, and development from locating within districts subject to flooding;

c.

Requiring all those uses, activities, and developments that do occur in flood-prone districts to be protected and/or flood-proofed against flooding and flood damage; and

d.

Protecting individuals from buying land and structures which are unsuited for intended purposes because of flood hazards.

(b)

Applicability. The provisions of this section shall apply to all lands within the town identified as flood-prone, as follows:

(1)

Flood-prone land. Flood-prone land shall not be developed and no structure shall be located, relocated, constructed, reconstructed, enlarged, or structurally altered on flood-prone land except in full compliance with the terms and provisions of this section and all other relevant chapters and regulations which apply to the development of the land, such as the Virginia Uniform Statewide Building Code, the town subdivision regulations, and applicable state and federal laws. Records of actions associated with administering this section shall be kept on file and maintained by the zoning administrator or designee.

(2)

100-year flood. The FPO shall include all lands subject to inundation by waters of the 100-year flood. The basis for the delineation of the FPO shall be the flood insurance study for the town prepared by the U.S. Department of Housing and Urban Development, Federal Insurance Administration, dated February 1979, as may be amended subsequently. The basis for the outermost boundary of the FPO shall be the 100-year flood elevations contained in the flood profiles of the flood insurance study as shown as zone A1—A30 on the accompanying flood insurance rate map, dated April 1, 1979, as amended. Areas designated as either zone A1—A30 or AE shall be that floodplain area for which base flood elevations have been provided in the FIS and FIRM but for which no floodway has been delineated. The delineation of any FPO lands may be revised by the town council where natural or manmade changes have occurred or more detailed studies are conducted or undertaken by the U.S. Army Corps of Engineers, another qualified public agency, or qualified individual professionals demonstrating the advisability of such change. Prior to town council's approval of such a change, approval shall be obtained from the Federal Insurance Administration.

(3)

Validity. If any provision of the FPO is declared inapplicable as a result of any legislative or administrative action or judicial discretion, base underlying floodplain overlay district provisions shall remain applicable.

(c)

Definitions. See Article XVIII, Definitions, for explanations of words, terms and phrases used in this section.

(d)

Overlay concept. The floodplain districts described above shall be overlay to the existing underlying zoning districts as shown on the official zoning ordinance map, and as such, the provisions for the floodplain districts shall serve as a supplement to the underlying district provisions. If there is any conflict between the provisions or requirements of the floodplain district and those of any underlying zoning district, the more restrictive provisions and/or those pertaining to the floodplain district shall apply. In the event any provision concerning a floodplain district is declared inapplicable as a result of any legislative or administrative actions or judicial decision, the basic underlying zoning provisions shall remain applicable.

(e)

District boundaries and delineation. The various floodplain districts shall include special flood hazard areas. The basis for the delineation of these districts shall be the flood insurance study (FIS) and the flood insurance rate maps (FIRM) for Fairfax County and the Town of Herndon prepared by the Federal Emergency Management Agency, Federal Insurance Administration, dated September 17, 2010, and any subsequent revisions or amendments thereto, and as described below:

(1)

Special floodplain area district (AE zone). The special floodplain area district shall be those areas identified as an AE zone on the maps accompanying the flood insurance study for which 100-year flood elevations have been provided.

(2)

Approximated floodplain district (A zone). The approximated floodplain district shall be those areas identified as an A zone on the maps accompanying the flood insurance study. In these zones, no detailed flood profiles or elevations are provided, but the 100-year floodplain boundary has been approximated.

(3)

Shallow flooding district (AO or AH zone). The shallow flooding district shall be those areas identified as zone AO or AH on the maps accompanying the flood insurance study.

(f)

Official map. The boundaries of the special flood hazard and floodplain districts are established as on the flood boundary and floodway map and/or flood insurance rate map which is declared to be a part of this section and which shall be kept on file at the town offices.

(g)

Administration. The provisions of this section shall be administered as follows:

(1)

District boundary modifications. The delineation of any of the floodplain districts may be revised by the town where natural or man-made changes have occurred and/or where detailed studies have been conducted or undertaken by the U.S. Army Corps of Engineers or other qualified agency, or an individual documents the need for modification. However, prior to any such modification, approval must be obtained from the Federal Insurance Administration.

(2)

Interpretation of the floodplain districts. Interpretations of the boundaries of the floodplain district shall be made by the zoning administrator. Any individual or group disputing a floodplain district boundary interpretation shall have the right to appeal such interpretation to the board of zoning appeals.

(3)

Submission of technical data. A community's base flood elevations may increase or decrease resulting from physical changes affecting flooding conditions. As soon as practicable, but not later than six months after the date such information becomes available, the town shall notify the Federal Insurance Administrator of the changes by submitting technical or scientific data. Such a submission is necessary so that upon confirmation of those physical changes affecting flooding conditions, risk premium rates and flood plain management requirements will be based upon current data.

(4)

Permit requirement. All uses, activities, and development occurring within any floodplain district shall be undertaken only upon the issuance of a building permit subject to the following provisions.

a.

Such development shall be undertaken only in strict compliance with the provisions of this section and with all other applicable codes and ordinances, as amended, such as the Virginia Uniform Statewide Building Code (VA USBC) and the town's subdivision regulations.

b.

Prior to the issuance of any such permit, the zoning administrator shall require all applications to include compliance with all applicable state and federal laws and shall review all sites to assure they are reasonably safe from flooding.

c.

Under no circumstances shall any use, activity, and/or development adversely affect the capacity of the channels or floodways of any watercourse, drainage ditch, or any other drainage facility or system.

(5)

Site plan and permit applications. All site plan applications for development within the FPO any floodplain district and all building permits issued for the floodplain shall include the following:

a.

An elevation of the base flood at the site;

b.

An elevation of the lowest floor, including the basement;

c.

Nonresidential only structures to be flood-proofed shall include the elevation to which the structure will be flood-proofed; and

d.

Topographic information showing existing and proposed ground elevations.

(h)

District standard regulations. Development in the district shall meet the following standards:

(1)

Building requirements. New construction and substantial improvements shall be according to the VA USBC, and anchored to prevent flotation, collapse or lateral movement of the structure.

(2)

Manufactured homes. Manufactured homes shall be prohibited in accordance with the regulations of this chapter.

(3)

Materials. New construction and substantial improvements shall be constructed with materials and utility equipment resistant to flood damage.

(4)

Minimize flood damage. New construction or substantial improvements shall be constructed by methods and practices that minimize flood damage.

(5)

Utilities. Electrical, heating, ventilation, plumbing, air conditioning equipment and other service facilities, including duct work, shall be designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding.

(6)

Water supply. New and replacement water supply systems shall be designed to minimize or eliminate infiltration of flood waters into the system.

(7)

Sanitary sewage systems. New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of flood waters into the systems and discharges from the systems into flood waters.

(8)

On-site waste disposal. On-site waste disposal systems, if permitted, shall be located and constructed to avoid impairment to them or contamination from them during flooding.

(9)

Alterations, improvements, repairs and reconstruction. Any alteration, repair, reconstruction or improvements to a building that is in compliance with the provisions of this chapter shall meet the requirements of "new construction" as contained in this chapter. Any alteration, repair, reconstruction or improvements to a building that is not in compliance with the provisions of this section, shall be undertaken only if the nonconformity is not furthered, extended, or replaced.

(10)

Additional regulations for special flood hazard areas. In addition to the above regulations, the following shall apply to all special flood hazard areas:

a.

Prior to any proposed alteration or relocation of any channels or of any watercourse, stream, etc., within this jurisdiction a permit shall be obtained from the U.S. Corps of Engineers, the Virginia Department of Environmental Quality, and the Virginia Marine Resources Commission (a joint permit application is available from any of these organizations). Furthermore, in riverine areas, notification of the proposal shall be given by the applicant to all affected adjacent jurisdictions, the Department of Conservation and Recreation (Division of Dam Safety and Floodplain Management) and the Federal Insurance Administrator.

b.

The flood carrying capacity within an altered or relocated portion of any watercourse shall be maintained.

(i)

District specific regulations. Development in the district shall meet the following specific standards:

(1)

Site plan and special exception requirement. Uses, activities, and development occurring within the FPO shall be undertaken only upon the issuance of approval of a site plan and special exception pursuant to this section, other than restoration or replacement of single-family detached dwellings after casualty damage.

(2)

Uses. Those uses that are allowed by right in the underlying zoning district are allowed upon the approval of a special exception pursuant to section 78-155.3, special exception, and section 78-155.3(e)(2), special review standards for the Floodplain Overlay District. Any special exceptions that are issued shall be noted in the annual report submitted to the federal insurance administrator.

(3)

Notification requirements. In addition to the notification requirements described in Article XV, further notification of the proposal shall be given by the applicant to all affected adjacent jurisdictions, the Virginia Department of Conservation and Recreation (Floodplain Management Program) and the Federal Insurance Administration.

(4)

No change in carrying capacity/volume/velocity. Under no circumstances shall any use, activity or development decrease the carrying capacity of, or increase the volume or velocity of inflow to, the channels of floodways of any watercourse, drainage ditch or any other drainage facility or system.

(5)

No increase in elevation of 100-year flood. No new construction, or development shall be permitted within the floodplain overlay district unless it is demonstrated that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, does not increase the elevation of the 100-year flood at any one point.

(6)

Alteration and relocation channels/watercourse. Prior to any proposed alteration or relocation of any channels or of any watercourse, stream, etc., within the town, a permit from the U.S. Army Corps of Engineers and certification from the Virginia State Water Control Board may be necessary. A joint permit application is available from one of these organizations. Further notification of the proposal shall be given by the applicant to all affected adjacent jurisdictions, the Department of Conservation and Recreation (Floodplain Management Program) and the Federal Insurance Administration.

