This article establishes the "Chesapeake Bay Preservation Area Overlay District" of King and Queen County, Virginia, pursuant to the purpose and intent set forth in Article 3.

(Ord. of 1-14-2008)

The Chesapeake Bay and its tributaries are some of the most important and productive estuarine systems in the world, providing economic and social benefits to the citizens of King and Queen County and the Commonwealth of Virginia. The health of the bay is vital to maintaining King and Queen County's economy and the welfare of its citizens.

The Chesapeake Bay waters have been degraded significantly by many sources of pollution, including nonpoint source pollution from land uses and development. Existing high quality waters are worthy of protection from degradation to guard against further pollution. Certain lands that are proximate to shorelines have intrinsic water quality value due to the ecological and biological processes they perform. Other lands have severe development constraints from flooding, erosion, and soil limitations. With proper management, they offer significant ecological benefits by providing water quality maintenance and pollution control, as well as flood and shoreline erosion control. These lands together, designated by the Board of Supervisors of King and Queen County, Virginia, as Chesapeake Bay Preservation Areas (hereinafter "CBPAs"), need to be protected from destruction and damage in order to protect the quality of water in the Bay and consequently the quality of life in King and Queen County and the Commonwealth of Virginia.

(Ord. of 1-14-2008)

A.

This district shall be in addition to and shall overlay all other zoning districts where they are applied so that any parcel of land lying in the Chesapeake Bay Preservation Area Overlay District shall also lie in one or more of the other zoning districts provided for by the zoning ordinance. Unless otherwise stated in this article, the review and approval procedures provided for elsewhere in this ordinance; in the Land Subdivision and Development Ordinance, King and Queen County, Virginia; and/or in the Erosion and Sediment Control Ordinance for the County of King and Queen, Virginia, shall be followed in reviewing and approving development, redevelopment, and uses governed by this article.

B.

This article is enacted under the authority of Section 10.1-2100 et seq. (The Chesapeake Bay Preservation Act) and Section 15.2-2283, of the Code of Virginia. Section 15.2-2283 states that zoning ordinances may "also include reasonable provisions, not inconsistent with applicable state water quality standards, to protect surface water and groundwater as defined in Section 62.1-255.

(Ord. of 1-14-2008)

The following words and terms used in these regulations have the following meanings, unless the context clearly indicates otherwise.

Agricultural lands mean those lands used for the tilling of the soil; the growing of crops or plant growth of any kind in the open, including forestry; pasturage; horticulture; dairying; floriculture; or raising of poultry and/or livestock.

Best management practices (BMP's) means a practice, or combination of practices, that are determined by a state or designated area wide planning agency to be the most effective, practical means of preventing or reducing the amount of pollution generated by nonpoint sources to a level compatible with water quality goals.

Buffer area 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 disturbance.

Chesapeake Bay Preservation Area means any land designated by the County of King and Queen pursuant to Part III of the Chesapeake Bay Preservation Area Designation and Management Regulations, 9 VAC 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, sidewalks and the area necessary for construction of such improvements.

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

Diameter at breast height 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 soils means soils (excluding vegetation) with an erodibility index (E1) from sheet and rill erosion equal to or greater than eight. The erodibility index for any soil is defined as the product of the formula RKLS/T, where 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 soils means soils with a given potential to transmit water through the soil profile. Highly permeable soils are identified as any soil having a permeability equal to or greater than six inches of water movement per hour in any part of the soil profile to a depth of 72 inches (permeability groups "rapid" and "very rapid") as found in the "National Soil Survey Handbook" of November 1996 in the "Field Office Technical Guide" of the U.S. Department of Agriculture Soil 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.

Lot coverage means the impervious area of any lot or parcel including, but not limited to buildings, drives, parking areas, sidewalks, patios, decks.

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

Nontidal wetlands mean those wetlands other than tidal wetlands that are inundated or saturated by surface or ground water 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 C.F.R. 328.3b.

Noxious weeds means weeds 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 and grading of a site and the issuance of a building permit.

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

Resource management area (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 (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 activities means forest management activities, including but not limited to the harvesting of timber, the construction of roads and trails for forest management purposes, and the preparation of property for reforestation that are conducted in accordance with the silvicultural BMP's developed and 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.

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 (i) ports; (ii) the intake and outfall structures of power plants, water treatment plants, sewage treatment plants, and storm sewers; (iii) marinas and other boat docking structures; (iv) beaches and other public water-oriented recreation areas; and (v) fisheries or other marine resources facilities.

Wetlands means tidal and nontidal wetlands.

(Ord. of 1-14-2008)

A.

The Chesapeake Bay Preservation Area Overlay District shall apply to all lands identified as Chesapeake Bay Preservation Areas (CBPAs) as designated by the Board of Supervisors of King and Queen County, Virginia, and as shown on the Chesapeake Bay Preservation Area Map for King and Queen County, Virginia. The Chesapeake Bay Preservation Area Map for King and Queen County, Virginia, together with all explanatory matter thereon, is hereby adopted by reference and declared to be a part of this article and the zoning district map for King and Queen County. The CBPAs are hereby divided into the resource protection area (RPA) and the resource management area (RMA).

