Attachment B

 

Part A (Terms of the MOD Ordinance)

 

1.  Critical Slopes

MOD: “No residential construction or related road or driveway construction, except for the improvement of a road or driveway that existed on the date of the ordinance, would be permitted on critical slopes.  This ban on construction would not apply to roads built for forestry, agricultural, and horticultural purposes.  Neither would this ban apply to lots of record created on or before December 10, 1980, in order to establish the first single family residence, provided there is no alternative building site and no alternative route for the road.

 

Any roads built on critical slopes for forestry, agricultural, or horticultural purposes after the date of the ordinance would not be convertible to residential use after the date of the ordinance.  This limitation would not apply to lots of record created on or before December 10, 1980, in order to establish the first single family residence, provided there is no alternative building site and no alternative route for the road.”

 

Comprehensive Plan: The Plan recognizes the importance of protection of critical slopes " in order to maintain the existing balance between slope, soils, geology, and vegetation."  Most of the slopes defined as critical (25%) or greater can be found in the mountains.  The Mountain Overlay District "Mountain Design Standards” includes the following general standards that should be applied to protect mountain resources:

 

·         Locate driveways to minimize grading, length, and impact on critical slopes and trees.  Driveways should disturb no more than 65 feet in cross section.

·         Locate the house and structures to make them safe.

·         Minimize disturbances to critical slopes.

·         Design private driveways to permit fire and rescue emergency vehicle access:

·         Longitudinal gradient should not exceed 16%.

·         Minimum allowable radius for horizontal curvature should be 40 feet.

 

Existing Regulations:  Zoning Ordinance Section 4.2 recognizes that protection of slopes 25% or greater is important in order to protect hillsides from impacts such as soil erosion, debris flows, sedimentation, and protection of public drinking water supplies.  Waivers and modifications are available under Section 4.2.5 (Attachment C) where unusual physical conditions of the parcel (such as topography) would effectively prohibit or unreasonably restrict the use of the property, or where other specified findings can be made.  Section 4.2.6 provides that exceptions for lots or structures may be available for structures in existence and parcels of record established on or before December 10, 1980, and for accessways, public utility lines, stormwater management facilities and other public facilities (Attachment C).  Enforcement of critical slopes regulations is impeded under the County's current requirements. Since topographic information is not shown on final subdivision plats or on building plans, building permits are issued without taking critical slopes into consideration.  Construction work has begun (foundations excavated, etc.) prior to the initial building inspection.

 

What are the differences between the MOD proposal and existing regulations?

The primary difference is that roads and driveways are permitted on critical slopes under the existing ordinance, if no reasonable alternative exists.  The proposed MOD regulation would prevent new roads for residential uses (constructed after the adoption of the MOD ordinance) from being constructed on critical slopes.  New roads built for forestry, agricultural, and horticultural purposes could not be converted for residential uses.  Secondarily, modifications and waivers to Section 4.2 require an action by the Planning Commission, and the MOD regulations would allow modifications and waivers to be approved administratively.    

 

How would expanding the MOD recommendation impact the Rural Areas?

According to the Comprehensive Plan, 22% of the County acreage consists of critical slopes, which are located throughout the County.  The greatest concentrations of critical slopes are located in mountainous areas adjacent to the Shenandoah National Park, both sides of Route 29 south, and east of Route 20 from Carter's Bridge to the Orange County line, but random areas are located throughout the County. 

 

·         The number of lots that could be affected by additional regulations to prevent new roads and driveways from crossing critical slopes is unknown.  It is likely that some lots would lose their full building potential, without approval of a waiver.

·         The siting of driveways on parcels to avoid critical slopes will reduce accessibility to potential building sites, thus  reducing the potential number of building sites that can be utilized on some parcels

·         There can be a reduced impact of erosion and sedimentation and reduced stormwater runoff from driveways across critical slopes, but could result in longer driveways with higher impacts. 

 

What changes would be needed to implement this measure?

  1. Ordinance changes would be required.
  2. Currently, preliminary subdivision plats show that a building site, exclusive of critical slopes, is possible on the parcel.  The final subdivision plat and the subsequent building plans do not depict critical slopes and the building site locations can be changed from what was shown on the preliminary plats, thereby impeding any enforcement of critical slope regulations. Plans identifying building sites, roads and driveways, as well as  critical slopes prior to issuance of Erosion and Sediment Control Permits and prior to issuance of building permits, would assure that building, roads and driveways would not be constructed on critical slopes. This change would be the responsibility of the applicant at some additional cost.
  3. Accurate topographic surveys are needed to ascertain existing road locations or aerials showing agricultural/forestal/horticultural roads that exist at the time an ordinance.  New County aerials are scheduled to be flown in March of 2007 as part of a statewide GIS project.  Detailed information from that survey will not be available until the following year.  The existing agricultural/forestal/horticultural roads are not always visible on aerials that were flown in 2000.  
  4. Review times would remain the same.

