§ 106. Performance standards.
The performance standards set forth in this Section are intended to prevent a net increase in nonpoint source pollution from new development and development on previously developed land where the runoff was treated by a water quality protection best management practice. Stormwater management criteria shall be consistent with the provisions of the Stormwater Management Ordinance [Appendix D].
(A)
General performance standards for development and redevelopment. Except as otherwise provided herein, the following standards shall apply to all development and redevelopment in both Resource Protection Areas and Resource Management Areas of the Chesapeake Bay Preservation Area:
(1)
Land disturbance shall be limited to the area necessary to provide for the proposed use or development. The limits of land disturbance, including clearing or grading, shall be strictly defined by the construction footprint as shown on the approved plan of development. Clearing shall be allowed only to provide necessary access, site drainage, water quality best management practices, installation of utilities and primary and reserve drainfield sites as detailed on a Virginia Department of Health sewage disposal construction permit. These limits shall be clearly shown on all plans submitted and physically marked on the site.
(2)
Existing vegetation shall be preserved to the maximum extent practicable consistent with the use or development proposed and in accordance with the current edition of the Virginia Erosion and Sediment Control Handbook.
(a)
Where areas to be preserved are considered to be part of the stormwater management plan for that site, diseased trees or trees weakened by age, storm, fire, or other injury may be removed.
(b)
Prior to clearing or grading, suitable protective barriers, such as safety fencing, shall be erected outside of the dripline of any tree or stand of trees to be preserved. These protective barriers shall remain so erected throughout all 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 proposed through the incorporation of structural or nonstructural urban best management practices:
(a)
As described in the current edition of the Virginia Stormwater Management Practices Handbook; or
(b)
As described in the City of Virginia Beach Stormwater Management Ordinance (Appendix D).
(c)
During the design phase of development, consideration should be given to the following means of minimizing impervious cover:
1.
Placement of parking areas under multiple-family, office or commercial buildings;
2.
Construction of no more than the minimum number of parking spaces required by the City Zoning Ordinance (Appendix A);
3.
Utilization of modular grid pavers on private property and in low-traffic zones; and
4.
Cluster development in lieu of conventional development by use of conditional zoning or the open space promotion option as set forth in the City Zoning Ordinance (Appendix A).
(4)
Notwithstanding any other provision of this ordinance, any land disturbance, as defined in Section 10.1-560 of the Code of Virginia, exceeding two thousand five hundred (2,500) square feet, including, but not limited to, construction of all single-family houses, septic tanks, and drainfields, shall comply with the requirements of Article III of Chapter 30 of the Code of the City of Virginia Beach (City Code Sections 30-56 through 30-78).
(5)
All on-site sewage treatment systems not requiring a Virginia Pollutant Discharge Elimination System (VPDES) permit shall be pumped out at least once every five (5) years, provided, however, that:
(a)
Subject to conditions established by the Virginia Beach Health District of the Virginia Department of Health, the owners of such systems may, in lieu of pumping out such systems every five (5) years, have a plastic filter installed and maintained in the outflow pipe from the septic tank to filter solid material from the effluent while sustaining adequate flow to the drainfield to permit normal use of the septic system. Such a filter shall satisfy standards established in the Sewage Handling and Disposal Regulations (12 VAC 5-610) administered by the Virginia Department of Health; and
(b)
In lieu of requiring proof of septic tank pump out every five (5) years, the City may allow owners of on-site sewage treatment systems to submit documentation every five (5) years, certified by a sewage handler permitted by the Virginia Department of Health, to the effect that the septic system has been inspected and is functioning properly and that the effluent does not need to be pumped out of the tank.