(1)

The resource protection area 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; and

(d)

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

(2)

The resource management area is composed of concentrations of the following land categories:

(a)

Floodplains;

(b)

Other sensitive lands with highly permeable, highly erodible and/or hydric soils; and

(c)

Slopes greater than 15 percent.

(3)

The resource management area shall consist of land areas outside the RPA shown to be of highly permeable, highly erodible soils; provided, however, that the RMA shall consist of not less than a landward distance of 250 feet perpendicular and contiguous to the RPA.

(4)

The Chesapeake Bay Preservation Area Map and the Sensitive Land Maps for King and Queen County, Virginia, show the general locations of CBPAs and should be consulted by persons contemplating activities within King and Queen County prior to engaging in a regulated activity.

(Ord. of 1-14-2008)

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 herein.

(Ord. of 1-14-2008)

Lot size shall be subject to the requirements of the underlying zoning district(s), provided that any lot shall have sufficient areas outside the RPA to accommodate an intended development, in accordance with the performance standards in this article, when such development is not otherwise allowed in the RPA.

(Ord. of 1-14-2008)

A.

All development and redevelopment exceeding 2,500 square feet of land disturbance shall be subject to a plan of development process, including the approval of a site plan in accordance with the provisions of article 14 of this ordinance or a subdivision plat in accordance with the Land Subdivision and Development Ordinance, King and Queen County, Virginia.

B.

Development in RPAs may be allowed, subject to approval by King and Queen County, only if it (i) is water-dependent or (ii) constitutes redevelopment.

(1)

A new or expanded water-dependent facility may be allowed provided that the following criteria are met:

a.

It does not conflict with the comprehensive plan;

b.

It complies with the performance criteria set forth in this article;

c.

Any nonwater-dependent component is located outside of resource protection areas; and

d.

Access to the water-dependent facility will be provided with the minimum disturbance necessary. Where practicable, a single point of access will be provided.

(2)

Redevelopment shall be permitted in the resource protection area only if there is no increase in the amount of impervious cover and no further encroachment within the Resource Protection Area, and it shall conform to the Erosion and Sediment Control Ordinance for the County of King and Queen, Virginia, and stormwater management criteria consistent with the water quality protection provisions (4 VAC 3-20-71 et seq.) of the Virginia Stormwater Management Regulations (4 VAC 3-20-10 et seq.) shall be satisfied consistent with the stormwater requirements of this ordinance.

C.

A water quality impact assessment shall be required for any proposed land disturbance, development or redevelopment within RPAs and for any development within RMAs when required by the zoning administrator because of the unique characteristics of the site or intensity of development.

(Ord. of 1-14-2008)

In any case where the requirements of this article conflict with any other provision of the King and Queen County Code or existing state or federal regulations, whichever imposes the more stringent restrictions shall apply.

(Ord. of 1-14-2008)

A.

Delineation by the applicant. The site-specific boundaries of the resource protection area and the resource management area shall be determined by the applicant through the performance of an environmental site assessment, subject to approval by the zoning administrator and in accordance with section 3-274, (Plan of development) of this article or section 3-273, (Water quality impact assessment) of this article. The official zoning district map of King and Queen County, Virginia, the Chesapeake Bay Preservation Area Maps and the sensitive land maps for King and Queen County, Virginia, shall be used as a guide to the general location of resource protection areas and the resource management areas. Each request for any activity within the CBPAs will be determined on a site-specific basis related to the property.

B.

Delineation by the zoning administrator. The zoning administrator, when requested by an applicant wishing to construct a single-family residence, or additions to existing homes, or utility buildings, garages and other structures accessory to single-family residences, may waive the requirement for an environmental site assessment and perform the onsite delineation. The zoning administrator may use, hydrology, soils, plant species, and other data, and consult other appropriate resources as needed to perform the delineation.

C.

Where conflict arises over delineation. When the applicant provides a site-specific delineation of the RPA and RMA, the zoning administrator shall verify the accuracy of the boundary delineation. In determining the site-specific RPA or RMA boundaries, the zoning administrator may render adjustments to the applicant's boundary delineation. In the event the adjusted boundary delineation is contested by the applicant, the applicant may seek relief, as provided for elsewhere in this article or in this ordinance.

(Ord. of 1-14-2008)

A.

Purpose and intent. The performance standards establish the means to minimize erosion and sedimentation potential, reduce land application of nutrients and toxins, and maximize rainwater infiltration. Natural ground cover, especially woody vegetation, is most effective in holding soil in place and preventing site erosion. Indigenous vegetation, with its adaptability to local conditions without the use of harmful fertilizers or pesticides, filters storm water runoff. Minimizing impervious cover enhances rainwater infiltration and effectively reduces storm water runoff potential.

The purpose and intent of these requirements are also to implement the following objectives: prevent a net increase in nonpoint source pollution from new development; achieve a ten percent reduction in nonpoint source pollution from redevelopment; and achieve a 40 percent reduction in nonpoint source pollution from agricultural uses.

