City of Fredericksburg, VA
 
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Table of Contents
Table of Contents
[Ord. No. 08-04, 2-12-2008]
Terms and phrases, when used in this article, shall have the meanings ascribed to them in Code of Virginia § 10.1-560. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
AGREEMENT IN LIEU OF A PLAN
A contract between the department 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 department in lieu of a formal site plan.
APPLICANT
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.
BOARD
The Virginia Soil and Water Conservation Board.
CERTIFIED INSPECTOR
An employee or agent of the City who:
A. 
Holds a certificate of competence from the board in the area of project inspection; or
B. 
Is enrolled in the board's training program for project inspection and successfully completes such program within one year after enrollment.
CERTIFIED PLAN REVIEWER
An employee or agent of the City who:
A. 
Holds a certificate of competence from the board in the area of plan review;
B. 
Is enrolled in the board's training program for plan review and successfully completes such program within one year after enrollment; or
C. 
Is licensed as a professional engineer, architect, certified landscape architect or land surveyor pursuant to Article 1 (Code of Virginia § 54.1-400 et seq.) of Chapter 4 of Title 54.1.
CERTIFIED PROGRAM ADMINISTRATOR
An employee or agent of the City who:
A. 
Holds a certificate of competence from the board in the area of program administration; or
B. 
Is enrolled in the board's training program for program administration and successfully completes such program within one year after enrollment.
CITY EROSION AND SEDIMENT CONTROL PROGRAM and CITY PROGRAM
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 City ordinances, policies and guidelines, technical materials, inspection, enforcement, and evaluation.
CLEARING
Any activity which removes the vegetative ground cover including, but not limited to, root mat removal or top soil removal.
CONSERVATION PLAN, EROSION AND SEDIMENT CONTROL PLAN and PLAN
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 ensure that the entire unit of land will be so treated to achieve the conservation objectives.
DEPARTMENT
The department of building and development services.
DIRECTOR
The Director of the department of building and development services, or his designee.
EROSION AND SEDIMENT CONTROL PLAN or PLAN
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 and all information deemed necessary by the plan approving authority to assure the entire unit or units of land will be so treated to achieve the conservation objectives.
EROSION IMPACT AREA
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 one acre or less used for residential purposes or to shorelines where the erosion results from wave action or other coastal processes.
EXCAVATING
Any digging, scooping or other methods of removing earth materials.
FILLING
Any depositing or stockpiling of earth materials.
GRADING
Any excavating or filling of earth material or any combination thereof, including the land in its excavated or filled conditions.
LAND DISTURBING ACTIVITY
Any land change which may result in soil erosion from water or wind and the movement of sediments into state waters or onto lands of the state, including, but not limited to, clearing, grading, excavating, transporting, and filling of land, other than federal lands, except that the term shall not include:
A. 
Such minor land disturbing activities as home gardens and individual home landscaping, repair or maintenance work.
B. 
Individual utility service connections.
C. 
Installation, maintenance, or repair of any underground public utility lines where 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.
D. 
(Reserved)
E. 
Repair or rebuilding of tracks, rights-of-way, bridges, communication facilities and other related structures and facilities of a railroad company.
F. 
Disturbed land areas of less than 2,500 square feet in size.
G. 
Installation of fence or sign posts, telephone or electric poles, or other kinds of posts or poles.
H. 
Emergency work to protect life, limb or property, and emergency repairs; provided, however, that if the land disturbing activity would have required an approved erosion and sediment control plan were the activity not an emergency, the land area disturbed shall be shaped and stabilized in accordance with the requirements of the department.
I. 
Septic tank lines or drainfields unless included in an overall plan for land-disturbing activity relating to construction of the building to be served by the septic tank system.
J. 
Surface or deep mining activities authorized under a permit issued by the department of mines minerals and energy.
K. 
Exploration or drilling for oil and gas including the well site, roads, feeder lines, and off-site disposal areas.
L. 
Shoreline erosion control projects on tidal waters when all of the land disturbing activities are within the regulatory authority of and approved by local Wetlands Boards, the 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 and the regulations adopted pursuant thereto.
LAND DISTURBING PERMIT
The permit issued by the Director following approval of an erosion and sediment control plan and which authorizes land disturbing activities to commence.
OWNER
The owner of the freehold of the premises or lesser estate therein, a mortgagee or vendee in possession, an assignee of rents, receiver, executor, trustee, or lessee, or other person in control of a property.
PERMITTEE
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.
PERSON
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.
RESPONSIBLE LAND DISTURBER
An individual from the project or development team, who will be in charge of and responsible for carrying out land-disturbing activity covered by an approved plan or agreement in lieu of a plan, who:
A. 
Holds a responsible land disturber certificate of competence;
B. 
Holds a current certificate of competence from the board in the areas of combined administration, program administration, inspection, or plan review;
C. 
Holds a current contractor certificate of competence for erosion and sediment control; or
D. 
Is licensed in Virginia as a professional engineer, architect, certified landscape architect, or land surveyor pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1 of the Code of Virginia.
