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1998-02-11February 11, 1998 (Regular Day Meeting) (Page 1) 000299 A regular meeting of the Board of Supervisors of Albemarle County, Virginia, was held on February 11, 1998, at 7:00 p.m., Room 241, County Office Building, McIntire Road, Charlottesville, Virginia. PRESENT: Mr. David P. Bowerman, Ms. Charlotte Y. Humphris, Mr. Forrest R. Marshall, Jr., Mr. Charles S. Martin, Mr. Walter F. Perkins and Ms. Sally H. Thomas. ABSENT: None. OFFICERS PRESENT: County Executive, Robert W. Tucker, Jr., County Attorney, Larry W. Davis, and County Planner, V. waYne Cilimberg. Agenda Item No. 1. The meeting was called to order at 7:00 p.m., by the Chairman, Mr. Marshall. Agenda Item No. 2. Pledge of Allegiance. Agenda Item No. 3. Moment of Silence. Agenda Item No. 4. Public. There were none. Other Matters Not Listed on the Agenda from the Agenda Item No. 5. Consent Agenda. Motion was offered by Ms. Humphris, seconded by Mr. Bowerman, to approve Items 5.1 through 5.4, and to accept the remaining items as information. Roll was called and the motion carried by the following recorded vote: AYES: NAYS: Ms. Humphris, Mr. Marshall, Mr. Martin, Mr. Perkins, Ms. Thomas and Mr. Bowerman. None. Item No. 5.1. Resolution Amending the Service Agreement of the Albemarle-Charlottesville Regional Jail Authority. The Albemarle-Charlottesville Regional Jail Authority Service Agreement was reviewed by the Authority's financial advisor and attorney in preparation for the Authority's plans to issue bonds to pay for the expansion of the jail. They have recommended that several provisions of the service agreement be amended to facilitate the sale of the bonds and to secure the most favorable terms. The proposed amendments modify how the City and County make the per diem payments and specifies that the City and County will be responsible for the total debt service even if additional jurisdictions join the Jail Authority. The City and County share of debt service would be offset by payments of the debt service of any future members. This debt service arrangement allows the bonds to be marketed based solely upon the financial strengths of the City and County. The proposed amendments have been reviewed by the Director of Finance and County Attorney. The Jail Authority requests that the amendments be approved. City Council is scheduled to consider this request at a February meeting. Staff recommends that the Board adopt the attached Resolution to Amend the Service Agreement of the Albemarle-Charlottesville Regional Jail Author- ity. Ms. Thomas said this seems to be a major thing. She would like to have some reassurance that the County should do this because essentially the City and County is shouldering the debt, at the same time the Jail is getting a third jurisdiction. Mr. Tucker said this is something the County has been discussing for some time, but had waited for a decision from the City before moving forward. The City has now agreed. Mr. Davis said the service agreement assures that the debt service payment would be made on a quarterly basis. Any jurisdiction that was a 000300 February ll, 1998 (Regular Day Meeting) (Page 2) member of the Authority would be paying into the debt service and the obliga- tion of the City and County would be credited for the amount of money that would be paid in by other participating jurisdictions. The idea is that it would be easier to get the best bond rating based on Charlottesville's and Albemarle's ability to pay rather than on other unknown jurisdictions that might join in the future. According to the financial advisor, that way when these bonds are floated, for the next 20 years, we will be in better shape. Mr. Tucker said the most substantive change in the agreement except for financial reasons, is the bond issue. That is basically the only reason the change was made. By the above shown vote, the Board adopted the following resolution: RESOLUTION AMENDING THE SERVICE AGREEMENT ALBEMARLE-CHARLOTTESVILLE REGIONAL JAIL AUTHORITY Be it Concurrently Resolved by the Albemarle-Charlottesville Regional Jail Authority, the Board of Supervisors of Albemarle County, and the City Council of the City of Charlottesville: I. RECITALS The ALBEMARLE-CHARLOTTESVILLE REGIONAL JAIL AUTHORITY (hereafter the "Authority") and the COUNTY OF ALBEMARLE and the CITY OF CHARLOTTESVILLE, political subdivisions of the Commonwealth of Virginia (collectively the "Member Jurisdictions") have previously approved and executed a Service Agreement dated November 15, 1995, (the "Service Agreement"), creating the Authority and specifying the terms and conditions under which (1) the Authority will operate the Albemarle-Charlottesville Regional Jail (the "Jail") and (2) the Member Jurisdictions will commit prisoners to the Jail and pay the charges assessed by the Authority for keeping such prisoners. In preparing to issue bonds to fund the cost of the improve- ments planned for the Jail, the Authority has determined that certain amendments to the Service Agreement are necessary and appropriate to secure the most favorable terms for the sale of such bonds, and has approved and recommended these amendments to the Member Jurisdictions. Now, therefore, in consideration of the mutual benefits and obligations described in the amended sections, the parties agree to amend the Service Agreement as follows: II. AMENDMENTS Section 5.1 of the Service Agreement is deleted in its entirety and replaced with the following: Section 5.1 Payments from Member Jurisdictions (a) Per Diem Prisoner Payments. (1) In preparing its Annual Budget, the Authority shall establish a per diem charge for the care, maintenance and subsistence of Prisoners from Member Jurisdictions during the next Fiscal Year. This per diem charge shall consist of two compo- nents, including an Operating Component, and a prisoner-based Debt Service Component. The Operating Component shall be calculated to pro- duce revenues that equal the Authority's pro- jected Net Operating Expenses for such Fiscal Year and the Debt Service Component shall be calculated to produce revenues equal to the portion of the Authority's Net Debt Service for such Fiscal Year includable in such per diem charge under the provisions of subsection © of this section. Such per diem charge will be adjusted by the Authority periodically as pro- vided in Section 4.7. The Operating Component shall be invoiced by the Authority to the Member Jurisdictions not later February 11, 1998 (Regular Day Meeting) (Page 3) 000,.20::!. than the 15th day of the month followin9 the month in which the service was provided. The Member Jurisdictions shall pay the amount in- voiced not later than the last day of the month in which billed. (3) The Debt Service Component shall be invoiced quarterly by the Authority and shall be payable no later than the last day of the first month of each quarter beginning in July 1999 ( or such earlier or later date as to which debt service on the Authority's Bonds and Notes has been capital- ized). To facilitate the successful financing of the Jail, The Member Jurisdictions agree to advance their ratable shares of the Debt Service Component as budgeted by the Authority in accor- dance with the percentages established annually as set forth in this Section notwithstanding the actual number of Prisoners committed or expected to be committed to the Jail, subject to later adjustment to reflect actual use of the Jail as provided in paragraph (a) (3.1) of this section. (3.1) The Debt Service Component percentages shall be adjusted each Fiscal Year to approximate the actual proportionate use of the Jail by the Member Jurisdictions as of the end of the immediately preceding calen- dar year; provided, however, the percent- ages to be paid by Albemarle County and the City of Charlottesville shall at no time equal in the aggregate less than one hun- dred percent (100%) of the Debt Service Component payment for the Fiscal Year in question, and provided further that the advance payment of the Debt Service Compo- nent requested from Albemarle and Char- lottesville for each quarter shall reflect a credit (applied in proportion to their respective usages) for the amounts actually received from other Member Jurisdictions, if any, during the preceding quarter. (4) If not paid when due, the Per Diem Charge and Additional Payments for Debt Service provided in subsection (b) below shall bear interest at the rate established under Section 11-62.10 of the Code of Virginia until paid; provided, however, that this provision shall not apply in instances where applicable law prescribes some other due date or late payment charge. (5) Within sixty (60) days of the end of the each Fiscal Year, the Authority shall adjust the Debt Service Component for each Member Jurisdiction to reflect the amount each Member should have paid during such year based upon actual proportionate use of the Jail and compare it to the amount paid by each Member. Any Member Jurisdiction which has underpaid shall be~ billed by the Authority for the amount of the shortfall. Any Member Jurisdiction that has overpaid shall be entitled to a credit in the amount of such overpayment to be applied against the next Debt Service Compo- nent payment due from such Member; provided, however, no Member shall be entitled to a full credit until such time as the Authority has received payment of all underpaid amounts. In the event the Authority receives a portion but not all of the payments due for underpaid bills, the Authority shall apply the amount received ratably as a partial credit to Members that overpaid. February 11, 1998 (Regular Day Meeting) (Page 4) (b) Additional Payment for Debt Service. 000 0; In addition to the Per Diem Charges for their respective prisoners, Albemarle and Charlottesville each shall pay, in equal shares, an amount sufficient in the aggregate to fund 100% of that portion of the Authority's Net Debt Service not being included in the Authority's Per Diem Charge as provided in subsection © of this section. Any other Member Jurisdiction shall likewise pay a percent- age of such portion of Net Debt Service not included in the Per Diem Charge, with such percentage being estab- lished at the time the additional Member Jurisdiction joins the Authority. These Additional Payments for Debt Service shall be paid by the Member Jurisdictions quarterly on the same schedule as the Debt Service Component of the Per Diem Charge becomes due, provided that the Additional Payment for Debt Service requested from Albemarle and Charlottesville for each quarter shall reflect a credit (applied in equal shares) for the amounts of such Additional Payments for Debt Service actually received from other Member Jurisdictions, if any, during the preceding quarter. © Method for Allocating Debt Service Costs. The Authority's Net Debt Service costs shall be allo- cated between the Debt Service Component of the per diem rate charged to the Member Jurisdictions and the Additional Payments for Debt Service in the following manner: (i) Upon the awarding of a contract or contracts for construction of any addition or improvements to the Jail or replacement for the Jail, the chief administrative officers of the Member Jurisdic- tions shall determine the relative proportions of the total projected Capital Expenses for such project that are attributable respectively to (I) the construction or improvement of cells or other prisoner housing areas and (ii) the construction or improvement of administrative, program and support areas. The relative proportions of Capital Expenses for these two categories shall be expressed as percentages. In the event the chief administrative officers are unable to agree on this allocation, the dispute shall be resolved by majority vote of all members of the Authority, whose determination shall be binding. (2) Collection of the Authority's Net Debt Service for the project shall then be accomplished through the Debt Service Component of the Per Diem Charge and the Additional Payment for Debt Service in the same proportions, so that the Net Debt Service attributable to cells or prisoner housing space is collected through the Per Diem Charge, and the Net Debt Service for other parts of the project is collected from the Member Jurisdictions in equal shares. For example, if 65% of the total Capital Expense is determined to be attributable to the cells and prisoner housing areas, then the Per Diem Charge for Member Juris- dictions shall be calculated to include 65% of the annual Net Debt Service, with the remaining 35% of Net Debt Service being collected equally from the Member Jurisdictions through the Addi- tional Charges for Debt Service. (d) Payment for Costs of Discontinued Capital Project. If for any reason any capital project previously approved by the Member Jurisdictions is not constructed, the Member Jurisdictions shall reimburse the Authority, February 11, 1998 (Regular Day Meeting) (Page 5) 000303 in shares determined as provided in paragraph (b) of this section, for any Capital Expenses the Authority has already incurred in connection with such discontinued project; provided, however, that the payment required by any Member Jurisdiction under this subsection will be subject to the appropriation of funds for such purpose by the governing body of the Member Jurisdiction. (e) Additional Payments to Cover Debt Service Shortfalls. After the issuance of the Bonds, if the Authority lacks sufficient funds to pay scheduled debt service on the Notes, the Authority will promptly notify the Member Jurisdictions of the amount of such insufficiency. Upon such notification, the Member Jurisdictions each agree to pay, subject to the conditions contained in this paragraph, a portion of such deficit equal to its Debt Service Component percentage then in effect pursuant to Section 5.1 (a) (3). Any such payment under this paragraph will be subject to the appropriation of funds by the governing body of each Member Jurisdiction and shall constitute a moral, non-binding payment obliga- tion. The obligations of the Members under this paragraph shall expire only upon the payment of the Notes. In no event shall the obligation of any Member Jurisdiction under this paragraph (e) or the immediately preceding paragraph (d) be deemed to constitute a debt within the meaning of the Constitution of Virginia. Paragraph (b) of Section 6.6 of the Service Agreement is deleted in its entirety, and paragraph © thereof is re-numbered as paragraph (b). C. In all other respects the Service Agreement shall remain in full force and effect. III. EXECUTION OF AMENDED AGREEMENT Upon adoption of these amendments by the Member Jurisdictions and the Authority, their respective chief administrative officials are authorized to execute a conformed copy of the entire Service Agreement, incorporating the foregoing amendments into the original document. Adopted by the Albemarle-Charlottesville Regiona~ Jail Authority: Attested: Date: Adopted by the Board of Supervisors of Albemarle County: Attested: Date: Adopted by the City Council of the City of Charlottesville: Attested: Date: Item No. 5.2. Legislative Proposal to Provide for State Reimbursement of Localities for School Construction and Renovation Projects. Loudoun County, Virginia, is seeking support for a legislative proposal that would provide for a 50 percent reimbursement to localities for school construction and renovation projects. The proposed legislation would provide February 11, 1998 (Regular Day Meeting) (Page 6) for the Commonwealth to reimburse localities for one half of the capital costs of a school construction, enlargement, or renovation project based on State standards. Site acquisition, site development, and furnishings and fixtures would not be included in the reimbursement formula, nor would it include the facility costs that exceeded the State standard. Loudoun is asking the County to support this legislative initiative and to endorse a similar legislative proposal. A copy of Loudoun's request and the resolution endorsed by their Board of Supervisors are included as Attachment A (copy on file). Staff has developed a legislative proposal similar to that adopted by Loudoun County. The content of the proposal, which is included as Attachment B, has been adapted to fit Albemarle, and some statistics have been included on education funding in Virginia. The missing data on the potential reimburse- ment for Albemarle County (to be included at the bottom of page one of the proposal) will be provided to the Board by staff on Wednesday, February 11. Staff requests approval of the attached legislative proposal to provide for state reimbursement of localities for school construction and renovation projects. Mr. Tucker referred to Attachment B. He said the last bullet, on page 1, should read: ~The potential reimbursement for Albemarle County could range between $9.75 million to $10.25 million, at a minimum, over the next five years." By the above shown vote, the Board approved the following legislative proposal: Legislative Proposal to Provide for State Reimbursement of Localities for School Construction and Renovation Currently, the State provides some funding to localities for the operation of schools. In FY 1996/97, the Commonwealth provided approximately 36.3% of total education revenues ($2.3 billion), while localities in