B.

General performance standards for development and redevelopment.

(1)

Land disturbance shall be limited to the area necessary to provide for the proposed use or development.

(a)

In accordance with an approved site plan, the limits of land disturbance, including clearing or grading, shall be strictly defined by the construction footprint. These limits shall be clearly shown on submitted plans and physically marked on the development site.

(b)

The construction footprint shall not exceed 60 percent of the lot.

(c)

Ingress and egress during construction shall be limited to one access point, unless otherwise approved by the zoning administrator.

(2)

Indigenous vegetation shall be preserved to the maximum extent practicable consistent with the proposed use or development and in accordance with the Virginia Erosion and Sediment Control Handbook.

(a)

Existing trees over six inches diameter at breast height (DBH) shall be preserved outside the construction footprint. Diseased trees or trees weakened by age, storm, fire, or other injury may be removed.

(b)

Clearing shall be allowed only to provide necessary access, positive site drainage, water quality BMPs, and the installation of utilities, as approved by the zoning administrator.

(c)

Prior to clearing or grading, suitable protective barriers, such as safety fencing, shall be erected five feet outside of the drip line of any tree or stand of trees to be preserved. These protective barriers shall remain so erected throughout all phases of construction. The storage of equipment, materials, debris, or fill shall not be allowed within the area protected by the barrier.

(3)

Land development shall minimize impervious cover to promote infiltration of storm water into the ground consistent with the proposed use or development.

(a)

Grid and modular pavements shall be used for any required parking area, alley, or other low traffic driveway, unless otherwise approved by the zoning administrator.

(b)

Parking areas and driveways shall be designed so as to minimize impervious surfaces.

(4)

Notwithstanding any other provisions of this article or exceptions or exemptions thereto, any land disturbing activity exceeding 2,500 square feet, including construction of all single-family houses, septic tanks, and drain fields, shall comply with the requirements of the erosion and sediment control ordinance for the County of King and Queen, Virginia.

(5)

All on-site sewage disposal systems not requiring an VPDES permit shall be pumped out at least once every five years, in accordance with the provisions of the King and Queen County Health Code. Note: 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 5-6-10 et. seq. as administered by the Virginia Department of Health or 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 septic system has been inspected and is functioning properly and does not need to be pumped out.

(6)

A reserve sewage disposal site with a capacity at least equal to that of the primary sewage disposal site shall be provided, in accordance with the King and Queen County Health Code. This requirement shall not apply to any lot or parcel recorded prior to October 1, 1989, if such lot or parcel is not sufficient in capacity to accommodate a reserve sewage disposal site, as determined by the local health department. Building or construction of any impervious surface shall be prohibited on the area of all sewage disposal sites or on an on-site sewage treatment system, which operates under a permit issued by the state water control board, until the structure is served by public sewer.

(7)

For any proposed use, development or redevelopment, storm water runoff shall be controlled by the use of BMP's consistent with the water quality protection provisions of the Virginia Stormwater Management Regulations (4 VAC 3-20-10 et seq.) and the Virginia Stormwater Management Handbook that achieve the following:

(a)

For development, the post-development nonpoint source pollution runoff load shall not exceed the pre-development load, based on the calculated average land cover condition for Virginia's Chesapeake Bay Watershed (0.45 pounds of phosphorus per acre per year).

(b)

For redevelopment sites, the nonpoint source pollution load shall be reduced by at least ten percent. The zoning administrator may waive or modify this requirement for redevelopment sites that originally incorporated BMP's for storm water runoff quality control, provided the following provisions are satisfied:

(i)

In no case may the post-development nonpoint source pollution runoff load exceed the pre-development load;

(ii)

Runoff pollution loads must have been calculated and the BMPs selected for the expressed purpose of controlling nonpoint source pollution; and

(iii)

If BMP's are structural, evidence shall be provided that facilities are currently in good working order and performing at the design levels of service. The zoning administrator may require a review of both the original structural design and maintenance plans to verify this provision. A new maintenance agreement shall be required to ensure compliance with this article.

(c)

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

(8)

Prior to initiating grading or other on-site activities on any portion of a lot or parcel, all wetlands permits required by federal, state, and local laws and regulations shall be obtained and evidence of such submitted to the zoning administrator.

(9)

Land upon which agricultural activities are being conducted shall have a soil and water quality conservation assessment. Such assessment shall be based upon the Field Office Technical Guide of the U.S. Department of Agriculture Natural Resources Conservation Service or the January 2001 edition of the "Virginia Agricultural BMP Manual" of the Virginia Department of Conservation and Recreation, and shall evaluate the effectiveness of existing practices pertaining to soil erosion and sediment control, nutrient management and management of pesticides, and where necessary, results in a plan that outlines additional practices that accomplish water quality protection consistent with this ordinance.

(Ord. of 1-14-2008)

To minimize the adverse effects of human activities on the other components of resource protection areas, state waters, and aquatic life, a 100-foot buffer area of vegetation that is effective in retarding runoff, preventing erosion, and filtering nonpoint source pollution from runoff shall be retained if present and established where it does not exist.

