Title
A proposal by the City of Hampton to amend and re-enact the Zoning Ordinance of the City of Hampton, Virginia by amending Chapter 2, Section 2-2 entitled “Definitions” and Chapter 9, Article II entitled “O-CBP District - Chesapeake Bay Preservation Overlay” to improve clarity and align language with current regulatory practices and state guidance, as well as to bring the City’s ordinance into compliance with Virginia Code and State Water Control Board regulations regarding trees and coastal resilience.
Purpose
Background Statement:
The City is updating its Chesapeake Bay Preservation Overlay (CBPO) ordinance to comply with changes to the Chesapeake Bay Preservation Act in 2020 and associated State Water Control Board regulations adopted in July 2021 to address mature tree preservation, planting of trees, coastal resilience, and adaptation to sea level rise and climate change. Further, Zoning Ordinance definitions are being amended to modernize and refine terminology, improve clarity, and incorporate environmental and resilience considerations that align with current regulatory practices and state guidance.
The proposed amendment to Chapter 2, “Definitions,” introduces new terms to enhance clarity and reinforce the City’s zoning regulations regarding environmental protection, climate resilience, and shoreline management. The amendment includes definitions for adaptation measures, tree measurement standards (caliper, diameter at breast height, canopy tree, understory tree, mature tree), fill, freeboard, land disturbance, Limit of Moderate Wave Action (LiMWA), living shoreline, nature-based solution, and storm surge. These additions provide consistent terminology to support development review, resource protection, floodplain compliance, and resiliency planning in accordance with state and federal guidance. The proposed amendment deletes the environmental site assessment definition, which is not used in the Zoning Ordinance, and modifies the resource management area definition for clarity.
The proposed amendment to Chapter 9, Article II emphasizes the preservation of mature trees, the incorporation of trees plantings-preferably native species-into 100-foot buffers, and limiting vegetation removal. The amendment establishes performance criteria for shoreline erosion control and nature-based adaptation measures, including the use of fill and vegetation, to maximize water quality benefits and minimize impacts. The amendment requires resiliency assessments for all development and redevelopment in RPAs and IDAs, addressing potential effects of sea-level rise, storm surge, and flooding, and ensuring compliance with federal, state, and local regulations. The revisions are consistent with state guidance, the Virginia Marine Resources Commission Tidal Wetlands Guidelines, the State Water Control Board regulations, and Chesapeake Bay Preservation Act requirements.
In summary, staff recommends adoption of the proposed amendments to Chapter 2 and Chapter 9, Article II in order to comply with changes to the Chesapeake Bay Preservation Act and State Water Control Board regulations. The amendments modernize and clarify definitions for environmental protection, Chesapeake Bay preservation, trees and landscaping, land use, and coastal resilience. The amendments also establish resiliency assessment requirements, protect mature trees, encourage the use of native trees in plantings, and provide clear standards for adaptation measures.
Recommendations:
Rec
Staff Recommendation: Approval
Body
Ordinance to Amend and Reenact the Zoning Ordinance of the City of Hampton, Virginia by Amending Chapter 2 Entitled, “Definitions.” And Chapter 9, Article II Entitled, “O-CBP District - Chesapeake Bay Preservation Overlay.” to improve clarity and align language with current regulatory practices and state guidance, as well as to bring the City’s ordinance into compliance with Virginia Code and State Water Control Board regulations regarding trees and coastal resilience.
WHEREAS, the public necessity, convenience, general welfare, and good zoning practice so require;
BE IT ORDAINED by the City Council of the City of Hampton, Virginia, that Chapter 2 and Chapter 9, Article II of the Zoning Ordinance of the City of Hampton, Virginia be amended to read as follows:
CHAPTER 2 - DEFINITIONS
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Sec. 2-2. - Definitions.
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Active recreation area. That portion of the green area provided in developments that is intended to, and can support physical recreation activities or facilities.
Adaptation measure. A project, practice, or approach to mitigate or address an impact of climate change including sea-level rise, storm surge, and flooding including increased or recurrent flooding.
Adjacent. Sharing a common boundary or separated by a right-of-way or water body.
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Business park/shopping center outparcel, independent. A separate parcel or land area constituting a portion of the outer perimeter of a business park/shopping center that contains its own establishment, meets the minimum required parking and green area for the outparcel independently without utilization of parking or green area of the business park/shopping center, and provides at least one (1) separate access to the outparcel from a public right-of-way. Caliper. The diameter of a tree measured six (6) inches above existing grade.
Canopy tree. A tree that typically reaches 35 feet in height or taller when mature.
