The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning. Words and terms not defined in this article but defined in section 54-2 shall be given the meanings set forth in that section.

Administrative committee means the committee appointed by the council which performs reviews of plans in accordance with the provisions of this article.

Agricultural activities means lands that are currently (i.e., natural or native vegetation has been removed) used and managed primarily for the commercial sale of crops and livestock and consists of a minimum of five acres.

Agricultural land means land used for the planting and harvesting of crops or plant growth of any kind in the open, pasture, horticulture, dairying, floriculture, or raising of poultry and/or livestock.

Best management practices or BMPs means a practice or a combination of practices that is determined by a state or designated areawide planning agency to be the most effective, practical means of preventing or reducing the amount of pollution generated by nonpoint sources to a level compatible with water quality goals.

Buffer area means an area of natural or established vegetation managed to protect other components of a resource protection area and state waters from significant degradation due to land disturbances.

Chesapeake Bay Preservation Area or CBPA means any land designated by the council pursuant to part III of the Chesapeake Bay Preservation Area Designation and Management Regulations 9VAC 10-20 et seq., and Code of Virginia, § 10.1-2107. A Chesapeake Bay Preservation Area shall consist of a resource protection area and a resource management area.

Construction footprint means the area of all impervious surface, including but not limited to buildings, roads and drives, parking areas, and sidewalks and the area necessary for construction of such improvements.

Development means the construction or substantial alteration of residential, commercial, industrial, institutional, recreational, transportation, or utility facilities or structures.

Diameter at breast height or DBH means the diameter of a tree measured outside the bark at a point 4.5 feet above the ground.

Dripline means a vertical projection to the ground surface from the furthest lateral extent of a tree's leaf canopy.

Highly erodible soil means soil, excluding vegetation, with an erodibility index (EI) form sheet or rill erosion equal to or greater than eight. The erodibility index for any soil is defined as the product of the formula RKLS/T, where K is the soil susceptibility to water erosion in the surface layer; R is the rainfall and runoff; LS is the combined effects of slope length and steepness; and T is the soil loss tolerance.

Highly permeable soil means soil with a potential to transmit water through the soil profile. Highly permeable soils are identified as any soil having a permeability equal to or greater than six inches of water movement per hour in any part of the soil profile to a depth of 72 inches, (permeability groups, rapid and very rapid) as found in the National Soil Survey Handbook of November 1996 in the Field Office Technical Guide of the U.S. Department of Agriculture Natural Resources Conservation Service.

Impervious cover means a surface composed of any material that significantly impedes or prevents natural infiltration of water into the soil. Impervious surfaces include but are not limited to roofs, buildings, streets, parking areas, and any concrete, asphalt or compacted gravel surface.

Intensely developed area or IDA means a portion of a resource protection area or a resource management area designated by the council where development is concentrated and little of the natural environment remains.

Nonpoint source pollution means pollution consisting of constituents, such as, sediment, nutrients, and organic and toxic substances from diffuse sources, such as, runoff from agriculture and urban land development and use.

Nontidal wetlands means those wetlands other than tidal wetlands that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support and, that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, as defined by the U.S. Environmental Protection Agency pursuant to section 404 of the Federal Clean Water Act, in 33 CFR 328.3b.

Noxious weeds means weeds that are difficult to control effectively, such as, Johnson grass, kudzu, and multiflora rose.

Plan of development means the process for site plan or subdivision plat review to ensure compliance with Code of Virginia, § 10.1-2109 and this article, prior to any clearing or grading of a site or the issuance of a building permit.

Public road means a publicly owned road designed and constructed in accordance with water quality protection criteria at least as stringent as requirements applicable to the Virginia Department of Transportation, including regulations promulgated pursuant to the Erosion and Sediment Control Law (Code of Virginia, § 10.1-603.1 et seq.). The term "public road" includes those roads where the Virginia Department of Transportation exercises direct supervision over the design or construction activities, or both, and cases where secondary roads are constructed and maintained, or both, by the Town of Kilmarnock in accordance with the standards of the town.

Redevelopment means the process of developing land that is or has been previously developed.

Resource management area or RMA means that component of the Chesapeake Bay Preservation Area that is not classified as the resource protection area. RMAs include land types that, if improperly used or developed, have the potential for causing significant water quality degradation or for diminishing the functional value of the resource protection area.

Resource protection area or RPA means that component of the Chesapeake Bay Preservation Area comprised of lands adjacent to water bodies with perennial flow that have an intrinsic water quality value due to the ecological and biological processes they perform or are sensitive to impacts which may result in significant degradation to the quality of state waters.

