Chesapeake Bay Preservation Area Overlay Ordinance, Portsmouth, Virginia

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CHESAPEAKE BAY
PRESERVATION AREA OVERLAY
ORDINANCE

COASTAL ZONE

INFORMATION CENTER

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CHESAPEAKE BAY PRESERVATION
AREA OVERLAY ORDINANCE

PORTSMOUTH, VIRGINIA

This report prepared through financial assistance provided
by the Coastal Zone Management Act of 1972, as amended;
administered by the Office of Ocean and Coastal Resource
Management, National Oceanic and Atomspherlc Administration.

zs- 4-
Effective Date: September 1, 1990

NONE

DEVELOPMENT REVIEW PROCESS FOR
CHESAPEAKE BAY PRESERVATION AREAS

tandard Site Applicant S bmits
Meeting With Development Plan Copies Of All
Planning Dept- R view or building Necessary
P:rmit Process Wetlands Permits

NOT IN A CBPA

Application For Review By Plannin Site Development Plan site Development
Building Permit I Dept. 7b Determin: -IN A and Water Quality Plan Reviewed By
Submission of Site It Subject Site Is C8131@_ Impact Assessment Appropriate City
Development Plan In A CBPA 2 Forwarded to Departments
Engineering Dept- For
Rowjow
iRED I I
DENIED AF OVED

Correct P Ian As
Application For Needed To Comply
Zoning clearance With All Applicable
Regulations

Win GLEARED OVED
I I IPermits leaned]
Application For Review of Land Use
Rezoning. Use Applications. Etc.. By DENIED
Permit. Group Appropriate Boards
Housing Permit. or City Council
Street Closure.
Etc.. If Headed

N
E
OT S:
I I I

A Site Development Plan must be submitted 2 Planning will use the CBFR Overlay Mop to Determine If the
for any development that exceeds 2.600 sq. It- site Is in a COVA. Applicant will be advised of the
of land disturbance. procedures for Non-confarming Use and Development Waivers
(Section 9.1 12) or Exceptions (Section 9.1 - 14) if
applicable.

Table of Contents

Section Number Title Page

9.1-1 Findings of Fact ........................ 1

9.1-2 Purpose and Intent ...................... 1

9.1-3 Definitions ............................ 2

9.1-4 Areas of Applicability ................... 4

9.1-5 Use Regulations ....................... 5

9.1-6 Lot Size .............................. 5

9.1-7 Required Conditions .................... 5

9.1-8 Conflict with Other Regulations ............ 6

9.1-9 Interpretation of Resource
Protection Area Boundary ................ 6
9.1-9 A. Delination by Applicant ................ 6
- 9.1-9 B. Delination by Director of Planning ....... 6
9.1-9 C. Conflict Over Delination ................ 6
9.1-9 D. Final Delination ...................... 6

9.1-10 Performance Criteria .................... 7
9.1-10 A. Purpose and Intent ................. 7
9.1-10 B. Standards ........................ 7
9.1-10 C. Buffer Area Requirements ............ 9

9.1-11 Plan of Development Process .............. 11
9.1-11 A. Required Information ................ 11
9.1-11 B. Environmental Site Assessment ........ 11
9.1-11 C. Landscaping Plan ................... 12
9.1-11 D. Stormwater Management Plan .......... 14
9.1-11 E. Erosion and Sediment Plan ............ 15
9.1-11 F. Water Quality Impact Assessment ...... 15
9.1-11 G. Final Plan ......................... 18
9.1-11 H. Administrative Responsibility ......... 20
9.1-11 1. Denial of Plan, Appeal ............... 20

9.1-12 Nonconforming Use and Development
Waivers ............................. 20

Section Number Title Page

9.1-13 Exemptions .......................... 21
9.1-13 A. Exemptions for Utilities,
Railroads, & Public Roads .......... 21
9.1-13 B. Exemptions for Silviculture
Activities ........................ 21
9.1-13 C. Exemptions in Resource 21

9.1-14 Exceptions ........................... 22

9.1-15 Enforcement 22

AN ORDINANCE TO AMEND THE CODE OF THE CITY OF PORTSMOUTH, VIRGINIA,
1988, BY ENACTING CHAPTER 9.1, PERTAINING TO THE CHESAPEAKE BAY
PRESERVATION AREA OVERLAY DISTRICT.

BE IT ORDAINED by the Council of the City of Portsmouth, Virginia:

1 - That the Code of the City of Portsmouth, Virginia, 1988, be amended by
adding Chapter 9.1 thereto, to read as follows:

CHAPTER 9.1

CHESAPEAKE BAY PRESERVATION AREA
OVERLAY DISTRICT

Section 9.1-1. Findings of Fact.

The Chesapeake Bay and its tributaries is one of the most important and
productive estuarine systems in the world, providing economic and social benefits
to the citizens of the City of Portsmouth and the Commonwealth of Virginia. The
health of the Bay is vital to maintaining the city's economy and. the welfare of its
citizens.

The Chesapeake Bay waters have been degraded significantly by many sources
of pollution, including nonpoint source pollution from land uses and development.
Existing high quality waters are worthy of protection from degradation to guard
against further pollution. Certain lands that are proximate to shorelines have
intrinsic water quality value due to the ecological and biological processes..they
perform. Other lands have severe development constraints from flooding, erosion,
and soil limitations. With proper management, they offer significant ecological
benefits by providing water quality maintenance and pollution control, as wen as
flood and shoreline erosion control. These lands together, designated by the City
Council as Chesapeake Bay Preservation Areas (hereinafter "CBPAs"), need to be
protected from destruction and damage in order to protect the quality of water in the
Bay and consequently the quality of life in the City of Portsmouth and the
Commonwealth of Virginia.

