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19930928 1993-41ORDINANCE NO. 1993-41 AN ORDINANCE TO AMEND AND REORDAIN ARTICLE II, DIVISION 12 OF CHAPTER 26 OF THE CODE OF THE CITY OF FAIRFAX, VIRGINIA CONCERNING EROSION AND SEDIMENT CONTROL. WHEREAS, it is good zoning practice to amend the zoning text to reflect current state regulations and policies, and WHEREAS, in the interest of public welfare, the City seeks to protect against the loss of property and degradation of the environment due to soil erosion, flooding, or sedimentation NOW, THEREFORE, be it ordained by the City Council of the City of Fairfax, Virginia, that Article II, Division 12 of the Code of the City of Fairfax, Virginia, is hereby amended to read in its entirety as follows: Division 12. Erosion and Sediment Control .Section 26-91. Purpose. The purpose of this division is to provide that adequate control measures are taken to prevent the erosion, flooding, overflow of storm water, and uncontrolled drainage from land being subdivided or developed during the period of site preparation, development or construction, and thereafter; to provide temporary and permanent safeguards on all land proposed for development where unstable slopes, highly erodible or other unusual soil conditions exist or will be created during the course of development or construction; to provide soil conservation practices specifically designed for the protection of said lands from erosion, flooding, siltation or sedimentation resulting from the exposure of the soil during the period of site clearance, development or construction; and to provide for the establishment of temporary engineering structures and agronomy practices to prevent erosion and sedimentation. Section 26-92. Definitions. For the purposes of this division, the following words and phrases shall have the meanings respectively ascribed to them by this section unless the context clearly indicates otherwise: Agreement in lieu of a plan. A contract between the plan-approving authority and the owner which specifies soil erosion and sediment control measures which must be implemented in the construction of a single-family residence. When permitted, this contract may be executed by the plan- approving authority in lieu of a formal site plan. Erosion impact area An area of land not associated with current land-disturbing activity but subject to persistent soil erosion resulting in the delivery of sediment onto neighboring properties or into state waters. This definition shall not apply to any lot or parcel of land of ten thousand (10,000) square feet or less used for residential purposes or to shorelines where the erosion results from wave action or other coastal processes. Land disturbing activity. Any land change which, by affecting the contour of any lot, parcel or tract of land in any zoning district by grading, filling, excavating, or the removal or destruction of a portion of the natural topsoil or trees or other vegetative cover, may result in soil erosion from water or wind and the movement of sediments into state waters or onto lands in the state or city including, but not limited to, clearing, grading, excavating, transporting and filling of land. Owner. The owner or owners of the freehold of the premises or lesser estate therein, a mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee, lessee or other person, firm or corporation in control of a property. 1993-41 -2 permittee. The person to whom the permit authorizing land-disturbing activities is issued or the person who certifies that the approved erosion and sediment control plan will be followed. Person. Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public, or private institution, utility, cooperative, county, city, town, or other political subdivision of the Commonwealth, any interstate body, or any other legal entity. Plan-approving authority. The director of public works, or his designee, is hereby appointed to serve as the agent of the city responsible for approving soil erosion and sediment control plans and otherwise administering this division. ~ All waters on the surface and under the ground wholly or partially within or bordering the Commonwealth or within its jurisdiction. .Section 26-93. Permits. It shall be unlawful for any person to engage in land-disturbing activities of two thousand, five hundred (2,500) square feet or more for any purpose until a permit is issued by the plan-approving authority, adequate soil erosion and sediment control measures are utilized as approved by the plan- approving authority and the activity is allowed in the zoning district in which it is located. The following activities, however, are exempt from the requirement for a permit provided the activity is allowed in the zoning district in which it is located: (a) Minor land-disturbing activities such as home gardens and individual home landscaping, repairs and maintenance work. (b) Individual service connections. (c) Installation, maintenance or repair of any underground public utility lines when such activity occurs on an existing hard-surfaced road, street or sidewalk provided such land- disturbing activity is confined to the area of the road, street or sidewalk which is hard- surfaced. (d) Septic tank lines or drainage fields unless included in an overall plan for land-disturbing activity relating to construction of the building to be served by the septic tank system. (e) Surface or deep mining. (0 Exploration or drilling for oil and gas including the well site, feeder lines, roads and off-site disposal areas. (g) Tilling, planting or harvesting of agricultural, horticultural or forest crops or products, livestock feed lot operations, or engineering operations such as the construction of terraces, terrace outlets, check dams, desilting basins, floodwater-retarding structures, channel improvements, floodways, dikes, ponds, ditches and the like; the utilization of strip cropping, lister furrowing, contour cultivating, and contour furrowing; land drainage; land irrigation; seeding and planting of waste, sloping, abandoned or eroded lands to water-conserving and erosion-preventing plants, trees and grasses; forestation and reforestation; rotation of crops; soil stabilization with trees, grasses, legumes, and other thick-growing, soil-holding crops; retardation of runoff by increasing absorption of rainfall; and retirement from cultivation of steep, highly erosive areas and areas now badly gullied or otherwise eroded. (h) Repair or rebuilding of the tracks, rights-of-way, bridges, communication