Silvicultural activity means forest management activity, including but not limited to the harvesting of timber, the construction of roads and trails for forest management purposes, and the preparation of property for reforestation that are conducted in accordance with the silvicultural best management practices enforced by the state forester pursuant to Code of Virginia, § 10.1-1105 and are located on property defined as real estate devoted to forest use under Code of Virginia, § 58.1-3230.

Subdivision means that term as it is defined in chapter 38.

Substantial alteration means expansion or modification of a building or development that would result in a disturbance of land exceeding an area of 2,500 square feet in the resource management area only.

Tidal shore or shore means land contiguous to a tidal body of water between the mean low-water level and the mean high-water level.

Tidal wetlands means vegetated and nonvegetated wetlands as defined in Code of Virginia, § 28.2-1300.

Water-dependent facility means a development of land that cannot exist outside of the resource protection area and must be located on the shoreline by reason of the intrinsic nature of its operation. These facilities include but are not limited to ports; the intake and outfall structures of power plants, water treatment plants, sewage treatment plants, and storm sewers; marinas and other boat docking structures; beaches and other public water-oriented recreation areas; and fisheries or other marine resources facilities.

Wetlands means tidal and nontidal wetlands.

(Code 1997, § 54-481; Ord. of 6-6-1969, § 8-1; Ord. of 6-20-1994; Ord. of 11-15-2004; Ord. of 8-17-2009)

(a)

The CBPA overlay district shall apply to all lands identified as CBPAs, as designated by the council and as shown on the town CBPA map. The CBPA map, together with all explanatory matter thereon, is hereby adopted by reference and declared to be a part of this article.

(1)

The RPA includes:

a.

Tidal wetlands.

b.

Nontidal wetlands connected by surface flow and contiguous to tidal wetlands or water bodies with perennial flow.

c.

Tidal shores.

d.

A 100-foot vegetated buffer area located adjacent to and landward of the components listed in subsections (a)(1)a through c of this section, and along both sides of any or water bodies with perennial flow.

(2)

The RMA includes all lands within the town that not designated as RPA.

(b)

The town CBPA map shows the general location of CBPAs and should be consulted by persons contemplating activities within the town prior to engaging in a regulated activity. Applicants for plan of development review and/or water quality impact assessment and approval shall make a site specific delineation of all CBPAs on site, and this delineation shall be reviewed and accepted by the administrative committee, prior to plan of development and/or water quality impact approval.

(c)

Development or redevelopment of land lying within RPAs and RMAs designated by the council shall comply with all federal, state and county erosion and sediment control requirements, best management practices and the performance standards for development or redevelopment.

(Code 1997, § 54-482; Ord. of 6-6-1969, § 8-2; Ord. of 6-20-1994; Ord. of 8-17-2009)

(a)

The administrative committee shall consist of three planning commission members, one of whom shall serve as chairperson. The members shall be appointed by the council, and their terms shall coincide with their term as planning commission members. The chairperson shall be elected by the members of the committee.

(b)

Meetings shall be held at the discretion of the chairperson or by request of both other members. Meetings shall be held in accordance with the Freedom of Information Act. Minutes of all actions taken by the committee shall be kept and reported at the next planning commission meeting.

(c)

An administrative committee and the town manager will perform joint reviews of plans subject to the provisions of this article. The committee may waive this responsibility and defer its authority to the town manager.

(d)

Plans reviewed by the committee shall be signed by the committee chairperson either as being approved or disapproved. In lieu of the committee review, the town manager shall sign those plans he reviews and approves or disapproves.

(e)

The administrative committee shall exercise judgment in determining the site-specific boundaries of CBPA component in making determinations of the application of this chapter, based on more reliable or specific information gathered from actual field evaluations of the parcel, in accordance with the plan of development requirements of section 54-489.

(Code 1997, § 54-483; Ord. of 6-6-1969, §§ 8-3(d), 8-13; Ord. of 8-17-2009)

(a)

Underlying uses. Permitted uses, special permit uses, accessory uses, and special requirements shall be as established by the underlying zoning district, unless specifically modified by the requirements set forth in this article.

(b)

Zoning permit. A zoning permit shall become null and void if the applicant fails to comply with all federal, state and county erosion and sediment control requirements, BMPs and performance standards for CBPAs.

(c)

Conflict. Should a conflict arise between this chapter and Lancaster or Northumberland County ordinances, this chapter shall take precedence.

(Code 1997, § 54-484; Ord. of 6-6-1969, § 8-3(a)—(c); Ord. of 11-15-2004; Ord. of 8-17-2009)

(a)

No more land shall be disturbed than is necessary to provide for the proposed use or development.

(1)

Land disturbance, in accordance with an approved site plan, shall be limited to 60 percent of the site and shall be clearly shown on submitted plans and physically marked on the development site.

(2)

Ingress and egress during construction shall be limited to the access point, where possible.

