Resolution of the Arlington County Civic Federation
Adopted on February 4, 2003
Proposed Amendments to Chapter 61, Chesapeake Bay Preservation Ordinance
Whereas, Arlington County staff has developed a proposed amendment to Chapter 61 based on Commonwealth of Virginia guidance documents and a model ordinance provided by the Commonwealth's Chesapeake Bay Local Assistance Development (CBLAD) to comply with new CBLAD mandatory requirements effective March 1, 2003, and staff has timely coordinated the proposed changes with the Civic Federation's Environmental Affairs Committee and various other County organizations and commissions.
Whereas, in response to the significant loss of Arlington's tree canopy that has occurred since the early 1970's, Arlington County staff recommends the incorporation into the Chesapeake Bay Preservation Ordinance performance criteria of a tree canopy replacement policy authorized by the General Assembly under Section 15.2-961 of the Virginia Code, titled Replacement of trees during development process in certain localities. (This provision would require either the maintenance of existing trees, or the planting of replacement trees, such that tree canopy on a development site would cover certain specified minimum percentages of the parcel after 20 years.)
Whereas, County staff is proposing updated design standards for all development projects based on design principles commonly referred to as "Better Site Design" or "Low Impact Development." The intent of the proposed design standards is to have a measurable way to implement the key performance criteria of Section 61-10 of the proposed Ordinance (e.g., disturb no more land than necessary, minimize impervious cover, preserve indigenous vegetation).
Whereas, County staff recommends (1) increasing the fee charged in lieu of constructing on-site water treatment to better reflect the opportunity cost of constructing such systems and maintaining them for a 20-year life cycle; and (2) changing the name of the Source Control Fund in the current Ordinance to the Watershed Management Fund, which will more accurately reflect the intended use of these funds for watershed management programs, including construction of regional storm water treatment systems, stream restoration, water quality monitoring, and public education and outreach activities.
Be it resolved, by the Arlington County Civic Federation that the Arlington County Board is strongly encouraged to adopt the County staff's proposed Amendments to Chapter 61, Chesapeake Bay Preservation Ordinance, with the following recommendations to (1) provide compliance assistance activities, such as advice and educational instruction, as part of the expanded enforcement options to promote voluntary compliance with the new requirements; (2) adopt the civil penalties approach as the primary approach to enforcement to expedite resolution of noncompliance issues should voluntary compliance not result in a positive outcome; and (3) continue the criminal court procedures for repeat and egregious violations.
Be it further resolved, that the Civic Federation urges the County Board to appoint a Chesapeake Bay Ordinance Review Committee to consist of 5-9 members, including one (1) member appointed by the Arlington County Civic Federation, to hold public hearings and to review and approve or deny exception requests.
And be it further resolved, that the Board is encouraged to support additional staffing and resources for plan review, compliance inspections, enforcement, training, education, and outreach. Arlington County's outstanding Watershed Management Plan, adopted in 2001, identified one additional full-time equivalent ("FTE") plan reviewer and one additional FTE compliance inspector, as being needed to implement the revised Chesapeake Bay Preservation Ordinance. The Civic Federation encourages the County Board to include this recommendation in its FY 2004 Budget planning activities and to require appropriate performance measures for these positions.
On December 7, 2002, the Arlington County Board approved the County Manager's Recommendation to authorize advertisement of public hearings by the Planning Commission on January 27, 2003, and by the County Board on February 8, 2003, to consider proposed amendments dated November 25, 2002, to Chapter 61, Chesapeake Preservation Ordinance and to the associated Resource Protection Area (RPA) map and to amend the County's Comprehensive Plan to include the Chesapeake Bay Preservation Ordinance and the associated RPA map as an element of the Comprehensive Plan.
Details Supporting Staff's Proposed Amendments to
Chapter 61, Chesapeake Bay Preservation Ordinance
1. Staff's proposed changes are consistent with the (1) new CBLAD regulations, which strengthen the original policies established by the Commonwealth's Chesapeake Bay Preservation Act to protect and improve the water quality of the Chesapeake Bay, its tributaries, and other Commonwealth waters by minimizing the effects of human activity upon these waters; and (2) the County's Watershed Management Plan and the newly adopted Tree Preservation Ordinance.