Virginia contributed 58% ($3.7 billion) of total education receipts. Virginia is considerably lower than the national average in this regard, where, on average, 48.9% of education funds were provided by state governments and 44.2% were funded by local sources. Virginia also ranks last in terms of State receipts among Southeastern states, where, in FY 1996/97, state governments provided an average of 53.6% of education revenues and 38.2% came from localities. (NEA, 1997) At this time, however, localities in Virginia are totally responsi- ble for the cost of constructing new schools, or their renovation. Virginia is one of only a handful of states that does not provide direct grant funds to localities for either capital needs or debt service expenditures. (Gold, et al, 1995) Although the Common- wealth provides assistance in the form of loans, it is one of only eight states across the nation to do so. (GAO, 1995) Within the Southeastern region, nine states provide grant or other direct cash funding assistance for capital needs, including Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee, and West Virginia. Only Arkansas, Virginia and Louisiana do not. (Gold, et al, 1995) This proposal would encourage legislation to be passed that would change the basic funding responsibilities between the State and localities for school construction. The basic elements of this proposal include: Provide for the Commonwealth to reimburse any city or county for one half of the capital costs of a school construction, enlarge- ment or renovation project upon approved standards by the Commonwealth. (Reimburse direct facility costs.) Site acquisition, site development, and furnishings and fixtures would not be part of the reimbursement formula. (Land acquisi- tion, site development and interior fit out would be the responsibility of the locality.) February 11, 1998 (Regular Day Meeting) (Page 7) 000,305 The Commonwealth would need to adopt facility standards for various size schools. Renovations would be reimbursed where a facility is being brought up to the State standards. The potential reimbursement for Albemarle County could range between $9.75 million to $10.25 million, at a minimum, over the next five years. For debt financed projects, this program would have a positive impact on the County's net debt capacity. No revenue source is suggested as being attributed to this initiative at this time. Item No. 5.3. Response to Library Board on Request to Retain FY 1996/97 Carryover Funds. By agreement, the Jefferson Madison Regional Library is required to return any unused carry-over funds to the localities if that amount exceeds five percent of their budget. For FY 1996/97, the amount of carry-over owed to Albemarle County is $44,438. The Library Board has requested that it be allowed to retain the $44,438 to be applied to Albemarle County's share of the library's proposed automation upgrade. For several reasons, staff would prefer to have the Library remit the carry-over funds as required, so the County can retain the ability and flexibility to apply it to future Library needs in the Capital Improvement Program. First, the County was unable to fund the Library's full CIP FY 1999 request for both the automation upgrade and maintenance and repair. Of the computerization request for $590,717, the County was only able to budget $300,000 leaving $290,717 of their original request unfunded. For the library's maintenance and repair capital request, the County was not able to fund $37,000 in FY 1999, $10,000 in FY 2001 and $46,000 in FY 2001. Second, it is our understanding that the automation plan is being reviewed again by both the Library Board and its staff to determine if the costs can either be reduced or spread out across several years through a phase in process or possible lease payments over the next several years. This would make the total project more affordable to all the localities. In light of the fact that the automation plan has not been finalized, staff would like the opportunity to review the revised automation plan before committing an additional $44,438 to the project. The carry-over funds could be committed to future CIP Library projects, but the County would have more discretion over the amount and sequencing of those future funds. Staff would also be able to track the expenditure of those funds as CIP Library projects, not operating costs in a previous fiscal year budget. When the full costs and time frame for the automation plan are finalized, we will have a better sense of how the County's $44,438 carry-over funds should be used. If the Board agrees, staff will prepare a letter to George Tramontin, Chairman of the JMRL Board, requesting the return of the FY 1996/97 carry-over funds to be used for future Library needs in the CIP. By the above shown vote, the Board agreed with staff's recommendation to request the return of the FY 1996/97 carryover funds to be used for future Library needs in the CIP. Item No. 5.4. Reappoint John Miller to the James River Alcohol Safety Action Program Board. Chief Miller currently serves as Albemarle County's appointee to the James River Alcohol Safety Action Program Board and his term expired in early January of this year. Staff recommends that Chief Miller be reappointed to serve on the ASAP Board for our jurisdiction effective retroactive to January 1, 1998 for a three-year term. By the above shown vote, the Board reappointed John Miller to the James River Alcohol Safety Action Program, with term to expire on January 1, 2001. February 11, 1998 (Regular Day Meeting) (Page 8) O0080G Item No. 5.5. Copy of letter dated January 20, 1998, from Mr. J. T. Mills, State Location and Design Engineer, Department of Transportation, regarding the North Grounds Connector (Proj: RUVA-002-101, PE-101), was received for information. The memorandum states that the Commonwealth Transportation Board, on January 15, 1998, rescinded the approved design for the above referenced project as approved by the CTB on April 17, 1997. This approval included the North Grounds Connector as a road no wider than 33'-0" to curb with appropri- ate right of way for that roadway section. Based on a request from the University of Virginia by letter dated December 17, 1997, the CTB has approved the North Grounds Connector road design as a four-lane divided roadway as presented at the public hearing. Ms. Humphris said at one time there was quite a discussion involving some representatives of the University who did not want a four-lane divided North Grounds connector going by the Darden and Law Schools. That was changed to three lanes. Now a letter has been sent from the University to the CTB asking that this be changed from three lanes back to four lanes. She has not yet received a copy of the letter. It also seems that the resolution Mr. Mills, of VDOT, sent the Board is not the final resolution that was adopted by the CTB. The resolution the Board received does not show the name of the persons who moved and seconded the resolution. The resolution also has two additional paragraphs in which one states that this four lane divided roadway should have appropriate consideration as to noise abatement along with heavy landscaping on its margins and medians. She believes that VDOT is not interested in helping with noise abatement or heavy landscaping when there is a road proposed to come within 150 feet of Greer School, to name one example. Ms. Humphris said she has found out that the entire last paragraph of the final resolution has been removed because this provides for a future connector road to the University's Montesano property. Mr. Cilimberg confirmed with her that it won't be a through road because the special permit under which UREF's Montesano property operates states that there will be no through connection from the North Grounds to Old Ivy Road. She thinks the Board needs to get the correct information so that it will be in our records. Ms. Humphris said she would like for the Board to have a copy of the University of Virginia's letter. Mr. Cilimberg said staff has asked VDOT to send the County a copy of the final adopted resolution. Item No. 5.6. Copy of minutes of the Albemarle-Charlottesville Regional Jail Authority Board meeting of December 11, 1997, was received for informa- tion. Item No. 5.7. Copy of memorandum dated January 20, 1998, from Mr. Paul J. Muhlberger, Recycle Program Coordinator, to Mr. Bill Mawyer, Director of Engineering and Public Works, re: Spring 1998 Bulky Waste Proposed Budget, was received for information. Ms. Thomas said the bulky waste days have been very popular projects. She did receive a suggestion from a constituent, who is a trash hauler, that the County look into having a two week free period at the landfill twice a year, something other than the different locations that requires a lot of manpower. Mr. Bill Mawyer, Director of Public Works and Engineering, said staff wanted to reach out into the more remote areas of the County rather than asking people to come to the Landfill in Ivy. These locations allowed for a better opportunity to dispose of their waste. Item No. 5.8. Copy of memorandum, re: Strategies to Address the FY 1997- 9 Revenue Shortfall in the School Division, was received for information. Item No. 5.9. Copy of Planning Commission minutes for January 27, 1998, was received for information. February 11, 1998 (Regular Day Meeting) (Page 9) 0OO,3O7 Agenda Item No. 6. ZMA-97-08. Minor Amendment to Glenmore PRD (Sign #96&97). PUBLIC HEARING on a request to rezone 11 acs from RA to PRD to add acreage to Glenmore PRD, change max number of units from 764 to 775 & modify Gen'l Conditions. Znd RA. Loc at end of Ashton Rd approx 2700' from inter w/Rt 250 E & Glenmore Way. TM94,P50 to be added to Ps93Al-l,93-61,61A,&61B. [The property is designated for Neighborhood Density 3-6 du/ac in the Village of Rivanna in the Comp Plan.] Rivanna Dist. (Advertised in the Daily Progress on January 26 and February 2, 1998.) Mr. Cilimberg summarized the request which is on file in the Clerk's office and a permanent part of the record. This request meets most of the Comprehensive Plan objectives for that area. Staff has reviewed the proposal for any impacts on nearby and surrounding properties, traffic, public utili- ties and schools. No impact on nearby and surrounding properties is antici- pated because the subject properties are already surrounded by Glenmore and this proposal would allow the properties to be further developed in keeping with the Glenmore Plan. The requested changes for the Glenmore development are reasonable requests for additional acreage and the ability to better utilize areas for development within the boundaries of the PRD. The land use is in keeping with the Comprehensive Plan. While the proposed rezoning does not meet the Comprehen- sive Plan proposed density, it is consistent with the character of the existing Glenmore development. Staff recommends approval of the proposed rezoning and modifications of existing proffers for the Glenmore PRDo Mr. Cilimberg said the Planning Commission, at its meeting on January 13, 1998, unanimously recommended approval of ZMA-97-08 subject to acceptance of proffers as outlined in Attachment D of the staff report (copy on file). Mr. Marshall opened the public hearing. Present on behalf of Glenmore Associates, Mr. Don Franco, representing the Kessler Group, said he had nothing to add to Mr. Cilimberg's presentation. He would be happy to answer questions from Board members. Since there were no questions for Mr. Franco, and no one else rose to speak, Mr. Marshall closed the public hearing. Motion was offered Mr. Martin, seconded by Ms. Humphris, to approve ZMA-97-08 subject to the applicant's proffers, dated August 28, 1997 (set out below). Mr. Bowerman said, for the record, his company has a business relationship with Glenmore Associates Limited Partnership which will probably have a substantial amount of equipment sales this year. According to the Common- wealth's Attorney, this issue does not present a technical conflict of interest to him. He does not believe he has a conflict of interest in this and he does not believe in any way his vote on this matter would be prejudiced by the statement he just made. He will hear the request and he will vote on it. Roll was then called and the motion carried by the following recorded vote: AYES: NAYS: Ms. Humphris, Mr. Marshall, Mr. Martin, Mr. Perkins, Ms. Thomas and Mr. Bowerman. None. PROFFER FORM Date: 8/28/97 ZMA: #97-08 Tax Map parcels (s) #TM93A1, Parcel 1 TM93 Parcels 61&6lB, TM94-50, 93-61A 11.041 Acres to be rezoned from RA to PRD Pursuant to Section 33.3 of the Albemarle County Zoning Ordinance, the owner, or its duly authorized agent, hereby volun- tarily proffers the conditions listed below which shall be applied to the property, if rezoned. These conditions are proffered as a part of the requested rezoning and it is agreed that: (1) the rezoning itself gives rise to the need for the conditions; and (2) February 11, 1998 (Regular Day Meeting) (Page 10) 000;308 such conditions have a reasonable relation to the rezoning re- quested. The development of the Property will be limited to those uses allowed by right under Section 19.3.1 (1), (5), (6), (7), (8), (9) and (10) of the Zoning Ordinance of Albemarle County, Virginia (hereinafter referred to as the Zoning Ordinance) as that Section is in effect on April 16, 1997, with a residen- tial development not to exceed 775 single family units together with a site for a school, and a site for a fire house, either of which sites may be used for other public use facilities, and development of a private country club and recreational facilities including but not limited to tennis, swimming, a golf course with related club house, and eques- trian center. To be excluded from use by right or special use permit under the Zoning Ordinance are Section 19.3.1 (2) and (3); and Section 19.3.2 (1), (3), (5), (6) and (7). 2 o Upon the request of Albemarle County, Virginia, to donate by · gift to Albemarle County or its designee, subject to items of record affecting title, for a public school or other public use facilities as the County may select a parcel of approxi- mately 27.0 acres as shown on the Application Plan for Glenmore made by Clower Associates, Inc., dated November 2, 1990, together with an appropriate right of way, provided owner may require reasonable visual screening/buffering of the 27 acres. Upon the request of Albemarle County, Virginia, to donate by gift to Albemarle County or its designee, subject to items of record affecting title, for a fire department or other public use facilities as the County may select a parcel of approxi- mately 6.0 acres as shown on the Application Plan for Glenmore made by Clower Associates, Inc. dated November 2, 1990, together with an appropriate right of way, provided owner may require reasonable visual screening/buffering of the six acres. At the time of closing of the sale of each residential lot or the issuance of a certificate of occupancy for each residen- tial lot, whichever first occurs, to contribute $1000.00 to an escrow fund to be established by Albemarle County for (1) a school capital improvement fund for use by Albemarle County to either expand the capacity of Stone Robinson Elementary School or to construct a new school on the site described in para- graph 2 of this proffer, or (2) the costs, including any awards to the owner of the mineral rights for the property described in paragraphs 2 and 3 of this proffer, or (3) other items in the Albemarle County Capital Improvement Program (C.i.P.) related to this project (Glenmore) or to other items not normally included in C.I.P. directly related to this project (Glenmore). These funds shall be held by the County in an interest bearing account with an annual accounting to the owner. All interest earned on the account shall be used for the same purposes as the original $1000.00 contribution. It is requested that Frank A. Kessler or his family be consulted in connection with naming of any facilities for which these funds are used. 5o To provide water and sewer collection, distribution and treatment facilities at the owner's expense for the residen- tial lots in Glenmore and private club and to dedicate such facilities to the Albemarle County Service Authority and/or the Rivanna Service Authority. These facilities are to be built at no cost to the taxpayers of Albemarle County or to the customers of the Albemarle County Service Authority. 