[HISTORY: Adopted by the City Council of the City of Lexington by Ord.
No. 03-10 (Ch. 8.1 of the 1970 Code). Amendments noted where applicable.]
This chapter shall be known as the "Erosion and Sediment Control Ordinance
of the City of Lexington." The purpose of this chapter is to prevent degradation
of properties, stream channels, waters and other natural resources of the
City of Lexington by establishing requirements for the control of soil erosion,
sediment deposition and nonagricultural runoff and by establishing procedures
whereby these requirements shall be administered and enforced. This chapter
is authorized by the Code of Virginia, Title 10.1, Chapter 5, Article 4 (§ 10.1-560
et seq.), known as the "Virginia Erosion and Sediment Control Law."
As used in this chapter, unless the context requires a different meaning,
the following terms shall have the meanings indicated:
A contract between the plan-approving authority and the owner that
specifies conservation measures that 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.
Any person submitting an erosion and sediment control plan for approval
or requesting the issuance of a permit, when required, authorizing land-disturbing
activities to commence.
The Virginia Soil and Water Conservation Board.
An employee or agent of a program authority who:
An employee or agent of a program authority who:
Holds a certificate of competence from the Board in the area of plan
review;
Is enrolled in the Board's training program for plan review and successfully
completes such program within one year after enrollment; or
Is licensed as a professional engineer, architect, certified landscape
architect or land surveyor pursuant to Article 1 (§ 44.1-400 et
seq.) of Chapter 4 of Title 54.1 of the Code of Virginia.
An employee or agent of a program authority who:
The City of Lexington.
Any activity which removes the vegetative ground cover, including
but not limited to root mat removal or topsoil removal.
The County of Rockbridge.
The Department of Conservation and Recreation.
A tract of land developed or to be developed as a single unit under
single ownership or unified control which is to be used for any business or
industrial purpose or is to contain three or more residential dwelling units.
The Director of the Department.
Refers to the Natural Bridge Soil and Water Conservation District.
A document containing material for the conservation of soil and water
resources of a unit or 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 assure
that the entire unit or units of land will be so treated to achieve the conservation
objectives.
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 10,000 square feet or less used for
residential purposes.
Any digging, scooping or other methods of removing earth materials.
Any depositing or stockpiling of earth materials.
Any excavating or filling of earth material or any combination thereof,
including the land in its excavated or filled condition.
Any land change which may result in soil erosion from water or wind
and the movement of sediments into state waters or onto lands in the commonwealth,
including but not limited to clearing, grading, excavating, transporting and
filling of land, except that the term shall not include:
Minor land-disturbing activities such as home gardens and individual
home landscaping, repairs and maintenance work;
Individual service connections;
Installation, maintenance, or repair of any underground public utility
lines when such activity occurs on an existing hard-surfaced road, street
or sidewalk, provided that such land-disturbing activity is confined to the
area of the road, street or sidewalk which is hard-surfaced;
Septic tank lines or drainage fields unless included in an overall plan
for land-disturbing activity relating to construction of the building to be
served by the septic tank system;
Surface or deep mining;
Exploration or drilling for oil and gas, including the well site, roads,
feeder lines, and off-site disposal areas;
Tilling, planting, or harvesting of agricultural, horticultural, or
forest crops, or livestock feedlot operations, including engineering operations
and agricultural engineering operations as follows: construction of terraces,
terrace outlets, check dams, desilting basins, dikes, ponds not required to
comply with the Dam Safety Act, Article 2 (§ 10.1-604 et seq.) of
Chapter 6 of Title 10.1 of the Code of Virginia, 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 the Code of Virginia, Chapter
11 (§ 10.1-1100 et seq.) of Title 10.1, or is converted to bona
fide agricultural or improved pasture use as described in the Code of Virginia,
§ 10.1-1163B;
Repair or rebuilding of the tracks, rights-of-way, bridges, communication
facilities and other related structures and facilities of a railroad company;
Disturbed land areas of less than 10,000 square feet in size;
Installation of fence and sign posts or telephone and electric poles
and other kinds of posts or poles; and
Emergency work to protect life, limb or property, and emergency repairs,
provided that if the land-disturbing activity would have required an approved
erosion and sediment control plan if the activity were not an emergency, then
the land area disturbed shall be shaped and stabilized in accordance with
the requirements of the plan-approving authority.
A permit issued by the Zoning Administrator for the clearing, filling,
excavating, grading, or transporting of land or for any combination thereof
or for any purpose set forth herein.
An outline of the various methods employed by the City of Lexington
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.
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.
The person to whom the permit authorizing land-disturbing activities
is issued or the person who certifies that the approved erosion and sediment
control plan will be followed.