(b)

In order to preserve indigenous vegetation to the maximum extent practicable consistent with the proposed uses and development, all trees located outside the area of land disturbance with a DBH of six inches or more shall be preserved. Clearing within the area of land disturbance shall be limited to the construction footprint and that necessary to provide a single access, positive site drainage, water quality BMPs, and the installation of utilities; such clearing shall be determined and approved by the administrative committee.

(c)

Land development shall minimize impervious cover consistent with the use or development proposed.

(1)

In order to minimize impervious cover and promote infiltration of stormwater into the ground consistent with permitted uses and development, grid and modular pavements shall be used for any required parking area, alley, or other low-traffic driveway, unless otherwise approved by the administrative committee.

(2)

The total amount of impervious surface within an RMA shall not exceed the following:

a.

75 percent of a site in an underlying district designated as commercial or industrial under this chapter.

b.

75 percent of a site in an underlying district designated residential, conservation, or agricultural under this chapter.

(d)

Notwithstanding any other provisions of this chapter or waivers, exceptions, or exemptions thereto, any land disturbance exceeding 2,500 square feet, including construction of all single-family houses, septic tanks, and drainfields, shall comply with all of the erosion and sediment control requirements of Lancaster County.

(e)

Stormwater runoff shall be controlled by the use of water quality BMPs that achieve the following and are consistent with the water quality protection provisions of the Virginia Stormwater Management Regulations (4 VAC 3-20-10 et seq.):

(1)

For development, the post-development nonpoint source pollution runoff load shall not exceed the pre-development load based on the calculated average land cover conditions.

(2)

For redevelopment the nonpoint source pollution load shall be reduced by at least ten percent.

(3)

For redevelopment, both the pre- and post-redevelopment loadings shall be calculated by the same procedures. However, where the design data is available, the original post-development nonpoint source pollution loadings can be substituted for the existing pre-redevelopment nonpoint source pollution loadings.

(4)

The administrative committee may modify the ten percent reduction requirement for redevelopment, if:

a.

Prior construction of the existing development incorporated water quality based BMPs for stormwater runoff;

b.

The post-redevelopment nonpoint source pollution runoff load does not exceed the pre-redevelopment load;

c.

The pre-redevelopment nonpoint source pollution runoff loads were calculated and the BMPs were selected for the expressed purpose of controlling nonpoint source pollution;

d.

If the existing BMPs are structural, the applicant shall provide evidence that the structures are in good working order and performing at the designed levels of service. The administrative committee may require review of both the original, structural design and maintenance plans to verify this provision. A new maintenance agreement may be required to ensure compliance with this chapter.

(f)

Prior to authorizing grading or other on-site activities on any portion of a lot or parcel, the applicant shall obtain all wetlands permits and related water quality permits required by federal, state, and local laws and regulations and shall submit to the administrative committee evidence of such in accordance with the provisions of this chapter.

(g)

On-site sewage disposal systems located within CBPAs are regulated as follows:

(1)

All on-site sewage disposal systems not requiring a Virginia Pollutant Discharge Elimination System permit shall be pumped out at least once every five years, in accordance with the requirements of the Virginia Department of Health. Alternatives for pump-out are also permitted including the installation of a plastic filter in the outflow pipe from the septic tank as long as the filter satisfies the standards established in the Sewage Handling and Disposal Regulations under 12 VAC 5-610-10 et seq., as administered by the Virginia Department of Health. As a second alternative, owners of on-site sewage treatment systems may submit, every five years, documentation certified by a sewage handler permitted by the Virginia Department of Health that the system has been inspected and is functioning properly and does not need to be pumped out.

(2)

A reserve sewage disposal site with a capacity at least equal to that of the primary sewage disposal site shall be provided, in accordance with this Code and Lancaster County's Health Code, for all such systems located on parcels lying wholly or partially within CBPAs as identified under this chapter and the adopted CBPA map. Building or construction of any impervious surface shall be prohibited on the area of all such primary and reserve sewage disposal sites or on an on-site sewage treatment system which operates under a permit issued by the state water control board, until the structure is served by public sewer.

(3)

For any lot or parcel recorded prior to October 1, 1989, not sufficient in capacity to accommodate a reserve sewage disposal site, as determined by the local health department, no such reserve site shall be required.

(h)

Land upon which agricultural activities are being conducted shall have a soil and water quality conservation assessment that evaluates the effectiveness of existing practices pertaining to soil erosion and sediment control, nutrient management and management of pesticides, and where necessary, results in a plan that outlines additional practices needed to ensure that water quality protection is accomplished consistent with this chapter. The local soil and water conservation board shall be the plan-approving authority.

