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- CODE OF ORDINANCES

Chapter 37.1 STORMWATER MANAGEMENT

Chapter 37.1 STORMWATER MANAGEMENT [1] ARTICLE I. - IN GENERAL

ARTICLE II. - SERVICE CHARGE

ARTICLE III. - STORM SEWER DISCHARGE

ARTICLE IV. - STORMWATER CONTROL REGULATIONS

ARTICLE V. - CHESAPEAKE BAY PRESERVATION

ARTICLE VI. - FERTILIZER REGULATIONS

ARTICLE VII. - SOIL REMOVAL AND OTHER LAND DISTURBING ACTIVITIES

FOOTNOTE(S):

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Cross reference— Watercraft, docks, piers and waterways, Ch. 11; health and sanitation generally, Ch. 20; sewers and sewage disposal, Ch. 33; water supply, Ch. 42; zoning ordinance, Ch. 45.; subdivision regulations, App. B. (Back)

State Law reference— Erosion and sediment control, Code of Virginia, § 10.1-560 et seq.; Local stormwater management program, Code of Virginia, § 10.1-603.3. (Back)

Newport News, Virginia, Code of Ordinances

- CODE OF ORDINANCESChapter 37.1 - STORMWATER MANAGEMENT

ARTICLE I. IN GENERAL

ARTICLE I. IN GENERALSec. 37.1-1. General.

Sec. 37.1-2. Program administration.

Secs. 37.1—3—37.1-9. Reserved.

Sec. 37.1-1. General.

The City of Newport News has developed and continues to maintain an infrastructure of manmade and natural components of a stormwater management system to both limit and manage the volume of stormwater runoff to control flood events and, through stormwater pollution control measures, to prevent degradation of the city's waterways. Adequate revenues shall be generated to provide for balanced operating and capital improvement budgets for the stormwater management system by setting sufficient levels of the service charge.

(Ord. No. 4482-93, § 1)

Sec. 37.1-2. Program administration.

The Newport News stormwater management program shall be administered by the department of engineering.

(Ord. No. 4482-93, § 1)

Secs. 37.1—3—37.1-9. Reserved.



ARTICLE II. SERVICE CHARGE

ARTICLE II. SERVICE CHARGESec. 37.1-10. Findings and determinations.

Sec. 37.1-11. Definitions.

Sec. 37.1-12. Establishment of service charge and expenditures of revenue.

Sec. 37.1-13. Imposition of service charge.

Sec. 37.1-14. Service charge, billing, payment, interest, fee and lien.

Sec. 37.1-15. Administration, waiver and adjustment of service charge.

Secs. 37.1-16—37.1-19. Reserved.

Sec. 37.1-10. Findings and determinations.

(a) Stormwater runoff is associated with all real estate in the city, whether residential or nonresidential, and the quantity and quality of runoff is correlated to the amount of impervious surface and land-disturbing activities on each parcel.

(b) The elements of the stormwater management system provide benefit and service to all land within the city through direct protection of property, control of flooding of critical components of the infrastructure, and enhancement of water quality and the city's natural environment.

(c) The costs of monitoring, operating, maintaining and constructing the system required in the city, both to meet stormwater pollution control regulations and to address and resolve erosion and flooding needs, should therefore be allocated to the extent practicable to all property owners based on their contribution to stormwater runoff.

(Ord. No. 4482-93, § 1)


The following words and terms used in this chapter shall have the following meanings:

(1) Developed multifamily residential property shall mean any property used primarily for residential living purposes and containing dwelling units that are stacked vertically or one (1) on top of another, and are two (2) or three (3) dwelling units in height.

(2) Developed other property shall mean developed property that does not serve a primary purpose of providing permanent dwelling units or contain structures that are greater than three (3) stories in height.

(3) Developed property shall mean a parcel of real property that has been altered in whole or in part from its natural state by the addition of improvements, such as buildings, structures, paving and/or other impervious surfaces.

(4) Developed residential property shall mean any property used primarily for residential living purposes that does not have a separate dwelling unit located vertically or stacked above the single dwelling unit's footprint.

(5) Director shall mean the director of the department of engineering or his designee.




(6) Dwelling unit shall mean a single housing unit, mobile home, townhouse, condominium or apartment providing complete, independent living facilities for one (1) or more persons, including provisions for living, sleeping, eating, cooking and sanitation.

(7) Equivalent residential unit (ERU) shall mean the equivalent impervious area of the developed residential property class per dwelling unit located within the city based on the statistical average horizontal impervious area of developed residential property in the city. One (1) ERU shall equal one thousand seven hundred seventy-seven (1,777) square feet of impervious surface area.

(8) ERU rate shall mean the service charge fee charged for one (1) ERU as established in this article.

(9) Impervious surface area shall mean a surface that is covered with material that is resistant to infiltration by water, including, but not limited to, most conventionally surfaced streets, roofs, sidewalks, parking lots and other similar structures.

(10) Service charge shall mean the user fee based upon the ERU rate applied to property owners of developed residential property, developed multifamily residential property and developed other property.

(11) Stormwater management revenues or revenues shall mean all rates, service charges, fees, assessments, rentals, other charges or other income received in connection with the management and operation of the system, including amounts received from the investment or deposit of money in any fund or account and any amounts contributed by the city council from general revenues of the city.

(12) Stormwater management system or system shall mean the stormwater management infrastructure and equipment of the city and all improvements thereto. Infrastructure and equipment shall include structural and natural stormwater control facilities of all types including, without limitation, retention and detention basins, conduits, pumping stations, and other plants, structures, and real and personal property used for support of the system.

(13) Undeveloped property shall mean any parcel that has not been altered from its natural state in such a manner that the topography or soils on the property have been disturbed or altered to the extent that the rate of surface infiltration of stormwater has been affected.

(Ord. No. 4482-93, § 1; Ord. No. 4683-95)

Sec. 37.1-12. Establishment of service charge and expenditures of revenue.

(a) There is hereby established a service charge pursuant to the statutory authority granted to localities in Title 15.2 of the Code of Virginia, 1950, as amended, and Section 2.01 of the Charter of the City of Newport News, Virginia, to provide for the general health, welfare and safety of the city and its residents.

(b) The revenues collected pursuant to this article shall be deposited in a separate ledger account. The funds deposited shall be used exclusively to provide services and facilities related to the system. Services and facilities related to the system shall include, but not be limited to, the following:

(1) Acquisition of real or personal property and interests therein necessary to construct, operate and maintain the system;

(2) The cost of administering such programs, to include the establishment of reasonable operating and capital reserves to meet unanticipated or emergency requirements of the system and all associated legal and collection costs;




(3) Engineering, planning, design, inspection, debt retirement, and construction costs for new facilities and enlargement or improvement of existing facilities, including the enlargement and improvement of dams, levees, floodwalls, and pump stations, whether publicly or privately owned, that serve to control stormwater;

(4) Facility and equipment maintenance including the maintenance of dams, levees, floodwalls and pump stations whether publicly or privately owned, that serve to control stormwater;

(5) Monitoring of the quantity and quality of stormwater and associated control devices; and

(6) Other activities consistent with the state or federal regulations or permits governing stormwater management, including, but not limited to, public education, watershed planning, inspection and enforcement activities, and pollution prevention planning and implementation.

(Ord. No. 4482-93, § 1; Ord. No. 5307-99; Ord. No. 6807-11, § 1)

Editor's note—

Ord. No. 6807-11 shall be in effect on and after July 1, 2011.

Sec. 37.1-13. Imposition of service charge.

(a) For the fiscal year beginning on July 1, 1993 and ending on June 30, 1994 and for each and every fiscal year thereafter there shall be and hereby is levied an annual stormwater management service charge on all developed property in the City of Newport News.

(b) For the purposes of determining the service charge, all properties in the city are classified into one (1) or more of the following classes:

(1) Developed residential property;

(2) Developed multifamily residential property;

(3) Developed other property; or

(4) Undeveloped property.

(c) The service charge for developed residential property shall equal the ERU rate multiplied by the number of dwelling units.

(d) The service charge for developed multifamily residential property shall be 0.42 multiplied by the ERU rate per dwelling unit or residence.

(e) The service charge for developed other property shall be the ERU rate multiplied by the numerical factor obtained by dividing the total impervious surface area square footage of the property by the square footage contained in one (1) ERU. The numbered factor will then be rounded up to the nearest tenth (0.1) of a unit. The minimum service charge for any developed other property shall equal the ERU rate.

(f) The service charge for vacant developed property shall be calculated in the same manner as for occupied property of the same class.

(g) Undeveloped property shall not be subject to the service charge.

(h) Stormwater management service charges levied annually under the provisions of this article shall be effective on the first day of July in the year for which the same is made.

(Ord. No. 4482-93, § 1; Ord. No. 4683-95)




Sec. 37.1-14. Service charge, billing, payment, interest, fee and lien.

(a) The levied service charge shall be billed, due and payable in two (2) equal installments. The first (1st) installment shall be due on or before the fifth (5th) day of December and the second installment shall be due on or before the fifth (5th) day of June. Any parcel or dwelling unit owner who has remitted payment of the service charges and believes that it is incorrect may submit an adjustment request as provided for in this article.

(b) The service charge is to be paid by the owner of each parcel or dwelling unit that is subject to the charge. The owner of each parcel or dwelling unit in the city, except undeveloped property, shall be mailed a statement for the stormwater service charges. The statements shall include a date by which payment shall be due. All statements shall be mailed at least thirty (30) days prior to the payment due date stated thereon. Payments received after the due date of the bill shall be subject to interest as established in this article.

(c) The service charge due the city from property owners for stormwater management shall be based on the ERU rate of one hundred seventeen dollars ($117.00) per ERU per year. When applicable, the service charge shall be prorated at nine dollars and seventy-five cents ($9.75) per ERU per month.

(d) Any bill which has not been paid by the due date shall be deemed delinquent. Unpaid service charges and accrued interest shall constitute a lien against the property, ranking on a parity with liens for unpaid taxes. All charges and interest due may be recovered by action at law and/or suit in equity. For delinquent charges, interest thereon shall commence on the first day of the month following the due date and shall accrue at the rate of ten (10) percent per annum until such time as the delinquent charges and accrued interest are paid.

(e) When previously undeveloped properties are brought into the system or in the event of alterations or additions to developed multifamily property or developed other property that alter the amount of impervious surface and/or the number of dwelling units, a service charge will accrue as determined by the director:

(1) Upon substantial completion of the improvements; or

(2) In the event completion of the improvements is not diligently pursued, upon establishment of the impervious area or dwelling units that affect stormwater runoff. A statement will be issued and said charges will be prorated for the number months for which the parcel is subject to the service charge.

(f) Prior to the adoption of any ordinance pursuant to this section related to the enlargement, improvement or maintenance of privately owned dams, notice consistent with Virginia Code § 15.2-1427 shall be given and a public hearing held.

(Ord. No. 4482-93, § 1; Ord. No. 4683-95; Ord. No. 5463-00, § 1; Ord. No. 5622-01, § 1; Ord. No. 6126-05, § 1; Ord. No. 6243-06, § 1; Ord. No. 6362-07, § 1; Ord. No. 6484-08, § 1; Ord. No. 6585-09, § 1; Ord. No. 6807-11, § 1; Ord. No. 6873-12, § 1; Ord. No. 6966-13, § 1; Ord. No. 7058-14, § 1)

Editor's note—

Ord. No. 7058-14, § 1, adopted May 13, 2014, shall be in effect on and after July 1, 2014.

Sec. 37.1-15. Administration, waiver and adjustment of service charge.

(a) The property owner may make application in writing to the director for an adjustment to or waiver of the stormwater management service charge. The property owner shall substantiate the claim to the satisfaction of the director with plans, engineering calculations and related documents prepared by a




licensed professional engineer or land surveyor. The director may waive the licensed professional requirement if in his opinion the specific adjustment request does not warrant such a requirement.

(1) New construction service charge adjustment applications for new construction shall be made in conjunction with the relevant site plan or development plan submittal or a request for waiver of normal site plan processing requirements. Action on such applications shall be within the response times specified for such submittals and requests. Approved adjustments shall be effective from the date of approval and will be prorated from the first day of the month in which the adjustment is approved.

(2) Any owner of a developed parcel or dwelling unit who believes his service charge to be incorrect may make application for adjustment of the charge to the director. Response to such requests shall be made by the director within thirty (30) calendar days of receipt of a complete request. The director shall develop an administrative policy regarding the refund or credit of overpaid fees.

(b) Any owner may appeal the director's decision to the city manager but must do so in writing within fifteen (15) calendar days of the date of the director's response. The city manager shall respond to the appeal within fifteen (15) calendar days and such response shall be final.

(c) The director may extend such city response times as appropriate to ensure full and complete evaluation of the application. In these cases, the director shall notify the applicant of the action by certified mail.

(d) Full waiver of the service charge shall be provided upon approval of a request for waiver for properties owned by a federal, state and local government or a public entity, that holds a permit to discharge stormwater from a municipal separate storm sewer system; except that the waiver of charges shall apply only to property covered by any such permit.

(e) Adjustments:

(1) The city recognizes that on-site stormwater control facilities and increased green area reduce peak stormwater runoff rates and the transport of pollutants. The city's stormwater management system is constructed and maintained for the benefit of everyone in the city. Each land owner in the city has an obligation to pay an equitable share of the stormwater management program costs. The partial waiver of service charges established in this section account for the efforts of individuals who install, operate and maintain a stormwater management facility that achieves a permanent reduction in stormwater flow or pollutant discharges. The amount of the waiver shall be based in part on the percentage reduction in stormwater flow or pollutant discharges, or both, from pre-installation to post-installation of the facility, as set for more fully below. No waiver shall be given to any person who does not obtain a stormwater permit from the department of conservation and recreation of the department of environmental quality when such permit is required by statute or regulations. The total maximum additive service charge adjustment shall be twenty-five (25) percent of the service charge for items contained in [subsections] (e)(2) and (e)(3).

(2) a. In order to be eligible and maintain eligibility for the following service charge adjustments, all of the following conditions shall be met:

1. Applicant required to apply for and demonstrate to the satisfaction of the director that an adjustment is warranted;

2. Service charge after adjustment shall be greater than one (1) ERU;

3. Control facility shall be privately constructed, owned, operated and maintained;

4. Control facility shall be covered under an on-going maintenance program approved by the director;




5. Control facility shall be a permanent, on-site facility;

6. Control facility shall operate at design efficiency;

7. Service charge adjustment eligibility shall be certified by the owner and approved by the director every two (2) years; and

8. Control facility shall be designed to meet or exceed the minimum criteria as established and maintained in writing by the director.

b. Parcels utilizing stormwater control facilities that control the peak rate of discharge from a site in accordance with the following shall receive the service charge adjustment stated for the area controlled:

1. Seventy-five (75) to one hundred (100) percent reduction in post development peak runoff rate—Fifteen (15) percent service charge adjustment;

2. Fifty (50) to seventy-four (74) percent reduction in post development peak runoff rate—Ten (10) percent service charge adjustment; and

3. Thirty (30) to forty-nine (49) percent reduction in post development peak runoff rate—Five (5) percent service charge adjustment.

c. Parcels utilizing stormwater control facilities that provide structural stormwater pollution controls which serve at least eighty (80) percent of the developed portion of the site shall receive a service charge adjustment according to the following:

1. Wet retention basin(s)—Fifteen (15) percent;

2. Extended dry detention—Ten (10) percent; and

3. Infiltration facilities—Five (5) percent.

(3) In order to be eligible for the following service charge credits, all of the indicated conditions shall be met:

• Applicant shall apply for and demonstrate to the satisfaction of the director that an adjustment is warranted; and

• Service charge after adjustment shall be greater than one (1) ERU.

a. Parcels providing green area (percentage shall be based upon the ratio of green area to developed area) shall receive the service charge adjustment specified as follows:

1. Greater than ten (10) percent and up to and including twenty (20) percent green area—Five (5) percent; and

2. Greater than twenty (20) percent of green area—Ten (10) percent.

b. Parcels that are encumbered by a recorded public easement used exclusively for drainage purposes, the undeveloped area of which exceeds fifteen (15) percent of the parcel area with no portion of the encumbrance area being used to meet green area requirements or receive any other service charge adjustment, shall receive a one (1) percent service charge adjustment, not to exceed ten (10) percent of the service charge, for each one (1) percent of the easement area that exceeds fifteen (15) percent of the parcel area.

(4) Service charge adjustments shall be given to parcels that meet the conditions established in [subsection] (e)(2)a. and for which a reduction in the city stormwater management program costs can be documented to the satisfaction of the director. This is a stand alone adjustment that will be considered separate and not added to any other service charge adjustment. Any such credit shall be awarded on the basis of a "betterment" test and the reduction in the city's




stormwater management program costs. The total maximum credit for this adjustment shall be seventy (70) percent of the service charge.

(5) A one hundred (100) percent service charge adjustment shall be granted upon approval of a request for those portions of parcels that are subject to and in compliance with the requirements of an individual federal or state industrial stormwater discharge permit, drain into a privately owned, operated and maintained storm drainage systems, and discharge directly into waters of the United States.

(6) A fifteen (15) percent service charge adjustment off of the annual service charge shall be granted to the owners of developed, individually billed and owned residential property and dwelling units within multi-family residential property who provide evidence of participation in the household chemical collection program at least once in a billing year.

(Ord. No. 4482-93, § 1; Ord. No. 5053-97; Ord. No. 5294-99; Ord. No. 6807-11, § 1)

Editor's note—

Ord. No. 6807-11 shall be in effect on and after July 1, 2011.

Secs. 37.1-16—37.1-19. Reserved.



ARTICLE III. STORM SEWER DISCHARGE

ARTICLE III. STORM SEWER DISCHARGE [2] Sec. 37.1-20. Findings and determinations.


Sec. 37.1-22. Violations and penalties.

Sec. 37.1-23. Inspections and monitoring.

Secs. 37.1-24—37.1-29. Reserved.

Sec. 37.1-20. Findings and determinations.

(a) Pollutants in stormwater runoff from many sources are largely uncontrolled and have an adverse impact upon the quality of receiving waters. Major sources of stormwater runoff that cause water quality impacts include construction sites, illicit connections, illegal dumping and industrial activities.

(b) Amendments to the Clean Water Act (CWA) in 1987 required the Environmental Protection Agency (EPA) to establish National Pollutant Discharge Elimination System (NPDES) requirements for municipal separate storm sewer systems. NPDES regulations require the City of Newport News to control through ordinance, permit, contract, order or similar means the contribution of pollutants into waters of the United States.

(c) This article is adopted as an integral part of the city's stormwater management program.

(Ord. No. 7017-13, § 1)


The following words and terms used in this article shall have the following meanings.

Discharge means to dispose, deposit, spill, pour, inject, dump, leak or place by any means, or that which is disposed, deposited, spilled, poured, injected, dumped, leaked or placed by any means.

Groundwater means all subsurface water, including, but not limited to, that part within the zone of saturation.

Industrial wastes means liquid or other wastes resulting from any process of industry, manufacture, trade or business, or from the development of any natural resources.

Other waste means materials that can adversely affect waters of the United States should they be discharged into same, including, but not limited to, garbage, refuse, lime, fertilizer, ashes, offal, tar, paint, solvents, petroleum products, antifreeze and chemicals.

Person means any individual, corporation, partnership, limited partnership, limited liability company, association, state, municipality, commission, or political subdivision of a state, governmental body, including federal, state, or local entity as applicable, any interstate body or any other legal entity.

Sanitary sewer means a system of underground conduits that collect and deliver sanitary wastewater to a wastewater treatment or pumping facility.

Sewage means the water-carried human wastes from residences, buildings, industrial establishments or other places, together with such industrial wastes, stormwater or other water as may be present.




State projects means any projects undertaken by the Commonwealth of Virginia or its state agencies. This does not apply to the projects of political subdivisions of the state located within the physical boundaries of the City of Newport News.

Storm sewer system means the system of roads, streets, catch basins, curbs, gutters, ditches, pipes, lakes, ponds, channels, storm drains and other facilities designed or used for collecting, storing or conveying stormwater or through which stormwater is collected, stored or conveyed.

Surface runoff means stormwater runoff from rain, snow or other forms of precipitation.

(Ord. No. 7017-13, § 1)

Sec. 37.1-22. Violations and penalties.

(a) It shall be a violation of this article to:

(1) Discharge, or cause or allow to be discharged, sewage, industrial wastes or other wastes into the storm sewer system, or any component thereof, or onto driveways, sidewalks, parking lots or other areas draining to the storm sewer system;

(2) Connect, or cause or allow to be connected, any sanitary sewer to the storm sewer system, including any sanitary sewer connected to the storm sewer system as of the date of adoption of this article;

(3) Obstruct, block, divert, or otherwise alter the design capacity or specifications of any storm sewer system or to impede the efficient functioning of any storm sewer system without approval by the city manager, or designee; or

(4) Place, put, throw or deposit, or allow or cause to be placed, put, thrown or deposited, any limbs, leaves, wire mesh, compost, chips, construction debris, wood, or any other substance in the storm sewer system or in an area which drains into the storm sewer system.

(b) The following activities shall not be considered a violation of this article.

