28.2-1403 - Certain counties, cities and towns authorized to adopt coastal primary sand dune ordinance.
§ 28.2-1403. Certain counties, cities and towns authorized to adopt coastalprimary sand dune ordinance.
Any of the following counties, cities and towns which adopt a wetlands zoningordinance pursuant to § 28.2-1302 may adopt the coastal primary sand dunezoning ordinance which is set out in this section: the Counties of Accomack,Arlington, Caroline, Charles City, Chesterfield, Essex, Fairfax, Gloucester,Hanover, Henrico, Isle of Wight, James City, King and Queen, King George,King William, Lancaster, Mathews, Middlesex, New Kent, Northampton,Northumberland, Prince George, Prince William, Richmond, Spotsylvania,Stafford, Surry, Westmoreland, and York; and the Cities of Alexandria,Chesapeake, Colonial Heights, Fairfax, Falls Church, Fredericksburg, Hampton,Hopewell, Newport News, Norfolk, Petersburg, Poquoson, Portsmouth, Richmond,Suffolk, Virginia Beach and Williamsburg; and the Town of Cape Charles. Inthe event that a locality has not adopted a wetlands zoning ordinancepursuant to Chapter 13 (§ 28.2-1300 et seq.) or repeals it if alreadyadopted, such locality may adopt or continue to administer the ordinancecontained herein provided the locality appoints a wetlands board followingthe procedure specified in § 28.2-1303. Any county or city which has adoptedthe Coastal Primary Sand Dune Zoning Ordinance prior to October 1, 1992,shall amend the ordinance to conform it to the ordinance contained herein byOctober 1, 1992. The following ordinance is the only coastal primary sanddune zoning ordinance under which any board shall operate after October 1,1992.
Coastal Primary Sand Dune Zoning Ordinance
§ 1. The governing body of .............., acting pursuant to Chapter 14 (§
28.2-1400 et seq.) of Title 28.2 of the Code of Virginia, adopts this
ordinance regulating the use and development of coastal primary sand dunes.
Whenever coastal primary sand dunes are referred to in this ordinance, such
references shall also include beaches.
§ 2. As used in this ordinance, unless the context requires a different
meaning:
"Beach" means the shoreline zone comprised of unconsolidated sandy material
upon which there is a mutual interaction of the forces of erosion, sediment
transport and deposition that extends from the low water line landward to
where there is a marked change in either material composition or physiographic
form such as a dune, bluff, or marsh, or where no such change can be
identified, to the line of woody vegetation (usually the effective limit of
stormwaves), or the nearest impermeable man-made structure, such as a
bulkhead, revetment, or paved road.
"Coastal primary sand dune" or "dune" means a mound of unconsolidated sandy
soil which is contiguous to mean high water, whose landward and lateral limits
are marked by a change in grade from ten percent or greater to less than ten
percent, and upon which is growing any of the following species: American
beach grass (Ammophila breviligulata); beach heather (Hudsonia tomentosa);
dune bean (Strophostyles spp.); dusty miller (Artemisia stelleriana);
saltmeadow hay (Spartina patens); seabeach sandwort (Honckenya peploides); sea
oats (Uniola paniculata); sea rocket (Cakile edentula); seaside goldenrod
(Solidago sempervirens); Japanese sedge or Asiatic sand sedge (Carex
kobomugi); Virginia pine (Pinus virginiana); broom sedge (Andropogon
virginicus); and short dune grass (Panicum amarum). For purposes of this
ordinance, "coastal primary sand dune" shall not include any mound of sand,
sandy soil, or dredge spoil deposited by any person for the purpose of
temporary storage, beach replenishment or beach nourishment, nor shall the
slopes of any such mound be used to determine the landward or lateral limits
of a coastal primary sand dune.
"Commission" means the Virginia Marine Resources Commission.
"Commissioner" means the Commissioner of Marine Resources.
"County, city and town" means the governing body of the county, city and town.