(7)

Submission requirements. All applications for development in the floodplain overlay district issued for the floodplain shall comply with the submittal requirements described in section 78-155.3.

(8)

New construction. The proposed building site must be reasonably safe from flooding. If a proposed building site is in a flood-prone area, all new construction and substantial improvements shall meet the following standards:

a.

Be designed (or modified) and adequately anchored to prevent flotation, collapse, or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy,

b.

Be constructed with materials resistant to flood damage,

c.

Be constructed by methods and practices that minimize flood damages, and

d.

Be constructed with electrical, heating, ventilation, plumbing, and air conditioning equipment and other service facilities that are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding.

(9)

Construction standards for enclosed areas below flood elevation. New construction and substantial improvements with fully enclosed areas below the regulatory flood protection level that are usable solely for parking of vehicles, building access or storage in an area other than a basement and which are subject to flooding shall be constructed entirely of flood resistant materials below the regulatory flood protection elevation and designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must either be certified by a registered professional engineer or architect or meet or exceed the following minimum criteria:

a.

A minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding shall be provided.

b.

The total net area of all openings must be at least one square inch for each square foot of enclosed area subject to flooding.

c.

If a building has more than one enclosed area, each area must have openings to allow floodwaters to automatically enter and exit.

d.

The bottom of all openings shall be no higher than one foot above grade.

e.

Openings may be equipped with screens, louvers, valves, or other coverings or devices provided that they permit the automatic entry and exit of floodwaters.

f.

Foundation enclosures made of flexible skirting are not considered enclosures for regulatory purposes, and, therefore, do not require openings. Masonry or wood underpinning, regardless of structural status, is considered an enclosure and requires openings as outlined above.

(10)

Elevation standards for residential structures. New construction and substantial improvements of residential structures within zones A1—30, AE and AH zones on the flood insurance rate map shall have the lowest floor (including basement) elevated no lower than 18 inches above the base flood level.

(11)

Elevation standards and floodproofing standards for nonresidential structures. New construction and substantial improvements of nonresidential structures within zones A1—30, AE and AH zones on the flood insurance rate map shall have the lowest floor (including basement) elevated no lower than 18 inches above the base flood level or, together with attendant utility and sanitary facilities, be designed so that below the base flood level plus one foot the structure is watertight with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy. A registered professional engineer or architect shall certify that the standards of this subsection are satisfied. Such certification, including the specific elevation (in relation to mean sea level) to which such structures are floodproofed, shall be maintained by the zoning administrator.

(12)

Design criteria for utilities and facilities. The following criteria shall apply in the district:

a.

Utilities. All utilities and facilities, such as sewer, gas, electrical, telecommunication, and water systems being placed in flood-prone areas should be located, elevated (where possible), and constructed to minimize or eliminate flood damages.

b.

Drainage facilities. All drainage facilities shall be designed to convey the flow of stormwater runoff in a safe and efficient manner. The system shall ensure proper drainage along streets, and provide positive drainage away from buildings. The system shall also be designed to prevent the discharge of excess runoff onto adjacent properties. The town council may require a primarily underground system to accommodate frequent floods and a secondary surface system to accommodate larger, less-frequent floods. Drainage plans shall be consistent with local and regional drainage plans.

c.

Water facilities. All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of flood waters into the systems and be located and constructed to minimize or eliminate flood damage and impairment.

d.

Sanitary facilities. All new and replacement sanitary sewage systems, private package sewage treatment plants, and onsite wastewater treatment systems shall be designed to minimize or eliminate infiltration of flood waters into the systems and discharges from the systems into flood waters. In addition, they should be located and constructed to minimize or eliminate flood damage and impairment.

e.

Streets and sidewalks. Streets and sidewalks should be designed to minimize their potential for increasing and aggravating the levels of flood flow. Drainage openings may be required to sufficiently discharge flood flows without unduly increasing flood heights.

(13)

Modification, alterations, repairs and reconstruction of existing structures. The following standards shall apply in the district:

a.

Existing structures in the floodplain area shall not be expanded or enlarged unless it has been demonstrated through hydrologic and hydraulic analyses performed in accordance with standard engineering practices that the proposed expansion would not result in any increase in the base flood elevation.

b.

In the floodplain overlay district, the modification, alteration, repair, reconstruction or improvement that amounts to less than 50 percent of its market value shall conform to the VA USBC.

c.

The modification, alteration, repair, reconstruction, or improvement of any kind to a structure and/or use, regardless of its location in a floodplain area to an extent or amount of 50 percent or more of its market value shall be undertaken only in full compliance with this chapter and shall require the entire structure to conform to the VA USBC.

d.

If the structure in the floodplain overlay district is designed and used as a single-family detached dwelling that is a permitted use in the zoning district pursuant to Table 78-70.2. D: Table of Principal Permitted and Allowed Uses, it may be restored in its location prior to casualty so long as:

1.

The restoration is begun within 12 months and completed within 24 months of the casualty;

2.

The modification, alteration, repair, reconstruction or improvement is elevated or flood proofed or both to the greatest extent possible;

3.

The structure occupies the same space it occupied prior to the casualty; and

4.

No dwelling units are added.

(14)

Recreational vehicles. Recreational vehicles may be placed on sites for fewer than 180 consecutive days and must be fully licensed and ready for highway use. A recreational vehicle is ready for highway use if it is on its wheels or jacking system, is attached to the site only by quick disconnect type utilities and security devices.

(j)

Special floodplain district regulations and map revisions. Until a regulatory floodway is designated, no new construction, substantial improvements, or other development (including fill) shall be permitted within the areas of special flood hazard, designated as zones A and AE on the flood insurance rate map, unless it is demonstrated that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation of the base flood more than one foot at any point within the town. Development activities in zones A, AE, and AH, on the town's flood insurance rate map which increase the water surface elevation of the base flood by more than one foot may be allowed, provided that the applicant first applies with the town's endorsement for a conditional flood insurance rate map revision, and receives the approval of the Federal Emergency Management Agency.

(k)

Approximated floodplain regulations. The approximated floodplain district shall be that floodplain area for which no detailed flood profiles or elevations are provided, but where a 100-year floodplain boundary has been approximated. Such areas are shown as Zone A on the maps accompanying the flood insurance study. For these areas, the 100-year flood elevations and floodway information from federal, state, and other acceptable sources shall be used, when available. It is recommended that the applicant refer to FEMA 265, "Managing Floodplain Development in Approximate Zone A Areas, A Guide for Obtaining and Developing Base (100-Year) Flood Elevations." Where the specific 100-year flood elevation cannot be determined for this area using other sources of data, such as the U.S. Army Corps of Engineers Floodplain Information Reports, U.S. Geological Survey Flood-Prone Quadrangles, etc., an applicant for a proposed use, development and/or activity greater than 50 lots or five acres, whichever is lesser, shall determine this elevation in accordance with hydrologic and hydraulic engineering techniques. Hydrologic and hydraulic analyses shall be undertaken only by professional engineers or others of demonstrated qualifications, who shall certify that the technical methods used correctly reflect currently-accepted technical concepts. Studies, analyses, computations, etc., shall be submitted in sufficient detail to allow a thorough review by the zoning administrator.

(l)

Shallow flooding district regulations. The following standards shall apply in shallow flooding districts.

a.

All new construction and substantial improvements of residential structures shall have the lowest floor, including basement, elevated to or above the flood depth specified on the flood insurance rate map, above the highest adjacent grade at least as high as the depth number specified in feet on the FIRM. If no flood depth number is specified, the lowest floor, including basement, shall be elevated no less than two feet above the highest adjacent grade.

b.

All new construction and substantial improvements of nonresidential structures shall:

1.

Have the lowest floor, including basement, elevated to or above the flood depth specified on the flood insurance rate map, above the highest adjacent grade at least as high as the depth number specified in feet on the FIRM. If no flood depth number is specified, the lowest floor, including basement, shall be elevated at least two feet above the highest adjacent grade; or

2.

Together with attendant utility and sanitary facilities be completely flood-proofed to the specified flood level so that any space below that level is watertight with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy.

c.

Adequate drainage paths around structures on slopes shall be provided to guide floodwaters around and away from proposed structures.

(m)

Subdivision applications regulations. All subdivision applications within the district shall:

(1)

Minimize damage. All subdivision proposals shall be consistent with the need to minimize flood damage;

(2)

Utilities. All subdivision proposals shall have public utilities and facilities such as sewer, gas, electrical and water systems located and constructed to minimize flood damage;

(3)

Drainage. All subdivision proposals shall have adequate drainage provided to reduce exposure to flood hazards; and

(4)

Flood elevation. Base flood elevation data shall be provided for subdivision proposals and other proposed development proposals (including manufactured home parks and subdivisions) that exceed 50 lots or five acres, whichever is the lesser.

(n)

Violations. Violation of district regulations shall be addressed as follows:

(1)

Penalty for violations. Any person who fails to comply with any of the requirements or provisions of this section or directions of the zoning administrator or any authorized designee of the town pursuant to this section shall be guilty of a civil violation and subject to the penalties in accordance with section 78-170.4(a) of this chapter.