The 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 100-foot full buffer area shall be designated as the landward component of the resource protection area.

The 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 100-foot full buffer area shall be designated as the landward component of the resource protection area, in accordance with sections 3-263 (Areas of applicability) and 3-273 (Plan of development) of this article. Notwithstanding permitted uses, encroachments, and vegetation clearing, as set forth in section 3-272 and this section, the 100-foot buffer area is not reduced in width.

The 100-foot buffer area shall be deemed to achieve a 75 percent reduction of sediments and a 40 percent reduction of nutrients.

(Ord. of 1-14-2008)

The buffer area shall be maintained to meet the following additional performance standards:

A.

In order to maintain the functional value of the buffer area, indigenous vegetation may be removed only subject to approval by the zoning administrator to provide for reasonable sight lines, access paths, general woodlot management, and BMP's, including those that prevent upland erosion and concentrated flows of stormwater, as follows:

(1)

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

(2)

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

(3)

Dead, diseased, or dying trees or shrubbery and may be removed. The thinning of trees may be allowed as permitted by the zoning administrator.

(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.

B.

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, encroachments into the buffer area may be permitted through an administrative process in accordance with the requirements for a plan of development and the following criteria:

(1)

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

(2)

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

(3)

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

C.

On agricultural lands the agricultural buffer area shall be managed to prevent concentrated flows of surface water from breaching the buffer area and appropriate measures may be taken to prevent noxious weeds from invading the buffer area. Encroachments into the agricultural buffer area may be permitted 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 Three Rivers 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 Virginia Department of Conservation and Recreation.

(2)

Agricultural activities may encroach within the landward 75 feet of the 100-foot wide buffer area when agricultural BMP's which address erosion control, nutrient management, and pest chemical control, are being implemented on the adjacent land. The erosion control practices must prevent erosion from exceeding the soil loss tolerance level, referred to as "T", as defined in the "National Soil Survey Handbook" of November 1996 in the "Field Office Technical Guide" of the U. S. Department of Agriculture Natural Resource Conservation Service. A nutrient management plan, including soil test, must be developed consistent with the "Virginia Nutrient Management Training and Certification Regulations (4 VAC 5-15 et seq. administered by the Virginia Department of Conservation and Recreation. In conjunction with the remaining buffer area, this collection of BMP's 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 BMP's 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.

D.

Where land uses such as agriculture or silviculture within the area of the buffer cease and the lands are proposed to be converted to other uses, the full 100-foot buffer shall be re-established and management measures shall be under taken to provide woody vegetation that assures the buffer functions as set forth in section 3-270.

(Ord. of 1-14-2008)

A.

Purpose and intent. The purpose of the water quality impact assessment is to: (i) identify the impacts of proposed development on water quality and lands within RPAs and other environmentally-sensitive lands; (ii) ensure that, where development does take place within RPAs and other sensitive lands, it will be located on those portions of a site and in a manner that will be least disruptive to the natural functions of RPAs and other sensitive lands; (iii) protect individuals from investing funds for improvements proposed for location on lands unsuited for such development because of high groundwater, erosion, or vulnerability to flood and storm damage; (iv) provide for administrative relief from the terms of this article when warranted and in accordance with the requirements contained herein; and (v) specify mitigation which will address water quality protection.

B.

Water quality impact assessment required. A water quality impact assessment is required for: (i) any proposed use, land disturbance, development or redevelopment within an RPA, including any buffer area modification or encroachment as provided for in the performance standards in this article; and (ii) any development in a RMA as deemed necessary by the zoning administrator due to the unique characteristics of the site or intensity of the proposed development. There shall be two levels of water quality impact assessments: a minor assessment and a major assessment.

C.

Minor water quality impact assessment. A minor water quality impact assessment pertains only to development within CBPAs, which causes no more than 5,000 square feet of land disturbance and proposes any modification of or encroachment into the landward 50 feet of the 100-foot buffer area. A minor assessment must demonstrate through acceptable calculations that the undisturbed buffer area, enhanced vegetative plantings and required BMP's will result in removal of no less than 75 percent of sediments and 40 percent of nutrients from post-development storm water runoff, and that will retard runoff, prevent erosion and filter nonpoint source pollution the equivalent of the full undisturbed 100-foot buffer area. A minor assessment shall include a site drawing to scale, which shows the following:

(1)

Location of the components of the RPA, including the 100-foot buffer area.

(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 cover; and sewage disposal systems or reserve drain field sites.

(3)

Type and location of proposed BMP's to mitigate the proposed encroachment.

(4)

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

(5)

Re-vegetation plan that supplements the existing buffer vegetation in a manner that provides for pollutant removal, and erosion and runoff control.

D.