"Governmental activity" means any of the services provided by the Commonwealth
or a county, city or town to its citizens for the purpose of maintaining
public facilities, including but not limited to, such services as
constructing, repairing, and maintaining roads; providing street lights and
sewage facilities; supplying and treating water; and constructing public
buildings.
"Wetlands board" or "board" means the board created pursuant to § 28.2-1303 of
the Code of Virginia.
§ 3. The following uses of and activities in dunes are authorized if otherwise
permitted by law:
1. The construction and maintenance of noncommercial walkways which do not
alter the contour of the coastal primary sand dune;
2. The construction and maintenance of observation platforms which are not an
integral part of any dwelling and which do not alter the contour of the
coastal primary sand dune;
3. The planting of beach grasses or other vegetation for the purpose of
stabilizing coastal primary sand dunes;
4. The placement of sand fences or other material on or adjacent to coastal
primary sand dunes for the purpose of stabilizing such features, except that
this provision shall not be interpreted to authorize the placement of any
material which presents a public health or safety hazard;
5. Sand replenishment activities of any private or public concern, provided no
sand shall be removed from any coastal primary sand dune unless authorized by
lawful permit;
6. The normal maintenance of any groin, jetty, riprap, bulkhead, or other
structure designed to control beach erosion which may abut a coastal primary
sand dune;
7. The normal maintenance or repair of existing roads, highways, railroad
beds, and facilities of the United States, this Commonwealth or any of its
counties or cities, or of any person, provided no coastal primary sand dunes
are altered;
8. Outdoor recreational activities, provided the activities do not alter the
natural contour of the coastal primary sand dune or destroy the vegetation
growing thereon;
9. The conservation and research activities of the Commission, Virginia
Institute of Marine Science, Department of Game and Inland Fisheries, and
other conservation-related agencies;
10. The construction and maintenance of aids to navigation which are
authorized by governmental authority;
11. Activities pursuant to any emergency declaration by the governing body of
any local government or the Governor of the Commonwealth or any public health
officer for the purposes of protecting the public health and safety; and
12. Governmental activity in coastal primary sand dunes owned or leased by the
Commonwealth or a political subdivision thereof.
§ 4. A. Any person who desires to use or alter any coastal primary sand dune
within this .............. (county, city or town), other than for the
purpose of conducting the activities specified in § 3 of this ordinance, shall
first file an application directly with the wetlands board or with the
Commission.
B. The permit application shall include the following: the name and address of
the applicant; a detailed description of the proposed activities and a map,
drawn to an appropriate and uniform scale, showing the area of dunes directly
affected, the location of the proposed work thereon, the area of any proposed
fill and excavation, the location, width, depth and length of any disposal
area, and the location of all existing and proposed structures, sewage
collection and treatment facilities, utility installations, roadways, and
other related appurtenances or facilities, including those on adjacent
uplands; a description of the type of equipment to be used and the means of
equipment access to the activity site; the names and addresses of owners of
record of adjacent land; an estimate of cost; the primary purpose of the
project; any secondary purposes of the project, including further projects;
the public benefit to be derived from the proposed project; a complete
description of measures to be taken during and after the alteration to reduce
detrimental offsite effects; the completion date of the proposed work,
project, or structure; and such additional materials and documentation as the
wetlands board may require.
C. A nonrefundable processing fee shall accompany each permit application. The
fee shall be set by the applicable governing body with due regard for the
services to be rendered, including the time, skill, and administrator's
expense. No person shall be required to file two separate applications for
permits if the proposed project will require permits under this ordinance and
Chapter 13 (§ 28.2-1300 et seq.) of Title 28.2 of the Code of Virginia. Under
those circumstances, the fee shall be established pursuant to this ordinance.
§ 5. All applications, maps, and documents submitted shall be open for public
inspection at the office of the recording officer of this
.................... (county, city or town).
§ 6. Not later than sixty days after receipt of a complete application, the
wetlands board shall hold a public hearing on the application. The applicant,
local governing body, Commissioner, owner of record of any land adjacent to
the coastal primary sand dunes in question, the Virginia Institute of Marine
Science, the Department of Game and Inland Fisheries, the State Water Control
Board, the Department of Transportation, and any governmental agency
expressing an interest in the application shall be notified of the hearing.