(1) Water line flushing;

(2) Landscape irrigation;

(3) Diverting stream flows or rising groundwater;

(4) Public safety activities, including, but not limited to, law enforcement and fire suppression;

(5) Pumping of uncontaminated groundwater from potable water sources, foundation drains, irrigation waters, springs, or water from crawl spaces or footing drains;

(6) Lawn watering;

(7) Individual car washing on residential properties;

(8) Dechlorinated swimming pools discharges;

(9) Street washing;

(10) Any activity authorized by and in compliance with a valid Virginia Pollutant Discharge Elimination System (VPDES) permit or Virginia Pollution Abatement (VPA) permit;

(11) Any activity by a governmental entity for the maintenance or repair of drinking water reservoirs or drinking water treatment or distribution systems; and

(12) Any activity by the city, its agents and employees, for the maintenance of lakes and other components of its stormwater management system.




(c) A willful or knowing violation of the provisions of this article shall constitute a misdemeanor. Each day that a continuing violation of this article is maintained or permitted to remain shall constitute a separate offense.

(d) Any person who, intentionally or otherwise, commits any of the acts prohibited by this article shall be liable to the city for all costs of containment, cleanup, abatement, removal and disposal of any substance unlawfully discharged into the storm sewer system.

(e) Any person who, intentionally or otherwise, commits any of the acts prohibited by this article shall be subject to a civil penalty in an amount not more than thirty two thousand five hundred dollars ($32,500.00) for each day that a violation of this article continues. Any civil penalties assessed by a court as a result of a summons issued by a locality as an approved VSMP authority shall be paid into the treasury of the city.

(f) The city may bring legal action to enjoin the continuing violation of this article, and the existence of any other remedy, at law or in equity, shall be no defense to any such action.

(g) The city manager, or designee, shall have authority to order that any activity found to be in violation of this article be stopped or conducted in such a manner as to avoid the discharge of sewage, industrial wastes or other wastes into the storm sewer system.

(h) With the consent of any person who has violated or failed, neglected or refused to obey any ordinance, any condition of a permit, any order of the city, or any provision of this article, the city may provide, in an order issued against such person, for the payment of civil charges for violations in specific sums, not to exceed the limit specified in this section. Such civil charges shall be instead of any appropriate civil penalty that could be imposed under this section. Any civil charges collected shall be paid to the treasury of the city for the purpose of abating, preventing or mitigating environmental pollution.

(i) The remedies set forth in this section shall be cumulative, not exclusive, and it shall not be a defense to any action, civil or criminal, that one (1) or more of the remedies set forth herein has been sought or granted.

(Ord. No. 7017-13, § 1)

Sec. 37.1-23. Inspections and monitoring.

The city manager, or designee, shall have authority to make such lawful inspections and conduct such monitoring of stormwater outfalls or other components of the storm sewer system as may be necessary or appropriate in the administration and enforcement of this article. The city may, at reasonable times and under reasonable circumstances, enter any establishment or upon any property, public or private, for the purpose of obtaining information or conducting surveys or investigations necessary in the enforcement of the provisions of this article. This authority shall apply only to those properties from which a discharge enters their municipal separate storm sewer.

(Ord. No. 7017-13, § 1)

Secs. 37.1-24—37.1-29. Reserved.

FOOTNOTE(S):




--- (2) ---

Editor's note— Ord. No. 7017-13, § 1, adopted November 26, 2013, effective on and after July 1, 2014, repealed the former art. III, §§ 37.1-20—37.1-23, and enacted a new art. III as set out herein. The former art. III pertained to similar subject matter and derived from Ord. No. 4569-94; Ord. No. 4669-94; Ord. No. 5829-02, § 1; Ord. No. 6282-06, § 1; Ord. No. 6807-11, § 1. (Back)



ARTICLE IV. STORMWATER CONTROL REGULATIONS

ARTICLE IV. STORMWATER CONTROL REGULATIONS [3] Sec. 37.1-30. Findings and determinations; purpose.

Sec. 37.1-31. Applicability.


Sec. 37.1-33. General criteria.

Sec. 37.1-34. Regional stormwater management.

Sec. 37.1-35. Technical criteria.

Sec. 37.1-36. Stormwater management plan requirements.

Sec. 37.1-36.1. Pollution prevention plan; contents of plans.

Sec. 37.1-36.2. Stormwater pollution prevention plan; contents of plans.

Sec. 37.1-37. Plan approval and conditions of approval.

Sec. 37.1-37.1. Hearings.

Sec. 37.1-37.1:1. Appeals.

Sec. 37.1-37.2. Fees.

Sec. 37.1-37.3. Stormwater nonpoint nutrient offsets.

Sec. 37.1-38. Construction inspections.

Sec. 37.1-39. Maintenance.

Sec. 37.1-40. Enforcement.

Secs. 37.1-41—37.1-45. Reserved.

Sec. 37.1-30. Findings and determinations; purpose.

(a) The Stormwater Management Act, Sections 62.1-44.15:24 through 66 of the Code of Virginia, requires localities to prepare and adopt a stormwater management plan and implementing ordinance no later than July 1, 2014.

(b) The city council hereby finds that the waters and waterways within the City of Newport News are at times subjected to flooding and channel erosion due to urban stormwater runoff, tidal action and storms; such flooding is a danger to the lives and property of the public; such flooding and channel erosion is also a danger to the natural and water resources of the city; urban stormwater runoff carries pollution which causes the deterioration of the water resources of the city; the control of stormwater pollution discharges to the maximum extent practicable, is required by state and federal statutes and regulations; and such increased flooding, erosion and pollution discharges can be controlled to some extent by the regulation of stormwater runoff from new development. Therefore, it is determined that it is in the public interest to establish requirements to regulate the discharge of stormwater runoff.

(c) It is the purpose of this article to establish minimum stormwater management requirements and controls to:




(1) Reduce flood damage to public health, life, and property;

(2) Minimize increased stormwater runoff where such runoff will increase flood damage;

(3) Maintain the adequacy of existing and proposed culverts and bridges, dams and other structures;

(4) Prevent, to the maximum extent practicable, an increase in stormwater pollution;

(5) Maintain the integrity of stream channels for their biological functions, as well as for drainage and other purposes;

(6) Reduce the impact of increased runoff upon stream erosion; and

(7) Preserve and protect water supply facilities and water resources by means of controlling increased flood discharges, stream erosion, and nonpoint source pollution to the extent authorized by state and federal law.

(Ord. No. 7017-13, § 1)

Sec. 37.1-31. Applicability.

(a) Except as provided for in section 37.1-31(b) of this article, all land development projects shall comply with the requirements of this article. All land development projects located within Chesapeake Bay Preservation or Reservoir Protection areas shall additionally comply with the provisions of those respective ordinances. In the event of a conflict, the provisions of chapter 37.1, article V, Chesapeake Bay Preservation and chapter 42, article V, Reservoir Protection of the City Code shall take precedence for land development projects in their respective areas.

(b) The following activities are exempt from this article:

(1) Permitted surface or deep mining operations and projects, or oil and gas operations and projects conducted under the provisions of Title 45.1 of the Code of Virginia.

(2) Clearing of lands specifically for agricultural purposes and the management, tilling, planting, or harvesting of agricultural, horticultural, or forest crops, livestock feedlot operations, or as additionally set forth by the board in regulations, including engineering operations as follows: construction of terraces, terrace outlets, check dams, desilting basins, dikes, ponds, ditches, strip cropping, lister furrowing, contour cultivating, contour furrowing, land drainage, and land irrigation; however, this exception shall not apply to harvesting of forest crops unless the area on which harvesting occurs is reforested artificially or naturally in accordance with the provisions of Chapter 11 (§ 10.1-1100 et seq.) [of the Code of Virginia] or is converted to bona fide agricultural or improved pasture use as described in subsection B of § 10.1-1163 [of the Code of Virginia];

(3) Single-family residences separately built and not part of a larger common plan of development or sale, including additions or modifications to existing single-family detached residential structures.

(4) Land development projects that disturb less than one (1) acre of land area and discharge stormwater to an adequate system, except when those projects are located within Chesapeake Bay Preservation or Reservoir Protection areas, or activities that are part of a larger common plan of development or sale that is one (1) acre or greater of disturbance.

(5) Reserved.

(6) State projects as defined in this chapter.

(7) Reserved.




(8) Activities under a state or federal reclamation program to return an abandoned property to an agricultural or open land use.

(9) Discharges to a sanitary sewer system.

(10) Routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original construction of the project. The paving of an existing road with a compacted or impervious surface and reestablishment of existing associated ditches and shoulders shall be deemed routine maintenance if performed in accordance with this subsection.

(11) Conducting land-disturbing activities in response to a public emergency where the related work requires immediate authorization to avoid imminent endangerment to human health or the environment. In such situations, the VSMP authority shall be advised of the disturbance within seven (7) days of commencing the land-disturbing activity and compliance with the administrative requirements of subsection A is required within thirty (30) days of commencing the land-disturbing activity.

(c) Reserved.

(d) Land development projects subject to the grandfathering provisions of 9VAC25-870-48 [of the Virginia Administrative Code] that are located within the watershed of and discharge stormwater to a city-approved regional stormwater management facility for water quality control or have thirty-six (36) percent or less of impervious cover shall be exempt from complying with section 37.1-35(b) but shall comply with section 37.1-35(c).

(e) Approvals issued pursuant to this article do not relieve the applicant of the responsibility to secure required permits or approvals for activities regulated by any other applicable code, rule, act or ordinance.

(f) If the provisions of any article, section, subsection, paragraph, subdivision or clause of this article shall be judged invalid by a court of competent jurisdiction, such order or judgment shall not affect or invalidate the remainder of any article, section, subsection, paragraph, subdivision or clause of this article.

(Ord. No. 7017-13, § 1)


Unless specifically defined below, words or phrases used in this article shall be interpreted so as to give them the meaning they have in common usage and to give this article its most reasonable application.

Adequate stormwater management system or adequate system means the stormwater management infrastructure and equipment of the city and all improvements thereto that will convey the designated frequency storm event without overtopping the channel banks, causing erosive damage or flooding.

Applicant means any person submitting an application for a permit or requesting issuance of a permit under this chapter.

Board means the Virginia State Water Control Board.

Channel means a natural stream or manmade waterway.

Chesapeake Bay Preservation Act land-disturbing activity means a land-disturbing activity including clearing, grading, or excavation that results in a land disturbance equal or greater than two thousand five hundred (2,500) square feet and less than one (1) acre in all areas of jurisdictions designated as subject to the regulations adopted pursuant to the Chesapeake Bay Preservation Act, Code of Virginia, § 62.1-44.15:67, et seq.




Common plan of development or sale means a contiguous area where separate and distinct construction activities may be taking place at different times on different schedules.

Department means the Virginia Department of Environmental Quality.

Development means land disturbance and the resulting landform associated with the construction of residential, commercial, industrial, institutional, recreation, transportation or utility facilities or structures or the clearing of land for non-agricultural or non-silvicultural purposes.

Flooding means a volume of water that is too great to be confined within the banks or walls of the stream, water body or conveyance system and that overflows onto adjacent lands, causing or threatening damage.

Floodplain means those areas adjoining a river, stream, channel, estuary, bay or lake which are likely to be covered by flooding.

Impervious surface means a hard surface area which either prevents or retards the entry of water into the soil mantle as under natural conditions prior to development, and/or a hard surface area which causes water to run off the surface in greater quantities or at an increased rate of flow from the flow present under natural conditions prior to development. Impervious areas include, but are not limited to, roof tops, walkways, patios, driveways, parking lots or storage areas, concrete or asphalt paving, gravel roads, packed earthen materials, and oiled, macadam, or other surfaces which similarly impede the natural infiltration of stormwater. Natural waterbodies and open, uncovered retention/detention facilities shall not be considered as impervious surfaces.

Infiltration facility means a stormwater management facility which temporarily stores stormwater and discharges it via infiltration through the surrounding soil.

Inspection means an on-site review of the project's compliance with the approved plan, the local stormwater management program, a state-issued stormwater construction general or individual permit as applicable, and any applicable design criteria.

Land development or land development project means a manmade change to the land surface that potentially changes its runoff characteristics.

Minor modification means an amendment to an existing general permit before its expiration not requiring extensive review and evaluation including, but not limited to, changes in EPA promulgated test protocols, increasing monitoring frequency requirements, changes in sampling locations, and changes to compliance dates within the overall compliance schedules. A minor general permit modification or amendment does not substantially alter general permit conditions, substantially increase or decrease the amount of surface water impacts, increase the size of the operation, or reduce the capacity of the facility to protect human health or the environment.

Nonpoint source pollution means pollution such as sediment, nitrogen, phosphorous, hydrocarbons, heavy metals, and toxics whose sources cannot be pinpointed but rather are washed from the land surface in a diffuse manner by stormwater runoff.

Onsite stormwater management facilities means facilities which are designed to control stormwater runoff emanating from a specific site.

Peak flow rate means the maximum instantaneous flow from a prescribed design storm at a particular location.

Person means any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, county, city, town or other political subdivision of the commonwealth, any interstate body or any other legal entity.

Point source means any discernible, confined, and discrete conveyance including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated




animal feeding operation, landfill leachate collection system, vessel, or other floating craft from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture or agricultural stormwater runoff.

Pollutant means dredged spoil, solid waste, incinerator residue, filter backwash, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials (except those regulated under the Atomic Energy Act of 1954, as amended (42 USC § 2011 et seq.)), heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. It does not mean:

1. Sewage from vessels; or

2. Water, gas, or other material that is injected into a well to facilitate production of oil or gas, or water derived in association with oil and gas production and disposed of in a well if the well used either to facilitate production or for disposal purposes is approved by the board and if the board determines that the injection or disposal will not result in the degradation of ground or surface water resources.

Pollutant discharge means the average amount of a particular pollutant measured in pounds per year or other standard reportable unit as appropriate, delivered by stormwater runoff.

Pollution means such alteration of the physical, chemical or biological properties of any state waters as will or is likely to create a nuisance or render such waters (a) harmful or detrimental or injurious to the public health, safety or welfare, or to the health of animals, fish or aquatic life; (b) unsuitable with reasonable treatment for use as present or possible future sources of public water supply; or (c) unsuitable for recreational, commercial, industrial, agricultural, or other reasonable uses, provided that (i) an alteration of the physical, chemical, or biological property of state waters, or a discharge or deposit of sewage, industrial wastes or other wastes to state waters by any owner which by itself is not sufficient to cause pollution, but which, in combination with such alteration of or discharge or deposit to state waters by other owners, is sufficient to cause pollution; (ii) the discharge of untreated sewage by any owner into state waters; and (iii) contributing to the contravention of standards of water quality duly established by the State Water Control Board, are "pollution" for the terms and purposes of this chapter.

Post-development refers to conditions that reasonably may be expected or anticipated to exist after completion of the land development activity on a specific site or tract of land.

Pre-development refers to the land use that exists at the time that plans for the land development are submitted. Where phased development or plan approval occurs (preliminary grading, roads and utilities, etc.), the existing land use at the time the first item is submitted shall establish pre-development conditions.

Regional (watershed wide) stormwater management facility or regional facility means a facility or series of facilities designed to control stormwater runoff from a large contributing area, although only portions of the watershed may experience land development.

Regional stormwater management plan or regional plan means a document containing material describing how runoff from open space, existing development and future planned development areas within a watershed will be controlled by coordinated design and implementation of regional stormwater management facilities.

Regulations mean the Virginia Stormwater Management Regulations (9VAC25-870-10, et seq. [of the Virginia Administrative Code]).

Runoff volume or stormwater runoff volume means that portion of precipitation that is discharged across the land surface or through conveyances to one (1) or more waterways.

State construction general permit means an approval to conduct a land-disturbing activity issued by the State Board in the form of a state stormwater individual permit or coverage issued under a state




general permit or an approval issued by the State Board for stormwater discharges from an MS4. Under these state permits, the Commonwealth imposes and enforces requirements pursuant to the Federal Clean Water Act and regulations, the Virginia Stormwater Management Act and the Regulations.

State project means the construction of any facility or expansion of an existing facility including, but not limited to land clearing, soil movement, or land development, which is undertaken by any state agency, board, commission, authority or any branch of state government, including state supported institutions of higher learning.

Stormwater detention basin or detention basin means a stormwater management facility which temporarily impounds runoff and discharges it through a hydraulic outlet structure to a downstream conveyance system. To achieve stormwater pollution control, the detention basin may include a permanent pool of water or some other treatment component specified in the Design Criteria Manual.

Stormwater management facility means a device that controls stormwater runoff and changes the characteristics of that runoff including, but not limited to, the peak flow rate and pollution discharges, the period of release or the velocity of flow.

Stormwater management plan or plan means a document containing material for describing how existing runoff characteristics will be maintained by a land development project and comply with the requirements of this article.

Subdivision means the division of a parcel of land into three (3) or more lots or parcels of less than five (5) acres each for the purpose of transfer of ownership or building development, or, if a new street is involved in such division, any division of a parcel of land. The term includes resubdivision and, when appropriate to the context, shall relate to the process of subdividing or to the land subdivided.

Virginia Stormwater Management Program or VSMP means a program approved by the State Board after September 13, 2011, that has been established by a locality to manage the quality and quantity of runoff resulting from land-disturbing activities and shall include such items as local ordinances, rules, permit requirements, annual standards and specifications, policies and guidelines, technical materials, and requirements for plan review, inspection, enforcement, where authorized in this article, and evaluation consistent with the requirements of this article and associated regulations.

Water quality volume means the volume equal to the first one-half (0.5) inch of runoff multiplied by the new impervious surface area of the land development project.

Watershed means the total drainage area contributing runoff to a single point.

(Ord. No. 7017-13, § 1)

Sec. 37.1-33. General criteria.

(a) Proposed residential, commercial, or industrial subdivisions or other projects shall apply these stormwater management criteria to the land development as a whole. Individual lots or phases in new subdivisions or other projects shall not be considered separate land development projects, but rather the entire subdivision or other projects shall be considered a common plan of development or sale. Hydrologic parameters shall reflect the ultimate land development and shall be used in all engineering calculations.

(b) Construction of stormwater management facilities or modifications to channels shall comply with all applicable laws and regulations.

(c) The design of impounding structures that are not covered by the Virginia Dam Safety Regulations shall be checked by the applicant for structural integrity and floodplain impacts for the one hundred-year storm event.




(d) Land development projects shall comply with article VII of this chapter and the Virginia Erosion and Sediment Control Law (Virginia Code § 62.1-44.15:51-66, et seq.) and attendant regulations.

(e) When appropriate, safety measures should be incorporated into the design of stormwater management facilities. These may include but are not limited to, safety ledges, warning signs, anti-vortex devices, stadia rod indicating depth at the lowest point, and outlet structures designed to limit public access.

(f) Outlets from stormwater management facilities shall be designed to function without manual, electrical or mechanical controls.

(g) Detention facilities shall be designed to minimize propagation of insects, particularly mosquitoes.

(h) New construction of onsite stormwater management facilities in floodplains should be avoided. When this is unavoidable, a special examination to determine adequacy of proposed stormwater management facilities shall be conducted as determined by the city manager, or designee. Such new construction shall be in compliance with all applicable regulations under the National Flood Insurance Program.

(i) Basic requirements for water quality and quantity control need not be satisfied solely by means of structural methods. Non-structural practices including, but not limited to, cluster land use development, minimization of impervious surface, open space acquisition, floodplain management, and protection of wetlands, steep slopes and vegetation should be coordinated with structural requirements. Such changes in land use often decrease the runoff coefficients, thus reducing the number, size and cost of structural practices; however all methods to meet water quality and quantity control shall be selected and designed in accordance with the Virginia Stormwater Best Management Practice (BMP) Clearinghouse to the extent these standards do not conflict with more stringent city requirements in effect as of January 1, 2013.

(j) Land disturbance shall be limited to the area necessary to provide for the desired use or development.

(1) In accordance with an approved site plan, the limits of land disturbance, including clearing or grading shall be clearly shown on submitted plans and physically marked on the development site.

(2) Where feasible, ingress and egress during construction shall be limited to one (1) access point, unless otherwise approved by the city manager, or designee.

(k) Indigenous vegetation shall be preserved to the maximum extent possible consistent with the use and development permitted and in accordance with the Virginia Erosion and Sediment Control Handbook, as adopted by chapter 37.1, article VII, of the Newport News City Code.

(1) Existing trees more than five (5) inches in diameter four and one-half (4.5) feet above existing grade shall be preserved outside the limits of land disturbance. Trees that are diseased or that have been weakened by age, storm, fire or other injury may be removed.

(2) Clearing shall be allowed only to provide necessary visual and vehicular access, positive site drainage, water quality stormwater management control facilities, and the installation of utilities as approved by the city manager, or designee.

(3) Prior to clearing or grading, suitable protective barriers, such as fencing, shall be erected five (5) feet outside of the dripline of any tree or stand of trees to be preserved. These protective barriers shall remain so erected throughout all phases of construction. The storage of equipment, materials, debris or fill shall not be allowed within the area protected by the barrier unless otherwise authorized by the city manager, or designee.

(l) Land development shall minimize impervious cover to promote infiltration of stormwater into the ground consistent with the use or development permitted.




(Ord. No. 7017-13, § 1)

Sec. 37.1-34. Regional stormwater management.

