Our Community in Fairfax County, Virginia
On 7 July 2003, the Fairfax County Board of Supervisors adopted amendments to the Chesapeake Bay Preservation Ordinance and other county ordinances to implement changes to the state's Chesapeake Bay Preservation Area Designation and Management Regulations. The state has mandated that Fairfax County and other Virginia communities which border on the tidal portions of rivers that drain to the bay implement these changes to the regulations by the end of this year.
The centerpiece of the revised state regulations is that Resource Protection Areas (RPAs) must now be designated around all water bodies with perennial flow. This will result in an increase in the extent of RPAs throughout Fairfax County. RPAs are the corridors of environmentally sensitive land that lie alongside or near the shorelines of streams, rivers and other waterways. Development within RPAs is restricted. However, there are protections built into the regulations for landowners to accommodate minor additions to existing homes and the construction of new homes on existing vacant lots within RPAs.
Within Westlawn, the homeowners affected are 6680-6728 Westcott Road (even numbers only) and 6737 and 6739 Arlington Blvd. These homes lie alongside of Tripp's Run, which separates our community from the Westlawn shopping mall, and almost all of the land on these properties is part of an RPA. It appears that virtually every creek in the county will qualify as an RPA, meaning that any homeowner on land adjoining county parkland with a creek will be restricted in future development, including the removal of vegetation.
The remainder of the land in Fairfax County has been designated as a Resource Management Area (RMA). Development within RMAs is not restricted. The amendments also propose changes to the performance criteria for development and redevelopment in RPAs and RMAs; changes in the information to be provided with development plans and applications for construction permits; and changes to the procedures and criteria for the granting of exceptions to the requirements of the Chesapeake Bay Preservation Ordinance.
To help Fairfax County citizens understand the impact of these amendments, a variety of information will be available in the coming months. The county's government cable Channel 16 will air a program about the amendments every Friday and Wednesday at 7:30 p.m. and on Sundays at 4:30 p.m. from now until mid-October. Copies of the Channel 16 program are available for loan at all of the Fairfax County public libraries, along with an informational brochure explaining the amendments. Information is also available on the county's Web site at www.fairfaxcounty.gov/dpwes or by contacting the Office of Site Development Services at 703-324-1720, TTY 711.
The following information is provided to help Fairfax County property owners understand the recent amendments adopted by the Board of Supervisors. The recent amendments will not only help the health of the Chesapeake Bay, but will also safeguard the quality of our own rivers and streams.
Why were the amendments adopted?
The Chesapeake Bay Local Assistance Board, a state entity, adopted amendments to the Chesapeake Bay Preservation Area Designation and Management Regulations on 10 December 2001, with an effective date of 1 March 2002. The state has mandated that Fairfax County and other Virginia communities which border on the tidal portions of rivers that drain to the Bay implement these changes to the regulations by 31 December 2003.
Fairfax County has been considering the amendments since January 2003, when the Planning Commission held a public hearing. Since that time, meetings were held with the Planning Commission Environment Committee and the Environmental Quality Advisory Council and a second public hearing was held on 30 April. On 7 May, the Planning Commission recommended that the Board of Supervisors adopt the proposed amendments to the Chesapeake Bay Preservation Ordinance. The Board of Supervisors held a public hearing on 19 May and adopted the amendments during their regularly scheduled Board meeting on 7 July. What amendments were adopted?
The Board of Supervisors adopted amendments to Chapter 101 (Subdivision Ordinance), Chapter 104 (Erosion and Sedimentation Control), Chapter 112 (Zoning Ordinance) and Chapter 118 (Chesapeake Bay Preservation Ordinance) of The Code of the County of Fairfax, Virginia and to the Public Facilities Manual. These amendments implement revisions to the Chesapeake Bay Preservation Designation and Management Regulations (9 VAC 10-20 et.seq.).