The board shall mail these notices not less than twenty days prior to the date
set for the hearing. The wetlands board shall also cause notice of the
hearing to be published at least once a week for two weeks prior to such
hearing in a newspaper of general circulation in this .............. (county,
city or town). The costs of publication shall be paid by the applicant.
§ 7. A. Approval of a permit application shall require the affirmative vote of
three members of a five-member board or four members of a seven-member board.
B. The chairman of the board, or in his absence the acting chairman, may
administer oaths and compel the attendance of witnesses. Any person may appear
and be heard at the public hearing. Each witness at the hearing may submit a
concise written statement of his testimony. The board shall make a record of
the proceeding, which shall include the application, any written statements of
witnesses, a summary of statements of all witnesses, the findings and
decision of the board, and the rationale for the decision.
C. The board shall make its determination within thirty days of the hearing.
If the board fails to act within that time, the application shall be deemed
approved. Within forty-eight hours of its determination, the board shall
notify the applicant and the Commissioner of its determination. If the board
fails to make a determination within the thirty-day period, it shall promptly
notify the applicant and the Commission that the application is deemed
approved.
D. If the board's decision is reviewed or appealed, the board shall transmit
the record of its hearing to the Commissioner. Upon a final determination by
the Commission, the record shall be returned to the board. The record shall be
open for public inspection at the office of the recording officer of this
.............. (county, city or town).
§ 8. The board may require a reasonable bond or letter of credit in an amountand with surety and conditions satisfactory to it, securing to theCommonwealth compliance with the conditions and limitations set forth in thepermit. The board may, after a hearing held pursuant to this ordinance,suspend or revoke a permit if the applicant has failed to comply with any ofthe conditions or limitations set forth in the permit or has exceeded thescope of the work described in the application. The board may, after ahearing, suspend a permit if the applicant fails to comply with the terms andconditions set forth in the application.
§ 9. In fulfilling its responsibilities under this ordinance, the board shallpreserve and protect coastal primary sand dunes and beaches and prevent theirdespoliation and destruction. However, whenever practical, the board shallaccommodate necessary economic development in a manner consistent with theprotection of these features.
§ 10. A. In deciding whether to grant, grant in modified form, or deny apermit, the board shall consider the following:
1. The testimony of any person in support of or in opposition to the permitapplication;
2. The impact of the proposed development on the public health, safety, andwelfare; and
3. The proposed development's conformance with standards prescribed in §28.2-1408 of the Code of Virginia and guidelines promulgated pursuant to §28.2-1401 of the Code of Virginia.
B. The board shall grant the permit if all of the following criteria are met:
1. The anticipated public and private benefit of the proposed activityexceeds its anticipated public and private detriment.
2. The proposed development conforms with the standards prescribed in §28.2-1408 of the Code of Virginia and guidelines promulgated pursuant to §28.2-1401 of the Code of Virginia.
3. The proposed activity does not violate the purposes and intent of thisordinance or Chapter 14 (§ 28.2-1400 et seq.) of Title 28.2 of the Code ofVirginia.
C. If the board finds that any of the criteria listed in subsection B of thissection are not met, the board shall deny the permit application but allowthe applicant to resubmit the application in modified form.
§ 11. The permit shall be in writing, signed by the chairman of the board,and notarized. A copy of the permit shall be transmitted to the Commissioner.
§ 12. No permit shall be granted without an expiration date established bythe board. Upon proper application, the board may extend the permitexpiration date.
§ 13. No permit granted by a wetlands board shall in any way affect the rightof any person to seek compensation for any injury in fact incurred by himbecause of the permitted activity.
(1980, c. 660, §§ 62.1-13.21, 62.1-13.25; 1984, c. 556; 1989, c. 342; 1992,c. 836; 1994, c. 112; 1998, c. 160; 2008, c. 20.)