Carnival. An itinerant group of persons and equipment primarily in the business of furnishing entertainment, in the combined form of gaming devices, side shows, and riding devices, operated independent of any local facility, commercial establishment, or non-profit organization. Chesapeake Bay Review Committee. The decision making body responsible for hearing requests for relief to the O-CBP regulations and deciding O-CBP boundary disputes; composed of the director of the department of community development, the zoning administrator, the director of public works, the building official, and the chair of the wetlands board or his designee.
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Development. Any man-made change to improved or unimproved real estate including, but not limited to, structures, utilities, mining, dredging, filling, grading, paving, excavation or drilling operation, or any land disturbance and the resulting landform associated with the construction of residential, commercial, industrial, institutional, recreation, transportation, or utility facilities or structures or the clearing of land for non-agricultural or non-silvicultural purposes.
Diameter at breast height (DBH). The diameter of a tree measured at a point four and one-half (4-1/2) feet above the existing grade, or the natural surface or contour of a site.
Dormitory. A structure devoted to housing of regularly enrolled students of a college or university that contains lodging units or sleeping rooms and may contain a common kitchen and dining facility for the occupants, operated by an agent of the affiliated college or university.
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Encroachment. Any improvement that intrudes into a required setback, buffer area, or protected open space.
Establishment. Any business, institutional, professional or religious entity which provides products or services, or any apartment, condominium, cluster home, townhouse for sale, or similar project. Only an entity which occupies a separate business space which is enclosed by walls and accessed and secured separately will be considered a single establishment. Any apartment, condominium, cluster home, townhouse for sale or similar project under single management or association will be considered a single establishment unless located on non-contiguous lots, in which case each non-contiguous grouping will be considered a separate establishment.
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Fence, natural. Any natural or dense vegetation, including but not limited to hedges, trees and shrubs, that acts in the same manner as a fence to create a screen or barrier that operates to prevent or eliminate vision, viewing, or access to a property.
Fill. Material such as sand, soil, gravel, or crushed stone which is placed in an area, often to adjust elevation or create land contouring.
Flag lot. A lot connected to a public right-of-way by a narrow strip of land (the "flagpole" or "panhandle") that does not meet the required minimum frontage standards.
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Food truck operator. The individual or entity required to obtain a Food Truck Permit to operate a food truck per city code Chapter 15.
Freeboard. An additional amount of height above the Base Flood Elevation used as a factor of safety (e.g., 2 feet above the Base Flood) in determining the level at which a structure's lowest floor must be elevated or floodproofed to be in accordance with state or community floodplain management regulations.
Front yard. A yard extending across the full width of the lot and lying between the nearest building line and the front lot line or proposed right-of-way line.
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Kennel. Any establishment in which five (5) or more canines, felines, or hybrids of either, over the age of four (4) months are kept for the purpose of breeding, hunting, training, renting, buying, boarding, selling, or showing.
Land disturbance or land disturbing activity. Any man-made change to the land surface that may result in soil erosion from water or wind and the movement of sediments into state waters or onto lands in the Commonwealth, including, but not limited to, clearing, grading, excavating, transporting, and filling of land. [The term shall not include minor activities such as home gardening, individual home landscaping and home maintenance.]
Learning/tutoring center. A commercial establishment offering educational counseling and tutoring for a fee.
Limit of Moderate Wave Action (LiMWA). The LiMWA is an informational line that can be found on flood maps for some coastal areas. On a flood map, it is shown as a black line with black arrows that point to areas where wave heights are between one and one-half (1.5) and three (3) feet. It also marks the inland limit of the Coastal Zone A.
Live entertainment. Any artistic, musical or theatrical performance, including but not limited to, karaoke, open-microphone, live vocal or instrumental music, recorded music with a disc jockey (DJ), play, stand-up comedy, dance act, magic, poetry reading, reenactment, cabaret, or any combination thereof, performed by one (1) or more persons, whether or not they are compensated for the performance, in a privately owned premises that is open to the public, whether or not admission is charged.
Living Shoreline. A shoreline management practice that: provides erosion control and water quality benefits; protects, restores, or enhances natural shoreline habitat; and maintains coastal processes through the strategic placement of plants, stone, sand fill, and other structural and organic materials. When practicable, a living shoreline may enhance coastal resilience and attenuation of wave energy and storm surge. Pursuant to Va. Code §28.2-104.1, living shorelines are recognized as the preferred alternative for stabilizing shorelines in the Commonwealth. Only living shorelines shall be permitted for shoreline management unless the best available science shows that such approaches are not suitable.