Section 9.1-2. Purpose and Intent.

A. This ordinance is enacted to implement the requirements of Section
10. 1-2100, et seq. , of the Code of Virginia (The Chesapeake Bay Preservation Act).
The intent of the City Council and the purpose of the Overlay District is to: (1)
protect existing high quality state waters; (-2) restore all other state waters to a
condition or quality that will permit all reasonable public uses and will support the
propagation and growth of all aquatic life, including game fish, which might
reasonably be expected to inhabit them; (3) safeguard the clean waters of the
Commonwealth from pollution; (4) prevent any increase in pollution; (5) reduce
existing pollution; and (6) promote water resource conservation in order to provide
for the health, safety, and welfare of the present and future citizens of the City of
Portsmouth.

B. This district shall be in addition to and shall overlay all other zoning districts
where they are applied so that any parcel of land lying in the Chesapeake Bay
Preservation Area Overlay District shall also lie in one or more of the other zoning
districts provided for by the Zoning Ordinance. Unless otherwise provided in this
Chapter, the review and approval procedures provided for in Chapters 7, 11, 14,
33, and 39 of this Code, the Zoning Ordinance, and all other applicable ordinances
shall be followed in reviewing and approving development, redevelopment, and uses
also regulated by this Chapter.

C. This Chapter is enacted under the authority of Section 10. 1-2100, et seq. ,
(The Chesapeake Bay Preservation Act) and Section 15.1-489, of the Code of
Virginia.

Section 9.1-3. Definitions

The following words and terms used in the Overlay District have the following
meanings, unless the context clearly indicates otherwise. Words and terms not
defined in this Chapter but defined in the Zoning Ordinance shall be given the
meanings set forth therein.

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

"Best Management Practices" or 'IBMPs" means a practice, or a combination of
practices, that is determined by a state or designated area-wide planning agency to
be ihe most effective, practical means of preventing or reducing the amount of
pollution generated by nonpoint sources to a level compatible with water quality
-goals.

"Buffer area" means 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 11CBPA11 means any land designated by the
City Council pursuant to Part III of the Chesapeake Bay Preservation Area
Designation and Management Regulations, VR 173-02-01, and Section 10. 1-2107 of
the Code of Virginia. A Chesapeake Bay Preservation Area shall consist of a
Resource Protection Area and a Resource Management Area.

"Construction footprint" means the area of all impervious surface including, but not
limited to, buildings, roads and drives, parking areas, and sidewalks and the area
,necessary for construction of such improvements.
"Development" means the construction, or substantial alteration..' of residential,
commercial, industrial, institutional, recreation, transportation, or utility facilities
or structures.

"Diameter at breast height" or "DBH11 means the diameter of a tree measured outside

the bark at a point 4.5 feet above ground.

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

'Impervious cover" means 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.

"Intensely Developed Areas" or 11IDAs11 means a portion of a Resource Protection
Area or a Resource Management Area designated by the City Council where
development is concentrated and little
of the natural environment remains.

"Land Disturbance" means any land,change which may result in soil erosion from
water orwind and the movement of sediments into state waters or onto lands in the
state, including, but not limited to, clearing, grading, excavating, transporting,
and filling of land.

"Nonpoint source pollution" means pollution consisting of constituents such as
sediment, nutrients, and organic and toxic substances from diffuse sources, such
as runoff from agriculture and urban land development and use.

"Nontidal wetlands" means those wetlands 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 2 in 33 C - F. R. 328.3b I dated November 13, 1986.

"Noxious weeds" means weeds that are difficult to control effectively, such as
Johnson Grass, Kudzu, and multiflora rose.

"Plan of Development" means the process for site plan or subdivision plat review to
ensure compliance with Section 10. 1-2109 of the Code of Virginia and this Chapter,
prior to any clearing or grading of a site or the issuance of a building permit.

"Redevelopment" means the process of developing land that is or has been previously
developed.

"Resource Management Area" or "RMA" means that component of the Chesapeake Bay
Preservation Area that is not classified as the Resource Protection Area. RMAs
include land types that, if improperly used or developed, have the potential for
causing significant water quality degradation or for diminishing the functional value
of the Resource Protection Area.

"Resource Protection Area" or 'IRPAII means that 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
that are sensitive to impacts which may result in significant degradation to the

quality of state waters.

"Tidal shore" or "shore" means land contiguous to a tidal body of water between the
mean low water level and the mean high water level.

"Tidal wetlands" means vegetated and nonvegetated wetlands as defined in Section
62.1-13.2 of the Code of Virginia.

"Tributary stream" means any perennial stream that is so depicted on the most
recent U.S. Geological Survey 7-1/2 minute topographic quadrangle map (scale
1:24,000).

" Water- dependent facility" means a development of land that cannot exist outside of
the Resource Protection Area and must be located on the shoreline by reason of the
intrinsic nature of its operation. These facilities include, but are not limited to (i)
ports; (ii) the intake and outfall structures of power plants, water treatment plants,
sewage treatment plants, and storm sewers; (iii) marinas and other boat docking
structures; (iv) beaches and other public water-oriented recreation areas; and (v)
fisheries or other marine resources facilities.

"Wetlands" means tidal and nontidal wetlands.

Section 9.1-4. Chesapeake Bay Preservation Area Overlay
District Map; Applicability.

A. The boundaries of the district are hereby established as shown on the map
sheet entitled "Chesapeake Bay Preservation Areas, Portsmouth, Virginia," dated
Sepiember 1, 1990, which accompanies and, together with all explanatory material
thereon, is hereby declared to be a part of this Chapter, the said map sheet
hereinafter being referred to as the Chesapeake Bay Preservation Area Map.

