In accordance with the objectives of the comprehensive plan, the environmental management area overlay regulations are intended to promote the proper use, management and protection of the vast amounts of sensitive and unique lands, which contribute to the economy of the region and the environmental quality of the city and especially the Chesapeake Bay. Specifically, these provisions are intended to apply to areas designated by the city as Chesapeake Bay Preservation Areas (CBPA) pursuant to the requirements of Code of Virginia, § 62.1-44.15:67 et seq., (the Chesapeake Bay Preservation Act). The geographic information system (GIS) maps show the general location of Resource Management Areas (RMA) and Resource Protection Areas (RPA) in the CBPA and shall be consulted by persons contemplating activities in the city prior to engaging in a regulated activity. These CBPA maps, as amended, together with all explanatory matter thereon, are adopted by reference and declared to be part of this chapter.

(Ord. No. 1187, § 1, 5-24-2004; Ord. No. 1506, § 1, 9-22-2014; Ord. No. 1774, § 1, 3-25-2024)

These provisions are not necessarily to preclude development or use of such areas but rather to ensure that the types of development permitted by the underlying zoning district will be undertaken with a deliberate and professionally responsible recognition of the environmental qualities and conditions of a proposed development site. The specific purposes of the provisions are to:

(a)

Protect existing high-quality state waters;

(b)

Restore all other state waters to a condition or quality that will permit all reasonable public uses and will support the propagation and growth of all aquatic life, including game fish, which might reasonably be expected to inhabit them;

(c)

Safeguard the clean waters of the commonwealth from pollution;

(d)

Prevent any increase in pollution;

(e)

Reduce existing pollution;

(f)

Promote resource conservation in order to provide for the health, safety and welfare of the present and future citizens of the city; and

(g)

Address coastal resilience and adaptation to sea-level rise and climate change.

(Ord. No. 1187, § 1, 5-24-2004; Ord. No. 1774, § 1, 3-25-2024)

This ordinance [article] and the provisions thereof apply to all of the jurisdictional land areas of the City of Poquoson, Virginia.

(Ord. No. 1187, § 1, 5-24-2004; Ord. No. 1774, § 1, 3-25-2024)

(a) The following words and terms used in this section shall have the following meaning(s) unless the context clearly indicates otherwise:

(1)

Accessory structures or accessory uses. Include, but are not limited to, detached garages, gazebos, free-standing decks, storage buildings or tool sheds, guest houses, and similar forms of development that are customarily incidental and subordinate to the principal structure. In-ground pools, patios, terraces, tennis courts, synthetic turf, and other impermeable landings do not permit infiltration to groundwater and are considered accessory uses of land, not structures, and any modification or expansion to such a use must be reviewed and approved using a formal exception process.

(2)

Adaptation measure. A project, practice, or approach to mitigate or address an impact of climate change including sea-level rise, storm surge, and flooding including increased or recurrent flooding.

(3)

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

(4)

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

(5)

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

(6)

Canopy tree. A tree that typically reaches 35 feet in height or taller when mature.

(7)

Chesapeake Bay Preservation Area (CBPA). Any land designated by the city pursuant to the Chesapeake Bay Preservation Area designation and management regulations, 9 VAC 25-830 et seq., and Code of Virginia, § 62.1-44.15:67, et seq. The Chesapeake Bay Preservation Area consists of a resource protection area and a resource management area.

(8)

Construction footprint. 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.

(9)

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

(10)

Development review process. The process for site plan or subdivision review and building permit review to ensure compliance with Code of Virginia, § 10.2-2109, and the Poquoson City Code, prior to any clearing or grading of a site or the issuance of a building permit.

(11)

Diameter at breast height or DBH. The diameter of a tree measured outside the bark at a point four and one-half feet above ground.

(12)

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

(13)

Environmental/development plan review committee (EDPRC). A group, appointed by the city manager, charged with the review of all development plans, including, but not limited to, subdivision and commercial development.

(14)

Erosion and Sediment Control Law. Article 2.4 (Code of Virginia, § 62.1-44.15:51 et seq.) of Chapter 3.1 of Title 62.1 of the Code of Virginia.

(15)

Fill. Material such as sand, soil, gravel, or crashed stone, which is placed in an area, often to adjust elevation or create land contouring.

(16)

Floodplain. All lands designated by the Federal Emergency Management Agency (FEMA) that would be inundated by floodwater as a result of a storm event of a 100-year return interval.

(17)

Highly erodible soils. Soils (excluding vegetation) with an erodibility index (EI) from sheet and rill erosion equal to or greater than eight. The erodibility index for any soil is defined as the product of the formula RKLS/T, where 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.

(18)

Highly permeable soils. Soils 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 Soils Handbook of November 1996, in the Field Office Technical Guide to the U.S. Department of Agriculture Soil Conservation Service.

(19)

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

(20)

Infill. Utilization of vacant land in previously developed areas.

(21)

Living shoreline. A shoreline management practice that provides erosion control and water quality benefits; protects, restores, or enhances natural shoreline habitat; and maintains coastal processes through the strategic placement of plants, stone, sand fill, and other structural and organic materials. When practicable, a living shoreline may enhance coastal resilience and attenuation of wave energy and storm surge. Pursuant to Code of Virginia, § 28.2-104.1, living shorelines are recognized as the preferred alternative for stabilizing shorelines in the commonwealth. Only living shorelines shall be permitted for shoreline management unless the best available science shows that such approaches are not suitable.

(22)

Mature tree. A canopy tree with a diameter at breast height (DBH) of 12 inches or greater or an understory tree with a DBH of four inches or greater.

(23)

Nature-based solution. An approach that reduces the impacts of sea-level rise, flooding and storm events through the use of environmental processes and natural systems.

(24)

Natural resources inventory. A map drawn to scale which identifies tidal shorelines, tidal wetlands, contiguous nontidal wetlands, water bodies with perennial flow, the 100-foot RPA buffer and landward edge of the RPA; and a narrative element discussing natural resources found onsite.

(25)

Nonpoint source pollution. Includes, but is not limited to, increases in water temperature and impacts to biological processes resulting from land use activities and waterborne pollutants including sediment, nutrients such as phosphorus and nitrogen, bacteria, viruses, oxygen consuming substances, hydrocarbons such as fuels and lubricants and toxic metals such as lead, zinc, copper, toxic chemicals and chlorides.

(26)

Nontidal wetlands. 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.

(27)

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

(28)

Plan of development. Any process for site plan review in local zoning and land development designed to ensure compliance with Code of Virginia, § 62.1-44.15:74, prior to issuance of a building permit.

(29)

Principal structure. A primary structure that is necessary to use the land in the manner permitted by the underlying zoning classification.