Loading space. An off-street space or berth on the same lot with a building, or contiguous to a group of buildings, for the temporary parking of vehicles while loading or unloading merchandise or material that has access to a street, alley, or other appropriate means of ingress and egress.
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Manufactured home subdivision. A development where all manufactured mobile home sites are fee-simple lots, all dwelling units are attached to permanent foundations, and any common area within the development is under the ownership of a homeowners' association. All manufactured/mobile homes within the subdivision shall be under the ownership of the person or entity owning the lot on which the unit is located.
Mature tree. A canopy tree with a diameter at breast height (DBH) of 12 inches or greater or an understory tree with a DBH of four (4) inches or greater.
Maximum extent practicable. A situation where no feasible or practical alternative exists, as determined by the city official responsible for administering the permit approval, and all possible efforts to comply with the standards or regulation or minimize potential harmful or adverse impacts have been undertaken by an applicant; economic considerations may be taken into account but shall not be the overriding factor.
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Nacelle. The structure which houses all of the generating components, gearbox, drive train and other mechanical components of a wind energy system.
Nature-based solution. An approach that reduces the impacts of sea-level rise, flooding, and storm events through the use of environmental processes and natural systems.
Net density. The allowable number of dwelling units per buildable acre of land proposed for development.
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Resource delineation. A site-specific determination of the boundaries of Chesapeake Bay Preservation District depicted on a physical survey of the site or parcel that is prepared and certified as complete and accurate by a licensed professional engineer, land surveyor, architect or landscape architect licensed to do business in the Commonwealth of Virginia; drawn at a scale of not less than one hundred (100) feet to the inch on a print not greater than twenty-four (24) inches by thirty-six (36) inches to clearly delineate with labels the following, on and adjacent to the development site, unless such components are waived by the zoning administrator:
(a) Topographic information;
(b) Tidal shores and tidal wetlands as verified by recent physical survey;
(c) Non-tidal wetlands delineated accordance with the comprehensive onsite determination method specified in the Federal Manual for Identifying and Delineating Jurisdictional Wetlands, 1987, as it may be amended from time to time (provide U.S. Army Corps of Engineers Jurisdictional Determination);
(d) Waterbodies with perennial flow as determined by a qualified professional using a state approved, scientifically valid system of in-field indicators of perennial flow; and
(e) Site-specific boundaries of the RPA, IDA, and RMA as defined in the ordinance and adjusted as necessary as a result of the above-referenced information.
Resource management area (RMA). That component of the O-CBP District that is not classified as the resource protection area. The RMA is comprised of land that is contiguous to the RPA or IDA for a distance of one hundred (100) feet in the landward direction.
Resource protection area (RPA). That component of the O-CBP District comprised of lands adjacent to water bodies with perennial flow 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. Resource protection areas include tidal wetlands; non-tidal wetlands connected by surface flow and contiguous to tidal wetlands or water bodies with perennial flow; tidal shores; and, a buffer one hundred (100) feet in width. The buffer area shall be located adjacent to and landward of the components listed above and along both sides of any water body with perennial flow. The buffer area shall be designated as the landward component of the RPA notwithstanding the presence of permitted uses, encroachments, and permitted vegetation clearing in compliance with O-CBP.
Retail alcoholic beverage license. License issued by the Virginia Alcoholic Beverage Control Authority (VA ABC) which allows for the serving and sale of wine, beer, and mixed beverages at restaurants, hotels, convenience stores, grocery stores, gourmet shops, delicatessens and other establishments.
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Storage Facility 3 - Indoor and/or outdoor storage spaces which are leased or rented to the general public for storage purposes only. This category may include storage for boats and RVs.
Storm surge. The resulting temporary rise in sea level due to the action of wind stress on the water surface and low atmospheric pressure created during storms which can cause coastal flooding. Surge is the difference from expected tide level. Storm tide is the total water level. Stormwater. Precipitation that is discharged across the land surface or through conveyances to one (1) or more waterways and that may include stormwater runoff, snow melt runoff, and surface runoff and drainage.
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Two-family dwelling. A type of multi-family structure on a single lot containing two (2) dwelling units, each of which is totally separated from the other by an unpierced wall extending from the ground to roof or an unpierced ceiling and floor extending from exterior wall to exterior wall, except for a common stairwell to both dwelling units.
Understory tree. A tree that typically reaches 12 to 35 feet in height when mature.
Upper-floor dwelling units. A type of residential mixed-use development where the residential dwellings are located above a nonresidential use. The residents of the upper floor(s) need not be the operators of the nonresidential use or uses below. The residential use shall be limited to no more than four (4) dwelling units. This would include live/work dwellings. The nonresidential use or uses must also be permitted within the applicable zoning district and comply with all relevant standards for the use.