facilities and other related structures and facilities of a railroad company. (i) Installation or maintenance of fence and sign posts or telephone and electric poles and other kinds of posts or poles. (J) Emergency work to protect life, limb or property, and emergency repairs. If the land- disturbing activity would have required an approved erosion and sediment control plan in the absence of an emergency, then the disturbed land area shall be shaped and 1993-41 -3 (k) stabilized as required by the plan-approving authority in accordance with Section 26-96. Any project undertaken by a state agency involving a land-disturbing activity that has been approved by the Virginia Soil and Water Conservation Board. Reserved. Section 26-95. Plan re_quired for i~suance of permit. (a) No person shall engage in any land disturbing activity and no permit for such activity shall be issued until the plan-approving authority approves a soil erosion and sediment control plan for the land disturbing activity prepared and certified by an engineer or land surveyor. This plan may be contained on a separate sheet or included with the drainage or grading plan. (b) Whenever a land-disturbing activity is proposed to be conducted by a person performing work pursuant to a construction contract, the preparation, submission and approval of the required erosion and sediment control plan shall be the responsibility of the owner of the land. (c) The land-disturbing activities involving lands which extend into the jurisdiction of another local erosion and sediment control program shall be approved by the Virginia Soil and Water Conservation Board or each jurisdiction where the land is located, and shall comply with the requirements of Section 26-97 concerning an installation and maintenance agreement and bond. (d) Where the land-distributing activity results from the construction of a single-family residence, an agreement in lieu of a plan may be substituted for an erosion and sediment control plan if such an agreement is approved by the plan-approving authority. (e) In order to prevent further erosion on an area of land identified as an erosion impact area, the plan-approving authority may require approval of a soil erosion and sediment control plan. Section 26-96. Standards for approval of plan. (a) Within 45 days of receipt of a soil erosion and sediment control plan, the plan-approving authority shall either approve or disapprove the plan in writing according to the standards set forth herein. In addition, the provisions of Section 26-97 must be met to gain plan approval. If a plan is not approved, the plan-approving authority shall specify the modifications, terms, and conditions that will permit approval of the plan and communicate these requirements to the applicant in writing. If no action is taken by the plan-approving authority within the time specified above, the plan shall be deemed approved and the permit issued. (b) Plans submitted for approval under this chapter shall to be prepared in accordance with the Virginia Erosion and Sediment Control Regulations VR625-02-00, and any amendments and revisions thereto, and the guidelines contained in the current edition of the Virginia Erosion and Sediment Control Handbook, and any amendments and revisions thereto, both of which are hereby adopted as part of this chapter. (c) The conservation criteria, standards and specifications which must be followed in developing and implementing an erosion and sediment control plan are those contained in the Virginia Erosion and Sediment Control Regulations VR625-02-00, and any amendments and revisions thereto, and the current edition of the Virginia Erosion and Sediment Control Handbook, and any amendments and revisions thereto, both of which are hereby adopted as part of this chapter. (d) cases: An approved plan may be changed by the plan-approving authority in the following (1) (2) Where inspection has revealed the inadequacy of the plan to satisfy applicable regulations and to accomplish the erosion and sediment control objective of the plan, and appropriate modifications to correct the deficiencies of the plan are specified by the plan-approving authority; or Where the owner, permittee, or person responsible for carrying out the plan, finds that because of changed circumstances or for other compelling reasons, 1993-41 -4 the approved plan cannot be effectively implemented, and proposed amendments to the plan, consistent with the requirements of this division, are agreed to by the plan-approving authority and the owner, permittee, or person responsible for carrying out the plan. Section 26-97. Installation and maintenance agreement and bond (a) Prior to approval of the plan, the owner or his agent must execute and submit an agreement in form and substance as approved by the city to establish the measures provided for on the plan for the control of siltation and erosion, together with a cash bond, to be deposited and held in escrow by the city. No interest shall be paid by the city for any funds held in escrow. The agreement and bond shall be provided to insure the installation, maintenance and performance of the approved measures and in the agreement the owner or his agent must certify that he will properly perform the conservation measures included in the plan and conform to the provisions of this division. The bond shall be in the amount of the estimated cost of such measures as determined by the plan-approving authority. If the plan-approving authority takes conservation action due to the failure of the owner or his agent to perform such measures as included in the approved plan or to conform to this division, the plan-approving authority may collect from the owner additional funds should the cost of such action exceed the security held. The adequacy, conditions and acceptability of the bond shall be determined by a bond committee appointed by the city manager. In any case where the bond committee rejects any such agreement or bond, the owner or his agent may appeal from such decision to the city council, provided the owner or his agent has paid to the city the required filing fee. (b) Upon adequate stabilization of the work for which the city has issued a permit and received a bond as required by this division, the owner or his agent may apply to the plan-approving authority in writing for a certificate of completion and discharge of the unexpended or unobligated such bond. If the work is found by the plan-approving authority to conform to the approved plan and other applicable regulations and city