6 o To reserve along the boundary of the Property adjacent to the Rivanna River a 100 foot wide green belt. No buildings shall be constructed, or erected within the green belt without the consent of Albemarle County and it shall be preserved in its natural state except for building of pedestrian and riding February 11, 1998 (Regular Day Meeting) (Page 11) 000 09 trails and general beautification including but not limited to the clearing of underbrush, removal of dead trees and shrubs, and cleanup of the river. The owner may grant across the green belt utility casements, access easements to the Rivanna River for residents of Glenmore and members and guests of the private country club and may build riding trails or make similar uses of the area. At such time as the County of Albemarle decides to establish along the Rivanna River a public area or park, the 100 foot wide green belt area, upon the request of Albemarle County, will be conveyed by gift and dedicated to the County, provided the uses allowed for utilities, accesses to the river, and riding trails, etc. are reserved in the deed of gift and provided further that the green belt area will continue to be counted as open space for the purposes of the Glenmore Master Plan and required density. The green belt may continue to be maintained by the owner of the property, however in the absence of such maintenance Albemarle County at its option may maintain the 100 foot wide green belt. (a) Road A as shown on the Application Plan of Glenmore made by Clower Associates, Inc. dated November 2, 1990 shall be built at time of residential lot development to VDOT standards and placed in the State Secondary System from U.S. Route 250E to Point A as shown on the aforesaid Application Plan of Glenmore. (b) Upon request of Albemarle County, Virginia, to dedicate as right-of-way for public road purposes (I) a strip of land not to exceed sixty (60) feet in width from Point A to Point B as Shown on the aforesaid Application Plan of Glenmore and (ii) an existing strip of land of variable width owned by the owner from Point B to Point C as shown on the aforesaid Application Plan of Glen- more. © To construct a road to VDOT standards from Point C extending through the northeastern portion of the development in a location and with a termination point to be determined by the owner. It is intended that this roadway shall provide access to properties northeast of Glenmore in at least one location. To dedicate at such time as owner may select or upon request of Albemarle County, Virginia, whichever first occurs, the road described in this paragraph, 7(c), together with a right- of-way, including the built road, not to exceed 60 feet in width. (a) To construct within the existing right-of-way of U. S. Route 250E and if necessary partially on the property currently owned by owner an ultimate entrance to serve Glenmore. This shall be constructed at the time of initial residential lot development in Glenmore or at a later date if approved by VDOT. (b) To install upon the request of VDOT on U. S. Route 250E at the entrance to Glenmore a traffic signal, provided the request from VDOT is made prior to completion of Glenmore which for purposes of this paragraph shall be deemed to be the day the last residential lot is sold to a third party purchaser or 15 years from date of final approval of ZMA 90-19, whichever first occurs. Providing the work is completed within 15 years from date of final approval of ZMA 90-19, to contribute upon completion (I) a pro-rata contribution of the cost of construction (as hereinafter defined) to four-lane U. S. Route 250E from the Glenmore entrance to Route 22, or (ii) $500;000.00, which- ever sum is less. A traffic count on U. S. Route 250E shall be made by VDOT immediately to the east of the intersection of U. S. Route 250E and Route 22 within a reasonable time February 11, 1998 (Regular Day Meeting) (Page 12) prior to construction with the pro-rata contribution of the owner determined by a formula which includes a fraction the numerator of which is the traffic count on U. S. Route 250E between the Glenmore entrance and Route 22 attributable to residences in Glenmore and to the country club facility in Glenmore (Glenmore Traffic) and the denominator of which is the total traffic count on U. S. Route 250E between the Glenmore entrance and Route 22 (Total Traffic) as follows: Glenmore Traffic X Construction Cost = Pro-Rata Contribution Total Traffic In the event that there shall not have been substantial performance of proffers contained in paragraphs 2, 3, 4 and 5 within ten (10) years from the date of final approval of this Zoning Map Amendment, then the undersigned applicant agrees to waive his rights under Virginia Code Section 15.1491(al). Substantial performance shall, include (1) donation of the land described in paragraphs 2 and 3 of this proffer, ,if requested by Albemarle County, (2) payment of at least S$150,000.00 in cash pursuant to paragraph 4 of this proffer, and (3) construction and dedication to the appropriate authorities of the public water and sewer facilities pursuant to paragraph 5 of this proffer. 10. Development shall be in general accord with the Application Plan dated November 2, 1990 revised August 20, 1997, and Glenmore Rezoning Application dated September 24, 1990 and amended November 2, 1990 including textual program of develop- ment as approved under ZMA-90-19 and amended by subsequent rezoning actions. Final development plans shall incorporate all comments and recommendations of the SRC of October 11, 1990. 11. Maintenance of private roads and private drives serving two lots will be in accord with Section 18-7 and Section 18-36 of the County's Subdivision Ordinance as it exists on April 16, 1997. 12. At least one deputized security officer (special police officer) shall be employed for security purposes. 13. Vehicular access to Section 41 of Glenmore shall be through the existing private road network within Glenmore. Ashton Road may be used for emergency access. This proffer does not affect Proffer 7 above. 14. These proffers are substituted in place of proffers dated May 21, 1997. Stephen N. Runkle (Signed) Signatures of Ail Owners Stephen N. Runkle (Signed) Printed Names of All Owners 8-28-97 Date Frank A. Kessler by Stephen N. Runkle, Attorney in fact (Signed) Signatures of All Owners Frank A. Kessler (Signed) Printed Names of All Owners ..... 8-28-97 Date February 11, 1998 (Regular Day Meeting) (Page 13) 000 % Agenda Item No. 7. ZMA-97-10. The Storage Center (Sign #91). deferred until April 15, 1998.) (To be Motion was offered by Mr. Martin, seconded by Ms. Thomas, to defer ZMA-97-10 until April 15, 1998. Roll. was called and the motion carried by the following recorded vote: AYES: NAYS: Ms. Humphris, Mr. Marshall, Mr. Martin, Mr. Perkins, Ms. Thomas and Mr. Bowerman. None. Agenda Item No. 8. PUBLIC HEARING on an ordinance to repeal Chapter 7, Erosion and Sedimentat'ion Control, Chapter 19.1, Water and Sewers, Article II, Protection of Public Drinking Water, and Chapter 19.2, Water Resources Protection Areas, and to adopt Chapter 19.3, Protection of Water Resources, of the Code of the County of Albemarle. Chapter 19.3 establishes standards and procedures for erosion and sediment control, the management of stormwater runoff, and the retention or establishment of stream buffers, to continue, amend, and/or restate those standards and procedures set forth in the chap- ters, or parts thereof, to be repealed. (Advertised in the Daily Progress on January 27 and February 2, 1998.) Mr. Mawyer, County Engineer, said the purpose of the Comprehensive Water Resources Ordinance is to enhance the County's ability to improve the quality of water in its streams and water supply reservoirs. The Ordinance improves water quality by implementing Best Management Practices which achieve an ability to catch more of the stormwater runoff, and then create and maintain vegetative buffers adjacent to the streams and reservoirs. The ordinance also simplifies development and enforcement processes by integrating four current ordinances into one ordinance. This process began over three years ago when David Hirschman and the Water Resources Committee began developing this ordinance. As the County's Water Resources Manager, Mr. Hirschman deserves a large majority of the credit. He has done an outstanding job spearheading the effort and involving members of the development and environmental communities, including Babette Thorpe of Piedmont Environmental Council, and Don Franco of the Design Review Council and the Kessler Group. Other staff members have put in a great deal of effort including Greg Kamptner of the County Attorney's office, Ron Keeler of the Planning Department, Jack Kelsey, Chief of Engineering, and Bob Shaw, the retired County's Erosion Control Officer. Mr. Hirschman and Mr. Franco have prepared an analysis of the impact of the ordinance on housing. Mr. Hirschman also prepared an analysis of the impact of the ordinance on the County's staff. He would be glad to discuss those analysis, if Board members so desire and have questions. Mr. Mawyer then mentioned some of the provisions of the erosion and sediment control article of the ordinance. The new ordinance essentially updates the County's erosion control program to bring it into compliance with state regulations which were implemented in 1993, 1995 and 1996. There is nothing new in that portion of the ordinance relative to erosion control. However, the Department of Conservation and Recreations' Soil and Water Conservation District, the County's liaison to the state, recommends that the County take a fresh look at its inspection program, fee schedule and staffing levels. Staff does plan to take another look at those areas. When staff looks at those areas, they again plan to involve the development community, the environmental community and perhaps members of the Board. Regardin9 the impact on staffing, Mr. Mawyer indicated that the program currently collects five percent of costs. With the new rates in the proposed ordinance, they would collect approximately ten percent of the program costs. There has been some prior Board actions which suggested that staff seek to collect 50 percent. This is an amendment that staff will be proposing in the next couple of months. Mr. Hirschman discussed the history of the ordinance. There is a tremen- dous benefit in having all water-related issues under one document. He mentioned the documentation outlining the process and the development of the proposed ordinance, how staff involved focus groups, the comments that were received and responses, and Planning Commission discussions. The cost impact report, which was provided to Board in January, analyzed the cost for develop- February 11, 1998 (Regular Day Meeting) (Page 14) merit and costs to the community at-large. Costs include savings and addi- tional costs, and County staffing. Mr. Hirschman then summarized a table (copy on file) provided to Board members which set out each issue and outlined the major differences between current practice and the new ordinance. The major difference, with regard to stormwater, is the County-wide requirement for Best Management Practices which are designed to intercept filter and treat stormwater from development sites. Currently BMPs are applied or required in a scatter-type approach for some projects in the drinking water watershed and for some projects in the develop- ment areas depending on circumstances. Staff is basically requiring a uniform standard to have BMPs on all development projects. Within that framework one of the main issues from the focus group was to try to make stormwater consis- tent with the Land Use Plan. That has been attempted through calculation methods and stream buffer requirements while also looking towards removing incentives to develop in the rural areas. He believes those are the high- lights of the ordinance. He would be happy to answer any questions. Mr. Tucker mentioned a letter received from Mr. Michael Matthews, who served on the focus group, commending Mr Hirschman and urging the Board's approval of the ordinance. Ms. Thomas said one of the positive aspects of the ordinance is flexibil- ity, but there are also items mentioned that will no longer go to the Planning Commission which now would be determined by staff. She asked if those items are set out in the ordinance or are they still being considered. Mr. Hirschman said the one item this applies to is stormwater detention waivers which is set out in the ordinance. He believes the ordinance is thorough and very detailed as to the conditions and circumstances whereby this section would be applicable. At the present time a waiver from a stormwater detention requirement is set out in the Subdivision Ordinance, therefore, it has to go to the Commission. In their deliberations they felt it was a technical decision involving hydrologic calculations and a review loop would be saved by having this be an administrative process. Aside from that the ordinance also has a formal exception section applicable to the Board of Supervisors. The Board can review exceptions that are not specifically given to staff. The Chairman then opened the public hearing. Ms. Katie Hobbs, President of the Charlottesville-Albemarle League of Women Voters, said The League strongly supports this proposed ordinance because it will simplify the administration of the County's water ordinances and programs, do away with duplication and be easier for applicants as well as the general public to understand. This document is long overdue. For instance, as long ago as 1982, the 208 Watershed Management Study of the South Fork Rivanna Reservoir stated that: "presently there is not a definite institutional approach for the effective inspection or maintenance of on-site best management practices such as detention basins or infiltration controls." In the 16 years since, and contrary to what the public understood, there has been no official inspection or maintenance of the hundreds of projects whose BMP's were designed to reduce polluting runoff to our reservoirs. This ordinance clearly establishes where the responsibility for inspection and maintenance lies and provides hope that at long last effective implementa- tion of this ordinance will decrease siltation and add a few more years to our troubled Rivanna Reservoir. Everyone owes a lot to David Hirschman, who, a number of years ago, took on the daunting task of pulling together the various water-related ordinances and programs. It will now be up to all of us to see that the "Programs Authority" (the Engineering Department) has adequate staff and financial support to do its job. The County needs that ordinance now. Refinements of issues in regard to fees and inspection schedules can be worked out over time. The League urges the Board to adopt this ordinance which is so desperately needed. Mr. Russell Perry, a City resident and cohabitant of the Rivanna River Watershed said he took a trip from the South Fork Rivanna Reservoir down to Milton on Sunday in a canoe with two other individuals. For the last 18 months he has been the cochairman of the Rivanna River Basin Roundtable which is a committee of the Thomas Jefferson Planning District Commission. In that context he has deeply appreciated the assistance and wisdom they have received from David Hirschman in his capacity as an advisor. Committee members felt the community was lucky to have him. In December, the Committee produced the first draft of the basin report which he hopes to share formally with everyone February 11, 1998 (Regular Day Meeting) (Page 15) 0003'18 soon. The report includes 71 recommendations. The Committee has not taken a position on this proposed ordinance. He personally supports the ordinance. He appreciates the effort that has been made and continues to be made to coordinate the standards regarding watershed protection between the City, University and the County. He also thinks the strengthening and making the requirements more uniform for buffers are critical and well done in the proposed ordinance. In his Committee's research they found that the primary type of pollution in the river and its tributaries is sediment. Buffers play a critical role in reducing the amount of sediment. The Committee also found that virtually all of the types of pollution that was tested increased dramatically during flood conditions. Buffers are a critical part of filtering out that first flush from pasture fields and impervious surfaces after a storm. One of their findings was that high levels of nitrogen phosphorous and fecal coliform are found in the waters throughout the basin during storm events. Compared to other levels of pollutants during base flow conditions, stormwater runoff emerges as an important nonpoint source of these pollutants. Vegetative buffers, trees, shrubs and grasses have been shown to slow stormwater runoff and encourage percolation thereby reducing the volume of storm flow while filtering 70 to 80 percent of water-borne pollutants. Associated with that, the Committee recommends that: (1) a determination be made of the appropriate buffer route for major tributaries and the main stem of the Rivanna River specific to the geological and biological parameters of this region. Studies in other areas have concluded that 100 feet is a useful standard for buffer width; (2) through BMPs and cost-shared programs, development of vegetative buffers through water courses throughout the basin; (3) a demonstration of the value of vegetative buffers be made by creating on public land low maintenance vegetation to stabilize stream banks and reduce stormwater runoff. Make information on these publicly constructed buffers available for emulation on private land; and (4) local governments be asked to institute policies to encourage the development of buffers and priority locations for implementa- tion. In addition establish mechanisms to promote the establishment of buffers in a manner that is fair riparian landowners. He thinks this ordi- nance is a good step towards fulfilling and meeting those recommendations. He endorses the ordinance for Board approval. Mr. Don Franco said he has been involved in this ordinance from the time he was a part of the County staff. He supports the ordinance. The ordinance unifies and streamlines current policies which makes them easier to apply and use. The ordinance is flexible in that it allows the ability to work On difficult sites and possibly achieve the land use goals of the Comprehensive Plan. ' Given its flexibility, he does see as a potential problem the need to pay attention to staffing. There needs to be the right people making the right decisions. Also in his mind, the Board needs to look at how changes to the fee structure potentially affects the influence of this plan on the Growth Management Policy of the County. It is also important to note that this process did have a lot of public input. A lot of that input involved the Growth Management Plan in creating a balance of the criteria via the technical aspects of the program. It is important to see that it is maintained as the program continues to grow and develop, and the remaining aspects are final- ized. He also thinks it is important to not get caught up in just the technical aspects of the plan; not to lose sight of the overall balance. At this time the Chairman closed the public hearing. Ms. Thomas said when the Board held its work session on this item, she submitted a lot of questions. She received answers to all the questions. She appreciates the extra ~ork staff did to walk her through the plan. She thinks this is an important ssep. She thinks it is impOrtant for the Board to realize that it is going to have to fund the plan. The point raised that depending entirely on lees will skew the County's Growth Management Policy will have to be kept in mind when deciding on fees or reacting to a proposal for fees. She thinks that the Board will need to remember that it will have to fund some additional staff to go along with this ordinance. She will support that additional funding when the time comes. Ms. Humphris agreed with Ms. Thomas. She expressed appreciation to everybody who participated in preparing this ordinance. She thinks the Board needs to remember that water is the County's most important resource. The Board should do whatever it takes to protect its water supply and prevent the destruction of its reservoirs. She thinks that hiring additional staff is a small price to pay for this protection. February 11, 1998 (Regular Day Meeting) (Page 16) 0003 4 Ms. Humphris then offered motion to adopt an Ordinance to Repeal Chapter 7, Erosion and Sedimentation Control, Chapter 19.1, Water and Sewers, Article Ii, Protection of Public Drinking Water, and Chapter 19.2, Water Resources Protection Areas, and to adopt Chapter 19.3, Protection of Water Resources, of the Code of the County of Albemarle, Virginia. Mr. Bowerman seconded the motion. Mr. Marshall agreed with Ms. Thomas and Ms. Humphris. He said anyone who has a pond or lake is aware of what soil erosion can do. Roll was then called and the motion carried by the following recorded vote: AYES: NAYS: Ms. Humphris, Mr. Marshall, Mr. Martin, Mr. Perkins, Ms. Thomas and Mr. Bowerman. None. ORDINANCE NO. 98-19.3(1) AN ORDINANCE TO REPEAL CHAPTER 7, EROSION AND SEDIMENTATION CONTROL, CHAPTER 19.1, WATER AND SEWERS, ARTICLE II, PROTECTION OF PUBLIC DRINKING WATER, AND CHAPTER 19.2, WATER RESOURCES PROTECTION AREAS, AND TO ADOPT CHAPTER 19.3, PROTECTION OF WATER RESOURCES, OF THE CODE OF THE COUNTY OF ALBEMARLE, VIRGINIA BE IT ORDAINED By the Board of Supervisors of the County of Albemarle, Virginia, that Chapter 7, Erosion and Sedimentation Control, Chapter 19.1, Water and Sewers, Article II, Protection of Public Drinking Water, and Chapter 19.2, Water Resource Protection Areas are hereby repealed and Chapter 19.3, Protection of Water Resources, of the Code of the County of Albemarle, is adopted, as follows: By Repealing: Chapter 7. Erosion and Sedimentation Control Chapter 19.1. Water and Sewers, Article II. Protection of Public Drinking Water Chapter 19.2. Water Resource Protection Areas By Adding New: Chapter 19.3. Protection of Water Resources Article I. General Sec. 19.3-1. Sec 19.3-2 Sec 19.3-3 Sec 19.3-4 Sec 19.3-5 Sec 19.3-6 Sec 19.3-7 Short title. Enabling authority. Purposes. Rules of construction. Definitions. Designation of program authority; powers and duties. Saving provision. Article II. Erosion and Sediment Control Division 1. Plans. Sec. 19.3-8. Sec. 19.3-9. Sec. 19.3-10. Sec. 19.3-11. Sec. 19.3-12. Sec. 19.3-13 Sec. 19.3-14 Sec. 19.3-15 Sec. 19.3-16 Sec. 19.3-17 Sec. 19.3-18 Applicability. Determination of land disturbing activity. Determination of erosion impact area. Erosion and sediment control plan; requirements. Review and approval of erosion and sediment control plan. Agreement in lieu of a plan. Monitoring and reporting. Issuance of permit; surety. Amendment of erosion and sediment control plan. Fees. Review of certain program authority actions. Division 2. Compliance and enforcement. Sec. 19.3-19. Duty to comply, maintain and repair. February 11, 1998 (Regular Day Meeting) (Page 17) Sec. 19.3-20. Sec. 19.3-21. Sec. 19.3-22. Sec. 19.3-23. Inspections. Determination of noncompliance with plan; procedure. Cessation of land disturbing activity; procedure. Penalties and remedies. Article III. Stormwater Management and Water Quality Division 1. Plans. Sec. 19.3-24. Sec. 19.3-25. Sec. 19.3-26. Sec. 19.3-27. Sec. 19.3-28. Sec. 19.3-29 Sec. 19.3-30 Sec. 19.3-31 Sec. 19.3-32 Sec. 19.3-33 Sec. 19.3-34 Sec. 19.3-35 Applicability. Designation of water resources areas. Overlapping water resources areas. Stormwater management/BMP plan; requirements. Review and approval of stormwater management/BMP plan. Monitoring and reporting. Issuance of permit; surety. Amendment of stormwater management/BMP plan. Exceptions. Dedication of stormwater management facilities. Fees. Review of certain program authority actions. Division 2. Plan requirements: water quality and water quantity protection. Sec. 19.3-36. Sec. 19.3-37. Sec. 19.3-38. Sec. 19.3-39. Sec. 19.3-40. Sec. 19.3-41. Sec. 19.3-42. Sec. 19.3-43. Sec. 19.3-44. Sec. 19.3-45. Sec. 19.3-46. Stormwater management facilities and channels. Non-structural measures. Control of peak rate and velocity of runoff. Best management practices. Contribution to regional stormwater management program. Duty to retain or establish stream buffer. Management of stream buffer. Types of development exempt from duties to retain, establish or manage a stream buffer. Types of development authorized in stream buffer. Types of development which may be allowed in stream buffer by program authority. Mitigation plan if development allowed in stream buffer. Division 3. Compliance and enforcement. Sec. 19.3-47. Sec. 19.3-48. Sec. 19.3-49. Sec. 19.3-50. Duty to comply, maintain and repair; maintenance agreement. Inspections. Determination of noncompliance with plan; procedure. Penalties and remedies. Chapter 19.3. Protection of Water Resources Article I. General. Sec. 19.3-1. Short title. This chapter shall be known and may be cited as the "Comprehensive Water Resources Ordinance" or as the "Water Protection Ordinance." Sec. 19.3-2. Authority. This chapter is adopted pursuant to the authority conferred by the Virginia Erosion and Sediment Control Law (Code of Virginia §§ 10.1-560 et seq.), the Virginia Stormwater Management Act (Code of Virginia §§ 10.1-603.1 et seq.) and the Chesapeake Bay Preservation Act (Code of Virginia §§ 10.1-2100 et seq.). Sec. 19.3-3. Purposes. The board of supervisors finds that this chapter is necessary to protect the health, safety and general welfare of the citizens of the county and the Commonwealth of Virginia and to prevent water from being rendered dangerous to the health of persons living in the county, and is supported by the findings of watershed studies that have been conducted. Therefore, the specific purposes of this chapter are to: O003 G February 11, 1998 (Regular Day Meeting) (Page 18) a. Inhibit the deterioration of state waters and waterways resulting from land disturbing activities. b. Protect the safety and welfare of citizens, property owners, and businesses by minimizing the negative impacts of increased stormwater discharges from new land development and redevelopment. c. Protect against and minimize the pollution and eutrophication of public drinking water supplies resulting from land development. d. Control nonpoint source pollution, erosion and sedimentation, and stream channel erosion. e. Maintain the integrity of existing stream channels and networks for their biological functions, drainage, and natural recharge of groundwater. f. Protect the condition of state waters for all reasonable public uses and ecological functions. g. Provide for the long-term responsibility for and maintenance of stormwater management facilities and best management practices. h. Facilitate the integration of stormwater management and pollution control with other county ordinances, programs, policies, and the comprehensive plan. Sec. 19.3-4. Rules of construction. This chapter protects paramount public interests and shall be liberally construed to effectuate its several purposes. In addition to the rules of construction set forth in section 1-2, the following rules of construction shall apply in the construction of this chapter, unless such application would be contrary to the purposes of this chapter or the context clearly indicates otherwise: a. Ail references to any statute, ordinance, regulation, guideline, handbook, manual or standard shall be to such statute, ordinance, regulation, guideline, handbook, manual or standard as it exists on the date of adoption of this ordinance and includes any amendment thereafter or reissue in a subsequent edition. b. Any reference to "this article," "article II," or "article III" shall include references to all applicable references of article I. c. Ail references to days shall be to calendar days. Sec. 19.3-5. Definitions. The following definitions shall apply in the interpretation and implementa- tion of this chapter: Agreement in lieu of a plan. A written agreement between the program authority and an owner which specifies conservation measures which must be implemented in the construction of a single-family dwelling unit, and which may be executed by the program authority in lieu of a formal erosion and sediment control plan. Agricultural land. Land used for horticulture, viticulture, silviculture or other gardening which may involve the tilling of soil for the raising of crops; the keeping of livestock and/or poultry; and/or agricultural industries or businesses, such as, but not limited to, orchards, fruit packing plants, dairies, nurseries or wayside stands. Agricultural road. A road or portion of a road that is constructed exclusively for access to agricultural land and is located on or serves a lot which is not the subject of a pending or approved preliminary or final plat, preliminary or final site plan, zoning map amendment to a non-agricultural zoning district, or a special use permit for a use or activity not directly related to agriculture. Best management practice (BMP). A practice or combination of practices that is determined by the state, a designated area-wide planning agency, or the program authority, to be the most effective, practical means of preventing or February 11, 1998 (Regular Day Meeting) (Page 19) reducing the amount of water pollution generated by nonpoint sources to a level compatible with water quality goals. Board of supervisors. The Albemarle County board of supervisors. Certified inspector. An employee or agent of the program authority who: (I) holds a certificate of competence from the soil and water conservation board in the area of project inspection for erosion and sediment control; or (ii) is enrolled in the soil and water conservation board's training program for project inspection for erosion and sediment control and successfully completes the program within one year after enrollment. Certified plan reviewer. An employee or agent of the program authority who: (I) holds a certificate of competence from the soil and water conservation board in the area of plan review for erosion and sediment control; (ii) is enrolled in the soil and water conservation board's training program for plan review for erosion and sediment control and successfully completes the program within one year after enrollment; or (iii) is licensed as a professional engineer, architect, certified landscape architect or land surveyor pursuant to sections 54.1-400 et seq. of the Code of Virginia. Certified program administrator. An employee or agent of the program authority who: (I) holds a certificate of competence from the soil and water conservation board in the area of program administration for erosion and sediment control; or (ii) is enrolled in the soil and water conservation board's training program for program administration for erosion and sediment control and successfully completes the program within one year after enrollment. The certified program administrator is referred to herein as the program administra- tor. Channel. A natural stream or human-made waterway. Contiguous nontidal wetlands. Nontidal wetlands that lie within or adjacent to a stream channel or within the flood plain of that stream channel so that there is a hydrologic connection between the stream and the wetland, and including impoundments of water along a natural stream channel. County. The County of Albemarle, Virginia. County engineer. The director of the department of engineering and public works. Crop land. Land which is used for the cultivation of corn and other row crops, orchards, vineyards, and other fruits and vegetables, but excluding land used for silviculture and those crops which consist of a dense grass cover, such as hay land or pasture land. Department of engineering and public works. The Albemarle County Department of Engineering and Public Works. Development. As used in sections 19.3-41 through 19.3-46, the construction or substantial alteration of residential, commercial, industrial, institutional, recreation, transportation or utility facilities or structures. Division of land. A subdivision, rural division, or family division, as defined in the subdivision ordinance or, in the appropriate context, the land which is the subject of such subdivision, rural division, or family division. Drainage basin. A watershed. Erosion and sediment control plan. A document which sets forth the major soil and water resources conservation measures that will be implemented to assure that the unit or units of land will be so treated to achieve the conservation objectives of this chapter, and which may also include appropriate illustrations in the form of maps or a site plan, and appropriate narratives, such as a soil and water plan inventory and management information with needed interpretations, a record of decisions contributing to conservation treatment, and any specifica- tions submitted with the plan. Erosion impact area. An area of land -- other than: (I) a lot of less than ten thousand (10,000) square feet which is used for residential purposes; or (ii) a shoreline where the erosion results from wave action -- which is not subject to a current land disturbing activity but is subject to persistent soil erosion February 11, 1998 (Regular Day Meeting) (Page 20) 0003:1.8 which results in the delivery of sediment onto neighboring property or into state waters. Flooding. A volume of water that is too great to be confined within the banks or walls of the channel, waterbody, or conveyance system and that overflows onto adjacent lands, causing or threatening damage. Flood plain. Land which would be inundated by flood waters in a storm event of a one-hundred (100) year return interval. Handbook. The Virginia Erosion and Sediment Control Handbook. Impervious cover. A surface composed of any material that significantly impedes or prevents natural infiltration of water into the soil, including but not limited to, roofs, buildings, streets, concrete, asphalt, and gravel placed over a compacted base. Intermittent stream. A natural stream or portion of a natural stream that has a defined bed and defined banks within which water flows in response to precipitation, through near surface groundwater flow, or from springs, and which is not a perennial stream. Land development. A human-made change to, or construction on, the land surface that changes its runoff characteristics. For purposes of this chapter, individual lots in a proposed division of land shall not be considered to be separate land developments; rather, the entire division of land shall be considered a single land development. 