A.
Introduction.
1. Definitions. For the purpose
of this chapter, the definitions contained within § 62.1-13.22 of the Code
of Virginia apply. In addition, the following words and terms when used in this
chapter, shall have the following meanings unless the context clearly indicates
otherwise:
"Barrier islands" means elongated narrow landforms consisting
largely of unconsolidated and shifting sand, fronted on one side by the ocean
and on the other by a bay or marshland which separates them from the
mainland.
"Dune crest" means the highest elevation of the coastal
primary sand dune on the lot as determined in consultation with the Virginia
Institute of Marine Science.
"Local 100-year long-term recession rate" means calculating
the average shoreline recession over fixed one-mile intervals averaged over the
period between surveys of 100 years or more.
2. Background. Barrier islands are transient
landforms. Their dynamic and unstable nature poses significant risk to life and
property located there. Scientific evidence placed before the Marine Resources
Commission supports a finding that some of Virginia's barrier islands,
including Cedar Island, are more fragile, more unstable and pose even greater
risk to life and property than many other coastal barriers, due to their
sand-deficient character. In addition, barrier islands are themselves
significant natural resources that contain a number of specific features
(coastal primary sand dunes, wetlands, and vast stretches of state-owned sandy
beaches) including natural heritage resources and threatened or endangered
species that are recognized by the General Assembly for their natural value and
are protected by law. This policy applies to the barrier island systems on the
seaside of the Virginia portion of the southern Delmarva peninsula, and is not
intended to cover military activities essential to national security, or the
construction, operation, maintenance or rehabilitation of coast guard
facilities or access to them. This exclusion does not obviate compliance with
other applicable provisions of the Coastal Primary Sand Dune Protection Act.
Survival of these barrier islands often depends on the
ability of sand to wash across the island naturally in concert with the local
wind and wave climate. The sand is then protected from loss offshore and
provides a means of perpetuating the island, albeit in a more landward
location. Activities which adversely affect this interaction can have an
extremely detrimental impact on the island as well as the structure, form and
function of its dune system. The artificial accumulation of sand along the
oceanside of an island can make it more susceptible to loss offshore during a
storm. Once such a loss occurs, the sand then becomes unavailable for washover
and for the continued landward migration of the island. Houses, sand fences and
similar structures can also alter wind patterns; this alteration impedes the
wind transport of sand across the island. Accumulations adjacent to these
impediments can be lost offshore as the shoreline continues to recede, leading
to an increased rate of recession and a narrowing of the island. In addition,
many of the Commonwealth's rarest species depend on the continuation of natural
processes that currently exist on barrier islands. Consequently they are
threatened by any interference with those processes. The implementation of the
policies and guidelines set forth in this chapter will support a fuller
achievement of the purposes of the Virginia Natural Area Preserves Act (§
10.1-209 et seq. of the Code of Virginia), the Virginia Endangered Species Act
(§ 29.1-563 et seq. of the Code of Virginia) and the Virginia Endangered
Plant and Insect Species Act (§ 3.1-1020 et seq. of the Code of
Virginia).
Two of the main natural features of barrier islands are
natural dunes and washover areas, both of which are included in the statutory
definition of a coastal primary sand dune as a "mound of unconsolidated sandy
soil which is contiguous to mean high water, whose landward and lateral limits
are marked by a change in grade from 10% or greater to less than 10% and upon
any part of which is growing" certain designated plants as listed in §
62.1- 13.22 of the Code of Virginia. Given the particular combination of risks
to both natural values and life and property posed by development on barrier
islands, the commission finds it necessary and appropriate to establish a
policy and supplemental guidelines to assist landowners and decision makers
alike in shaping barrier island uses in a manner that preserves and protects
the values of coastal primary sand dunes as set forth by the General
Assembly.
B.
Permits required.