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.
The Zoning Administrator, who is responsible for determining the
adequacy of a plan submitted for land-disturbing activities on a unit or units
of lands and for approving plans.
The City of Lexington, which has adopted a soil erosion and sediment
control program approved by the Board.
An individual from the project or development team who will be in
charge of and responsible for carrying out a land-disturbing activity covered
by an approved plan or agreement in lieu of a plan, who:
Holds a responsible land disturber certificate of competence;
Holds a current certificate of competence from the Board in the areas
of combined administration, program administration, inspection, or plan review;
Holds a current contractor certificate of competence for erosion and
sediment control; or
Is licensed in Virginia as a professional engineer, architect, certified
landscape architect or land surveyor pursuant to the Code of Virginia, Article
1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1.
A noncommercial dwelling that is occupied exclusively by one family.
The program administered by the Virginia Soil and Water Conservation
Board pursuant to the Code of Virginia, including regulations designed to
minimize erosion and sedimentation.
All waters on the surface and under the ground wholly or partially
within or bordering the commonwealth or within its jurisdictions.
Any moving of earth materials from one place to another place, other
than such movement incidental to grading, when such movement results in destroying
the vegetative ground cover either by tracking or the buildup of earth materials
to the extent that erosion and sedimentation will result from the soil or
earth materials over which such transporting occurs.
A.
Pursuant to § 10.1-562 of the Code of Virginia,
the City of Lexington hereby adopts the regulations, references, guidelines,
standards and specifications promulgated by the Board for the effective control
of soil erosion and sediment deposition to prevent the unreasonable degradation
of properties, stream channels, waters and other natural resources. Said regulations,
references, guidelines, standards and specifications for erosion and sediment
control are included in, but not limited, to the Virginia Erosion and Sediment
Control Regulations and the Virginia Erosion and Sediment Control Handbook,
as amended.
B.
Before adopting or revising regulations, the City of
Lexington shall give due notice and conduct a public hearing on the proposed
or revised regulations, except that a public hearing shall not be required
when the City of Lexington is amending its program to conform to revisions
in the state program. However, a public hearing shall be held if the City
of Lexington proposes or revises regulations that are more stringent than
the state program.
C.
Pursuant to § 10.1-561.1 of the Code of Virginia,
an erosion control plan shall not be approved until it is reviewed by a certified
plan reviewer. Inspections of land-disturbing activities shall be conducted
by a certified inspector. The erosion control program of the City of Lexington
shall contain a certified program administrator, a certified plan reviewer,
and a certified inspector, who may be the same person.
D.
The City of Lexington hereby designates the Zoning Administrator
as the plan-approving authority.
E.
The program and regulations provided for in this chapter
shall be made available for public inspection at the office of the Zoning
Administrator.
A.
Except as provided herein, no person may engage in any
land-disturbing activity until he has submitted to the Zoning Administrator
an erosion and sediment control plan for the land-disturbing activity and
such plan has been approved by the plan-approving authority. Where land-disturbing
activities involve lands under the jurisdiction of more than one local control
program, an erosion and sediment control plan, at the option of the applicant,
may be submitted to the Board for review and approval rather than to each
jurisdiction concerned. Where the land-disturbing activity results from the
construction of a single-family residence, an agreement in lieu of a plan
may be substituted for an erosion and sediment control plan if executed by
the plan-approving authority.
B.
The standards contained within the Virginia Erosion and
Sediment Control Regulations and the Virginia Erosion and Sediment Control
Handbook are to be used by the applicant when making a submittal under the
provisions of this chapter and in the preparation of an erosion and sediment
control plan. The plan-approving authority, in considering the adequacy of
a submitted plan, shall be guided by the same standards, regulations and guidelines.
C.
The plan-approving authority shall, within 45 days, approve
any such plan, if it is determined that the plan meets the requirements of
the local control program and if the person responsible for carrying out the
plan certifies that he or she will properly perform the erosion and sediment
control measures included in the plan and will conform to the provisions of
this chapter. In addition, as a prerequisite to approval of the plan, the
person responsible for carrying out the plan shall provide the name of a responsible
land disturber who will be in charge of and responsible for carrying out the
land-disturbing activity in accordance with the approved plan.
D.
The plan shall be acted upon within 45 days from receipt
thereof by either approving said plan in writing or by disapproving said plan
in writing and giving specific reasons for its disapproval. When the plan
is determined to be inadequate, the plan-approving authority shall specify
such modifications, terms and conditions that will permit approval of the
plan. If no action is taken within 45 days, the plan shall be deemed approved
and the person authorized to proceed with the proposed activity.
E.