ordinances, he shall issue the certificate within sixty (60) days of receipt of the application. Section 26-98. Review and inspection fee required. An erosion and sediment control review and inspection fee consistent with the schedule of rates and levies adopted by the city council shall be paid to the city at the time of submission of plans to the plan-approving authority. Section 26-99. Permit not to authorize changes in floodplain. Approval of the plan shall not be construed to authorize the construction or alteration of any structure within the floodplain or to authorize any filling, grading, or other change of the contour of the floodplain without such permit, authorization or approval as may be required by this chapter. Section 26-100. Monitoring, Reports and Inspections. The plan-approving authority, shall periodically inspect land disturbing activities for compliance with the approved plan and permit. The owner, permittee, or person responsible for carrying out the plan shall be given notice of inspections. a. Monitoring and reports may be required by the plan-approving authority of the owner, permittee, or person responsible for carrying out the plan to ensure compliance with the plan and that the measures required in the plan are effective in controlling erosion and sediment. b. Upon determination of a failure to comply with the plan, the plan-approving authority shall serve notice by certified or registered mail to the address specified in the permit application or by hand delivery to the owner, permittee, or person responsible for carrying out the plan, specifying the measures needed for plan compliance and the time within which the measures must be completed. Failure to comply within the specified time may result in revocation of the permit at which time the notified individual shall be deemed to be in violation of this division. c. Regardless of the requirement for notice in subsection b, if land disturbing activities begin without an approved plan, the plan-approving authority may issue an order requiring all land 1993-41 -5 disturbing activities be stopped until an approved plan and required permits are obtained. If the alleged violator has not obtained an approved plan and required permits within seven (7) days from the service date of the order, the plan-approving authority shall issue an order to the owner requiring that all construction and other work on the site, other than corrective measures, be stopped until an approved plan and required permits are obtained. The order shall be served upon the owner by registered or certified mail to the address specified in the permit application or the city land records. The order shall be lifted immediately upon completion of corrective action and obtaining plan approval and required permits. The owner may appeal the issuance of an order to the circuit court of Fairfax County. In addition, if the alleged activity is in imminent danger of causing harmful erosion of lands or sediment deposition in waters within the watersheds of the Commonwealth, the plan-approving authority may issue an order requiring that all land disturbing activities be stopped regardless of the notice requirement of subsection b. above. d. Unless the violation is causing or is in imminent danger of causing harmful land erosion or sediment deposition in waters within the watersheds of the Commonwealth, or land disturbing activities occurred without an approved plan and required permits, an order to stop work shall only be issued after the alleged violator failed to comply with a notice to comply sent according to subsection b. The order may require that all or part of the land-disturbing activities be stopped until the specified corrective measures have been taken. The order shall be served by certified mail or hand delivery and shall remain in effect for seven (7) days from the date of service pending application by the City or alleged violator to the circuit court of Fairfax County for appropriate relief. The order shall be lifted immediately upon completion of corrective measures. Nothing in this section shall prevent the plan- approving authority from taking any other action specified in this division. Section 26-101. Penalties, injunctions and other legal actions. (a) Violations of any requirement of this division or any condition of a permit shall be subject to a civil penalty. The civil penalty for any one violation shall be one hundred (100) dollars, except that the civil penalty for commencement of land disturbing activities without an approved plan shall be one thousand ($1,000.00) dollars. (b) Each day during which the violation exists shall constitute a separate offense. However, in no event shall a series of violations arising from the same set of operative facts result in civil penalties which exceed a total of three thousand ($3,000.00) dollars, except that a series of violations ensuing from the commencement of land disturbing activities without an approved plan for any site shall not result in civil penalties which exceed ten thousand ($10,000.00) dollars. (c) The plan-approving authority may apply to the circuit court of Fairfax County to enjoin a violation or a threatened violation. (d) Any person violating, failing, neglecting or refusing to obey any injunction, mandamus or other remedy obtained pursuant to Section 10.1-569 of the Code of Virginia, shall be subject, in the discretion of the court, to a civil penalty not to exceed two thousand ($2,000.00) dollars for each violation. Any civil penalty so assessed shall be payable to the treasury of the city. Section 26-102. Administrative appeal: judicial review. (a) Final decisions of the plan-approving authority under this division may be appealed to the city council, provided an appeal is filed within thirty (30) days from the date of any written decision by the plan-approving authority which adversely affects the rights, duties or privileges of the person engaging in or proposing to engage in land disturbing activities. (b) Final decisions of the city council under this division may be subject to review by the circuit court of Fairfax County, provided an appeal is filed within thirty days from the date of the final written decision which adversely affects the rights, duties or privileges of the person engaging in or proposing to engage in land disturbing activities. 1993-41 -6 This ordinance shall become effective as provided by law. PLANNING COMMISSION PUBLIC HEARING: gu§ust 16, CITY COUNCIL PUBLIC HEARING: _ September 28, 1993 ADOI~D: September 28, 1993 1993 ATTEST: