19901009 1990-28ORDINANCE NO. 1990-28
AN ORDINANCE AMENDING CHAPTER 26 OF THE CODE OF THE CITY OF
FAIRFAX, VIRGINIA BY REPEALING ARTICLE II, DIVISION 3 (VISUAL
CLEARANCE) AND REENACTING IT AS SECTION 26-14.1, AND ENACTING
DIVISION 3 ENTITLED "CHESAPEAKE BAY PRESERVATION."
BE IT ORDAINED by the City Council of the City of Fairfax,
Virginia that Article II, Division 3 (Sections 26-18 and 26-19)
entitled "Visual Clearance" of Chapter 26 of the Code of the
City of Fairfax, Virginia is hereby repealed and reenacted as
Section 26-14.1(a) and (b), respectively.
BE IT FURTHER ORDAINED that Article II, Division 3 is hereby
enacted to read in its entirety as follows:
-DIVISION 3 - CHESAPEAKE BAY PRESERVATION
Section 26-18. Purpose.
These regulations are established to implement the Chesapeake
Bay Preservation Act and to protect and improve the water
quality of the Chesapeake Bay, its tributaries and other state
waters.
Section 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 10.1-2101 of the Act.
Best Management Practice: a practice, or combination of
practices, that are determined by Commonwealth of Virginia to
be 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: 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 Resource Protection Area and Resource Management
Area.
Development: the construction, or substantial alteration
of residential, commercial, industrial, institutional, recrea~
tional, 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 groups "rapid" and "very rapid") as found in the
"National Soils Handbook" of July, 1983 in the "Field office
Technical Guide" of the U. S. Department of Agriculture Soil
Conservation Service.
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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 and 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.
Resource Management Area: 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. The following
land categories must be included in the Resource Management
Area:
(a) Floodplains.
(b) Highly erodible soils.
(c) Highly permeable soils.
(d) Non tidal wetlands not included in the Resource
Protection Area.
(e) Steep slopes (slopes in excess of 15 percent).
Resource Protection Area: the component of the Chesapeake
Bay Preservation Area comprised of 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) Nontidal wetlands connected by surface flow and
contiguous to tributary streams.
(b) Tributary streams.
(c) Buffer area not less than 100 feet in width located
adjacent to and landward of nontidal wetlands and along
both sides of any tributary stream.
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Tributary Stream: any perennial stream that is so depicted
on the most recent U.S. Geological Survey 7-1/2 minute topo-
graphic quadrangle map.
Section 26-18.2. General Provisions.
(a) The regulations in this division shall apply to all
lands located within the Chesapeake 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 (hereafter referred to as the "CBPA Maps").
(b) If an applicant for site plan review, a building
permit or a clearing and grading permit for property
located within an RPA and RMA disputes the boundaries
delineated on the CBPA Maps, then he shall submit to the
zoning administrator drawings certified by an engineer or
land surveyor which indicate a precise delineation of what
the applicant contends is the proper boundary. Such
drawings shall be prepared in accordance with the pro-
cedures specified in the Federal Manual Identifying and
Delineating Jurisdictional Wetlands and shall be based on
the Official City of Fairfax Floodplain Maps, topographical
maps, field surveys, soils maps and wetlands inventory
maps. Resolution of disputes regarding the proper RPA and
RMA 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) Ail 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 nonconform-
ing. As such, no enlargement, extension, reconstruction
or structural alteration of the buildings, structures and
improvements or use of same shall be permitted without a
Special Use Permit approved by the City Council in
accordance with the applicable performance criteria.
Section 26-19.1 Performance Criteria.
(a) General Performance Criteria
Each use, 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 best management practices require regular
or periodic maintenance, 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.
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(4) Notwithstanding the exceptions to the site plan
requirements provided in Sections 26-20(a)(1) and (2),
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.
(6) Notwithstanding the exceptions for disturbed
areas of less than ten thousand (10,000) square feet
contained in Section 26-93, 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 (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 predevelopment
load based upon average land cover condition of
watersheds within the City. Watershed boundaries
shall be established by the City Engineer.
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) percent
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 be
in working order, performing at the design levels
of service. The site engineer must provide the
original structural design and maintenance
schedule and verify that the structure is
performing at the design level of service.
c. Redevelopment of any site that is completely
impervious as currently developed shall include
the restoration of a minimum of twenty (20)
percent of the site to vegetated open space.
d. Stormwater management criteria for redevel-
opment shall apply to all redevelopment, whether
located within either a RPA or RMA as designated
on the CBPA Maps.