1. Applications for new
development.
a. No construction or any other
activity which has the potential for encroaching on or otherwise damaging
coastal primary sand dunes or state-owned beaches shall occur without review
and approval by the Marine Resources Commission (commission) or a local wetland
board, or both. Consequently, a permit application shall be submitted for any
such construction or other activity. Each application shall include:
(1) A certified survey of the site which is
representative of current conditions showing:
(i) one foot contours relative to local mean
high water, commencing at the line and proceeding through the site to the first
wetlands vegetation,
(ii) specific
location for all proposed structures including septic system and drainfields,
(iii) size, configuration and
design of access points,
(iv)
location of any other activity which may affect coastal primary sand dunes or
state-owned shore, and
(v) a dune
crest, determined in consultation with the Virginia Institute of Marine
Science, which identifies the highest elevation of the coastal primary sand
dune on the lot.
(2) A
copy of both a valid building permit and septic or other wastewater handling or
disposal system permit.
b. All lot pins and proposed construction
locations, drainfield sites and access points shall be staked and tied to
suitable reference points.
c. In
its review of the application, the commission (or a local wetlands board) will
determine the correctness of the dune crest and will establish a minimum
setback necessary to prevent encroachment in or damage to the dune or
interference with the natural processes of dune growth.
2. Loss of structures and applications for
redevelopment. When a structure is destroyed or damaged by natural events such
that the structure is condemned by health officials or local building
officials, reconstruction in that location may not be authorized. Submission of
a new application and evaluation as if no structure were present will be
required. In the event a structure is damaged beyond repair and no longer
habitable or damaged and not restored to a usable state within one year, the
owner of record shall be responsible for the complete removal of all vestiges
of the structure and materials resulting from them, including the septic tank,
distribution box and drainfields in their entirety, or as directed by the state
or local Department of Health. The owner of the lot shall restore the area to
as natural a state as possible.
C. Supplemental guidelines.
1. Structures.
a. No permanent structure, other than those
already specifically allowed by law or provided in subdivision C 2 b below for
purposes of permanent access, will be permitted seaward of the crest of the
coastal primary sand dune. No permanent alteration of the coastal primary sand
dune will be permitted, except in accordance with the standards set forth in
the Coastal Primary Sand Dunes Act.
b. Since it is well established that the
coastal primary sand dunes and the islands themselves recede continually
westward at a reasonably predictable rate, and that excessive vehicular and
pedestrian use will increase the fragility of coastal primary sand dunes or
impact upon significant natural resources, development must be limited to no
more than low density single family use on each platted parcel. Uses other than
single family dwellings can clearly be characterized as "unnecessary and
inconsistent with the public interest considering all material
factors."
c. The density of
structures and the percentage of the shoreline frontage occupied by those
structures are critical to minimizing the impact they have on sand migration
across the island. Data concerning the development on barrier islands indicates
that adverse impacts may be minimized when no more than 25% of the islands'
linear shoreline is occupied by structures. This factor shall be considered in
evaluating the individual and cumulative impacts of each permit application. In
considering permit applications, the following guidelines shall be followed:
(1) There shall be adequate area within the
lot that is neither sand dune, including beach and overwash areas, nor wetlands
to accommodate the proposed dwelling and any appurtenant structures, including
attendant sanitary facilities.
(2)
Minimum frontage for a lot on the ocean capable of supporting a single-family
vacation cottage shall be 100 feet.
(3) Minimum side yard requirements shall be
30 feet.
(4) The setback from the
dune crest for all structures including septic systems shall be 20 times the
local 100-year long-term annual shoreline recession rate. The dune crest shall
be defined as the location of the highest elevation of the coastal primary sand
dune, beach or washover located on the lot.
(5) The maximum allowable square footage for
the first floor of a single family dwelling on a 100-foot lot shall be 900
square feet and for a 200-foot lot, 1800 square feet, including porches, decks,
and other appurtenances. Houses with first floors larger than these will not be
considered necessary economic development.
(6) The maximum height of a dwelling shall be
25 feet measured from the base of the first floor to the peak of the
roof.
(7) All dwellings shall be
constructed on elevated open pilings a minimum of 10 feet above grade. No
enclosures will be permitted below the first floor.