Major water quality impact assessment. A major water quality impact assessment shall be required for any development which (i) exceeds 5,000 square feet of land disturbance within CBPAs and proposes any modification or encroachment into the landward 50 feet of the 100-foot buffer area; (ii) proposes to disturb any portion of the seaward 50 feet of the 100-foot buffer area or any other component of an RPA; or (iii) is located in an RMA and is deemed necessary by the zoning administrator. The information required in this section shall be considered a minimum, unless the zoning administrator determines that some of the elements are unnecessary due to the scope and nature of the proposed use and development of land.

The following elements shall be included in the preparation and submission of a major water quality assessment:

[(1)—(3)] Reserved.

(4)

All of the information required in a minor water quality impact assessment.

(5)

A hydrogeological element that:

(a)

Describes the existing topography, soils, hydrology and geology of the site and adjacent lands.

(b)

Describes the impacts of the proposed development on topography, soils, hydrology and geology on the site and adjacent lands.

(c)

Indicates the following:

(i)

Disturbance or destruction of wetlands and justification for such action;

(ii)

Disruptions or reductions in the supply of water to wetland, streams, lakes, rivers or other water bodies;

(iii)

Disruptions to existing hydrology including wetland and stream circulation patterns;

(iv)

Source location and description of proposed fill material;

(v)

Location of dredge material and location of dumping area for such material;

(vi)

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

(vii)

Estimation of percent increase in impervious surface on site and type(s) of surfacing materials used;

(viii)

Percent of site to be cleared for project;

(ix)

Anticipated duration and phasing schedule of construction project; and

(x)

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

(d)

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

(i)

Additional proposed erosion and sediment control concepts beyond those normally required under section 3-270 of this article; concepts may include minimizing the extent of the cleared area, perimeter controls, reduction of runoff velocities, measures to stabilize disturbed areas, schedule and personnel for site inspection;

(ii)

Proposed storm water management system for nonpoint source quality and quantity control.

(6)

A landscape element that:

(a)

Identifies and delineates the location of all significant plant material on site, including all trees six inches or greater diameter at breast height or, where there are groups of trees, stands may be outlined.

(b)

Describes the impacts that the development or use will have on the existing vegetation. Information should include:

(i)

General limits of clearing, based on all anticipated improvements, including buildings, drives, and utilities;

(ii)

Clear delineation of all trees and other significant plant material which will be removed; and

(iii)

General description of vegetation to be disturbed or removed.

(c)

Describes the proposed measures for mitigation. Possible mitigation measures include:

(i)

Proposed design plan and replanting schedule for trees and other significant vegetation removed for construction, including a list of proposed plants and trees to be used;

(ii)

Demonstration that the revegetation plan supplements the existing buffer vegetation in a manner that provides for pollutant removal, erosion and runoff control;

(iii)

Demonstration that the design of the plan will preserve to the greatest extent possible any significant trees and vegetation on the site and will provide maximum erosion control and overland flow benefits from such vegetation; and

(iv)

Demonstration that indigenous plants are to be used (to the greatest extent possible.

(4)

A wastewater element, where applicable, that:

(a)

Includes calculations and locations of anticipated drain field or wastewater irrigation areas;

(b)

Provides justification for sewer line locations in environmentally sensitive areas, where applicable, and describes construction techniques and standards;

(c)

Discusses any proposed on-site collection and treatment systems, their treatment levels, and impacts on receiving watercourses; and

(d)

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

(5)

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

(6)

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

E.

Submission and review requirements.

(1)

Five copies of all site drawings and other applicable information as required by water quality impact assessments shall be submitted to the zoning administrator for review.

(2)

All information required in this section shall be certified as complete and accurate by a professional engineer or a certified land surveyor.

(3)

A minor water quality impact assessment shall be prepared and submitted to and reviewed by the zoning administrator in conjunction with the plan of development.

(4)

A major water quality impact assessment shall be prepared and submitted to and reviewed by the zoning administrator in conjunction with a request for rezoning, special use permit, or in conjunction with the plan of development, as deemed necessary by the zoning administrator.

(5)

As part of any major water quality impact assessment submittal, the zoning administrator may require review by the Chesapeake Bay Local Assistance Department (CBLAD). Upon receipt of a major water quality impact assessment, the zoning administrator will determine if such review is warranted and may request CBLAD to review the assessment and respond with written comments. Any comments by CBLAD will be incorporated into the final review by the zoning administrator, provided that such comments are provided by CBLAD within 90 days of the request.

F.

Evaluation procedures.

(1)

Upon the completed review of a minor water quality impact assessment, the zoning administrator will determine if any proposed modification of or encroachment into the buffer area is consistent with the provisions of this article and make a finding based upon the following criteria:

(a)

The necessity of the proposed encroachment and the ability to place improvements elsewhere on the site to avoid disturbance of the buffer area;

(b)

Impervious surface is minimized;

(c)

Proposed BMP's, where required, achieve the requisite reductions in pollutant loadings;

(d)

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

(e)

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

(2)

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

(a)

Within any RPA, the proposed development is water dependent or redevelopment;

(b)

The disturbance of any wetlands will be minimized;

(c)

The development will not result in significant disruption of the hydrology of the site;

(d)

The development will not result in significant degradation to aquatic vegetation or life;