(2)

Correction of violations. In addition to the above penalties, all other actions are hereby reserved, including an action in equity for the proper enforcement of this article. The imposition of a fine or penalty for any violation of, or noncompliance with, this article shall not excuse the violation or noncompliance or permit it to continue; and all such persons shall be required to correct or remedy such violations or noncompliance within a reasonable time. Any structure constructed, reconstructed, enlarged, altered or relocated in noncompliance with this article may be declared by the town to be a public nuisance and abatable as such. Flood insurance may be withheld from structures constructed in violation of this article.

(o)

Variances. See section 78-155.4(d)(2), variances in the floodplain overlay district, for regulations governing variances in floodplains.

(p)

Nonconformities. See Article XVI, Nonconformities, for regulations governing nonconformities in floodplains.

(q)

Municipal liability.

(1)

Limitations. The degree of flood protection sought by the provisions of this section 78-60.2, floodplain overlay district (FPO), is considered reasonable for regulatory purposes and is based on acceptable engineering methods of study. Larger floods may occur. Flood heights may be increased by manmade or natural causes, such as ice jams and the restriction of bridge openings by debris. This section does not imply that areas outside the FPO, or that land uses permitted within those districts, will be free from flooding or flood damages.

(2)

Personal liability. This section shall not create liability on the part of the town or any officer or employee of the town for any flood damages that result from reliance on this section or any administrative decision lawfully made under this section.

(r)

Conflict with other regulations. In cases where the requirements of this section conflict with any other provisions of the Herndon Town Code, or state code regulations, the restrictions of this section shall apply in flood-prone districts.

(s)

Severability. The subsections, paragraphs, sentences, clauses and phrases of this section are severable, and if any phrase, clause, sentence, paragraph or subsection of this section shall be declared unconstitutional or invalid by the valid judgment or decree of a court of competent jurisdiction, such unconstitutionally or invalidity shall not affect any of the remaining phrases, clauses, sentences, paragraphs or subsections of this section. The remaining portions shall remain in full force and effect.

(Ord. No. 17-O-13, 8-8-2017; Ord. No. 20-O-61, § 1, 11-17-2020)

(a)

Purpose and intent. The historic district overlay (HDO) is established pursuant to the authority granted to localities by the Code of Virginia § 15.2-2306. It is intended to promote and protect the unique character of the town through the identification, preservation and enhancement of buildings, structures, settings, neighborhoods, places and features with historical architectural significance to the town. The HDO further intends to:

(1)

Ensure that additions, repairs, modifications, and new construction enhance rather than detract from the town's historic architectural settings.

(2)

Preserve the architectural, artistic, and historic merit of individual structures.

(3)

Protect historic resources from neglect and demolition.

(4)

Retain important townscapes, streetscapes, and viewsheds integral to the identity of Herndon.

(b)

Applicability. No building, structure, or sign located in the historic district overlay shall be erected, reconstructed, altered, demolished, moved, expanded or restored except in accordance with the provisions of section 78-60.3(g), certificate of appropriateness in the historic district overlay.

(c)

District boundaries and maps. The boundaries of the historic district overlay shall be shown on the town's official zoning map and on the appropriate comprehensive plan maps after action by the planning commission and town council.

(d)

Revision of historic district overlay boundary and designation of landmarks. The boundaries of the HDO may be amended or areas, sites, buildings, and structures may be designated as historic landmarks in compliance with the following:

(1)

Amendment procedures. The procedures for amendment of the HDO boundaries or designation of historic landmarks shall be as provided for as an amendment to the official zoning map pursuant to section 78-155.1, zoning map amendment. In addition, the following procedures shall apply:

a.

The planning commission shall conduct or delegate a survey of the town. The survey shall identify and inventory all landmarks, buildings, or structures, in areas being proposed within the proposed district boundaries. The planning commission shall also prepare reports recommended to be included in the HDO.

b.

Prior to establishing or expanding the HDO the town council shall:

1.

Provide for public input from the community and affected property owners in accordance with Code of Virginia, § 15.2-2204;

2.

Follow the written criteria set out below to be used to determine which properties should be included within the HDO; and

3.

Review the inventory and the criteria to determine which properties in the areas being considered for inclusion within the proposed district meet the criteria to be included in the HDO.

c.

Upon the inclusion of an area in the HDO, the owner of each property within the established district boundaries therein shall be given written notification, including a description of the factors justifying the designation.

(2)

Review of HDO boundary amendments. The advisability of amending the HDO boundary is a matter committed to the legislative discretion of the town council and is not controlled by any one factor. The following shall be considered by the town council, and its advisory bodies as part of the deliberation process:

a.

In considering an amendment to the HDO boundary, the town council may adopt a change for only part of the area surveyed by the planning commission. The town council may amend the HDO boundary to include any area that has been considered by the planning commission.

b.

The following criteria shall be used by the historic district review board, planning commission, and town council in evaluating the potential expansion of the HDO. The historic district review board and planning commission may recommend, and the town council may so ordain, a landmark, building, or structure, for designation as within the HDO, provided it meets one or more of the following criteria:

1.

The property or properties exemplifies or reflects the architectural, cultural, or social heritage of the town, is a reminder of the town's past, and enhances the town's attractiveness to visitors.

2.

The property or properties are associated with persons of national, state, or local historical significance.

3.

The property or properties exemplify local or regional architectural design, local craftsmanship or the work of an architect or builder of local, regional, or national prominence.

4.

The property or properties contain qualities, materials, and other physical characteristics that contribute to the study and understanding of historic periods, styles, or methods of construction.

5.

The property or properties are closely related to or contiguous with properties that meet criteria a-d as related to their visual character or historic pattern of development; or otherwise contribute to the historic and architectural context of the proposed or existing HDO.

c.

Such HDO boundaries may be adjusted to exclude properties along the perimeter that do not meet the criteria. The town council shall include only the geographical areas in the HDO where a majority of the properties meet the criteria established below by the town in accordance with this section. However, parcels of land contiguous to arterial streets or highways found by the town council to be significant routes of tourist access to the town or to be designated historic landmarks, buildings, structures, or districts therein, or in a contiguous locality, may be included in the HDO notwithstanding the provisions of this subsection.

(3)

Review of historic landmark designations. The advisability of designating historic landmarks is a matter committed to the legislative discretion of the town council and is not controlled by any one factor. The following shall be considered by the town council and its advisory bodies as part of the deliberation process:

a.

In considering whether or not to designate an historic landmark, the town council may designate less than all of the possible landmarks considered by the planning commission.

b.

The town council may designate any area, site, building, or structure as an historic landmark that has been considered by the planning commission. The designated landmarks shall meet at least two of the following standards:

1.

The area, building or structure appears on the National Register of Historic Places pursuant to the Historic Preservation Act of 1966, as amended;

2.

The area, building or structure is entered upon the Virginia Landmarks Register pursuant to Code of Virginia, § 10.1-138;

3.

The area, building or structure has been documented as having historic value by the state department of historic resources or another recognized historic or archaeological organization;

4.

The area, building or structure exemplifies or reflects the architectural, cultural or social heritage of the town, is a reminder of the town's past and enhances the town's attractiveness to visitors;

5.

The area, building or structure is associated with persons of national, state or local historical significance;

6.

The area, building or structure is a good example of local or regional architectural design or exemplifies local craftsmanship, making it valuable for study of period, style or method of construction; or making it valuable for study of period, style or method of construction; or

7.

The building or structure is a work of a nationally recognized architect or is attributed to an architect or builder of local prominence.

(e)

Reduction of setback. In the HDO, the front setback for a single-family detached dwelling may be reduced from 35 feet to a lesser amount but not less than 20 feet, in instances where the HDRB makes a finding that such reduction shall cause the subject structure to be more compatible with nearby contributing structures.

(f)

Development within the historic district overlay. Development located within the historic district overlay shall be completed in accordance with the Historic District Overlay Guidelines, and the following standards:

(1)

Standards for alterations. A certificate of appropriateness to a building or structure shall be approved only after meeting the following standards:

a.

Reasonable effort is made to alter the site, building, structure, and its environment to the minimal extent practicable.

b.

Alteration of the original, distinguishing qualities or character of a site, building, structure, and its environment and the removal or alteration of any historic material or distinctive architectural features is avoided to the greatest extent practicable.

c.

Alterations to existing buildings, structures, and sites are consistent with the original style of such buildings and structures.

d.

Distinctive stylistic features or examples of skilled craftsmanship that characterize a building, structure, or site shall be retained and restored to the greatest extent practicable.

e.

Deteriorated architectural features shall be repaired, rather than replaced, wherever reasonably possible. If replacement is necessary, new materials shall match the material being replaced in composition, design, color, texture, and other visual qualities to the greatest extent practicable.

f.

Repair or replacement of missing architectural features shall, to the greatest extent possible, be based on accurate duplications of the original features, substantiated by historic, physical, or pictorial evidence, rather than on conjectural designs or the availability of different architectural elements from other buildings or structures.

g.

Cleaning of buildings and structures constituting historic landmarks shall be undertaken with the gentlest means practicable; provided, however, that sandblasting and other cleaning methods that may damage the existing building materials shall not be approved.

h.

When more than 49 percent of the structural components or sheathing of the original or historic facades or roofs on the building or structure are removed, as determined by the zoning administrator, the provisions of section 78-60.3(f)(2), new construction, or section 78-60.3(f)(4), demolition, apply.

i.

Every effort shall be made to protect and preserve archeological resources within or adjacent to the historic district to the greatest extent practicable.

j.

Contemporary design of alterations to existing buildings and structures shall be compatible with the size, scale, color, material texture, and character of the building and structures within preservation districts. Such alterations shall not destroy or negatively impact significant historical, architectural, or cultural material.

k.