 

What would be the benefit to the County?

The benefits for not disturbing critical slopes have been established by the Comprehensive Plan.  Although critical slopes are more abundant in the MOD, they can be found in other locations throughout the County.  Larger parcels in the Rural Areas would have more opportunity to provide alternative routes for roads and driveways that do not disturb critical slopes.

 

2.  Erosion and Sediment Control Plan

MOD: “Land disturbing activities exceeding 2,500 square feet will require an effective erosion and sediment control plan explicitly designed to address erosion control and water infiltration for the long term.  Guidelines for drafting these plans should encourage flexible and innovative approaches.”

 

Comprehensive Plan: The Plan recognizes the importance of protecting both soil and water for the continued vitality of the forestal and agricultural community, as well as protection of the water supply and the Chesapeake Bay watershed. 

Existing Regulations:  Section 17-104.24(a) and (b) of the Water Protection Ordinance provides that the disturbance of  2,500 square feet or more within the Mountain Overlay District, and 10,000 or more square feet outside the MOD, are defined to be “a land disturbing activity” and subject to the provisions of the ordinance.  Land disturbing activities must have either an Erosion and Sediment Control (E&S) Plan or an Agreement in-lieu of a Plan (a narrative agreement instead of a formal Erosion and Sediment Control Plan (Section 17-104 and Section 17-205).  E & S Plans are intended to address erosion and sediment control during construction, but also provide topographic information that is not available with an Agreement in-lieu of a Plan. Additionally, stormwater management plans are required for new subdivisions, but are not required for building permits.  Stormwater management is a permanent measure to control the post construction impact of a land disturbing activity.  Section 17-200.A. (4) provides that if a road has been constructed under an agricultural exemption and an application, such as a special use permit or subdivision, has been requested within two years of the exemption, an E & S Plan will be required.  However, if construction is complete an E & S Plan will not be required. 

 

What are the differences between the MOD proposal and existing regulations?

If a Mountain Overlay District is established, the existing regulations to require an E & S Plan for disturbances of 2,500 square feet are in place.  An Agreement in-lieu of a Plan rather than a complete E & S Plan is currently required with single family building permits for disturbances of 10,000 or more square feet inside and outside of the MOD. Typically, a new house in the Rural Areas requires a disturbance of at least 10,000 square feet.  Thus, the 2,500 square foot threshold is intended to capture other development activities (e.g., large additions or garages) rather than new houses. 

 

How would expanding the MOD recommendation impact the Rural Areas?

As the typical new single family dwelling in the Rural Areas results in more than 10,000 square feet of land disturbance, the change from an Agreement in-lieu of a Plan to a required E & S Plan has a large effect.  It is believed that room additions, garages, and similar construction activities would involve 2,500 square feet of disturbance.  As the MOD contains an environment that is more sensitive to land disturbing impacts, the 2,500 square feet is believed to be warranted.  The environmental benefits in the remainder of the Rural Areas for the more restrictive regulations would be limited, if they should be applied to the remainder of the Rural Areas.  An undetermined cost to the applicants would result from the more restrictive requirements.

 

 

What changes would be needed to implement this measure?

  1. Ordinance changes would be required to implement a 2,500 square foot threshold for E&S plans.
  2. Additional staff would be necessary to review the plans, as well as to inspect and verify construction matched approved plans. 

 

What would be the benefit to the County?

There would be some small environmental benefit if the disturbed area requirement for a permit was reduced to 2,500 square feet and this was applied throughout the Rural Areas.   The extent of the benefit cannot be quantified, as the amount of future disturbances is unknown.  However, according to the County's engineering, additional staff and review time would be required and it was not believed that the benefits from reducing the disturbance threshold to 2,500 square feet would outweigh the costs.  If there is an interest in preventing driveways or roads to be constructed on critical slopes, it will be necessary to stop allowing Agreements in-lieu of a Plan and require complete E & S Plans so that compliance can be verified in advance of a permit.  That requirement would increase the cost to applicants. 