(30)

Public road. A publicly owned road designed and constructed in accordance with water quality protection criteria at least as stringent as requirements applicable to the Virginia Department of Transportation, including regulations promulgated pursuant to (i) the Erosion and Sediment Control Law (Code of Virginia, § 62.1-44.15:51 et seq.) and (ii) the Virginia Stormwater Management Act (Code of Virginia, § 62.1-44.15:24 et seq.). This definition 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 or maintained, or both, by a local government in accordance with the standards of that local government.

(31)

Qualified professionals. A professional wetland scientist; professional hydrologist; state licensed wetland delineator; engineer; soil scientist; and geologist. This may also include individuals with specialized training as approved by the administrator.

(32)

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

(33)

Resource management area (RMA). 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. All areas within the City of Poquoson not considered RPAs are classified as RMAs.

(34)

Resource protection area (RPA). That component of the Chesapeake Bay Preservation Area comprised of land adjacent to water bodies with perennial flow that have 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.

(35)

RPA buffer. A minimum 100-foot-wide area of natural or established vegetation managed to protect other components of a RPA and state water from significant degradation due to land disturbance.

(36)

Silvicultural activities. Forest management activities, including the harvesting of timber, the construction of roads and trails for forest management purposes, and the preparation of property for reforestation that are conducted in accordance with the silvicultural best management practices developed and enforced by the state forester pursuant to 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.

(37)

Substantial alteration. Expansion or modification of a building or development which would result in a disturbance of land exceeding an area of 2,500 square feet in the RMA only.

(38)

Tidal shore (shore). Land contiguous to a tidal body of water that lies between the mean low water level and mean high water level.

(39)

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

(40)

Use. An activity on the land other than development including agriculture, horticulture and silviculture.

(41)

Understory tree. A tree that typically reaches 12 feet to 35 feet in height when mature.

(42)

Virginia Stormwater Management Act. Article 2.3 (Code of Virginia, § 62.1-44.15:24 et seq.) of Chapter 3.1 of Title 62.1 of the Code of Virginia.

(43)

Water body with perennial flow. A body of water that flows in a natural or manmade channel year-round during a year of normal precipitation. This includes, but is not limited to streams, estuaries, and tidal embayment's, and may include drainage ditches or channels constructed in wetlands or from former natural drainage ways, which convey perennial flow. Lakes and ponds, through which a perennial stream flows, are a part of the perennial stream. Generally, the water table is located above the stream bed for most of the year and groundwater is the primary source for stream flow. The methodology to determine perennial flow shall be in accordance with subsection 11.4-10(d) of this chapter.

(44)

Water-dependent facility. A development of land that cannot exist outside of the RPA and must be located near 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.

(45)

Wetlands. Includes tidal and nontidal vegetated and nonvegetated wetlands.

(Ord. No. 1187, § 1, 5-24-2004; Ord. No. 1506, § 1, 9-22-2014; Ord. No. 1774, § 1, 3-25-2024)

(a)

Natural resources inventory (NRI). An NRI, prepared and submitted in accordance with the provisions established herein, shall be required for all properties proposed for development or any land disturbing activities within the city.

(1)

The inventory shall be prepared and certified by one or more professional(s) qualified to perform environmental inventories. All inventories must include a site-specific determination of water bodies with perennial flow and the boundaries of all RPAs approved by the city engineer as required in subsection 11.4-10(d). Evidence of the professional qualifications of the person preparing the inventory shall be submitted as a part of the inventory. Subdivisions and site plans affected through the subdivision and site plan ordinances shall comply fully with the terms of this section.

(2)

The inventory shall contain a plan sheet drawn to a scale of 1:200 or less, which clearly depicts the site-specific extent and location of tidal shorelines, tidal wetlands, contiguous nontidal wetlands, water bodies with perennial flow, the 100-foot RPA buffer and landward edge of the RPA. Cowardin wetland classifications shall be included.

(3)

Wetland delineations shall be performed in accordance with the procedures specified in the most recently approved edition(s) of the 1987 U.S. Army Corps of Engineers Wetlands Delineation Manual and applicable regional supplements for coastal plain (2010) area.

(4)

The inventory shall also contain a narrative element which describes and defines the relative values of the natural resources present, including flora and fauna, and detailing the methods and procedures proposed to be utilized to ensure protection of the resources and environmental values provided, however, that the detail(s) required shall be limited to those which are related to the features defined in subsection (2) above which are found to be present on the site.

(5)

The inventory shall be submitted to the zoning administrator for review and approval concurrent with the submission of applications for review and approval of site or subdivision plans or applications for land disturbing or erosion and sediment control permits or building permits. The zoning administrator shall not approve the submitted documents unless the natural processes and ecological relationships inherent in the site shall have been identified and an assessment of the impact of the proposed development on these processes and relationships shall be made and considered by the zoning administrator in consultation with any other deemed appropriate by the zoning administrator. The approved NRI shall be used by the zoning administrator for the approval, denial and/or modification of site plans or subdivision plans.

(6)

Any proposed development activities (including those of less than 2,500 square feet) with impacts to the RPA buffer require approval by the Administrator and an NRI shall be required.

(b)

Water quality impact assessments (WQIA). A WQIA is required for any land disturbance proposed within the RPA. The purpose of the water quality impact assessment is to: (i) identify the impacts of proposed land disturbance, development or redevelopment on water quality and lands in RPAs and other environmentally sensitive lands; (ii) ensure that, where land disturbance, development or redevelopment does take place within RPAs and other sensitive lands, it will occur 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) to protect individuals from investing funds for improvements proposed for location on lands unsuited for such development because of high groundwater, erosion, or vulnerability to flood and storm damage; (iv) provide for administrative relief from terms of this article when warranted and in accordance with the requirements contained herein; and (v) specify mitigation which will address water quality protection and/or climate change, including sea-level rise, storm surge, and flooding including increased or recurrent flooding. A water quality impact assessment shall be required (i) for any proposed land disturbance, development or redevelopment activity within a 100-foot RPA buffer area as permitted consistent with section 11.4-9 of this article, (ii) for any buffer encroachment as provided for in section 11.4-9(e) of this article; (iii) for any other development in RMA as deemed necessary by the City of Poquoson due to the unique site characteristics or intensity of the proposed use or development.

There shall be two levels of water quality impact assessment: a minor assessment and a major assessment.

(1)

Minor water quality impact assessment. A minor WQIA shall be required for any proposed land disturbance, development, or redevelopment activity, or is located solely in an RMA when deemed necessary by the City of Poquoson due to the unique site characteristics or intensity of the proposed use, development or land disturbance. A minor assessment shall include site drawings to scale and narrative which includes the following:

a.