Alterations to existing buildings and structures shall be done in such a manner that, if such additions or alterations were to be removed in the future, the essential form and integrity of the original building or structure would be unimpaired.

(2)

New construction. A certificate of appropriateness for new construction of a building or structure may be approved only after meeting the following standards:

a.

The design shall be architecturally compatible with the historic landmarks, buildings, and structures in the historic district overlay in terms of size, scale, color, material, and character.

b.

No specific architectural style shall be adopted or imposed on the administration of this section.

c.

Alterations of more than 49 percent of the structural components or sheathing of the original or historic facades or roofs on the building or structure, as determined by the zoning administrator, shall be considered new construction.

(3)

Moving or relocating a building. A certificate of appropriateness to move or relocate a building or structure may be approved only after meeting the following standards:

a.

The relocation shall not have a detrimental effect on the structural soundness of the building.

b.

The relocation shall not have a negative effect on other historic landmarks or on other sites, buildings, or structures located within the historic district overlay.

c.

The proposed relocation shall provide new surroundings that would be compatible with the architectural aspect of the building or structure.

d.

The proposed relocation is the only practicable means of saving the structure from demolition.

e.

The building or structure shall be relocated to another site within the corporate limits of the town or to another adjacent site that is subject to protections enumerated in the district.

(4)

Demolition. A certificate of appropriateness to demolish a building or structure may be approved, only after meeting the following standards:

a.

The building or structure does not contribute to the character of the historic district.

b.

The building or structure would not qualify as a national or state landmark building or structure listed on the National Register of Historic Places or the Virginia Landmarks Register.

c.

The building or structure has a common design that could reasonably be reproduced.

d.

No historic events occurred in the building or structure.

e.

It is determined the building or structure has a degree of structural unsoundness.

f.

It is not practicable to relocate the building or structure, or portion thereof.

g.

The proposed demolition does not adversely affect other historic landmarks located within the historic district overlay or adversely affect the character of the historic district overlay.

h.

Practicable alternatives to demolition do not exist.

i.

An economic and structural feasibility study prepared by a qualified professional is submitted that concludes rehabilitating or reusing the building or structure is not a practicable alternative.

(g)

Certificate of appropriateness (COA) in the historic district overlay. The purpose of this section is to establish the procedures and standards for the review of certificates of appropriateness in the historic district overlay.

(1)

Applicability. Unless exempted pursuant to section 78-60.3(g)(2), exemptions, a certificate of appropriateness must be approved prior to:

a.

New construction or alterations to any building or structure in the historic district overlay; or

b.

Demolishing, or moving any historic landmark, building, or structure located in the historic district overlay.

c.

The installation of any sign not subject to section 78-140.5(f).

(2)

Exemptions from COA. The following minor development, which has been determined not to have permanent effects on the character of the building or sites within the historic district overlay, is exempted from the requirements of this section. In the event the scope or nature of the development changes during the improvement process, a violation may be issued pursuant to Article XVII (Enforcement, Violations, and Remedies).

a.

Additions or deletions of storm doors, storm windows, window boxes, or similar appurtenances, or portable air conditioners in windows.

b.

The addition or deletion of television or radio antennas, skylights or solar collectors in locations not visible from a public street, an addition or deletion of television or radio antennas, skylights or solar collectors.

c.

Landscaping, grading, walks, swimming pools and related mechanical equipment, retaining walls of less than 12 inches in height, or temporary fencing in place for one year or less, when it does not significantly affect the character of the historic district overlay or an historic landmark and its surroundings.

d.

Minor additions or deletions to an existing building or structure that is not visible from a public street and do not significantly change the architectural character of the building or structure.

e.

Alterations that do not affect the exterior appearance of a site, building, or structure (repainting to a different color or painting unpainted surfaces affects the exterior appearance of the building or structure).

f.

In cemeteries, memorialization on community and private mausoleums, columbaria, family estates, individual and family sites, and memorialization such as headstones and monuments, cremation benches, crypts, vase units, vesper lights, trees, shrubs, flowers, borders (including brick or ornamental fences) and the like, and the words, figures, and graphics on existing or future buildings or structures. Creation of new buildings or structures (not described in the previous sentence), new community burial units, new cenotaphs, new ossuaries, and similar development are not exempt.

g.

Small cell facilities on a utility distribution or transmission pole that comply with the provisions [of section] 78-71.13(d)(3)(a).

h.

Similar development determined by the zoning administrator not to have permanent effects on the character of the HPD.

(3)

Relationship of certificate of appropriateness to administrative plan review.

a.

An application for a certificate of appropriateness in the historic district overlay for a development that requires site plan, subdivision site plan, single lot development plan, or building location survey approval pursuant to section 78-155.6, plan (site plans, subdivision plans, single lot development plans, and building location surveys) shall not be reviewed formally by the historic district review board (HDRB) until the site plan, subdivision site plan, single lot development plan, or building location survey is approved. Applicants may meet informally with the HDRB prior to administrative plan approval.

b.

On properties zoned and used for single-family residential within the historic district overlay, additions that comply with the applicable standards in section 78-60.3(f), and with a footprint between 750 square feet and 1,250 square feet, and disturb less than 2,500 square feet of land, may not be required to submit a single lot development plan. Relief from the submission of a single lot development plan shall be determined by the concurrence of the zoning administrator and town engineer.

(4)

Certificate of appropriateness review procedure. The approval of a certificate of appropriateness shall be subject to the Historic District Procedure Guide, section 78-153.2 (review process for applications requiring a public hearing (approval by a decision making body)), and the following:

a.

Certain certificates of appropriateness may be reviewed and approved, approved with conditions, or denied administratively. Review of such certificates of appropriateness shall be based upon the Herndon Historic Preservation Guidelines, the standards in section 78-60.3(f), and the standards listed below:

1.

A list of improvements that may receive administrative review of a certificate of appropriateness shall be established by the zoning administrator maintained in the office of community development.

2.

Improvements eligible for an administrative review shall be of a common and recurring nature.

3.

Improvements eligible for administrative review shall have only a minor impact on the design, character, or historic fabric of building, structure, or site.

4.

Applications may be forwarded to the HDRB if the zoning administrator determines the application does not meet the aforementioned criteria.

b.

For those applications requiring HDRB review, following public notification and the scheduling of a public hearing, the HDRB shall conduct a public hearing on the application. At the public hearing, the HDRB shall consider the application, the relevant support materials, the staff report, and the public testimony and evidence given at the hearing. After the close of the public hearing, the HDRB shall either approve or disapprove the application based on the standards in section 78-60.3(f), development within the historic district overlay and the following standards:

1.

If the HDRB finds the application complies with the standards in section 78-60.3(f) and the Historic District Guidelines the HDRB shall approve a certificate of appropriateness.

2.

If the HDRB determines the application fails to comply with the standards in section 78-60.3(f), and the Historic District Guidelines, it may either disapprove the application or continue the public hearing. In either case, it shall explain why the application fails to comply with the review standards. It shall recommend revisions to the plans and specifications that would bring the application into conformance with section 78-60.3(f), and the Historic District Guidelines. The applicant may request or agree to a continuation of the public hearing in accordance with section 78-152.6, deferral of application and section 78-153.2(i)(2), continuation of public hearing.

(5)

Certificate of appropriateness for minor improvements. At its discretion, the HDRB may adopt a certificate of appropriateness providing design guidance for certain minor improvements such as changes in color of materials or fences, dumpster enclosures, and similar screening. The staff may review applications for eligible minor improvements addressed in the certificate of appropriateness for compliance with the certificate of appropriateness. The staff shall then notify the applicant in writing whether or not the application successfully complies with the certificate of appropriateness and the improvements shall be authorized under that certificate of appropriateness, without a public hearing before the HDRB.

(6)

Certificate of appropriateness review standards. Development located within the historic district overlay shall be completed in accordance with the Historic District Overlay Guidelines and the standards set forth in section 78-60.3(f), development within the historic district overlay.

(7)

Appeal of COA administrative decision to the historic district review board. The applicant may appeal the final decision of an administrative COA to the HDRB.

a.

An appeal shall be initiated by filing a written notice of appeal with the zoning administrator specifying the grounds for the appeal within 30 days of the final decision.

b.

If a written notice of appeal on an administrative certificate of appropriateness is received by the zoning administrator then anything on the administrative COA application shall be stayed.

(8)

Appeal of COA decision to town council. The applicant or any person aggrieved by the decision with a property interest in land abutting or across the street from property which is the subject of a final decision of the HDRB on a certificate of appropriateness, may appeal the decision to the town council, as follows.

a.

An appeal shall be initiated by filing a written notice of appeal with the zoning administrator specifying the grounds for the appeal within 14 days of the final decision of the HDRB.

b.

No action shall be taken until 15 days after the final decision of the HDRB on a certificate of appropriateness. If a written notice of appeal on a certificate of appropriateness is initiated pursuant to this section, action on the certificate of appropriateness shall be stayed pending the final decision by town council.

c.

The zoning administrator shall schedule a hearing on the matter at the earliest feasible town council meeting by which time notice can be provided consistent with the requirements of section 78-153.2(h), public notification.

d.

At the hearing on the appeal, the appellant or the appellant's agent shall state the grounds for the appeal and identify any materials or evidence from the record to support the appeal. Town staff shall be given an opportunity to respond, as shall any other person(s) the council deems necessary and appropriate.

e.

After the conclusion of the hearing, the town council may affirm, modify, or reverse the decision of the HDRB, in whole or in part, or may remand the case to the HDRB. The decision shall be based on the standards in section 78-60.3(f), development within the historic district overlay. The town council decision shall be subject to the following standards:

1.