 

3.  Stream Buffers

MOD:  “No residential construction would be permitted within 200 feet of an intermittent or perennial stream or river or other body of water shown on a U.S. Geological Survey 7.5 minute quadrangle topographic map.  No hard-surface or impermeable surface roads, including gravel on compacted base, or driveways would be permitted in this area except by special use permit. 

 

When disturbance is necessary to cross streams to access a portion of the property as set forth above (or as otherwise allowed in the MOD), best management practices would be imposed.

 

Development in a stream buffer may be authorized in the following circumstances, provided that a mitigation plan is submitted to, and approved, by the program authority: 

 

 

Comprehensive Plan:  The importance of protecting the County's water resources is extensively documented in the Natural Resources chapter of the Plan.  In 1991, the County became the first (and only) non-Tidewater locality in Virginia to voluntarily adopt a local Chesapeake Bay protection ordinance.  The functions of stream buffers on the local and regional environment are also well documented in the Plan. 

 

Existing Regulations:  Sections 17-317 through 17-322 of the Water Protection Ordinance provide stream buffer regulations.  Intermittent and perennial streams require a 100’ wide buffer (200’ wide total) in the Water Supply Protection Areas.  In the remainder of the County only perennial streams require a buffer and the width of the buffer varies depending on the streams’ location and the abutting land uses. 

 

What are the differences between the MOD proposal and existing regulations?

The MOD would expand the buffer for both perennial and intermittent streams to 200’ (400’ total).  The Water Protection Manager has provided an analysis of the discussion points pertaining to the expansion of the MOD stream buffer provisions into the remainder of the Rural Areas (Attachment B). 

 

How would expanding the MOD recommendation impact the Rural Areas?

The greatest benefit would be to provide a wider corridor for wildlife and additional storage for floodwaters. It is unknown how many parcels would be impacted from this additional buffer.

 

What changes would be needed to implement this measure?

  1. Ordinance changes would be required
  2. Additional staff resources to administer and inspect

 

What would be the benefit to the County?

Staff believes that an increased buffer width would provide some benefit, but it would be difficult to justify this benefit outside of the MOD.  Staff believes that applying a 100’ buffer requirement for both perennial and intermittent streams throughout the entire Rural Areas could be justified and would provide a significant benefit to water resources, as well as providing uniform treatment of all Rural Areas property. 

 

4.  Height Restrictions

MOD:  “No building within the ridge area would be permitted to exceed 35 feet in height or to exceed the height of an adjacent crest, whichever is more restrictive.”

 

Comprehensive Plan:  The Mountain Overlay District “Mountain Design Standards” include the following standards that should be applied in the District:

·         Locate the house and structures to make them unobtrusive in the landscape.

·         Do not build structures taller than the natural tree canopy.

·         Do not locate the house and structures where they will be “skylighted” against the horizon.

·         Do not alter the continuity of the ridgeline.

 

Existing Regulations:  Section 10.4 limits the maximum height for structures in the Rural Areas to 35 feet.

 

What are the differences between the MOD proposal and existing regulations?

The maximum MOD height would not exceed 35 feet or exceed the height of the adjacent crest.  The RA regulations do not measure heights in relation to adjacent crests.

 

What would be the benefit to the County?

Although crests along ridges outside the MOD are located throughout the County, the benefit derived from restricting heights for buildings outside the MOD would be minimal.

 

How would expanding the MOD recommendation impact the Rural Areas?

The Virginia Code defines “crest” to mean “the uppermost line of a mountain or chain of mountains from which the land falls away on at least two sides to a lower elevation or elevations.”  Limiting building construction on all crests and ridges could reduce building on an unknown number of parcels in the Rural Areas. 

 

What changes would be needed to implement this measure?

1.       Ordinance changes would be required

2.       Staff time to verify and enforce

3.       Applicant costs to survey land and submit topography with 1’ contour intervals.

 

5.  Safe Access

MOD:  “Building sites within the MOD will not be approved unless the applicant can demonstrate that fire and rescue vehicles will be able to safely access the site.”

 

Comprehensive Plan:  The Community Facilities Fire and Rescue section of the Plan contains a service objective for achieving a fire and rescue response time of thirteen minutes or less in the Rural Areas. The Mountain Overlay District "Mountain Design Standards” includes the following general standards that should be applied to protect mountain resources:

·         Locate the house and structures to make them safe.

·         Minimize disturbances to critical slopes.

·         Design private driveways to permit fire and rescue emergency vehicle access:

·         Longitudinal gradient should not exceed 16%.

·         Minimum allowable radius for horizontal curvature should be 40 feet.

·         Avoid north slopes where snow and ice may accumulate.