(6)
For new construction not served by public sewer or other system requiring a VPDES permit, a reserve sewage disposal site with a capacity at least equal to that of the primary sewage disposal site shall be provided. 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 Virginia Beach Health District . Building or construction of any impervious surface shall be prohibited on the area of all sewage disposal sites, including reserve sewage disposal sites, until the property is served by public sewer or an on-site sewage treatment system operating under a VPDES permit. All sewage disposal site records shall be administered to provide adequate notice and enforcement. As an alternative to the reserve sewage disposal site, the owners of such systems may install an alternative drainfield system meeting the following conditions:
(a)
Each of the two (2) alternating drainfields in the system shall have, at a minimum, an area not less than fifty (50) percent of the area that would otherwise be required if a single primary drainfield were constructed;
(b)
An area equal to fifty (50) percent of the area that would otherwise be required for the primary drainfield site shall be reserved for subsurface absorption systems that utilize a flow diversion device, in order to provide for future replacement or repair to meet the requirements for a sewage disposal system. Expansion of the primary system shall require an expansion of the reserve system;
(c)
The two (2) alternating drainfields shall be connected by a diversion valve, approved by the Virginia Beach Health District, located in the pipe between the septic tank and the distribution boxes. The diversion valve shall be used to alternate the direction of effluent flow to one (1) drainfield or the other at a time. Diversion valves shall not be used for the following types of treatment systems:
(1)
Sand mounds;
(2)
Low pressure distribution systems;
(3)
Repair situations when installation of a valve is not feasible; and
(4)
Any other approved system for which the use of a valve would adversely affect the design of the system, as determined by the Virginia Beach Health District;
(d)
The diversion valve shall have three (3) port, two (2) way valve of materials resistant to sewage, leakproof and designed so that the effluent from the tank can be directed to flow into either one (1) of the two (2) distribution boxes;
(e)
There shall be a conduit from the top of the valve to the ground surface with an appropriate cover to be level with or above the ground surface; and
(f)
The valve shall not be located in driveways, recreational courts, parking lots, or beneath sheds or other structures. In lieu of a diversion valve, any device that can be designed and constructed to direct the flow of effluent from the tank into either one (1) of the two (2) distribution boxes may be approved if plans are submitted to the Virginia Beach Health District and determined to be satisfactory;
[(g)
Reserved;]
(h)
Owners shall alternate using the drainfields every twelve (12) months to permit the yearly resting of half of the absorption system.
(i)
The City shall ensure that the owners are notified annually of the requirement to switch the valve to the opposite drainfield.
(7)
Reserved.
(8)
Reserved.
(9)
Prior to the authorization and initiation of grading or other on-site activities, all permits required by Sections 1400 through 1418 of the City Zoning Ordinance (Appendix A) and Sections 401 and 404 of the Clean Water Act (33 U.S.C. Sections 1341 and 1344) shall be obtained and evidence of such submitted by the applicant to the City.
(10)
Land upon which agricultural activities are conducted shall have a soil and water quality conservation assessment conducted that evaluates the effectiveness of existing practices pertaining to soil erosion and sediment control, nutrient management, and management of pesticides and, where necessary, outlines additional practices needed to ensure that water quality protection is accomplished consistent with this ordinance. Such assessment shall be based upon the standards set forth in the January 1999 Field Office Technical Guide of the U.S. Department of Agriculture Natural Resource Conservation Service or the January 2001 Virginia Agricultural BMP Manual of the Virginia Department of Conservation and Recreation and accomplish water quality protection consistent with this ordinance.
(11)
Proposed revegetation of disturbed areas shall provide maximum erosion and sediment control benefits.
(12)
Access for development requiring permits under Section 6-136 of the City Code or Section 1403 of the City Zoning Ordinance, and for development authorized by Section 1402 of the City Zoning Ordinance, shall be limited to a single accessway so as to maintain the integrity of the buffer area. Fill for such development shall be limited to minimize disturbance of existing vegetation and contours so as to effectively maintain the integrity of the buffer area.
(13)
Disposal sites for dredged material shall be located and stabilized landward of the buffer area.
(14)
Excavation material from construction, including dredged material, shall be disposed of in a lawful manner.
(15)
Silvicultural activities within Chesapeake Bay Preservation Areas shall be exempt from this ordinance, provided that silvicultural operations adhere to water quality protection procedures prescribed in the January 1997 "Forestry Best Management Practices for Water Quality in Virginia Technical Guide" of the Virginia Department of Forestry.
(16)
All development exceeding two thousand, five hundred (2,500) square feet of land disturbance shall be accomplished through a plan of development review process consistent with Section 15.2-2286 (A)(8) of the Code of Virginia and 9VAC25-830-240 (Chesapeake Bay Preservation Area Designation and Management Regulations).
(17)
Where structural the best management practices are utilized, such maintenance shall be ensured by the City through a maintenance agreement with the owner or developer.