(e)

The development will not result in unnecessary destruction of plant materials on site;

(f)

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

(g)

Proposed storm water management concepts are adequate to control the storm water runoff to achieve the required performance standard for pollutant control;

(h)

Proposed revegetation of disturbed areas will provide optimum erosion and sediment control benefits;

(i)

The design and location of any proposed drain field will be in accordance with the requirements of performance standards of this article;

(j)

The development, as proposed, is consistent with the purpose and intent of the Chesapeake Bay Preservation Area Overlay District; and

(k)

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

(3)

The zoning administrator shall require additional mitigation where potential impacts have not been adequately addressed. Evaluation of mitigation measures will be made by the zoning administrator based on the criteria listed above in this subsection for minor and major water quality impact assessments.

(4)

The zoning administrator shall 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 will be made by the zoning administrator based on the criteria listed in this subsection for minor and major water quality impact assessments.

(Ord. of 1-14-2008)

The plan of development process as described in this article must be followed for all development or redevelopment in CBPAs requiring a zoning permit, building permit, special exception permit, conditional use permit, wetlands permit, rezoning request, or subdivision request.

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

A.

Required information. In addition to the requirements of article 14 of this ordinance or the requirements of the subdivision ordinance, or any other related ordinances, the plan of development process shall consist of the plans and studies identified below. These required plans and studies may be coordinated or combined, as deemed appropriate by the zoning administrator. The zoning administrator may determine that some of the following information is unnecessary due to the scope and nature of the proposed development.

The following plans or studies shall be submitted, unless otherwise provided for:

(1)

A site plan or a subdivision plat;

(2)

An environmental site assessment;

(3)

A landscape plan;

(4)

A storm water management plan; and

(5)

An erosion and sediment control plan in accordance with the provisions of the erosion and sediment control ordinance for the County of King and Queen, Virginia.

B.

Site plan. A site plan shall be submitted in accordance with article 14, or a preliminary subdivision plat, in accordance with the land subdivision and development ordinance.

C.

Environmental site assessment. An environmental site assessment shall be submitted in conjunction with preliminary site plan or preliminary subdivision plan approval.

(1)

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

(a)

Tidal wetlands;

(b)

Tidal shores;

(c)

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

(d)

Boundaries of the Dragon Run Conservation District; and

(e)

A 100-foot buffer area located adjacent to and landward of the preceding components;

D.

Landscaping plan. A landscaping plan shall be submitted in conjunction with site plan approval or as part of subdivision plat approval. No clearing or grading of any lot or parcel shall be permitted without an approved landscaping plan.

Landscaping plans shall be prepared by and/or certified by a design professionals practicing within their areas of competence as prescribed by the Code of Virginia.

(1)

Contents of the plan.

(a)

The landscaping plan shall be drawn to scale and clearly delineate the location, size, and description of existing and proposed plant material. All existing trees on the site six inches or greater DBH shall be shown on the landscaping plan. Where there are groups of trees, stands may be outlined instead. The specific number of trees six inches or greater DBH to be preserved outside of the construction footprint shall be indicated on the plan. Trees to be removed to create a desired construction footprint shall be clearly delineated on the landscaping plan.

(b)

Any required buffer area shall be clearly delineated and any plant material to be added to establish or supplement the buffer area, as required by this article, shall be shown on the landscaping plan.

(c)

Within the buffer area, trees to be removed for sight lines, vistas, access paths, and BMP's, as provided for in this article, shall be shown on the plan. Vegetation required by this article to replace any existing trees within the buffer area shall also be shown on the landscaping plan.

(d)

Trees to be removed for shoreline stabilization projects and any replacement vegetation required by this article shall be shown on the landscaping plan.

(e)

The plan shall depict grade changes or other work adjacent to trees, which would affect them adversely. Specifications shall be provided as to how grade, drainage, and aeration would be maintained around trees to be preserved.

(f)

The landscaping plan will include specifications for the protection of existing trees during clearing, grading, and all phases of construction.

(2)

Plant specifications.

(a)

All plant materials necessary to supplement the buffer area or vegetated areas outside the construction footprint shall be installed according to standard planting practices and procedures.

(b)

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

(c)

Where areas to be preserved on an approved landscaping plan are encroached, replacement of existing trees and other vegetation will be achieved at a ratio of three planted trees to one removed. Replacement trees shall be a minimum three and one-half inches DBH at the time of planting.

(3)

Maintenance.

(a)

The applicant shall be responsible for the maintenance and replacement of all vegetation as may be required by the provisions of this article.

(b)

In buffer areas and areas outside the construction footprint, plant material shall be tended and maintained in a healthy growing condition and free from refuse and debris. Unhealthy, dying, or dead plant materials shall be replaced during the next planting season, as required by the provisions of this article.

E.

Storm water management plan. A storm water management plan shall be submitted as part of the plan of development process required by this article and in conjunction with site plan or subdivision plan approval.