(i)

Silvicultural uses are exempt from the requirements of this article; provided they adhere to the water quality protection procedures prescribed by the state department of forestry in the January 1997 edition of Best Management Practices for Water Quality. For any silvicultural uses that do not adhere to the prescribed BMPs, the provisions of this chapter applicable to development and redevelopment shall apply.

(Code 1997, § 54-485; Ord. of 6-6-1969, § 8-4; Ord. of 8-17-2009)

(a)

The criteria given in this section shall apply specifically within RPAs and supplement the general performance standards in section 54-485.

(b)

A water quality impact assessment shall be required for any proposed land disturbance or development within an RPA. Land development may be allowed if it is water dependent or constitutes redevelopment or is a road or driveway crossing that satisfies the conditions set forth in subsection (e) of this section.

(c)

A new or expanded water-dependent facility may be allowed provided that:

(1)

It does not conflict with the comprehensive plan.

(2)

It complies with the standards set forth in section 54-485.

(3)

Any non-water-dependent component is located outside of RPAs.

(4)

Access shall be provided with the minimum disturbance necessary. Where possible, a single point of access shall be provided.

(d)

Redevelopment on isolated redevelopment sites outside of locally designated Intensely Developed Area sites shall be permitted only if there is no increase in the amount of impervious cover and no further encroachment within the RPA; and it shall conform to the stormwater management requirements outlined under section 54-485(e) and the erosion and sediment control requirements outlined under section 54-485(d).

(e)

Roads and driveways not exempt under section 54-492 may be constructed in or across RPAs, if each of the following conditions is met:

(1)

The administrative committee makes a finding that there are no reasonable alternatives to aligning the road or driveway in or across the RPA.

(2)

The alignment and design of the road are optimized, consistent with other applicable requirements of this chapter, to minimize encroachment in the RPA and adverse effects on water quality.

(3)

The design and construction of the road or driveway satisfy all applicable criteria of this chapter, including submission of a water quality impact assessment.

(4)

The administrative committee reviews the plan for the road or driveway reposed in or across the RPA in coordination with the town subdivision approval process.

(Code 1997, § 54-486; Ord. of 6-6-1969, § 8-5; Ord. of 8-17-2009)

(a)

A 100-foot buffer area shall be located adjacent to and landward of other RPA components and along both sides of any water body with perennial flow. The full buffer area shall be designated as the landward component of the RPA, in accordance with section 54-482, relating to areas of applicability for the CBPA, and any other applicable county ordinances.

(b)

The buffer area consisting of vegetation that is effective in retarding runoff, preventing erosion, and filtering nonpoint source pollution from runoff shall be retained if already present and if not, such buffer area shall be established where it does not exist. The 100-foot buffer area shall be deemed to achieve a 75 percent reduction of sediments and a 40 percent reduction of nutrients.

(c)

In order to maintain the functional value of the buffer area, indigenous vegetation may be removed subject to approval by the administrative committee, only to provide for reasonable sight lines, access paths, general woodlot management, and BMPs including those that prevent upland erosion, as follows:

(1)

Trees may be pruned or removed as necessary to provide for sight lines and vistas, provided that where removed, they shall be replaced with other vegetation that is equally effective in retarding runoff, preventing erosion, and filtering nonpoint source pollution from runoff.

(2)

Any path shall be constructed and surfaced so as to effectively control erosion.

(3)

Dead, diseased or dying trees or shrubbery and noxious weeds, such as, Johnson grass, kudzu, and multiflora rose, may be removed and thinning of trees allowed as permitted by the administrative committee pursuant to sound horticultural practices.

(4)

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

(d)

When the application of the buffer areas would result in the loss of a buildable area on a lot or parcel recorded prior to October 1, 1989, the administrative committee may permit encroachments into the buffer area in accordance with a plan of development process and the following criteria:

(1)

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

(2)

Where practicable, an area equal to the area encroaching the buffer area shall be established elsewhere on the lot or parcel in a way to maximize water quality protection and mitigate the effects of the encroachment; and

(3)

The encroachment may not extend into the seaward 50 feet of the buffer area.

(e)

When the application of the buffer area would result in the loss of a buildable area on a lot or parcel recorded between October 1, 1989, and March 1, 2002, the administrative committee may permit encroachments into the buffer area in accordance with a plan of development and the following criteria:

(1)

The lot or parcel was created as a result of a legal process conducted in conformity with the local government's subdivision regulations;

(2)

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

(3)

If the use of a best management practice (BMP) 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

(4)

The criteria in subsection (d) of this section shall be met.

(f)

Redevelopment within IDAs may be exempt from the buffer area, in accordance with applicable erosion and sediment control requirements.