Location of the components of the RPA, including the 50-foot buffer area and 100-foot RPA buffer area;

b.

Location and nature of the proposed encroachment into the buffer area, including type of paving material, areas of clearing or grading, location of any structures, drives, or other impervious cover, and sewage disposal systems or reserve drain field sites;

c.

Type and location of proposed BMPs to mitigate the proposed encroachment;

d.

Area of land disturbance within the RPA in square feet;

e.

Location of existing vegetation onsite, including the number (or square footage) and type of trees and other vegetation to be removed in the buffer to accommodate the encroachment or modification;

f.

Demonstration that the design of the plan will preserve to the greatest extent possible any significant trees and vegetation on the site;

g.

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

h.

The use of indigenous plants to the greatest extent possible;

i.

An assessment of the potential impacts of climate change and sea-level rise, including storm surge and flooding, on buffer function from development into the RPA within the next 30 years. Such assessment shall be based on the RPA as delineated at the time of the proposed land development and is required in addition to all other requirements of this and other local ordinances. The assessment shall include:

1.

A scaled drawing including:

i.

Field-delineation of the RPA buffer boundary

ii.

Clearly marked area of the proposed encroachment at the time of application.

2.

Site map(s) utilizing the information available from acceptable models to identify potential impacts on the project from:

i.

Projected sea-level rise;

ii.

Storm surge (Category 2); and

iii.

Flooding based upon the most updated special flood hazard area (SFHA) and the limit of moderate wave action (LiMWA)on the project site.

3.

Preferred model is the AdaptVA Interactive Map maintained by the Virginia Institute of Marine Science (VIMS) and the required projected timeframe for impact analysis shall be 30 years.

4.

Other acceptable models include the flood zone mapping used by the Virginia Flood Risk Information System (VFRIS), which included the flood insurance rate maps, flood insurance studies, and associated models produced by the Federal Emergency Management Agency (FEMA) and available on the Virginia Department of Conservation and Recreation (DCR) website.

5.

A narrative assessing the potential impacts of the proposed land development on buffer function including loss of riparian buffer vegetation and vegetation migration; water migration; as well as the potential impacts resulting in additional future land disturbance or development in the RPA connected to the proposed land development. Alternative design scenarios that were considered and the logic leading to the selected alternative may be requested by the city on a case-by-case basis.

6.

The narrative shall identify conditions, alterations, or adaptation measures for the proposed land development to address any potential impacts as necessary and appropriate based upon site conditions, including the nature, type, and size of the proposed land development; extent of potential impacts; and the necessity to minimize future land disturbance. Allowable adaptation measures shall comply with the requirements of section 11.4-9(a)(6) of this Code.

7.

The city may determine that a timespan of less than 30 years is appropriate due to the lifespan, scope and nature of the proposed use and development of land. Documentation should include the proposed construction methods and materials, design specifications, anticipated maintenance, and other relevant information in support of the proposed timespan reduction. If approved, The City of Poquoson may impose appropriate conditions to address the shortened timespan.

8.

During the review of a WQIA, the City of Poquoson shall, as necessary and appropriate, require conditions such as alterations to project location or design, or a requirement for the installation of adaptation measures on a project specific basis to mitigate the anticipated impacts.

j.

A WQIA is not required for a living shoreline project, as defined in Code of Virginia, § 28.2-104.1, approved by the wetlands board following the requirements in chapter 34, article IV of the city Code. The project must minimize land disturbance and maintain or reestablish a native vegetative buffer inland of the living shoreline and comply with the fill conditions in section 11.4-9(a)(6) of this Code.

(2)

Major water quality impact assessment (MWQIA). A major water quality impact assessment shall be required for any proposed development which (i) exceeds 5,000 square feet of land disturbance and proposes to encroach into the landward 50 feet of the 100-foot RPA buffer area; or (ii) proposes to disturb any portion of the seaward 50 feet of the 100-foot buffer area or any other component of an RPA; (iii) is associated with a request for rezoning, or special use permit when deemed necessary by the City of Poquoson, or (iii) is located solely in a RMA when deemed necessary by the City of Poquoson due to the unique site characteristics or intensity of the proposed use, development, or land disturbance. The information required in this section shall be considered a minimum, unless the City of Poquoson determines that some of the elements are unnecessary due to the scope and nature of the proposed use and development of land. A major assessment shall contain the following information:

a.

All of the information required in a minor water quality impact assessment, as specified in section 11.4-5(b)(1);

b.

A hydrogeological element that:

1.

Describes the existing topography, soils, and hydrology of the site.

2.

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

3.

Indicates the following:

i.

Disturbance or removal 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 of and description of proposed fill material;

v.

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

vi.

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

(a)

Additional proposed erosion and sediment control concepts beyond those normally required may include the following: minimizing the extent of cleared area; perimeter controls; reduction of runoff velocities; measures to stabilize disturbed areas; schedule and personnel for site inspection;

(b)

Proposed stormwater management system for nonpoint source quality and quantity control;

(c)

Submission and review requirements.

(1)

One paper copy and one digital copy of site drawings and other applicable information as required by subsections (a) and (b) above shall be submitted to the City of Poquoson for review.

(2)

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

(3)

A water quality impact assessment shall be prepared and submitted for review by the City of Poquoson when land disturbance within the RPA is proposed.

(4)

As part of any major water quality impact assessment submittal, the City of Poquoson may require review by the Virginia Department of Environmental Quality (DEQ) Office of Watersheds and Local Government Assistance Programs. Upon receipt of a major water quality impact assessment, the City of Poquoson may request office of watersheds and local government assistance programs to review the assessment and respond with written comments. Any comments by the office of watersheds and local government assistance programs will be incorporated into the final review by the City of Poquoson, provided that such comments are provided by office of watersheds and local government assistance programs within 90 days of the request.

(5)

All final plans of development, and subdivision plats, shall include:

a.

The depiction of field-delineated limits of the 100-foot RPA buffer.

b.

The depiction of field-delineated limits of streams, tidal wetlands, tidal shores and nontidal wetlands as approved by the ACOE and/or Virginia DEQ.

c.

Evidence of all permits for impacts to wetlands and streams as required by law prior to the commencement of grading or other onsite activities.

d.

Notation that:

1.

"The 100-foot vegetated RPA buffer shall remain undisturbed in accordance with this chapter. Permitted uses within the RPA, including the 100-foot buffer, are limited to redevelopment or water dependent facilities as determined by the zoning administrator unless otherwise approved by the board of zoning appeals or environmental development plan review committee."

2.