The applicant shall comply with the requirements of any regional stormwater management plan for the watershed in which the proposed land development is located.

(Ord. No. 7017-13, § 1)

Sec. 37.1-35. Technical criteria.

(a) Unless otherwise exempt, all land development projects shall comply with stormwater quantity and quality technical design criteria specified in this article or contained in the City of Newport News Design Criteria Manual as of January 1, 2013; whichever is more stringent.

(b) To protect the quality and quantity of state water from the potential harm of unmanaged stormwater runoff resulting from land-disturbing activities, the city hereby adopts the technical criteria for regulated land-disturbing activities set forth in Part II B of the Regulations, as amended, expressly to include 9VAC25-870-63 (water quality design criteria requirements); 9VAC25-870-65 (water quality compliance); 9VAC25-870-66 (water quantity); 9VAC25-870-69 (offsite compliance options); 9VAC25-870-72 (design storms and hydrologic methods); 9VAC25-870-74 (stormwater harvesting); 9VAC25-870-76 (linear development project); and, 9VAC25-870-85 (stormwater management impoundment structures or facilities) [of the Virginia Administrative Code], which shall apply to all land-disturbing activities regulated pursuant to this chapter, except as expressly set forth in subsection (d) of this section.

(c) Until June 30, 2019, any land-disturbing activity for which a currently valid proffered or conditional zoning plan, preliminary or final subdivision plat, preliminary or final site plan or zoning with a plan of development, or any document determined by the city manager, or designee, as being equivalent thereto, was approved by the director of engineering, or designee, prior to July 1, 2012, and for which no coverage under the general permit has been issued prior to July 1, 2014, shall be considered grandfathered in accordance with 9VAC25-870-48 [of the Virginia Administrative Code] and shall not be subject to the technical criteria of Part II B of the Regulations (9VAC25-870-62 through 92[of the Virginia Administrative Code]), but shall be subject to the technical criteria of Part II C of the Regulations (9VAC25-870-93 through 99 [of the Virginia Administrative Code]) for those areas that were included in the approval, provided that the city manager, or designee, finds that such proffered or conditional zoning plan, preliminary or final subdivision plat, preliminary or final site plan or zoning with a plan of development, or any document determined by the city manager, or designee, as being equivalent thereto,

(1) Provides for a layout, and;

(2) The resulting land-disturbing activity will be compliant with the requirements of Part II C [of the Regulations].

In the event that the approved development plan is subsequently modified or amended in a manner such that there is no increase over the previously approved plat or plan in the amount of phosphorus leaving each point of discharge of the land-disturbing activity through stormwater runoff, and such that there is no increase over the previously approved plat or plan in the volume or rate of runoff, the grandfathering shall continue as before.

(1) Until June 30, 2019, for local, state, and federal projects for which there has been an obligation of local, state, or federal funding, in whole or in part, prior to July 1, 2012, or for which the department has approved a stormwater management plan prior to July 1, 2012, such projects




shall be considered grandfathered by the City of Newport News and shall not be subject to the technical requirements of Part II B of the Regulations, but shall be subject to the technical requirements of Part II C of the Regulations for those areas that were included in the approval.

(2) For land-disturbing activities grandfathered under this subsection, construction must be completed by June 30, 2019, or portions of the project not under construction shall become subject to the technical requirements of Subsection (b) above.

(d) In cases where governmental bonding or public debt financing has been issued for a project prior to July 1, 2012, such project shall be subject to the technical requirements Part II C of the Regulations, as adopted by the locality in subsection (c) of this section.

(e) The city manager, or designee, may grant exceptions to the technical requirements of Part II B or Part II C of the Regulations, provided that:

(i) The exception is the minimum necessary to afford relief,

(ii) Reasonable and appropriate conditions are imposed so that the intent of the Act, the Regulations, and this chapter are preserved,

(iii) Granting the exception will not confer any special privileges that are denied in other similar circumstances, and;

(iv) Exception requests are not based upon conditions or circumstances that are self-imposed or self-created. Economic hardship alone is not sufficient reason to grant an exception from the requirements of this chapter.

(1) Exceptions to the requirement that the land-disturbing activity obtain required VSMP authority permit shall not be given by the city manager, or designee, nor shall the city manager, or designee, approve the use of a BMP not found on the Virginia Stormwater BMP Clearinghouse Website, or any other control measure duly approved by the department unless such BMP is contained in the City of Newport News Design Criteria Manual as of January 1, 2013 and is identified as being more stringent than state minimum requirements at the time of program submittal to the department for review.

(2) Exceptions to requirements for phosphorus reductions shall not be allowed unless offsite options otherwise permitted pursuant to 9VAC25-870-69[of the Virginia Administrative Code] have been considered and found not available.

(f) Nothing in this section shall preclude an operator from constructing to a more stringent standard at their discretion.

(g) Land development projects located in Chesapeake Bay Preservation or Reservoir Protection areas shall comply with the ordinance provisions affecting those respective ordinances.

(Ord. No. 7017-13, § 1)

Sec. 37.1-36. Stormwater management plan requirements.

(a) Except as provided for in section 37.1-31(b) of this article, no land-disturbing, grading, building, or other permit shall be issued for land development unless a stormwater management plan has been submitted to and approved by the city manager, or designee, and proof of coverage under the state stormwater construction general permit, and if applicable, has been submitted to the city manager, or designee.

(b) The following information, where applicable, shall be required for each proposed project subject to review under this article. All maps, plans, designs, narratives and calculations shall be certified by a




professional engineer or class III B surveyor. The city manager, or designee, may require additional information as may be necessary to properly review the land development plan.

(1) General description of the project.

(2) General description of the erosion and sediment controls.

(3) General description of temporary and permanent stormwater management facilities.

(4) Project schedule, including a sequence of construction.

(5) General description of maintenance plan for stormwater management facilities.

(6) A boundary map of the drainage area tributary to the project site.

(7) The location of the project relative to significant features in the general surroundings such as roads, pedestrian ways, access to the site, adjacent land uses, property lines, existing manmade structures, public facilities, landmarks, and places of architectural and historical significance.

(8) Existing contours at two-foot intervals, extending a minimum of two hundred (200) feet beyond the limits of the proposed development.

(9) Streams, lakes, ponds, existing drainage swales, wetlands, forested areas and other physical features within or adjacent to the project area.

(10) Unique, unusual, or environmentally sensitive features that provide particular opportunities or constraints for development.

(11) Locations of existing and proposed utilities, sewers and water lines.

(12) Soil types and boundaries and locations of areas with steep slopes or highly erodible soils.

(13) Alterations in the natural terrain, cover, and grade including lawns and other landscaping.

(14) Areas to be cut or filled.

(15) The location of proposed buildings, roads, parking areas, and other permanent structures.

(16) Final contours at two-foot intervals, extending a minimum of two hundred (200) feet beyond the limits of the proposed development.

(17) All stormwater management facilities must be shown on the plan as required by chapter 33.02 Site Regulations, article II Site Plan Form and Content [of this Code], including details; geographic coordinates based on the City of Newport News datum (NAD83 Virginia State Plane) reported in degrees, minutes, seconds; plan, profile, and cross sections; acres treated and the receiving water or watershed into which they discharge.

(18) If infiltration facilities are proposed, the locations of existing and proposed wells and septic system drain fields must be shown.

(19) Comprehensive hydrologic and hydraulic design calculations, including all assumptions and criteria, for the pre-development and post-development conditions for the design storms specified in this article verifying compliance with the water quality and quantity requirements of section 37.1-35 of this chapter.

(20) A soils report and boring logs.

(21) A maintenance plan indicating the person responsible for maintenance of the stormwater management facilities and a maintenance program for the proposed stormwater management facilities.




(22) An analysis showing the pre-existing total amount of phosphorous, nitrogen and sediment in the runoff from the developed area.

(23) An analysis showing onsite or offsite facilities that are calculated to result in reduction of phosphorous, nitrogen and sediment to bring the total within the limits of the Virginia Stormwater Regulation and the Chesapeake Bay total maximum daily load.

(24) If the calculations indicate that required water quality compliance cannot be achieved onsite, a proposal for purchase of stormwater nonpoint nutrient offsets, as set out in section 37.1-37.3 below.

(c) If an operator intends to meet the water quality and/or quantity requirements set forth in section 37.1-35 of this chapter through the use of off-site compliance options other than the purchase of non-point nutrient offsets as set out in section 37.1-37.3, below, where applicable, then a letter of availability from the off-site provider must be included.

Approved off-site options must achieve the necessary nutrient reductions prior to the commencement of the applicant's land-disturbing activity except as otherwise allowed by § 62.1-44.15:35 of the Code of Virginia.

(d) Elements of the stormwater management plans that include activities regulated under Chapter 4 (§ 54.1-400 et seq.) of Title 54.1 of the Code of Virginia shall be appropriately sealed and signed by a professional registered in the Commonwealth of Virginia pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1 of the Code of Virginia.

(e) A construction record drawing for permanent stormwater management facilities shall be submitted to the city manager, or designee. The construction record drawing shall be appropriately sealed and signed by a professional registered in the Commonwealth of Virginia, certifying that the stormwater management facilities have been constructed in accordance with the approved plan, unless the city manager, or designee, determines pursuant to 9VAC 25-870-112[of the Virginia Administrative Code] that such drawing is not necessary.

(Ord. No. 7017-13, § 1)

Sec. 37.1-36.1. Pollution prevention plan; contents of plans.

(a) Pollution prevention plan, required by 9VAC25-870-56 [of the Virginia Administrative Code], shall be developed, implemented, and updated as necessary and must detail the design, installation, implementation, and maintenance of effective pollution prevention measures to minimize the discharge of pollutants. At a minimum, such measures must be designed, installed, implemented, and maintained to:

(1) Minimize the discharge of pollutants from equipment and vehicle washing, wheel wash water, and other wash waters. Wash waters must be treated in a sediment basin or alternative control that provides equivalent or better treatment prior to discharge;

(2) Minimize the exposure of building materials, building products, construction wastes, trash, landscape materials, fertilizers, pesticides, herbicides, detergents, sanitary waste, and other materials present on the site to precipitation and to stormwater; and,

(3) Minimize the discharge of pollutants from spills and leaks and implement chemical spill and leak prevention and response procedures.

(b) The pollution prevention plan shall include effective best management practices to prohibit the following discharges:

(1) Wastewater from washout of concrete, unless managed by an appropriate control;




(2) Wastewater from washout and cleanout of stucco, paint, form release oils, curing compounds, and other construction materials;

(3) Fuels, oils, or other pollutants used in vehicle and equipment operation and maintenance; and,

(4) Soaps or solvents used in vehicle and equipment washing.

(c) Discharges from dewatering activities, including discharges from dewatering of trenches and excavations, are prohibited unless managed by appropriate controls.

(Ord. No. 7017-13, § 1)

Sec. 37.1-36.2. Stormwater pollution prevention plan; contents of plans.

(a) The Stormwater Pollution Prevention Plan (SWPPP) required by the state stormwater construction general permit shall include the content specified by section 9VAC25-870-54 [of the Virginia Administrative Code] and must also comply with the requirements and general information set forth in section 9VAC25-880-70, Section II (stormwater pollution prevention plan) [of the Virginia Administrative Code] of the general permit and amendments thereto.

(b) The SWPPP shall be amended by the operator whenever there is a change in design, construction, operation, or maintenance that has a significant effect on the discharge of pollutants to state waters which is not addressed by the existing SWPPP.

(c) The SWPPP must be maintained by the operator at a central location onsite. If an onsite location is unavailable, notice of the SWPPP's location must be posted near the main entrance at the construction site. Operators shall make the SWPPP available for public review in accordance with Section II of the general permit, either electronically or in hard copy.

(Ord. No. 7017-13, § 1)

Sec. 37.1-37. Plan approval and conditions of approval.

(a) The stormwater management plan required by this article shall be included as part of the submission requirement by site plan or subdivision ordinance plan submittal requirements.

(1) The city manager, or designee, shall determine the completeness of a stormwater management plan in accordance with section 37.1-36 of this chapter, and shall notify the applicant, in writing, of such determination, within fifteen (15) calendar days of receipt. If the stormwater management plan is deemed to be incomplete, the above written notification shall contain the reasons the stormwater management plan is deemed incomplete.

(2) The city manager, or designee, shall have an additional sixty (60) calendar days from the date of the communication of completeness to review the stormwater management plan, except that if a determination of completeness is not made within the time prescribed in subdivision (1), then the stormwater management plan shall be deemed complete and the city manager, or designee, shall have sixty (60) calendar days from the date of submission to review the stormwater management plan.

(3) The city manager, or designee, shall review any stormwater management plan that has been previously disapproved, within forty-five (45) calendar days of the date of resubmission.

(4) During the review period, the stormwater management plan shall be approved or disapproved and the decision communicated in writing to the person responsible for the land-disturbing activity or his designated agent. If the stormwater management plan is not approved, the reasons for not approving the stormwater management plan shall be provided in writing.




Approval or denial shall be based on the stormwater management plan's compliance with the requirements of this chapter.

(5) If a stormwater management plan meeting all requirements of this chapter is submitted and no action is taken within the time provided above in subdivision (2) for review, the stormwater management plan shall be deemed approved.

(b) The applicant shall comply with all applicable requirements of the approved plan and the local program and shall certify in writing that all land clearing, construction, land development and drainage will be done according to the approved plan.

(c) The land development project shall be conducted only within the area specified in the approved plan.

(d) The city shall be allowed to conduct periodic inspections of the project. The owner, occupier or operator shall be given the opportunity to accompany the city manager, or designee.

(e) No transfer, assignment or sale of the rights granted by virtue of an approved plan shall be made unless a written notice of transfer is filed with the city and the transferee certifies agreement to comply with all obligations and conditions of the approved plan.

(f) Modifications may only be made to an approved plan upon review and written approval by the city manager, or designee, in accordance with the following:

(1) Modifications to an approved stormwater management plan shall be allowed only after review and written approval by the city manager, or designee. The city manager, or designee, shall have sixty (60) calendar days to respond in writing either approving or disapproving such request.

(2) The city manager, or designee, may require that an approved stormwater management plan be amended, within a time prescribed by the city manager, or designee, to address any deficiencies noted during inspection.

(g) Reserved.

(h) Reserved.

(i) The city manager, or designee, shall require the submission of a construction record drawing for permanent stormwater management facilities.

(Ord. No. 7017-13, § 1)

Sec. 37.1-37.1. Hearings.

(a) Any permit applicant or permittee, or person subject to the requirements of this chapter, aggrieved by any action of the city taken without a formal hearing, or by inaction of the city, may demand in writing a formal hearing by the city manager, or designee, of such grievance, provided a petition requesting such hearing is filed with the city manager, or designee, within thirty (30) days after notice of such action is given by the city manager, or designee.

(b) The hearings held under this section shall be conducted by the city manager, or a designee, appointed in writing by the city manager.

(c) A verbatim record of the proceedings of such hearings shall be taken and retained by the city manager, or designee, pending an appeal. Depositions may be taken and read as in actions at law.

(d) The city manager, or designee, shall have power to issue subpoenas and subpoenas duces tecum, and at the request of any party shall issue such subpoenas. The failure of a witness without legal excuse to appear or to testify or to produce documents shall be acted upon by the local governing body, or its designated member, whose action may include the procurement of an order of




enforcement from the circuit court. Witnesses who are subpoenaed shall receive the same fees and reimbursement for mileage as in civil actions.

(e) The city manager, or designee, shall issue a decision in the matter in writing. This written decision will be retained as part of the record.

(f) The applicant may appeal to the wetlands board by filing a notice of appeal with the city manager, or designee, within thirty (30) days after the rendering of the written decision.

(Ord. No. 7017-13, § 1)

Sec. 37.1-37.1:1. Appeals.

(a) Any permit applicant or permittee, or person subject to the requirements of this chapter, aggrieved by any decision of the city manager, or designee, after a formal hearing, may demand in writing an appeal to the wetlands board, provided a petition for appeal is filed with the city manager, or designee, within thirty (30) days after the date of the written decision in the formal hearing.

(b) The appeals held under this section shall be conducted by the wetlands board at its next regularly scheduled meeting following the notice of appeal, unless good cause is shown for a continuance of the appeal to another regularly scheduled meeting,

(c) The appeal shall be based upon a review of the record from the formal hearing and argument of the parties to the appeal. The wetlands boards determination shall be in writing.

(Ord. No. 7017-13, § 1)

Sec. 37.1-37.2. Fees.

(a) Fees to cover costs associated with implementation of a VSMP related to land disturbing activities and issuance of general permit coverage and VSMP authority permits shall be imposed in accordance with table 1.

Table 1: Fees for land disturbance and construction general permit issuance

Fee Type Total Fee to be Paid by Applicant to the City of Newport News for Land Disturbance PermitIssuance

Fee Paid by Applicant to theDepartment of Environmental Quality for Construction General Permit Issuance*

Projects with land-disturbance acreage between 2,500 square feet and less than 10,001 square feet not in a designated Chesapeake Bay Preservation Area Resource Protection Area (RPA) or Resource Management Area (RMA)

$100.00 $0.00

Projects with land-disturbance acreage equal to $200.00 $0.00




10,001 square feet and less than 0.9999 acre not in a designated Chesapeake Bay Preservation Area Resource Protection Area (RPA) or Resource Management Area (RMA)

Projects in either designated RPA or RMA areas, equal to or greater than 2,500 square feet and less than 1 acre

$290.00 $0.00

General/Stormwater Management—Small Construction Activity/Land Clearing (Areas within common plans of development or sale with land disturbance acreage less than 1 acre.)

$209.00 $81.00

General/Stormwater Management—Small Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land disturbance acreage equal to or greater than 1 acre and less than 5 Acres)

$1,944.00 $756.00

General/Stormwater Management—Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land disturbance acreage equal to or greater than 5 acres and less than 10 acres)

$2,448.00 $952.00

General/Stormwater Management—Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land disturbance acreage equal to or greater than 10 acres and less than 50 acres.)

$ 3,240.00 $1,260.00

General/Stormwater Management—Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land disturbance acreage equal to or greater than 50 acres and less than 100 acres)

$4,392.00 $1,708.00




General/Stormwater Management—Large Construction Activity/Land Clearing (Sites or areas within common plans of development or sale with land disturbance acreage equal to or greater than 100 acres)

$6,912.00 $2,688.00

Individual Stormwater Management Construction General Permit

Fee as stated above based on area of land disturbance.

$15,000.00

* If the project is completely administered by the department such as may be the case for a state or federal project or projects covered by individual permits, the entire applicant fee shall be paid to the department.

(b) Generally, fees for the modification or transfer of registration statements from the general permit issued by the state will not be separately assessed. If, however, the general permit modifications result in an increase in total disturbed acreage, the applicant shall pay the difference in the initial state permit fee paid and the permit fee that would have been due the state for the total disturbed acreage in table 1.

(c) The fees set forth in subsections (a) and (b) above, shall apply to:

(1) All persons seeking coverage under the general permit.

(2) All permittees who request modifications to or transfers of their existing registration statement for coverage under a general permit.

(3) Persons whose coverage under the general permit has been revoked shall apply to the department for an individual permit for discharges of stormwater from construction activities.

(4) Permit and permit coverage modification fees outlined under sections 37.1-37.2(a) and (b) may apply to each general permit holder.

(d) No general permit application fees will be assessed to:

(1) Permittees who request minor modifications to general permits as defined in section 37.1-35 of this chapter. Permit modifications at the request of the permittee resulting in changes to stormwater management plans that require additional review by the city manager, or designee, shall not be exempt pursuant to this section.

(2) Permittees whose general permits are modified or amended at the initiative of the department, excluding errors in the registration statement identified by the city manager, or designee, or errors related to the acreage of the site.

(e) All incomplete payments will be deemed as nonpayments, and the applicant shall be notified of any incomplete payments. Interest may be charged for late payments at the underpayment rate set forth in § 58.1-15 of the Code of Virginia and is calculated on a monthly basis at the applicable periodic rate. A ten (10) percent late payment fee shall be charged to any delinquent (over ninety (90) days past due) account. The city shall be entitled to all remedies available under the Code of Virginia in collecting any past due amount.




(Ord. No. 7017-13, § 1)

Sec. 37.1-37.3. Stormwater nonpoint nutrient offsets.

(a) As used in this section:

Nonpoint nutrient offset means nutrient reductions certified as nonpoint nutrient offsets under the Chesapeake Bay Watershed Nutrient Exchange Program (§ 62.1-44.19:12 et seq. [of the Code of Virginia]).

Tributary has the same meaning as in Virginia Code § 62.1-44.19:13.

(b) The City of Newport News, through its approval of the stormwater management plan, may allow compliance with stormwater nonpoint nutrient runoff water quality criteria established pursuant to Virginia Code § 62.1-44.15:28, in whole or in part, through the use of acquisition of nonpoint nutrient offsets in the same tributary.

(c) Nonpoint nutrient offsets will not be allowed to address water quantity control requirements. Nonpoint nutrient offsets or other off-site options shall not be used in contravention of local water quality-based limitations: (i) consistent with determinations made pursuant to subsection B of Virginia Code § 62.1-44.19:14, (ii) adopted pursuant to Virginia Code § 62.1-44.15:33 or other applicable authority,, (iii) deemed necessary to protect public water supplies from adverse nutrient impacts, or (iv) as otherwise may be established or approved by the State Water Control Board. Where such a limitation exists, other off-site options may be used provided that such options do not preclude or impair compliance with the local limitation.

