The City Council of the City of Virginia Beach, acting pursuant to Chapter 14 (§ 28.2-1400 et seq.) of Title 28.2 of the Code of Virginia, reordains this article regulating the use and development of coastal primary sand dunes. Whenever coastal primary sand dunes are referred to in this ordinance, such references shall also include beaches.

(Ord. No. 1805, 8-22-88; Ord. No. 1902, 8-14-89; Ord. No. 2203, 1-26-93)

For the purpose of this article:

(a)

Beach means the shoreline zone comprised of unconsolidated sandy material upon which there is a mutual interaction of the forces of erosion, sediment transport and deposition that extends from the low-water line landward to where there is a marked change in either material composition or physiographic form such as a dune, bluff or marsh, or where no such change can be identified, to the line of woody vegetation (usually the effective limit of stormwaves), or the nearest impermeable manmade structure, such as a bulkhead, revetment or paved road.

(b)

Commission means the Virginia Marine Resources Commission.

(c)

Commissioner means the commissioner of marine resources.

(d)

City means the city council of the City of Virginia Beach.

(e)

Coastal primary sand dune or dune means a mound of unconsolidated sandy soil which is contiguous to mean high water, whose landward and lateral limits are marked by a change in grade from ten (10) percent or greater to less than ten (10) percent, and upon which is growing any of the following species: American beach grass (Ammophilla breviligulata); beach heather (Hudsonia tometosa); dune bean (Strophostylis spp.); dusty miller (Artemisia stelleriana); saltmeadow hay (Spartina patens); seabeach sandwort (Arenaria peploides); sea oats (Uniola paniculata); sea rocket (Cakile edentula); seaside goldenrod (Solidago sempervirens); Japanese sedge or Asiatic sand sedge (Carex kobomugi); Virginia pine (Pinus virginiana); broom sedge (Andropogon virginicus); and short dune grass (Panicum ararum). For purposes of this article, "coastal primary sand dune" shall not include any mound of sand, sandy soil or dredge spoil deposited by any person for the purpose of the temporary storage, beach replenishment or beach nourishment, nor shall the slopes of any such mound be used to determine the landward or lateral limits of a coastal primary sand dune.

(f)

Governmental activity means any or all of the services provided by the City of Virginia Beach to its citizens for the purpose of maintaining public facilities, including but not limited to, such services as constructing, repairing and maintaining roads; providing street lights and sewage facilities; supplying and treating water; and constructing public buildings.

(g)

Sand management permit is a permit granted by the local wetlands board to allow owners of property to remove sand, deposit sand and grade the dune/beach, on nourished beaches in the City of Virginia Beach, because of an excessive accumulation of sand that affects infrastructure.

(h)

Wetlands Board or Board means the board created pursuant to section 28.2-1303 of the Code of Virginia.

(Ord. No. 1805, 8-22-88; 1902, 8-14-89; Ord. No. 2203, 1-26-93; Ord. No. 2606, 8-8-2000; Ord. No. 3041, 7-1-08; Ord. No. 3458, 8-16-16)

The following uses of and activities in dunes are authorized if otherwise permitted by law:

(a)

The construction and maintenance of noncommercial walkways which do not alter the contour of the coastal primary sand dune;

(b)

The construction and maintenance of observation platforms which are not an integral part of any dwelling and which do not alter the contour of the coastal primary sand dune;

(c)

The planting of beach grasses or other vegetation for the purpose of stabilizing coastal primary sand dunes;

(d)

The placement of sand fences or other material on or adjacent to coastal primary sand dunes for the purpose of stabilizing such features, except that this provision shall not be interpreted to authorize the placement of any material which presents a public health or safety hazard;

(e)

Sand replenishment activities of any private or public concern, provided no sand shall be removed from any coastal primary sand dune unless authorized by lawful permit;

(f)

The normal maintenance of any groin, jetty, riprap, bulkhead or other structure designed to control beach erosion which may abut a coastal primary sand dune;

(g)

The normal maintenance or repair of presently existing roads, highways, railroad beds and facilities of the United States, this Commonwealth or any of its counties or cities, or of any person, provided no coastal primary sand dunes are altered;

(h)

Outdoor recreational activities, provided that the activities do not alter the natural contour of the coastal primary sand dune or destroy the vegetation growing thereon;

(i)

The conservation and research activities of the commission, Virginia Institute of Marine Science, Department of Game and Inland Fisheries and other conservation-related agencies;

(j)

The construction and maintenance of aids to navigation which are authorized by governmental authority;

(k)

Activities pursuant to any emergency declaration by the city council of the City of Virginia Beach or the Governor of the Commonwealth or any public health officer for the purposes of protecting the public health and safety;

(l)

Governmental activity in coastal primary sand dunes owned or leased by the Commonwealth or a political subdivision thereof; and

(m)

The construction of living shoreline projects authorized pursuant to a general permit developed under Code of Virginia § 28.2-104.1B.