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CHAPTER 9 - OVERLAY DISTRICTS
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ARTICLE II. - O-CBP DISTRICT - CHESAPEAKE BAY PRESERVATION OVERLAY
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Sec. 9-11. - Purpose and intent.
The health of the Chesapeake Bay is vital to the economy of the City of Hampton and the Commonwealth of Virginia. Degradation of the bay from both point and non-point source pollution must be curtailed if the city and state are to continue to benefit, both socially and economically, from their close association with the bay. The purpose of this article is to implement the Chesapeake Bay Preservation Act (the “Act”) at the local level; and to protect the quality of state waters pursuant to 9 VAC 10-20-10 et seq. (the “Regulations”) and as authorized under section 10.1-2100 et seq. of the Code of Virginia, 1950, as amended; and in accordance with guidance, manuals, and other technical assistance provided by the Virginia Department of Environmental Quality; specifically:
(1) To protect existing high quality state waters;
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Sec. 9-13. - General regulations for development, redevelopment, and land disturbing in all subdistricts.
All development, redevelopment, and land disturbing within all O-CBP subdistricts shall be governed by the following general requirements:
(1) No more land shall be disturbed than is necessary. Such land disturbance shall be allowed only to provide a building site, necessary parking, necessary access, positive site drainage, stormwater best management practices (BMPs), and the installation of utilities, as approved by the zoning administrator or the director of public works, as appropriate. Any land disturbance equal to or greater than two thousand, five hundred (2,500) square feet:
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(2) Indigenous vegetation shall be preserved to the maximum extent practicable. In addition, mature trees shall be protected during development and only removed where necessary, including to provide for the proposed use or development.
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(6) Land upon which agricultural activities are being conducted, including but not limited to crop production, pasture, and dairy and feedlot operations, or lands otherwise defined as agricultural land by the local government, shall have a soil and water quality conservation assessment conducted that evaluates the e effectiveness of existing practices pertaining to soil erosion and sediment control, nutrient management, and management of pesticides, and, where necessary, results in a plan that outlines additional practices needed to ensure that water quality protection is being accomplished consistent with the Act, the Regulations, and the Article.
Sec. 9-14. - Specific regulations for development, redevelopment, and land disturbing in the RPA.
All development, redevelopment, and land disturbing within the RPA shall be governed by the following:
(1) RPA buffer requirement. The 100-foot wide buffer area shall be the landward component of the RPA as defined in Chapter 2 of the Zoning Ordinance and as identifies by a site-specific Resource Delineation. Notwithstanding permitted uses, encroachments, and vegetation clearing, as set forth in this section, the 100-foot wide buffer area is not to be reduced in width. The 100-foot wide buffer area shall be deemed to achieve a seventy-five (75) percent reduction of sediments and a forty (40) percent reduction of nutrients. To minimize the adverse effects of human activities on the other components of the RPA, state waters, and aquatic life, a 100-foot wide 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 planting of trees shall be incorporated into the reestablishment of the 100-foot buffer, as appropriate to site conditions and in such a manner to maximize the buffer function. Inclusion of native species in tree planting is preferred. To the greatest extent possible, the 100-foot wide buffer area of vegetation shall be reestablished in the following circumstances in accordance with the Virginia Department of Environmental Quality Riparian Buffers Modification and Mitigation Guidance Manual:
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(b) Where agriculture or silviculture within the area of the buffer cease and the lands are proposed to be converted to other uses, the full 100-foot wide buffer shall be reestablished. In reestablishing the buffer, management measures shall be undertaken to provide woody vegetation that assures the buffer functions as set forth in this chapter. The planting of trees shall be incorporated into the reestablishment of the 100-foot buffer, as appropriate to site conditions and in such a manner to maximize the buffer function. Inclusion of native species in tree planting is preferred.
(2) Permitted encroachments in the RPA. Land development, redevelopment, and land disturbing may be allowed in the RPA only if it is one or more of the following. If all applicable requirements set forth in in this subsection are not satisfied, an exception request in accordance with subsection 9-19(1) shall be required. Such permitted encroachments include:
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(b) Redevelopment that results in no increase in the amount of impervious cover in the RPA and there is no further encroachment in the RPA.
(c) The proposal is an expansion to a structure that was in existence prior to November 14, 1990 that satisfies the provisions of subsection 9-19(3).