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(8) On-site land disturbing activities shall not
begin until grading plans have been approved by the
site plan approving authority and all required wetland
permits have been obtained.
Additional Performance Criteria for Resource Protec-
tion Areas.
The following criteria shall apply within RPA's in
addition to the general performance criteria in
Section 26-19.1(a):
(1) Except as otherwise provided herein, no land
disturbing activity and no acts prohibited by Article
II, Division 2 of this chapter shall be permitted in
RPA's.
(2) Ail redevelopment activities shall conform to the
regulations contained in Article II, Division 2
(Floodplain); Division 11 (Storm Drainage Facilities);
and Division 12 (Erosion and Sediment Control); as
well as the criteria for redevelopment in Section 26-
19.1(a)(7). Redevelopment shall not include the
enlargement of any building, structure or improvement
located in the RPA or further expansion of any
impervious surfaces.
(3) Buffer area requirements.
a. For the purpose 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 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
only be removed 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) to provide for sight
lines and vistas; provided, however, that
each tree removed shall be replaced with
other vegetation, approved by the City
Engineer, 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 of a tree removal permit
in accordance with Section 26-62.
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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 stream bank based
on plans approved by the zoning admini-
strator.
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. 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) is required to be submitted with
all development and redevelopment site plans for property
located within an RPA or RMA. The WQIA study will 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 prepollutant and postpollutant
lands in runoff.
e. Additional information as deemed necessary
by the zoning administrator to assist in the
review of the project.
(2) Site Drawing
a. Existing topography, soils and hydrology of
the site.
b. Location of RPA, including the 100-foot RPA
buffer area.
c. Location and nature of proposed encroach-
ments into the RPA buffer area including
roadways, utilities and wetland mitigation sites.
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d. Type and location of proposed stormwater
management facilities and best management
facilities and best management practices (BMP's)
to mitigate the proposed encroachments.
e. Size and location of anticipated drainfield
or wastewater irrigation areas.
(d) Exemptions for public utilities, railroads and similar
facilities from performance criteria for RPA's are as
follows:
(1) Construction, installation, operation and
maintenance of electric, gas and telephone transmis-
sion lines, railroads and public roads and their
appurtenant structures shall be exempt from the
performance criteria in Section 26-19.1 provided that
said construction, installation, operation and
maintenance is in accordance with the Article II,
Division 12, Section 26-19.1 (State Erosion and
Sediment Control Law [10.1-560 et.seq.].)
(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 RPA's to the degree possible.
b. No more land shall be disturbed than is
necessary to provide for the desired utility
installation.
c. Ail construction, installation and main-
tenance 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).
Section 26-19.2 Permitted Uses
(a) Resource Protection Areas. The following uses and
improvements are permitted with a special use permit issued
by city council in accordance with the provisions of
Section 26-103:
(1) Passive Recreation. Passive recreation facili-
ties, such as bike trails, picnicking, bird watching
and hiking trails may be permitted in a RPA 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 26-19.1(b).
b. The buffer area requirements in Section 26-
19.1(b)(3) shall apply to such facility.
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(2) Agricultural uses may continue provided that a
natural vegetative buffer area no less than 100-foot
deep be maintained adjacent to the tributary stream.
(3) Utilities and public facilities and improvements
such as streets, channel improvements, bridges,
utility pipes and utility transmission lines with the
performance criteria exemptions found in Section 26-
19. l(d) .
(4) Redevelopment of properties including reconstru-
ction 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. The following uses and
improvements are permitted with a special use permit issued
by city council in accordance with the provisions of
Section 26-103:
(1) Uses permitted in the Resource Protection Areas
(Section 26-19.2).
(2) Active Recreation. Active recreation such as
golf courses, ball fields and soccer fields may be
permitted in those portions of the RMA located outside
of the floodplain limits provided that:
a. Ail land disturbing activities exceeding an
area of two thousand five hundred (2,500) square
feet shall comply with the erosion and sediment
control requirements of Article II, Division 12.
b. The buffer area requirements in Section 26-
19.1(b) (3) shall apply to all such facilities.