(Ord. No. 1805, 8-22-88; Ord. No. 2203, 1-26-93; Ord. No. 3358, 7-1-14)

(a)

Any person who desires to use or alter any coastal primary sand dune within this city, other than for the purpose of conducting the activities specified in section 1602 herein, shall first file an application for a permit with the Wetlands Board at the planning department.

(b)

An application for a permit shall be accompanied by plans and other data in reference to the proposed project. Plans shall be prepared, stamped and endorsed by such qualified professional licensed to practice in the Commonwealth as the planning director may require; provided, however, that this requirement may be waived if, in the judgment of the planning director, the nature of the work to be performed renders it unnecessary. The permit application shall include the following: the name and address of the applicant; a detailed description of the proposed activities and a map, drawn to an appropriate and uniform scale, showing the area of dunes directly affected, the location of the proposed work thereon, the area of any proposed fill and excavation, the location, width, depth and length of any disposal area, and the location of all existing and proposed structures, sewage collection and treatment facilities, utility installations, roadways, and other related appurtenances or facilities, including those on adjacent uplands; a description of the type of equipment to be used and the means of equipment access to the activity site; the names and addresses of owners of record of adjacent land; an estimate of cost; the primary purpose of the project; any secondary purposes of the project, including further projects; the public benefit to be derived from the proposed project; a complete description of measures to be taken during and after the alteration to reduce detrimental offsite effects; the completion date of the proposed work, project, or structure; and such additional materials and documentation as the Wetlands Board may require.

(c)

A nonrefundable processing fee to cover the cost of processing the application shall accompany each permit application. Such fee shall be in an amount of four hundred fifty dollars ($450.00). Such fees shall include all costs of notifications and advertising. Such fees shall apply to original applications, including after-the-fact-applications, and to re-applications. The application and re-application fee for sand management permits shall be two hundred thirty dollars ($230.00). Such fee shall include all costs of notifications and advertising. No person shall be required to file two (2) separate applications for permits if the project to be undertaken will require permits under Code of Virginia, § 28.2-1302 and this article. Under those circumstances, the fee shall be established pursuant to this article. A fee in an amount of two hundred thirty dollars ($230.00) shall be required for deferral of an application unless waived by the Board for good cause shown.

(Ord. No. 1805, 8-22-88; Ord. No. 2031, 2-12-91; Ord. No. 2152, 6-23-92; Ord. No. 2203, 1-26-93; Ord. No. 2811, 5-11-04; Ord. No. 3281, 5-14-13, eff. 7-1-13; Ord. No. 3458, 8-16-16; Ord. No. 3543, 5-15-18, eff. 7-1-18)

All applications, maps, and documents submitted shall be open for public inspection at the planning department.

(Ord. No. 1805, 8-22-88; Ord. No. 2152, 6-23-92; Ord. No. 2203, 1-26-93)

Not later than sixty (60) days after receipt of a complete application, the Wetlands Board shall hold a public hearing on the application. The applicant, city council, commissioner, owner of record of any land adjacent to the coastal primary sand dunes in question, the Virginia Institute of Marine Science, the Department of Wildlife Resources, the State Water Control Board, the Department of Transportation and any governmental agency expressing an interest in the application shall be notified of the hearing. The Board shall mail or email these notices not less than twenty (20) days prior to the date set for the hearing. The Board shall also cause notice of the hearing to be published at least once in the seven (7) days prior to such hearing in the newspaper having a general circulation in the City of Virginia Beach; (ii) post a notice of the hearing on its website at least fourteen (14) days prior to such hearing; and (iii) provide a copy of such notice to the Commission for submittal to the Virginia Regulatory Town Hall. The costs of publication shall be paid by the applicant. In the event that the board submits a correct and timely notice for publication and the newspaper fails to publish the notice or publishes the notice incorrectly, the board shall be deemed to have met the notice requirements of this subsection as long as the notice is published in the next available edition of such newspaper. The applicant shall also erect, on the property which is the subject of the hearing, a sign of a size, type and lettering approved by the board. One such sign shall be posted within ten (10) feet of every public street adjoining the property, and within ten (10) feet of any body of water or waterway less than five hundred (500) feet wide adjoining the property or in such alternate location or locations as may be prescribed by the planning director. Such sign shall be erected not less than thirty (30) days before the Wetlands Board hearing and shall state the nature of the application and date and time of the hearing. Such signs shall be removed no later than five (5) days thereafter. The placement of the required signs shall not be applicable to sand management permits. In any case in which the Wetlands Board determines that the requirements of this section have not been met, the application shall be deferred or denied.