STATE EROSION AND SEDIMENT CONTROL PROGRAM and STATE PROGRAM
The program administered by the state soil and water conservation board, including regulations designed to minimize erosion and sedimentation.
STATE WATERS
All waters on the surface and under the ground wholly or partially within or bordering the commonwealth or within its jurisdiction.
SUBDIVISION
A division of a lot, parcel, or tract of land into two or more lots or parcels of less than five acres, for the purpose, whether immediate or future, of transfer of ownership; or any division of land upon which a street, alley, or public right-of-way is involved. The term includes resubdivision and, where appropriate to the context, shall relate to the process of subdividing or to the land subdivided.
TRANSPORTING
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.
[Ord. No. 08-04, 2-12-2008]
This article is enacted pursuant to Code of Virginia, § 10.1-560 et seq.
[Ord. No. 08-04, 2-12-2008]
A. 
The City of Fredericksburg hereby adopts the regulations, references, guidelines, standards and specifications promulgated by the Virginia Soil and Water Conservation Board pursuant to Code of Virginia § 10.1-560 et seq. for the effective control of soil erosion and sediment disposition 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. 
The City Council or its designee may revise the City's soil erosion and sediment control program from time to time, as necessary. Before any such revision, however, the City shall give due notice and conduct a public hearing on the proposed or revised regulations if the City proposes or revises regulations that are more stringent than the state program. The program and regulations shall be available for public inspection at the City Manager's office, City Hall, Fredericksburg, Virginia.
C. 
An erosion control plan shall not be approved until it is reviewed by a certified plan reviewer. Inspection of land-disturbing activities shall be conducted by a certified inspector. The Erosion Control Program of the City of Fredericksburg shall contain a certified program administrator, a certified plan reviewer, and a certified inspector, who may be the same person.
D. 
The City of Fredericksburg hereby designates the department of building and development services as the plan-approving authority.
E. 
A responsible land-disturber will be designated prior to any land-disturbing activity. The Director may waive this requirement where an agreement in lieu of a plan is accepted by the department.
F. 
The department shall make the program and regulations provided for in this chapter available for public inspection.
[Ord. No. 08-04, 2-12-2008]
The City shall charge applicants an administrative fee to defray the cost of program administration, including costs associated with the issuance of land disturbing permits, plan review, and periodic inspection for compliance with erosion and sediment control plans, provided that charges for such costs are not made under any other law, ordinance or program. The fee shall be established by City Council through the adoption of a resolution after a public hearing.
[Ord. No. 08-04, 2-12-2008]
A. 
Required; exemptions. No person may engage in any land disturbing activity until such person has submitted five copies of an erosion and sediment control plan for the land disturbing activity and the plan has been reviewed and approved and a permit issued by the Director. This section shall not apply to any agency of the commonwealth or other entity exempted from local regulation by Code of Virginia, § 10.1-560 et seq.
B. 
Review and approval. The Director shall review conservation plans submitted to him and grant written approval in the form of a land disturbing permit within 45 days of the receipt of the plan if he determines that the plan meets the requirements of the City's erosion and sediment control program 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.
C. 
Notice of disapproval. When the Director determines that a plan is inadequate, he shall send a written notice of disapproval stating the specific reasons for disapproval to the applicant within 45 days. The notice shall specify such modifications, terms, and conditions that will permit approval of the plan. If no action is taken by the Director within the time specified in this subsection, the plan shall be deemed approved and the person authorized to proceed with the proposed activity.
D. 
Modification. An approved plan may be changed by the Director in the following cases:
(1) 
Where inspection has revealed that the plan is inadequate to satisfy applicable regulations; 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 Director and the person responsible for carrying out the plan.
E. 
Conservation plan. In order to prevent further erosion, the Director may require submission and approval of a conservation plan for any land identified by the City as an erosion impact area.
F. 
Responsibility of property owner when work done by contractor. For the purposes of Subsections A and B of this section, 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.
[Ord. No. 08-04, 2-12-2008]
A. 
It shall be unlawful for any owner of land in the City to willfully suffer or permit any portion of the landowner's non-agricultural land to remain disturbed in such condition as to allow soil erosion and sedimentation, therefore causing reasonably avoidable damage or harm to public and/or private property, roads, or waters.
B. 
The Director shall notify the owner of any land upon which such condition exists and require the owner to submit an erosion and sediment control plan for such existing land disturbing activity. After such plan has been prepared, it shall be submitted to the Director, reviewed and approved or disapproved in accordance with this article.
C. 
Once such a plan has been approved, the Director shall require the owner to install and maintain the control measures prescribed therein. If the owner fails or refuses to submit an erosion and sediment control plan to the Director of Building and Development Services or if the owner fails or refuses to begin implementation of the control measures required by the approved erosion and sediment control plan, the owner shall be deemed to be in violation of the provisions of this section and subject to the penalties described in § 78-1318.
[Ord. No. 08-04, 2-12-2008]
A. 
The Director, prior to the issuance of a land disturbing permit, shall receive written certification from the person responsible for carrying out the plan that he will properly perform the conservation measures included in the plan and will conform to the provisions of this article.
