19990323 1999-6ORDINANCE NO. 1999-6
AN ORDINANCE TO AMEND ARTICLE II, DIVISION 3 OF
CHAPTER 26 OF THE CODE OF THE CITY OF FAIRFAX,
CHESAPEAKE BAY PRESERVATION.
BE IT ORDAINED by the City Council of the City of Fairfax, Virginia, that
Article II, Division 3, of Chapter 26 of the Code of the City of Fairfax, Virginia is hereby
amended to read in its entirety as follows:
DIVISION 3. CHESAPEAKE BAY PRESERVATION
Sec. 26-18. Purpose.
These regulations are established to implement the Chesapeake Bay Preservation
Act ("the Act") and to protect and improve the water quality of the Chesapeake Bay, its
tributaries and other state waters.
Sec. 26-18.1. Definitions.
The following words and terms used have the following meanings, unless the context
clearly indicates otherwise. In addition, any terms not defined in this section shall be in
accordance with the definitions in Section 10.1-2101 of the Act.
Agricultural lands: Agricultural lands means those lams 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. Individual [or residential]
garden plots, flowerbeds, etc. not exceeding 2,500 square feet are not considered
agricultural lands.
Best management practice, or BMP: A practice, or combination of practices, that
are determined by the Commonwealth of Virginia to be the most effective, practicable
means of preventing or reducing the amount of pollution generated by nonpoint sources
to a level compatible with state water quality goals.
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.
Chesapeake Bay Preservation Area, or CBPA: Any land designated by the city
council pursuant to Section 10.1-2107 of the Chesapeake Bay Preservation Act. A
Chesapeake Bay Preservation Area shall consist of a resource protection area and a
resource management area.
Development: The construction, or substantial alteration of residential,
commercial, industrial, institutional, recreational, transportation, or utility facilities or
structures.
Highly erodible soils: Soils with an erodibility index (EI) from sheet and rill
erosion equal to or greater than eight (8) as defined by the U.S. Department of
Agriculture Soil Conservation Service.
Highly permeable soils: Any soil having a permeability (potential to transit water
through the soil profile) equal to or greater than six (6) inches of water movement per
hour in any part of the soil profile to a depth of seventy-two (72) inches (permeability
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groups "rapid" and "very rapid") as found in the most recent publication of the "National
Soils Handbook" in the "Field Office Technical Guide" of the U.S. Department of
Agriculture Soil Conservation Service.
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 gravel surface.
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 or filling of land.
Nontidal wetlands: Areas other than tidal wetlands that are inundated or saturated
by surface or ground water at a frequency and duration sufficient to support, and that
under normal circumstances do support, a prevalence of vegetation typically adapted for
life in saturated soil conditions, as defined by the U.S. Environmental Protection Agency
pursuant to Section 404 of the Federal Clean Water Act, in 33 C.F.R. 328.3b, dated
November 13, 1986.
Other sensitive lands: Other sensitive lands includes any land categories
determined by the city to perform inherent water quality functions or to have the potential
to negatively impact water quality if disturbed improperly.
Redevelopment: Redevelopment is the process of developing land that is or has
been previously developed.
Resource management area, or RMA: The component of the Chesapeake Bay
Preservation Area that is not classified as the resource protection area and which is
contiguous to the inland boundary of the RPA. Resource management areas include land
types that, if improperly used or developed, have a potential for causing significant water
quality degradation or for diminishing the functional value of the resource protection
area. All lands in the city that are not designated as resource protection areas are
resource management areas.
Resource protection area, or RPA: The component of the Chesapeake Bay
Preservation Area comprising lands at or near the shoreline that have an intrinsic water
quality value due to the ecological and biological processes they perform or are sensitive
to impacts which may result in significant degradation to the quality of state waters. In
their natural condition, these lands provide for the removal, reduction or assimilation of
sediments, nutrients and potentially harmful or toxic substances in runoff entering the
Bay and its tributaries, and minimize the adverse effects of human activities on state
waters and aquatic resources. The resource protection area must include the following:
(a)
(b)
(d)
Nontidal wetlands connected by surface flow and contiguous to tributary
streams.
Tributary streams.
Such other sensitive lands that, if developed, might cause significant
degradation to the quality of state waters.