A decision shall not be reversed or modified unless there is evidence in the record that the decision of the HDRB is not correct, based on the review standards for a certificate of appropriateness.

2.

In determining whether or not to remand a case to the HDRB, the town council shall be guided by the following factors: the completeness of the record; the appropriateness of further review by the HDRB of certain points or facts; and any amendments to the application after the decision of the HDRB. Town council recognizes that revisions to an application for the purpose of clarifying issues, or addressing concerns raised during the public hearing are positive and will not necessarily result in a remand, except that significant and substantive revisions to the application may serve as a basis for remand.

(9)

Appeal of town council decision to circuit court. The applicant, any person jointly or severally aggrieved with a property interest in land abutting or across the street from property which is the subject of a final decision of the town council pursuant to subsection (8) above, any person with a property interest in land in the historic district overlay, who is aggrieved by a final decision of the town council, pursuant to subsection (8) above, or the town, may appeal the decision to the Circuit Court of Fairfax County pursuant to Code of Virginia § 15.2-2306. If appealed, a petition at law shall be filed setting forth the alleged illegality of the action by the town council, provided that such petition shall be filed within 30 days after the final decision is rendered by the town council. The filing of the petition shall stay the decision of the town council pending the outcome of the appeal to the court, except that the filing of the petition shall not stay a decision of the town council denying the right to raze or demolish a historic landmark, building or structure.

(10)

Submittal of new COA application after disapproval. If the HDRB disapproves a certificate of appropriateness, the applicant may, at any time, submit a new application with new information addressing the written reasons for disapproval.

(11)

Transfer of certificate of appropriateness. A certificate of appropriateness shall be transferable to subsequent owners of the property for which the certificate is issued.

(12)

Expiration of certificate of appropriateness. Development activity or demolition approved pursuant to a certificate of appropriateness must begin within five years of the issuance of the certificate of appropriateness, unless a shorter timeframe is included as a condition of approval on the certificate of appropriateness. Failure to begin the activity within five years, or the timeframe conditioned on the approval, shall render the certificate of appropriateness void.

(13)

Extension of approved certificate of appropriateness. Upon written application submitted to the zoning administrator by the applicant at least 30 days prior to the expiration of the certificate, staff shall consider and may grant one extension not to exceed five years upon a showing of good cause. In determining good cause, staff shall take into consideration the scope of the proposed work and the laws, ordinances, and regulations in effect at the time of the request for extension. An administrative decision to disapprove a certificate of appropriateness may be appealed to the HDRB by the applicant pursuant to section 78-60.3(g)(7). Failure to apply for an extension within the time limits established by this section shall render the certificate of appropriateness void.

(h)

Demolition, relocation and alteration of structures in the historic district overlay. As provided in the Code of Virginia § 15.2-2306, in addition to the right of appeal outlined in this section, the owner of any building or structure shall be permitted to demolish, alter or relocate a building, structure or historic landmark in the historic district overlay provided that:

(1)

Application required. Application is made by the owner to the town council for the right to demolish the building or structure, or the right to alter, or the right to relocate a building or structure;

(2)

Demonstration of offer to sell. The owner demonstrates that for a period set forth in the schedule in section 78-60.3(h)(3) and at a price reasonably related to its fair market value, the owner has made a bona fide offer to sell the historic landmark, building or structure, and the land pertaining thereto, to the town or Fairfax County, or to any person, firm, corporation, government, agency or political subdivision or agency thereof, which gives reasonable assurance that it is willing to preserve and restore the historic landmark, building or structure and the land pertaining thereto. Evidence of a bona fide offer to sell must be demonstrated by a listing through a multiple listing service for the period of time established in section 78-60.3(h)(3) at a price reasonably related to the fair market value of the property.

(3)

Offering price and schedule requirements. The schedule for offers to sell shall be as follows:

a.

Three months when the offering price is less than $25,000.00;

b.

Four months when the offering price is $25,000.00 or more but less than $40,000.00;

c.

Five months when the offering price is $40,000.00 or more but less than $55,000.00;

d.

Six months when the offering price is $55,000.00 or more but less than $75,000.00;

e.

Seven months when the offering price is $75,000.00 or more but less than $90,000.00; and

f.

Twelve months when the offering price is $90,000.00 or more.

(4)

Bona fide contract of sale limitations. No bona fide contract binding upon all parties involved shall have been executed for the sale for any such historic landmark, building or structure, and the land pertaining thereto, prior to the expiration of the applicable period set forth in the schedule in section 78-60.3(h)(3).

(5)

Hazardous properties. A contributing landmark, building or structure, or historic landmarks, shall not be razed, demolished or moved until the razing, demolition or moving thereof is approved by the historic district review board (HDRB) or, on appeal, by the town council after consultation with the HDRB, unless the building official consistent with the Uniform Statewide Building Code, Part III Maintenance, determines that the contributing structure constitutes such a hazard that it shall be razed, demolished or moved.

(6)

Appeal not affected. Any appeal which may be taken to the circuit court of Fairfax County from the decision of the town council, whether instituted by the owner or by any other proper party, notwithstanding the provisions of this section relating to a stay of the decision appealed from, shall not affect the right of the owner to make the bona fide offer to sell referred to in this section. No offer to sell shall be made more than one year after a final decision by the town council, but thereafter the owner may renew the request to the town council to approve the demolition of the historic landmark, building, or structure.

(Ord. No. 18-O-29, § 1, 11-13-2018; Ord. No. 20-O-01, § 1, 1-14-2020; Ord. No. 20-O-61, § 1, 11-17-2020)

(a)

Purpose and intent. The Chesapeake Bay Preservation Area (CBPAO) overlay district is established under the authority provided in Code of Virginia, § 15.2-2280, and following, and to implement the requirements of Code of Virginia, § 62.1-44.15:67 et seq., and to:

(1)

Implement the objectives for the environment described in the comprehensive plan;

(2)

Protect existing high-quality state waters and protect surface groundwater;

(3)

Restore all other state waters to a condition or quality that will permit all reasonable public uses and supports the propagation and growth of all aquatic life within a balanced ecosystem;

(4)

Safeguard the clean waters of the commonwealth from pollution;

(5)

Prevent increase of nonpoint pollution;

(6)

Reduce existing nonpoint source pollution; and

(7)

Promote water resource conservation to provide for the health, safety and welfare of the present and future residents of the town.

(b)

Findings. The following statements describe the significance of the Chesapeake Bay to the town:

(1)

The Chesapeake Bay, with its tributaries, is one of the most important and productive estuarine systems in the country, providing economic and social benefits to the citizens of the town.

(2)

The Chesapeake Bay waters have been degraded significantly by many sources of pollution including nonpoint source pollution from land uses and development. The lands within the town are valuable in assisting the preservation of the bay. Some display intrinsic water quality value due to the ecological processes they perform and also display ecological benefits by providing water quality maintenance and flood and erosion control. Only with proper management can development and use occur without damage to Chesapeake Bay waters.

(3)

The lands designated by the town council as Chesapeake Bay Preservation Areas are those lands which, due to the degradation of bay waters and the passage of the Chesapeake Bay Preservation Act, need to be protected from destruction and damage through improper development and use practices to protect the quality of bay waters.

(c)

Applicability. The Chesapeake Bay Preservation Area Overlay district shall apply to all land in Chesapeake Bay Preservation Areas (CBPAs,) which shall include land that meets the designation criteria in section 70-60.4(f) and shall therefore be subject to the provisions of section 78-60.4.

(d)

Definitions. Words, terms and phrases used in this article shall have the meanings ascribed to them in Article XVIII, Definitions.

(e)

Overlay concept. These CBPA district regulations shall apply in addition to all other underlying zoning districts. Any parcel of land subject to the Chesapeake Bay Preservation Area Overlay district (CPBAOD) shall also be subject to the provisions of one or more of the other zoning districts established by this chapter. Unless otherwise provided, the approval procedures in this chapter and the Town Code shall be utilized in the review of applications governed by this section.

(f)

Designation of Chesapeake Bay Preservation Areas. CBPAs are divided into resource protection areas (RPAs), resource management areas (RMAs), as well as intensely developed areas (IDAs) and they are subject to the use restrictions and regulations in this chapter.

(1)

Resource protection area (RPA). RPAs shall consist of sensitive lands adjacent to water bodies with perennial flow that have either an intrinsic water quality value due to the ecological or biological process they perform or that are sensitive to land uses or activities such that the use may result in significant degradation to state waters. In their natural condition, these lands provide for the removal, reduction or assimilation of nonpoint source pollution entering the bay and its tributaries. The RPA shall consist of:

a.

Nontidal wetlands connected by surface flow and contiguous to water bodies with perennial flow; and

b.

A buffer area not less than 100 feet in width that is (i) along each side of any water body with perennial flow and (ii) located adjacent to and landward of nontidal wetlands as described in a. above;

c.

The full buffer area shall be designated as the landward component of the RPA notwithstanding the presence of permitted uses, encroachments, and permitted vegetation clearing in compliance with sections 78-60.4, 78-60.4(l) and 78-60.4(m); and

d.

The buffer is to be measured from the top of bank or ordinary high-water mark landward 100 feet.

(2)

Resource management area (RMA). The RMA shall consist of all land located in the Town of Herndon that is not included in the RPA or in the IDA. Resource management areas protect the quality of state waters, are deemed to be lands of significance for the protection of the environment, and incorporate, but are not limited to, floodplains, highly erodible soils, steep slopes of 15 degrees or greater and nontidal wetlands not connected by surface flow to water bodies with perennial flow.

