§ 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 subsection (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 section.

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 subsection 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-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 March 1, 2002, 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 subdivision (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 section 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 chapter.

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; Ord. No. 7088-14, § 1; Ord. No. 7592-19)

(Ord. No. 7017-13, § 1; Ord. No. 7088-14, § 1; Ord. No. 7592-19)