Buffer area not less than one hundred (100) feet in width located adjacent
to and landward of the components listed in subsections (a) through (c)
above and expanded to include the lO0-year floodplain.
Tributary stream: Any perennial stream that is so depicted on the most recent
U.S. Geological Survey 7 ',6 minute topographic quadrangle map.
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Sec. 26-18.2. General provisions.
The regulations in this division shall apply to all lands located within the Ches-
apeake Bay Preservation Areas (resource protection area (RPA) and resource
management area (RMA)) as defined in section 26-18.1 and as depicted on
maps of the Chesapeake Bay Preservation Areas adopted by city council
(hereinatter referred to as the "CBPA Maps").
If an applicant for site plan review, a building permit or a clearing and grading
permit for property located within an RPA disputes the boundaries delineated
on the CBPA Maps, then he shall submit to the zoning administrator drawings
certified by an engineer which indicate a precise delineation of what the
applicant contends is the proper boundary. Such drawings shall be prepared in
accordance with the procedures specified in the "Corps of Engineers Wetland
Delineation manual Technical Report Y87-1" as may be revised from time to
time and shall be based on the Official City of Fairfax Floodplain Maps, and
on topographical maps, field surveys, soils maps and wetlands inventory maps
acceptable to the zoning administrator. Resolution of disputes regarding the
proper RPA boundaries will be made by the zoning administrator and may be
appealed to the board of zoning appeals pursuant to section 26-220. All
applicants disputing the boundary location must report their findings to the
city even if those findings increase the land area within the CBPA.
(c)
All buildings, structures, improvements and other impervious cover located in
an area prior to such area's designation as an RPA or RMA shall be legally
nonconforming. As such, no enlargement, extension, reconstruction or
structural alteration of the buildings, structures and improvements or use of
same shall be permitted without fulfilling the requirements of this Division.
[Sec. 26-19. Reserved.]
Sec. 26-19.1. Performance criteria.
(a) Generalperformance criteria. Each new use, new development or
redevelopment of lands located in the Chesapeake Bay Preservation Area shall
meet or exceed the following performance criteria:
(1) No more land shall be disturbed than is necessary to provide for the
proposed use or development.
(2) Indigenous vegetation shall be preserved to the maximum extent possible
consistent with the proposed use and development.
(3)
Where the BMP's utilized require regular or periodic maintenance in order
to properly continue their intended functions, the property owner shall
ensure such maintenance by providing the city with a maintenance
agreement and surety bond in an amount determined by the zoning
administrator. The surety bond shall comply with the requirements of
Chapter 2, Article XI of the City Code. The agreement and surety shall be
subject to the approval of the zoning administrator and the city attorney.
(4)
All development or redevelopment involving land disturbing activity that
exceeds two thousand five hundred (2,500) square feet of land disturbance
shall be subject to site plan review.
(5) All land development shall minimize impervious cover consistent with the
proposed use or development.
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(6)
Any land disturbing activity that exceeds an area of two thousand five
hundred (2,500) square feet shall comply with the requirements of Article
II, Division 12 of this chapter (Erosion and Sediment Control).
(7) The property owner shall be responsible for the installation and
maintenance of stormwater management facilities, including use of best
management practice, which accomplish the following objectives:
(a) Post-development nonpoint source pollution runoff load shall not
exceed the pre-development load based upon average land cover
conditions within the city of forty-five percent (45%). Pollution loads
must be calculated and the BMP selected for the express purpose of
controlling nonpoint source pollution.
(b) Redevelopment of any site not currently served by water quality best
management practices shall achieve at least a ten (10) per cent
reduction of nonpoint source pollution in runoff compared to the
existing runoff load from the site. Post-development runoff from any
site to be redeveloped that is currently served by water quality best
management practices shall not exceed the existing load of nonpoint
source pollution in surface runoff. If existing facilities can be shown to
achieve the current standard of nonpoint source pollution control, the
site will be considered as being served by water quality BMP's.
Structural BMP's must always be maintained in working order,
performing at the design levels of service. The applicant's site
engineer shall provide the original structural design and maintenance
schedule and verify that the structure is performing at the design level
of service.