"Under this chapter, the lots shown hereon are subject to having sewage disposal systems pumped out every five years. The primary and the 100 percent reserve sewage disposal sites cannot be altered by construction or excavation."

3.

"All areas on the parcel outside of the resource protection area boundary are designated as resource management areas."

d.

The depiction of the buildable areas that are allowed on each lot based on the performance criteria required here, and local front and side yard setback requirements, and any other relevant easements or limitations regarding lot coverage.

(d)

Evaluation procedure.

(1)

Upon the completed review of a water quality impact assessment, the City of Poquoson will determine whether any proposed encroachment into or disturbance within the RPA is consistent with the provisions of this article and make a finding based upon the following criteria:

a.

Any proposed land disturbance, development or redevelopment activity within a 100-foot RPA buffer area is permitted consistent with section 11.4-9, development criteria for RPAs, of this article;

b.

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

c.

Impervious surfaces and vegetative disturbance are minimized;

d.

Proposed mitigation and/or adaptation measures, including the revegetation plan and site design, result in minimal disturbance to all components of the RPA, including the 100-foot buffer area;

e.

Proposed mitigation and/or adaptation measures will work to retain all buffer area functions: pollutant removal, erosion and runoff control;

f.

Proposed best management practices, where required, achieve the requisite reductions in pollutant loadings;

g.

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;

h.

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

i.

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

j.

Proposed revegetation of disturbed areas will provide optimum erosion and sediment control benefits, as well as runoff control and pollutant removal equivalent of the full 100-foot undisturbed buffer area;

k.

The development is consistent with the spirit and intent of the overlay district;

l.

A water quality impact assessment must demonstrate that the undisturbed buffer area, enhanced vegetative plantings and any required best management practices will result in the removal of no less than 75 percent of sediments and 40 percent of nutrients from post-development stormwater runoff and that will retard runoff, prevent erosion, and filter nonpoint source pollution the equivalent of the full undisturbed 100-foot buffer area.

(2)

The City of Poquoson shall require additional mitigation where potential impacts have not been adequately addressed. Evaluation of mitigation measures will be made by the City of Poquoson based on the criteria listed above and in subsections (b)(1) and (b)(2).

(3)

The City of Poquoson 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 City of Poquoson based on the criteria listed in subsections (b)(1) and (b)(2).

(Ord. No. 1187, § 1, 5-24-2004; Ord. No. 1450, § 1, 2-11-2013; Ord. No. 1774, § 1, 3-25-2024)

Proposed development or redevelopment within the city shall be planned and undertaken in accordance with the following criteria, depending on the type(s) of natural features and resources present on the site:

(a)

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

(1)

The limits of land disturbance, including limits of clearing or grading shall be strictly defined by the approved site plan, construction plan, or individual site location plan for a parcel. These limits shall be clearly shown on submitted plans and physically marked on the development site.

(2)

Ingress and egress during construction shall be limited to the approved access point(s).

(3)

Soils with a moderate to high shrink-swell potential as identified in the soil survey of the Cities of Hampton, Poquoson, Newport News and Portsmouth, Virginia and limitations to development as addressed by the city's comprehensive plan shall be noted on the development plan and accompanied by a geotechnical report with recommendations concerning structural support of any proposed buildings and any ameliorating actions necessary prior to development.

(b)

Indigenous vegetation shall be preserved to the maximum extent practicable consistent with the proposed use or development. Mature trees shall be protected during development and only removed where necessary, including to provide for the proposed use or development.

(1)

Existing trees over two inches DBH outside the limits of land disturbance shall be preserved in accordance with the approved site plan, construction plan or individual site location plan for a parcel. Diseased trees or trees weakened by age, storm, fire, or other injury may be removed.

(2)

Site clearing for construction activities shall be allowed as approved by the administrator through the plan of development review process under section 11.4-6 (d) of this chapter. Land disturbance shall not occur within ten feet of the drip line of any stand of trees to be preserved. Protective barriers shall remain so erected throughout all phases of construction. The storage of equipment, materials, debris, or fill shall not be allowed within RPA and/or the area protected by the barrier.

(3)

Clear cutting of trees within the RPA shall not be permitted. However, the zoning administrator may permit selected thinning or harvesting of trees located within the RMA only, based upon best timber management practices and in accordance with an approved plan of development. The provision shall not be deemed to preclude cutting or thinning necessitated by disease or infestation and recommended by the Virginia Department of Forestry.

(c)

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

(d)

All development exceeding 2,500 square feet of land disturbance shall be accomplished through a plan of development review process consistent with Code of Virginia, § 15.2-2286.A.8 and subdivision 1 e of 9 VAC 25-830-240.

(e)

Any Chesapeake Bay Preservation Area land disturbance activity as defined in Code of Virginia, § 62.1-44.15:24 or the provisions of chapter 34, article V. Stormwater management of the Code of Ordinances of the city shall comply with the Virginia Stormwater Management Regulations (9VAC25-870-51 and -103 et seq).

(f)

All on-site sewage treatment systems not requiring a Virginia Pollution Discharge Elimination System (VPDES) permit shall have pump-out accomplished for all such systems at least once every five years.

(1)

In lieu of providing proof of septic tank pump-out every five years, owners of onsite sewage treatment systems may submit documentation every five years, certified by an operator or onsite soil evaluator licensed or certified under Chapter 23 (Code of Virginia, § 54.1-2300 et seq.) of Title 54.1 of the Code of Virginia as being qualified to operate, maintain, or design onsite sewage systems, that the septic system has been inspected, is functioning properly, and the tank does not need to have the effluent pumped out of it.

(2)

For new construction not served by public sewer or other system requiring a VPDES permit provide a reserve sewage disposal site with a capacity at least equal to that of the primary sewage disposal site. This reserve sewage disposal site requirement shall not apply to any lot or parcel recorded prior to October 1, 1989, if the lot or parcel is not sufficient in capacity to accommodate a reserve sewage disposal site, as determined by the local health department. Building shall be prohibited on the area of all sewage disposal sites until the structure is served by public sewer or an onsite sewage treatment system that operates under a permit issued by the department. All sewage disposal site records shall be administered to provide adequate notice and enforcement.

(g)

Land upon which agricultural activities are being conducted shall have a soil and water quality conservation assessment conducted that evaluates the effectiveness of existing practices pertaining to soil erosion and sediment control, nutrient management, and management of pesticides, and, where necessary, results in a plan that outlines additional practices needed to ensure that water quality protection is being accomplished consistent with the Chesapeake Bay Preservation Act and this chapter. Such assessment shall be based upon the standards set forth in the January 1999 in the Field Office Technical Guide of the U.S. Department of Agriculture Natural Resource Conservation Service or the June 2000 edition of the Virginia Agricultural BMP Manual of the Virginia Department of Conservation and Recreation and accomplish water quality protection consistent with this ordinance.