B. 
The Director, prior to the issuance of a land disturbing permit, shall approve and receive a reasonable performance bond with surety, cash escrow, letter of credit, any combination thereof, or such other performance guarantee acceptable to the City Attorney, to ensure that measures could be taken by the City, at the applicant's expense, if the applicant should fail, after proper notice, within the time specified, to initiate or maintain appropriate conservation action which may be required of him by the approved plan as a result of his land disturbing activity. 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 City and a reasonable allowance for estimated administrative costs and inflation which shall not exceed 25% of the estimated cost of the conservation action. If the City takes such conservation action upon such failure by the permittee, the City may collect from the permittee the difference, should the amount of the reasonable cost of such action exceed the amount of the security held. Within 60 days of the achievement of adequate stabilization of the land disturbing activity, such bond, cash escrow, letter of credit or other legal arrangement, or the unexpended or unobligated portion thereof, shall be refunded to the applicant or terminated. These requirements are in addition to all other provisions of this article relating to the issuance of such permits and are not intended to otherwise affect the requirements for such permits.
C. 
Upon the submission of any proposed cash escrow or any other performance guarantee except letters of credit or performance bonds, the applicant shall pay a nonrefundable administrative fee of $200 to the department to offset the City's legal and administrative costs. Approval of such alternative security shall be granted by the City Attorney only upon his determination that such alternative security affords protection to the City equivalent to a corporate surety's bond.
[Ord. No. 08-04, 2-12-2008]
Any agency, officer, board, or commission of the City authorized by law to issue grading, building, or other permits for activities involving land disturbing activities shall not issue any such permit unless the applicant submits with his application a copy of the land disturbing permit issued by the Director for such land disturbing activities.
[Ord. No. 08-04, 2-12-2008]
If a permit is issued by the Director in connection with land disturbing activities, he, or his authorized representative shall make periodic inspections of the land disturbing activity and may require monitoring and reports from the person responsible for carrying out the plan, to ensure compliance with the approved plan and to determine whether the measures required in the plan are effective in controlling erosion and sediment. The owner, occupier or operator shall be given notice of the inspection and an opportunity to accompany the inspectors. If the Director 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. 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 time specified, 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 article and subject to the penalties provided by § 78-1318.
[Ord. No. 08-04, 2-12-2008]
A. 
Upon receipt of a sworn complaint from the certified inspector that a substantial violation of this article has occurred, the Director may, in conjunction with or subsequent to a notice to comply, as specified in § 78-1313 or 78-1316, 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 § 78-1312, requiring that all of the land-disturbing activities be stopped until an approved plan or any required permits are obtained.
B. 
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 in any case where 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. Otherwise, such an order may be issued only after the alleged violator has failed to comply with such a notice to comply.
C. 
The order shall be served in the same manner as a notice to comply, and shall remain in effect for seven days from the date of service pending application by the City or the alleged violator for appropriate relief to the circuit court of the City.
D. 
If the alleged violator has not obtained an approved plan or any required permits within seven days from the date of the service of the order, the Director 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 certified mail to the address specified in the permit application or the land record of the City. The owner may appeal the issuance of an order to the circuit court of the City.
E. 
Any person violating or failing, neglecting or refusing to obey an order issued by the Director may be compelled in a proceeding instituted in the circuit court of the City to obey same and to comply therewith by injunction, mandamus or other appropriate remedy.
F. 
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 from taking any other action specified in § 78-1318.
[Ord. No. 08-04, 2-12-2008]
Final decisions of the Director under this article shall be subject to review by the Fredericksburg Circuit Court, 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.
[Ord. No. 08-04, 2-12-2008]
A. 
Any person who fails to comply with an approved or an approved modified plan shall, upon a finding of the district court of the City, be assessed a civil penalty of $250.
B. 
Any person who undertakes a land disturbing activity without an approved plan shall, upon a finding of the district court, be assessed a civil penalty of $1,000.
C. 
Any person who continues or permits to continue a land disturbing activity after the issuance of a valid, pending stop work order, shall, upon a finding of the district court, be assessed a civil penalty of $1000.
D. 
Each day during which the violation is found to have existed shall constitute a separate offense.
E. 
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 $10,000.
F. 
The Director, acting on behalf of the City, may apply to the circuit court of the City to enjoin a violation or a threatened violation of this article without the necessity of showing that an adequate remedy at law does not exist.
G. 
In addition to any civil penalties provided for under this article, any person who violates any provision of this article may be liable to the City in a civil action for damages.
H. 
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.
I. 
With the consent of any person who has violated or failed, neglected or refused to obey any condition of a permit issued pursuant to this article or any provision of this article, the City may provide, in an order issued by the Director against such person, for the payment of civil charges for violations in specific sums, not to exceed the limit specified in Subsection E of this section. Such civil charges shall be instead of any appropriate civil penalty which could be imposed under Subsections A, B, C, D and H of this section.
J. 
(Reserved)
K. 
Upon request of the Director, the commonwealth's attorney shall take legal action to enforce the provisions of this article.
L. 
Compliance with the provisions of this article 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.