(c) Facilities provided to reduce nonpoint source pollution in runoff, as
required under subsection (7)(a) or (7)(b) above, shall be provided on-
site, unless on-site facilities are determined by the Director of Public
Works to be infeasible. Where on-site facilities are infeasible, the
developer shall pay a fee to the city for the construction of off-site
facilities to be located at the discretion of the city. The amount of the
fee shall be equal to the cost of design and construction of the facility
plus any necessary cost of acquisition of land.
(d) Stormwater management criteria for redevelopment shall apply to all
redevelopment in the city.
(8) On-site land disturbing activities shall not begin until grading plans have
been approved by the site plan approving authority and all required
permits, including wetlands permits, have been obtained.
(b) Additional performance criteria for resource protection areas. The following
criteria shall apply within the RPA in addition to the general performance criteria
in section 26-19. l(a):
(2)
Except as otherwise provided herein, no land disturbing activity and no
acts prohibited by Article II, Division 2 of this chapter (Floodplains) shall
be permitted in the RPA.
(2)
All redevelopment activities shall conform to the regulations contained in
Article II, Division 2 (Floodplains); Division 11 (Storm Drainage
Facilities); and Division 12 (Erosion and Sediment Control); as well as the
criteria for redevelopment in section 26-19. l(a)(7). Redevelopment shall
not include the enlargement of any building, structure or improvement
located in the RPA or the construction of new structures in the lIPA or
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further expansion of any impervious surfaces unless a special exception is
granted under Section 26-19.3 of this division.
(3) Buffer area requirements.
a. For the purposes of retarding runoff, preventing erosion, and filtering
nonpoint source pollution from runoff, a buffer area extending at least
one hundred (100) feet adjacent to the stream or tributary or connected
nontidal wetland shall be retained, if present, or established wherever
such buffer does not exist.
b. In order to maintain the functional value of such buffer area,
indigenous vegetation shall not be removed except to provide best
management practice or as follows:
1. Trees may be pruned or removed, subject to the provisions of
Article II, Division 10 (Tree Preservation, Landscaping and
Screening) to
provide for sight lines and vista; provided, however, that each tree
removed shall be replaced with other vegetation, approved by the
zoning administrator, that is at least equally effective in retarding
runoff, preventing erosion and filtering nonpoint source pollution
from runoff.
2. Dead, diseased or dying trees or shrubbery may be removed with
the approval of the zoning administrator in accordance with section
26-64.
3. Silvicultural thinning may be conducted upon the issuance ora tree
removal permit in accordance with section 26-62.
4. For streambank erosion control projects, trees and woody
vegetation may be removed, necessary control techniques
employed and appropriate vegetation established to protect or
stabilize the steam bank based on plans approved by the zoning
administrator.
c. When the establishment of the buffer area results in the loss of a
buildable area on a lot or parcel recorded prior to October 1, 1989,
modifications to the width of the buffer area may be permitted by the
zoning administrator as follows:
1. Modifications to the buffer area shall be permitted to the minimum
extent necessary to achieve a reasonable buildable area for a
principal building or structure and necessary utilities to serve the
building or structure.
2. Where possible, an open space area equal to the area encroaching
the buffer area shall be established elsewhere on the lot or parcel to
maximize water quality protection;
3. In no case shall the buffer area be reduced to less than fifty (50)
feet in width.
(c) Water quality impact assessment. A water quality impact assessment (WQIA)
shall be submitted with all site plans for new use, new development or
redevelopment on each property located within the city. The WQIA study
shall include but not be limited to the following:
(1) Narrative description:
a. Impact of proposed development on water quality.
b. Description of specific measures to be employed to mitigate the
impacts.
c. Geology of the site.
d. Estimates of pre-pollutant and post-pollutant lands in runoff
e. Additional information as deemed necessary by the zoning
administrator to assist in the review of the project.
(2) Site drawing:
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a. Existing topography, soils and hydrology of the site.
b. Location of RPA, including the RPA buffer area.
c. Location and nature of proposed encroachments into the RPA buffer
area, including roadways, utilities and wetland mitigation sites.
d. Type and location of proposed stormwater management facilities and
best management facilities and BMP's to mitigate the proposed
encroachments.
e. Size and location of anticipated drain field or wastewater irrigation
areas.