(1)

Recommendations for additional conservation practices need address only those conservation issues applicable to the tract or field being assessed. Any soil and water quality conservation practices that are recommended as a result of such an assessment and are subsequently implemented with financial assistance from federal or state cost-share programs must be designed consistent with cost-share practice standards set forth in the January 1999 Field Office Technical Guide of the U.S. Department of Agriculture Natural Resource Conservation Service or the June 2000 edition of the Virginia Agricultural Best Management Practices (BMP) Manual of the Virginia Department of Conservation and Recreation, respectively, and accomplish water quality protection consistent with this ordinance. Unless otherwise specified in this section, general performance standards pertaining to the various agricultural conservation practices being assessed shall be as follows:

(a)

For erosion and sediment control recommendations, the goal shall be, where feasible, to 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. However, in no case shall erosion exceed the soil loss consistent with an alternative conservation system as defined in the Field Office Technical Guide of the U.S. Department of Agriculture Natural Resource Conservation Service.

(b)

For nutrient management, whenever nutrient management plans are developed, the operator or landowner must provide soil test information, consistent with the Virginia Nutrient Management Training and Certification Regulations (4 VAC 50-85).

(c)

For pest chemical control, referrals shall be made to the local cooperative extension agent or an Integrated Pest Management Specialist of the Virginia Cooperative Extension Service. Recommendations shall include copies of applicable information from the Virginia Pest Management Guide, or other extension materials related to pest control.

(2)

A higher priority shall be placed on conducting assessments of agricultural fields and tracts adjacent to RPA's. However, if the landowner or operator of such a tract also has RMA fields or tracts in his operation, the assessment for that landowner or operator may be conducted for all fields or tracts in the operation. When such an expanded assessment is completed, priority must return to RPA fields and tracts.

(3)

The findings and recommendations of such assessments and any resulting soil and water quality conservation plans will be submitted to a local soil and water conservation district board, which will be the plan-approving authority.

(h)

General performance criteria for wetlands:

(1)

Wetland delineations shall be performed in accordance with the methods specified in the U.S. Army Corps of Engineers Wetland Delineation Manual, 1987, as it may be amended from time to time and verified by U.S. Army Corps of Engineers (ACOE).

(2)

All provisions of chapter 25, Wetlands, Code of Ordinances of the city, shall be observed where applicable.

(i)

All construction within flood hazard areas shall be in accordance with the requirements of chapter 42, floods, Code of Ordinances of the city; Section 3107, the Uniform Statewide Building Code; and any special requirements of the National Flood Insurance Program applicable to such area.

Prior to initiating grading or other on-site development activities on any portion of a lot or parcel, all wetland permits required by federal, state and city laws and regulations shall be obtained and evidence of such submitted to the zoning administrator. Lot size shall be subject to the requirements of the underlying zoning district(s) as defined in articles IV—X. II of appendix A of the Code of the City of Poquoson, Virginia, provided however, that any newly created lot shall have sufficient area outside the RPA to accommodate the intended development and associated land disturbance in full accordance with performance standards in this section, when such intended development is not otherwise allowed in the RPA. For any new subdivision, where BMP(s), stormwater or retention facilities are required, they must be situated on a commonly owned lot with an appropriate maintenance agreement required.

(Ord. No. 1774, § 1, 3-25-2024)

Editor's note— Ord. No. 1774, § 1, adopted March 25, 2024, amended § 11.4-6 in its entirety, in effect repealing and reenacting said § 11.4-6 to read as set out herein. The former § 11.4-6 pertained to special performance standards and derived from Ord. No. 1187, § 1, adopted May 24, 2004; Ord. No. 1220, § 1, adopted June 27, 2005; Ord. No. 1506, § 1, adopted Sept. 22, 2014; Ord. No. 1541, § 1, adopted April 11, 2016.

In addition to the general performance criteria set forth in section 11.4-6, the criteria in this section are applicable in RPAs.

(a)

Land development. Land development in RPAs may be allowed subject to approval by the City of Poquoson only if it:

(1)

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

a.

It does not conflict with the city's comprehensive plan.

b.

It complies with the performance criteria set forth in this section.

c.

Any nonwater-dependent component is located outside of the RPA.

d.

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

(2)

A new use established pursuant to section 11.4-9(e) of the ordinance.

(3)

Redevelopment shall be permitted in the RPA only if there is no increase in the amount of impervious cover and no further encroachment within the RPA and it shall conform with all erosion and sediment control measures and stormwater management criteria set forth in the Erosion and Sediment Control Law and the Virginia Stormwater Management Act and their attendant regulations, as well as all applicable stormwater management requirements of other state and federal agencies.

(4)

Roads and driveways (not exempt under section 11.4-13 of this article) may be constructed in or across RPAs if each of the following conditions is met:

a.

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

b.

The alignment and design of the road or driveway are optimized, consistent with other applicable requirements, to minimize:

1.

Encroachment in the RPA; and

2.

Adverse effects on water quality.

c.

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

d.

The City of Poquoson reviews the plan for the road or driveway proposed in or across the RPA in coordination with local site plan, subdivision and plan of development approvals.

(5)

Flood control and stormwater management facilities that drain or treat water from multiple development projects or from a significant portion of a watershed may be allowed in RPAs, provided such facilities are allowed and constructed in accordance with the Virginia Stormwater Management Act and its attendant regulations, and provided that:

a.

The city has conclusively established that location of the facility within the RPA is the optimum location;

b.

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

c.

The facility must be consistent with a comprehensive stormwater management plan that has been developed and approved in accordance with 9 VAC 25-870-92 of the Virginia Stormwater Management Program (VSMP) regulations;

d.

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

e.

Approval must be received from the City of Poquoson prior to construction; and

f.

Routine maintenance is allowed to be performed on such facilities to ensure that they continue to function as designed.

g.

It is not the intent of this subdivision to allow a best management practice that collects and treats runoff from only an individual lot or some portion of the lot to be located within an RPA.

(6)

Adaptation measures to mitigate or address an impact of climate change including sea-level rise, storm surge, and flooding including increased or recurrent flooding shall be permitted in the RPA. The adaptation measure shall:

a.

Be a nature-based solution adaptation measure that uses environmental processes, natural systems, or natural features, is appropriate for site conditions, and is:

1.

A best management practice (BMP) approved by the Chesapeake Bay Program Partnership;

2.

An approved Virginia Stormwater BMP listed in the Virginia Stormwater BMP Clearinghouse;

3.