(1)

Contents of the plan. The storm water 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 article. At a minimum, the storm water management plan must contain the following:

(a)

Location and design of all planned storm water control devices;

(b)

Procedures for implementing non-structural storm water 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 Virginia Stormwater Management Handbook.

(4)

The plan shall establish a long-term schedule for inspection and maintenance of storm water management facilities that includes all maintenance requirements and persons responsible for performing maintenance. If the designated maintenance responsibility is with a party other than King and Queen County then a maintenance agreement shall be executed between the responsible party and King and Queen County.

F.

Erosion and sediment control plan. An erosion and sediment control plan shall be submitted that satisfies the requirements of this article and in accordance with the erosion and sediment control ordinance for the County of King and Queen, Virginia in conjunction with site plan or 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 article 14 (Site plan requirements) of this ordinance.

(1)

Final plans for all lands within CBPAs shall include the following additional information:

(a)

The delineation of the resource protection area and the resource management area boundaries;

(b)

The delineation of required buffer areas;

(c)

All wetlands permits required by law; and

(d)

A maintenance agreement as deemed necessary and appropriate by the zoning administrator to ensure proper maintenance of BMP's in order to continue their functions.

(2)

Installation and bonding requirements.

(a)

Where buffer areas, landscaping, storm water management facilities or other specifications of an approved plan are required, no certificate of occupancy shall be issued until the installation of required plant materials or facilities is completed, in accordance with the approved site plan.

(b)

When the occupancy of a structure is desired prior to the completion of the required landscaping, storm water management facilities, or other specifications of an approved plan, a certificate of occupancy may be issued only if the applicant provides to King and Queen County a form of surety satisfactory to the zoning administrator in amount equal to the remaining plant materials, related materials, and installation costs of the required landscaping or other specifications and/or maintenance costs for any required storm water management facilities.

(c)

All required landscaping shall be installed and approved by the first planting season following issuance of a certificate of occupancy or the surety may be forfeited to King and Queen County.

(d)

All required storm water management facilities or other specifications shall be installed and approved within 18 months of project commencement. Should the applicant fail, after proper notice, to initiate, complete or maintain appropriate actions required by the approved plan, the surety may be forfeited to King and Queen County. King and Queen County may collect from the applicant the amount by which the reasonable cost of required actions exceeds the amount of the surety held.

(e)

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 zoning administrator, such unexpended or unobligated portion of the surety held shall be refunded to the applicant or terminated within 60 days following the receipt of the applicant's request for final inspection. The zoning administrator may require a certificate of substantial completion from a professional engineer or class III B surveyor before making a final inspection.

H.

Administrative responsibility. Administration of the plan of development process shall be in accordance with article 22 of the zoning ordinance or article 3 of the land subdivision and development ordinance of King and Queen County, Virginia.

I.

Denial of plan, appeal of conditions or modifications. In the event the final plan or any component of the plan of development process is disapproved and recommended conditions or modifications are unacceptable to the applicant, the applicant may appeal such administrative decision to the planning commission. In granting or denying an appeal, the planning commission must find such plan to be in accordance with all applicable ordinances and include necessary elements to mitigate any detrimental impact on water quality and upon adjacent property and the surrounding area, or such plan meets the purpose and intent of the performance standards in this article. If the planning commission finds that the applicant's plan does not meet the above stated criteria, they shall deny approval of the plan.

The applicant may then file with the board of zoning appeals for a variance to the requirements of this article as provided for in article 20 of this ordinance.

(Ord. of 1-14-2008)

The lawful use of a building or structure which existed on November 14, 1991, or which exists at the time of any amendment to this article, and which is not in conformity with the provisions of the Chesapeake Bay Preservation Area Overlay District may be continued in accordance with article 17 (Nonconforming uses) of this ordinance.

No change or expansion of use shall be allowed with the exception that:

A.

The zoning administrator may grant a nonconforming use and development waiver for legal principal structures on legal nonconforming lots or parcels to provide for remodeling and alterations or additions to such nonconforming structures provided that:

(1)

There will be no increase in nonpoint source pollution load; and

(2)

Any development or land disturbance exceeding an area of 2,500 square feet complies with all erosion and sediment control requirements of this article.

B.

An application for a nonconforming use and development waiver shall be made to and upon forms furnished by the zoning administrator and shall include for the purpose of proper enforcement of this article, the following information:

(1)

Name and address of applicant and property owner;

(2)

Legal description of the property and type of proposed use and development;

(3)

A sketch of the dimensions of the lot or parcel, location of buildings and proposed additions relative to the lot lines, and boundary of the resource protection area; and

(4)

Location and description of any existing private water supply or sewage system.

C.

A nonconforming use and development waiver shall become null and void 12 months from the date issued if no substantial work has commenced.

D.

An application for the expansion of a legal principal nonconforming structure may be approved by the administrator through an administrative review process provided that the following findings are made:

1.

The request for the waiver is the minimum necessary to afford relief;

2.

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

3.

The waiver 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 are imposed, as warranted, that will prevent the waiver from causing a degradation of water quality;

6.

Other findings, as appropriate and required by King and Queen County are met; and

7.