(d) A new use on a lot recorded prior to October 1, 1989 that satisfies the following:
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(ii) Where practicable, a vegetated area that will maximize water quality protection, mitigate the effects of the buffer encroachment, and is equal to the area of encroachment into the buffer area shall be established elsewhere on the lot or parcel. Where established, such vegetated area shall include the planting of trees as appropriate to site conditions. Inclusion of native species in tree planting is preferred; and
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(e) A new use on a lot recorded between October 1, 1989 and March 1, 2002 that satisfies the following:
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(f) A road or driveway crossing that satisfies the following:
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(g) Flood control or stormwater management facilities that drain or treat water from multiple development projects or from a significant portion of a watershed may be allowed in RPAs provided such facilities are allowed and constructed in accordance with the Virginia Stormwater Management Act and its attendant regulations, and that satisfy the following:
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(h) Adaptation measures, subject to compliance with the performance criteria in subsection 9-14(5)(c).
(3) Required mitigation in the RPA. All permitted development, redevelopment, and land disturbing in the RPA that results in new impervious area or removal of indigenous vegetation shall provide mitigation consistent with the requirements of a minor water quality impact assessment unless a major water quality impact analysis is required by subsection 9-19(1).
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(b) Trees should be used for mitigation and supplementation of the buffer area to the extent practicable and as appropriate to the site conditions and project specifications. Where possible, the use of native species is preferred.
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(5) Removal of vegetation in the RPA.
(a) Mature trees shall be preserved and trimmed or pruned in lieu of removal as site conditions permit and removal should be limited to the fewest number of trees feasible. In order to maintain the functional value of the buffer area, existing vegetation may be removed, subject to approval by the zoning administrator, only to provide for reasonable sight lines, access paths, general woodlot management, and best management practices, including those that prevent upland erosion and concentrated flows of stormwater, as follows:
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(ii) 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. When trees are proposed for removal to provide for site lines, vistas, and access paths they shall be replaced with trees as appropriate to site conditions and in such a manner as to maximize the buffer function and to protect the quality of state waters. Inclusion of native species in tree planting is preferred.
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(v) 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. The removal of mature trees for the installation and maintenance of proposed shoreline erosion control projects shall only be permitted as necessary and consistent with the best available technical advice, approved project plans, and applicable permit conditions or requirements. Trees shall be incorporated, as appropriate to the site conditions and in such manner to maximize the buffer function. Inclusion of native species in tree planting is preferred.
(vi) Shoreline erosion control within the RPA shall be consistent with the provision of Chapter 13 Title 28.2, of the Code of Virginia, and the accompanying Virginia Marine Resources Commission (VMRC) Tidal Wetlands Guidelines which provide for “minimum standards for the protection and conservation of wetlands,” and “ensure protection of shorelines and sensitive coastal habitat from sea level rise and coastal hazard.”
(b) On agricultural lands the agricultural buffer area shall be managed to prevent concentrated flows of surface water from breaching the buffer area and appropriate measures may be taken to prevent noxious weeds (such as Johnson grass, kudzu, and multiflora rose) from invading the buffer area. Agricultural activities may encroach into the buffer area as follows:
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(vi) Where land uses such as agriculture or silviculture within the area of the buffer area cease and the property is proposed to be converted to other land uses, then a minimum 100-foot-wide buffer may be reestablished with woody vegetation. The planting of trees shall be incorporated into the reestablishment of the 100-foot buffer, as appropriate to site conditions and in such a manner to maximize the buffer function. Inclusion of native species in tree planting is preferred.
(c) Adaptation measures proposed for location within the RPA, shall meet the following conditions:
(i) The selected adaptation measure shall be a nature-based solution that uses environmental processes, natural systems, or natural features identified as being appropriate for existing site conditions.
(ii) An identified adaptation measure shall be selected from one of the following sources: Chesapeake Bay Program approved BMP list, the Virginia Stormwater BMP Clearinghouse, the VMRC Tidal Wetlands Guidelines, or be a project that is eligible for funding by the Virginia Community Flood Preparedness Fund Grant.
(aa) Adaptation measures should consist of trees, vegetation, stone, or enhance existing natural elements.
(iii) Adaptation measures approved for use in the RPA shall be designed, installed, and maintained in accordance with the applicable specifications for the selected adaptation measure.
(iv) Adaptation measures should be placed channelward of the proposed development whenever possible and should maximize the preservation of mature trees and other natural vegetation to minimize adverse impacts to the RPA and to maximize water quality benefits.
(v) The use of fill as a component of an adaptation measure may be permitted, provided it meets the following conditions:
(aa) The grading and slope created by the use of fill shall be no greater than necessary based upon the project specifications and implemented in a manner that minimizes the impact of run-off.
(bb) Fill shall have the necessary biogeochemical characteristics, including sufficient organic content, to support the growth of vegetation and adequate permeability to allow infiltration consistent with project specifications.