B . The Chesapeake Bay Preservation Area Overlay District shall apply to all
lands identified and designated as CBPAs by the City Council, as shown on the
Chesapeake Bay Preservation Area Map.

(1) The Resource Protection Area (RPA) shall include:

a. Tidal wetlands;

b . Nontidal wetlands connected by surface flow and
contiguous to tidal wetlands or tributary streams;

C. Tidal shores;

d. A 100-foot vegetated buffer area located adjacent to and landward
of the components listed in subsections (a) through (c) above,
and along both sides of any tributary stream.

(2) The Resource Management Area (RMA) is defined as adjacent to the RPA
and shall be composed of:

(a) The 100-year floodplain as identified on the Federal Emergency
Management Agency Flood Insurance Rate Map dated November 11,
1983.

(b) Nontidal wetlands not connected by surface flow to tidal wetlands,
tributary streams or other tidal waters; and

(c) Where the above features do not exist adjacent to the RPA, an rea
measuring 530 feet landward from the maximum landward extent of
the RPA.

C. The Chesapeake Bay Preservation Area (CBPA) Map shall show the general
location of CBPAs and should be consulted by persons contemplating activities within
the City of Portsmouth prior to engaging in a regulated activity. .

D . Portions of RPAs and RMAs designated by the City Council as Intensely
Developed Areas shall serve as redevelopment areas. Areas so designated shall
comply with all erosion and sediment control requirements and the performance
standards for redevelopment in Section 9. 1 -11.

E . If at least 25 percent of a lot, parcel, or development project lies within the
bounaries of a CBPA, the entire lot, parcel, or development project shall comply with
the requirements of this Chapter.

Section 9.1-5. Use Regulations.

Permitted uses, special permit uses, accessory uses, and special requirements
shail be as established by the underlying zoning district, unless specifically modified
by the requirements set forth herein

Section 9.1-6. Lot Size.

Lot size shall be subject to the- requirements of the underlying zoning district (s) ,
provided that any lot shall have sufficient area outside the RPA to accommodate an
intended development, in accordance with the performance standards in Section 9. 1-
10, when such development is not otherwise allowed in the RPA.

Section 9.1-7. Required Conditions.

A. All development and redevelopment exceeding 2500 square feet of land
disturbance shall be subject to a plan of.
development process, including the approval of a site plan in accordance with the
provisions of the Zoning Ordinance or a subdivision plat in accordance with the
Chapter 33.

B . Development in RPAs may be allowed only if it: (i) is water-dependent; or
(ii) constitutes redevelopment.

C. A water quality impact assessment shall be required for any proposed
development or redevelopment within RPAs and for any development within RMAs
when required by the City Engineer because of the unique characteristics of the site
or intensity of development, in accordance with the provisions of Section 9.1-11.

Section 9.1-8. Conflict with other Regulations.

In any case where the requirements of this Chapter conflict with any other
provision of the Code of the City of Portsmouth or existing state or federal
regulations, whichever imposes the more stringent restrictions shall apply.

Section 9.1-9. Interpretation of Resource Protection Area
Boundaries.

A. Delineation by the Applicant.

The site-specific boundaries of the Resource Protection Area shall ordinarily be
determined by the applicant through the performance of an environmental site
assessment, subject to approval by the Director of Planning and in accordance with
Section 9. 1 - 11. The Chesapeake Bay Preservation Area Map shall be used as a
guide to the general location of Resource Protection Areas

B Delineation by Director of Planning

The Director of Planning, when requested by an applicant wishing to construct
a single-family residence, may waive the requirement for an environmental site
assessment and may perform the delineation. The Director of Planning may use
remote sensing, hydrology, soils, plant species, and any other relevant data, and
consult other sources as needed to perform the delineation. The delineation of the
Director of Planning shall be considered final and may not be appealed.

C. Where Conflict Arises Over Delineation.

Where the applicant has provided a site-specific delineation of the RPA, the
Director of Planning will verify the accuracy of
the boundary delineation. In determining the site-specific RPA boundary, the
Director of Planning may render adjustments to the applicant's boundary delineation,
inaccordance'with Section 9.1-11. In the event the adjusted boundary delineation
is contested by the applicant, the applicant may seek relief, in accordance with the
provisions of Section 9. 1 -11 1.

D. Final Delineation Shown on CBPA Map

When a delineation of a CBPA has been approved or established by the Director
of Planning, the CBPA Map shall be amended to reflect that delineation.

Section 9.1-10. Performance Standards.

A. Purpose and Intent -

The performance standards establish the means to minimize erosion and
sedimentation potential, reduce land application of nutrients and toxics, and
maximize rainwater infiltration.
Natural ground cover, especially woody vegetation, is most effective in holding soil
in place and preventing site erosion. Indigenous vegetation, with its adaptability
to local conditions without the use of harmful fertilizers or pesticides, filters
stormwater runoff . Minimizing impervious cover enhances rainwater infiltration and
effectively reduces stormwater runoff potential.

The purpose and intent of these requirements are also to implement the following
objectives: prevent a net increase in nonpoint source pollution from new
development; achieve a 10% reduction in nonpoint source pollution from
redevelopment; and achieve a 40% reduction in nonpoint source pollution from
agricultural uses.

B . General Performance Standards for Development and
Redevelopment.

(1) Land disturbance shall be limited to the area necessary to provide for the
desired use or development.

a. In accordance with an approved site plan, the limits of land
disturbance, including clearing or
grading shall be by-the construction footprint. These limits shaU
be clearly shown on submitted plans and physically marked on the
development site.

b. Ingress and egress during construction shall be limited to one
access point.

(2) Indigenous vegetation shall be preserved to the maximum extent possible
consistent with the use and development permitted and in accordance with
the Virginia Erosion and Sediment Control Handbook.

a. Existing trees over six (6) inches diameter at breast height (DBH)
shall be preserved outside the construction footprint. Diseased
trees or trees weakened by age, storm, fire, or other injury may be
removed.

b. Clearing shall be allowed only to provide necessary access, positive
site drainage, water quality B.MPs, and the installation of utilities.

C. Prior to clearing or grading, suitable protective barriers, such as
fencing of a type detailed in the.Landscape Planting and Protection
Manual, Portsmouth, Virainia shall be erected 5 feet outside of the
dripline of any tree or stand of trees to be preserved. These
protective barriers shall remain so erected throughout aU phases of

construction. The storage of equipment, materials, debris, or fill
shall not be allowed within the area protected by the barrier.

(3) Land development shall minimize impervious cover to promote infiltration
of stormwater into the ground consistent with the use or development
permitted.

a. Pervious surfaces shall be used for any required parking area,
alley, or other low traffic driveway.

(4) Notwithstanding any other provisions of this Chapter or exceptions or
exemptions thereto, any land disturbing activity exceeding 2,500 square
feet, including construction of all single-family houses, septic tanks, and
drainfields, shall also comply with the requirements of Chapter 11.

(5) All on-site sewage disposal systems not requiring a VPDES permit shall be
pumped out at least once every five years, in accordance with the
provisions of Section 38-312 of the Code.

(6) A reserve sewage disposal site with a capacity at least equal to that of the
primary sewage disposal site shall be provided, in accordance with Section
38-313 of the Code. This requirement shall not apply to any lot or parcel
recorded prior to October 1, 1989 if such lot or parcel is not sufficient in
capacity to accommodate a reserve sewage disposal site, as determined by
the local Health Department. Building or construction of any impervious
surface shall be prohibited on the area of all sewage disposal sites or on an
on-site sewage treatment system which operates under a permit issued by
the State Water Control Board, until the structure is served by public
sewer.

(7) For any development or redevelopment, stormwater runoff shall be
controlled by the use of best management practices that achieve the
following:

a. For development, the post- development nonpoint source pollution
runoff load shall not exceed the pre-development load, based on the
calculated average land cover condition of the City of Portsmouth;

b . For sites within IDAs or other isolated redevelopment sites, the
nonpoint source pollution load shall be reduced by at least 10
percent. This requirement may be waived for redevelopment sites
that originally incorporated best management practices for
stormwater runoff quality control, provided the following provisions
are satisfied:

1 - In no case may the post- development nonpoint source
pollution runoff load exceed the pre-development load;

2. Runoff pollution loads must have been calculated and the
BMPs selected for the
expressed purpose of controlling nonpoint
source pollution;

3. If best management practices are structural, evidence shall be
provided that facilities are currently in good working order
and performing at the design levels of service . The City
Engineer may require a review of both the original structural
design and maintenance plans to verify this provision. A new
maintenance agreement may be required to ensure compliance
with this Chapter.

c For redevelopment, both the pre- and post -development loadings
shall be calculated by the same procedures. However, where the
design data is available, the original post- development nonpoint
source pollution loadings can be substituted for the existing
development loadings.

(8) Prior to initiating grading or other on-site activities on any portion of a lot
or parcel, all wetlands permits required by federal, state, and local laws
and regulations shall be obtained and evidence of such submitted to the
City Engineer, in accordance with Section 9. 1 -11.

(9) Land upon which agricultural activities are being conducted shall have a
soil and water quality conservation plan. Such plan shall be based upon
the Field Office Technical Guide of the U. S. Department of Agriculture Soil
Conservation Service and accomplish water quality protection consistent
with this ordinance. Such a plan shall be approved by the local Soil and
Water Conservation District by January 1, 1995.

C . Buffer Area Requirements.

To minimize the adverse effects of human activities on the other components of
Resource Protection Areas, state waters, and aquatic life, a 100-foot buffer area of
vegetation that is effective in retarding runoff, preventing erosion, and filtering
nonpoint source pollution from runoff shall be retained if present and established
where it does not exist.

The buffer area shall be located adjacent to and landward of other RPA
components and along both sides of any tributary stream. The full buffer area shall
be designated as the landward component of the RPA, in accordance with Sections
9.1-4 and 9. 1 -11.

The 100-foot buffer area shall be deemed to achieve a 75 percent reduction of
sediments and a 40 percent reduction of nutrients. A combination of a buffer area
not less than 50 feet in width and appropriate best management practices located
landward of the buffer area which collectively achieve water quality protection,
pollutant removal, and water resource conservation at least the equivalent of the full
100-foot buffer area may be employed in lieu of the 100-foot buffer if approved by
the City Engineer after consideration of the Water Quality Impact Assessment, in
accordance with Section 9.1-11.

The buffer area shall be maintained to meet the following additional performance
standards:

In order to maintain the functional value of the buffer area, indigenous
vegetation may be removed only to provide for reasonable sight lines,
access paths, general woodlot management, and - best management
practices, as follows:

a. Trees may be pruned or removed as necessary to provide for sight
lines and vistas; provided that
where removed, they shall be replaced with other vegetation that is
equally effective in retarding runoff, preventing erosion, and
filtering nonpoint source pollution from runoff

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

C. Dead, diseased, or dying trees or shrubbery may be removed at the
discretion of the landowner, and silvicultural thinning may be
conducted based upon the best available technical information.

d. For shoreline erosion control projects, trees and woody vegetation
may be'removed, necessary control techniques employed, and
appropriate -vegetation established to protect or stabilize the
shoreline in accordance with the best available technical advice and
applicable permit conditions or requirements.

(2) When the application of the buffer areas would result in the loss of a
buildable area on a lot or parcel recorded prior to October 1, 1989, the
Director of Planning, after consulting with the -City Engineer, may modify
the width of the buffer area in accordance with Section 9.1-11 and the
following criteria:

a. Modifications to the buffer areas shall be the munmum necessary to
achieve a reasonable buildable area for a principal structure and
necessary utilities;

b. Where possible, an area equal to the area encroaching the buffer
area shall be established elsewhere on the lot or parcel in a way to
maximize water quality protection; and

C. In no case shall the reduced portion of the buffer area be less than
50 feet in width.

(3) Redevelopment within IDAs may be exempt from the buffer area, in
accordance with Section 9. 1 -11.

(4) On agricultural lands the agricultural buffer area shall be managed to
prevent concentrated flows of surface water from breaching the buffer
area and noxious weeds from invading the buffer area. The agricultural
buffer area may be reduced as follows:

a. To a minimum width of 50 feet when the adjacent land is implementing
a federal, state, or locally-funded agricultural best management

practices program, provided that the combination of the reduced
buffer area and the best management practices achieve water quality
protection, pollutant removal, and water resource conservation at
least the equivalent of the 100 foot buffer area;

b To a minimum width of 25 feet when a soil and water quality
conservation plan, as approved by the local Soil and Water
Conservation District, has been implemented on the adjacent land.
Such plan shall be based upon the Field Office Technical Guide of
the U. S. Department of Agriculture Soil Conservation Service and
accomplish water quality protection consistent with this Chapter.

C. The buffer area shall not be required for agricultural draina
ditches if the adjacent agricultural land has in place best
management practices in accordance with a conservation plan
approved by the local Soil and Water Conservation District.

Section 9. 1 -11. Plan of Development Process.

Any development or redevelopment exceeding 2500 square feet of land
disturbance shall be accomplished through a plan of development process prior to
any clearing or grading of the site or the issuance of any building permit, to assure
compliance with.all applicable requirements of this Chapter.

A. Required Information.

In addition to the requirements of the Zoning Ordinance,
or the requirements of Chapter 33, the plan of development process shaU consist of
the plans and studies identified below.
The following plans or studies shall be submitted, unless otherwise directed:

(1) A site plan in accordance with the provisions of the Zoning Ordinance; or
a subdivision plat in accordance with the provisions of Chapter 33.

(2) An environmental site assessment;

(3) A landscaping plan;

(4) A stormwater management plan;

(5) An erosion and sediment control plan in accordance with the provisions of
Chapter 11;

(6) A Water Quality Impact Assessment as necessary under the requirements
of Section 9. 1 - 11 F.

B. Environmental Site Assessment.

An environmental site assessment shall be submitted in conjunction with
preliminary site plan or preliminary subdivision plan approval.

(1) The environmental site assessment shall be drawn to scale and clearly
delineate the following environmental features:

a. Tidal wetlands;
b. Tidal shores;

C. Nontidal wetlands connected by surface flow and contiguous to tidal
wetlands or tributary streams;
d. A 100 foot buffer area located adjacent to and landward of the
components listed in subsections (a) through (c) above, and along
both sides of any tributary stream;
e. Other sensitive environmental features as determined by the City
Engineer.

(2) Wetlands delineations shall be performed consistent with the procedures
specified in the Federal Manual for Identifying and Delineating
Jurisdictional Wetlands, 1989.

(3) The environmental site assessment shall delineate the site-specific
geographic extent of the RPA.

(4) The environmental site assessment shall be drawn at the same scale as the
preliminary site plan or subdivision plat, and shall be certified as complete
and accurate by a professional engineer or a certified land surveyor. This
requirement may be waived by the City Engineer when the proposed use
or development would result in less than 5,000 square feet of disturbed
area.

C . Landscaping Plan.

A landscaping plan shall be submitted in, conjunction with site plan approval
.or as part of subdivision plat approval. No clearing or grading of any lot or
parcel shall be permitted without an approved landscaping plan.

Landscaping plans shall be prepared and certified by design professionals
practicing within their areas of competence as
prescribed by the Code of Virginia.

(1) Contents of the Plan.

a. The landscaping plan shall be drawn to scale and clearly delineate
the location, size, and description of existing and proposed plant
material. All existing trees on the site six (6) inches or greater
DBH shall be shown on the landscaping plan. Where there are
groups of 5 or more trees, stands may be outlined instead., The
specific number of trees six (6) inches or greater DBH to be
preserved outside of the construction footprint shall be indicated on
the plan. Trees to be removed shall be clearly delineated on the
landscaping plan. The plan shall be consistent with Chapter 36,

b. Any required buffer area shall be clearly delineated and any plant
material to be added to establish or supplement the buffer area, as
required by this Chapter, shall be shown on the landscaping plan.

C. Within the buffer area, trees to be removed for sight lines, vistas,
access paths, and best management practices, as provided for in
this Chapter, shall be shown on the plan. Vegetation required by
this Chapter to replace any existing trees within the buffer area
shall be also be shown on the landscaping plan.

d. Trees to be removed for shoreline stabilization projects and any
replacement vegetation required by this Chapter shall be shown on
the landscaping plan.

e. The plan shall depict grade changes or other work adjacent to trees
which would affect them adversely. Specifications shall be provided
as to how grade, drainage, and aeration would be maintained around
trees to be preserved.

f. The landscaping plan will include specification for the protection
existing trees during clearing, grading, and all phases of construc-
tion, consistent with such measures as described in the Landscape
Planting and Protection Manual, Portsmouth, Virginia.

(2) Plant Specifications.

a. All plant materials necessary to supplement the buffer area or
vegetated areas outside the construction footprint shall be installed
in accordance with the specifications referred to in Section 36-52(9)
of this Code.

b. All supplementary or replacement plant materials shall be living and
in a healthy condition. Plant materials shall conform to the
standards of the most recent edition of the American Standard for
Nursery Stock, published by the American Association of
Nurserymen.

c . Where areas to be preserved, as designated on an approved
landscaping plan, are encroached, replacement of existing trees and
other vegetation will be achieved at a ratio of three (3) planted trees
to one (1) removed. Replacement trees shall be a minimum three and
one-half (3.5) inches DBH at the time of planting.

(3) Maintenance.

a . The applicant shall be responsible for the maintenance and
replacement of all vegetation as may be required by the provisions
of this Chapter.

b. In buffer areas and areas outside the construction footprint, plant
material shall be tended and maintained in a healthy'growing

condition and free from refuse and debris. Unhealthy, dying, or
dead plant materials shall be replaced during the next planting
season, as required by the provisions of this Chapter.

D. Stormwater Management Plan.

A stormwater management plan shall be submitted as part of the plan of
development process required by this Chapter and in conjunction with site plan or
subdivision plan approval.

(1) Contents of the Plan.

The stormwater management plan shall contain maps, charts, graphs,
tables, photographs, narrative descriptions, explanations, and citations
to supporting references as appropriate to communicate the information
required by this Chapter. At a minimum, the stormwater management plan
must contain the following:

a. Location and design of all planned stormwater control devices;

b. Procedures for implementing non-structural stormwater control
practices and techniques which can be described in narrative form;

C. Pre- and post-development nonpoint source pollutant loadings with
supporting documentation of all utilized coefficients and
calculations;

d. For facilities, verification of structural soundness, including a
Professional Engineer or Class IIIB Surveyor Certification;

(2) Site specific facilities shall be designed for the ultimate development of the
contributing watershed based on zoning, comprehensive plans, local public
facility master plans, or other similar planning documents.

(3) All engineering calculations must be performed in accordance with
procedures outlined in the current edition of the Local Assistance Manual,
Virpjnia Erosion and Sediment Control Handbook, Virginia Department of,
Transportation Drainage Manual, or any other good engineering methods
deemed appropriate by the City Engineer.

(4) The plan shall establish a long-term schedule for ins pection and
.maintenance of stormwater management
facilities that includes all maintenance requirements and identifies persons
responsible for performing maintenance. If the designated maintenance
responsibility is with a party other than the City
of Portsmouth, a maintenance agreement shall be executed between the
responsible party and the City of Portsmouth.

E. Erosion and Sediment Control Plan.

An erosion and sediment control plan shall be submitted that satisfies the
requirements of this Chapter and is in accordance with Chapter 11, in conjunction
with site plan or subdivision plan approval

F. Water Quality Impact Assessment

(1) Purpose and Intent.

The purpose of the water quality impact assessment is to: (i)
identify the impacts of proposed development on water quality and lands
within RPAs and other environmentally -sensitive lands; (ii) ensure that,
where development does take place within RPAs and other sensitive lands,
it will be located on those portions of a site and in a manner that will be
least disruptive to the natural functions of RPAs and other sensitive lands;
(iii) to protect individuals from investing funds for improvements proposed
for location on lands unsuited for such development because of high
ground water, erosion, or vulnerability to flood and storm damage; (iv)
provide for administrative relief from the terms of this Chapter when
warranted and in accordance with the requirements contained herein; and
(v) specify mitigation which will address water quality protection.

(2) Water Quality Impact Assessment Required.

A water quality impact assessment is required for (i) any proposed
development within an RPA, including any buffer area modification or
reduction as provided for in Section 9.1-10; (ii) any development in a
RMA as deemed necessary by the City Engineer due to the unique
characteristics of the site or intensity of the proposed development. There
shall be two levels of water quality impact assessments: a minor assessment
and a major assessment.

(3) Minor Water Quality Impact Assessment.

A minor water quality impact assessment pertains only to
development within an RPA which causes no more
than 5, 000 square feet of land disturbance and requires
any modification or reduction of the landward 50 feet of the 100 foot buffer
area. Submission of a plan of development that demonstrates through the
use of calculations provided for by Section 9. 1 -11 D (1) that the remaining
buffer area and necessary best management practices wiU result in removal
of no less than 75 percent of sediments and 40 percent of nutrients from
post -development stormwater runoff shall be deemed to have satisfied the
requirement for a minor water quality impact assessment.

(4) Major Water Quality Impact Assessment.

A major water quality impact assessment shall be required for any
development which (i) exceeds 5, 000 square feet of land disturbance within
an RPA; or (h) is located in an RMA and is deemed necessary by the City

Engineer. The information required in this section shall be considered a
minimum. The following elements shall be included in the preparation and
submission of a major water quality assessment:

(a) All of the information required in a minor water quality impact
assessment, as specified in Section 9.1-11 F (3);

(b) -A hydrogeological element that:

i. Describes the existing topography, soils, hydrology and
geology of the site and adjacent lands.

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

iii. Indicates the disturbance or destruction of wetlands and
justification for such action;

iv. Indicates the disruptions or reductions in the supply of water
to wetland, streams, lakes, rivers or other water bodies;

V. Indicates the disruptions to existing hydrology including
wetland and stream circulation patterns;

vi. Indicates the source location and de scription of proposed fill
material;

vii. Indicates the location of dredge material and location of
dumping area for such material;

viii. Indicates the -location of and impacts on shellfish beds,
submerged aquatic vegetation, and fish spawning areas;

ix. Describes the proposed mitigation measures for the potential
hydrogeological. impacts which may include:

Proposed erosion and sediment control concepts which may
include minimizing the extent of the cleared area, perimeter
controls, reduction of runoff velocities, measures to stabilize
disturbed areas, schedule and personnel for site inspection;

Proposed stormwater management system;

Creation of wetlands to replace those lost;

Minimizing cut and fill.