In no case shall this provision apply to accessory structures.

(Ord. of 1-14-2008)

A.

Exemptions for utilities, railroads, public roads and facilities. Construction, installation, operation, and maintenance of electric, natural gas, fiber-optic, and telephone transmission lines, railroads, and public roads and their appurtenant structures in accordance with (i) 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, § 10.1-603.1 et seq.), (ii) an erosion and sediment control plan and a stormwater management plan approved by the Virginia Department of Conservation and Recreation, or (iii) local water quality protection criteria at least as stringent as the above state requirements are deemed to comply with this article. The exemption of public roads is further conditioned on the following:

(1)

The road alignment and design has been optimized, consistent with all applicable requirements, to prevent or otherwise minimize the encroachment in the resource protection area and to minimize the adverse effects on water quality.

B.

Exemptions for local utilities and other service lines. Construction, installation, and maintenance of water, sewer, and natural gas lines, underground telecommunication and cable television owned, permitted or both, by King and Queen County or regional service authority shall be exempt from the Chesapeake Bay Preservation Area Overlay District provided that:

(1)

To the degree possible, the location of such utilities and facilities shall be outside RPAs;

(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; and

(4)

Any land disturbance exceeding an area of 2,500 square feet complies with all King and Queen County erosion and sediment control requirements.

B.

Exemptions for silvicultural activities. Silvicultural activities are exempt from the requirements of this article provided that silvicultural operations adhere to water quality protection procedures prescribed by the Virginia Department of Forestry in the January 1997 edition of "Forestry BMP's for Water Quality in Virginia" technical guide.

C.

Exemptions in resource protection areas. The following land disturbances in resource protection areas may be exempt from the Chesapeake Bay Preservation Area Overlay District: (i) water wells; (ii) passive recreation facilities such as boardwalks, trails, and pathways; and (iii) historic preservation and archaeological activities, provided that it is demonstrated that:

(1)

Any required permits, except those to which this exemption specifically applies, shall have been issued;

(2)

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

(3)

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

(4)

Any land disturbance exceeding an area of 2,500 square feet shall comply with all King and Queen County erosion and sediment control requirements.

D.

Exemption from RMA designation.

(1)

An applicant may apply to have his property made exempt from the requirements of the resource management area. An RMA limits study indicating the location, concentration, or absence of the following physical characteristics must be submitted to the zoning administrator:

(a)

Floodplain.

(b)

Highly erodible soils.

(c)

Steep slopes greater than 15 percent.

(d)

Highly permeable soils.

(e)

Hydric soils (non-tidal wetlands).

(2)

Resource management area exemption decision.

(a)

Upon receipt of the RMA limits study, the zoning administrator shall within 30 days review the study.

(b)

Once the review is completed, the zoning administrator shall then take one of the following actions:

• RPA components contiguous to or within 250 feet of any portion of the area proposed for exemption;

• RMA components located on any portion of the property proposed for exemption;

• RMA study accurately demonstrating the absence or existence of RMA components and the proximity of RPA components;

• If the RMA limits study demonstrates the existence of RMA or RPA components, then the parcel or portion of the parcel cannot be exempted from the RMA and the applicant shall be notified of the decision and the reasons therefore; or

• If the RMA limits study demonstrates the absence of the RMA component and RPA components then the owner(s) of the property shall be notified that they must cause a plat depicting the lot(s) approved for exemption to be recorded among the land records of the county prior to the issuance of any permits that would otherwise be unlawful in the RMA.

(Ord. of 1-14-2008)

A.

A request for an exception to the requirements of the Chesapeake Bay Preservation Area Overlay District shall be made in writing to the planning commission. It shall identify the impacts of the proposed exception on water quality and on lands within the RPA through the performance of a water quality impact assessment which complies with the provisions of this article.

B.

The county shall notify the affected public of any such exception requests and shall consider theses 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 with such conditions and safeguards as deemed necessary to further the purpose and intent of this article if the planning commission finds:

(1)

Granting the exception will not confer upon the applicant any special privileges that are denied by this article to other property owners in the Chesapeake Bay Preservation Area Overlay District;

(2)

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

(3)

The exception request is the minimum necessary to afford relief;

(4)

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

(5)

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

D.

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, with a copy to the board of zoning appeals. The applicant may then apply to the board of zoning appeals for a variance as provided in article 20 of this ordinance.

E.

The board of zoning appeals shall consider the water quality impact assessment and the findings and rationale of the zoning administrator in determining harmony with the intended spirit and purpose of this article.

F.

A request for an exception to the requirements of provisions of this article other than sections 3-267.B., 3-271 and 3-272 shall be made in writing to the zoning administrator. The zoning administrator may grant these exceptions provided that:

a.

Exceptions to the requirements are the minimum necessary to afford relief; and

b.

Reasonable and appropriate conditions are placed upon any exception that is granted, as necessary, so that the purpose and intent of this article is preserved.

G.

Exceptions under section 3-270.B may be made provided that the findings noted in sections 3-277.C. 1-5 are made.

(Ord. of 1-14-2008)