(g)

On agricultural lands, the agricultural buffer area shall be managed to prevent concentrated flows of surface water from breaching the buffer area and noxious weeds from invading the buffer area. The agricultural buffer area may be encroached upon as follows:

(1)

Agricultural activities may encroach into the landward 50 feet of the 100-foot-wide buffer area when at least one agricultural best management practice which, in the opinion of the local soil and water conservation district board, addresses the more predominant water quality issue on the adjacent land; erosion control or nutrient management is being implemented on the adjacent land; provided that the combination of the undisturbed buffer area and the best management practice achieves water quality protection, pollutant removal, and water resource conservation at least the equivalent of the 100-foot-wide buffer area. If nutrient management is identified as the predominant water quality issue, a nutrient management plan, including soil test, must be developed consistent with the Virginia Nutrient Management Training and Certification Regulations (4 VAC 5-15 et seq.), administered by the state department of conservation and recreation.

(2)

Agricultural activities may encroach within the landward 75 feet of the 100-foot-wide buffer area when agricultural best management practices which address erosion control, nutrient management, and pest chemical control, are being implemented on the adjacent land. The erosion control practices must prevent erosion from exceeding the soil loss tolerance level, referred to as "T," as defined in the National Soil Survey Handbook of November 1996 in the Field Office Technical Guide of the U.S. Department of Agriculture Natural Resource Conservation Service. A nutrient management plan, including soil test, must be developed consistent with the Virginia Nutrient Management Training and Certification Regulations (4 VAC 5-15 et seq.), administered by the state department of conservation and recreation. In conjunction with the remaining buffer area, this collection of best management practices shall be presumed to achieve water quality protection at least the equivalent of that provided by the 100-foot-wide buffer area.

(3)

The buffer area is not required to be designated adjacent to agricultural drainage ditches, if the adjacent agricultural land has in place at least one best management practice, as considered by the local soil and water conservation district to address the more predominant water quality issue on the adjacent land, either erosion control or nutrient management.

(h)

When agricultural or silvicultural uses within the buffer area cease, and the lands are proposed to be converted to other uses, the full 100-foot-wide buffer area shall be reestablished. In reestablishing the buffer, management measures shall be undertaken to provide woody vegetation that ensures the buffer functions are maintained or established.

(i)

Use of an environmental planner, engineer or other expert as requested by the administrative committee for rendering assistance in the evaluation of a water quality impact assessment (WQIA) or other study, as required during the consideration of an exception to the buffer area requirements or other performance standards, shall be paid for by the applicant. The administrative committee may seek assistance for these evaluations or studies through the applicable county officials and/or state agencies.

(Code 1997, § 54-487; Ord. of 6-6-1969, § 8-6; Ord. of 8-17-2009)

(a)

The purpose of the water quality impact assessment (WQIA) is to:

(1)

Identify the impacts of proposed development on water quality and lands within CBPAs;

(2)

Ensure that where development does take place within CBPAs, it will be located in a manner that will be least disruptive to the natural functions of the CBPAs;

(3)

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

(4)

Provide for administrative relief from the terms of this chapter when warranted and in accordance with the requirements contained in this section; and

(5)

Specify mitigation, which will address water quality protection.

(b)

The applicant shall submit to the administrative committee a water quality impact assessment for:

(1)

Any proposed land disturbance or development or redevelopment within the RPA consistent with section 54-485; and

(2)

Any other land disturbance, development or redevelopment in CBPAs that may warrant such assessment because of the unique characteristics of the site or intensity of the proposed use or development.

(c)

A water quality impact assessment shall, at a minimum, include:

(1)

A site drawing to scale, which shows the following:

a.

Location of the components of the CBPAs, including the full 100-foot-wide RPA buffer area;

b.

Location and nature of any proposed encroachment into the buffer area, including but not limited to type of paving material; areas of clearing or grading; location of any structures, drives or other impervious cover; and sewage disposal systems or reserve drainfield sites; and

c.

Type and location of proposed BMPs to mitigate any proposed encroachment of the RPA.

(2)

Identification of the existing characteristics and conditions of the CBPAs.

(3)

A hydrogeological element that describes and indicates:

a.

Existing topography, soils, hydrology and geology of the site and adjacent lands;

b.

Impacts of the proposed development on topography, soils, hydrology and geology on the site and adjacent lands, including but not limited to source, location, and placement of fill material, disturbance, or destruction of wetlands;

c.

Location of and impacts on shellfish beds, submerged aquatic vegetation, and fish spawning areas;

d.

Estimation of pre- and post-development nonpoint source pollution loads in runoff;

e.

Estimation of percentage of increase in impervious surface on site and types of surfacing material used;

f.

Percentage of proposed land disturbance on the site;

g.

Anticipated duration and phasing schedule of the construction project; and

h.

Listing of all requisite permits from all applicable local, state and federal agencies.

(4)

A landscape element that identifies and describes:

a.

Location of all significant plant material on the site, including all trees six inches or greater DBH; and

b.