(d) [Exernptionsfrorn RPA performance criteria.] The following uses shall be
exempt from the RPA performance criteria contained in section 26-19.1Co):
(1)
Construction, installation, operation and maintenance of electric, gas and
telephone transmission lines, railroads, public roads, public trails and their
appurtenant structures; provided, that said construction, installation,
operation and maintenance is in accordance with State Erosion and
Sediment Control Law [Code of Virginia, section 10.1-560 et seq.] and the
Stormwater Management Act [Code of Virginia, section 10.1-603.1 et
seq.]. An erosion and sediment control plan and a stormwater management
plan approved by the Virginia Department of Conservation and
Recreation, or local water quality protection criteria at least as stringent as
the above state requirements shall be deemed to constitute compliance
with this provision. The exemption of public roads is further conditioned
on the optimization of the road alignment and design, consistent with other
applicable requirements, to prevent or otherwise minimize both
encroachment in the lIPA and adverse effects on water quality.
(2) Construction, installation and maintenance of public water, sewer and
local gas lines shall be exempt from the performance criteria in section 26-
19.1 provided that:
a. Such utilities and facilities shall be located outside the RPA to the
degree possible.
b. No more land shall be disturbed than is necessary to provide for the
desired 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 designed and conducted in a manner that protects water
quality.
d. Any land disturbing activity exceeding an area of two thousand five
hundred (2,500) square feet shall comply with the requirements of
section 26-19.1 (b).
Sec. 26-19.2. Permitted uses.
(a) Resource protection area. The following uses and improvements shall be
permitted by right:
(1) Passive recreation. Passive recreation facilities, such as bike trails, picnic
areas, bird watching facilities, and hiking trails, provided that:
a. Ail land disturbing activity exceeding an area of two thousand five
hundred (2,500) square feet shall be performed in accordance with the
performance criteria in section 26-19. l(b).
b. The buffer area requirements in section 26-19. l(b)(3) shall apply to
such facility.
(2) Agricultural uses may continue provided that such uses comply with
applicable zoning regulations and state Chesapeake Bay Preservation
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regulations, including the requirement for a soil and water conservation
plan.
(3)
Utilities and public facilities and improvements such as streets, channel
improvements, bridges, utility pipes and utility transmission lines, subject
to the performance criteria exemptions found in section 26-19.1 (d).
(4)
Redevelopment of properties including reconstruction or structural
alteration of those buildings, structures and improvements, provided that
the performance criteria of section 26-19.1 (a) are met.
(b) Resource management areas. Permitted uses within the resource management
areas shall be those of the underlying zoning district, as modified by any
applicable overlay district(s) provided that the performance criteria of section 26-
19. l(a) are met.
Sec. 26-19.3. Special exceptions.
The board of zoning appeals may, by special exception, permit within the RPA
additional uses permitted within a floodplain where such uses are not permitted uses
specified in section 26-19.2; provided, that:
(a) Such additional use is permitted in the underlying zoning district;
(b) Special exceptions shall be granted only in accordance with the procedures
and limitations established for special use permits in section 26-103;
(c) The special exception request is the minimum necessary to afford relief;
(d)
The special exception request shall identify the impacts of the proposed
exception on water quality and on adjacent lands through the performance of a
water quality impact assessment which complies with the provisions of
section 26-19.1 (c);
(e) The special exception request shall be consistent with the purpose of this
division; and
The board of zoning appeals shall impose any reasonable and appropriate
conditions which are necessary to prevent the exception request from causing
a degradation of water quality.
BE IT FURTHER ORDAINED by the City Council of the City of Fairfax, Virginia, that
the City Council adopt the attached Chesapeake Bay Preservation Areas Map dated
February 18, 1999, as it may be revised from time to time in accordance with the
definitions of "Resource Management Area" and "Resource Protection Area" as provided
in Section 26-18.2(b), and in fulfillment of the requirements of Section 26-18.2(a) of
Division 3, Article II, Chapter 26 of the Code of the City of Fairfax, Virginia.
This ordinance shall become effective as provided by law.
Planning Commission Hearing: February 22, 1999
City Council Hearing: March 23, 1999
ADOPTED: March 23, 1999
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Attest:
The vote was recorded as follows:
Vote:
Councilman Coughlan aye
Councilman Greenfield aye
Councilman Lederer aye
Councilman Petersen aye
Councilman Rasmussen absent
Councilman Silverthorne aye
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Mayor
Date