(Ord. No. 1805, 8-22-88; Ord. No. 2152, 6-23-92; Ord. No. 2203, 1-26-93; Ord. No. 2683, 1-22-02; Ord. No. 2741, 4-22-03; Ord. No. 3458, 8-16-16; Ord. No. 3748, 7-11-23)

(a)

In acting on any application for a permit, the Board shall grant the application upon the affirmative vote of not less than four (4) members. If the application receives less than four (4) affirmative votes, the permit shall be denied.

(b)

The chairperson of the Board, or in his or her absence the acting chairperson, may administer oaths and compel the attendance of witnesses. Any person may appear and be heard at the public hearing. Each witness at the hearing may submit a concise written statement of his or her testimony. The Board shall make a record of the proceeding, which shall include the application, any written statements of witnesses, a summary of statements of all witnesses, the findings and decision of the Board, and the rationale for the decision.

(c)

The Board shall make its determination within thirty (30) days from the hearing. If the Board fails to act within that time, the application shall be deemed approved. Within forty-eight (48) hours of its determination, the Board shall notify the applicant and the commissioner of its determination. If the Board fails to make a determination within the thirty-day period, it shall promptly notify the applicant and the commission that the application is deemed approved.

(d)

If the Board's decision is reviewed or appealed, the Board shall transmit the record of its hearing to the commissioner. Upon a final determination by the commission, the record shall be returned to the Board. The record shall be open for public inspection at the planning department.

(Ord. No. 1805, 8-22-88; Ord. No. 2203, 1-26-93)

The Board may require a reasonable bond or letter of credit in an amount and with surety and conditions satisfactory to it, securing to the Commonwealth compliance with the conditions and limitations set forth in the permit. The Board may, after a hearing as provided herein, suspend or revoke a permit if the Board finds that the applicant has failed to comply with any of the conditions for limitations set forth in the permit or has exceeded the scope of the work described in the application. The Board may, after a hearing, suspend a permit if the applicant fails to comply with the terms and conditions set forth in the application.

(Ord. No. 1805, 8-22-88; Ord. No. 2203, 1-26-93)

In fulfilling its responsibilities under this article, the Board shall preserve and protect coastal primary sand dunes and beaches and prevent their despoliation and destruction. However, whenever practical, the Board shall accommodate necessary economic development in a manner consistent with the protection of these features.

(Ord. No. 2203, 1-26-93)

(a)

In deciding whether to grant, grant in modified form, or deny an application for a permit, the Board shall consider the following:

(1)

The testimony of any person in support of or in opposition to the permit application;

(2)

The impact of the proposed development on the public health and welfare; and

(3)

The proposed development's conformance with the standards prescribed in section 1608.1 of this ordinance and Section 28.2-1408 of the Code of Virginia and the guidelines promulgated by the commission pursuant to Section 28.2-1401 of the Code of Virginia.

(b)

The Board shall grant the permit if all of the following criteria are met:

(1)

The anticipated public and private benefit of the proposed activity exceeds its anticipated public and private detriment;

(2)

The proposed development conforms with the standards prescribed in section 1608.1 of this ordinance and Section 28.2-1408 of the Code of Virginia and the guidelines promulgated by the commission pursuant to Section 28.2-1401 of the Code of Virginia; and

(3)

The proposed activity does not violate the purposes and intent or Chapter 14 (§ 28.2-1400 et seq.) of Title 28.2 of the Code of Virginia.

(c)

If the Board finds that any of the criteria set forth in subdivisions (1), (2), and (3) of subsection (b) are not met, the Board shall deny the permit application but allow the applicant to resubmit the application in modified form.

(Ord. No. 1805, 8-22-88; Ord. No. 2203, 1-26-93)

No permanent alteration of or construction upon any coastal primary sand dune shall take place which would (i) impair the natural functions of the dune, (ii) physically alter the contour of the dune, or (iii) destroy vegetation growing thereon unless the Board determines that there will be no significant adverse ecological impact, or that the granting of a permit is clearly necessary and consistent with the public interest, considering all material factors.

(Ord. No. 2203, 1-26-93)

The permit shall be in writing and signed by the chairperson of the Board. A copy of the permit shall be transmitted to the commissioner.

(Ord. No. 1805, 8-22-88; Ord. No. 2203, 1-26-93; Ord. No. 3748, 7-11-23)

No permit granted by the Board shall in any way affect the applicable zoning and land use ordinances of the City of Virginia Beach or the right of any person to seek compensation for any injury in fact incurred by him because of the permitted activity.

(Ord. No. 2203, 1-26-93)

No permit shall be granted without an expiration date, established by the Board. The Board may, upon proper application, extend the permit expiration date.

(Ord. No. 1805, 8-22-88; Ord. No. 2203, 1-26-93)

Notwithstanding the provisions of sections 1601 through 1610, sand grading activities are permitted on coastal primary sand dunes located on the Atlantic shoreline of the City of Virginia Beach if otherwise permitted by law, and if the city manager has declared an emergency and has issued a permit for this purpose. Such activities may be conducted without advance notice and hearing; however, the city manager, upon request and after reasonable notice as to time and place, shall hold a hearing to affirm, modify, amend, or cancel such emergency permit. "Emergency," as used in this section, means a sudden and unforeseeable occurrence or condition, either as to its onset or as to its extent, of such disastrous severity or magnitude that governmental action beyond that authorized or contemplated by existing law is required because governmental inaction for the period required to amend the law to meet the exigency would work immediate and irrevocable harm upon the citizens of the Commonwealth or some clearly defined portion or portions thereof.

(Ord. No. 1805, 8-22-88; Ord. No. 2203, 1-26-93)

Editor's note— Ord. No. 3095, adopted July 7, 2009, repealed § 1611.1, which pertained to bulkheads, etc. in the Sandbridge Beach Subdivision and derived from Ord. No. 2715, 7-9-02.

It shall be unlawful for any person to conduct any activity which would require a permit under this article without such a permit.

(Ord. No. 1805, 8-22-88; Ord. No. 2203, 1-26-93)

In administering the provisions of this article and in order to provide appellate review, the Board shall bear all those duties and responsibilities and follow those procedures specified in Sections 28.2-1404 through 28.2-1415 of the Code of Virginia.

(Ord. No. 1805, 8-22-88; Ord. No. 2203, 1-26-93)

The Board shall have the authority to investigate all projects, whether proposed or ongoing, which alter dunes or beaches located within the City of Virginia Beach. The Board shall have the authority to prosecute all violations of its orders, or any violation of any of the provisions of this article.

(a)

The chairperson may require a permittee to implement monitoring and reporting procedures the chairperson believes are reasonably necessary to ensure compliance with the provisions of the permit and this article.

(b)

The Board chairperson may require such on-site inspections as he or she believes are reasonably necessary to determine whether the measures required by the permit are being properly performed, or whether the provisions of this article are being violated. Prior to conducting such inspections, notice shall be provided by the chairperson to the resident owner, occupier or operator, who shall be given an opportunity to accompany the site inspector. If it is determined that there is a failure to comply with the permit, the Board chairperson shall serve notice upon the permittee at the address specified in his or her application or by delivery at the site of the permitted activities to the person supervising the activities and designated in the permit to receive the notice. The notice shall describe the measures needed for compliance and the time within which these measures shall be completed. Failure of the person to comply within the specified period, constitutes a violation of this section.

(c)

Upon receipt of a sworn complaint of a substantial violation of this article, from the designated enforcement officer of the Board, the Board chairperson may, in conjunction with or subsequent to a notice to comply as specified in subsection (b) of this section, issue an order requiring all or part of the activities on the site to be stopped until the specified corrective measures have been taken. In the case of an activity not authorized by this article, or where the alleged permit noncompliance is causing, or is in imminent danger of causing, significant harm to the coastal primary sand dunes protected by this article, the order may be issued without regard to whether the person has been issued a notice to comply as specified in subsection (b) of this section. Otherwise, the order may be issued only after the permittee has failed to comply with the notice to comply. The order shall be served in the same manner as a notice to comply, and shall remain in effect for a period of seven (7) days from the date of service pending application by the enforcing authority, permittee, resident owner, occupier or operator for appropriate relief to the circuit court. Upon completion of corrective action, the order shall immediately be lifted. Nothing in this section shall prevent the Board chairperson from taking any other action specified in section 1614 of this ordinance.

(d)

Upon receipt of a sworn complaint of a substantial violation of this article from a designated enforcement officer, the Board may order that the affected site be restored to predevelopment conditions if the Board finds that restoration is necessary to recover lost resources or to prevent further damage to resources. The order shall specify the restoration necessary and establish a reasonable time for its completion. The order shall be issued only after a hearing with at least thirty (30) days' notice to the affected person of the hearing's time, place, and purpose, and shall become effective immediately upon issuance by the Board. The Board shall require any scientific monitoring plan it believes is necessary to ensure the successful reestablishment of coastal primary sand dunes protected by this article and may require that a prepaid contract acceptable to the Board be in effect for the purpose of carrying out the scientific monitoring plan. The Board may also require a reasonable bond or letter of credit in an amount and with surety and conditions satisfactory to it securing to the Commonwealth compliance with the conditions set forth in the restoration order. The circuit court, upon petition by the Board, may enforce any such restoration order by injunction, mandamus, or other appropriate remedy. Failure to complete the required restoration is a violation of this article.

(e)

The duties of the Board chairperson prescribed in this section may be delegated to his or her designees; however, such designees shall not be designated enforcement officers.

(Ord. No. 1805, 8-22-88; Ord. No. 2203, 1-26-93)

Any person who knowingly, intentionally, or negligently violates any order, rule or regulation of the commission or of the Wetlands Board, any provision of this article or any provision of a permit granted pursuant to Chapter 14 of Title 28.2 of the Code of Virginia or this article is guilty of a Class 1 misdemeanor. Following a conviction, every day the violation continues constitutes a separate offense.

(Ord. No. 1805, 8-22-88; Ord. No. 2203, 1-26-93)

In addition to and not in lieu of the provisions of sections 1613, 1614, 1615 and 1616 of this article, upon petition of the Wetlands Board to the circuit court, the court may enjoin an act which is unlawful under the provisions of this article and may order the defendant to take any steps necessary to restore, protect, and preserve the dunes or beaches involved.

(Ord. No. 1805, 8-22-88; Ord. No. 2203, 1-26-93)

(a)

Nothing in article shall affect any project or development (i) for which a valid building permit or final site plan approval was issued prior to July 1, 1980; (ii) which, if no building permit is required for such project, including a locally approved mining operation, was commenced prior to July 1, 1980, and certified as exempt by the commission or the Wetlands Board; or (ii) approved by the city council pursuant to Ordinance No. 931, which was the coastline management ordinance in effect from March 26, 1979, to July 1, 1980. Nothing in this section excludes from regulation any activity which expands or enlarges a project already in existence or under construction.

(b)

The board shall make an ongoing determination in the Sandbridge Beach subdivision of the area bounded on the north by Dam Neck Naval Base, on the west by Sandpiper Road, and on the south by Little Island Park, to determine which structures or properties are in clear and imminent danger from erosion and storm damage due to severe wave action or storm surge. The owners of structures or properties so defined shall not be prohibited from erecting and maintaining protective bulkheads or other equivalent structural improvements of a type, size and configuration approved by the board. The board shall not impose arbitrary or unreasonable conditions upon its approval of any such bulkhead or other structural improvement but shall maintain a continuing responsibility to ensure that each bulkhead or structural improvement constructed under the authority of this section is maintained in a condition which is safe, structurally sound, and otherwise in conformity with the reasonable conditions imposed by the Wetlands Board. At the time the application is submitted, the applicant shall consent in writing to any subsequent construction which may occur whereby an adjacent property owner desires to tie in a bulkhead at no additional cost with that bulkhead proposed by the applicant. Such consent shall be considered a waiver of property line defenses relating to the bulkhead line.

(Ord. No. 1805, 8-22-88; Ord. No. 2203, 1-26-93; Ord. No. 3095, 7-7-09)

(a)

Without limiting the remedies which may be obtained under this article, any person who violates any provision of this article or who violates or fails, neglects, or refuses to obey any commission or Board notice, order, rule, regulation or permit condition authorized by this article or Chapter 14 of Title 28.2 of the Code of Virginia shall, upon such finding by the circuit court, be assessed a civil penalty not to exceed twenty-five thousand dollars ($25,000.00) for each day of violation. Such civil penalties may, at the discretion of the circuit court, be directed to be paid into the treasury of the City of Virginia Beach for the purpose of abating environmental damage to or restoring dunes or beaches therein, in such a manner as the court may, by order, direct, except that in the event the City of Virginia Beach or its agent is the violator, the court shall direct the penalty to be paid into the state treasury.

(b)

Without limiting the remedies which may be obtained under this article, and with the consent of any person who has violated any provision of this article, or who has violated or failed, neglected, or refused to obey any commission or Board order, rule, regulation, or permit condition authorized by this article or Chapter 14 of Title 28.2 of the Code of Virginia, the Board may provide, in an order issued by the Board against such person, for the one-time payment of civil charges for each violation in specific sums, not to exceed ten thousand dollars ($10,000.00) for each violation. Civil charges shall be in lieu of any appropriate civil penalty which could be imposed under subsection (a) of this section. Civil charges may be in addition to the cost of any restoration ordered by the commission or Board.

(Ord. No. 2203, 1-26-93)