(3)

Intensely developed area (IDA). The intensely developed area (IDA) delineates development and infill sites as of October 23, 1990 (the date of original adoption of regulations for Chesapeake Bay Preservation Areas) where development was concentrated and little of the natural environment remains. The IDA shall comply with section 78-60.4(l)(7).

(g)

District boundaries and map. The boundaries of the Chesapeake preservation area overlay district are mapped and incorporated by reference into the zoning ordinance as follows:

(1)

Mapped areas (general). The designations identified in section 78-60.4(f)(1), (f)(2), and (f)(3) are delineated on the "Chesapeake Bay Preservation Areas" map, adopted by the town council on February 10, 2004, as amended, incorporated by reference. Data from the perennial stream mapping project conducted by the Fairfax County Department of Public Works and Environmental Services and completed November 2003 was used to determine Herndon's perennial streams and the associated 100-foot RPA buffer.

(2)

Detailed mapping. The Chesapeake Bay Preservation Areas map shows only the general location of CBPAs. Persons contemplating land development within the Town of Herndon should consult this map prior to these activities. The specific location of RPAs on a lot or parcel shall be delineated on each site or parcel as required under section 78-60.4(h) site-specific delineation for RPAs or through the review and approval of a water quality impact assessment, as provided for in section 78-60.4(n).

(h)

Site-specific delineation for resource protection areas. As part of any land disturbance, development or redevelopment on a parcel that contains RPA, a site-specific RPA delineation shall be required. The "Chesapeake Bay Preservation Areas" map, adopted by the town council on February 10, 2004, as amended, may be used as a guide to identify the general location of resource protection areas.

(1)

Land disturbance of less than 5,000 square feet in RPA. For land disturbance in the RPA that is no more than 5,000 square feet, the site-specific RPA delineation shall include a scaled property drawing that is prepared by the owner or the owner's agent and verified by the community forester and that:

a.

Delineates nontidal wetlands connected by surface flow and contiguous to water bodies with perennial flow;

b.

Delineates a 100-foot buffer area that is shown (i) along each side of any water body with perennial flow and (ii) adjacent to and landward of nontidal wetlands as described in a. above; and

c.

Identifies other sensitive environmental features, as determined by the zoning administrator.

(2)

Land disturbance of more than 5,000 square feet in RPA. For land disturbance in the RPA that exceeds 5,000 square feet, the following requirements shall be met:

a.

RPA boundary delineation studies shall be sealed by a professional engineer, land surveyor, landscape architect, soil scientist or wetland delineator certified or licensed to practice in the Commonwealth of Virginia. Any work performed by other firms or individuals not under the responsible charge of the licensed professional sealing the study shall be identified and sealed by that individual, as appropriate;

b.

Wetland determinations used in the RPA delineation shall be performed using methods specified by the U.S. Army Corps of Engineers (USACE), and a copy of the USACE's Jurisdictional Determination approving the wetlands delineation shall be provided;

c.

RPA boundary delineation studies shall be submitted on standard-size sheets of 243× 363 at a scale of 13 = 502 or larger; and

d.

Site-specific RPA delineation shall include the following:

1.

Cover sheet with project name, town plan identification number, vicinity map, tax map reference number and fee computation;

2.

A narrative describing how the proposed RPA boundary was established, including a discussion of which components determine this RPA boundary, and any wetlands shown on the plan(s) that were determined not to be a component of the RPA;

3.

Plan sheet(s) with two-foot contour interval topography showing each individual component of the RPA overlain to create the final RPA boundary, the RPA boundary from the adopted Chesapeake Bay Preservation Area map, locations of the horizontal and vertical control points, and locations of points and transects used in the wetland determination. Topography shall be correlated to a USGS or Town benchmark(s), based on NGVD29, which shall be referenced in the plan. Plan sheets shall include a north arrow.

4.

Standard USACE data forms used in the wetland determination and the issued jurisdictional determination for the subject site.

5.

A description of the methodology used and data collected, including standard data sheets, used to identify water bodies with perennial flow.

e.

In determining the site-specific RPA boundary, the zoning administrator may adjust the applicant's submittal utilizing the "Federal Manual for Identifying and Delineating Jurisdictional Wetlands," 1987, for determining wetlands location. In the event the applicant contests the adjusted boundary, the applicant may appeal the zoning administrator's decision, under section 78-150.6(f), appeal of zoning administrator decision or determinations by the zoning administrator.

(i)

Subdivision plat. Each subdivision plat shall note the existence of any RMA or RPA areas on the land shown on such plat. The existence of RMA or RPA on a lot created prior to the adoption of this article shall not be the basis for the granting of a CBPA exception.

(j)

Permitted uses in Chesapeake Bay Preservation Areas. The following provisions shall apply to uses within the Chesapeake Bay Preservation Areas:

(1)

RMA uses. A use shall be permitted within the RMA provided it is permitted in the underlying zoning district regulations and it complies with the performance criteria set forth in section 78-60.4(l) general performance criteria for land disturbance in Chesapeake Bay protection areas.

(2)

RPA uses. A use shall be permitted within an RPA, provided it is permitted in the underlying zoning district, complies with section 78-60.4(l) section 78-60.4(m), and is one or more of the following:

a.

Water-dependent, provided it meets the criteria set forth in section 78-60.4(m)(3).

b.

Constitutes any redevelopment in accordance with section 78-60.4(j)(3):

c.

Constitutes development or redevelopment within a designated IDA;

d.

A new use established pursuant to section 78-60.4(m)(1)c.;

e.

A road or driveway crossing satisfying the conditions set forth in section 78-60.4(m); or

f.

A flood control or stormwater management facility satisfying the conditions set forth in section 78-60.4(m)(5).

(3)

Redevelopment outside IDA. Redevelopment outside the IDA shall be permitted in the RPA only if there is no increase in the amount of impervious surface and no further encroachment within the RPA. Additionally, this redevelopment shall conform to applicable erosion and sediment control and stormwater management criteria set forth in section 78-60.4(l)(1)b. as well as all applicable stormwater management requirements of other Virginia and federal agencies.

(k)

Exempted uses in Chesapeake Bay Preservation Areas. Certain uses may be exempt from the CBPAOD regulations subject to the following provisions:

(1)

Criteria for specific exempt activities and facilities. Water wells, historic preservation activities, archaeological activities, and passive recreation facilities such as boardwalks, paved trails, unpaved trails and pathways are exempt from the CBPAOD regulations, including the need to conduct a water quality impact assessment under section 78-60.4(n) provided they meet the following criteria:

a.

All required local, state and federal permits have been issued;

b.

Sufficient and reasonable proof is submitted that the intended use does not deteriorate water quality;

c.

The intended use does not conflict with nearby planned or approved uses; and

d.

There is compliance with Article III, Chapter 26 (erosion and sediment control) and Article VIII, Chapter 26 (stormwater management) of the Town of Herndon Code if the land disturbance exceeds an area of 2,500 square feet.

(2)

Criteria for exempt utilities and transportation facilities. Construction, installation, operation and maintenance of electric, natural gas, fiber optic, water, sewer, underground telecommunications, cable television and telephone transmission lines, railroads and public roads and their appurtenant structures are exempt from the CBPAOD regulations, including the need to conduct a water quality impact assessment under section 78-60-4(n) provided they meet all of the following criteria:

a.

Such activities are permitted by the town's zoning ordinance.

b.

Such activities are not prohibited by any other ordinances or laws.

c.

To the extent possible, the location of such utilities and facilities are outside the RPA.

d.

No more land is disturbed than necessary to provide for the proposed utility installation;

e.

All such construction, installation and maintenance of such utilities and facilities comply with all applicable town, Virginia and federal permits and are designed and conducted in a manner that protects water quality through:

1.

The Erosion and Sediment Control Law (Code of Virginia, § 62.1-44.15:51 et seq.), Article III, chapter 26 of this Code (erosion and sediment control) and the Stormwater Management Act (Code of Virginia, § 62.1-44.15:24 et seq.);

2.

An erosion and sediment control plan and a stormwater management plan approved by the town; or

3.

Local water quality protection criteria at least as stringent as the above state requirements are deemed to comply with this article.

f.

If such activity is the construction of a public road, the road alignment and design shall be 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.

(l)

General performance criteria for land disturbance in Chesapeake Bay Preservation Areas. To attain the water quality objectives set forth in the statement of intent, uses, development, and redevelopment of land in CBPAs, (RMAs and RPAs) shall meet and maintain the performance criteria set forth in this section.

(1)

Land disturbance exceeding 2,500 square feet. All development and redevelopment within RMAs and RPAs that exceed 2,500 square feet of land disturbance shall:

a.

Be subject to approval by the reviewing authority through the submission of a site plan, a single lot development plan, or a subdivision plan. The reviewing authority may approve these submissions only if the regulated activity is in accordance with this article and the applicant has demonstrated that the proposed development meets or exceeds the criteria in this section.

b.

Shall comply with chapter 26, Article III (Erosion and Sediment Control) and Chapter 26, Article VIII (Stormwater Management) of the Herndon Town Code, construction of single-family homes included.

(2)

Compliance with approved plan or water quality impact assessment required. Land disturbance shall be in accordance with an approved plan or water quality impact assessment and shall be clearly shown on the plan and physically marked on the development site. No more land shall be disturbed than is necessary to provide for the proposed use or development.

