2006 Code of Virginia § 28.2-1302 - Adoption of wetlands zoning ordinance; terms of ordinance

28.2-1302. Adoption of wetlands zoning ordinance; terms of ordinance.

Any county, city or town may adopt the following ordinance, which, afterOctober 1, 1992, shall serve as the only wetlands zoning ordinance underwhich any wetlands board is authorized to operate. Any county, city, or townwhich has adopted the ordinance prior to October 1, 1992, shall amend theordinance to conform it to the ordinance contained herein by October 1, 1992.

Wetlands Zoning Ordinance

1. The governing body of ......., acting pursuant to Chapter 13 (28.2-1300 et seq.) of Title 28.2 of the Code of Virginia, adopts thisordinance regulating the use and development of wetlands.

2. As used in this ordinance, unless the context requires a differentmeaning:

"Back Bay and its tributaries" means the following, as shown on the UnitedStates Geological Survey Quadrangle Sheets for Virginia Beach, North Bay, andKnotts Island: Back Bay north of the Virginia-North Carolina state line;Capsies Creek north of the Virginia-North Carolina state line; Deal Creek;Devil Creek; Nawney Creek; Redhead Bay, Sand Bay, Shipps Bay, North Bay, andthe waters connecting them; Beggars Bridge Creek; Muddy Creek; AshvilleBridge Creek; Hells Point Creek; Black Gut; and all coves, ponds and naturalwaterways adjacent to or connecting with the above-named bodies of water.

"Commission" means the Virginia Marine Resources Commission.

"Commissioner" means the Commissioner of Marine Resources.

"Governmental activity" means any of the services provided by this ......(county, city, or town) to its citizens for the purpose of maintaining this....... (county, city, or town), including but not limited to such servicesas constructing, repairing and maintaining roads; providing sewage facilitiesand street lights; supplying and treating water; and constructing publicbuildings.

"Nonvegetated wetlands" means unvegetated lands lying contiguous to meanlow water and between mean low water and mean high water, including thoseunvegetated areas of Back Bay and its tributaries and the North Landing Riverand its tributaries subject to flooding by normal and wind tides but nothurricane or tropical storm tides.

"North Landing River and its tributaries" means the following, as shown onthe United States Geological Survey Quadrangle Sheets for Pleasant Ridge,Creeds, and Fentress: the North Landing River from the Virginia-NorthCarolina line to Virginia Highway 165 at North Landing Bridge; the Chesapeakeand Albemarle Canal from Virginia Highway 165 at North Landing Bridge to thelocks at Great Bridge; and all named and unnamed streams, creeks and riversflowing into the North Landing River and the Chesapeake and Albemarle Canalexcept West Neck Creek north of Indian River Road, Pocaty River west ofBlackwater Road, Blackwater River west of its forks located at a pointapproximately 6400 feet due west of the point where Blackwater Road crossesthe Blackwater River at the village of Blackwater, and Millbank Creek west ofBlackwater Road.

"Person" means any individual, corporation, partnership, association,company, business, trust, joint venture, or other legal entity.

"Vegetated wetlands" means lands lying between and contiguous to mean lowwater and an elevation above mean low water equal to the factor one andone-half times the mean tide range at the site of the proposed project in thecounty, city, or town in question, and upon which is growing any of thefollowing species: saltmarsh cordgrass (Spartina alterniflora), saltmeadowhay (Spartina patens), saltgrass (Distichlis spicata), black needlerush(Juncus roemerianus), saltwort (Salicornia spp.), sea lavender (Limoniumspp.), marsh elder (Iva frutescens), groundsel bush (Baccharis halimifolia),wax myrtle (Myrica sp.), sea oxeye (Borrichia frutescens), arrow arum(Peltandra virginica), pickerelweed (Pontederia cordata), big cordgrass(Spartina cynosuroides), rice cutgrass (Leersia oryzoides), wildrice (Zizaniaaquatica), bulrush (Scirpus validus), spikerush (Eleocharis sp.), sea rocket(Cakile edentula), southern wildrice (Zizaniopsis miliacea), cattail (Typhaspp.), three-square (Scirpus spp.), buttonbush (Cephalanthus occidentalis),bald cypress (Taxodium distichum), black gum (Nyssa sylvatica), tupelo (Nyssaaquatica), dock (Rumex spp.), yellow pond lily (Nuphar sp.), marsh fleabane(Pluchea purpurascens), royal fern (Osmunda regalis), marsh hibiscus(Hibiscus moscheutos), beggar's tick (Bidens sp.), smartweed (Polygonum sp.),arrowhead (Sagittaria spp.), sweet flag (Acorus calamus), water hemp(Amaranthus cannabinus), reed grass (Phragmites communis), or switch grass(Panicum virgatum).