Limits of land disturbance.

(5)

Plant specifications are as follows:

a.

All plant materials necessary to supplement the buffer area or vegetated areas outside the impervious cover shall be installed according to standard planting practices and procedures;

b.

All supplementary or replacement plant materials shall be living and in healthy condition; plant materials shall conform to the standards of the most recent edition of the American Standard for Nursery Stock, published by the American Association of Nurserymen; and

c.

Where areas to be preserved, as designated on an approved clearing plan, are encroached, replacement of existing trees and other vegetation will be achieved at a ratio of two planted trees to one removed. Replacement trees shall be a minimum 2.5 inches caliper at the time of planting.

(6)

Vegetation maintenance is as follows:

a.

The applicant shall be responsible for the maintenance, repair and replacement of all vegetation as may be required by the provisions of this chapter; and

b.

Plant material shall be tended and maintained in a healthy growing condition and free from refuse and debris. Unhealthy, dying or dead plant materials shall be replaced during the next planting season, as required by the provisions of this chapter.

(7)

A wastewater element, where applicable, that:

a.

Includes calculations and locations of anticipated drainfield or wastewater irrigation areas;

b.

Provides justification for sewer line locations and describes construction techniques and standards;

c.

Analyzes any proposed on-site collection and treatment systems, its treatment levels, and impacts on receiving watercourses; and

d.

Describes the potential impacts of the proposed wastewater systems, including measures for mitigation.

(d)

The administrative committee may waive some of the requirements of the water quality impact assessment upon determining that they are unnecessary due to the scope and nature of the proposed development or redevelopment.

(e)

The applicant shall submit three copies of the water quality impact assessment to the administrative committee for review prior to beginning any land disturbance. The water quality impact assessment shall be certified as complete and accurate by a qualified expert such as a professional engineer prior to submission to the administrative committee.

(f)

The administrative committee may seek the review and comment of the Chesapeake Bay Local Assistance Department and any other qualified technical expertise for any water quality impact assessment.

(g)

The administrative committee shall review the water quality impact assessment and determine whether the proposed development or redevelopment conforms with and is consistent with the intent, purpose and provisions of this chapter. The administrative committee will include in the determination whether the potential impacts of the proposed development or redevelopment have been adequately mitigated. Upon determining that the impacts have not been adequately mitigated, the administrative committee shall require additional mitigation as a condition for approval of the development or redevelopment or, when mitigation cannot be adequate, shall disapprove the proposal as inconsistent with this chapter.

(Code 1997, § 54-488; Ord. of 6-6-1969, § 8-7; Ord. of 11-15-2004; Ord. of 8-17-2009)

(a)

Required. Any development or redevelopment exceeding 2,500 square feet of land disturbance shall be accomplished through a plan of development process prior to any land disturbance or the issuance of any building permit to ensure compliance with all applicable requirements of this chapter.

(b)

Elements. In addition to the requirements of any other ordinance of the town, the plan of development process shall consist of the following:

(1)

A subdivision plat that meets the requirements of this chapter and that is in accordance with the provisions of this chapter.

(2)

An environmental site assessment.

(3)

A landscaping plan.

(4)

A stormwater management plan.

(5)

An erosion and sediment control plan that meets the requirements of this chapter and that is in accordance with the provisions of the Lancaster county erosion and sediment control ordinance.

(c)

Environmental site assessment. The applicant shall submit an environmental site assessment in conjunction with a preliminary site plan or preliminary subdivision plat.

(1)

The environmental site assessment shall be drawn to scale and clearly delineate the following features located on the parcel:

a.

All RPA components listed in this chapter;

b.

All RMA components listed in this chapter.

(2)

Wetlands delineations shall be performed consistent with the procedures accepted by the U.S. Army Corps of Engineers.

(3)

The environmental site assessment shall be drawn at the same scale as the preliminary site plan or subdivision plat, and shall be certified as complete and accurate by a qualified expert, such as, a professional engineer, certified land surveyor or certified landscape architect.

(d)

Landscaping plan. The applicant shall submit a landscaping plan in conjunction with a subdivision plat. The landscaping plan shall maximize the use of indigenous vegetation and existing trees on site. All trees to be preserved on site shall be clearly shown on the plat. All clearing within the area of land disturbance shall be limited to the construction footprint and that necessary to provide a single access, positive site drainage, water quality BMPs, and the installation of utilities and shall be clearly shown on the plat.

(e)

Stormwater management plan. The applicant shall submit a stormwater management plan in conjunction with a subdivision plat.

(1)

The stormwater management plan shall contain maps, charts, graphs, tables, photographs, narrative descriptions, explanations, and citations to supporting references as appropriate to communicate the information required by this chapter. At a minimum, the stormwater management plan must contain the following:

a.