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 in the Commonwealth, including, but not limited to, clearing, grading, excavating, transporting and filling of land, and as further defined herein: a. If no part of the property is located within the mountain overlay district, a land change is a land disturbing activity if it creates an area of disturbed land of ten thousand (10,000) square feet or more; or b. If the property is located within, in whole or in part, the mountain overlay district, a land change is a land disturbing activity only if it creates an area of disturbed land of two thousand five hundred (2,500) square feet or more. Linear development. A land development that is linear in nature such as, but not limited to: (I) the construction of electric and telephone utility lines and natural gas pipelines; (ii) the construction of tracks, rights-of-way, bridges, communication facilities and other related structures of a railroad company; and (iii) highway construction projects. Mitigation plan. A plan, a component of a stormwater management/BMP plan, an erosion and sediment control plan, or an agreement in lieu of a plan, that describes how encroachments into a stream buffer will be mitigated through runoff treatment, revegetation, the addition of extra buffer areas, or other appropriate best management practices. Natural stream. A nontidal waterway that is part of the natural topography, which typically will maintain a continuous, seasonal or intermittent flow during the year, and which is characterized as being irregular in cross-section with a meandering course. A constructed channel such as a drainage ditch or swale is not a natural stream. Necessary infrastructure. Components of a site development necessary for the protection of the public health, safety, or welfare, and environmental features. These components include, but are not limited to, the following: drainage channels, structures and facilities; best management practices; access roads for emergency vehicles; and access roads for the maintenance of stormwater management facilities and/or water-dependent facilities. Nonpoint source pollution. Pollution from diffuse sources carried in stormwater runoff, including but not limited to the following pollutants: sediment, nutrients, organic and inorganic substances. Nontidal wetlands. Wetlands other than tidal wetlands that are inundated or saturated by surface or groundwater at a frequency and duration to support, and February 11, 1998 (Regular Day Meeting) (Page 21) 000319 that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, as defined by the United States Environmental Protection Agency pursuant to section 404 of the federal Clean Water Act, in 33 Code of Federal Regulations § 328.3b, dated November 13, 1986. Owner. 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 piece of land. As used herein, owner also refers to, in the appropriate context: (I) any other person authorized to act as the agent for the owner; (ii) any person who submits an erosion and sediment control plan or stormwater manage- ment/BMP plan for approval or requests issuance of a permit, when required, authorizing land disturbing activities or land development to commence; and (iii) any person responsible for complying with an approved erosion and sediment control plan, agreement in lieu of a plan, or an approved stormwater manage- ment/BMP plan. Perennial stream. Any stream that is depicted as a continuous blue line on the most recent United States Geological Survey 7.5 minute topographic quadrangle maps (scale 1:24,000), except for streams within a development area or area of infill and redevelopment that have been piped or converted legally and intentionally into stormwater conveyance channels such that the stream does not resemble or maintain the characteristics of a natural stream channel, as determined by the program authority. Permit. Any building permit, grading permit, or other permit, including the approval of any site plan or plat, which is required to be issued by any board, commission, officer, employee or other agency of the county as a prerequisite to any development. Permit-issuing department. A department of the county that issues a permit. Plan of development. The process for site plan or plat review to ensure compliance with section 10.1-2109 of the Code of Virginia and this chapter which is required as a precedent to clearing, grading, or other land disturbing activity on a site or the issuance of a building permit. Plat. A preliminary or final plat, a plat for a rural division, or a plat for a family division, as provided in the subdivision ordinance. Program authority. The department of engineering and public works. Except where the context clearly indicates otherwise, references to the program authority includes any officer or employee of the department of engineering and public works authorized by the county engineer to act pursuant to this chapter. Redevelopment. The process of developing land that is or has been previously developed. Regional stormwater basin. A facility designed to capture, detain, and/or treat stormwater for a geographically defined upstream watershed for the purpose of providing water quality and/or quantity benefits for the region. Such a facility may be constructed by a public agency or by a private person or entity. Residential development. A tract or parcel of land developed or to be developed as a single unit under single ownership or unified control which is to contain three or more residential dwelling units. Runoff. The portion of precipitation which is discharged across the land surface or through conveyances to one or more waterways. Sewage disposal system. A sewerage system or treatment works composed of a facility or combination of facilities constructed for the transport and/or treatment of domestic, commercial or industrial sewage, but not including plumbing, fixtures, lateral pipes from a dwelling unit to a septic tank, lateral pipes from a dwelling unit to a publicly owned sewerage facility, or publicly owned facilities for the transport and/or treatment of sewage. State waters. All waters on the surface and under the ground wholly or partially within or bordering the Commonwealth or within its jurisdiction. Stormwater management/BMP facilities maintenance agreement. An agreement that commits the owner or other designated parties to maintain and inspect February 11, 1998 (Regular Day Meeting) (Page 22) stormwater/BMP facilities constructed in accordance with this chapter based on specific terms and conditions of the agreement. Stormwater management/BMP plan. A document that describes the controls for the management of the rate of stormwater discharge and best management practices for water quality protection, and which includes a narrative section, a map or site plan, pertinent calculations, and any specifications submitted with the plan. Stream buffer. An area of land at or near a tributary streambank and/or nontidal wetland that has an intrinsic water quality value due to the ecological and biological processes it performs or is otherwise sensitive to changes which may result in significant degradation to the quality of state waters. Subdivision ordinance. The subdivision ordinance of the County of Albemarle, Virginia. Water-dependent facility. A development of land that cannot exist outside of the stream buffer and must be located on the shoreline because of the intrinsic nature of its operation. These facilities include, but are not limited to: (I) the intake and outfall structures of power plants, sewage treatment plants, water treatment plants, and storm sewers; (ii) public water-oriented recreation areas; and (iii) boat docks and ramps. Water resources areas. A group of specific areas within the region that share a unified stormwater philosophy based on existing and anticipated land uses and environmental sensitivities, which are each managed according to specific stormwater goals contained in this chapter. The four water resources areas, which are identified in section 19.3-25, are: (I) development areas; (ii) areas of infill and redevelopment; (iii) water supply protection areas; and (iv) other rural land. Watershed. A defined land area drained by a river, stream or drainage ways, or system of connecting rivers, streams, or drainage ways such that all surface water within the area flows through a single outlet. Zoning ordinance. The zoning ordinance of the County of Albemarle, Virginia. Sec. 19.3-6. .Designation of program authority; powers and duties. The board of supervisors hereby designates the department of engineering and public works as the program authority. The program authority shall have the following powers and duties: a. The program authority shall administer and enforce this chapter. b. The program authority shall establish reasonable administrative procedures for the administration of this chapter, including developing and maintaining for article III a design manual containing information about the content of plans required by article III, calculation methods, maintenance and inspection procedures, and other information to assist with the implementation and enforcement of article III. The program authority shall update the design manual periodically. The manual shall be consistent with this chapter and all applicable statutes and regulations. c. Within one year of the date of adoption of this chapter the program authority shall assure that the erosion and sediment control program set forth in article II is administered by a certified program administrator, a certified plan reviewer, and a certified project inspector. Such positions may be filled by the same person. d. The program authority shall take appropriate enforcement actions to achieve compliance with this chapter, and shall maintain a record of enforcement actions for all active land disturbing activities and land developments. e. The program authority is authorized to cooperate with any federal or state agency in connection with plans for erosion and sediment control or stormwater management. The program authority may also recommend to the county executive any proposed agreement with such agency for such purposes, which agreement shall be executed, if at all, by the county executive on behalf of the county. February 11, 1998 (Regular Day Meeting) (Page 23) 0008;8:1. Sec. 19.3-7. Saving provision. The adoption of this chapter shall not abate any pending action, liability, or penalty of any person accruing or about to accrue, nor waive any right of the county under any provision in effect prior to the date of adoption of this chapter, unless expressly provided for in this chapter. Any erosion and sediment control plan, runoff control permit and, to the extent they pertain to stormwater management, any final site plan or plat, approved prior to the date of adoption of this chapter shall remain in full force and effect, and all rights and remedies of the county in enforcing such plans, permits and plats are hereby preserved. Article II. Erosion and Sediment Control Division 1. Plans. Sec. 19.3-8. Applicability. This article shall apply to any land disturbing activity as provided herein: a. Except as provided in subsection (b), each owner shall comply with the requirements of this article: 1. Prior to engaging in any land disturbing activity, or allowing any land disturbing activity to occur, on his property; 2. At all times during such land disturbing activity until it is completed, including all times when the land disturbing activity is performed by a contractor engaged in construction work; 3. When notified by the program authority that an erosion impact area exists on his land, and the notice requires the owner to submit an erosion and sediment control plan in order to control erosion and sedimentation; and 4. For the prior construction of an agricultural road, when the owner submits a preliminary or final plat, preliminary or final site plan, an application for a zoning map amendment to a non-agricultural zoning district, or an application for a special use permit for a use or activity not directly related to agriculture for the lot on which the agricultural road is located or serves, if both: (I) the plat, plan or application was submitted within twenty- four (24) months after construction of the agricultural road began; and (ii) the program authority determines that the dimensions and alignment of the agricul- tural road substantially correspond to the dimensions and alignment of a road proposed on the plat, plan or any document submitted as part of an application. b. This article shall not apply to the following activities: 1. Individual home gardens, landscaping, repair and maintenance work; 2. Individual service connections; 3. Installation, maintenance, or repair of any underground public utility lines when such activity occurs on an existing hard-surfaced road, street or sidewalk; provided that the land disturbing activity is confined to the area of the road, street or sidewalk which is hard surfaced; 4. Septic tank lines or drainage fields, unless included in an overall plan for land disturbing activity relating to construction of the building to be served by the septic tank system; 5. Surface or deep mining; 6. Exploration or drilling for oil and gas, including the well site, roads, feeder lines and off-site disposal areas; 7. Tilling, planting or harvesting of agricultural, horticultural or forest crops, livestock feed operations or products, or related engineering operations including, but not limited to, construction of terraces, terrace outlets, check dams, desilting basins, dikes, ponds, ditches, strip cropping, lister furrowing, contour cultivating, contour furrowing, land drainage and land irrigation. This exception shall not apply to: (I) the harvesting of forest crops unless the area on which harvesting occurs is reforested artificially or naturally in accordance with the provisions of section 10.1-1100 et seq. of the Code of Virginia or is February 11, 1998 (Regular Day Meeting) (Page 24) 000322 converted to bona fide agricultural or improved pasture uses as described in section 10.1-1163(B) of the Code of Virginia, in which case such person shall comply with the provisions of this article when grading, excavating, or filling; (ii) a land disturbing activity related to the construction of farm structures, including but not limited to agricultural structures or roads not associated with tilling, planting and harvesting; and (iii) the construction of roads other than agricultural roads; 8. The construction of agricultural roads, except as provided in subsectic~ (a) (4) ~ 9. Repair or rebuilding of the tracks, right-of-way, bridges, communicaticn facilities and other related structures and facilities of a railroad company; 10. Installation of fence and sign posts or telephone and electric poles and other kinds of posts or poles; and 11. 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 was not an emergency, the land area shall be shaped and stabilized in accordance with the requirements of the program authority. Sec. 19.3-9. Determination of land disturbing activity. The determination of whether an activity is a land disturbing activity shall be made as provided herein: a. The program administrator shall determine whether an activity is a land disturbing activity, including any claim by an owner that the activity is exempt from the requirements of this article. b. If a land disturbing activity includes activity at a separate location, including but not limited to borrow and disposal areas, the program administrator may either: 1. Consider the off-site activity as being part of the proposed land disturbing activity; or 2. If the off-site activity is already covered by an erosion and sediment control plan, require the owner to provide proof of the approval and to certify that the plan will be implemented in accordance with this article. c. If a property will be developed in phases, the determination of whether an activity constitutes a land disturbing activity shall be determined by considering the development of the property as a whole, regardless of the phasing of the development. d. Land disturbing activity of less than ten thousand (10,000) square feet on individual lots in a residential development shall not be considered exempt from this article if the total land disturbing activity in the residential development is equal to or greater than ten thousand (10,000) square feet. e. Upon the determination by the program administrator that an activity is a land disturbing activity, the owner shall immediately comply with the requirements of this article and this article shall be otherwise immediately enforced. Sec. 19.3-10. Determination of erosion impact area. The determination of whether an erosion impact area exists on property shall be determined as provided herein: a. The program administrator shall determine whether an erosion impact area exists on the property and is, therefore, subject to the requirements of this article. The program administrator shall make this determination after an investigation brought either on his own initiative or upon the complaint of any citizen. b. Upon making a determination that an erosion impact area exists, the program administrator shall immediately notify the owner of the property of his determination. The notice may either be informal, by the program administrator speaking to the owner of the property by telephone or in person, or in writing. February 11, 1998 (Regular Day Meeting) (Page 25) 000.323 If the notice is in writing, it shall be served by registered or certified mail to the address of the owner based upon the most recent tax records of the county, or by personal delivery. The written notice shall: (I) instruct the owner to submit an erosion and sediment control plan for review and approval as provided in this article; and (ii) state the date by which the plan shall be submitted. c. Upon receipt of the notice required by subsection (b), the owner shall: (I) not permit any portion of that land to remain in