An approved plan may be changed by the plan-approving
authority when:
(1)
The inspection reveals that the plan is inadequate to
satisfy applicable regulations; or
(2)
The person responsible for carrying out the 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 chapter, are agreed to by the plan-approving
authority and the person responsible for carrying out the plans.
F.
In order to prevent further erosion, the City of Lexington
may require approval of a plan for any land identified in the local program
as an erosion impact area.
G.
When land-disturbing activity will be required of a contractor
performing construction work pursuant to a construction contract, the preparation,
submission, and approval of an erosion and sediment control plan shall be
the responsibility of the owner.
H.
Electric, natural gas and telephone utility companies,
interstate and intrastate natural gas pipeline companies and railroad companies
shall file general erosion and sediment control specifications annually with
the Board for review and written comments. The specifications shall apply
to:
I.
Individual approval of separate projects within Subsection H(1) and (2) of this section is not necessary when Board-approved specifications are followed; however, projects included in Subsection H(1) and (2) must comply with Board-approved specifications. Projects not included in Subsection H(1) and (2) of this section shall comply with the requirements of the City of Lexington erosion and sediment control program.
J.
State agency projects are exempt from the provisions
of this chapter, except as provided for in the Code of Virginia, § 10.1-564.
A.
Agencies authorized under any other law to issue grading,
building, or other permits for activities involving land-disturbing activities
may not issue any such permit unless the applicant submits with his application
an approved erosion and sediment control plan and certification that the plan
will be followed.
B.
No person may engage in any land-disturbing activity
until he has acquired a land-disturbing permit, unless the proposed land-disturbing
activity is specifically exempt from the provisions of this chapter, and has
paid the fees and posted the required bond.
C.
An administrative fee shall be paid to the City of Lexington
at the time of submission of the erosion and sediment control plan. The amount
of the fee shall be established annually by the City's annual budget appropriation
resolution.
D.
No land-disturbing permit shall be issued until the applicant
submits with his application an approved erosion and sediment control plan
and certification that the plan will be followed.
E.
All applicants for permits shall provide a performance
bond, cash escrow, or an irrevocable letter of credit acceptable to the Zoning
Administrator to ensure that measures could be taken by the City of Lexington
at the applicant's expense should the applicant fail, after proper notice,
within the time specified to initiate or maintain appropriate conservation
measures required of him as a result of his land-disturbing activity.
(1)
The amount of the bond or other security for performance
shall not exceed the total of the estimated cost to initiate and maintain
appropriate conservation action based on unit price for new public or private
sector construction in the locality and a reasonable allowance for estimated
administrative costs and inflation, which shall not exceed 25% of the cost
of the conservation action. Should it be necessary for the City of Lexington
to take such conservation action, the City of Lexington may collect from the
applicant any costs in excess of the amount of the surety held.
(2)
Within 60 days of adequate stabilization, as determined
by the Zoning Administrator, in any project or section of a project, such
bond, cash escrow or letter of credit, or the unexpended or unobligated portion
thereof, shall be either refunded to the applicant or terminated, based upon
the percentage of stabilization accomplished in the project or project section.
F.
These requirements are in addition to all other provisions
relating to the issuance of permits and are not intended to otherwise affect
the requirements for such permits.
A.
The City of Lexington may require the person responsible
for carrying out the plan to monitor the land-disturbing activity. The person
responsible for carrying out the plan will maintain records of these inspections
and maintenance, to ensure compliance with the approved plan and to determine
whether the measures required in the plan are effective in controlling erosion
and sedimentation.
B.
The Zoning Administrator or his authorized agent shall
periodically inspect the land-disturbing activity in accordance with Section
4VAC50-30-60 of the Virginia Erosion and Sediment Control Regulations to ensure
compliance with the approved plan and to determine whether the measures required
in the plan are effective in controlling erosion and sedimentation. The owner,
permittee, or person responsible for carrying out the plan shall be given
notice of the inspection.
(1)
If the Zoning Administrator determines that there is
a failure to comply with the plan, notice shall be served upon the permittee
or person responsible for carrying out the plan by registered or certified
mail to the address specified in the permit application or in the plan certification,
or by delivery at the site of the land-disturbing activities to the agent
or employee supervising such activities.
(2)
The notice shall specify the measures needed to comply
with the plan and shall specify the time within which such measures shall
be completed. Upon failure to comply within the specified time, the permit
may be revoked and the permittee or person responsible for carrying out the
plan shall be deemed to be in violation of this chapter and shall be subject
to the penalties provided by this chapter.
C.
Upon determination of a violation of this chapter, the
Zoning Administrator may, in conjunction with or subsequent to a notice to
comply as specified in this chapter, 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.