2. The new Chesapeake Bay Local Assistance Development requirements (1) seek to balance private property rights with the public's legitimate interest in minimizing the impacts of land disturbance resulting from development in order to protect the quality of Commonwealth waters and the Chesapeake Bay; and (2) require submittal of information that will improve the County's ability to evaluate the environmental impacts of development projects and to ensure that they comply with the requirements of the Chesapeake Bay Preservation Ordinance.
3. One of the major proposed changes is a new requirement that onsite storm water treatment systems (generally referred to as Best Management Practices ("BMP")) be required for automotive-related land uses, because of the correlation between such land uses and storm water quality impairment by petroleum and heavy metals. Specifically, onsite storm water treatment would be required for motor vehicular "hotspot" areas, with the option to contribute to the existing Source Control Fund ("SCF") to address the portions of sites with hotspot areas that are not directly in contact with automotive activity. Sites without such hotspots will continue to have the option of contributing to the fund, which will continue to be used, using an increased fee (e.g., derived from the average impervious cover of the Chesapeake Bay watershed - 16 percent) to help support the County's watershed programs.
4. Staff recommends the fee currently charged for Source Control Fund contributions, which is set at $0.25 per square foot of impervious area that requires mitigation (as determined by the comparison among existing and proposed impervious cover and the average impervious cover) be increased to $2.50 per square foot of impervious area mitigation required.
5. The new CBLAD regulations require a public hearing as part of the review process before most exception requests to develop, modify, or encroach into an Resource Protection Area (e.g., tidal wetlands, non-tidal wetlands connected by surface flow and contiguous to tidal wetlands or water bodies with perennial flow, tidal shores, and other items defined in Section 61-5.B of this Chapter) are approved. According to CBLAD guidance, the public hearing may be conducted by the County Board, the Planning Commission, the Board of Zoning Appeals, or a special-purpose review committee.
6. The proposed changes include expanded enforcement options. For example, the existing Ordinance defines violations as a Class One misdemeanor. This is a criminal violation, with penalties of up to $2,500 per day in fines. The General Assembly has authorized civil penalties to facilitate enforcement of the Chesapeake Bay Preservation Act. Staff recommends that the amended Ordinance include such provisions, which provide a graduated level of non-criminal penalties. The proposed provisions provide civil penalties of up to $10,000 with the consent of the violator, or up to $5,000 per day if assessed by the Circuit Court. Since the Ordinance was adopted in 1992, the County has only had one case that went through the criminal enforcement process, due to the illegal destruction of trees within a designated RPA. County staff recommends the civil penalties approach and the elimination of the criminal penalties procedure, because of the additional flexibility civil procedure provides to address violations of the Ordinance more quickly and effectively than is possible through criminal court procedures. The Civic Federation recommends the preservation of criminal procedures for particularly egregious or repeat violations.
7. The proposed Ordinance contains language in Section 61-6.D that provides the County Board with the authority to designate certain areas as Intensely Developed Areas ("IDA"). Such areas may include areas of existing development where little of the natural environment remains and where redevelopment activity is to be targeted. IDA designation provides greater flexibility in satisfying the performance criteria and in allowing encroachments into the RPA in these areas, as long as no further degradation of the site is allowed.
8. As recommended by County staff, the Chesapeake Bay Ordinance Review Committee (CBORC) would consist of 5-9 members appointed by the County Manager, serving staggered terms of service not to exceed four years. Members could include County staff, residents of Arlington County, or persons doing business in Arlington County, provided that the members are knowledgeable about County development policies and especially Chesapeake Bay Preservation Ordinance regulations and policies. No more than three County staff members could be appointed to the committee at any time. The Civic Federation recommends the County Board appoint a Chesapeake Bay Ordinance Review Committee to consist of 5-9 members, including one (1) member appointed by the Arlington County Civic Federation.
Resolution # 2003-02-04
This page was last revised on: December 27, 2003.