(d) Nonpoint nutrient offsets off-site options may only be used in the stormwater management plan when the:

(1) The applicant demonstrates to the satisfaction of the city manager, or designee, that (i) alternative site designs have been considered that may accommodate on-site best management practices, (ii) on-site best management practices have been considered in alternative site designs to the maximum extent practicable, (iii) appropriate on-site best management practices will be implemented, and (iv) full compliance with post-development nonpoint nutrient runoff compliance requirements cannot practicably be met on site. For purposes of this subdivision, if an applicant demonstrates on-site control of at least seventy-five (75) percent of the required phosphorous nutrient reductions, the applicant shall be deemed to have met the requirements of clauses (i) through (iv);

(2) Less than five (5) acres of land will be disturbed; or

(3) The post-construction phosphorous control requirement is less than 10 (ten) pounds per year.

(e) Documentation of the acquisition of nonpoint nutrient offsets by the person proposing the stormwater management plan shall be provided to the permit issuing authority in a certification from an offset broker documenting the number of phosphorus nonpoint nutrient offsets acquired and the associated ratio of nitrogen nonpoint nutrient offsets at the offset generating facility.

(f) Nonpoint nutrient offsets used pursuant to subsection (b) shall be generated in the same or adjacent eight-digit hydrologic unit code as defined by the United States Geological Survey as the permitted site. Nonpoint nutrient offsets outside the same or adjacent eight-digit hydrologic unit code may only be used if it is determined by the city manager, or designee, that no nonpoint nutrient offsets are available within the same or adjacent eight-digit hydrologic unit code when the permit issuing authority accepts the final site design. In such cases, and subject to other limitations imposed in this section, nonpoint nutrient offsets generated within the same tributary may be used. In no case shall nonpoint nutrient offsets from another tributary be used.




(g) For that portion of a site's compliance with stormwater nonpoint nutrient runoff water quality criteria being obtained through nonpoint nutrient offsets, the city manager, or designee, shall (i) use a one-one-one (1:1) ratio of the nonpoint nutrient offsets to the site's remaining post-development nonpoint nutrient runoff compliance requirement and (ii) assure that the nonpoint nutrient offsets are secured in perpetuity.

(h) The city may not grant an exception to, or waiver of, post-development nonpoint nutrient runoff compliance requirements unless off-site options have been considered and found not available.

(i) Until July 1, 2014, priority was to be given to the use of nonpoint nutrient offsets unless the city manager, or designee, requires a pro-rata share payment plan pursuant to the code of the City of Newport News, Appendix B—Subdivision Regulations, Section 4.01.7 or to the Regional BMP Water Quality Banking Program Policy, as revised, adopted by Resolution No. 9418-99 adopted by the city council. In the case of a phased project, the permittee may acquire or achieve the off-site nutrient reductions prior to the commencement of each phase of the land-disturbing activity in an amount sufficient for each such phase.

(j) The city manager, or designee, will allow incorporation into or amendment to the stormwater management plan to reflect full or partial substitution of nonpoint nutrient offsets for existing on-site nutrient controls when (i) the nonpoint nutrient offsets will compensate for ten (10) or fewer pounds of the annual phosphorous requirement associated with the original land-disturbing activity or (ii) existing on-site controls are not functioning as anticipated after reasonable attempts to comply with applicable maintenance agreements or requirements and the use of nonpoint nutrient offsets will account for the deficiency. The party responsible for maintenance shall be released from maintenance obligations related to the on-site phosphorous controls for which the nonpoint nutrient offsets are substituted.

(k) To the extent available, with the consent of the proposer of the stormwater management plan, the city manager, or designee, may include the use of nonpoint nutrient offsets or other off-site measures in resolving enforcement actions to compensate for (i) nutrient control deficiencies occurring during the period of noncompliance and (ii) permanent nutrient control deficiencies.

(l) This section shall not be construed as limiting the authority established under Virginia Code § 15.2-2243; however, under any pollutant loading pro rata share program established thereunder, the subdivider or developer shall be given appropriate credit for nutrient reductions achieved through nonpoint nutrient offsets or other off-site options.

Sec. 37.1-38. Construction inspections.

(a) The city shall inspect the land-disturbing activity during construction for:

(1) Compliance with the approved erosion and sediment control plan;

(2) Compliance with the approved stormwater management plan;

(3) Development, updating, and implementation of a pollution prevention plan; and,

(4) Development and implementation of any additional control measures necessary to address a TMDL.

(b) The applicant shall notify the city manager, or designee, forty-eight (48) hours prior to the commencement of any activity covered by this article so that appropriate inspections can be made to insure compliance with this article.

(c) Inspection reports shall be maintained as part of the land development project file.

(d) The city may, at reasonable times and under reasonable circumstances, enter any establishment or upon any property, public or private, for the purpose of obtaining information or conducting surveys




or investigations necessary in the enforcement of the provisions of this chapter to the extent allowed by applicable law.

(e) In accordance with a performance bond with surety, cash escrow, letter of credit, any combination thereof, or such other legal arrangement or instrument, the city manager or any duly authorized agent of the city manager may also enter any establishment or upon any property, public or private, for the purpose of initiating or maintaining appropriate actions which are required by the permit conditions associated with a land-disturbing activity when a permittee, after proper notice, has failed to take acceptable action within the time specified to the extent allowed by applicable law.

(f) Pursuant to § 62.1-44.15:40 of the Code of Virginia, the city manager or any duly authorized agent of the city manager may require every VSMP authority permit applicant or permittee, or any such person subject to VSMP authority permit requirements under this chapter, to furnish when requested such application materials, plans, specifications, and other pertinent information as may be necessary to determine the effect of his discharge on the quality of state waters, or such other information as may be necessary to accomplish the purposes of this chapter.

(g) Post-construction inspections of stormwater management facilities required by the provisions of this chapter shall be conducted by the city pursuant to city adopted and State Board approved inspection program, and shall occur, at minimum, at least once every five (5) years except as may otherwise be provided for in section 37.1-39, below.

(Ord. No. 7017-13, § 1)

Sec. 37.1-39. Maintenance.

(a) Responsibility for the operation and maintenance of stormwater management facilities, unless assumed by a governmental agency, shall remain with the property owner and shall pass to any successor or owner. If portions of the land are to be sold, legally binding arrangements shall be made to pass the basic responsibility to successors in title. These arrangements shall designate for each parcel the property owner, governmental agency, or other legally established entity to be permanently responsible for maintenance. The documents prepared to accomplish the requirements of this subsection shall be reviewed and approved by the city attorney and be recorded in the land records.

(b) In the case of developments where subdivision lots are to be sold, permanent arrangements satisfactory to the city manager, or designee, shall be made to insure continued performance of these obligations.

(c) In the event that the stormwater management facilities are in need of maintenance or become a danger to public safety or public health, the property owner shall be notified in writing, advised of the corrective measures required, and given a reasonable period of time to take necessary action. If the property owner fails or refuses to perform such maintenance and repair, the city has the authority to perform the work and to recover the costs from the responsible person.

(d) To ensure proper performance of the stormwater management facility between scheduled maintenance operations, the owner is responsible for inspecting the stormwater management facility on a semi-annual basis and after any storm which causes the capacity of the facility to be exceeded. All such inspection reports shall be appropriately sealed and signed by a professional registered in the Commonwealth of Virginia pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1 of the Code of Virginia and submitted to the city manager, or designee, within thirty (30) days of the inspection.

(d) Right-of-entry agreements or easements may be required from the applicant for purposes of inspection and maintenance by the city manager, or designee.




(Ord. No. 7017-13, § 1)


(a) If it is determined that there is a failure to comply with the approved plan, notice shall be served upon the property owner by registered or certified mail to the address specified in the application or plan certification, or by delivery at the land development site to the agent or employee supervising such activities.

(b) The notice shall specify the measures needed to comply with the plan and shall specify the time within which such measures shall be completed.

(c) Upon failure to comply within the time specified, the permit or approval may be revoked and the property owner shall be deemed to be in violation of this article.

(d) Any person who willfully or knowingly violates any provision of this article shall be guilty of a misdemeanor and shall be subject to a fine or imprisonment for each violation, or both, as provided for in Section 62.1-44.15:49 of the Code of Virginia.

(e) The city may apply to the circuit court to enjoin a violation or a threatened violation of this article as provided for in Sections 62.1-44.15:42 and 62.1-44.15:49 of the Code of Virginia without the necessity of showing that an adequate remedy at law does not exist.

(f) Without limiting the remedies which may be obtained in this section, the city may bring a civil action against any person for violation of this article, or any condition of the permit or approval, or any provision of the local program. The action may seek to impose of a civil penalty of not more than thirty-two thousand five hundred dollars ($32,500.00) per day for each violation as provided for in Section 62.1-44.15:49 of the Code of Virginia.

(g) With the consent of any person who has violated or failed, neglected or refused to obey this article or any condition of the permit or approval or any provision of the local program, the city may issue an order against or to such person for the payment of civil charges for violations in specific sums not to exceed the limit specified in subsection (f) of this section as provided for in Section 62.1-44.15:49 of the Code of Virginia. Such civil charges shall be instead of any appropriate civil penalty which could be imposed under subsection (f).

(Ord. No. 7017-13, § 1)

Secs. 37.1-41—37.1-45. Reserved.

FOOTNOTE(S):

--- (3) ---

Editor's note— Ord. No. 7017-13, § 1, adopted November 26, 2013, effective on and after July 1, 2014, repealed the former art. IV, §§ 37.1-30—37.1-40, and enacted a new art. IV as set out herein. The former art. III pertained to similar subject matter and derived from Ord. No. 4569-94; Ord. No. 6807, § 1. (Back)



ARTICLE V. CHESAPEAKE BAY PRESERVATION

ARTICLE V. CHESAPEAKE BAY PRESERVATION [4] Sec. 37.1-46. Findings of fact.

Sec. 37.1-47. Purpose and intent.


Sec. 37.1-49. Areas of applicability.

Sec. 37.1-50. Interpretation of chesapeake bay preservation areas.

Sec. 37.1-51. Performance standards.

Sec. 37.1-52. Plan of development.

Sec. 37.1-53. Nonconforming uses and noncomplying structures.

Sec. 37.1-54. Exemptions for utilities, railroads, public roads and facilities.

Sec. 37.1-55. Exceptions.

Sec. 37.1-55.1. Appeals, limitations.

Sec. 37.1-56. Conflict with other regulations.


Sec. 37.1-46. Findings of fact.

The Chesapeake Bay and its perennial tributaries constitute one (1) of the most important and productive estuarine systems in the world, providing economic and social benefits to the citizens of Newport News and the Commonwealth of Virginia. The health of the bay is vital to maintaining Newport News' economy and the welfare of its citizens.

The industrialized portion of Newport News' waterfront constitutes one (1) of the most important industrial areas in the Commonwealth of Virginia. It provides economic and social benefits to Newport News, the Commonwealth of Virginia and the United States of America. The continued economic health of the waterfront industrial areas is vital to maintaining Newport News' economy and the welfare of its citizens as a whole; however, protection of the economic health of these areas and improving the health of the Chesapeake Bay are not mutually exclusive. Measures consistent with the continued industrial use of Newport News' industrial waterfront areas are available and are used for the protection of the Chesapeake Bay.

The Chesapeake Bay waters have been degraded significantly by many sources of pollution, including nonpoint source pollution from land uses and development. Existing waters are worthy of protection from degradation to guard against further pollution. Certain lands that are proximate to shorelines have intrinsic water quality value due to the ecological and biological processes they perform. Other lands have severe development constraints from flooding, erosion, and soil limitations. With proper management, these lands offer significant ecological benefits by providing water quality maintenance and pollution control, as well as flood and shoreline erosion control.

There also exist, however, certain lands at or near the shoreline that, due to their intense development, installation of sea walls, riprap and impervious surface, have little or no remaining intrinsic water quality value. Although these lands must be monitored to ensure that there is no deterioration of existing water quality protection as a result of the continued intensive use of these properties, the




regulations and application of this article to these lands must be tempered by a recognition of the existing intense use and landowners' rights to continue that use. Measures consistent with the current uses of these lands must be employed to protect the quality of the water of the Chesapeake Bay.

All of these lands together, designated by the city council as Chesapeake Bay Preservation Areas, are important in connection with the protection of the quality of water in the bay and consequently the quality of life in the City of Newport News and the Commonwealth of Virginia.

(Ord. No. 7017-13, § 1)

Sec. 37.1-47. Purpose and intent.

(a) This article is adopted to implement the requirements of Sections 62.1-44.15:67-79 et seq. of the Code of Virginia (The Chesapeake Bay Preservation Act). The intent of the city council and the purpose of this article are to:

(1) Protect existing state and community waters.

(2) Restore state waters to a condition or quality that will permit all reasonable public uses and will support the propagation and growth of all aquatic life, including game fish, which might reasonably be expected to inhabit them.

(3) Prevent any further increase in nonpoint source pollution.

(4) Reduce existing nonpoint source pollution in state and community waters in order to provide for the health, safety, and welfare of the present and future citizens of the City of Newport News.

(b) A Chesapeake Bay Preservation Area Map has been prepared and adopted by city council that overlay's the city's one-to-two-hundred (1:200) scale real estate assessment maps, so that any parcel of land lying in these areas can be generally identified. Site specific delineation of Chesapeake Bay Preservation Areas shall be required as provided in section 37.1-50. Unless otherwise stated in this article, the review and approval procedures provided for in chapter 13, Building Regulations; article VII of this chapter; chapter 44, Wetlands; and, chapter 45, Zoning Ordinance; appendix B, Subdivision Regulations; chapter 33.02, Site Plan Ordinance; and, all other applicable ordinances shall be followed in reviewing and approving development, redevelopment, and uses governed by this article.

(c) Future revisions to this ordinance shall require approval from the city's regulations committee and planning commission, as well as from city council.

(Ord. No. 7017-13, § 1)


The following words and terms used in this article have the following meaning, unless the context clearly indicates otherwise:

Agricultural lands means those lands used for the planting and harvesting of crops or plant growth of any kind in the open, pasture, horticulture, dairying, floriculture, or in the raising of poultry and/or livestock, except land used for gardening or landscaping.

Best management practices (BMPs) means schedules of activities, prohibitions of practices, including both structural and nonstructural practices, maintenance procedures, and other management practices to prevent or reduce the pollution of surface waters and groundwater systems from the impacts of land-disturbing activities.




Buffer area means an area of natural or established vegetation managed to protect other components of a resource protection area and state waters from significant degradation due to land disturbances. This buffer area consists of three (3) trophic layers: trees, shrubs and ground cover.

Chesapeake Bay Preservation Area means any land designated as such on the map adopted by the city council subject to the determination of the city manager, or designee, on a site-specific basis. A Chesapeake Bay Preservation Area shall consist of a resource protection area, a resource management area and any designated industrial waterfront intensely developed areas.


Diameter at breast height (DBH) means the diameter of a tree measured outside its bark at a point four and one-half (4.5) feet above the existing grade.

Disturbed land area means an area cleared or graded as necessary for the construction of improvements including, but not limited to, buildings, roads and drives, parking areas, and sidewalks.

Dripline means a vertical projection to the ground surface from the furthest tips of a tree's leaf canopy.

Highly erodible soils means soils which have an erodibility index of eight (8) which is the generally accepted threshold at which the rate of soil loss becomes critical in relation to soil replacement, resulting in severe soil erosion. The equation for the erodibility index is EI=RKLS/T, where: R = the rainfall and runoff factor; K = the soil susceptibility to water erosion; LS = the combined effects of slope length and steepness; and T = the soil loss tolerance. The identified highly erodible soils in the City of Newport News are: 16D Craven-Uchee Complex, 16C Craven-Uchee Complex, 21B Slagle fine sandy loam, and 9B Craven fine sandy loam.

Impervious cover. A surface composed of any material which significantly impedes or prevents natural infiltration of water into the soil including, but not limited to: buildings and other structures and their components, streets, parking, and any concrete, asphalt, or compacted gravel surface.

Industrial waterfront intensely developed area (industrial waterfront IDA or IWIDA) means any portion of Chesapeake Bay Preservation Area so designated by the city council. Industrial waterfront IDAs are industrial areas located along the shoreline that, because of the intensity of their use, are characterized by an absence of natural environmental features and a preponderance of impervious surface and bulkheaded or riprapped shoreline.

Landward fifty (50) feet of resource protection area (RPA) buffer means the fifty (50) feet of the RPA 100-foot buffer which resides between the seaward fifty (50) feet of RPA and resource management area (RMA) components identified in section 37.1-49(a)(2).

Map means the Chesapeake Bay Preservation Area Map.

Nonpoint source pollution means pollution consisting of constituents such as sediment, nutrients, and organic and toxic substances from diffuse sources, such as runoff from agriculture, silviculture and urban land development and use.

Nontidal wetlands means those wetlands other than tidal wetlands that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support a prevalence of vegetation typically adapted for life in saturated soil conditions, as defined by the U.S. Environmental Protection Agency, in 33 C.F.R. 328.3b, dated November 13, 1986.

Noxious weeds means weeds that are difficult to control effectively, including, but not limited to Johnson Grass, Kudzu, and multiflora rose.




Plan of development means the process for site plan or subdivision plan review to ensure compliance with Section 62.1-44.15:74 of the Code of Virginia and this article, prior to any clearing or grading of a site or the issuance of a building permit.

Public roads means a publicly-owned road designed and constructed in accordance with water quality protection criteria at least as stringent as requirements applicable to the Virginia Department of Transportation, including regulations promulgated pursuant to (i) the Erosion and Sediment Control Law (Sections 62.1-44.15:51-66 of the Code of Virginia) and (ii) the Virginia Stormwater Management Act (Sections 62.1-44.15:24-50 of the Code of Virginia). This definition includes those roads where the Virginia Department of Transportation exercises direct supervision over the design or construction activities, or both, and cases where secondary roads are constructed or maintained, or both, in accordance with the City of Newport News standards.

Redevelopment means the process of developing land in Chesapeake Bay Preservation Areas, except for industrial waterfront intensely developed areas, that is currently or has been previously developed; provided that, to be considered developed a parcel must be or have been covered by at least sixty (60) percent impervious improvements within the five (5) years preceding the proposed development.

Resource management area (RMA) means that component of the Chesapeake Bay Preservation Area that is not classified as the resource protection area. RMAs include land types that, if improperly used or developed, have the potential for causing significant water quality degradation or for diminishing the functional value of a resource protection area.

Resource management area components. See section 37.1-49(a)(2).

Resource protection area (RPA) means that component of the Chesapeake Bay Preservation Area comprised of lands adjacent to water bodies with perennial flow that have an intrinsic water quality value due to the ecological and biological processes they perform or are sensitive to impacts which may result in significant degradation to the quality of state and local waters.

Resource protection area components. See section 37.1-49(a)(1).

Seaward fifty (50) feet of resource protection area buffer means the fifty (50) feet of the RPA 100-foot buffer adjacent to RPA components identified in section 37.1-49(a)(1)a., b. and c.

Silvicultural activities means forest management activities, including but not limited to the harvesting of timber, the construction of roads and trails for forest management purposes, and the preparation of property for reforestation that are conducted in accordance with the silvicultural best management practices developed and enforced by the state forester pursuant to Section 10.1-1105 of the Code of Virginia and are located on property defined as real estate devoted to forest use under Section 58.1-3230 of the Code of Virginia.

Tidal shore means the area of land between mean low water level and mean high water level.

Tidal wetlands means vegetated and non-vegetated wetlands as defined in Section 28.2-1300 of the Code of Virginia, as amended.

Usable land area means not less than eighty (80) percent of the minimum lot area required by the zoning ordinance (chapter 45 of the City Code) shall be usable land by reason of elevation above flood level and not less than fifty (50) percent of such required minimum lot area shall be usable by reason of absence of easements or servitudes ; provided, however, that all of the minimum area required for the building itself together with its required front, side and rear yard lines shall be usable land landward of the resource protection area (RPA).

Water-dependent facility means a development of land that cannot exist outside the resource protection area and must be located on the shoreline by reason of the intrinsic nature of its operation. These facilities include:




(1) Beaches and other public water-oriented recreation areas.

(2) Dry docks.

(3) Fisheries or other marine resource facilities.

(4) Fueling areas associated with marinas or marine vessels.

(5) Intake and outfall structures of power plants, water treatment plants, sewage treatment plants, and storm sewers.

(6) Loading, unloading and freight staging areas necessary for the convenient and efficient operation of ports and marinas (including staging areas for dry and liquid bulk and "high and dry" automated boat storage equipment).

(7) Marinas and other boat docking structures (including all utility lines necessary for convenient and efficient operations).

(8) Mooring slips, docks, piers, ports, buoys, launch ramps, access roads and paths necessary to conveniently and efficiently serve these facilities.

(9) Nature study and passive recreation facilities with no structures or impervious surfaces.

(10) Rail lines, conveyor systems and other related facilities necessary for convenient and efficient servicing and loading or unloading water-transported goods.

(11) Seafood off-landing, handling or processing for water-transported seafood.

(12) Shipbuilding, repair and maintenance yards.