(cc) The use of fill shall not exacerbate stormwater run-off, and lateral flow onto adjacent properties shall be controlled. Any impacts on the management of stormwater upland of the Resource Protection Area created by the use of fill shall be mitigated, as necessary.
(dd) The use of fill for an adaptation measure shall not negatively impact septic systems and drainfields located within the RPA.
(ee) The use of fill shall be consistent with any applicable local, state, or federal law, including federal floodplain management requirements in Title 40 C.F.R. Part 60.
(vi) The preservation of existing natural vegetation shall be maximized, including mature trees, and land disturbance consistent with design specifications shall be minimized.
(vii) Adaptation measures shall comply with all federal, state and local requirements, including any required permits and conditions such as the need for a Water Quality Impact Assessment.
(viii) Nothing in these provisions shall be construed to authorize approval or allowance of an adaptation measure in contravention of floodplain management requirements, including flood zone ordinance as set forth in article IV of chapter 9 of the zoning ordinance.
Sec. 9-15. - Specific regulations for development, redevelopment, and land disturbing in the IDA.
All development, redevelopment, and land disturbing within the IDA shall be governed by the following:
(1) Vegetation in the IDA that is effective in retarding runoff, preventing erosion, and filtering nonpoint source pollution from runoff shall be retained if present to the maximum extent practicable. The planting of trees shall be incorporated into the reestablishment of the 100-foot buffer, as appropriate to site conditions and in such a manner to maximize the buffer function. Inclusion of native species in tree planting is preferred.
(2) Development and redevelopment in the IDA. On existing parcels designated as IDA, development and redevelopment shall be sited outside of the IDA to the greatest extent possible. The following guidelines shall be used to review and permit development and redevelopment within the IDA:
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(e) Adaptation measures, subject to compliance with the performance criteria in subsection 9-15(5)(c).
(3) Required mitigation in the IDA. All permitted development and redevelopment within the IDA that results in new impervious area or removal of indigenous vegetation shall provide mitigation consistent with the requirements of a minor water quality impact assessment unless a major water quality impact analysis is required by subsection 9-19(1).
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(b) Trees should be used of mitigation and supplementation of the buffer area to the extent practicable and as appropriate to the site conditions and project specifications. Where possible, the use of native species is preferred.
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(5) Removal of vegetation in the IDA.
(a) In order to maintain the functional value of the buffer area, existing vegetation may be removed only to provide for reasonable sight lines, access paths, general woodlot management, and best management practices, including those that prevent upland erosion and concentrated flows of stormwater. Additionally, mature trees shall be preserved and trimmed or pruned in lieu of removal as site conditions permit and removal should be limited to the fewest number of trees feasible. Such vegetation removal is subject to approval by the Zoning Administrator, as follows:
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(ii) 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. When trees are proposed for removal to provide for site lines, vistas, and access paths they shall be replaced with trees as appropriate to site conditions and in such a manner as to maximize the buffer function and to protect the quality of state waters. Inclusion of native species in tree planting is preferred.
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(v) 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. The removal of mature trees for the installation and maintenance of proposed shoreline erosion control projects shall only be permitted as necessary and consistent with the best available technical advice, approved project plans, and applicable permit conditions or requirements. Trees shall be incorporated, as appropriate to the site conditions and in such manner to maximize the buffer function. Inclusion of native species in tree planting is preferred.
(vi) Shoreline erosion control within the IDA shall be consistent with the provision of Wetlands Act (Chapter 13 Title 28.2, of the Code of Virginia), and the accompanying Virginia Marine Resources Commission (VMRC) Tidal Wetlands Guidelines which provide for “minimum standards for the protection and conservation of wetlands,” and “ensure protection of shorelines and sensitive coastal habitat from sea level rise and coastal hazard.”
(b) On agricultural lands the agricultural buffer area shall be managed to prevent concentrated flows of surface water from breaching the buffer area and appropriate measures may be taken to prevent noxious weeds (such as Johnson grass, kudzu, and multiflora rose) from invading the buffer area. Agricultural activities may encroach into the buffer area as follows:
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(vi) Where land uses such as agriculture or silviculture within the area of the buffer area cease and the property is proposed to be converted to other land uses, then a minimum 100-foot-wide buffer may be reestablished with woody vegetation. The planting of trees shall be incorporated into the reestablishment of the 100-foot buffer, as appropriate to site conditions and in such a manner to maximize the buffer function. Inclusion of native species in tree planting is preferred.