Location and design of all planned stormwater control devices;

b.

Procedures for implementing nonstructural stormwater control practices and techniques;

c.

Pre- and post-development nonpoint source pollutant loadings with supporting documentation of all utilized coefficients and calculations; and

d.

For facilities, verification of structural soundness, including a professional engineer or class IIIB surveyor certification.

(2)

Site-specific facilities shall be designed for the ultimate development of the contributing watershed based on zoning, comprehensive plans, local public facility master plans, or other similar planning documents.

(3)

All engineering calculations must be performed in accordance with procedures outlined in the current edition of the Local Virginia Stormwater Management Handbook or the Virginia Erosion and Sediment Control Handbook.

(4)

The plan shall establish a longterm schedule for inspection and maintenance of stormwater management facilities that includes all maintenance requirements and persons responsible for performing maintenance. If the designated maintenance responsibility is with a party other than the town, a maintenance agreement shall be executed between the responsible party and the town.

(f)

Erosion and sediment control plan. The applicant shall submit an erosion and sediment control plan designed in accordance with the procedures outlined in the Virginia Erosion and Sediment Control Handbook. The erosion and sediment control plan shall be submitted in conjunction with subdivision plan approval.

(g)

Final plan. Final plans for property within CBPAs shall be final plats for land to be subdivided or site plans for land not to be subdivided as required in chapter 38. Final plans for all lands within CBPAs shall include the following additional information:

(1)

Final delineation of all RPA components;

(2)

Final delineation of all RMA components;

(3)

All wetlands permits required by law; and

(4)

Any maintenance agreement deemed necessary and appropriate by the administrative committee to ensure proper maintenance and continued functionality of BMPs.

(h)

Stormwater management implementation.

(1)

All required stormwater management facilities or other specifications shall be installed and approved within 18 months of project commencement.

(2)

The applicant shall pay to the town a surety in a form satisfactory to the administrative committee in an amount equal to the cost of installation and maintenance of any required stormwater management facilities. Should the applicant fail, after proper notice, to initiate, complete or maintain appropriate actions required by the approved plan of development, the surety may be forfeited to the town. The town may collect from the applicant the amount by which the reasonable cost of required actions exceeds the amount of the surety held.

(3)

After all required actions of the approved site plan have been completed, the applicant must submit a written request for a final inspection. If the requirements of the approved plan have been completed to the satisfaction of the administrative committee, such unexpended or unobligated portion of the surety held shall be refunded to the applicant or terminated within 60 days following the receipt of the applicant's request for final inspection. The administrative committee may require a certificate of substantial completion from a professional engineer or class IIIB surveyor before making a final inspection.

(i)

Certificate of occupancy. The town shall not issue a certificate of occupancy until the complete implementation of the stormwater management plan, and all other required conditions of an approved plan of development.

(j)

Administrative responsibility. For subdivisions, the plan of development process shall be in accordance with chapter 38.

(Code 1997, § 54-489; Ord. of 6-6-1969, § 8-8; Ord. of 8-17-2009)

(a)

An owner of property subject to an administrative decision, order or requirement under this chapter may appeal by submitting a written application for review to the planning commission no later than 30 days from the rendering of such decision, order or requirement. The planning commission shall hear the appeal within 60 days after receipt of the application. The applicant, the council, the administrative committee, and any person or agency expressing an interest in the matter shall be notified by the planning commission not less than ten days prior to the date of the hearing. Published notice of the planning commission's public hearing shall state that appeals from decisions under this article may be heard. In rendering its decision, the planning commission shall consider the advice and recommendations of the administrative committee and shall reverse the administrative decision, order or requirement only upon a finding that it was inconsistent with and contrary to the provisions of this chapter.

(b)

Use of an environmental planner, engineer or other expert as requested by the planning commission for rendering assistance in the evaluation of an appeal shall be paid for by the applicant. The administrative committee may seek assistance for appeals evaluations through the applicable county officials and/or state agencies.

(Code 1997, § 54-490; Ord. of 6-6-1969, § 8-9; Ord. of 8-17-2009)

(a)

The lawful use of a building or structure which exists at the time of adoption or at the time of any amendment to this chapter, and which is not in conformity with the provisions of this chapter may be continued in accordance with article II, division 6 this chapter.

(b)

No change or expansion of use shall be allowed except that the administrative committee may administratively permit a change or expansion upon findings that there is no net increase in nonpoint source pollutant load. The applicant shall file a water quality impact assessment along with the request for a change or expansion of an existing use to a principle structure only upon a finding that:

(1)

The request is the minimum necessary to afford relief;

(2)

Granting the expansion will not confer upon the applicant any specific privileges that are denied by the article to other property owners in similar situations;

(3)

The expansion is in harmony with the purpose and intent of this article and does not result in water quality degradation;

(4)

The waiver is not based on conditions or circumstances that are self-created or self-imposed;

(5)

Reasonable and appropriate conditions may be imposed as warranted that will prevent the expansion from causing a degradation of water quality;

(6)

Other findings, as appropriate and required by the Town of Kilmarnock may be made; and

(7)

In no case shall this provision apply to accessory structures. Additions or expansions to nonconforming accessory structures may only be permitted through a formal Bay Act exception.