(8) An appropriate identification number
shall be affixed to all septic tanks made of nonbiodegradable plastic materials
to aid in their indentification.
(9) Exceptions to these requirements may be
authorized in individual cases. No such exception shall be authorized unless
the commission finds (i) that the strict application of the requirement would
produce undue hardship, and (ii) that the authorization of such exception will
not result in significant detriment to barrier islands, their natural
resources, or adjacent property.
d. Evidence of cumulative environmental
impacts of existing and proposed structures, as well as the secondary impacts
resulting from their use, shall be considered in passing upon any application
for a permit.
2. Access.
a. No cuts through the dune will be
permitted. Temporary vehicular access for purposes of construction will be
permitted only by open-pile or "corduroy" ramps. Permits for temporary
vehicular access will be limited as necessary to protect significant natural
resources. At expiration of the authorized term all structures, except as noted
in subdivision b below, shall be removed and the dune restored to its
preconstruction contours and revegetated. All plans for temporary construction
access must be specified in the application of any construction
permit.
b. Permanent vehicular
access across the dune will be permitted only by "corduroy" or open-pile
vehicular ramps which allow the natural process of dune growth and migration to
occur. An open-pile or "corduroy" ramp developed for purposes of construction
access may remain in place for permanent access if it meets the above criteria
and is specifically approved. All plans for permanent access must be specified
in the application for any construction permit.
c. Each dwelling will be limited to a maximum
of one vehicle for access to and from the island's landings. All vehicles shall
be subject to the following conditions:
(1)
Each vehicle shall have a no-cost annually renewable permit to travel on the
beach. The owner shall attest at the time of renewal the vehicle's status and
condition.
(2) The permit number
for each vehicle shall be displayed in two-foot high letters on the roof and
sides of the vehicle.
(3) When a
vehicle for a particular dwelling is no longer functional, it must be removed
from the island. Evidence of its removal must be provided prior to the issuance
of a permit for a new vehicle.
(4)
All driving will be limited to the intertidal zone and between there and
approved dune crossovers. Vehicular use of the beach at periods greater than
four hours either side of low water shall be considered a violation of this
section.
(5) All bird nesting areas
posted by the Virginia Department of Game and Inland Fisheries, U.S. Fish and
Wildlife Service, or Department of Conservation and Recreation shall be off
limits to all vehicles.
(6) No all
terrain vehicles (ATVs) will be permitted on barrier islands.
(7) Evidence of vehicular use in areas other
than those authorized shall be cause for revocation of the permit and a
requirement that the vehicle be removed from the island. Any person having his
permit revoked shall be precluded from reapplication for a one-year
period.
3.
Roads. No roads or trails will be permitted on or across any coastal primary
sand dune or in any wetland.
4.
Sand movement. No artificial relocation of sand will be permitted.
5. Shore hardening. Structures normally
associated with or used for shoreline protection or erosion control, including
but not limited to bulkheads, riprap, revetments, gabion baskets, sand bags,
groins and jetties, or any other hardening of the shoreline will not be
permitted under any circumstances.
6. Point source discharges. No point source
discharge pipe, structures or other devices will be permitted.
7. Bond requirement. A reasonable bond or
letter of credit will be required prior to granting any permit to assure
restoration of any temporary alteration of the coastal primary sand dune
including, but not limited to, regrading to the original elevation, resprigging
with appropriate vegetation and removal of any and all construction
debris.
8. Sand fence. The use of
sand fencing or other artificial barriers is discouraged because of its
interference with the natural sand transport and migration on barrier
islands.
9. Solid waste. All solid
waste generated on barrier islands must be removed and disposed of
appropriately on the mainland.
10.
Pets. In order to prevent unrestricted roaming which may result in the
disturbance of, or depredation to wildlife, domestic pets must (i) be
restrained or under control of their owner at all times, (ii) shall not be
allowed off of the owner's property except under leash, and (iii) shall not be
abandoned on a barrier island.
11.