(c) A landscape element that describes the potential measures for
mitigation of the water quality and land impacts within the CBPA's.
Possible mitigation measures include:

i. Replanting schedule for trees and other significant vegetation
removed for construction, in accordance with Section 36 -5 2
of the Code.

ii. Demonstration that the design of the plan will preserve to the
greatest extent possible any significant trees and vegetation
on the site and will provide maximum erosion control and
overland flow benefits from such vegetation.

iii. Demonstration that indigenous plants are to be used to the
greatest extent possible.

(d) A wastewater element, where applicable, that:

i. Includes calculations and locations of anticipated drainfield or
wastewater irrigation areas;

ii. Provides justification for sewer line locations in
environmentally- sensitive areas, where applicable, and
describes construction techniques and standards;

iii. Discusses any proposed on-site collection and treatment
systems, their treatment levels, and impacts on receiving
watercourses.

iv. Describes the potential impacts of the proposed w astewater
systems on water quality and lands within CBPA's, including
the proposed mitigative measures for these impacts.

(e) Identification of the existing characteristics and conditions of
sensitive lands included as components of Chesapeake Bay
Preservation Areas, as defined in this Chapter.

(f) As part of any major water quality impact assessment submittal, the
City Engineer may require review by the Chesapeake Bay Local
Assistance Department (CBLAD). Upon receipt of a major water
quality impact assessment, the.City Engineer will determine if such
review is warranted and may request CBLAD to review the
assessment and respond with written comments. Any comments by
CBLAD will be incorporated into the final review by the City
Engineer, provided that such comments are provided by CBLAD
within 90 days of the request.

(5) Evaluation Procedure -

(a) Upon the completed review of a minor water quality impact
assessment, the City Engineer will determine if any proposed
modification,or reduction to the buffer area is consistent with the
provisions of this Chapter and that the following criteria have been
satisfied:

The proposed encroachment is necessary due to the inability
to place improvements elsewhere on the site to avoid
disturbance of the buffer area;

ii. Impervious surface is minimized;

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

iv. The development, as proposed, meets the purpose and intent
of this Chapter;

(b) Upon the completed review of a major water quality impact
assessment, the City Engineer will determine if the proposed
development is consistent with the purpose and intent of this
Chapter and that the following criteria have been satsfied:

i . Within any RPA, the proposed development is water-
dependent;

ii. The disturbance of any wetlands will be.minimized;

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

iv. Proposed stormwater management concepts are adequate to
control the stormwater runoff to achieve the required
performance standard for pollutant control;

V. Proposed revegetation of disturbed areas will
provide optimum erosion and sediment control
benefits;

vi. The design and location of any proposed drainfield will be in
accordance with the requirements of Section 9. 1 -10.

vu. The development, as proposed, is consistent with the purpose
and intent of this Chapter;

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

G. Final Plan.

Final plans for property within CBPAs shall be final plats for land to be
subdivided or site plans for land not to be subdivided as required in the Zoning
Ordinance.

(1) Final plans for all lands within CBPAs shall include the following additional
information:

(a) The delineation of the Resource Protection Area boundary;

(b) The delineation of required buffer areas;

(d) A maintenance agreement as deemed necessary and appropriate by
the City Engineer to ensure proper maintenance of best management
practices in order to continue their functions.

(2) Installation and Bonding Requirements.

(a) Where buffer areas, landscaping, stormwater management facilities
or other specifications of an approved plan are required, no
certificate of occupancy shall be issued until the installation of
required plant materials or facilities is completed, in accordance with
the approved site plan.

(b) When the occupancy of a structure is desired prior to the completion
of the required landscaping, stormwater management facilities, or
other specifications of an approved plan, a certificate of occupancy
may be issued only if the applicant provides to the City a form of
surety satisfactory to the City Attorney in amount equal to the
remaining plant materials, related materials, and installation costs,
of the required landscaping or other specifications or maintenance
costs for any required stormwater management facilities.

(c) All required landscaping shall be installed and approved by the first
planting season following issuance of a certificate of occupancy or
the surety may be forfeited to the City.

(d) All required stormwater management facilities or other specifications
shall be installed and approved within 18 months of project
commencement . Should the applicant fail, after proper notice, to
initiate, complete or maintain appropriate actions required by the
approved plan, the surety may be forfeited to City. The City may
collect from the applicant the amount by which the reasonable cost
of required actions exceeds the amount of the surety held.

(e) After all required actions of the approved site plan have be en
completed, the applicant must submit a written request for a final
inspection. If the requirements of the approved plan have been
completed to the satisfaction of the City Engineer, such unexpended
or unobligated portion of the surety held shall be refunded to the
applicant or terminated within 60 days following the receipt of the
applicant's request for final inspection. The City Engineer may
require a certificate of substantial completion from a Professional
Engineer or Class III B Surveyor before making a final inspection.

H . Administrative Responsibility.

Administration of the plan of development process shall be in accordance with the
Zoning Ordinance or Chapter 33.

I . Denial of Plan, Appeal of Conditions or Modifications.

In the event the final plan or any component of the plan of development process
is disapproved and recommended conditions
or modifications are unacceptable to the applicant, the applicant may appeal such
administrative decision to the Planning Commission. In granting or denying an
appeal, the Planning Commission must find such plan to be in accordance with all
applicable ordinances and include necessary elements to mitigate any detrimental
impact on water quality and upon adjacent property and the surrounding area, or
such plan meets the purpose and intent of the performance standards in this
Chapter. If the Planning Commission finds that the applicant's plan does not meet
the above stated criteria, it shall deny approval of the plan.