(3)

Indigenous vegetation. Indigenous vegetation shall be preserved to the maximum extent practicable consistent with the proposed use(s) or development. To preserve indigenous vegetation to the maximum extent practicable consistent with the proposed use(s) or development, all trees located outside the area of land disturbance with a DBH of four inches or more shall be preserved. Clearing within the area of land disturbance shall be limited to that necessary to provide for the intended use of the property and all appurtenances, a single access during construction, positive site drainage, water quality BMPs, and the installation of utilities. Such clearing limits shall be subject to review and approval by the reviewing authority.

(4)

Impervious surface. Development shall minimize impervious surface consistent with the proposed use or development. To minimize impervious surface and promote infiltration of stormwater in the ground consistent with proposed uses and development, grid and modular pavements shall be considered for any required parking area, alley or other low traffic driveway, unless otherwise approved by the zoning administrator.

(5)

Water quality impact assessment required. A water quality impact assessment, pursuant to section 78-60-4(n), shall be required for the following:

a.

Any proposed land disturbance, development or redevelopment activity within a RPA, including the expansion of nonconforming structures and uses, as identified in section 78-60.4(o); or

b.

Any development within the RMA, as deemed necessary by the zoning administrator, based upon the unique characteristics of the site or intensity of the proposed use(s) or development.

(6)

Evidence of required permits. The developer shall provide evidence to the town, prior to commencing grading or other on-site land disturbing activities, that any wetlands or similar permit required by federal, Virginia or local laws or regulations have been properly obtained.

(7)

Development in IDA. If the development is located within the IDA:

a.

Vegetation shall be provided to the extent possible to assist in re-establishing vegetation within a 100-foot wide buffer area along any streams on the site or adjacent to the site in order to maximize water quality protection, pollutant removal and water resource conservation.

b.

The zoning administrator may waive the requirement for the re-establishment of vegetation within the RPA buffer within the IDA, in accordance with section 78-60.4(p), administrative waivers of requirements for CBPAs (RMAs and RPAs).

(m)

Additional development criteria for resource protection areas. The following additional criteria shall apply to development in the RPA.

(1)

100-foot buffer. Establishment of a 100-foot buffer area is required, and it shall be the landward component of the RPA as set forth in section 78-60.4(f)(1). Notwithstanding permitted uses, encroachments, and vegetation clearing, as set forth in this section, the 100-foot buffer shall not be reduced in width. In addition, the following criteria apply:

a.

To minimize the adverse effects of human activities on the other components of the RPA, state waters and aquatic life, this 100-foot wide buffer that is effective in retarding runoff, preventing erosion, and filtering nonpoint source pollution from runoff shall be retained if present, established where it does not exist, and adequately maintained thereafter. This 100-foot wide buffer is the same one referred to in (1) above; and

b.

The 100-foot buffer area, as described in (1) above, shall be deemed to achieve a 75 percent reduction in sediments and 40 percent reduction in nutrients.

c.

The 100-foot RPA buffer may be encroached upon under the following circumstances:

1.

If the requirements result in the loss of a buildable area for new homes or new principal structures on lots recorded before October 1, 1989, the zoning administrator may grant encroachments into the buffer area provided that:

(a)

The applicant submits an administrative waiver application, in accord with section 78-60.4(p)(1) and the required water quality impact assessment (WQIA), receives zoning administrator approval;

(b)

The encroachment into the buffer area shall be the minimum necessary to achieve a reasonable buildable area for a principal structure and necessary utilities;

(c)

Where practical, a vegetated area that maximizes water quality protection, mitigates the effects of the buffer encroachment, and equals the area of the buffer encroachment shall be established elsewhere on the lot; and

(d)

The encroachment may not extend into the buffer area that is 50 feet closest to the water body with perennial flow and/or its associated wetlands.

2.

If the requirements result in the loss of a buildable area for new homes or new principal structures on lots recorded between October 1, 1989, and February 10, 2004, the zoning administrator may grant an encroachment into the buffer area provided that:

(a)

The lot or parcel was created as a result of a process conducted in conformity with Chapter 70, Subdivision of Land, of the Town of Herndon Code;

(b)

Conditions or mitigation measures imposed through a previously approved exception shall be met;

(c)

If the use of a best management practice was previously required, the BMP shall be evaluated to determine if it continues to function effectively and, if necessary, the BMP shall be reestablished or repaired and maintained as required; and

(d)

The criteria in section 78-60.4(m)(1)c.1. shall be met.

(2)

Buffer area management. To maintain the functional value of the buffer area, indigenous vegetation may be removed, if approved by the zoning administrator, to provide for reasonable sight lines, access paths, general woodlot management, and BMPs, including BMPs that prevent upland erosion and concentrated flows of stormwater, as follows:

a.

Trees may be pruned or removed only 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;

b.

Any path shall be constructed and surfaced to control erosion effectively;

c.

Dead, diseased or dying trees or shrubbery and noxious weeds may be removed and thinning of trees may be allowed pursuant to sound horticulture practice as prescribed by the town's community forester; and

d.

For stream restoration projects, trees and woody vegetation may be removed, necessary control techniques employed, and appropriate vegetation established to protect or stabilize the stream in accordance with the best available technical advice and applicable permit conditions or requirements.

e.

Use of fertilizers, herbicides or pesticides shall be minimized in the buffer area.

(3)

Water dependent development. For new or expanded water-dependent development, the applicant shall demonstrate that the regulated activity meets or exceeds the following standards:

a.

All performance criteria set forth in this article;

b.

Any non-water dependent component is located outside of the RPA;

c.

Access is provided with the minimum disturbance necessary and where possible, with a single point of access; and

d.

The development does not conflict with the comprehensive plan.

(4)

Roads and driveways. Roads and driveways not exempt under section 78-60.4(k) and which, therefore, must comply with the provisions of this article, 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 are optimized, consistent with other applicable requirements, to minimize (i) encroachment in the RPA and (ii) adverse effects on water quality;

c.

The design and construction of the road or driveway satisfy all applicable criteria of this article including the submission and approval of a water quality impact assessment, as provided for in section 78-60.4(n) and

d.

The zoning administrator reviews the plan for the road or driveway proposed in or across the RPA in coordination with the review process for a site plan or subdivision.

(5)

Flood control and stormwater management. 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, provided that:

a.

The Town of Herndon has established that the location of the facility within the RPA is the optimal location;

b.

The size of the facility is the minimum necessary to provide necessary flood control, stormwater management, or both;

c.

The facility must be consistent with those permitted in chapter 26, Article VIII (Stormwater Management) of the Herndon Town Code;

d.

All applicable permits for construction in Virginia or federal waters must be obtained from the appropriate Virginia and federal agencies, such as the U.S. Army Corps of Engineers, the Virginia Department of Environmental Quality, and the Virginia Marine Resources Commission;

e.

Approval prior to construction must be received from the town;

f.

Routine maintenance is allowed to be performed on such facilities to assure that they continue to function as designed; and

g.

It is not the intent of this section to allow a stormwater management or BMP facility that serves a single development, an individual lot, or some portion of the lot to be located within a RPA. To locate such a facility in the RPA, the town council must grant an exception, as provided for in section 78-60.4(p).

(n)

Water quality impact assessment requirements. A water quality impact assessment shall be required and submitted for any proposed land disturbance, development or redevelopment activity within the RPA as follows.

(1)

Requirement standards. A water quality impact assessment shall be required for the following:

a.

Any proposed land disturbance, development or redevelopment activity within a RPA, as permitted and consistent with sections 78-60.4(j) and 78-60.4(l);

b.

Any proposed development in the RMA that, in the judgment of the zoning administrator, warrants such an assessment because of the unique characteristics of the site or intensity of the proposed use, or development; and

c.

As a part of an application for a rezoning, a special exception, a site plan, a preliminary plan or a single lot development plan that meets the criteria in items a. and b. above. The zoning administrator has the authority to approve or deny a water quality impact assessment.

(2)

Purpose. The purpose of the water quality impact assessment is to:

a.

Identify the impacts of the proposed land disturbance, development or redevelopment on water quality and lands within the RPAs and other environmentally sensitive lands;

b.

Ensure that, where land disturbance, development or redevelopment takes place within RPAs and other sensitive lands, it is located on those portions of a site and in a manner, that is least disruptive to the natural functions of RPAs and other sensitive lands;

c.

Protect individuals from investing funds for improvements proposed for location on lands unsuited for such development because of high groundwater, erosion, vulnerability to flood and storm damage; and

d.

Specify mitigation that addresses water quality protection.

(3)

Minor water quality impact assessments. A minor water quality impact assessment pertains only to any land disturbance, development or redevelopment in the RPA which (i) causes up to 5,000 square feet of land disturbance, or (ii) is located in the RMA and is determined by the zoning administrator to warrant such assessment under section 78-60.4(l)(6). A minor water quality impact assessment shall meet the following standards.

a.

A minor assessment must demonstrate that the undisturbed buffer area, together with the enhanced vegetative plantings and any required BMP, retards runoff, prevents erosion, and filters non-point source pollution to the equivalent of the full undisturbed 100-foot buffer area, which shall be deemed to achieve a 75 percent reduction in sediments and a 40 percent reduction in nutrients.

b.

A minor assessment shall include a drawing to scale that shows the following:

1.

Location of the components of the CBPA including the 100-foot buffer area component of the RPA;

2.

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 surfaces; and existing private water supply systems or sewage disposal systems to include reserve drain field sites;

3.

Type and location of proposed BMPs, if necessary, to mitigate the proposed encroachment;

4.

Location of existing, on-site vegetation, including the number and type of trees and other vegetation, to be removed in the buffer to accommodate the encroachment or alteration; and

5.