An approved shoreline protection strategy in accordance with the Tidal Wetlands Guidelines as determined by the Virginia Marine Resource Commission; or

4.

A project that is an eligible activity for funding by the Virginia Community Flood Preparedness Fund as determined by the Virginia Department of Conservation and Recreation.

b.

Be designed, installed, and maintained in accordance with the applicable adaptation measure specifications in accordance with the type of the adaptation measure identified in section 11.4-9(a)(6) a. above.

c.

Allow for the use of fill only under the following conditions:

1.

The grading and slope created by the use of fill shall be no greater than necessary based upon the project specifications and implemented in a manner that minimizes the impact of run-off. Slopes should be ten percent or less. Slopes less than or equal to five percent or that convey sheet flow of velocities less than 1.5 feet/second are preferred, to reduce runoff and tidal wave energies. The City of Poquoson may allow steeper slopes on a case-by-case basis based upon site conditions and adaptation measure specifications and require supporting calculations, additional engineering plans, independent review, or other information in support of the proposed slope.

2.

The fill must have the necessary biogeochemical characteristics, including sufficient organic content, to support the growth of vegetation and adequate permeability to allow infiltration consistent with the project specifications. Proposed depth, extent, and type of fill material must be specified.

3.

The use of fill shall not enhance stormwater runoff from the RPA, and any lateral flow onto adjacent properties shall be controlled.

4.

Any impacts on the management of stormwater upland of the RPA created by the use of fill shall be mitigated as necessary.

5.

The use of fill shall not negatively impact septic systems and drain fields; and

6.

The use of fill shall be consistent with any applicable federal or state law, including floodplain management requirements in 44 CFR Part 60.

d.

Maximize preservation of existing natural vegetation including mature trees and minimize land disturbance consistent with the adaptation measure specifications.

e.

Comply with all federal, state, and local requirements including any required permits and conditions.

f.

Nothing in this provision shall be construed to authorize approval or allowance of an adaptation measure in contravention of floodplain management requirements, including the National Flood Insurance Program and established floodplain ordinances, or construed to require the City of Poquoson to approve or allow an adaptation measure in contravention of its participation in the National Flood Insurance Program Community Rating System.

(b)

A WQIA in accordance with section 11.4-5(b) shall be required for any proposed land disturbance within the RPA.

(c)

RPA buffer requirements. The 100-foot-wide buffer area shall be the landward component of the RPA as set forth in section 11.4-10(a). Notwithstanding permitted uses, encroachments, and vegetation clearing, as set forth in this section, the 100-foot-wide buffer area is not reduced in width.

(1)

To minimize the adverse effects of human activities on the other components of the RPA, state waters, and aquatic life, a 100-foot-wide 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. Where such buffer must be established, the planting of trees shall be incorporated as appropriate to site conditions and in such a manner to maximize the buffer function. Replanting shall be consistent with the tables in appendix A of the Riparian Buffers Modification and Mitigation Manual, latest version.

(2)

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

(3)

Where land uses such as agriculture or silviculture within the area of the buffer cease and the lands are proposed to be converted to other uses, the full 100-foot-wide buffer shall be reestablished. In re-establishing the buffer, management measures shall be undertaken to provide woody vegetation that assures the buffer functions set forth in this article are provided. Where such buffer must be reestablished, the planting of trees shall be incorporated as appropriate to site conditions and in such a manner to maximize the buffer function. Inclusion of native species in tree planting is preferred.

(4)

Existing vegetation in the RPA buffer area shall not be cleared or disturbed except as provided in section 11.4-9(a) and (d) and with the prior approval of the administrator.

(d)

Permitted modifications of the buffer area.

(1)

In order to maintain the functional value of the buffer area, existing vegetation may be removed as indicated under subsections a.—d. below, subject to approval by the City of Poquoson, only to provide for reasonable sight lines, access paths, general woodlot management, and best management practices including those that prevent upland erosion and concentrated flows of stormwater, as follows:

a.

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. Mature trees shall be preserved and trimmed or pruned in lieu of removal as site conditions permit and any removal should be limited to the fewest number of trees feasible. When trees are removed to provide for sight lines and vista, they shall be replaced with trees as appropriate to site conditions and in such a manner as to maximize the buffer function and to protect the quality of state waters. Inclusion of native species in tree replanting is preferred.

b.

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

c.

For approved 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. Mature trees shall be removed only as necessary for the installation and maintenance of the projects consistent with the best available technical advice, project plans, and applicable permit conditions or requirements. Trees shall be utilized in the project when vegetation is being established as appropriate to the site conditions and the project specifications. Inclusion of native species in tree planting is preferred.

d.

Dead, diseased or dying trees, or trees damaged by storm or other acts of nature, and/or shrubbery and noxious weeds (such as Johnson grass, Kudzu, or Multiflora Rose) may be removed and thinning of trees may be allowed, pursuant to sound horticultural practice incorporated into locally adopted standards.

(e)

Permitted encroachments into the buffer area.

(1)

When the application of the RPA buffer would result in the loss of a buildable area on a lot or parcel legally created prior to October 1, 1989, the zoning administrator may permit encroachment into the buffer area in accordance with the following criteria:

a.

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

b.

Where practicable, a vegetated area that will maximize water quality protection, mitigate the effects of the buffer encroachment, and is equal to the area of encroachment into the buffer area shall be established elsewhere on the lot or parcel. Such vegetated area where established shall include the planting of trees as appropriate to site conditions. Inclusion of native species in tree planting is preferred.

c.

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

(2)

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, encroachments into the buffer area may be allowed through an administrative process in accordance with the following criteria:

a.

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

b.

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

c.

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

d.

The criteria in section 11.4-9(e)(1). of this section shall be met.

(3)

Nothing contained herein shall be construed to prevent an RPA area from being used to fulfill minimum open space standards required elsewhere in this ordinance.

(f)

Agricultural lands.

(1)

On agricultural lands the agricultural buffer area shall be managed to prevent concentrated flows of surface water from breaching the buffer area and appropriate measures may be taken to prevent noxious weeds (such as Johnson grass, kudzu, and multiflora rose) from invading the buffer area. Agricultural activities may encroach into the buffer area as follows:

a.

Agricultural activities may encroach into the landward 50 feet of the 100-foot wide buffer area when at least one agricultural best management practice which, in the opinion of the local soil and water conservation district board, addresses the more predominant water quality issue on the adjacent land—erosion control or nutrient management—is being implemented on the adjacent land, provided that the combination of the undisturbed buffer area and the best management practice achieves water quality protection, pollutant removal, and water resource conservation at least the equivalent of the 100-foot wide buffer area. If nutrient management is identified as the predominant water quality issue, a nutrient management plan, including soil tests, must be developed consistent with the Nutrient Management Training and Certification Regulations (4VAC50-85) administered by the Virginia Soil and Water Conservation Board.

b.