(13) Water-dependent portions of research facilities operated by educational institutions.

Wetlands. Any tidal or nontidal wetlands.

(Ord. No. 7017-13, § 1)

Sec. 37.1-49. Areas of applicability.

(a) The general location of resource protection areas, resource management areas, and industrial waterfront and residential intensely developed areas are shown on the designated map adopted by city council. The map, together with all explanatory matter thereon, as adopted by the city council shall be a part of this article.

(1) The components of a resource protection area are:

a. Tidal wetlands;

b. Nontidal wetlands which are connected by surface flow and contiguous to tidal wetlands or water bodies with perennial flow;

c. Tidal shores; and

d. A buffer area not less than one hundred (100) feet in width, located adjacent to and landward of the components listed in subsections a. through c. above, and along both sides of any water body with perennial flow. The full buffer area shall be designated as the landward component of the resource protection area notwithstanding the presence of permitted uses, encroachments and permitted vegetation clearing in compliance with section 37.1-51

(2) The components of a resource management area shall consist of all lands within one hundred (100) feet landward of the landward boundary of the resource protection area buffer and in




addition includes all land containing slopes greater than fifteen (15) percent, all areas within the one hundred (100) year floodplain and highly erodible soils. Council may designate other lands it deems important to maintenance of water quality as resource management area.

(3) Industrial waterfront intensely developed areas (IWIDAs) are those portions of Chesapeake Bay Preservation Areas so designated by the city council because of the intensity of industrial land uses located along the shoreline that are characterized by an absence of natural environmental features and a preponderance of impervious surface and bulkheaded or riprapped shoreline.

Industrial waterfront IDAs are areas further characterized as areas where little of the natural environment remains and development has severely altered the natural state of the area.

(b) The Chesapeake Bay Preservation Area Map is hereby declared to delineate the general location of Chesapeake Bay Preservation Areas. Site specific delineation of Chesapeake Bay Preservation Areas shall be required as provided in section 37.1-50. The city manager, or designee, shall have the final authority in cases of uncertainty to determine the extent of these areas by application of criteria set forth in this section.

(Ord. No. 7017-13, § 1)

Sec. 37.1-50. Interpretation of chesapeake bay preservation areas.

(a) Delineation by the applicant. The site-specific boundaries of the resource protection area shall be determined by the applicant through the performance of an environmental site assessment, subject to review and approval by the city manager, or designee, in accordance with section 37.1-52, plan of development. The Chesapeake Bay Preservation Map shall be used as a guide to the general location of resource protection areas and resource management areas. However, a reliable on site evaluation shall be conducted to determine whether water bodies on or adjacent to the site have perennial flow and the resource protection area boundaries for the site shall be adjusted, as necessary, based upon the findings of the on site evaluation. The specific boundaries of the industrial waterfront are designated by the city council on the adopted Chesapeake Bay Area Map. The boundaries of the industrial waterfront IDA overlay the boundaries of the underlying resource protection area and resource management area.

(b) Delineation by the city manager, or designee. The city manager, or designee, when requested by an applicant wishing to construct a single-family residence or addition or accessory structure, may waive the requirement for an applicant performed environmental site assessment and the city shall perform the delineation. The applicant is responsible for incorporating this information into an application for a building permit.

(c) Where conflict arises over delineation. Where, when required pursuant to the terms of this article, the applicant has provided a site-specific delineation of the Chesapeake Bay Preservation Areas, the city manager, or designee, will verify the accuracy of the boundary delineation. In determining the site-specific RPA boundary, the city manager, or designee, may render adjustments to the applicant's boundary delineation, in accordance with section 37.1-52, plan of development. In the event the adjusted boundary delineation is contested by the applicant, the applicant may seek relief, in accordance with the provisions of section 37.1-52(i), denial of plan, appeal of conditions or modifications.

(Ord. No. 7017-13, § 1)




Sec. 37.1-51. Performance standards.

(a) Purpose and intent. The purpose and intent of these requirements, as set forth in section 37.1-47(a), is to establish criteria to implement the following objectives: prevent a net increase in nonpoint source pollution from development; achieve a ten (10) percent reduction in nonpoint source pollution from redevelopment; and achieve a forty (40) percent reduction in nonpoint source pollution from agricultural and silvicultural uses.

The performance standards recognize that diverse local circumstances require varying methods for protecting water quality. The performance standards establish the means to minimize erosion and sedimentation potential, reduce land application of nutrients and toxins, and maximize rainwater infiltration. Where land is undeveloped and not actively used, natural ground cover, especially woody vegetation, is most effective in holding soil in place and preventing site erosion. Indigenous vegetation, with its adaptability to local conditions without the use of harmful fertilizers or pesticides, filters stormwater runoff. Minimizing impervious cover enhances rainwater infiltration and effectively reduces stormwater runoff potential.

Industrial waterfront intensely developed areas do not lend themselves to compliance with the performance standards set forth above. Industrial waterfront IDAs are characterized by the absence of indigenous vegetation, the preponderance of impervious cover and the presence of intense industrial activities. The performance standards for industrial waterfront IDAs have been implemented in recognition that the remaining natural ground cover may not be effective in holding soil in place and preventing site erosion in areas subject to more intense activity and that infiltration of surface waters into the ground in these areas may lead to groundwater contamination.

(b) General performance standards for development and redevelopment. Performance standards for development and redevelopment within all Chesapeake Bay Preservation Areas, except within industrial waterfront IDAs, are set forth in subsection (1). Performance standards for development and redevelopment within all resource protection areas, except within Industrial Waterfront IDAs, are set forth in subsection (2). Performance standards for development and redevelopment within industrial waterfront IDA's are set forth in subsections (3).

(1) Chesapeake Bay Preservation Areas. The following performance standards for development and redevelopment apply in all Chesapeake Bay Preservation Areas except industrial waterfront IDAs and as otherwise hereinafter set forth.

a. All development and redevelopment (i.e. land disturbance) exceeding two thousand five hundred (2,500) square feet of land disturbance in Chesapeake Bay Preservation Areas shall be subject to a plan of development process, including the approval of a site plan in accordance with the provisions of the site plan ordinance and a stormwater management plan in accordance with the provisions of this ordinance.

b. Development in resource protection areas may be allowed subject to approval by the city manager, or designee, only if it is (1) water dependent or constitutes redevelopment; (2) constitutes development or redevelopment within a designated intensely developed area; (3) is a new use established pursuant to subsection (b)(2)b and (b)(2)c. of this section; (4) is a road or driveway crossing satisfying the conditions set forth in subdivision d. below; or (5) is a flood control or stormwater management facility satisfying the conditions set forth in subdivision (b)(1)m. of this section.

1. A new or expanded water-dependent facility may be allowed provided that:

i. It does not conflict with the city's comprehensive plan.

ii. It complies with the performance criteria set forth in this part.




iii. Any non-water-dependent component is located outside of resource protection areas.

iv. Access will be provided with the minimum disturbance necessary. Where practicable, a single point of access will be provided.

2. Redevelopment outside designated intensely developed areas shall be permitted in the resource protection area only if there is no increase in the amount of impervious cover and no further encroachment within the resource protection area, and it shall conform to applicable erosion and sediment control and stormwater management criteria set forth within this article as well as all applicable stormwater management requirements.

c. A water quality impact assessment shall be required for any proposed land disturbances within any resource protection area and may be required within resource management areas as deemed necessary by the city manager, or designee, due to the unique characteristics of the site or based upon the intensity of development and in accordance with the provisions of section 37.1-52, plan of development.

d. Roads and driveways not exempt under section 37.1-54(a) of this chapter may be constructed in or across resource protection areas if the city manager, or designee, finds that:

1. There are no reasonable alternatives to aligning the road or driveway in or across the resource protection area.

2. The alignment and design of the road or driveway minimizes encroachment in the resource protection area and adverse effects on water quality.

3. The design and construction of the road or driveway satisfies all applicable criteria in this article, including submission of a water quality impact assessment as appropriate.

4. The plan for the road or driveway proposed in or across the resource protection area has been reviewed through the site plan or subdivision plan review process.

e. Land disturbance shall be limited to the area necessary to provide for the proposed use or development.

1. In accordance with an approved site plan, the limits of land disturbance, including clearing or grading shall be clearly shown on submitted plans and physically marked on the development site.

2. Where feasible, ingress and egress during construction shall be limited to one (1) access point, unless otherwise approved by the city manager, or designee.

f. Indigenous vegetation shall be preserved to the maximum extent practicable consistent with the use or development proposed and in accordance with the Virginia Erosion and Sediment Control Handbook, as adopted by article VII of this chapter.

1. Existing trees shall be preserved outside the limits of land disturbance. Diseased trees or trees weakened by age, storm, fire, or other injury may be removed, pursuant to section 37.1-51(b)(2)a.

2. Clearing shall be allowed only to provide necessary vehicular access, positive site drainage, water quality BMPs, and the installation of utilities as approved by the city manager, or designee.

3. Prior to clearing or grading, suitable protective barriers, such as fencing shall be erected five (5) feet outside of the dripline of any tree or stand of trees to be preserved. These protective barriers shall remain so erected throughout all phases of




construction. The storage of equipment, materials, debris, or fill shall not be allowed within the area protected by the barrier unless otherwise authorized by the city manager, or designee.

g. Land development shall minimize impervious cover to promote infiltration of stormwater into the ground consistent with the proposed use or development.

1. Pervious surfaces, such as grid and modular pavements, shall be considered for any required parking area, alley, or other low traffic driveway and approved by the city manager, or designee.

2. Parking requirements shall be otherwise governed by the zoning ordinance.

h. Notwithstanding any other provisions of this article or exceptions or exemptions thereto, including gardening, landscaping and maintenance activities, any land disturbing activities exceeding two thousand five hundred (2,500) square feet in a Chesapeake Bay Preservation Area shall comply with the requirements of article VII of this chapter, Soil Removal and Other Land-Disturbing Activities.

i. For any development or redevelopment that exceeds those land disturbance levels identified in h, above, stormwater runoff shall be controlled in accordance with article IV of this chapter.

j. Prior to initiating grading or other on-site activities on any portion of a lot or parcel, all wetlands permits required by federal, state, and local laws and regulations shall be obtained and evidence of such submitted to the city manager, or designee, in accordance with section 37.1-52, plan of development. In lieu of the aforesaid permits, the applicant may present a letter from a licensed engineer certifying that in his opinion no such permits are required. A copy of said letter shall be submitted to the city manager, or designee.

k. Stormwater management criteria consistent with the water quality protection provisions of section 37.1-35 of article IV Stormwater Control Regulations.

1. The following stormwater management options shall be considered to comply with this subsection of this chapter:

i. Incorporation on the site of best management practices that meet the water quality protection requirements set forth in this subsection. (For the purposes of this subsection, the "site" may include multiple projects or properties that are adjacent to one (1) another or lie within the same HUC where a single best management practice will be utilized by those projects to satisfy water quality protection requirements);

ii. Compliance with a locally adopted regional stormwater management program, which may include a Virginia Pollution Discharge Elimination System (VPDES) permit issued by the Department of Environmental Quality to a local government for its municipally owned separate storm sewer system discharges, that is reviewed and found by the board to achieve water quality protection equivalent to that required by this subsection; and

iii. Compliance with a site-specific VPDES permit issued by the Department of Environmental Quality, provided that the local government specifically determines that the permit requires measures that collectively achieve water quality protection equivalent to that required by this subsection.

2. Any maintenance, alteration, use or improvement to an existing structure that does not degrade the quality of surface water discharge as determined by the city manager, or designee, may be exempted from the requirements of this subsection.




Stormwater management criteria for redevelopment shall apply to any redevelopment, whether or not it is located within an intensely developed area designated by the city.

l. Where best management practices utilized require regular or periodic maintenance in order to continue their functions such maintenance shall be ensured by a maintenance agreement between the owner or developer and the city or some other effective mechanism that achieves an equivalent objective as determined by the city manager, or designee.

m. Flood control and stormwater management facilities that drain or treat water from multiple development projects or from a significant portion of a watershed may be allowed in resource protection areas provided that (1) the city has conclusively established the location of the facility within the resource protection area is the optimum location; (2) the size of the facility is the minimum necessary to provide necessary flood control and stormwater treatment, or both; (3) the facility must be consistent with the design standards contained in the Virginia BMP Clearinghouse or the City of Newport News Design Standards Manual, whichever is more stringent; (4) if all applicable permits for construction in state or federal waters are obtained from the appropriate state and federal agencies; (5) approval must be received from the city manager, or designee, prior to construction and (6) routine inspections and any maintenance required are to be performed on such facilities by the owner to assure that they continue to function as designed and such evidence of inspections and any maintenance is provided to the city manager, or designee, as set forth in sections 37.1-38 and 37.1-39 of this chapter. It is not the intent of this subsection to allow a best management practice that collects and treats runoff from only an individual lot or some portion of the lot to be located within a resource protection area.

(2) Resource protection area buffer requirements. Except as hereinafter set forth, the following requirements shall apply within all resource protection areas. Development and redevelopment within industrial waterfront IDAs is exempt from these requirements.

To minimize the adverse effects of human activities on the other components of resource protection areas, state waters, and aquatic life, it is recognized that a one hundred-foot vegetative buffer area is effective in retarding runoff, preventing erosion, and filtering nonpoint source pollution from runoff. A vegetated buffer area not less than one hundred (100) feet in width shall be established where it does not exist and retained where already present.

The buffer area shall be located adjacent to and landward of all RPA components and along both sides of any water body with perennial flow. The full buffer area shall be designated as the landward component of the RPA, in accordance with sections 37.1-49, areas of applicability and 37.1-52, plan of development.

The one hundred (100) foot buffer area shall be deemed to achieve a seventy-five (75) percent reduction of sediments and a forty (40) percent reduction of nutrients. The buffer area shall be maintained to meet the following additional performance standards:

a. In order to maintain the functional value of the buffer area, indigenous vegetation may be removed subject to approval by the city manager, or designee, only to provide for reasonable sight lines, access paths, general woodlot management and best management practices, as follows:

1. Trees may be pruned or removed as necessary to provide for reasonable sight lines and vistas, provided that where they are removed, they shall be replaced with other vegetation that is equally effective in retarding runoff, preventing erosion, and filtering nonpoint source pollution from runoff.




2. Any path shall be constructed and surfaced so as to effectively control erosion.

3. Dead, diseased, or dying trees or shrubbery and noxious weeds may be removed, and thinning of trees allowed pursuant to sound horticultural standard, subject to approval of the city manager, or designee.

4. For shoreline erosion control projects, trees and woody vegetation may be removed, necessary control techniques employed, and appropriate vegetation established to protect or stabilize the shoreline in accordance with the best available technical advice and applicable permit conditions or requirements.

b. When the application of the buffer areas would result in the loss of a buildable area on a lot or parcel recorded prior to October 1, 1989 the city manager, or designee, may allow encroachment into the buffer area in accordance with section 37.1-52, plan of development and the following criteria:

1. Encroachments into the buffer area shall be the minimum necessary to achieve a reasonable buildable area for a principal structure and necessary utilities.

2. Where practicable, a vegetated area that will maximize water quality protection, mitigate the effect of buffer encroachment, and is, equal to the area of encroachment into the buffer area shall be established elsewhere on the lot or parcel.

3. The encroachment may not extend into the seaward fifty (50) feet of the buffer area.

c. When the application of the buffer area would result in the loss of a buildable area on a lot or parcel recorded between October 1, 1989 and July 1, 2004, encroachments into the buffer area may be allowed through an administrative process in accordance with the following criteria:

1. The lot or parcel was created as a result of a legal process conducted in conformity with the city's subdivision regulations;

2. Conditions or mitigation measures imposed through previously approved exceptions shall be met;

3. If the use of a best management practice (BMP) was previously required, the BMP shall be evaluated to determine if it continues to function effectively and, if necessary, the BMP shall be re-established or repaired and maintained as required; and

4. The criteria in subsection (2)b. of this section shall be met.

(3) Industrial waterfront intensely developed areas. For the purpose of this article, industrial waterfront IDAs shall serve as redevelopment areas in which development is concentrated. For the purposes of this subsection, development and redevelopment are subject to the same requirements and are collectively referred to as "development". Any development within industrial waterfront IDAs shall require a water quality impact assessment pursuant to subsection 37.1-52(f). Development within industrial waterfront IDAs shall be subject only to the requirements set forth below.

a. For development of land where all stormwater runoff is governed by a site specific Virginia Pollution Discharge Elimination System (VPDES) permit, compliance with the permit shall satisfy the performance standards of this subsection, provided that the city manager, or designee, specifically determines that the permit requires measures that collectively achieve water quality protection equivalent to that provided by this section; provided, further, that all land disturbing activities exceeding two thousand five hundred (2,500) square feet shall comply with the requirements of article VII of this chapter and the owner obtains a state construction general permit, as required. A copy of such permit shall be submitted to the city manager, or designee.




b. For development of land where all stormwater runoff is not governed by a VPDES permit the following performance standards shall apply:

1. All development exceeding two thousand five hundred (2,500) square feet of land disturbance shall be subject to a plan of development process in accordance with the provisions of the site plan ordinance.

2. All land disturbing activities exceeding two thousand five hundred (2,500) square feet shall comply with the requirements of article VII of this chapter.

3. Where best management practices utilized require regular or periodic maintenance in order to continue their functions, such maintenance shall be ensured by a maintenance agreement between the owner or developer and the city or some other effective mechanism that achieves an equivalent objective as determined by the city manager, or designee, as set forth in section 37.1-39 of this chapter.

4. For any development, stormwater runoff shall be controlled to satisfy performance standards contained in section 37.1-35 of this ordinance.

5. Prior to initiating grading or other land disturbing activities exceeding two thousand five hundred (2,500) square feet, all wetlands permits required by federal, state, and local laws and regulations shall be obtained and evidence of such submitted to the city manager, or designee. In lieu of the aforesaid permits, the applicant may present a letter from a licensed engineer certifying that in his opinion no such permits are required. A copy of said letter shall be submitted to the city manager, or designee.

6. Prior to initiating grading or other land disturbing activities exceeding two thousand five hundred (2,500) square feet, the owner obtains coverage under and complies with the requirements of a state construction general permit, as applicable. A copy of such permit shall be submitted to the city manager, or designee.

(Ord. No. 7017-13, § 1)

Sec. 37.1-52. Plan of development.

(a) Required information. In addition to the requirements of chapter 33.02, Site Plan Ordinance, or the requirements of appendix B, Subdivision Ordinance, of the City Code, all development in the Chesapeake Bay Preservation Areas shall follow the plan of development process consisting of the additional plans and studies identified below. These required plans and studies may be coordinated or combined, as deemed appropriate by the city manager, or designee. The city manager, or designee, may determine that some of the following information is unnecessary due to the scope and nature of the proposed development.

The following plans or studies shall be submitted to the city manager, or designee, unless otherwise noted in each subsection:

(1) An environmental site assessment;

(2) A landscaping/tree preservation plan;

(3) A stormwater management plan in accordance with section 37.1-36

(4) An erosion and sediment control plan in accordance with the Virginia Erosion and Sediment Control Handbook, as adopted by article VII of this chapter; and

(5) A water quality impact assessment as necessary under the requirements of subsection (f).

(b) Environmental site assessment. An environmental site assessment shall be prepared, based upon reliable on site investigation, and shall be submitted for any development or redevelopment.




(1) The environmental site assessment shall be drawn to scale and clearly delineate the following environmental features:

a. Tidal wetlands;

b. Tidal shores;

c. Nontidal wetlands connected by surface flow and contiguous to tidal wetlands or water bodies with perennial flow; and

d. A buffer area not less than one hundred (100) feet in width located adjacent to and landward of the components listed in subsection (a) through (c) above, and along both sides of any water body with perennial flow.

(2) Wetlands delineations shall be performed consistent with the procedures specified in the Federal Manual for Identifying and Delineating Jurisdictional Wetlands.

(3) The environmental site assessment shall delineate the site-specific geographic extent of the resource protection area.

(4) The environmental site assessment shall be drawn at the same scale as the preliminary site plan or subdivision plat, and shall be certified as complete and accurate by a professional engineer or a certified land surveyor.

(c) Landscaping and tree preservation plan. A landscaping/tree preservation plan shall be submitted in conjunction with site plan approval or as part of subdivision plat approval. No clearing or grading of any lot or parcel shall be permitted without an approved landscaping/tree preservation plan. No landscaping/tree preservation plan shall be required in connection with development in industrial waterfront IDAs.

Landscaping/tree preservation plans shall be prepared and certified by design professionals practicing within their areas of competence as prescribed by the Code of Virginia.