(3) Redevelopment of properties including enlarge-
ment, extension, reconstruction or structural
alteration of those buildings, structures and improve-
ments provided that the performance criteria of
Section 26-19.1(a) are met.
(4) Single family home construction where
disturbance exceeds 2,500 square feet."
land
This ordinance shall become effective as provided by law.
Planning Commission Hearing: September 10, 1990
City Council Hearing:
October 9, 1990
ADOPTED:
October 9, 1990
ATTEST:
~Mayo~
AI'I'ACHMENT I A
CHESAPEAKE BAY PRESERVATION
Background
Accelerated population growth, development aind poor environmental practices
have served to greatly degrade the quality of the Chesapeake Bay. A report
prompted by the Chesapeake Bay Agreement in 1987 revealed that there were
quantities of metals and organic compounds fourtd on the floor of the Bay in excess
of those that would occur from natural processe:~ alone. The report also discussed
the excessive levels of nutrients found in the Bay that increase algae growth and
subsequently deplete the oxygen content of the waters, thus reducing the potential of
the Bay to sustain aquatic life.
In September of 1989, the Virginia General Asseimbly enacted the Chesapeake Bay
Preservation Act (the Act) to protect and inaprove the water quality of the
Chesapeake Bay, its tributaries and other state waters by minimizing the effects of
human activity upon the waters. The Act ser,;,es to greatly expand local police
powers and provide a means of better utilizing local natural resources. It allows
localities two years from September 20, 1989 (folliowing an implementation schedule
established by the Chesapeake Bay Local Assiistance Board) to designate local
preservation areas, adopt a model ordinance, and employ measures necessary to
implement established performance criteria.
Chesapeake Bay Preservation Area Designation
Each local government within the Bay's watershed was mandated by the state to
delineate two preservation area designations: Resource Protection Areas (RPA) and
Resource Management Areas (RMA). RMA's and RPA's are essentially buffer areas
that reduce the impact of nutrient, sediment, and chemical runoff.
RPA's consist of sensitive lands at or near the shoreline that have intrinsic water
quality value due to the ecological and biologiO1 processes they perform. In their
natural condition these lands provide for the removal, reduction, or accumulation
of sediments, nutrients, and potentially harrriful or toxic substances in runoff
entering the bay and its tributaries. RPA's include: floodplain; tidal wetlands;
nontidal wetlands or tributary streams; tidal shores; a buffer area not less than 100
feet in width located adjacent to and landward olf the components listed above.
RMA's 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 RPA. An RMA is provided contiguous to the entire, inland boundary
of the RPA. The following land categories have been considered for inclusion in the
RMA: highly erodible soils; highly permeable soils; and floodplain and. nontidal
wetlands not included in the RPA.
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ATTACHMENT
Land Use and Development Performance Criteria
Permitted development of land within the RMA is considerably more restrictive
than that permitted prior to the adoption of the :new regulations. No development
or redevelopment within the RMA may increase net nonpoint source pollution
from land development activities (based upon average land cover conditions) and
must achieve a 40 percent reduction in non-point source pollution from
agricultural and silvicultural uses.
Permitted development within the RPA is highly restricted, allowing only new or
expanded water-dependent facilities, bike traiils, and other forms of passive
recreation. Water-dependent facilities may only be allowed if they do not conflict
with the comprehensive plan, and any non-water-dependent component must be
located outside of the RPA.
Areas in the City that are most affected by the Act include all tributary streams,
floodplains, highly erodible soils and highly permeable soils. Many of these areas lie
contiguous to Accotink Creek. The Accotink Creek tributary originates in three
locations: at Chain Bridge Road and Kenmore Drive; Stafford Drive near Mosby
Woods; and behind Layton Hall Elementary School.
Implementation
The Chesapeake Bay Local Assistance Department and the Northern Virginia
Planning District Commission assisted the City in developing Chesapeake Bay
regulations in response to the State mandate. On October 9, 1990 the City's
Chesapeake Bay Preservation Area Ordinance and Maps were approved by the
Fairfax City Council.
The "first year" program, as identified by the State, has accomplished the local
designation of preservation areas and adoption of performance criteria to apply in
the preservation areas. During the second year, revisions of plans and ordinances
will be made, when necessary, to better refine the performance criteria and integrate
them more comprehensively into existing City policies and programs.
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