The centerpiece of the revised state regulations is that Resource Protection Areas (RPAs) must now be designated around all water bodies with perennial flow. This will result in a significant increase in the extent of RPAs throughout Fairfax County. The remainder of the land in Fairfax County has been designated as a Resource Management Area. The amendments also propose changes to the performance criteria for development and redevelopment in RPAs and RMAs; changes in the information to be provided with plans of development and applications for construction permits; and changes to the procedures and criteria for the granting of exceptions to the requirements of the Chesapeake Bay Preservation Ordinance.
When will the amendments become effective and how do I know if they affect my property?
The amendments adopted on 7 July will become effective later this year upon adoption by the Board of Supervisors of an amended Chesapeake Bay Preservation Area map, currently scheduled for 17 November 2003, showing the location of RPAs as defined under the amended code. The Department of Public Works and Environmental Services is currently performing field studies to identify perennial streams throughout the county.
An interim guidance map has been prepared to assist those interested in determining the potential impacts of the adopted amendments on properties throughout the county. The interim map is available online at www.fairfaxcounty.gov/dpwes. The maps display the boundaries of the existing RPAs adopted by the Board in 1993, the boundaries of RPAs based on the field studies to identify perennial streams which have been completed to date and the estimated boundaries of RPAs for areas where field studies will be conducted this summer and fall. The online maps will be updated every two months until all the field studies are complete. The maps display the general locations of RPA boundaries for planning purposes and the actual limits may be further refined by detailed field studies conducted at the time a plan is submitted to obtain a permit to develop a property.
You will need your tax map reference number to access the mapping information for your property. You can find that number on the county's Web site at www.fairfaxcounty.gov/dta. Scroll to the bottom of the page, enter your address and click on Search. The resulting information will include your tax map reference number.
Are there any deadlines for homeowners planning additions or new construction?
Applications for building permits and grading plans containing all of the required information and submitted prior to 6 Sept. 2003, will be considered under the current ordinance. If the plans are submitted after 6 September but are approved prior before the new amendments become effective on 17 November they will also be considered under the existing regulations. Plans filed after 6 September that are not approved by 17 November will be considered under the new regulations
What are Resource Protection Areas and buffers?
Resource Protection Areas (RPAs) are the corridors of environmentally sensitive land that lie alongside or near the shorelines of streams, rivers and other waterways. In their natural condition, RPAs protect water quality. RPAs filter pollutants out of stormwater runoff, reduce the volume of stormwater runoff, prevent erosion and perform other important biological and ecological functions.
RPAs shall include any land characterized by one or more of the following features:
(1) a tidal wetland
(2) a tidal shore
(3) a water body with perennial flow
(4) a nontidal wetland connected by surface flow and contiguous to a tidal wetland or water body with perennial flow
(5) a buffer area that includes any land within a major floodplain or any land within 100 feet of a feature listed in (1)-(4).
The difference between the current language and the amended language is the replacement of "tributary streams" with "water bodies with perennial flow." Tributary streams are only those perennial streams that are depicted on U.S. Geological Survey maps. This change was mandated by the state and is responsible for the expansion of the RPAs.
What happens if Resource Protection Areas (RPAs) are not protected?
Because RPAs are so close to water bodies, disturbing them allows more pollutants to enter our waters and, eventually, the Chesapeake Bay. Stormwater runoff picks up and carries oil from roads, soil from constructions sites, fertilizers and pesticides from farms and lawns, bacteria from animal wastes directly into our waterways.
In addition, if RPAs are not protected, or if there is no protected stream corridor, other impacts such as stream bank and channel erosion, habitat destruction and a decrease in the stream's biological diversity can result.
How will this affect my property?
Development generally may not encroach into RPAs. In order to maintain the functional value of the RPA buffer, indigenous vegetation may be removed, subject to approval by the county, from a buffer area only to provide for reasonable sight lines, access paths, general woodlot management and habitat management. Noxious weeds and dead, diseased, or dying trees or shrubbery may be removed provided that where they are removed, they are replaced with other native vegetation that is equally effective in retarding runoff, preventing erosion and filtering nonpoint source pollution from runoff. The removal of indigenous vegetation to create lawns is not allowed.