(1) Contents of the plan.

a. The landscaping plan shall be drawn to scale and clearly delineate the location, size and description of existing and proposed plant material. All existing trees on the site five (5) inches or greater DBH shall be shown on the landscaping plan. Where there are groups of five (5) or more trees, stands may be outlined instead. The specific number of trees be preserved outside of the limits of clearing shall be indicated on the plan. Dead, diseased and dying trees to be removed shall be clearly delineated on the landscaping plan. The plan shall be consistent with chapter 33.02 of the City Code, Site Plan Ordinance.

b. Any required buffer area shall be clearly delineated and any plant material to be added to establish or supplement the buffer area, as required by this article, shall be shown on the landscaping plan.

c. Within the buffer area, trees to be removed for sight lines, vistas, vehicular access, paths, and shoreline erosion control, as provided for in this article shall be shown on the plan. Vegetation required to replace any existing trees within the buffer area shall be also shown on the landscaping plan.

d. Trees to be removed for shoreline stabilization projects and any replacement vegetation required shall be shown on the landscaping plan.

e. The plan shall depict grade changes or other work adjacent to trees which would affect them adversely. Specifications shall be provided as to how grade, drainage, and aeration would be maintained around trees to be preserved.




f. The landscaping plan will include specifications for the protection of existing trees during clearing, grading, and all phases of construction, consistent with such measures as described in article IV of chapter 37.1 and chapter 33.02, Site Plan Ordinance of the City Code.

(2) Plant specifications.

a. All plant materials necessary to supplement the buffer area or vegetated areas outside the disturbed land area shall be installed in accordance with the specifications referred to in chapter 33.02, Site Plan Ordinance of the City Code.

b. All supplementary or replacement plant materials shall be living and in a healthy condition. Plant materials shall conform to the standards of the most recent edition of the American Standard for Nursery Stock, published by the American Association of Nurserymen.

c. When existing trees and other vegetation to be preserved, as designated on an approved landscaping plan, are encroached upon, they shall be replaced. Replacement trees shall be planted at a ratio of three (3) to one (1), at the time of planting.

(d) Stormwater management plan. A stormwater management plan shall be submitted as part of the plan of development process required by this article and in conjunction with site plan or subdivision plan approval; provided; however, a stormwater management plan shall not be required if discharge of stormwater from an applicant's land is governed by a VPDES Individual Industrial Stormwater permit or MS4 permit provided such permits are determined by the Virginia Department of Environmental Quality to be protective of water quality and in compliance with the assumptions contained in approved TMDLs, if any, for the waters into which they discharge.. In such cases, a copy of the permit shall be submitted to the city manager, or designee, in lieu of the stormwater management plan.

(1) Contents of the plan. The stormwater management plan shall contain maps, charts, graphs, tables, photographs, narrative descriptions, explanation, and citations to supporting references as appropriate to communicate the information required by this article. At a minimum, the stormwater management plan must be prepared in conformance with section 37.1-36 of this chapter.

(e) Erosion and sediment control plan. An erosion and sediment control plan shall be submitted to the city manager, or designee, that satisfies the requirements of, and in accordance with, article VII of this chapter, in conjunction with site plan or subdivision plan approval.

(f) Resource protection area and resource management area water quality impact assessment.

(1) Purpose and intent. The purpose of the water quality impact assessment is to:

a. Identify the impacts of proposed development or redevelopment on water quality and lands within the resource protection areas and the resource management areas as deemed necessary by the city manager, or designee, due to the unique characteristics of the site or based upon the intensity of development;

b. Ensure that, where development does take place within these areas, it will be the least disruptive;

c. Provide for administrative relief from the terms of this article when warranted and in accordance with the requirements contained herein; and

d. Specify mitigation which will address water quality protection.

(2) Water quality impact assessment required. A water quality impact assessment is required for any proposed land disturbances within the resource protection area, including any buffer area encroachment as provided for in section 37.1-51(b)(2), resource protection area buffer




requirements. There shall be two (2) levels of water quality impact assessments: a minor assessment and a major assessment.

(3) Minor water quality impact assessment. A minor water quality impact assessment pertains only to land disturbance, development or redevelopment within the resource protection area which causes no more than ten thousand (10,000) square feet of land disturbance and requires any modification or reduction of the landward fifty (50) feet of the one hundred-foot buffer area. Submission of a plan of development that demonstrates through the use of calculations provided for by section 37.1-52(d)(1)c., that the remaining buffer area and necessary best management practices will result in removal of no less than seventy-five (75) percent of sediments and forty (40) percent of nutrients from post-development stormwater runoff shall be deemed to have satisfied the requirement for a minor water quality impact assessment. Best management practices should retard runoff, prevent erosion and filter nonpoint source pollution the equivalent of the full undisturbed one hundred-foot buffer area.

(4) Major water quality impact assessment. A major water quality impact assessment shall be required for any land disturbance, development or redevelopment which: (i) exceeds ten thousand (10,000) square feet of land disturbance within a resource protection area or (ii) disturbs any other component of the RPA seaward of the landward fifty (50) feet of the one hundred-foot buffer area. The information required in this section shall be considered a minimum, unless the city manager, or designee, determines that some of the elements are unnecessary due to the scope and nature of the proposed use and development of land.

a. A hydrogeological element that:

1. Describes the existing topography, soils, hydrology and geology of the site and adjacent lands.

2. Describes the impacts of the proposed development on topography, soils, hydrology and geology on the site.

3. Describes the proposed mitigation measures for the potential hydrogeological impacts which may include:

i. Proposed erosion and sediment controls; including minimizing the extent of the cleared area, and cut and fill, perimeter controls, reduction of runoff velocities, measures to stabilize disturbed areas, schedule and personnel for site inspection;

ii. Proposed stormwater management system;

iii. Creation of wetlands to replace those lost; and

iv. Minimizing cut and fill.

b. A landscape element that describes the potential measures for mitigation of the water quality and land impacts including:

1. Replanting schedule for trees and other significant vegetation removed for construction;

2. Demonstrating that the design of the plan will provide effective erosion control and overland flow benefits from such vegetation; and

3. Demonstrating the use of indigenous plants to the greatest extent possible.

c. As part of any major water quality impact assessment submittal, the city manager, upon his own review or the recommendation of the designee, may require a review by the Department of Environmental Quality (DEQ). Upon receipt of a major water quality impact assessment, the city manager, upon his own review or the the recommendation of the




designee, will determine if such review is warranted and may request DEQ to review the assessment and respond with written comments. Any comments by DEQ may be incorporated into the final review by the city manager, or designee, provided that such comments are provided by DEQ within ninety (90) days of the request.

(5) Evaluation procedure.

a. Upon the completed review of a minor water quality impact assessment, the city manager, or designee, will determine if any proposed modification or reduction to the buffer area is consistent with the provisions of this article and that the following criteria have been satisfied:

1. The proposed encroachment is necessary due to the inability to place improvements elsewhere to provide a reasonable and appropriate buildable area on the site;

2. Impervious surface is minimized;

3. Proposed best management practices, where required, achieve the requisite reductions in pollutant loadings; and

4. The development, as proposed, meets the purpose and intent of this article.

b. Upon completed review of a major water quality impact assessment, the city manager, or designee, will determine if the proposed development satisfies the following criteria:

1. Within any RPA, the proposed development is water-dependent;

2. Proposed erosion and sediment control concepts are adequate to achieve the reductions in runoff and prevent off-site sedimentation;

3. Proposed stormwater management concepts are adequate to control the stormwater runoff to achieve the required performance standard for pollutant control;

4. Proposed re-vegetation of disturbed areas will provide effective erosion and sediment control benefits; and

5. The cumulative impact of the proposed development, when considered in relation to other development in the vicinity, will not result in a significant degradation of water quality.

(g) Final plan.

(1) Final plans for all lands in connection with all development within a resource protection area shall include the following additional information.

a. The delineation of the resource protection area boundary;

b. The delineation of required buffer areas;

c. Evidence of all wetlands permits required by law or a letter from a licensed engineer certifying that in his opinion no such permits are required. A copy of said letter shall be submitted to the city manager, or designee; and

d. A maintenance agreement as deemed necessary and appropriate by the city manager, or designee, to ensure proper maintenance of best management practices in order to continue their functions shall be submitted to the city manager, or designee, for review and approval.

(2) Installation and surety requirements.

a. When the occupancy of a structure is desired prior to the completion of the required landscaping, stormwater management facilities, or other specification of an approved plan,




a certificate of occupancy may be issued only if the applicant provides to the city manager, or designee, a form of surety satisfactory to the city attorney in an amount equal to the remaining plant materials, related materials, and installation costs of the required landscaping or other specifications or maintenance costs for any required stormwater management facilities.

b. All required landscaping shall be installed and approved by the first planting season following issuance of a certificate of occupancy or the surety may be forfeited to the City of Newport News.

c. All required stormwater management facilities or other specifications shall be installed and approved within eighteen (18) months of project commencement. Should the applicant fail, after proper notice, to initiate, complete or maintain appropriate actions required by the approved plan, the surety may be forfeited to City of Newport News. The City of Newport News may collect from the applicant the amount by which the reasonable cost of required actions exceeds the amount of the surety held.

d. After all required actions of the approved plan have been completed, the applicant must submit a written request for a final inspection. If the requirements of the approved plan have been completed to the satisfaction of the city manager, or designee, such unexpended or unobligated portion of the surety held shall be refunded to the applicant or terminated within sixty (60) days following the receipt of the applicant's request for final inspection. The city manager, or designee, may require a certificate of substantial completion from a professional engineer or class III B Surveyor before making a final inspection.

(h) Administrative responsibility. Administration of the plan of development process shall be in accordance with chapter 33.02, Site Plan Ordinance of the City Code.

(i) Denial of plan, appeal of conditions or modifications.

(1) In the event the final plan or any component of the plan of development process is disapproved and recommended conditions or modifications are unacceptable to the applicant, the applicant may appeal such administrative decision to the city manager, or designee. Such appeals must be in writing and be filed within ten (10) working days of the decision from which appeal is sought. Prior to granting relief to an application, the city manager must find that the plan is in accordance with all applicable ordinances and includes all necessary elements to mitigate any detrimental impact on water quality. If the city manager finds that the applicant's plan does not meet the above stated criteria, he shall deny the relief sought.

(2) If the city manager denies the relief sought as provided herein and the applicant contends such denial was not proper, he may appeal in writing to the circuit court of Newport News, provided that such appeal is filed with the circuit court within sixty (60) days following the date of denial. Such appeal shall be heard by the court, which shall uphold the decision of the city manager unless it finds that appellant has proved by clear and convincing evidence that there exists no rational basis to support the denial.

(Ord. No. 7017-13, § 1)

Sec. 37.1-53. Nonconforming uses and noncomplying structures.

(a) The lawful use of buildings or structures and land in conjunction with improvements which existed on July 1, 1991 and which is not in conformity with these provisions may be continued.

(b) No expansion of existing structures shall be allowed with the exception that:




(1) The city manager, or designee, may grant a development waiver for the expansion of existing legal nonconforming principal structures provided it has been certified that:

a. There will be no net increase in nonpoint source pollution load;

b. Any development or land disturbance exceeding an area of two thousand five hundred (2,500) square feet complies with all erosion and sediment control requirements and any land disturbance exceeding one (1) acre applies for and receives coverage under and complies with the requirements of the state stormwater construction general permit, as applicable and provides proof of coverage to the city manager, or designee;

c. The requested waiver from the criteria is the minimum necessary to afford relief;

d. Granting the exception will not confer upon the applicant any special privileges that are denied by chapter 37.1 of the City Code to other property owners who are subject to its provisions and who are similarly situated;

e. The waiver is in harmony with the purpose and intent of this part and is not of substantial detriment to water quality;

f. The exception request is not based upon conditions or circumstances that are self-created or self-imposed;

g. Reasonable and appropriate conditions are imposed, as warranted, that will prevent the allowed activity from causing a degradation of water quality;

h. Other findings, if appropriate and required by the local government, are met.

(2) Structures existing within the Chesapeake Bay Preservation Areas as of the adoption date of this article which are destroyed by casualty or act of God may be reconstructed as a matter of right, provided that reconstruction begins within two (2) years of the casualty, reconstruction is, thereafter, diligently pursued, and the new structure is constructed entirely on or within the boundary (footprint) of the original structure.

(3) No development waiver shall be required to perform normal maintenance on any structure within a Chesapeake Bay Preservation Area.

(4) No development waiver shall be processed unless the applicant provides satisfactory evidence that any delinquent real estate taxes owed to the city which have been properly assessed against the subject property have been paid.

(Ord. No. 7017-13, § 1)

Sec. 37.1-54. Exemptions for utilities, railroads, public roads and facilities.

(a) Construction, installation, operation, and maintenance of electric, steam, natural gas, CATV, fiber optic and telephone and data transmission lines, wireless transmission infrastructure, railroads, and public roads and their appurtenant structures in accordance with regulations promulgated pursuant to: (i) the Erosion and Sediment Control Law (Sections 62.1-44.15:51-66 of the Code of Virginia, as amended) and (ii) the Stormwater Management Act (Sections 62.1-44.15:24-50 of the Code of Virginia, as amended), or an erosion and sediment control plan and a stormwater management plan approved by the Virginia Department of Conservation and Recreation, will be deemed to constitute compliance with this article. The exemption of public roads is further conditioned on:

(1) Optimization of the road alignment and design, consistent with other applicable requirements, to prevent or otherwise minimize (i) encroachment in the resource protection area and (ii) adverse effects on water quality; and

(2) The exemption for public roads shall apply to all public roads as defined in section 37.1-48




(b) Construction, installation, and maintenance of water, sewer, steam, natural gas and underground telecommunications and cable television lines owned, permitted, or both, by a local government or regional service authority shall be exempt from the criteria in this article provided that:

(1) To the degree possible, the location of such utilities and facilities should be outside resource protection areas;

(2) No more land shall be disturbed than is necessary to provide for the proposed utility installation.

(3) All such construction, installation, and maintenance of such utilities and facilities shall be in compliance with all applicable federal, state and local permits and designed and conducted in a manner that protects water quality.

(4) Any land disturbance exceeding an area of two thousand five hundred (2,500) square feet complies with all erosion and sediment control requirements of this article.

(5) Any land disturbance exceeding an area of one (1) acre obtains coverage under and complies with the requirements of the state stormwater construction general permit.

(c) Exemption for silvicultural activities, including harvesting timber, are exempt from the requirements of this article provided such operations adhere to water quality protection procedures prescribed by the department of forestry in its "Virginia's Forestry Best Management Practices for Water Quality" technical guide.

(d) Exemptions in resource protection areas. The following land disturbances are exempt in the resource protection areas from this article of chapter 37.1, provided, however that land disturbances exceeding two thousand five hundred (2,500) square feet shall be subject to the provisions of article IV and article VII of chapter 37.1 of the Code:

(1) Water wells;

(2) Passive recreation facilities such as boardwalks, trails, and pathways; and

(3) Historic preservation and archeological activities;

(4) Provided that for (1), (2) or (3) above it is demonstrated to the satisfaction of the city manager, or designee, that:

a. Any required permits, except those to which this exemption specifically applies, shall have been issued;

b. Any land disturbance exceeding one (1) acre applies for and receives coverage under and complies with the requirements of the state stormwater construction general permit, as applicable, and provides proof of coverage to the city manager, or designee.

(Ord. No. 7017-13, § 1)

Sec. 37.1-55. Exceptions.

(a) A property owner may apply to the board of zoning appeals for an exception to the requirements of this article.

(b) No exception shall be authorized except after notice and hearing, as required by Section 15.2-2204 of the Code of Virginia, except that only one (1) hearing shall be required before the board. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the notice may be given by first class mail rather than by registered or certified mail.

(c) The board may grant exceptions to the provisions of sections 37.1-51(b)(1)b., 37.1-51(b)(1)c., 37.1-51(b)(1)d., 37.1-51(b)(1)m. and 37.1-51(b)(2) upon its making the following findings:




(1) The requested exception to the criteria is the minimum necessary to afford relief;

(2) Granting the exception will not confer upon the applicant any special privileges that are denied by this chapter to other property owners who are subject to its provisions and who are similarly situated;

(3) The exception is in harmony with the purpose and intent of this chapter and is not of substantial detriment to water quality;

(4) The exception request is not based upon conditions or circumstances that are self-created or self-imposed;

(5) Reasonable and appropriate conditions are imposed as warranted that will prevent the allowed activity from causing a degradation of water quality; and

(6) Other conditions required by the board are met.

(d) Exceptions to other provisions of this article may be granted administratively by the city manager, or designee, subject to the findings required by subsection (c) herein, provided that (1) exceptions to the criteria shall be the minimum necessary to afford relief; and (2) reasonable and appropriate conditions upon any exception granted shall be imposed, as necessary so that the purpose and intent of this article is preserved.

(e) Notwithstanding the provisions of subsections (a) and (b), additions and modifications to existing legal nonconforming principal structures may be processed through the provisions of section 37.1-53, but without a requirement for a public hearing. This subsection shall not apply to accessory structures.

(f) No exception shall be processed unless the applicant provides satisfactory evidence that any delinquent real estate taxes owed to the city which have been properly assessed against the subject property have been paid.

(Ord. No. 7017-13, § 1)

Sec. 37.1-55.1. Appeals, limitations.

An aggrieved party must file any appeal in the circuit court of the city of any decision of the board of zoning appeals regarding ordinances pursuant to this article within thirty (30) days of the date of the decision of the board.

(Ord. No. 7017-13, § 1)


In any case where the requirements of this article conflict with any other provision of the Code of the City of Newport News or existing state or federal regulations, whichever imposes the more stringent restrictions shall apply.

(Ord. No. 7017-13, § 1)


(a) Any person who violates any of the provisions of this article shall be guilty of a misdemeanor, punishable by a fine of not more than one thousand dollars ($1,000.00). Each day's continuance of such violation shall constitute a separate offense.




(b) Any person who: (i) violates any provision of this article or (ii) violates or fails, neglects, or refuses to obey any final notice, order, rule, regulation or variance or permit condition authorized under such chapter shall, upon such finding by an appropriate circuit court, be assessed a civil penalty not to exceed five thousand dollars ($5,000.00) for each day of violation. Such civil penalties may, at the discretion of the court assessing them, be directed to be paid into the treasury of the city for the purpose of abating environmental damage to or restoring Chesapeake Bay Preservation Areas therein, in such a manner as the court may direct by order.

(c) With the consent of any person who: (i) violates any provision of this article related to the protection of water quality in Chesapeake Bay Preservation Areas or (ii) violates or fails, neglects, or refuses to obey any notice, order, rule, regulation, or variance or permit condition authorized under such chapter, the city may provide for the issuance of an order against such person for the one-time payment of civil charges for each violation in specific sums, not to exceed ten thousand dollars ($10,000.00) for each violation. Such civil charges shall be paid into the treasury of the city for the purpose of abating environmental damage to or restoring Chesapeake Bay Preservation Areas therein. Civil charges shall be in lieu of any appropriate civil penalty that could be imposed under subsection (b) of this section. Civil charges may be in addition to the cost of any restoration required or ordered by the city.

(Ord. No. 7017-13, § 1)

FOOTNOTE(S):

--- (4) ---

Editor's note— Ord. No. 7017-13, § 1, adopted November 26, 2013, effective on and after July 1, 2014, repealed the former art. V, §§ 37.1-46—37.1-57, and enacted a new art. V as set out herein. The former art. III pertained to similar subject matter and derived from Ord. No. 5991-03, § 1; Ord. No. 6097-05; Ord. No. 6517-08, § 1. (Back)



ARTICLE VI. FERTILIZER REGULATIONS

ARTICLE VI. FERTILIZER REGULATIONS [5] Sec. 37.1-58. Definitions.

Sec. 37.1-59. Regulation of fertilizer; authority.

Sec. 37.1-60. Regulation of sale and distribution of fertilizer; exemptions.

Sec. 37.1-61. Exception for contractor-applicators, licensees regulated by the state, and golf courses.

Sec. 37.1-62. Sale of deicing agents.

Sec. 37.1-63. Labeling.


As used in this chapter, unless the context requires a different meaning:

Brand means a term, design, trademark or product name under which a regulated product is distributed.

Bulk means in nonpackaged form.

Bulk fertilizer means a fertilizer distributed in a nonpackaged form.

Commercial fertilizer means a fertilizer distributed for farm use, or for any other use, other than any specialty fertilizer use.

Compost means a biologically stable material derived from the composting process.

Composting means the biological decomposition of organic matter. It may be accomplished by mixing and piling so as to promote aerobic decay, anaerobic decay, or both aerobic and anaerobic decay.

Contractor-applicator means any person required to hold a permit to distribute or apply any regulated product pursuant to Virginia Code § 3.2-3608.

Custom medium means a horticultural growing medium that is prepared to the exact specifications of the person who will be planting in the medium and delivered to that person without intermediate or further distribution.

Deficiency means the amount of nutrient found by analysis to be less than that guaranteed, which may result from a lack of nutrient ingredients, or from lack of uniformity.

Distribute means to import, consign, manufacture, produce, compound, mix, blend, or in any way alter, the chemical or physical characteristics of a regulated product, or to offer for sale, sell, barter, warehouse or otherwise supply regulated product in the Commonwealth.

Distributor means any person who distributes.

Fertilizer means any substance containing one (1) or more recognized plant nutrients, which is used for its plant nutrient content, and which is designed for use, or claimed to have value, in promoting plant growth. Fertilizer does not include unmanipulated animal and vegetable manures, marl, lime, limestone, and other products exempted by regulation.

Fertilizer material means a fertilizer that: (i) contains important quantities of no more than one (1) of the primary plant nutrients: Nitrogen (N), phosphate (P205) and potash (K20); (ii) has eighty-five (85) percent or more of its plant nutrient content present in the form of a single chemical compound; or (iii) is




derived from a plant or animal residue, a by-product, or a natural material deposit that has been processed or conditioned in such a way that its content of plant nutrients has not been materially changed, except by purification and concentration.