Agricultural activities may encroach within the landward 75 feet of the 100-foot-wide buffer area when agricultural best management practices which address erosion control, nutrient management, and pest chemical control, are being implemented on the adjacent land. The erosion control practices must prevent erosion from exceeding the soil loss tolerance level, referred to as "T," as defined in the National Soil Survey Handbook of November 1996 in the Field Office Technical Guide of the U.S. Department of Agriculture Natural Resource Conservation Service. A nutrient management plan, including soil tests, must be developed, consistent with the Nutrient Management Training and Certification Regulations (4VAC50-85) administered by the Virginia Soil and Water Conservation Board. 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.

c.

The buffer area is not required to be designated adjacent to agricultural drainage ditches if at least one best management practice which, in the opinion of the local soil and water conservation district board, addresses the more predominant water quality issue on the adjacent land—either erosion control or nutrient management—is being implemented on the adjacent land.

d.

If specific problems are identified pertaining to agricultural activities that are causing pollution of the nearby water body with perennial flow or violate performance standards pertaining to the vegetated buffer area, the local government, in cooperation with soil and water conservation district, shall recommend a compliance schedule to the landowner and require the problems to be corrected consistent with that schedule. This schedule shall expedite environmental protection while taking into account the seasons and other temporal considerations so that the probability for successfully implementing the corrective measures is greatest.

e.

In cases where the landowner or the landowner's agent or operator has refused assistance from the local soil and water conservation district in complying with or documenting compliance with the agricultural requirements of this chapter, the district shall report the noncompliance to the local government. The local government shall require the landowner to correct the problems within a specified period of time not to exceed 18 months from their initial notification of the deficiencies to the landowner. The local government, in cooperation with the district, shall recommend a compliance schedule to the landowner. This schedule shall expedite environmental protection while taking into account the seasons and other temporal considerations so that the probability for successfully implementing the corrective measures is greatest.

(Ord. No. 1774, § 1, 3-25-2024)

Editor's note— Ord. No. 1774, § 1, adopted March 25, 2024, amended § 11.4-9 in its entirety, in effect repealing and reenacting said § 11.4-9 to read as set out herein. The former § 11.4-9 pertained to use regulations and derived from Ord. No. 1187, § 1, adopted May 24, 2004; Ord. No. 1220, § 2, adopted June 27, 2005.

(a)

Resource protection areas. Resource protection areas (RPA) consist 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 cause significant degradation to the quality of state waters. The RPA includes tidal wetlands, tidal shores, nontidal wetlands connected by surface flow and contiguous to tidal wetlands or water bodies with perennial flow and a buffer area of not less than 100 feet located on both sides of any water bodies with perennial flow and adjacent to the landward side of the other components listed herein.

(b)

Resource management areas. The resource management area (RMA) includes all other land within the city.

(c)

CBPA map. The GIS maps, as amended, show the general location of the RPA and associated 100-foot buffer. The maps shall be consulted by persons contemplating activities in the city prior to engaging in a regulated activity. However, a site-specific refinement of the RPA must be made pursuant to the following subsections (d) and (e).

(d)

Delineation by the applicant. The site-specific boundaries of the RPA limits including the 100-foot buffer shall be provided by the applicant as part of, or prior to, the zoning application or plan review processes, or during the review of a water quality impact assessment pursuant to section 11.4-5(b), the applicant shall conduct a reliable, site-specific perennial flow evaluation to determine whether water bodies on or adjacent to the proposed development site have perennial flow. The determination of perennial flow may be accomplished by the use of an approved and recognized, scientifically valid method using field indicators of perennial flow. The applicant shall provide one paper copy and one digital copy of the report to the city engineer for review. The RPA boundaries for the site shall then be adjusted, as necessary, based on this evaluation. Such site-specific delineation shall be performed by a professional qualified to do such analyses and delineations. Evidence of professional qualifications of the person preparing the analysis and delineation shall be submitted as a part of natural resources inventory and RPA delineations. Survey is to be done, plotted, and sealed by a surveyor licensed in the Commonwealth of Virginia.

(e)

Where conflict arises over delineation. Where the applicant has provided a site-specific delineation of the RPA boundaries, the city engineer will verify the accuracy of the boundary delineation. In determining the site-specific RPA boundaries, the city engineer may render adjustments to the applicant's delineation, based on the environmental features listed in section 11.4-10(a).

If the applicant desires to contest the adjusted boundary delineation, the applicant may seek an exception, in accordance with the provisions of this chapter.

(Ord. No. 1774, § 1, 3-25-2024)

Editor's note— Ord. No. 1774, § 1, adopted March 25, 2024, amended § 11.4-10 in its entirety, in effect repealing and reenacting said § 11.4-10 to read as set out herein. The former § 11.4-10 pertained to interpretation of resource protection area and resource management area boundaries and derived from Ord. No. 1187, § 1, adopted May 24, 2004.

Editor's note— Ord. No. 1774, § 1, adopted March 25, 2024, repealed § 11.4-12, which pertained to RPA buffer requirements and derived from Ord. No. 1187, § 1, adopted May 24, 2004; Ord. No. 1220, § 3, adopted June 27, 2005; Ord. No. 1241, § 1, adopted Jan. 23, 2006.

(a)

Exemptions for public utilities, railroads, public roads and facilities.

(1)

Construction, installation, operation and maintenance of electric, gas, fiber-optic, telephone transmission lines, railroads and public roads and their appurtenant structures in accordance with the regulations promulgated pursuant to the Erosion and Sediment Control Law (Code of Virginia, § 62.1-44.15:51 et. seq.) and the Stormwater Management Act (Code of Virginia, § 62.1-44.15:24 et. seq.), (i) an erosion and sediment control plan and a stormwater management plan approved by the Virginia Department of Environmental Quality, or local water quality protection criteria at least as stringent as the above state requirements will be deemed to constitute compliance with this chapter. The exemption of public roads is further conditioned on the following:

a.

Optimization of the road alignment and design, consistent with other applicable requirements, to prevent or otherwise minimize:

1.

Encroachment in the RPA; and

2.

Adverse effects on water quality.

(2)

Construction, installation and maintenance of water, sewer, natural gas, underground telecommunications and cable television lines owned, permitted or both by the city or regional service authority shall be exempt from the criteria in this part provided that:

a.

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

b.

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

c.

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

d.