a condition so that soil erosion and sedimentation causes reasonably avoidable damage or harm to adjacent or downstream property, roads, streams, lakes, or ponds; and (ii) immediately comply with the requirements of the notice and this article. d. If informal notice as provided in subsection (b) is first provided to the owner of the property and the owner fails to comply with such notice and subsection (c), the program administrator shall then provide written notice to the owner as provided in subsection (b) . e. If good cause is shown, the program authority may grant to an owner an extension of time for which to comply with the requirements of this section and this article. Sec. 19.3-11. Erosion and sediment control plan. Except as provided in section 19.3-13, each owner subject to this article shall submit to the program authority for review and approval an erosion and sediment control plan as provided herein: a. The owner shall submit a completed application on an application form provided by the program authority, the fee required by section 19.3-17, an erosion and sediment control plan that satisfies the requirements of subsections (b) and (c), and a certification stating that all requirements of the approved plan will be complied with. b. The plan shall include specifications for temporary and permanent controls of soil erosion and sedimentation in such detail as the program authority shall deem reasonably adequate, considering the nature and extent of the proposed land disturbing activity, and a statement describing the maintenance responsibilities of the owner to assure that the land disturbing activity will satisfy the purposes and requirements of this article. The plan shall be in accordance with the applicable provisions of the handbook, including the criteria, techniques and methods set forth in section 50-30-40 of title 4 of the Virginia Administrative Code. c. The program authority may require additional information as may be necessary for a complete review of the plan. d. In lieu of subsections (a), (b) and (c), if the land disturbing activity involves land also under the jurisdiction of another local erosion and sediment control program, the owner may, at his option, choose to have a conservation plan approved by the Virginia Department of Conservation and Recreation - Division of Soil and Water Conservation Board. The owner shall notify the program authority of such plan approval by such board. e. If land disturbing activity will be required of a contractor performing construction work pursuant to a construction contract, the preparation, submission and approval of a plan shall be the responsibility of the owner. Sec. 19.3-12. Review and approval of erosion and sediment control plan. Each erosion and sediment control plan submitted pursuant to this article shall be reviewed and approved as provided herein: a. The plan shall be reviewed by the program authority to determine whether it complies with the requirements of section 19.3-11 and all other requirements of this article. b. During its review of the plan, the program authority may meet with the owner from time to time to review and discuss the plan with the owner, and shall inform the owner in writing of any modifications, terms, or conditions required to be included in the plan in order for it to be approved. February 11, 1998 (Regular Day Meeting) (Page 26) c. Except as provided in subsection (d), the program authority shall approve or disapprove a plan in writing within forty-five (45) days from the date the complete application was received by the program authority. The decision of the program authority shall be based on the plan's compliance with the requirements of this article. The decision shall be in writing and shall be served by first class mail to the address provided by the owner in the application for approval of the plan or by personal delivery to the owner. The date of the decision shall be either the date that it is deposited for mailing or the date that it is personally delivered to the owner. If the plan is disapproved, the reasons for disapproval shall be stated in the writing. d. If the program authority fails to act on the plan within forty-five (45) days from the date the application was received by the program authority, the plan shall be deemed approved. e. If the owner is required to obtain approval of a site plan or plat, the program authority shall not approve an erosion and sediment control plan unless and until the site plan or plat is approved as provided by law. For purposes of this subsection, a site plan or plat may be deemed approved by the program authority if its approval is conditioned upon the approval of an erosion and sediment control plan pursuant to this article, and the program authority determines that review and approval of the erosion and sediment control plan will not affect approval of the site plan or plat. The program authority may approve an erosion and sediment control plan prior to approval of a required site plan or plat in the following circumstances: 1. To correct any existing erosion or other condition conducive to excessive sedimentation which is occasioned by any violation of this chapter or by accident, act of God or other cause beyond the control of the owner; provided, that the activity proposed shall be strictly limited to the correction of such condition; 2. To clear and grub stumps and other activity directly related to the selective cutting of trees, as permitted by law; 3. To install underground public utility mains, interceptors, transmission lines and trunk lines for which plans have been previously approved by the operating utility and approved by the county as being substantially in accord with the comprehensive plan, if necessary; 4. To fill earth with spoils obtained from grading, excavation or other lawful earth disturbing activity; 5. To clear, grade, fill or engage in similar related activity for the temporary storage of earth, equipment and materials, and to construct temporary access roads; provided, that in each case, the area disturbed shall be returned to substantially its previous condition, with no significant change in surface contours. The return to previous condition shall occur within thirty (30) days of the completion of the activity or temporary use, or within thirteen (13) months of the commencement of any land disturbing activity on the land which is related to the activity, whichever period shall be shorter; or 6. To establish borrow, fill or waste areas in accordance with sections 5.1.28 and 10.2.1.18 of the zoning ordinance. Sec. 19.3-13. Agreement in lieu of a plan. If the land disturbing activity is for the purpose of establishing or modifying a single family dwelling unit, the program authority may allow an agreement in lieu of a plan for the construction of such a dwelling unit; provided: a. The single family dwelling unit is located on an individual lot which is not part of a division of land; or b. The single family dwelling unit is located within a residential development or division of land, and the individual lots are being developed by different property owners; or c. The single family dwelling unit is located within a division of land which no longer has an active erosion and sediment control plan. February 11, 1998 (Regular Day Meeting) (Page 27) 0003;85 d. In determining whether to allow an agreement in lieu of a plan pursuant to subsections (a), (b) or (c), the program authority shall include as part of its consideration the potential threat to water quality and to adjacent land resulting from the land disturbing activity, and whether the land disturbing activity is within the mountain overlay district. e. Except as provided in sections 19.3-11 and 19.3-12, all other references in this article to an erosion and sediment control plan shall include an a~greement in lieu of a plan, and the program authority and the owner shall have all of the rights, responsibilities and remedies set forth in this article as though such agreement in lieu of a plan was an erosion and sediment control plan. Sec. 19.3-14. Monitoring and reporting. As a condition of approval of an erosion and sediment control plan, the program authority may require the owner to monitor and report to the program authority as provided herein: a. Any monitoring conducted shall be for the purpose of ensuring compliance with the erosion and sediment control plan and to determine whether the measures required in the plan are effective in controlling erosion and sediment. b. The condition requiring monitoring and reporting shall state: (I) the method and frequency of such monitoring; and (ii) the format of the report and the frequency for submitting reports. Sec. 19.3-15. Issuance of permit; surety. A grading, building or other permit for activities involving land disturbir~3 activities may be issued by a permit-issuing department only as provided herein: a. The owner shall submit with his application for such permit an erosion and sediment control plan, submitted for review and approval pursuant to this article, or an approved erosion and sediment control plan and certification that the plan will be followed. The permit-issuing department shall not issue a permit until the erosion and sediment control plan has been approved and certification is submitted. b. Prior to the issuance of such permit, the permit-issuing department shall require the owner to submit a reasonable performance bond with surety, cash escrow, letter of credit, any combination thereof, or such other legal arrangement acceptable to the permit-issuing department and the county attorney, to ensure that measures could be taken by the permit-issuing department or the program authority at the owner's expense should he fail, after proper notice as provided in section 19.3-21, to take timely corrective action specified in the notice. c. A bond or other surety required by the permit-issuing department pursuant to subsection (b) shall not exceed the total of the estimated cost to initiate, maintain and repair all erosion and sediment control structures and systems, and to comply with all other terms and conditions, of the erosion and sediment control plan. The amount of the bond or other surety shall be based on unit price for new public or private sector construction in Albemarle County, Virginia, and a reasonable allowance for estimated administrative costs and inflation which shall not exceed twenty-five (25) percent of the estimated cost to initiate, maintain and repair all erosion and sediment control structures and systems, and to comply with all other terms and conditions, of the erosion and sediment control plan. d. If the program authority is required to take corrective action pursuant to section 19.3-21 upon the failure of the owner to do so, the county may collect from the owner for the difference if the amount of the reasonable cost of the corrective action exceeds the amount of the surety. e. Within sixty (60) days of achieving adequate stabilization of the land disturbing activity in any project or section thereof, the bond or other surety, or any unexpended or unobligated portion thereof, shall be refunded to the owner or terminated based upon the percentage of stabilization accomplished in the project or section thereof. February 11, 1998 (Regular Day Meeting) (Page 28) 000326 Sec. 19.3-16. Amendment of erosion and sediment control plan. The program authority may change an approved erosion and sediment control plan and require an owner to submit an amended plan in the following circum- stances: a. /Ln inspection conducted pursuant to section 19.3-20 reveals that the plan is inadequate to satisfy the requirements of this article; b. The owner 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 program authority and the owner; or c. The land disturbing activity did not begin during the one hundred eighty (180) day period following plan approval, or ceased for more than one hundred eighty (180) days, and the existing plan has been evaluated to determine whether it still satisfies the requirements of this article and state erosion and sediment control criteria and to verify that all design factors are still valid, and it has been determined that the plan is inadequate. In such a case, the land disturbing activity shall not be resumed until a modified plan is submitted and approved as provided in this article. Sec. 19.3-17. Fees. Each owner seeking approval of an erosion and sediment control plan or entering into an agreement in lieu of a plan shall pay a fee upon submittal of such plan, and shall pay a fee for each inspection, in amounts according to the schedule set forth below. Each fee shall be in the form of cash or a check payable to the "County of Albemarle." a. Plan for residential land disturbing activity: $ 40. b. Plan for agricultural land disturbing activity: $ 40. c. Plan for all other land disturbing activity: $ 150. d. Major amendment of plan: $ 100. e. Each inspection: $ 45. Sec. 19.3-18. Review of certain program authority actions. Any person who is aggrieved by any action of the program authority because of its disapproval of an erosion and sediment control plan submitted pursuant to this article, or in the interpretation of the provisions of this article, shall have the right to apply for and receive a review of such action by the board of supervisors, as provided herein: a. An appeal shall be filed in writing with the clerk of the board of supervisors within thirty (30) days of the date notice of the action is given by the program authority. Notice shall be deemed to be given on the date that it is mailed or is hand delivered. b. When reviewing the program authority's action, the board of supervisors shall consider evidence and opinion presented by the aggrieved person, the program authority, and such other persons as shall be deemed by the board to be necessary for a complete review of the matter. The board may affirm, reverse or modify the program authority's action. The decision of the board shall be final, subject only to review by the circuit court as provided in section 10.1-568 of the Code of Virginia. c. For the purposes of this section, the term person aggrieved shall be limited to the owner, owners of adjacent or downstream property, and any interested governmental agency or officer thereof. Division 2. Compliance and enforcement. Sec. 19.3-19. Duty to comply, maintain and repair. Upon approval by the program authority of an erosion and sediment control plan, each owner shall: 000327 February 11, 1998 (Regular DaY Meeting) (Page 29) a. Comply with all of the terms and conditions of the approved plan when performing, or allowing to be performed, any land disturbing activities or activities to correct an erosion impact area. b. Maintain and repair all erosion and sediment control structures and systems to ensure continued performance of their intended function. c. Comply with all requirements of this article. Sec. 19.3-20. Inspections. The program authority shall inspect any land disturbing activity or erosion impact area as provided herein: a. The program authority shall conduct periodic inspections of land disturb- ing activities and erosion impact areas to determine compliance with the approved erosion and sediment control plan, and to determine whether such approved plan and permit as implemented are adequate to satisfy the requirements of this article. b. Except as provided in subsection (c), the periodic inspections shall be conducted: (I) during or immediately following initial installation of erosion and sediment controls; (ii) at least once during every two (2) week period thereafter; (iii) within forty-eight (48) hours following any runoff producing storm event; and (iv) at the completion of the project prior to the release of any surety. The inability of the program authority to conduct inspections within the time periods set forth in this subsection shall not be deemed to be a failure of the program authority to perform a mandatory duty or a ministerial function, and no liability to the county, the program authority, or any official or employee thereof shall arise therefrom. c. Notwithstanding subsection (b), the program authority is authorized to establish an alternative inspection program which ensures compliance with an approved erosion and sediment control plan. Such alternative inspection program shall be: (I) approved by the Virginia Soil and Water Conservation Board prior to implementation; (ii) established in writing; (iii) based on a system of priorities which, at a minimum, address the amount of disturbed project area, site conditions, and stage of construction; (iv) documented by inspection records; and (v) maintained and available for public review in the department of engineering and public works. d. The program authority shall have the right to enter upon property subject to an erosion and sediment control plan for the purposes of conducting an inspection as provided in this section or an investigation pertaining to an erosion or sedimentation complaint. The owner shall be given notice of the inspection. Such notice may be either verbal or in writing. e. The fees required for inspections conducted pursuant to subsection (b) (I), (ii) and (iv) are a part of the application fee required by section 19.3- 17. The fee required for inspections conducted pursuant to subsection (b) (iii) shall be paid by the owner within thirty (30) days of the date shown on the invoice. Sec. 19.3-21. Determination of noncompliance with plan; procedure. Upon a determination by the program authority that an owner has failed to comply with an approved erosion and sediment control plan, the following procedures shall apply: a. The program authority shall immediately serve upon the owner a written notice to comply. The notice shall: (I) instruct the owner to take corrective measures immediately when immediate action is necessary to prevent erosion or sedimentation problems; (ii) state specifically the measures needed to come into compliance with the approved plan; and (iii) state a reasonable time for compliance. The notice shall be served by registered or certified mail to the address provided by the owner in the application for approval of the plan, by personal delivery to the owner, or by personal delivery to an agent or employee at the site of the permitted activities who is supervising such activities. The notice shall also be given to the permit-issuing department. b. If the owner fails to take the corrective measures stated in the notice to comply within the time specified in the notice, the permit-issuing department may revoke any permit it has issued related to the land disturbing activity, and February 11, 1998 (Regular Day Meeting) (Pa~e 30) 000328 the owner shall be deemed to be in violation of this article. c. If the owner fails to take the corrective measures stated in the notice to comply within the time specified in the notice, the program authority, upon finding that such action is reasonably necessary to protect the public health, safety and welfare, may take all corrective measures it deems necessary in order to protect the public health, safety and welfare, and shall be entitled to recover the expenses of such action as provided in section 19.3-23. Sec. 19.3-22. Cessation of land disturbing activity; procedure. Upon receipt of a sworn complaint of an alleged violation of an approved erosion and sediment control plan or this article from a representative of the program authority, the program authority may issue a stop work order as provided herein: a. If land disturbing activities have commenced without an approved erosion and sediment control plan, the program authority may issue a stop work order requiring that all land disturbing activities on the property be stopped until an approved erosion and sediment control plan or any required permits are obtained. b. Except as provided in subsection (c), if the owner has failed to comply with the corrective measures stated in a notice issued pursuant to section 19.3- 21, the program authority may issue a stop work order requiring that all or part of the land disturbing activities permitted on the property be stopped until the specified corrective measures are taken. c. If any failure to comply with this article or the approved erosion and sediment control plan is causing or is in imminent danger of causing harmful erosion of lands, sediment deposition in waters, or water quality problems within the watersheds of the Commonwealth, the program authority may issue a stop work order requiring that all or part of the land disturbing activities permitted on the property, other than corrective measures, be stopped until the specified corrective measures are taken without first issuing and serving a notice to comply as provided in section 19.3-21. An order issued pursuant to this subsection shall remain in effect for a period of seven (7) days from the date of service pending application by the program authority or owner for appropriate relief to a court of competent jurisdiction. d. If the alleged violator does not obtain an approved erosion and sediment control plan within seven (7) days from the date of service of an order issued pursuant to subsection (c), the program authority 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 erosion and sediment control plan and all 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 applicaticx% for approval of the plan or the tax records of the county, or by personal delivery to the owner. e. A stop work order issued pursuant to subsections (a), (b) or © shall be served by registered or certified mail to the address provided by the owner in the application for approval of the plan, by personal delivery to the owner, or by personal delivery to an agent or employee at the site of the activities who is supervising such activities. f. Upon completion of all necessary corrective actions, an order issued pursuant to this section shall be immediately lifted. g. Nothing in this section shall prevent the program authority from seeking any other remedy authorized by this article. Sec. 19.3-23. Penalties and remedies. This article may be enforced as follows: a. Any person who violates any provision of this article shall be guilty of a Class 1 misdemeanor. b. In addition to any criminal penalty imposed under subsection (a), any person who violates any provision of this article may be liable to the county in a civil action for damages. February 11, 1998 (Regular Day Meeting) (Page 31) 000329 c. The county may apply to the circuit court to enjoin a violation or a threatened violation of this article, including the violation, failure, neglect or refusal of any person to obey an order issued pursuant to sections 19.3-21 or 19.3-22, without the necessity of showing that an adequate remedy at law exists. Any person violating, failing, neglecting or refusing to obey any injunction, mandamus or other judicial remedy obtained pursuant to this article shall be subject, in the discretion of the court, to a civil penalty not to exceed two thousand dollars ($2,000.00) for each violation. d. Any owner of property which has sustained damage or which is in imminent danger of being damaged may apply to the circuit court to enjoin a violation or a threatened violation under this article without the necessity of showing that an adequate remedy at law does not exist. Such owner shall not apply for injunctive relief unless: (I) he or she has notified in writing the person who has violated a provision of this article, and the program authority, that a violation of a provision of this article has caused, or creates a probability of causing, damage to his or her property, and (ii) neither the person who has violated a provision of this article nor the program authority has taken corrective action within fifteen (15) days to eliminate the conditions which have caused, or create the probability of causing, damage to his or her property. Article III. Stormwater Management and Water Quality Division 1. Plans. Sec. 19.3-24. Applicability. Each owner shall comply with the requirements of this article prior to commencing any land development, or allowing any land development to occur, on his property, for residential, commercial, industrial or institutional use, and at all times thereafter. Sec. 19.3-25. Designation of water resources areas. In order to better effectuate the purposes of this article, all of the land within the county is hereby designated as being within one or more of the following water resources areas: a. Development areas: Development areas are those areas of land within the county designated as development areas in the land use element of the comprehen- sive plan, and as shown on the official map of the land use element. b. Areas of infill and redevelopment: Areas of infill and redevelopment are those areas of land within the county that are: (I) within a development area; and (ii) designated as areas of infill and redevelopment for purposes of this article by the board of supervisors, and as shown on the official map adopted showing such areas. The board of supervisors shall designate such areas based on a finding that existing development has altered severely the natural conditic~ of the area, including the presence of vegetation, and that infill and redevelopment activities would serve other community and comprehensive plan goals. c. Water supply protection areas: Water supply protection areas are those areas of land within the county that are within the watershed of a public water supply reservoir, and such areas shall consist of all land within the county that drains naturally to the South Fork Rivanna Reservoir, Beaver Creek Reservoir, Totier Creek Reservoir, Sugar Hollow Reservoir, Ragged Mountain Reservoir, Chris Greene Lake, and to any impoundment designated in the future by the board of supervisors as a public water supply reservoir. d. Other rural land: Other rural land consists of those areas of land that are not within a development area, an area of infill and redevelopment, or a water supply protection area. Sec. 19.3-26. Overlapping water resources areas. If a land development is or will be on land within both a water supply protection area and another type of water resources area, the requirements of the water supply protection area shall apply. February 11, 1998 (Regular Day Meeting) (Page 32) 0008.30 Sec. 19.3-27. Stormwater management/BMP plan; requirements. Each owner subject to this article shall submit to the program authority for review and approval a stormwater management/BMP plan as provided herein: a. The owner shall submit an application on an application form provided by the program authority, the fee required by section 19.3-34, a stormwater management/BMP plan that satisfies the requirements of subsections (b) and (c), and a certification stating that all requirements of the approved plan will be complied with. b. The stormwater management/BMP plan shall include specifications for stormwater management and best management practices in order to satisfy the requirements of division 2 of this article. The program authority may require the owner to submit maps, calculations, detail drawings, reports, a listing of all major permit decisions and any other information as may be necessary for a complete review of the plan. c. For purposes of this section, major permit decisions include, but are not limited to, decisions pertaining to zoning map amendments, special use permits, site plans, plats, grading permits, building permits, erosion and sediment control plans and any permit related to the land development required under state or federal law. Sec. 19.3-28. Review and approval of stormwater management/BMP plan. Each stormwater management/BMP plan submitted pursuant to this article shall be reviewed and approved as provided herein: a. Within ten (10) days from the receipt of an application, the program authority shall conduct a preliminary review of the application for completeness. During this period, the program authority shall either accept the application for review, which will begin the forty-five (45) day review period set forth in subsection (d), or reject the application for incompleteness. If the program authority rejects the application because it is incomplete, it shall inform the owner in writing of the information necessary to complete the application. If the program authority accepts the application for review, it shall send an acknowledgment of the acceptance of the application to the owner. b. The plan shall be reviewed by the program authority to determine whether it complies with the requirements of section 19.3-27 and all other requirements of this article. c. During its review of the plan, the program authority may meet with the owner from time to time to review and discuss the plan with the owner, and to request any additional data as may be reasonably necessary for a complete review of the plan. d. The program authority shall approve or disapprove a plan within forty- five (45) days from the date the application was accepted for review. The decision of the program authority shall be based on the plan's compliance with this article. The decision shall be in writing and shall be served by first class mail to the address provided by the owner in the application for approval of the plan or by personal delivery to the owner. The date of the decision shall be either the date that it is deposited for mailing or the date that it is personally delivered to the owner. If the plan is disapproved, the reasons for such disapproval shall be stated in the decision. e. Each stormwater management/BMP plan approved by the program authority shall be subject to the following: 1. The owner shall comply with all applicable requirements of the approved plan, this article, the Virginia Stormwater Management Act (Code of Virginia §§ 10.1-603.2 et seq.), and the state stormwater management regulations set forth in 4 VAC 3-20-10 et seq.; 2. The owner shall certify that all land clearing, construction, land development and drainage will be done according to the approved plan; 3. Land development shall be conducted only within the area specified in the approved plan; February 11, 1998 (Regular Day Meeting) (Page 33) 4. The rights granted by virtue of the approved plan shall not be transferred, assigned or sold unless a written notice of transfer, assignment or sale is filed with the program authority and the recipient of such rights provides the certification required by subsection (e) (2); 5. The program authority may require, in conjunction with its approval of a plan, that the owner first enter into a stormwater management/BMP facilities maintenance agreement as provided in section 19.3-47; 6. The program authority shall be allowed, after giving reasonable notice to the owner, occupier or operator of the land development, to conduct periodic inspections as provided in section 19.3-48; and 7. The program authority may require, as a condition of plan approval, that the owner enter into a right of entry agreement or grant an easement for purposes of inspection and maintenance. If such agreement or easement is required, the program authority shall not be required to give notice prior to conducting an inspection. f. Nothing in this section shall require approval of a plan or part thereof that is determined by the program authority to pose a danger to the public health, safety, or general welfare or to deviate from sound engineering practices. Sec. 19.3-29. Monitoring and reporting. As a condition of approval of a stormwater management/BMP plan, the program authority may require the owner to monitor and report to the program authority as provided herein: a. Any monitoring conducted shall be for the purpose of ensuring compliance with the stormwater management/BMP plan and to determine whether the plan provides effective stormwater management. b. The condition requiring monitorir~ and reporting shall state the method and frequency of such monitoring. c. The condition requiring monitorin~ and reporting shall state the format of the report and the frequency for submitting reports. Sec. 19.3-30. Issuance of permit; surety. A grading, building or other permit for activities involving land development may be issued by a permit-issuing department only as provided herein: a. The owner shall submit with his application for such permit an approved stormwater management/BMP plan and certification by the owner that all land clearing, construction, land development and drainage will be done according to the approved plan. The permit-issuing department shall not issue a permit until such approved plan and certification are submitted. b. Prior to the issuance of any such permit, the permit-issuing department shall require the owner to submit a reasonable performance bond with surety, cash escrow, letter of credit, any combination thereof, or such other legal arrangement acceptable to the permit-issuing department and the county attorney, to ensure that measures could be taken by the permit-issuing department or the program authority at the owner's expense should he fail, after proper notice as provided in section 19.3-49, to take timely corrective action specified in the notice. The performance bond or other surety shall be provided from a date prior to the issuance of any permit by the permit issuing department until sixty (60) days after the requirements of the approved stormwater management/BMP plan have been completed, as determined by the program authority. If approved by the program authority and the county attorney, the owner may submit the performance bond or other surety as part of, or included in, any performance bond or surety required in conjunction with a site plan, plat, or the performance bond or surety required by section 19.3-15. c. A performance bond or other surety required by the permit-issuing department pursuant to subsection (b) shall not exceed the total of the estimated cost to initiate, maintain and repair all stormwater management facilities, practices and other appropriate actions which may be required of the owner pursuant to the approved stormwater management/BMP plan as a result of the land development. The amount of the bond or other surety shall be based on unit price February 11, 1998 (Regular Day Meeting) (Page 34) 000332 for new public or private sector construction in Albemarle County, Virginia, and 'a reasonable allowance for estimated administrative costs and inflation which shall not exceed twenty-five (25) percent of the estimated cost to initiate, maintain and repair all stormwater management facilities, practices and other appropriate actions which may be required of the owner pursuant to the