Grade means the percentage of total nitrogen (N), available phosphate (P205) and soluble potash (K20), stated in whole numbers in the same terms, order, and percentages as in the guaranteed analysis, except that fertilizer materials, specialty fertilizers, bone meal, manures and similar raw materials may be guaranteed in fractional units.

Guaranteed analysis means that information required by this chapter to be displayed on the label of a regulated product.

Guarantor means the person whose name appears on the label of a regulated product.

Horticultural growing medium means any substance or mixture of substances that is promoted as or is intended to function as an artificial soil for the managed growth of horticultural crops.

Industrial co-product means a product derived from an industrial process that meets the definition of fertilizer, soil amendment, soil conditioner or horticultural growing medium.

Investigational allowance means an allowance for variations, inherent in the taking, preparation, and analysis of an official sample.

Label means the display of all written, printed, or graphic matter, upon the immediate container, or a statement accompanying a regulated product, including an invoice.

Labeling means all written, printed, or graphic matter, upon or accompanying any regulated product, including invoices, advertisements, brochures, posters, and television and radio announcements, used in promoting the sale of the regulated product.

Lawn fertilizer means any fertilizer intended for nonagricultural use on newly established turf areas from sod or seed during the first growing season, turf areas being repaired or renovated, and turf areas where soil tests performed within the past three (3) years indicate a nutrient deficiency.

Lawn maintenance fertilizer means any fertilizer intended for the nonagricultural routine maintenance of turf.

Licensee means the person who receives a license to distribute any regulated product under the provisions of this chapter.

Manipulated manure means animal or vegetable manure that is ground, pelletized, mechanically dried, packaged, supplemented with plant nutrients or other substances other than phosphorus, or otherwise treated in a manner to assist with the sale or distribution of the manure as a fertilizer or soil or plant additive.

Manufacturer means any person who manufactures, produces, compounds, mixes, blends, or in any way alters the chemical or physical characteristics of any regulated product.

Mixed fertilizer means a fertilizer containing any combination or mixture of fertilizer materials.

Official analysis means the analysis of an official sample, made by the commissioner.

Official sample means the sample of regulated product taken by the commissioner, and designated as "official" by the board.

Percent or percentage means the percentage by weight.

Primary nutrient includes total nitrogen (N), available phosphate (P205), and soluble potash (K20).

Quantity statement means the net weight (mass), net volume (liquid or dry), count or other form of measurement of a commodity.




Registrant means the person who registers regulated products, under the provisions of this chapter.

Regulated product means any product governed by this chapter, including any fertilizer, specialty fertilizer, soil amendment, soil conditioner, and horticultural growing medium.

Soil amendment means any substance or mixture of substances, imported, manufactured, prepared or sold for manurial, soil enriching, or soil corrective purposes, or intended to be used for promoting or stimulating the growth of plants, increasing the productivity of plants, improving the quality of crops, or producing any chemical or physical change in the soil. The following are exempt from the definition of "soil amendment": fertilizer, unmanipulated or composted animal and vegetable manures, soil conditioners, horticultural growing media, agricultural liming materials, unmixed mulch and unmixed peat.

Soil conditioner means any substance or mixture of substances imported, manufactured, prepared or sold for soil corrective purposes including polyelectrolytes such as complex vinyl and acrylic compounds and certain cellulose and lignin derivatives.

Specialty fertilizer means a fertilizer distributed for nonfarm use, including use on home gardens, lawns, shrubbery, flowers, golf courses, municipal parks, cemeteries, greenhouses and nurseries.

Stop sale, use, removal, or seizure order means an order that prohibits the distributor from selling, relocating, using, or disposing of a lot of regulated product, or portion thereof, in any manner, until the commissioner or the court gives written permission to sell, relocate, use or dispose of the lot of regulated product or portion thereof.

Ton means a unit of two thousand (2,000) pounds avoirdupois weight.

Turf means nonagricultural land that is planted as closely mowed, managed grass and includes golf courses, parks, cemeteries, publicly owned lands, and residential, commercial, or industrial property.

Unmanipulated manure means substances composed of the excreta of domestic animals, or domestic fowls, that has not been processed or conditioned in any manner including processing or conditioning by drying, grinding, pelleting, shredding, addition of plant food, mixing artificially with any material or materials (other than those that have been used for bedding, sanitary or feeding purposes for such animals or fowls), or by any other means.

(Ord. No. 6807-11, § 1)

Sec. 37.1-59. Regulation of fertilizer; authority.

The city imposes the following prohibition of fertilizer in conjunction with requirements of the Chesapeake Bay Preservation Act (Virginia Code § 10.1-2100 et seq. and Chapter 37.1, Article V of the Code of the City of Newport News), the Erosion and Sediment Control Law (Virginia Code § 10.1-560 et seq. and Chapter 35 of the Code of the City of Newport News), the Stormwater Management Act (Virginia Code § 10.1-603.1 et seq. and Chapter 37.1, Article III of the Code of the City of Newport News), or other nonpoint source regulations adopted by the department of conservation and recreation or the soil and water conservation board. The provisions of this section shall not preempt the adoption, amendment, or enforcement of the Statewide Fire Prevention Code pursuant to Virginia Code § 27-97 and Title 16 of the Code of the City of Newport News and the Uniform Statewide Building Code pursuant to Virginia Code § 36-98 et seq. and Chapter 13 of the Code of the City of Newport News.

(Ord. No. 6807-11, § 1)

Sec. 37.1-60. Regulation of sale and distribution of fertilizer; exemptions.

(a) Any person whose name is on the label of and who distributes in the City of Newport News any specialty fertilizer packaged in containers of fifty (50) pounds or less dry net weight, or five (5)




gallons or less liquid net volume, shall provide evidence that the person has: (i) applied for registration for such specialty fertilizer with the commissioner of the department of agriculture and consumer services ("commissioner") on forms furnished or approved by the commissioner; (ii) paid to the commissioner by July 1 of each registration year a registration fee of fifty dollars ($50.00) for each grade under a given brand prior to distributing the fertilizer in the Commonwealth; and (iii) provided labels for each grade under a given brand with the application.

(b) Any person who distributes in the City of Newport News a soil amendment, soil conditioner, or horticultural growing medium shall provide evidence that he has: (i) applied for registration for such soil amendment, soil conditioner, or horticultural growing medium with the commissioner on forms furnished or approved by the commissioner; (ii) paid to the commissioner by July 1 of each registration year a registration fee of one hundred dollars ($100.00) for each product name or brand of soil amendment, soil conditioner or horticultural growing medium prior to distributing the product in the Commonwealth; and (iii) provided labels for each product name or brand with the application.

(c) Any such person who distributes any product mentioned in subsections (a) or (b) above must obtain and display upon request a copy of the registration provided by the commissioner to the applicant after approval of the registration.

(d) Verification of any labeling claims for any regulated product may be required.

(e) Custom-media and horticultural growing media planted with live plant material are exempt from labeling and registration requirements and inspection fees.

(f) Beginning December 31, 2013, no lawn maintenance fertilizer containing more than zero percent phosphorus or other compounds containing phosphorus, such as phosphate, shall be offered for sale, distribution, or use in the City of Newport News. This prohibition does not include lawn fertilizer, manipulated manure, yard waste compost, products derived from sewage sludge, soils containing fertilizer, fertilizer products intended primarily for gardening, tree, shrub, and indoor plant application, including nurseries, or reclaimed water. The provisions of this section shall not restrict the continued sale by retailers of any prohibited fertilizer from any existing inventories in stock on December 31, 2013.

(Ord. No. 6807-11, § 1)

Sec. 37.1-61. Exception for contractor-applicators, licensees regulated by the state, and golf courses.

Contractor-applicators and licensees in full compliance with state regulations shall not be subject to local ordinances governing the use or application of lawn fertilizer and lawn maintenance fertilizer. Golf courses in compliance with this Virginia Code § 10.1-104.5. shall not be subject to any part of these ordinances governing the use or application of fertilizer.

(Ord. No. 6807-11, § 1)

Sec. 37.1-62. Sale of deicing agents.

Beginning December 31, 2013, it is unlawful for any person to offer for sale any deicing agent containing urea or other forms of nitrogen or phosphorus intended for application to parking lots, roadways, and sidewalks or other paved surfaces in the City of Newport News. The provisions of this section shall not restrict the continued sale by retailers of any deicing agent from any existing inventories in stock on December 31, 2013.

(Ord. No. 6807-11, § 1)




Sec. 37.1-63. Labeling.

(a) The manufacturer or guarantor of any regulated product distributed in the City of Newport News shall affix a label to the container or provide an invoice at the time of delivery for a bulk regulated product that states in clear, legible and conspicuous form, in the English language, the following information:

(1) The quantity statement;

(2) The grade under a given brand. The grade shall not be required when no primary nutrients are claimed;

(3) The guaranteed analysis, which shall:

a. For fertilizers, conform to the following, with the percentage of each plant nutrient stated as follows:

1. Total Nitrogen (N) ..... ____________%

Available Phosphate (P205) ..... ____________%

Soluble Potash (K20) ..... ____________%

2. For unacidulated mineral phosphate materials and basic slag, bone, tankage, and other organic phosphate materials, the available phosphate (P205), or the degree of fineness, or both, may also be guaranteed;

3. Guarantees for plant nutrients other than nitrogen (N), phosphate (P205), and potash (K20) shall be expressed in the form of the element. A statement of the sources of nutrients including oxides, salt, and chelates, may be required on the application for registration of specialty fertilizers, and may be included as a parenthetical statement on the label. Degree of acidity or alkalinity (pH), beneficial substances, or compounds determinable by laboratory methods also may be guaranteed by permission of the commissioner and with the advice of the Director of the Virginia Experiment Station. When any degree of acidity or alkalinity (pH), beneficial substances, or compounds are guaranteed, they shall be subject to inspection and analysis in accord with the methods and regulations prescribed by the board of agriculture and consumer services;

b. For soil amendments, consist of a list of ingredients, and may include a statement of naturally occurring nutrient levels;

c. For soil conditioners, including polyelectrolytes, contain the following information in the following form:

1. Name of active ingredient ..... ____________%

(name and list all)

2. Total other ingredients ..... ____________%

d. For horticultural growing media, include a list of ingredients and other guarantees as required by regulation;

e. When compost derived from sewage sludge, hazardous materials, unrendered animals or poultry or their parts, or other source material specified in regulations established by the board of agriculture and consumer services is used as an ingredient, identify the source material of the compost; and

f. Include a list of such other ingredients as may be required by the board through regulation.




(4) The name and address of the registrant or licensee.

(b) A commercial fertilizer that is formulated according to specifications provided by a consumer prior to mixing, or any fertilizer formulated for a consumer, shall be labeled to show: (i) the quantity statement; (ii) the guaranteed analysis; and (iii) the name and address of the distributor or the licensee.

(c) For horticultural growing media, a statement of added fertilizers, if any, shall be listed on the registration document and customer sales invoice.

(d) Beginning December 31, 2013, lawn fertilizer and lawn maintenance fertilizer shall be labeled as follows:

"DO NOT APPLY NEAR WATER, STORM DRAINS, OR DRAINAGE DITCHES. DO NOT APPLY IF HEAVY RAIN IS EXPECTED. APPLY THIS PRODUCT ONLY TO YOUR LAWN/GARDEN, AND SWEEP ANY PRODUCT THAT LANDS ON THE DRIVEWAY, SIDEWALK, OR STREET, BACK ONTO YOUR LAWN/GARDEN."

(Ord. No. 6807-11, § 1)

FOOTNOTE(S):

--- (5) ---

Editor's note— Ord. No. 6807-11, § 1, which added Art. VI, §§ 37.1-58—37.1-63, as set out herein, shall be in effect on and after July 1, 2011. (Back)



ARTICLE VII. SOIL REMOVAL AND OTHER LAND DISTURBING ACTIVITIES

ARTICLE VII. SOIL REMOVAL AND OTHER LAND DISTURBING ACTIVITIES [6] Sec. 37.1-66. Definitions.


Sec. 37.1-68. Exemptions from article.

Sec. 37.1-69. Violations of article—Generally.

Sec. 37.1-70. Same—Notice.

Sec. 37.1-70.1. Same—Right of entry

Sec. 37.1-71. Same—Penalty; injunctive relief.

Sec. 37.1-72. Appeals from decisions under chapter.

Secs. 37.1-73—37.1-82. Reserved.

Sec. 37.1-83. Required.

Sec. 37.1-84. Responsibility of property owner when work to be done by contractor.

Sec. 37.1-85. Preparation of plan.

Sec. 37.1-86. Approval or disapproval of plan.

Sec. 37.1-87. Amendment of approved plan.

Sec. 37.1-88. Variances.

Sec. 37.1-89. Aggressive, constant action required.

Secs. 37.1-90—37.1-92. Reserved.


Sec. 37.1-94. Application; fee.

Sec. 37.1-95. Issuance and term of permit; bond.

Sec. 37.1-96. Standards for land-disturbing activities and control practices.

Sec. 37.1-97. Periodic inspections of land-disturbing activities.

Sec. 37.1-98. Final inspection and certificate of completion of land-disturbing activity.


For the purpose of this article, the following words and phrases shall have the meanings respectively ascribed to them by this section:

Agreement in lieu of a plan means a contract between the plan approving authority and the owner that specifies conservation measures which must be implemented in the construction of a single-family residence; this contract may be executed by the plan approving authority in lieu of a formal site plan or an erosion and sediment control plan.




Applicant means any person submitting an erosion and sediment control plan or an agreement in lieu of a plan for approval or requesting the issuance of a permit, where required, authorizing land-disturbing activities to commence.

Board means The Virginia State Water Control Board.

Certified inspector means an employee or agent of the City of Newport News who (i) holds a certificate of competence from the board in the area of project inspection, or (ii) is enrolled in the board's training program for project inspection and successfully completes such program within one (1) year after enrollment.

Certified plan reviewer means an employee or agent of the City of Newport News who (i) holds a certificate of competence from the board in the area of plan review, (ii) is enrolled in the board's training program for plan review and successfully completes such program within one (1) year after enrollment, or (iii) is licensed as a professional engineer, architect, certified landscape architect or land surveyor pursuant to Article 1, Chapter 4 of Title 54.1 of the Code of Virginia (1950, as amended).

Certified program administrator means an employee or agent of the City of Newport News who (i) holds a certificate of competence from the board in the area of program administration, or (ii) is enrolled in the board's training program for program administration and successfully completes such program within one (1) year after enrollment.

Channel means a natural stream or waterway.

Code of Virginia means the laws adopted by the Virginia General Assembly embraced in titles, chapters, articles and sections made effective February 1, 1950, as amended thereafter.


Dike means an earthen embankment constructed to confine or control water, especially one built along the banks of a river to prevent overflow of lowlands; levee.

Erosion and sediment control plan, conservation plan or plan means a document containing material relating to the conservation of soil and water resources of a unit or a group of units of land. It may include appropriate maps, an appropriate soil and water plan inventory and management information with needed interpretations, and a record of decisions contributing to conservation treatment. The plan shall contain all major conservation decisions to ensure that the entire unit or units of land will be so treated to achieve the conservation objectives.

Erosion impact area means an area of land not associated with current land-disturbing activity but subject to persistent soil erosion resulting in the delivery of sediment onto neighboring properties or into state waters. This definition shall not apply to any lot or parcel of land of ten thousand (10,000) square feet or less used for residential purposes or to shorelines where the erosion results from wave action or other coastal processes.

Land-disturbing activity means any land change, including but not limited to clearing, grading, excavating, transporting and filling of land, which may result in soil erosion from water or wind and the movement of sediments into waters or onto adjacent properties.

Local erosion and sediment control program or local control program means an outline of the various methods employed by the city to regulate land-disturbing activities and thereby minimize erosion and sedimentation in compliance with the state program and may include such items as local ordinances, policies and guidelines, technical materials, inspection, enforcement, and evaluation.

Natural stream means nontidal waterways that are part of the natural topography. They usually maintain a continuous or seasonal flow during the year and are characterized as being irregular in cross-




section with a meandering course. Constructed channels such as drainage ditches or swales shall not be considered natural streams.

Owner means the owner or owners of the freehold of the premises or lesser estate therein, a mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee, lessee or other person, firm or corporation in control of a property.

Permittee means the person to whom the VSMP authority permit is issued.

Person means any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative or any other legal entity.

Plan-approving authority means the city manager, or designee, who is responsible for determining the adequacy of a conservation plan submitted for land-disturbing activities on a unit or units of lands and for approving plans.

Post-development means conditions that may be reasonably expected or anticipated to exist after completion of the land development activity on a specific site or tract of land.

Pre-development means conditions at the time the erosion and sediment control plan is submitted to the VESCP authority. Where phased development or plan approval occurs (preliminary grading, roads and utilities, etc.), the existing conditions at the time the erosion and sediment control plan for the initial phase is submitted for approval shall establish pre-development conditions.

Responsible land disturber means the responsible land disturber can be anyone from the project team or development team holding a responsible land disturber certificate who will be in charge of and responsible for carrying out the land-disturbing activity for the project. In the absence of a specific responsible land disturber certificate issued by the Virginia Department of Conservation and Recreation, persons having the following are automatically considered to be responsible land disturbers: (1) persons holding combined administrator, administrator, plan reviewer, inspector, or contractor certificates issued by the Virginia Department of Conservation and Recreation, and (2) persons holding a valid professional engineer, land surveyor, landscape architect, or architect license issued by the Commonwealth of Virginia. The responsible land disturber cannot be an employee of any local department of conservation and recreation program authority or of the City of Newport News, Virginia (the local permit issuing authority).

Shore erosion control project means an erosion control project approved by local wetlands boards, the Virginia Marine Resources Commission, the Virginia Department of Environmental Quality or the United States Army Corps of Engineers and located on tidal waters and within nonvegetated or vegetated wetlands as defined in Title 28.2 of the Code of Virginia.

Stabilized means land that has been treated to withstand normal exposure to natural forces without incurring erosion damage.

State erosion and sediment control program or state program means the program administered by the board as it relates to this chapter, including regulations designed to minimize erosion and sedimentation.

State waters means all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands.

Subdivision means the land subdivided; and, when appropriate to the context, the process of subdividing or re-subdividing. To subdivide means the division of a parcel of land by the owner thereof into lots for the purpose of transfer of ownership or building development and shall specifically include the division of a lot or parcel of land by an owner in order to create within, on, or through that lot or parcel of land a street meeting the specifications of the Subdivision Ordinance of Newport News, Virginia to be dedicated to the public.




(Ord. No. 7017-13, § 1)

Editor's note—

Ord. No. 7017-13, § 1, adopted November 26, 2013, shall be in effect on and after July 1, 2014.


This article is intended to be supplemental to the subdivision ordinance, the zoning ordinance, the site plan ordinance, the Chesapeake Bay Preservation Ordinance, the stormwater ordinance and any other city regulation or policy governing the development of land, the removal of soil or other land-disturbing activity. The most restrictive standards imposed by any city ordinance, regulation or policy enacted prior to January 1, 2013 shall have precedence.

(Ord. No. 7017-13, § 1)

Editor's note—


Sec. 37.1-68. Exemptions from article.

The following specific uses and activities shall be excluded from the provisions of this article:

(1) Minor land-disturbing activities such as home gardens and individual home landscaping, repairs and maintenance work.

(2) Individual service connections.

(3) Installation, maintenance or repair of any underground public utility lines, when such activity occurs on an existing hard-surfaced road, street or sidewalk, provided such land-disturbing activity is confined to the area of the road, street or sidewalk which is hard-surfaced.

(4) Septic tank lines or drainage fields, unless included in an overall plan for a land-disturbing activity relating to construction of the building to be served by the septic tank system.

(5) Permitted surface or deep mining operations and projects, or oil and gas operations and projects conducted pursuant to Title 45.1 of the Virginia Code.

(6) Tilling, planting or harvesting agricultural, horticultural or forest crops, or livestock feedlot operations; including engineering operations as follows: construction of terraces, terrace outlets, check dams, de-silting basins, dikes, ponds, ditches, strip cropping, lister furrowing, contour cultivating, contour furrowing land drainage and land irrigation; however, this exception shall not apply to harvesting of forest crops unless the area on which harvesting occurs is reforested artificially or naturally in accordance with the provisions of Chapter 11 (Section 10.1-1100 et seq.) of Title 10.1 of the Code of Virginia or is converted to bona fide agricultural or improved pasture use as described in subsection B of Section 10.1-1163 of the Code of Virginia.

(7) Repair or rebuilding of the tracks, rights-of-way, bridges, communication facilities and other related structures and facilities of a railroad company.

(8) Agricultural engineering operations including but not limited to, the construction of terraces, terrace outlets, check dams, desilting basins, dikes, ponds not required to comply with the




Virginia Dam Safety Act, ditches, strip cropping, lister furrowing, contour cultivating, contour furrowing, land drainage and land irrigation.

(9) Disturbed land areas of less than twenty-five hundred (2,500) square feet in size.

(10) Installations of fence and sign posts, telephone and electric poles and other kinds of posts or poles.