However, the county's ordinance includes protections both for existing vacant lots that were created prior to the effective date of the amendments and for lots that are developed with existing homes. These protections allow a new home or an addition to be constructed on such lots through an administrative waiver.
For those lots that have areas of RPA on them, the ordinance provides relief from the full effects of the RPA restrictions through the administrative waiver provisions that allow minor additions of up to 1,000 sq. ft. or 2 percent of the lot area of new impervious area in the RPA for homes constructed prior to the effective date of the ordinance, 1 July 1993, with respect to both the existing and new RPA areas. For homes that were constructed between 1 July 1993, and the effective date of the amendments, minor additions are only allowed to encroach into the new RPA areas created by the amendments.
The state regulations on which the county's ordinance is based do not permit detached structures to be treated as minor additions. The construction of detached structures in the RPA and larger additions are still possible, but would be subject to an exception process requiring a public hearing. The ordinance also protects existing structures and uses in the RPA. Such structures and uses (including lawns and gardens and other maintained landscaping) can continue and be maintained but may not be expanded unless a waiver or exception is granted. Also, if a home were to be destroyed by fire or other casualty loss, it could be rebuilt.
Are fences allowed within an RPA?
Fences are permitted in the RPA without an exception or waiver subject to compliance with certain design requirements that collectively maintain the functional value of the buffer. Fences should be designed so that they do not inhibit or alter surface flow (i.e. water must be able to flow under and through the fence unimpeded so that sheet flow conditions are maintained) and vegetation may only be removed to provide for the actual placement of the fence. Where vegetation is removed it must be replaced with other vegetation that is equally effective in retarding runoff, preventing erosion, and filtering non-point source pollution from runoff. Fences should be located to avoid the removal of trees. Obviously if the fence were to be placed in an area that was an existing maintained lawn, the re-vegetation requirement would not be applicable.
Are sheds allowed within an RPA?
The administrative waiver available for minor additions is not available for construction of accessory structures. Accessory structures are specifically prohibited in the state regulations from consideration as minor additions. However, the construction of small sheds that do not require a building permit (currently 150 sq. ft. under VUSBC) over maintained grass lawns are an inconsequential modification to an existing use and may be permitted. However, the ability to locate a shed in an undisturbed RPA area is more problematic because there would normally be at least some other place on the lot that the shed could be located without encroaching into the RPA and should be discussed with county staff.
Are decks allowed within an RPA?
Decks are treated as minor additions under the ordinance and therefore are permitted subject to an administrative waiver process. The administrative waiver process is only available for additions to homes constructed prior to the effective date of the ordinance for existing RPAs and homes constructed prior to the effective date of the amendments for newly designated RPAs.
What are loss of buildable area provisions?
An administrative waiver process is available for construction of new homes on lots platted prior to the effective date of the amendments to the ordinance. The loss of buildable area provisions allow for construction of 5,000 sq. ft. of impervious area in the RPA exclusive of the driveway and 10,000 sq. ft. of disturbed area in the RPA exclusive of the driveway and septic field. The allowed encroachment will be the minimum necessary to afford relief and may only extend 50 feet into the RPA. Mitigation of the encroachment will be required. The construction of new homes in the RPA not meeting the above requirements is still possible, but would be subject to an exception process requiring a public hearing.
Are there penalities for violating the RPS requirements?
Non-compliance with the RPA requirements is a violation of the county's Chesapeake Bay Preservation Ordinance and can result in penalties. Violators will be required to restore the RPA in accordance with county guidelines. An RPA Restoration Plan must be developed and submitted to the Department of Public Works and Environmental Services for review and approval. The objective of the plan is to restore the RPA's primary functions so it can again remove pollutants from stormwater runoff.