(B)
Development criteria for Resource Protection Areas. In addition to the general performance standards set forth in this section, the following standards shall apply to all use, development and redevelopment in Resource Protection Areas, except as otherwise provided herein:
(1)
Land development may be allowed in the Resource Protection Area only if such development (i) is water dependent; (ii) constitutes redevelopment; (iii) is a new use established pursuant to Subsection (B)(4) hereof; (iv) is a road or driveway crossing satisfying the conditions set forth in subdivision (d) hereof; or (v) is a flood control or stormwater management facility satisfying the conditions set forth in subdivision (e) hereof. In addition thereto, the following requirements shall apply:
(a)
A water quality impact assessment in accordance with Section 107(C) of this ordinance shall be required for any proposed land disturbance.
(b)
A new or expanded water dependent facility shall be allowed provided that the following criteria are met:
1.
Such facility does not conflict with the comprehensive plan;
2.
Such facility complies with the general performance standards set forth in this Section;
3.
Any non-water dependent component of such facility is located outside of the Resource Protection Area; and
4.
Access to such facility shall be provided with the minimum land disturbance necessary. Where practicable, a single point of access shall be provided.
(c)
Redevelopment shall be permitted in the Resource Protection Area only if (i) there is no increase in the amount of imperious cover; (ii) no further encroachment within the Resource Protection Area; and (iii) such redevelopment conforms to applicable erosion and sediment control criteria set for in Chapter 30 and stormwater management criteria set forth in the Stormwater Management Ordinance [Appendix D] to applicable stormwater management requirements of all state and federal agencies.
(d)
Roads and driveways not exempt from the provisions of Section 109(A)(1) of this ordinance may be constructed in or across Resource Protection Areas if each of the following conditions is met:
1.
The City Manager finds that there are no reasonable alternatives to aligning the road or driveway in or across the Resource Protection Area;
2.
The alignment and design of the road or driveway are optimized, consistent with other requirements, so as to minimize encroachment into the Resource Protection Area and adverse effects on water quality;
3.
The design and construction of the road or driveway satisfy all applicable criteria of this ordinance, including submission of a water quality impact assessment; and
4.
The City Manager reviews the plan for the road or driveway proposed in or across the Resource Protection Area in coordination with City site plan, subdivision and other applicable plan of development reviews.
(e)
Flood control and stormwater management facilities that drain or treat water from multiple development projects or from a significant portion of a watershed may be allowed in Resource Protection Areas, provided that:
1.
The City Manager conclusively establishes that the location of the facility within the Resource Protection Area is the optimum location;
2.
The size of the facility is the minimum necessary to provide necessary flood control or stormwater treatment, or both;
3.
The facility is consistent with a stormwater management program approved by the Virginia State Water Control Board as a Phase I modification to the City's program;
4.
All applicable State and Federal permits are obtained from the appropriate federal and state agencies having jurisdiction;
5.
Approval is received from the City Manager prior to construction; and
6.
Routine maintenance is performed on such facilities to assure that they continue to function as designed.
It is not the intent of this subdivision to allow a best management practice that collects and treats runoff from an individual lot or portion thereof to be located within a Resource Protection Area.
(2)
Exemptions in Resource Protection Areas. The following land disturbances in Resource Protection Areas shall be exempt from the criteria of this Section provided that they comply with the applicable standards set forth in Section 110 (B) of this ordinance:
(a)
Water wells;
(b)
Passive recreation facilities such as boardwalks, trails and pathways; and
(c)
Historic preservation and archaeological activities.
(3)
Buffer area requirements. The buffer area shall be the landward component of the Resource Protection Area. Notwithstanding the existence of permitted uses, encroachments, and vegetation clearing, as set forth in this Section, the buffer area shall not be deemed to be reduced in width. To minimize the adverse effects of human activities on the other components of the Resource Protection Area, state waters, and aquatic life, a minimum one hundred (100) foot wide buffer area of vegetation that is effective in retarding runoff, preventing erosion, and filtering nonpoint source pollution shall be retained if present and established where it does not exist.
(a)
The one hundred (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.
(b)
Where land uses such as agriculture or silviculture within the area of the buffer cease and the lands are proposed to be converted to other uses, a minimum one hundred (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 set forth in this ordinance.