Any land disturbance exceeding an area of 2,500 square feet shall comply with all erosion and sediment control regulations approved by the city engineer.

(b)

Exemptions in RPAs. Water wells, passive recreation facilities such as boardwalks, trails and pathways and historic preservation and archeological activities located in RPAs may be exempted from the provisions of this section provided that it is demonstrated to the satisfaction of the zoning administrator that:

(1)

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

(2)

Sufficient and reasonable proof is submitted to establish that the intended use will not cause a deterioration in 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 will comply with chapter 9, erosion and sediment control ordinance.

(c)

Nonconforming structures and development waivers. The lawful use, but not necessarily the expansion, of any building or structure which existed on November 15, 1991 may be continued, provided:

(1)

The environmental/development plan review committee (EDPRC) may grant a development waiver for the use or modification of primary structures to provide for remodeling and alterations to such nonconforming structures provided that:

a.

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

b.

Any development or land disturbance exceeding an area of 2,500 square feet complies with all erosion and sediment control requirements of chapter 34, article III.

(2)

This shall not be construed to prevent the reconstruction of pre-existing structures within Chesapeake Bay Preservation Areas from occurring as a result of casualty loss unless otherwise restricted by the city.

(3)

An application for a nonconforming development waiver shall be made to the EDPRC accompanied by an application fee of $25.00 and for the purpose of proper enforcement of this section, the following information:

a.

Name and address of applicant and property owner;

b.

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

c.

A sketch of the dimensions of the lot or parcel, location of buildings and proposed modifications relative to the lot lines, and boundary of the RPA confirmed by a licensed professional engineer or the designee of the zoning administrator.

d.

The application fee will be adjusted annually, as necessary, to reflect the consumer price index as determined by the federal government rounded to the next dollar,

(4)

A nonconforming development waiver or exception shall become null and void 12 months from the date issued if no substantial work, as determined by the zoning administrator, has commenced.

(5)

The EDPRC shall use the same criteria in the waiver review process as applied in sections 11.4-6 of this article.

(6)

In the event of denial of waiver by the EDPRC, an application for an appeal to the requirements of this ordinance shall be made in writing to the board of zoning appeals in accordance with the formal exception requirements set forth in section 11.4-13(d) of this article.

(d)

Exceptions. A request for an exception to [sections] 11.4-6 and 11.4-9 shall be made in writing to the board of zoning appeals, and contain the information required in section 11.4-5 of this ordinance. The board of zoning appeals shall review the application for an exception with supporting documents upon receipt of a $520.00 application fee. The application fee will be adjusted annually, if necessary, to reflect the consumer price index as determined by the federal government rounded to the next dollar. The board of zoning appeals may grant such relief as it deems consistent with the purpose and intent of the Chesapeake Bay Preservation Act provided that the board of zoning appeals finds:

(1)

The exception request is not based upon conditions or circumstances that are self-created or self-imposed. The exception must pertain to alleviating requirements imposed by the implementation of the ordinance and shall not afford a special privilege or mere convenience sought by the applicant.

(2)

The physical characteristics of the property and/or existing development must be such that, in the opinion of the board, there exists no other reasonable option or location outside of the required RPA buffer area.

(3)

The exception request shall be the minimum necessary to afford relief.

(4)

Reasonable and appropriate conditions shall be proposed in order to maintain or reduce the predevelopment pollutant loading index of the property. The proposed development shall not effectively increase the pollutant loading index.

(5)

The exception request shall be consistent with the purpose and intent of the overlay district, and not injurious to the neighborhood, detrimental to the public welfare, or of substantial detriment to water quality.

(6)

Granting the exception will not confer upon the applicant any special privileges that are denied by this part to other property owners who are subject to its provisions and who are similarly situated.

(7)

No exception shall be granted until after public notice is given and after a single hearing is conducted as required by Code of Virginia, § 15.2-2204. Notice to adjacent property owners may be given by first-class mail.

(8)

Exceptions to provisions other than [sections] 11.4-6 and 11.4-9 may be granted, provided that:

a.

Exceptions to the criteria shall be the minimum necessary to afford relief; and

b.

Reasonable and appropriate conditions upon any exception granted shall be imposed, as necessary, so that the purpose and intent of the Act is preserved.

(9)

A request for an exception to the requirements shall be made in writing to the board of zoning appeals as provided for in article I, section 1-4 of the zoning ordinance. The board of zoning appeals shall identify the impacts of the proposed request on water quality and on lands within the RPA through the review of a natural resources inventory and a water quality impact assessment which complies with the provisions of section 11.4-5. The inventory assessment shall be submitted by the applicant at the time of application. Exception requests must include the following information:

a.

The assessment of climate change and sea-level rise as outlined in section 11.4-5(b)(1)i.

b.

Any proposed filling within the RPA shall meet the requirements of section 11.4-9(a)(6)c.

(10)

Additions and modifications to existing legal principal structures may be processed through an administrative review process as allowed by subsection 11.4-13(c) of this section, subject to the findings required by section 11.4-13(d) but without a requirement for a public hearing. This provision shall not apply to accessory structures.

(11)

If the board of zoning appeals cannot make the required findings or refuses to grant the exception, the board of zoning appeals shall return the request for the exception, together with other submitted documents, and rationale for the decisions to the applicant.

(12)

In granting an exception, the board of zoning appeals may impose reasonable and appropriate conditions, as the board deems necessary to further the purpose and intent of the section and the Chesapeake Bay Preservation Act.

(13)

Reviews of appeals may be taken from any decision of the board rendered under this article to the circuit court pursuant to established law.

(Ord. No. 1187, § 1, 5-24-2004; Ord. No. 1220, § 4, 6-27-2005; Ord. No. 1345, § 3, 11-9-2009; Ord. No. 1506, § 1, 9-22-2014; Ord. No. 1540, § 1, 4-11-2016; Ord. No. 1652, § 1, 8-10-2020; Ord. No. 1774, § 1, 3-25-2024)

If any part or parts, section or subsection, sentence, clause, or phrases and these regulations is for any reason held to be unconstitutional or invalid such decision shall not affect the validity of the remaining portions hereof.

(Ord. No. 1187, § 1, 5-24-2004; Ord. No. 1774, § 1, 3-25-2024)

Whenever the provisions and these regulations impose a greater restriction or higher standards than are required by any statute, local ordinance or regulation, the provisions of these regulations shall govern. Whenever the provision of any other statute, local ordinance or regulation may pose a greater restriction or higher standard than are required by these regulations, the provisions of such statute, local ordinance or regulation shall govern.

(Ord. No. 1187, § 1, 5-24-2004; Ord. No. 1774, § 1, 3-25-2024)