(c) Adaptation measures proposed for location within the IDA, shall meet the following conditions:
(i) The selected adaptation measure shall be a nature-based solution that uses environmental processes, natural systems, or natural features identified as being appropriate for existing site conditions.
(ii) An identified adaptation measure shall be selected from one of the following sources: Chesapeake Bay program approved BMP list, the Virginia Stormwater BMP Clearinghouse, the VMRC Tidal Wetlands Guidelines, or be a project that is eligible for funding by the Virginia Community Flood Preparedness Fund Grant.
(aa) Adaptation measures should consist of trees, vegetation, stone, or enhance existing natural elements.
(iii) Adaptation measures approved for use in the IDA shall be designed, installed, and maintained in accordance with the applicable specifications for the selected adaptation measure.
(iv) Adaptation measures should be placed channelward of the proposed development whenever possible and should maximize the preservation of mature trees and other natural vegetation to minimize adverse impacts to the IDA and to maximize water quality benefits.
(v) The use of fill as a component of an adaptation measure may be permitted, provided it meets the following conditions:
(aa) The grading and slope created by the use of fill shall be no greater than necessary based upon the project specifications and implemented in a manner that minimizes the impact of run-off.
(bb) Fill shall have the necessary biogeochemical characteristics, including sufficient organic content, to support the growth of vegetation and adequate permeability to allow infiltration consistent with project specifications.
(cc) The use of fill shall not exacerbate stormwater run-off, and lateral flow onto adjacent properties shall be controlled. Any impacts on the management of stormwater upland of the Intensely Developed Area created by the use of fill shall be mitigated, as necessary.
(dd) The use of fill for an adaptation measure shall not negatively impact septic systems and drainfields located within the IDA. Where present, the proximity of the adaptation measure using fill should be considered such that the fill will not interfere with the proper function or maintenance of either of these features.
(ee) The use of fill shall be consistent with any applicable local, state, or federal law, including federal floodplain management requirements in Title 40 C.F.R. Part 60.
(v) The preservation of existing natural vegetation shall be maximized, including mature trees, and land disturbance consistent with design specifications shall be minimized.
(vi) Adaptation measures shall comply with all federal, state and local requirements, including any required permits and conditions such as the need for a Water Quality Impact Assessment.
(vii) Nothing in these provisions shall be construed to authorize approval or allowance of an adaptation measure in contravention of floodplain management requirements, including flood zone ordinance as set forth in article IV of chapter 9 of the zoning ordinance.
(6) When considering the reestablishment of a buffer within an Intensely Developed Area, the zoning administrator shall encourage the planting of trees, including native species, as a component of such buffer reestablishment measure.
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Sec. 9-18. - Plan requirements.
(1) Required submittals for development and redevelopment in all O-CBP subdistricts:
(a) A plan of development consistent with ch. 1, section 1-7 or section 1-8 of the zoning ordinance, supplemented with a resource delineation and landscape plan as set forth in subsection 9-18(1)(c). The delineation shall be submitted to the city for review, which may include physical verification of such findings on the site.
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(c) The landscape plan shall identify the location, size, and description of existing and proposed plant material. All existing canopy trees and understory trees on the site of six (6) inches of greater diameter at breast height shall be shown. Mature trees shall be protected during development and only removed where necessary, including to provide for the proposed use or development. The landscape plan shall also identify and include:
(i) The location and specific number of mature trees, canopy trees, and understory trees to be preserved;
(ii) Mature trees, canopy trees, understory trees, and other vegetation to be disturbed or removed;
(iii) A description of the proposed measures for mitigation shall include a replanting schedule for trees and other vegetation removed for construction, including a list of plants and trees to be used for mitigation; a demonstration that the design of the plan will preserve mature trees, canopy trees, understory trees and other vegetation and will provide maximum erosion control; a demonstration that existing plants are to be used to the maximum extent possible; and a demonstration that where the planting of new trees or vegetation is required, native species will be used to the maximum extent possible. If no mitigation or planting is required, existing trees may be delineated as required above on the plan of development.
(2) Additional required submittals for development and redevelopment in the RPA.
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(c) A resiliency assessment as set forth in subsection 9-18(4) of this Ordinance shall be required for any proposed land development during the plan of development or other project review process in the RPA.
(3) Additional required submittals for development and redevelopment in the IDA.
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(c) A resiliency assessment as set forth in subsection 9-18(4) of this Ordinance shall be required for any proposed land development during the plan of development or other project review process in the IDA.
(4) Resiliency Assessment shall be required for any proposed development and redevelopment in the RPA or IDA.