"Vegetated wetlands of Back Bay and its tributaries" or "vegetatedwetlands of the North Landing River and its tributaries" means all marshessubject to flooding by normal and wind tides but not hurricane or tropicalstorm tides, and upon which is growing any of the following species:saltmarsh cordgrass (Spartina alterniflora), saltmeadow hay (Spartinapatens), black needlerush (Juncus roemerianus), marsh elder (Iva frutescens),groundsel bush (Baccharis halimifolia), wax myrtle (Myrica sp.), arrow arum(Peltandra virginica), pickerelweed (Pontederia cordata), big cordgrass(Spartina cynosuroides), rice cutgrass (Leersia oryzoides), wildrice (Zizaniaaquatica), bulrush (Scirpus validus), spikerush (Eleocharis sp.), cattail(Typha spp.), three-square (Scirpus spp.), dock (Rumex sp.), smartweed(Polygonum sp.), yellow pond lily (Nuphar sp.), royal fern (Osmunda regalis),marsh hibiscus (Hibiscus moscheutos), beggar's tick (Bidens sp.), arrowhead(Sagittaria sp.), water hemp (Amaranthus cannabinus), reed grass (Phragmitescommunis), or switch grass (Panicum virgatum).

"Wetlands" means both vegetated and nonvegetated wetlands.

"Wetlands board" or "board" means a board created pursuant to 28.2-1303of the Code of Virginia.

3. The following uses of and activities in wetlands are authorized ifotherwise permitted by law:

1. The construction and maintenance of noncommercial catwalks, piers,boathouses, boat shelters, fences, duckblinds, wildlife management shelters,footbridges, observation decks and shelters and other similar structures,provided that such structures are so constructed on pilings as to permit thereasonably unobstructed flow of the tide and preserve the natural contour ofthe wetlands;

2. The cultivation and harvesting of shellfish, and worms for bait;

3. Noncommercial outdoor recreational activities, including hiking, boating,trapping, hunting, fishing, shellfishing, horseback riding, swimming, skeetand trap shooting, and shooting on shooting preserves, provided that nostructure shall be constructed except as permitted in subdivision 1 of thissection;

4. Other outdoor recreational activities, provided they do not impair thenatural functions or alter the natural contour of the wetlands;

5. Grazing, haying, and cultivating and harvesting agricultural, forestry orhorticultural products;

6. Conservation, repletion and research activities of the Commission, theVirginia Institute of Marine Science, the Department of Game and InlandFisheries and other conservation-related agencies;

7. The construction or maintenance of aids to navigation which are authorizedby governmental authority;

8. Emergency measures decreed by any duly appointed health officer of agovernmental subdivision acting to protect the public health;

9. The normal maintenance and repair of, or addition to, presently existingroads, highways, railroad beds, or facilities abutting on or crossingwetlands, provided that no waterway is altered and no additional wetlands arecovered;

10. Governmental activity in wetlands owned or leased by the Commonwealth ora political subdivision thereof; and

11. The normal maintenance of manmade drainage ditches, provided that noadditional wetlands are covered. This subdivision does not authorize theconstruction of any drainage ditch.

4. A. Any person who desires to use or develop any wetland within this.............. (county, city, or town), other than for the purpose ofconducting the activities specified in 3 of this ordinance, shall firstfile an application for a permit directly with the wetlands board or with theCommission.