(1)
If land-disturbing activities have commenced without
an approved plan, the Zoning Administrator may, in conjunction with or subsequent
to a notice to comply as specified in this chapter, issue an order 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 without regard to whether the permittee has been
issued a notice to comply as specified in this chapter. Otherwise, such an
order may be issued only after the permittee has failed to comply with such
a notice to comply.
(2)
The order shall be served in the same manner as a notice
to comply and shall remain in effect for a period of seven days from the date
of service pending application by the enforcing authority or permit holder
for appropriate relief to the Circuit Court of the City of Lexington.
(3)
If the alleged violator has not obtained an approved
plan or any required permits within seven days from the date of service of
the order, the Zoning Administrator 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
City of Lexington. The owner may appeal the issuance of an order to the Circuit
Court of the City of Lexington.
(4)
Any person violating or failing, neglecting or refusing
to obey an order issued by the Zoning Administrator may be compelled in a
proceeding instituted in the Circuit Court of Lexington to obey the 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.
(5)
Nothing in this section shall prevent the City of Lexington
from taking any other action authorized by this chapter.
A.
Any person who violates any provision of this chapter
shall, upon a finding of the District Court of the City of Lexington, be assessed
a civil penalty. The civil penalty for any one violation shall be $100, except
that the civil penalty for commencement of land-disturbing activities without
an approved plan shall be $1,000. 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 $3,000, except that a series of
violations arising from the commencement of land-disturbing activities without
an approved plan for any site shall not result in civil penalties which exceed
a total of $10,000.
B.
The Zoning Administrator or the owner of property which
has sustained damage or which is in imminent danger of being damaged may apply
to the Circuit Court of the City of Lexington to enjoin a violation or a threatened
violation of this chapter without the necessity of showing that an adequate
remedy at law does not exist. However, an owner of property shall not apply
for injunctive relief unless:
(1)
He has notified in writing the person who has violated the local
program, and the program authority, that a violation of the local program
has caused, or creates a probability of causing, damage to his property; and
(2)
Neither the person who has violated the local program nor the
program authority has taken corrective action within 15 days to eliminate
the conditions which have caused, or create the probability of causing, damage
to his property.
C.
Any person who violates any provision of this chapter
may be liable to the City of Lexington in a civil action for damages.
D.
Without limiting the remedies which may be obtained in
this section, any person violating or failing, neglecting, or refusing to
obey any injunction, mandamus or other remedy obtained pursuant to this section
shall be subject, in the discretion of the court, to a civil penalty not to
exceed $2,000 for each violation. A civil action for such violation or failure
may be brought by the City of Lexington. Any civil penalties assessed by a
court shall be paid into the treasury of the City of Lexington, except that
where the violator is the locality itself, or its agent, the court shall direct
the penalty to be paid into the state treasury.
E.
With the consent of any person who has violated or failed, neglected or refused to obey any regulation or condition of a permit or any provision of this chapter, the City of Lexington may provide for the payment of civil charges for violations in specific sums, not to exceed the limit specified in Subsection D of this section. Such civil charges shall be instead of any appropriate civil penalty which could be imposed under Subsection D.
F.
The commonwealth's Attorney shall, upon request of the
City of Lexington or the permit-issuing authority, take legal action to enforce
the provisions of this chapter.
G.
Compliance with the provisions of this chapter shall
be prima facie evidence in any legal or equitable proceeding for damages caused
by erosion, siltation or sedimentation that all requirements of law have been
met, and the complaining party must show negligence in order to recover any
damages.
A.
Any applicant under the provision of this chapter who
is aggrieved by any action of the City of Lexington or its agent in disapproving
plans submitted pursuant to this chapter shall have the right to apply for
and receive a review of such action by the Council of the City of Lexington,
provided that an appeal is filed within 30 days from the date of the action.
Any applicant who seeks an appeal hearing before the Council of the City of
Lexington shall be heard at the next regularly scheduled City Council public
hearing, provided that the Council of the City of Lexington and other involved
parties have at least 30 days' prior notice. In reviewing the agent's actions,
the City Council shall consider evidence and opinions presented by the aggrieved
applicant and agent. After considering the evidence and opinions, the City
Council may affirm, reverse or modify the action. The City Council's decision
shall be final, subject only to review by the Circuit Court of the City of
Lexington.
B.
Final decisions of the Zoning Administrator under this
chapter shall be subject to review by the Circuit Court of the City of Lexington,
provided that an appeal is filed within 30 days from the date of any written
decision adversely affecting the rights, duties, or privileges of the person
engaging in or proposing to engage in land-disturbing activities.