(a) Submittal of a resiliency assessment that considers the potential impacts of sea level rise, storm surge, and flooding on buffer function in light of a proposed RPA or IDA encroachment is required during the review of a plan of development or other review process. Such an assessment is to be based upon the RPA or IDA as delineated at the time of the proposed land development and is required in addition to all other requirements of this and other local ordinances. At a minimum the resiliency assessment should contain the following information:
(i) A scaled drawing or aerial image of the proposed project that includes the RPA or IDA, and RMA boundaries, required setbacks, existing topography, and a graphic depiction of the anticipated impacts of sea level rise, flooding, and storm surge on the parcel and the proposed project, based upon a review of approved models and forecasts, to include the following:
(aa) For sea level rise, use the 2017 National Oceanographic and Atmospheric Administration (NOAA) Intermediate-High scenario projection curve or any subsequently updated version thereof on the project site. Sea level rise data can be accessed on the AdaptVA website, maintained by the Virginia Institute of Marine Science (VIMS). When determining potential sea-level rise impacts, the applicant should use the model to identify both the extent of anticipated inland migration, as well as the water depth.
(bb) For storm surge, use the most up to date NOAA hydrodynamic Sea, Lake, and Overland Surges Hurricanes (SLOSH) model on the project site. Storm surge data can be accessed on the AdaptVA website. The default storm surge category to be used for resiliency assessments is Category 2, unless otherwise specified.
(cc) For flooding, use the most up to date Special Flood Hazard Area and the Limit of Moderate Wave Action (LiMWA) model on the project site according to the Virginia Flood Risk Information System (VFRIS) model in conjunction with the requirements and application of the floodplain management ordinance. VFRIS includes the Flood Insurance Rate Maps, flood insurance studies, and associated models produced by the Federal Emergency Management Agency, and is available on the Virginia Department of Conservation and Recreation (DCR) website. When identifying flooding impacts, the applicant may rely on existing use and application of the relevant Special Flood Hazard Area. This data is also accessible on the AdaptVA website.
(dd) The anticipated impacts shall be based upon a thirty (30) year timeframe; unless the applicant sufficiently demonstrates that the lifespan of the project proposed for development is less than thirty (30) years, as approved by the Zoning Administrator. Where a lifespan of less than thirty (30) years is proposed, the applicant shall provide documentation of proposed building materials, anticipated quality of construction, design specifications, and other materials or information in support of a predicted lifespan of less than thirty (30) years for the project.
(ii) Assess the potential impacts of the proposed land development on buffer function, including loss of riparian buffer vegetation and vegetation migration; water migration; and the potential impacts of additional future land disturbance or development in the RPA or IDA connected to the proposed land development.
(iii) Identify conditions, alterations, or adaptation measures for the proposed land development that address these potential impacts as necessary and appropriate based upon site conditions; nature, type, and size of proposed land development, including whether such proposed land development is in the RPA or IDA; extent of potential impacts; and the necessity to minimize future land disturbance.
(iv) Based upon the assessment, the Zoning Administrator, or board of zoning appeals, may, as necessary and appropriate, require conditions, alterations, or the installation of adaptation measures as part of the proposed land development consistent with the requirements of this ordinance.
Sec. 9-19. - Exceptions, exemptions, and nonconformities.
(1) Exceptions.
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(e) No application for relief from section 9-14 and section 9-15 shall be considered complete where a resiliency assessment, as outlined in subsection 9-18(4) has not occurred or the proposed adaptation measure allows for the use of fill in an RPA or IDA in contravention of the requirements of subsection 9-14(5)(c) and subsection 9-15(5)(c).
(2) Exemptions. The following types of development are exempt from the requirements of this chapter:
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(c) Silvicultural activities as defined in 9VAC 25-830-40, provided that such operations adhere to the water quality protection procedures prescribed by the Virginia Department of Forestry in "Virginia's Forestry Best Management Practices for Water Quality."
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(e) A living shoreline, as defined by Chapter 13 Title 28.2-104.1, of the Code of Virginia, is exempt from additional performance criteria requirements of section 9-14 and section 9-15, including a water quality impact assessment in section 9-18, provided the project minimizes land disturbance, maintains or establishes a vegetative buffer inland of the living shoreline, complies with the fill conditions in subsection section 9-14(5)(c) and section 9-15(5)(c) of this Ordinance, and receives approval from the VMRC or the local wetlands board, as applicable.
(3) Nonconformities.
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(b) Such development waiver may be issued by the zoning administrator provided that:
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(iii) Any development or land disturbance equal to or greater than twenty-five hundred (2,500) square feet in area shall comply with the provisions of the erosion and sediment control ordinance;
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Sec. 9-20 - Reserved.