Section 9.1-,12. Nonconforming Use and Development Waivers.

The lawful use of a building or structure which existed on September 1, 1990 or
which exists at the time of any amendment to this Chapter, and which is not in
conformity with the provisions of this Chapter may be continued in accordance with
the provisions of the Zoning Ordinance.

No change or expansion of use shall be allowed with the exception that:

(1) The Zoning Administrator may grant a nonconforming use and development
waiver for structures on legal nonconforming lots or parcels to provide for
remodeling and alterations or additions to such nonconforming structures
provided that the City Engineer has certified fh@at:

a. There will be no increase in nonpoint source pollution load;

b . Any development or land disturbance exceeding@ an area of 2500
square feet complies with all erosion and sediment control
requirements of this Chapter.

(2) An application for a nonconforming use and development waiver shall be
made to and upon forms furnished by the Zoning Administrator and shall
include for the purpose of proper enforcement of this Chapter, the
following information:

a. Name and address of applicant and property owner;

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

C. A sketch of the dimensions of the lot or parcel, location of buildings
and proposed additions relative to the lot lines, and boundary of the
Resource Protection Area;

d. Location and description of any existing private water supply or
sewage system.

(3) A nonconforming use and development waiver shall become null and void
twelve months from the date issued if no substantial work has commenced.

Section 9.1-13. Exemptions.

A. Exemptions for Utilities, Railroads, and Public Roads.

Construction, installation, and maintenance of water, sewer, gas and other local
utility lines shall be exempt from the requirements of this Chapter, provided that:

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

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

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

d. Any land disturbance . exceeding an area of 2,500 square feet
complies with all City erosion and sediment control requirements.

B . Exemptions for Silvicultural Activities.

Silvicultural activities are exempt from the requirements of this provided that
silvicultural operations adhere to water quality protection procedures prescribed by
the Department of Forestry in its "Best Management Practices Handbook for Forestry
Operations. 11

C . Exemptions in Resource Protection Areas.

The following land disturbances in Resource Protection Areas may be exempted
from the requirements of this Chapter: (i) water wells; (ii) passive recreation
facilities such as boardwalks, trails, and pathways; and (iii) historic preservation
and archaeological activities, provided that it is demonstrated to
the satisfaction of the Director of Planning that:
(1) Any required permits, except those to which this exemption specifically
applies, shall have been issued;

(2) Sufficient and reasonable proof is submitted that the intended use will not
deteriorate water quality;

(3) The intended use does not conflict with nearby planned or approved uses;
and

(4) Any land disturbance exceeding an area of 2500 square feet shall comply
with all City of Portsmouth erosion and sediment control requirements.

D. It is not the intent of this ordinance to prevent the reconstruction of pre-
existing structures within CBPA's from occuring as a result of casualty loss unless
otherwise restricted by the City Code.

Section 9.1-14. Exceptions.

A. An application for an exception to the requirements of this Overlay District
shall be made in writing to the Director of Planning on a form provided by the
Director. No such application shall be accepted by the Director of Planning unless
accomplanied by a non-refundable fee in the amount of one-hundred dollars
($100.00). The application shall identify the impacts of the proposed exception on
water quality and on lands within the RPA through the performance of a water
quality impact assessment which complies with the provisions of Section 9. 1 -11 F.

B. The Director shall cause a sign to be posted on the property and shall cause
to be published a legal notice of a public hearing in accordance with of the Zoning
Ordinance -

C . The Planning Commission shall review the request for an exception and the
water quality impact assessment and may grant the exception with such conditions
and safeguards as deemed necessary to further the purpose and intent of this
Chapter, if the Planning Commission finds that:

(1) Granting the exception will not confer upon the applicant any special
privileges that are denied by this Chapter to other property owners in the
Overlay District;

(2) The exception request is not based upon conditions or circumstances that
are self-created or self-imposed,. nor does the request arise from
conditions or circumstances either permitted or non-conforming that are
related to adjacent parcels;

(3) The exception request is the minimum necessary to afford relief;

(4) The exception request will be in harmony with the purpose and intent of
this Chapter, and not injurious to the neighborhood or otherwise
detrimental to the public welfare; and

(5) Reasonable and appropriate conditions are imposed which will prevent the
exception request from causing a degradation of water quality.

Section 9.1-15. Enforcement

Any person who violates any of the provisions of this Chapter, upon conviction
thereof Y shall be fined not less than ten dollars ($10. 00), nor more than two hundred
fifty dollars ($250. 00). Each day's continuance of such violation shall constitute a
separate offense.

2. That this Ordinance shall take effect on September 1, 1990.

3. Adopted by the Council of the City of Portsmouth, Virginia, at a meeting
held on August 28, 1990.

Teste:

City Clerk

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RESOURCE PROTECTION AREA:
Includes tidal shorelines, tidal wetlands, non-tidal wetlands contiguous
111111111 RPA to tidal wetlands, and 100 foot buffer area.

RESOURCE MANAGEMENT AREA:
Based on a study of the 100-year floodplain, non-tidal wetlands,
RMAand other environmental features.

INTENSELY DEVELOPED AREA:
Areas of existing development and Infill sites where little of the i6I`V04 _iWM STATS* MOLOQ@ @fy FWS
1.5 WINNOW MIMS WW=APN=
IDA natural environment remains.

Approved bry City PhLrwdng ComnitWon August 7,1990

NOAA COASTAL SERVICES CTR LIBRARY

3 6668 14110560 3