 

Existing Regulations:  Currently, the County requires that building sites for single family residences, as specified in Section 4.2 of the Zoning Ordinance, be shown on preliminary subdivision plans, primarily as a verification that a lot is not being created that cannot support a residence under existing regulations.  The County does not require that the building site appear on any other plan and final locations of residences can be changed after the preliminary subdivision is approved.

 

Section 31.2.3.1 of the Zoning Ordinance does require safe and convenient access be provided prior to issuance of a Certificate of Occupancy, but there is no requirement to provide a grading plan that would demonstrate this prior to issuance of a building permit.  There is a requirement that an E&S Plan be approved prior to issuance of a building permit when the land disturbance exceeds the 10,000 square foot threshold.  All building permits for new homes in the Rural Areas fall within those criteria once the disturbance for the house, driveway, well, and septic field are included.  If Agreements in-lieu of a Plan are used, there is no plan that shows existing and proposed grading and compliance cannot be verified prior to issuance of the building permit.  If E&S Plans, rather than Agreements in-lieu of a Plan, are required for all building permits for new homes, the E&S Plans would include both existing and proposed grading, which allows the safe and convenient access to be verified prior to issuance of the building permit, as well as avoidance of critical slopes if that provision is used for driveways.  

 

What are the differences between the MOD proposal and existing regulations?

The MOD proposal would require that access to all new building sites in the MOD be constructed to standards that provide safe and access by emergency vehicles.  The County's existing regulations do not contain measures by which safe and convenient access to single family dwellings can be required.

 

How would expanding the MOD recommendation impact the Rural Areas?

Requiring measures to assure that every residential dwelling provide a safe and convenient access for emergency vehicles would further the level of protection sought for lives and property.  As the location, constraints, and number of future lots are unknown, the full impact of expanding this requirement into the remaining Rural Areas cannot be determined. However, it is believed that it would be less than the MOD due to more level terrain. Conversion or dual use of existing roads used for agricultural, horticultural or forestry purposes may require upgrades.  These upgrades may also require land disturbance, thus triggering an E & S Plan. Additional costs for plans and road construction can be anticipated.

 

What changes would need to be implemented?

  1. Ordinance revisions and County application process changes would be required.
  2. Additional staff time would be needed for review of Erosion Control Plans for all Rural Areas’ building permits and inspections to verify construction matches what is shown on the approved plan.  

 

6.  Waiver or Modification

MOD:  Application of the Ordinance may not allow a landowner to use all division rights that have been allocated to properties in the MOD – that is, because of measures in the Ordinance, parcels may not be able to be developed as extensively as they would without these measures.   Property owners would have the ability to moderate the effect of these measures through waivers and modifications.

 

Such waiver or modification could be granted only upon a finding that alternatives proposed by the developer would advance each of the purposes of the ordinance provisions to an equivalent or greater degree than strict application of these requirements.  In making this determination, the appropriate body—the Agent, Program Authority, or the Planning Commission—would take into account the effects of the developer’s overall plan for the property (including residential construction and related road or driveway construction or road or driveway improvement), and if a waiver were issued, it would include any conditions on development necessary to protect the purposes of the ordinance. 

 

A variance from certain requirements could be sought under existing regulations (per Section 18-34.2).

 

Existing Regulations:  Provisions for waivers, modifications, or variances are currently available as either an administrative or Planning Commission consideration.   

 

What are the differences between the MOD proposal and existing regulations?

The waivers or modifications contained in the MOD proposal are specific to the MOD, as are waivers or modifications for existing regulations. 

 

What would be the benefit to the County?

As with current regulations, waivers, modifications or variances would be available if appropriate and/or applicable, in order to provide flexibility for unusual site conditions. 

 

How would expanding the MOD recommendation impact the Rural Areas?

The MOD recommendations to allow waivers, modifications, or variances parallel existing ordinance provisions.

 

What changes would be needed to implement this measure?

  1. Ordinance revisions may be required.
  2. Additional staff resources to process waivers, modifications, and variances.

 

 

Part B.  (Guidelines for Incorporation into a Future Rural Cluster Subdivision Ordinance for the MOD)

 

On September 13, 2006, the Board declined to approve the Resolution of Intent for the development of a rural cluster subdivision ordinance.  Rural Preservation Developments, currently allowed by Section 10.3.3, will continue to provide a voluntary cluster form of development.

 

Part C.  (Additional Protection for Mountain Resources)

 

The protection measures offered for consideration were not discussed by the Board at its September 13 meeting.  Those measures could also apply to the remainder of the Rural Areas.

 

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