Endangered species. Encroachment upon the nesting sites of threatened and
endangered species identified by the Virginia Department of Game and Inland
Fisheries or Department of Conservation and Recreation is prohibited. Evidence
of impact or potential impact on threatened and endangered species shall be
considered in passing upon any application for a permit.
12. Landscaping. The planting of exotic
species or introduction of non-native fauna are impermissible. Broadcast
spraying of pesticides or herbicides is impermissible except when necessary to
protect the public health or safety as decreed by the appropriate public health
official.
D. Public
hearings. The public hearing required by § 6 of the model ordinance may be
held in Newport News, Virginia. Such hearing will not be scheduled until the
commission staff has determined that it is in receipt of a complete
application.
E. Comments/advisory
notes.
1. Risks. While future events and
their impacts on human activity cannot be forecast with any degree of
precision, experience in other coastal areas suggests a proclivity to seek
public assistance when catastrophic events occur or when services are needed
beyond the ability of private resources to provide. The commission believes
that any development on barrier islands should be undertaken only with the full
acceptance by the owners of the risks involved.
a. No public protection of private property.
Authorization of structures should in no way serve as justification for the
future expenditure of public resources to protect such structures.
b. Services. Any services which may be
provided by local government to promote public health, safety and general
welfare must be installed, maintained and operated in a manner consistent with
the policy, standards and guidelines of both the Wetlands and Dunes Protection
Acts.
c. Relocation of structures.
Once local mean high water approaches a structure to within 10 times the
average recession rate, a plan for its movement/relocation must be submitted
for review. No movement or relocation will be permitted without the written
permission of the commission.
2. Interference with natural processes. The
serious sand deficiency which currently exists on Virginia's barrier islands is
exacerbated by any artificial manipulation, including sand fences, which might
render the supply more vulnerable to export offshore or interfere with the
natural movement onshore in washover areas during storm events. Private
property owners have even more at stake than the public-at-large in assuring
that natural processes are not interfered with to any discernible
degree.
3. Value of dune
preservation. Special emphasis is placed on the legislative declaration of
public policy that coastal primary sand dunes "in their natural state serve as
protective barriers from the effects of flooding and erosion caused by coastal
storms, thereby protecting life and property."
a. Accordingly, every reasonable precaution
to avoid permanent alteration is expected to be exercised by all users in
gaining temporary access to private property for construction or for continued
access to authorized structures.
b.
All construction, including septic systems, shall bet set-back from mean high
water a distance at the site to assure reasonable survival duration. Setbacks
from the dune crest were specified in subdivision C 1 c (4) of this
chapter.
4. Water
quality. While the commission believes that properly functioning septic systems
in the limited density anticipated will have no measurable effect, failing
systems of greater numbers than now forecast could impact important public
shellfish growing areas. Therefore, staff will request at least biannually from
the Department of Health an assessment of the cumulative impact or catastrophic
failure of septic systems they have authorized.
F. Policy with regard to private restrictive
agreements. In addition to the above guidelines and advisory comments and as an
additional means to reasonably "preserve and protect coastal primary sand dunes
and reaches and to prevent their despoliation and destruction," and to help
achieve the other purposes set forth by the General Assembly in the Coastal
Primary Sand Dune Protection Act, the commission endorses and looks favorably
upon restrictive private covenants which "accommodate necessary economic
development in a manner consistent with the protection of coastal primary sand
dunes." For example, the Commission encourages restrictive private covenants
which:
1. Protect the "natural habitat for
coastal fauna," "wildlife habitat," and "vegetation which stabilizes coastal
primary sand dunes."
2. Prohibit
special exemptions or attempt to obtain such exemptions from the application of
controlling statutes.
3. Enhance
the "scenic and recreational attractiveness of Virginia's coastal area,"
protect the "important natural habitat for coastal fauna," and protect the
"vegetation which stabilizes such features."
4. Require cooperation with the state and
federal conservation agencies to protect the ecologically significant natural
resources including granting permission to post critical bird nesting
sites.