(11) Shore erosion control projects on tidal waters when all of the land-disturbing activities are within the regulatory authority of and approved by the Newport News Wetlands Board, the Virginia Marine Resources Commission, or the United States Army Corps of Engineers; however, any associated land that is disturbed outside of this exempted area shall remain subject to this article.

(12) Emergency work to protect life, limb or property and emergency repairs; however, if the land-disturbing activity would have required an approved erosion and sediment control plan if the activity had not been an emergency, the land area disturbed shall be shaped and stabilized in accordance with the requirements of this article.

(Ord. No. 7017-13, § 1)

Editor's note—


Sec. 37.1-69. Violations of article—Generally.

(a) Any person who engages in any land-disturbing activity regulated by this article without first obtaining a permit for such activity as prescribed by this article shall be in violation of this article.

(b) Any person who violates any condition of any permit for land-disturbing activity or exceeds the scope of approval of any such activity shall be in violation of this article.

(Ord. No. 7017-13, § 1)

Editor's note—


Sec. 37.1-70. Same—Notice.

(a) The city manager, or designee, upon determination of a violation of this article, shall immediately serve upon the violator, either delivered to the site of the land-disturbing activity to the agent or employee supervising such activities or by registered or certified mail, a notice to comply. Such notice shall set forth the conditions of noncompliance and shall specify the time within which measures of compliance must be completed. Failure to comply with such notice shall also be a violation of this article and may also be grounds for revocation of the permit, if applicable.

(b) Upon receipt of a sworn complaint of a violation of this article, the city manager, or designee, in conjunction with or subsequent to a notice to comply as specified in this article, shall issue an order requiring that all or part of the land-disturbing activities permitted on the site be stopped until the specified corrective measures have been taken or, if land-disturbing activities have commenced without an approved plan as provided in this article, requiring that all of the land-disturbing activities be stopped until an approved plan or any required permits are obtained. Where the alleged




noncompliance is causing or is in imminent danger of causing harmful erosion of lands or sediment deposition in waters within the watersheds of the Commonwealth, or where the land-disturbing activities have commenced without an approved plan or any required permits, such an order may be issued whether or not the alleged violator has been issued a notice to comply as specified in this article. Otherwise, such an order may be issued only after the alleged violator has failed to comply with a notice to comply. The order shall be served in the same manner as a notice to comply, and shall remain in effect for seven (7) days from the date of service pending application by the enforcing authority or alleged violator for appropriate relief to the Circuit Court of Newport News, Virginia. If the alleged violator has not obtained an approved plan or any required permits within seven (7) days from the date of service of the order, the city manager, or designee, may issue an order to the owner requiring that all construction and other work on the site, other than corrective measures, be stopped until an approved plan and any required permits have been obtained. Such an order shall be served upon the owner by registered or certified mail to the address specified in the permit application or the land records of the locality in which the site is located. The owner may appeal the issuance of an order to the Circuit Court of Newport News, Virginia. Any person violating or failing, neglecting or refusing to obey an order issued by the city manager, or designee, may be compelled in a proceeding instituted in the Circuit Court of Newport News, Virginia to obey same and to comply therewith by injunction, mandamus or other appropriate remedy. Upon completion and approval of corrective action or obtaining an approved plan or any required permits, the order shall immediately be lifted. Nothing in this section shall prevent the city manager, or designee, from taking any other action specified in this article.

(Ord. No. 7017-13, § 1)

Editor's note—


Sec. 37.1-70.1. Same—Right of entry

(a) The city manager, or any duly authorized agent of the city manager may, at reasonable times and under reasonable circumstances, enter any establishment or upon any property, public or private, for the purpose of obtaining information or conducting surveys or investigations necessary in the enforcement of the provisions of this article.

(b) In accordance with a performance bond with surety, cash escrow, letter of credit, any combination thereof, or such other legal arrangement approved by the city attorney, the city manager or any duly authorized agent of the city manager may also enter any establishment or upon any property, public or private, for the purpose of initiating or maintaining appropriate actions which are required by the permit conditions associated with a land-disturbing activity when a permittee, after proper notice, has failed to take acceptable action within the time specified.

(Ord. No. 7017-13, § 1)

Editor's note—


Sec. 37.1-71. Same—Penalty; injunctive relief.

(a) A violation of any provision of this article is a class I misdemeanor.




(b) The city may apply to the circuit court for the city for injunctive relief to enjoin a violation or a threatened violation of this article, without the necessity of showing that there does not exist an adequate remedy at law.

(c) In addition to any criminal penalties provided under this article, any person who violates any provision of this article may be liable to the city, in a civil action, for damages.

(d) In lieu of criminal sanctions, civil penalties may be imposed for violation of this article as follows:

(1) A civil penalty in the amount of not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) per violation shall be assessed for failure to provide, implement, maintain or properly install any of the following erosion and sediment control measures required by an approved plan.

a. Vegetative controls including, but not limited to, permanent or temporary soil stabilization.

b. Structural controls including, but not limited to, construction entrances, storm drain inlet and outlet protection, sediment traps and basins.

c. Transporting sediment or debris onto paved public road by vehicular traffic or runoff.

d. Perimeter controls including, but not limited to, straw bales or silt fences.

e. Commencement of land disturbing activities without a permit.

(2) Each day during which the violation is found to have existed shall constitute a separate offense. In no event shall a series of specified violations arising from the same operative set of facts result in civil penalties which exceed a total of ten thousand dollars ($10,000.00) except that a series of violations arising from the commencement of land-disturbance activities without a city approved plan for any site shall not result in civil penalties which exceed a total of ten thousand dollars ($10,000.00).

(e) Without limiting the remedies provided in this article, any person violating or failing, neglecting or refusing to obey any injunction, mandamus or other remedy obtained pursuant to this article shall be subject, in the discretion of the court, to a civil penalty not to exceed two thousand dollars ($2,000.00) for each violation.

(f) With the consent of any person who has violated or failed, neglected or refused to obey any regulation, or any condition of a permit or any provision of this article, the city may provide, in an order issued by the city manager, or designee, against such person, for the payment of civil charges for violations in specific sums, not to exceed the limits specified in this article.

(g) Compliance with the provisions of this article shall be prima facie evidence in any legal or equitable proceeding for damages caused by erosion or sedimentation that all requirements of law have been met and the complaining party shall be required to prove negligence in order to recover any damages.

(h) Such civil penalties, as shall be imposed by a court of competent jurisdiction, pursuant to this article, shall be deposited into the stormwater management revenues of the city's treasury, as defined by section 37.1-11(11).

(Ord. No. 7017-13, § 1)

Editor's note—





Sec. 37.1-72. Appeals from decisions under chapter.

Final decisions of the city manager, or designee, under this article shall be subject to review by the circuit court for the city, provided an appeal is filed within thirty (30) days from the date of the pertinent written decision adversely affecting the rights, duties, privileges of the person engaging in or proposing to engage in land-disturbing activities.

(Ord. No. 7017-13, § 1)

Editor's note—


Secs. 37.1-73—37.1-82. Reserved.


(a) No person shall undertake any land-disturbing activity, except as exempted in this article, without first having submitted to the city manager, or designee, four (4) copies of an erosion and sediment control plan with certification that the plan will be followed and unless such plan has been approved as in compliance with the intent and requirements of this article and a permit certifying such approval has been issued as provided in this article. The city manager, or designee, may execute an agreement in lieu of a plan for construction of a single-family residence or disturbed areas of less than ten thousand (10,000) square feet. No permits that authorize land-disturbing activities shall be issued without an approved erosion control plan or an executed agreement in lieu of a plan.

(b) An erosion and sediment control plan shall be filed for a land-disturbing activity and the buildings constructed within, regardless of the phasing of construction.

(c) If individual lots or sections in a residential development are being developed by different property owners, all land-disturbing activities related to the building construction shall be covered by an erosion and sediment control plan or an agreement in lieu of a plan signed by the property owner.

(d) The city manager, or designee, may require an erosion and sediment control plan if in his opinion an agreement in lieu of a plan will not provide sufficient detail to determine the effectiveness of erosion and sediment transport control measures that may be required for the site.

(Ord. No. 7017-13, § 1)

Editor's note—


Sec. 37.1-84. Responsibility of property owner when work to be done by contractor.

When any land-disturbing activity will be required of a contractor performing construction work pursuant to a construction contract, the required plan submissions and the obtaining of the permit required by this article shall be the responsibility of the owner.

(Ord. No. 7017-13, § 1)




Editor's note—


Sec. 37.1-85. Preparation of plan.

(a) The plan required by this article shall be prepared by a certified professional engineer or land surveyor duly licensed by the Commonwealth and shall be developed in accordance with the Virginia Erosion and Sediment Control Law and the regulations promulgated thereunder.

(b) In the absence of an approved site plan issued pursuant to the site regulations of this code, an undisturbed buffer area as described in this subsection shall be accurately located on the erosion and sediment control plan. In such cases, the buffer area, which will function as an erosion control measure, shall be retained and remain undisturbed as follows, except as otherwise approved in the plan for ingress and egress:

(1) For parcel sizes less than one (1) acre, an undisturbed buffer area on the parcel twenty (20) feet in width, parallel and adjacent to all property lines shall be retained. For parcel sizes from one (1) acre but less than five (5) acres, an undisturbed buffer area on the parcel forty (40) feet in width parallel and adjacent to all property lines shall be retained. For all parcel sizes from five (5) acres but less than ten (10) acres, an undisturbed buffer area on the parcel sixty (60) feet in width parallel and adjacent to all property lines shall be retained. For all parcel sizes ten (10) acres or greater, an undisturbed buffer area on the parcel one hundred (100) feet in width parallel and adjacent to all property lines shall be retained.

(2) All vegetation within a buffer area as defined in the zoning ordinance, plus an additional ten-foot strip within the parcel and adjacent to but outside of such buffer area, shall be retained and remain undisturbed. If a buffer area is adjacent to a property line, the greater of the requirements of the preceding subsection (1) or this subsection shall apply.

(c) All areas of vegetation, including ground cover, trees, shrubs, grass and other plants, to be retained in accordance with chapter 33.02, Site Regulations of this Code, shall be marked in the field prior to clearing taking place. One temporary point of access no greater than twenty-five (25) feet in width shall be allowed for site clearance.

(d) Land disturbance shall be limited to the area necessary to provide for the desired use or development.

(1) In accordance with an approved site plan, the limits of land disturbance, including clearing or grading shall be clearly shown on submitted plans and physically marked on the development site.

(2) Where feasible, ingress and egress during construction shall be limited to one access point, unless otherwise approved by the city manager, or designee.

(e) Indigenous vegetation shall be preserved to the maximum extent possible consistent with the use and development permitted and in accordance with the Virginia Erosion and Sediment Control Handbook.

(1) Existing trees more than five (5) inches in diameter four and one-half (4.5) feet above existing grade shall be preserved outside the limits of land disturbance. Trees that are diseased or that have been weakened by age, storm, fire or other injury may be removed.

(2) Clearing shall be allowed only to provide necessary visual and vehicular access, positive site drainage, water quality stormwater management control facilities, and the installation of utilities as approved by the city manager, or designee.




(3) Prior to clearing or grading, suitable protective barriers, such as fencing, shall be erected five (5) feet outside of the dripline of any tree or stand of trees to be preserved. These protective barriers shall remain so erected throughout all phases of construction. The storage of equipment, materials, debris or fill shall not be allowed within the area protected by the barrier unless otherwise authorized by the city manager, or designee.

(f) Land development shall minimize impervious cover to promote infiltration of stormwater into the ground consistent with the use or development permitted.

(g) As a prerequisite to approval of the plan, the person responsible for carrying out the plan shall provide, in a note placed on the plan, the name of an individual holding a certificate of competence, as provided by law and set forth in the Code of Virginia, who will be in charge of and responsible for carrying out the land-disturbing activity.

(Ord. No. 7017-13, § 1)

Editor's note—


Sec. 37.1-86. Approval or disapproval of plan.

(a) The city manager, or designee, shall review plans submitted to him and grant written approval within sixty (60) days of the receipt of the plan if he determines that the plan meets the requirements of the guidelines and standards prescribed in this article and if the person responsible for carrying out the plan certifies that he will properly perform the conservation measures included in the plan and will conform to the provisions of this article. In addition, as a prerequisite to engaging in the land-disturbing activities shown on an approved plan, the person responsible for carrying out the plans shall provide the name of an individual holding a certificate of competence to the city manager, or designee, as provided by Section 62.1-44.15:52 of the Code of Virginia, who will be in charge of and responsible for carrying out the land-disturbing activity. However, the city manager, or designee, may waive the certificate of competence requirement for an agreement in lieu of a plan for construction of a single family residence. If a violation occurs during the land-disturbing activity, then the person responsible for carrying out the agreement in lieu of a plan shall correct the violation and provide the name of an individual holding a certificate of competence, issued by the board, as provided by Section 62.1-44.15:52 of the Code of Virginia. Failure to provide the name of an individual holding a certificate of competence prior to engaging in land-disturbing activities may result in revocation of the approval of the plan and the person responsible for carrying out the plan shall be subject to the penalties provided in this article.

(b) When a plan is determined to be inadequate, written notice of disapproval stating the specific reasons for disapproval shall be communicated to the applicant within forty-five (45) days. The notice shall specify the modifications, terms and conditions that will permit the approval of the plan. If no action is taken by the city manager, or designee, within the time specified above, the plan shall be deemed approved and the person authorized to proceed with the proposed activity.

(c) Where land-disturbing activities involve lands under the jurisdiction of more than one local control program, it shall be the applicant's responsibility to comply with the program of the jurisdiction wherein any portion of the land is located. However, an erosion and sediment control plan may, at the option of the applicant, be submitted to the board for review and approval rather than to each jurisdiction concerned. Regardless of the procedure followed by the applicant for plan approval, land-disturbing activity which takes place within the municipal boundaries of the City of Newport News shall be inspected by an inspector employed by the city and the charge set forth in this article for a




land-disturbing permit shall be paid to the city before any land-disturbing activities will be allowed to commence.

(d) In order to prevent further erosion, the city manager, or designee, may require approval of a plan for any land identified in the local control program as an erosion impact area.

(e) Electric, natural gas and telephone utility companies, interstate and intrastate natural gas pipeline companies and railroad companies shall file a general erosion and sediment control specifications annually with the board for review and approval. The specifications shall apply to:

(1) Construction, installation or maintenance of electric transmission, natural gas and telephone utility lines and pipelines; and

(2) Construction of the tracks, rights-of-way, bridges, communications facilities and other related structures and facilities of the railroad company.

(f) A state agency shall not undertake a project involving a land-disturbing activity unless (i) the state agency has submitted annual specifications for its conduct of land-disturbing activities which have been reviewed and approved by the Virginia Department of Conservation and Recreation as being consistent with the state program, or (ii) the state agency has submitted a conservation plan for the project which has been reviewed and approved by the Virginia Department of Conservation and Recreation.

(Ord. No. 7017-13, § 1)

Editor's note—


Sec. 37.1-87. Amendment of approved plan.

An erosion and sediment control plan approved under this article may be amended by the city manager, or designee, in the following cases:

(1) Where inspection has revealed that the plan is inadequate to satisfy applicable regulatory provisions; or

(2) Where the person responsible for carrying out the approved plan finds that because of changed circumstances or for other reasons the approved plan cannot be effectively carried out, and proposed amendments to the plan, consistent with the requirements of this article, are agreed to by the city manager, or designee, and the person responsible for carrying out the plan.

(Ord. No. 7017-13, § 1)

Editor's note—


Sec. 37.1-88. Variances.

The city manager, or designee, may waive or modify any of the regulations that are deemed inappropriate or too restrictive for site conditions, by granting a variance. A variance may be granted under these conditions:




(1) At the time of plan submission, an applicant may request a variance to become part of the approved erosion and sediment control plan. The applicant shall explain the reasons for requesting variances in writing. Specific variances which are allowed by the city manager, or designee, shall be documented in the plan.

(2) During construction, the person responsible for implementing the approved plan may request a variance in writing from the city manager, or designee. The city manager, or designee, shall respond in writing either approving or disapproving such a request. If the city manager, or designee, does not approve a variance within ten (10) working days of receipt of the request, the request shall be considered to be disapproved. Following disapproval, the applicant may resubmit a variance request with additional documentation.

(3) The city manager, or designee, shall consider variance requests judiciously, keeping in mind both the need of the applicant to maximize cost effectiveness and the need to protect offsite properties and resources from damage.

(Ord. No. 7017-13, § 1)

Editor's note—


Sec. 37.1-89. Aggressive, constant action required.

Should a land-disturbing activity not begin during the one hundred eighty (180) day period following plan approval or cease for more than one hundred eighty (180) days, the city manager, or designee, may evaluate the existing approved erosion and sediment control plan to determine whether the plan still satisfies local and state erosion and sediment control criteria and to verify that all design factors are still valid. If the city manager, or designee, finds the previously filed plan to be inadequate, a modified plan shall be submitted and approved prior to the resumption of land-disturbing activity.

(Ord. No. 7017-13, § 1)

Editor's note—


Secs. 37.1-90—37.1-92. Reserved.


It shall be unlawful for any person to undertake any land-disturbing activity, except as exempted in this article, without first obtaining a permit for such land-disturbing activity from the city manager, or designee. No permit shall be issued by the city manager, or designee, until proof of coverage under the state stormwater construction general permit, as may be applicable, has been submitted.

(Ord. No. 7017-13, § 1)

Editor's note—





Sec. 37.1-94. Application; fee.

Any person desiring a permit required by this article shall file an application therefore with the city manager, or designee. Such application shall contain evidence that a fee according to the following schedule has been paid. The fee shall not be returnable. The fee shall be based on the square footage associated with the area to be disturbed and is levied to cover the costs of processing and investigating the application for and the inspection of the land-disturbing activity:

(1) Less than two thousand five hundred (2,500) square feet: No charge and no permit required.

(2) 2,500—10,000 square feet: One hundred seventy-five dollars ($175.00).

(3) 10,001—20,000 square feet: Two hundred twenty-five dollars ($225.00).

(4) 20,001—30,000 square feet: Two hundred seventy-five dollars ($275.00).

(5) 30,001—40,000 square feet: Three hundred dollars ($300.00).

(6) 40,001—50,000 square feet: Three hundred twenty-five dollars ($325.00).

(7) More than fifty thousand (50,000) square feet: Three hundred fifty dollars ($350.00) plus twenty-five dollars ($25.00) for square footage (in increments of ten thousand (10,000) square feet or portion thereof) in excess of sixty thousand (60,000) square feet.

(8) An agreement in lieu of a plan: Seventy-five dollars ($75.00).

(Ord. No. 7017-13, § 1)

Editor's note—


Sec. 37.1-95. Issuance and term of permit; bond.

(a) In the case of approval of a plan submitted under this article, the city manager, or designee, shall issue a permit certifying approval of the land-disturbing activity. Prior to the issuance of the permit, the applicant shall provide to the city a performance bond or other security in the form of a cash escrow, letter of credit, corporate surety bond, or other such legal arrangement as may be approved by the city attorney. Such bond or security shall be in an amount to be determined by the city manager, or designee, and shall be sufficient to ensure that emergency measures may be taken by the city at the applicant's expense should the applicant fail, after proper notice and within the time specified, to initiate or maintain appropriate conservation action which may be required as a result of such land-disturbing activity. The bond minimum shall be two thousand dollars ($2,000.00) or five hundred dollars ($500.00) per acre of disturbed area, whichever is greater. If the city takes such conservation action upon such failure by the permittee, the permittee shall pay to the city the difference between the amount of the security and the actual cost of such action if it exceeds the amount of the security held. Within sixty (60) days after the completion of the land-disturbing activity, as indicated by the issuance of a certificate of completion under this article, such security or the unexpended or un-obligated portion thereof shall be refunded to the applicant or terminated as the case may be.

(b) A bond shall not be required for an agreement in lieu of a plan.

(Ord. No. 7017-13, § 1)

Editor's note—





Sec. 37.1-96. Standards for land-disturbing activities and control practices.

Land-disturbing activities controlled by this article shall be designed and conducted in a manner consistent with the standards described in 9VAC25-870-40 [of the Virginia Administrative Code].

(Ord. No. 7017-13, § 1)

Editor's note—


Sec. 37.1-97. Periodic inspections of land-disturbing activities.

The city manager, or designee, shall make such periodic inspections of land-disturbing activities as provided in the state program to ensure compliance with the approved plan and to determine whether the measures required in the plan are effective in controlling erosion and sedimentation resulting from the land-disturbing activity. The right of inspection shall be inherent in the issuance of the permit under this article. The owner, occupier or operator shall be given an opportunity to accompany the city manager, or designee, on the inspections.

(Ord. No. 7017-13, § 1)

Editor's note—


Sec. 37.1-98. Final inspection and certificate of completion of land-disturbing activity.

Upon completion of a land-disturbing activity, the permittee shall notify the city manager, or designee, who shall make a final inspection of the project. Upon finding satisfactory evidence of compliance with the approved plan and the achievement of adequate stabilization, the city manager, or designee, shall issue a certificate of completion. "Adequate stabilization" of a site shall be determined by the city manager, or designee.

(Ord. No. 7017-13, § 1)

Editor's note—


FOOTNOTE(S):




--- (6) ---

Editor's note— The provisions of this article were previously codified as Ch. 35 (Back)


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