(4)
Permitted encroachments into the buffer area.
(a)
When the application of the buffer area would result in the loss of a buildable area on a lot or parcel recorded prior to October 1, 1989, encroachments into the buffer area may be permitted by administrative variance, as set forth in Section 110 (B) of this ordinance and in accordance with the following criteria:
1.
Encroachments into the buffer area shall be the minimum necessary to achieve a reasonable buildable area for a principal structure and necessary utilities.
2.
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.
3.
The encroachment may not extend into the seaward fifty (50) feet of the buffer area.
(b)
When the application of the buffer area would result in the loss of a buildable area on a lot or parcel recorded between October 1, 1989 and January 1, 2004, encroachments into the buffer area may be permitted by administrative variance, as set forth in Section 110 (B) of this ordinance and in accordance with the following criteria:
1.
The lot or parcel was created as a result of a legal process conducted in conformity with the Subdivision Ordinance (Appendix B);
2.
Conditions or mitigation measures imposed through a previously approved variance shall be met;
3.
If the use of a best management practice (BMP) was previously required, the BMP shall be evaluated to determine if it continues to function effectively and, if necessary, the BMP shall be reestablished or repaired and maintained as required; and
4.
The criteria in subdivision 4 (a) of this section shall be met.
(c)
Encroachments located in the variable width buffer areas as defined in Section 104(B) if this ordinance may be permitted by administrative variance, as set forth in Section 110(B) of this ordinance.
(5)
Permitted modifications of the buffer area.
(a)
In order to maintain the functional value of the buffer area, existing vegetation may be removed only pursuant to an administrative variance, as set forth in Section 110(B) of this ordinance, and 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:
1.
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.
2.
Any path shall be constructed and surfaced so as to effectively control erosion.
3.
Dead, diseased, or dying trees or shrubbery and noxious weeds may be removed and thinning of trees may be allowed pursuant to sound horticultural practices incorporated into City-adopted standards.
4.
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.
(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 from invading the buffer area. Agricultural activities may encroach into the buffer area as follows:
1.
Agricultural activities may encroach into the landward fifty (50) feet of the buffer area if at least one (1) agricultural best management practice is being implemented on the adjacent land and such best management practice, in the opinion of the Virginia Dare Soil and Water Conservation District board, addresses the predominant water quality issue (either erosion control or nutrient management). In such cases, the combination of the undisturbed buffer area and the best management practices shall achieve water quality protection, pollutant removal, and water resource conservation at least the equivalent of the minimum one hundred (100) foot buffer area. If nutrient management is identified as the predominant water quality issue, a nutrient management plan, including soil tests, must be developed consistent with the Virginia Nutrient Management Training and Certification Regulations (4 VAC 5-15) administered by the Virginia Department of Conservation and Recreation.
2.
Agricultural activities may encroach within the landward seventy-five (75) feet of the buffer area when agricultural best management practices which address erosion control, nutrient management, and pest chemical control, are being implemented on the adjacent land. The erosion control practices must prevent erosion from exceeding the soil loss tolerance level, referred to as "T," as defined in the "National Soil Survey Handbook" of November 1996 in the "Field Office Technical Guide" of the U.S. Department of Agriculture Natural Resource Conservation Service. A nutrient management plan, including soil tests, must be developed, consistent with the Virginia Nutrient Management Training and Certification Regulations (4 VAC 5-15) administered by the Virginia Department of Conservation and Recreation. In conjunction with the remaining undisturbed portion of the buffer area, this collection of best management practices shall be presumed to achieve water quality protection at least the equivalent of that provided by the minimum one hundred (100) foot buffer area.
3.
The buffer area shall not be required to be designated adjacent to agricultural drainage ditches if at least one (1) best management practice which, in the opinion of the Virginia Dare Soil and Water Conservation District board, addresses the more predominant water quality issue on the adjacent land (either erosion control or nutrient management) is being implemented on the adjacent land.
(6)
Water quality impact assessment. A water quality impact assessment shall be required for any proposed land disturbance, development or redevelopment within the Resource Protection Area consistent with this Section and for any other development in Chesapeake Bay Preservation Areas that may warrant such assessment because of the unique characteristics of the site or intensity of the proposed use or development.