B. The permit application shall include the following: the name and addressof the applicant; a detailed description of the proposed activities; a map,drawn to an appropriate and uniform scale, showing the area of wetlandsdirectly affected, the location of the proposed work thereon, the area ofexisting and proposed fill and excavation, the location, width, depth andlength of any proposed channel and disposal area, and the location of allexisting and proposed structures, sewage collection and treatment facilities,utility installations, roadways, and other related appurtenances orfacilities, including those on adjacent uplands; a description of the type ofequipment to be used and the means of equipment access to the activity site;the names and addresses of owners of record of adjacent land and knownclaimants of water rights in or adjacent to the wetland of whom the applicanthas notice; an estimate of cost; the primary purpose of the project; anysecondary purposes of the project, including further projects; the publicbenefit to be derived from the proposed project; a complete description ofmeasures to be taken during and after the alteration to reduce detrimentaloffsite effects; the completion date of the proposed work, project, orstructure; and such additional materials and documentation as the wetlandsboard 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 theservices to be rendered, including the time, skill, and administrator'sexpense involved.

5. All applications, maps, and documents submitted shall be open for publicinspection at the office designated by the applicable governing body andspecified in the advertisement for public hearing required under 6 of thisordinance.

6. Not later than sixty days after receipt of a complete application, thewetlands board shall hold a public hearing on the application. The applicant,local governing body, Commissioner, owner of record of any land adjacent tothe wetlands in question, known claimants of water rights in or adjacent tothe wetlands in question, the Virginia Institute of Marine Science, theDepartment of Game and Inland Fisheries, the Water Control Board, theDepartment of Transportation, and any governmental agency expressing aninterest in the application shall be notified of the hearing. The board shallmail these notices not less than twenty days prior to the date set for thehearing. The wetlands board shall also cause notice of the hearing to bepublished at least once a week for two weeks prior to such hearing in anewspaper of general circulation in this ........... (county, city, or town).The published notice shall specify the place or places within this.............. (county, city, or town) where copies of the application may beexamined. The costs of publication shall be paid by the applicant.

7. A. Approval of a permit application shall require the affirmative voteof three members of a five-member board or four members of a seven-memberboard.

B. The chairman of the board, or in his absence the acting chairman, mayadminister oaths and compel the attendance of witnesses. Any person maytestify at the public hearing. Each witness at the hearing may submit aconcise written statement of his testimony. The board shall make a record ofthe proceeding, which shall include the application, any written statementsof witnesses, a summary of statements of all witnesses, the findings anddecision 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 deemedapproved. Within forty-eight hours of its determination, the board shallnotify the applicant and the Commissioner of its determination. If the boardfails to make a determination within the thirty-day period, it shall promptlynotify the applicant and the Commission that the application is deemedapproved. For purposes of this section, "act" means taking a vote on theapplication. If the application receives less than four affirmative votesfrom a seven-member board or less than three affirmative votes from afive-member board, the permit shall be denied.

D. If the board's decision is reviewed or appealed, the board shall transmitthe record of its hearing to the Commissioner. Upon a final determination bythe Commission, the record shall be returned to the board. The record shallbe open for public inspection at the same office as was designated under 5of this ordinance.

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 prevent the despoliation and destruction of wetlands within itsjurisdiction while accommodating necessary economic development in a mannerconsistent with wetlands preservation.

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 28.2-1308 of the Code of Virginia and guidelines promulgated pursuant to 28.2-1301 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 28.2-1308 of the Code of Virginia and guidelines promulgated pursuant to 28.2-1301 of the Code of Virginia.

3. The proposed activity does not violate the purposes and intent of thisordinance or Chapter 13 ( 28.2-1300 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 orhis authorized representative, and notarized. A copy of the permit shall betransmitted 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 theapplicable zoning and land use ordinances of this .............. (county,city, or town) or the right of any person to seek compensation for any injuryin fact incurred by him because of the proposed activity.

(1972, c. 711, 62.1-13.1, 62.1-13.5; 1973, cc. 382, 388; 1975, c. 268;1979, c. 418; 1982, c. 300; 1985, c. 541; 1988, c. 587; 1989, c. 360; 1992,c. 836; 1994, c. 274.)