Re-vegetation plan that supplements the existing buffer vegetation in a manner that provides for pollutant removal as well as erosion and runoff control, in accordance with the Riparian Buffers Modification and Mitigation Guidance Manual, approved by Chesapeake Bay Local Assistance Board on September 15, 2003.

(4)

Major water quality impact assessments. A major water quality impact assessment shall be required for any land disturbance, development or redevelopment in the RPA which (i) exceeds 5,000 square feet of land disturbance or (ii) is located in an RMA and is determined by the zoning administrator to warrant a water quality impact assessment under section 78-60.4(l)(6). A major water quality impact assessment shall meet the following standards.

a.

The information for this assessment 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(s) and land development.

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, as specified in paragraph section 78-60.4(n)(3)a. of this section.

2.

A hydrogeological component 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; and

(c)

Indicates the following:

i.

Disturbance or destruction of wetlands and justification for such action;

ii.

Disruptions to existing hydrology including wetland and stream circulation patterns;

iii.

Description and source location of proposed fill material;

iv.

Estimation of predevelopment and post-development pollutant loads in runoff;

v.

Estimation of percent increase in the on-site impervious surface and types of surfacing materials used;

vi.

Percent of site to be cleared for the project;

vii.

Anticipated duration and phasing schedule or construction project; and

viii.

Acquisition of all requisite permits from all applicable agencies necessary to develop the project.

3.

Describes the proposed mitigation measures for the potential hydro geological impacts. Potential mitigation measures include:

(a)

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;

(b)

Proposed stormwater management system;

(c)

Creation of wetlands to replace those lost; and

(d)

Minimizing cut and fill.

4.

Identification of the existing characteristics and conditions of sensitive lands included as components of Chesapeake Bay Preservation Areas, as defined in this article.

5.

Identification of the natural processes and ecological relationships inherent in the portion of the CBPA located on the site and an assessment on the impact of the proposed use and development on these processes and relationships.

(5)

Water quality impact assessment submission and review requirements. The submission and review requirements shall meet the following standards:

a.

Four copies of all site drawings and other applicable information as required by items 78-60(n)(3)a. and (3)b. of this section shall be submitted to the zoning administrator for review;

b.

For a major water quality impact assessment, all information required in this section shall be certified by a professional engineer or land surveyor as complete and accurate. Such certification is not required for a minor water quality impact assessment; and:

c.

As part of any major water quality impact assessment submittal, the zoning administrator may require the state water control board (SWCB) to review the assessment and respond with written comments. Upon receipt of a major water quality impact assessment, the zoning administrator will determine if a SWCB review is warranted to assure compliance with this article. The zoning administrator may incorporate any comments from SWCB received within 90 days of the request into the final review.

(6)

Water quality impact assessment evaluation procedure. The evaluation procedure shall be as follows:

a.

Upon the completed review of a minor water quality impact assessment, the zoning administrator shall determine if any proposed alteration or reduction to the buffer area is consistent with the provisions of this article 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 best management practices, where required, to achieve the requisite reductions in pollutant loadings;

4.

The development, as proposed, meets the purpose and intent of this article; and

5.

The cumulative impact of the proposed development, when considered in relation to other development in the vicinity, both existing and proposed, shall not result in a significant degradation of water quality.

b.

Upon the completed review of a major water impact assessment, the zoning administrator shall determine if the proposed development is consistent with the purpose and intent of this article and shall make findings based upon the following criteria:

1.

The proposed development is a permitted use;

2.

The disturbance of wetlands is minimized;

3.

The development does not result in significant disruption of the hydrology of the portion of CBPA on the site;

4.

The development does not result in significant degradation to aquatic vegetation of life in the portion of CBPA on the site;

5.

The development does not result in unnecessary destruction of plant materials in the portion of CBPA on the site;

6.

Proposed erosion and sediment control concepts are adequate to achieve the required reductions in runoff and prevent off-site sedimentation;

7.

Proposed stormwater management concepts are adequate to control the stormwater runoff to achieve the required standard for pollutant control;

8.

Proposed re-vegetation of disturbed areas provides required erosion and sediment control benefits;

9.

The development, as proposed, is consistent with the purpose and intent of the CBPA overlay district; and

10.

The cumulative impact of the proposed development, when considered in relation to other development in the vicinity, both existing and proposed, shall not result in a significant degradation of water quality.

c.

The zoning administrator shall require additional mitigation when potential impacts have not been adequately addressed. Evaluation of mitigation measures is made by the zoning administrator based on the criteria listed in 78-60(n)(6)a. and (6)b. of this section.

d.

The zoning administrator must find the proposal to be inconsistent with the purpose and intent of this article when the impacts created by the proposal cannot be mitigated. Evaluation of the impacts shall be made by the zoning administrator based on the criteria listed in section 78-60(n)(6)a. and (6)b. of this section.

(o)

Request for an exception to the CBPAs. To be relieved from the requirements of sections 78-60.4(j)(2) through (j)(3) permitted uses in the Chesapeake Bay Preservation Areas, and section 78-60.4(m) additional development criteria for resource protection areas, the applicant must be granted an exception to the Chesapeake Bay Preservation Areas (CBPA) by the town council. An application for a CBPA exception must be submitted to the town council through the department of community development and shall be subject to the following application and review standards.

(1)

Application required. The application shall include a written statement that identifies the impacts of the proposed exception on water quality and on lands within the resource protection area, through the submission of a WQIA, as required under section 78-60.4(n).

(2)

Notice and public hearing required. No such CBPA exception shall be authorized except after notice and hearing, as required by Code of Virginia § 15.2-2204, (2000), as amended, except only one hearing shall be required and the applicant may notify affected property owners by first-class mail.

(3)

Review and approval notice and public hearing required. The town council shall review the request for a CBPA exception as well as the WQIA and may grant it with such conditions and safeguards as deemed necessary to further the purpose and intent of this article if the council finds:

a.

The requested CBPA exception is the minimum necessary to afford relief;

b.

Granting the CBPA exception does not confer upon the applicant any special privileges that are denied by sections 78-60.4, 78-60.4(l), and 78-60.4(m) to other property owners who are similarly situated;

c.

The request is in harmony with the purpose and intent of sections 78-60.4(j), 78-60.4(l), and 78-60.4(m) and is not of substantial detriment to water quality;

d.

The request is not based upon conditions or circumstances that are self-created or self-imposed;

e.

Reasonable and appropriate conditions are imposed, as warranted, that prevent the allowed activity from causing a degradation of water quality; and

f.

Other findings, as appropriate and required by the town are met.

(p)

Administrative waivers of requirements for CBPAs (RMAs and RPAs). An administrative waiver process for requirements in CBPAs (RMAs and RPAs) is established to address the zoning administrator review for sections 78-60.4(k) (exempted uses), section 78-60.4(k) (general performance criteria), section 78-60.4(m)(1)c. (additional development criteria for certain lots), and section 78-60.4(n) (water quality impact assessment). Such requests must be made in writing to the zoning administrator, who has the authority to grant or deny the waiver.

(1)

Waiver process. To commence the administrative waiver process, an application shall be submitted to the zoning administrator and include the following information:

a.

Name and address of applicant and property owner;

b.

Legal description of the property;

c.

Location map; and

d.

A WQIA, as required under section 78-60.4(n) which needs to be approved by the zoning administrator.

(2)

Waivers of specific provisions. The zoning administrator may consider waivers of the following provisions of this section as follows:

a.

The zoning administrator may grant waiver requests for section 78-60.4(k), provided:

1.

The request is the minimum necessary to afford relief;

2.

Granting the request does not confer upon the applicant any special privileges denied by this article to other property owners in the Chesapeake Bay preservation overlay district;

3.

The request is in harmony with the purpose and intent of this article and is not injurious to the neighborhood or otherwise detrimental to the public welfare, and is not of substantial detriment to water quality;

4.

The request is not based upon conditions or circumstances that are self-created or self-imposed;

5.

Reasonable and appropriate conditions are imposed, as warranted, that will prevent the allowed activity from causing a degradation of water quality; and

6.

The request meets the requirements for granting an exception in section 26-329 of the Herndon Town Code.

b.

The zoning administrator may grant a request for sections 78-60.4(k) (exempted uses), section 78-60.4(l) (general performance criteria), section 78-60.4(m)(1)c. (additional development criteria for certain lots), and section 78-60.4(n) (water quality impact assessment), provided:

1.

The request is the minimum necessary to afford relief; and

2.

The zoning administrator has the authority to place reasonable and appropriate conditions upon any waiver, as necessary, so that the purpose and intent of this article is preserved.

c.

The administrative waiver process for principal structures is identified in section 78-60.4(p). Buffer encroachments may be administratively waived under section 78-60.4(m)(1)c.

(3)

Exceptions. Nothing in this section shall affect the ability to seek a CBPA exception. Use of the administrative procedure is not a prerequisite to use of the appeal or exception process.

(q)

Conflict with other regulations. In cases where the requirements of this section conflict with any other provisions of the Herndon Town Code, or state code regulations, the more stringent restrictions shall apply.

(r)

Severability. The sections, paragraphs, sentences, clauses and phrases of this article are severable, and if any phrase, clause, sentence, paragraph or section of this article shall be declared unconstitutional or invalid by the valid judgment or decree of a court of competent jurisdiction, such unconstitutionality or invalidity shall not affect any of the remaining phrases, clauses, sentences, paragraphs or sections of this article.

(Ord. No. 17-O-13, 8-8-2017; Ord. No. 20-O-61, § 1, 11-17-2020)