(c)

Any change or expansion of use that exceeds 2,500 square feet of land disturbance shall comply with all Lancaster County erosion and sediment control requirements.

(Code 1997, § 54-491; Ord. of 6-6-1969, § 8-10; Ord. of 8-17-2009)

(a)

Exemptions for utilities, railroads and public roads and facilities.

(1)

The term "public roads" is defined as a publicly owned road designed and constructed in accordance with water quality protection criteria at least as stringent as requirements applicable to the state department of transportation, including regulations promulgated pursuant to the Erosion and Sediment Control Law (Code of Virginia, § 10.1-560 et seq.) and the Virginia Stormwater Management Act (Code of Virginia, § 10.1-603 et seq.). This definition includes those roads where the state department of transportation exercises direct supervision over the design or construction activities, or both, and cases where secondary roads are constructed or maintained, or both, by a local government in accordance with the standards of the local government.

(2)

Construction, installation, operation and maintenance of electric, natural gas and fiber optic, cable and telephone transmission lines, railroads and public roads and their appurtenant structures in accordance with regulations promulgated pursuant to the Erosion and Sediment Control Law (Code of Virginia, § 10.1-560 et seq.), and the Stormwater Management Act (Code of Virginia, § 10.1-603 et seq.). An erosion and sediment control plan and a stormwater management plan approved by the state department of conservation and recreation; or local water quality protection criteria at least as stringent as the above state requirements will be deemed to constitute compliance with these regulations. The exemption of public roads is further conditioned that road alignment and design shall prevent or otherwise minimize adverse effects on water quality and encroachment in the RPA.

(b)

Construction, installation, and maintenance of water, sewer, and natural gas lines and fiber optic, cable television, and telephone owned, permitted or both, by the town of Kilmarnock or regional service authority shall be exempt from this chapter; provided that:

(1)

To the degree possible, the location of such utilities and facilities shall be outside CBPAs.

(2)

No more land shall be disturbed than is necessary to provide for the proposed utility installation.

(3)

All construction, installation and maintenance of such utilities and facilities shall be in compliance with all applicable state and federal requirements and permits and designed and conducted in a manner that protects water quality.

(4)

Any land disturbance exceeding 2,500 square feet complies with all Lancaster County erosion and sediment control requirements.

(c)

The following land disturbances in RPAs may be exempt from the criteria of this section provided that they comply with the exemptions process as contained in this section: water wells; passive recreation facilities, such as, boardwalks, trails and pathways; and historic preservation and archaeological activities. Any land disturbance exceeding an area of 2,500 square feet shall comply with the erosion and sediment control requirements of this article.

(Code 1997, § 54-492; Ord. of 6-6-1969, § 8-11; Ord. of 8-17-2009)

(a)

Any request for an exception to the requirements of this article shall be made in writing to the administrative committee and the planning commission and accompanied by a water quality impact assessment.

(b)

The Town of Kilmarnock shall notify adjacent property owners of any such exception requests and shall consider these requests in a public hearing in accordance with Code of Virginia, § 15.2-2204, except that only one hearing shall be required.

(c)

The planning commission shall review the request for an exception and the water quality impact assessment and may grant the exception if, upon consideration of the recommendations of the administrative committee, the planning commission finds:

(1)

The exception is the minimum necessary to afford relief;

(2)

Granting the exception will not confer upon the applicant any special privileges denied by this article to other property owners in the overlay district;

(3)

The exception request is not based on conditions or circumstances that are self-created or self imposed, nor does the request arise from conditions or circumstances either permitted or non-conforming that are related to adjacent parcels;

(4)

The exception request will be in harmony with the purpose and intent of the Overlay district, not injurious to the neighborhood or otherwise detrimental to the public welfare, and is not of substantial detriment to water quality; and

(5)

Reasonable and appropriate conditions are imposed which will prevent the exception request from causing a degradation of water quality.

(d)

The planning commission may impose reasonable and appropriate conditions on the granting of an exception to prevent it from causing a degradation of water quality.

(e)

If the planning commission cannot make the required findings or refuses to grant the exception, the planning commission shall return the request for an exception together with the water quality impact assessment and the written findings and rationale for the decision to the applicant.

(Code 1997, § 54-493; Ord. of 6-6-1969, § 8-12; Ord of 8-17-2009)