(a)
The purpose of the water quality impact assessment is to identify the impacts of proposed development on water quality and lands within Resource Protection Areas consistent with the goals and objectives of the Act and this ordinance, and to determine specific measures for mitigation of those impacts.
(b)
The water quality impact assessment shall be of sufficient specificity to demonstrate compliance with the criteria of this ordinance.
(c)
Water quality impact assessments shall be undertaken in accordance with the requirements set forth in Section 107(C) of this ordinance.
(C)
Buffer restoration standards. The following standards shall apply in cases in which buffer restoration is required pursuant to the provisions of this Ordinance as a result of development within a Resource Protection Area:
(1)
For new impervious cover:
(a)
Buffer restoration of an area equal to two (2) times the proposed impervious cover in the Resource Protection Area shall be provided. The City Manager or Board, as the case may be, shall allow a lesser area of buffer restoration if the property owner demonstrates that site conditions or structural treatment methods are such that a lesser buffer restoration area will adequately protect water quality;
(b)
Pool water surface, decks, pavers and gravel driveways shall be considered impervious for buffer restoration calculations;
(c)
In accordance with the Virginia Department of Conservation and Recreation, Chesapeake Bay Local Assistance "Riparian Buffers Modification & Mitigation Guidance Manual, 2003, Reprinted 2006, and all further amendments thereto and editions thereof (Guidance Manual), in order for the buffer to function as intended, it shall contain the full complement of vegetation that includes shade trees, understory trees, shrubs, and ground cover, whether the ground cover is vegetation, leaf litter, or mulch. The composition of the buffer restoration area shall be per Appendix D, Table A of the Guidance Manual;
(d)
Salt and flood tolerant plant species shall be planted below the five-foot contour to ensure greater survival of the plantings;
(e)
Trees shall not be planted within fifteen (15) feet of the shoreline where such planting would result in marsh shading or interference with the integrity of shoreline structures;
(f)
Buffer restoration shall be located in the Resource Protection Area, including in areas occupied by turf or where impervious cover is removed. To the extent possible, such restoration shall be located in the fifty-foot seaward portion of the buffer. The City Manager may require a site evaluation to determine the location and extent of vegetation needed to meet this requirement where specific site conditions warrant, including, but not limited to, the presence of steep slopes and existing vegetation recommended for buffers in Appendix D, Table A of the Guidance Manual; and
(g)
All trees, plants and groundcover, required as buffer restoration shall be maintained and not removed or allowed to revert to turf.
(2)
For shoreline hardening projects and replacement of upland retaining walls, where construction disturbs vegetation in the Resource Protection Area, such vegetation shall be replaced and may be replaced in kind; provided that trees shall not be planted within fifteen (15) feet of the shoreline where such planting would result in marsh shading or interference with the integrity of shoreline structures.
(Ord. No. 2006, 11-6-90; Ord. No. 2154, 6-23-92; Ord. No. 2190, 11-10-92; Ord. No. 2267, 6-14-94; Ord. No. 2790, 12-9-03; Ord. No. 2855, 12-7-04; Ord. No. 3030, 6-24-08; Ord. No. 3076, 4-28-09; Ord. No. 3341, 4-22-14, eff. 7-1-14)
Editor's note— Ord. No. 2790, adopted Dec. 9, 2003, repealed former § 106 of this appendix and renumbered former § 108 as § 106. Former § 106 pertained to minor projects and derived from Ord. No. 2190, adopted Nov. 10, 1992; and Ord. No. 2267, adopted June 14, 1994.
(Ord. No. 2006, 11-6-90; Ord. No. 2154, 6-23-92; Ord. No. 2190, 11-10-92; Ord. No. 2267, 6-14-94; Ord. No. 2790, 12-9-03; Ord. No. 2855, 12-7-04; Ord. No. 3030, 6-24-08; Ord. No. 3076, 4-28-09; Ord. No. 3341, 4-22-14, eff. 7-1-14)
Editor's note
Ord. No. 2790, adopted Dec. 9, 2003, repealed former § 106 of this appendix and renumbered former § 108 as § 106. Former § 106 pertained to minor projects and derived from Ord. No. 2190, adopted Nov. 10, 1992; and Ord. No. 2267, adopted June 14, 1994.