approved stormwater management/BMP plan. d. If the program authority is required to take corrective action pursuant to section 19.3-49 upon the failure of the owner to do so, the county may collect from the owner for the difference if the amount of the reasonable cost of the corrective action exceeds the amount of the surety. e. Within sixty (60) days of the completion of the requirements of the approved stormwater management/BMP plan, as determined by the program authority, the bond or other surety, or any unexpended or unobligated portion thereof, shall be refunded to the owner or terminated. Thereafter, compliance with the requirements of this article shall be assured by a maintenance agreement entered into by and between the owner and the program authority, which agreement shall be in a form approved by the county attorney. Sec. 19.3-31. Amendment of stormwater management/BMP plan. The program authority may change an approved stormwater management/BMP plan as provided herein: a. The owner shall submit additional data identified in section 19.3-27(b) in order to allow the program authority to determine whether any such change to the plan will comply with the requirements of this article. b. The program authority shall conduct its review of the proposed change to the plan as provided in section 19.3-28. c. If the proposed change to the approved plan complies with the require- ments of this article, the program authority shall approve such proposed change in writing. d. An owner shall make no changes to an approved plan without first complying with this section. Sec. 19.3-32. Exceptions. Except for requests to develop in the stream buffer made pursuant to section 19.3-45, a request for an exception to the requirements of this article shall be made and granted as provided herein: a. A written request for an exception shall be submitted to the program authority, which shall immediately forward a copy of the request to the clerk of the board of supervisors. The request shall address the factors listed in subsection (c). b. After receiving and considering a recommendation from the program authority, the board of supervisors shall grant or deny a request for an exception within sixty (60) days of the date of the receipt of the request. c. A request for exception may be granted provided that: 1. A stormwater management/BMP plan has been submitted to the program authority for review in accordance with this article; the plan demonstrates that reasonable alternatives to the exception have been considered and determined to not be feasible through attempts to meet the provisions of this article, the use of non-structural measures as provided in section 19.3-37, the use of a mitigation plan as provided in section 19.3-46, or by other means; 2. The exception requested is the minimum necessary to afford relief; 3. Reasonable and appropriate conditions are imposed as necessary to ensure that the purposes of this article are satisfied; and 4. The basis for the request is not economic hardship, which shall be deemed an insufficient reason to grant an exception. February 11, 1998 (Regular Day Meeting) (Page 35) 000333 Sec. 19.3-33. Dedication of stormwater management facilities. The owner of a stormwater management facility required by this article may offer for dedication any such stormwater management facility, together with such easements and appurtenances as may be reasonably necessary, as provided herein: a. Upon receipt of such offer of dedication by the county, the program authority shall make a preliminary determination that the dedication of such facilities is appropriate to protect the public health, safety and general welfare, and shall forward its determination to the board of supervisors. Prior to making its determination, the program authority shall inspect the facility to determine whether it has been properly maintained and is in good repair. b. The board of supervisors may accept the offer of dedication by adoption of a resolution. c. The document dedicating the stormwater management facility shall be recorded in the office of the clerk of the circuit court for the county. d. If the dedication of a stormwater management facility is required as a condition of approval of a plat, then the provisions of sections 18.1-59, 18.1-61 and 18.1-66 of the subdivision ordinance shall apply in lieu of this section. e. The owner, at his sole expense, shall provide any document or informatic~ requested by the program authority or the board of supervisors. Sec. 19.3-34. Fees. Each owner seeking approval of a stormwater management/BMP plan shall pay a fee upon submittal of such plan, and shall pay a fee for each inspection, in amounts according to the schedule set forth below. Each fee shall be in the form of cash or a check payable to the ~County of Albemarle." a. Plan: $ 100. b. Major amendment of plan: $ 75. c. Request for exception (section 19.3-32): $ 190. d. Request for development in a stream buffer or for reduction or modification of stream buffer (section 19.3-45) and mitigation plan (if not part of another document) (section 19.3-46): $ 50. e. Each inspection: $ 45. Sec. 19.3-35. Review of certain program authority actions. Any person who is aggrieved by any action of the program authority because of its disapproval of a plan submitted pursuant to this article, or in the interpretation of the provisions of this article, shall have the right to apply for and receive a review of such action by the board of supervisors, as provided herein: a. An appeal shall be filed in writing with the clerk of the board of supervisors within thirty (30) days of the date notice of the action is given by the program authority or, if an exception to the requirements of this article as provided in section 19.3-32 is requested and denied, within thirty (30) days of the date notice of the denial of such exception is given by the board of supervisors. Notice shall be deemed to be given on the date that it is mailed or is hand delivered. b. When reviewing the program authority's action, the board of supervisors shall consider evidence and opinion presented by the aggrieved person, the program authority, and such other persons as shall be deemed by the board to be necessary for a complete review of the matter. The board may affirm, reverse or modify the program authority's action. The decision of the board shall be final, subject only to review by the circuit court as provided in section 10.1-603.13 of the Code of Virginia. c. For the purposes of this section, the term person aggrieved shall be limited to the owner, owners of adjacent or downstream property, and any interested governmental agency or officer thereof. February 11, 1998 (Regular Day Meeting) (Page 36) 000334 Division 2. Plan requirements: water quality and water quantity protection Sec. 19.3-36. Stormwater management facilities and channels. Stormwater management facilities and modifications to channels required as part of a stormwater management/BMP plan shall be designed, installed and constructed as provided herein: a. Stormwater management facilities or modifications to channels shall be constructed in compliance with all applicable local, state, and federal laws and regulations, including but not limited to the Federal Clean Water Act, and the State Erosion and Sediment Control Act. b. Stormwater management facilities shall be designed and constructed in compliance with the National Flood Insurance Program and section 30.3 of the zoning ordinance. c. Stormwater management facilities shall be sited to capture, to the maximum extent practical, the runoff from the entire land development project area. d. Hydrologic parameters shall reflect the ultimate buildout in the land development project area and shall be used in all engineering calculations. e. The number, type, and siting of stormwater management facilities shall be designed so as to preserve natural channel characteristics and natural groundwater recharge on a site to the extent practical. Section 19.3-37. Non-structural measures. Non-structural measures may be used in conjunction with or in place of structural measures in order to satisfy the requirements of this article, as provided herein: a. The program authority may allow non-structural measures to satisfy, partially or in whole, the requirements of this article, if such measures are identified in accepted technical literature, are acceptable to the program authority based on its exercise of sound professicmal judgment, and the program authority finds that the measures achieve equivalent benefit for water quantity and/or quality protection as would otherwise be provided by structural measures. b. Non-structural measures include, but are not limited to, minimization of impervious surfaces, stream buffer reforestation, providing additional stream buffer areas, wetland restoration, waste reuse and recycling, and development design that reduces the rate and volume of runoff. Sec. 19.3-38. Control of peak rate and velocity of runoff. Each stormwater management/BMP plan shall require that land and receiving waterways which are downstream from the land development be protected from stormwater runoff damage, as provided herein: a. To protect downstream properties and receiving waterways from flooding, the ten (10) year post-development peak rate of runoff from the land development shall not exceed the ten (10) year pre-development peak rate of runoff. b. To protect downstream properties and receiving waterways from channel erosion, the two (2) year post-development peak rate and velocity of runoff from the land development shall not exceed the two (2) year pre-development peak rate and velocity of runoff. c. If the land development is in a watershed for which a hydrologic and/or hydraulic study has been conducted or a stormwater model developed, the program authority may modify the requirements of subsecticms (a) and (b) so that runoff from the land development is controlled in accordance with the findings in the study or model, or to prevent adverse watershed stormflow timing, channel degradation, and/or localized flooding problems. d. In addition to the requirements of subsections (a) and (b), the program authority may require that the plan include additional measures to address damaging conditions to downstream properties and receiving waterways caused by the land development. February 11, 1998 (Regular Day Meeting) (Page 37) 000335 e. Pre-development and post-development runoff rates determined for purposes of subsections (a) or (b) shall be verified by calculations that are consistent with accepted engineering practices, as determined by the program authority. f. Notwithstanding any other provisions of this article, the following activities are exempt from the requirements of this section: 1. Permitted surface or deep mining operations and projects, or oil and gas operations and projects conducted under the provisions of title 45.1 of the Code of Virginia. 2. Tilling, planting or harvesting or agricultural, horticultural, or forest crops. 3. Single-family dwelling units separately built and not part of a division of land, including additions or modifications to existing single-family detached dwelling units. 4. Land development that disturbs less than one (1) acre of land area, not including cases where land development is to be done in phases and the total land disturbance for all phases is greater than one (1) acre. 5. Land development or a portion of a land development on land which is designated as lying within a flood plain, except in cases where the flood plain has been modified by permitted fill or other activities in compliance with the zoning ordinance. 6. Land development or a portion of a land development where the land is adjacent to a flood plain, and the owner has demonstrated to the reasonable satisfaction of the program authority that off-site improvements or other provisions for the disposition of surface water runoff would equally or better serve the public interest and safety, and that such method of disposition would not adversely affect downstream properties or stream channels. 7. Any land development related to a final site plan or plat approved by the appropriate governing authority prior to the effective date of this chapter. g. The program authority may exempt a land development or part thereof from some or all of the requirements of this section if all of the following conditions are satisfied: 1. The land development or a part thereof is within a water supply protection area or other rural land; 2. The program authority determines that the application of the requirements of this article would cause damage to the environment to an extent which exceeds the benefits of the strict application of all of the requirements of this article; 3. Ail requirements which are determined by the program authority to not apply to the land development or part thereof shall be set forth in the stormwater management/BMP plan; and 4. The granting of an exemption of any requirement of this article will not create a threat to the public health, safety or welfare, or to the environment. Sec. 19.3-39. Best management practices. Each stormwater management/BMP plan shall require that best management practices be provided in conjunction with or in addition to stormwater management facilities designed for water quantity treatment, as provided herein: a. Best management practices shall be designed and sited to capture runoff from the entire land development project area and, in particular, areas of impervious cover within the land development, to the maximum extent practicable. b. Best management practices shall be designed to remove the difference between post-development and pre-development total phosphorus loads in cases where post-development loads exceed pre-development loads. c. Calculation methods and expected removal ranges for various best management practices shall be included in the design manual maintained by the February 11, 1998 (Regular Day Meeting) (Page 38) 000336 program authority. d. Notwithstanding any other provisions of this article, the following activities are exempt from the requirements of this section: 1. Permitted surface or deep mining operations and projects, or oil and gas operations and projects conducted under the provisions of title 45.1 of the Code of Virginia; 2. Tilling, planting or harvesting or agricultural, horticultural, or forest crops; and 3. Single-family dwelling units separately built and not part of a division of land, including additions or modifications to existing single-family detached dwelling units. Sec. 19.3-40. Contribution to regional stormwater management program. Each stormwater management/BMP plan shall require that the owner contribute to a regional stormwater management program, as provided herein: a. If the land development is located within the watershed of a regional stormwater management program established by the county which requires pro rata share contributions, the owner shall pay a pro rata share of the cost of the facility in accordance with any ordinance of the county establishing the program. b. An owner's payment pursuant to subsection (a) shall relieve the owner of the requirements of section 19.3-38, if the regional program is designed to control the peak rate and velocity of runoff, and/or the requirements of section 19.3-39, if the regional program is designed to provide best management practices. An owner's payment pursuant to subsection (a) shall not relieve an owner of his responsibility to comply with any other requirement of this chapter, except as provided in this section. Sec. 19.3-41. Duty to retain or establish stream buffer. Except as provided in section 19.3-43, any land subject to this article and each stormwater management/BMP plan shall provide for stream buffers for the purposes of retarding runoff, preventing erosion, filtering nonpoint source pollution from runoff, moderating stream temperature, and providing for the ecological integrity of stream corridors and networks, as provided herein: a. If the development is located within a development area or an area of infill and redevelopment, stream buffers shall be retained if present and established where they do not exist on any lands subject to this article containing perennial streams, and/or nontidal wetlands contiguous to these streams. The stream buffer shall be no less than one hundred (100) feet wide on each side of such perennial streams and contiguous nontidal wetlands, measured horizontally from the edge of the nontidal wetlands, or the top of the stream bank if no wetlands exist. b. If the development is located within a water supply protection area, stream buffers shall be retained if present and established where they do not exist on any lands subject to this article containing perennial or intermittent streams, nontidal wetlands contiguous to these streams, and flood plains. The stream buffer shall extend to whichever of the following is wider: (i) one hundred (100) feet on each side of perennial or intermittent streams and contiguous nontidal wetlands, measured horizontally from the edge of the nontidal wetlands, or the top of the stream bank if no wetlands exist; or (ii) the limits of the flood plain. The stream buffer shall be no less than two hundred (200) horizontal feet wide from the flood plain of any public water supply impoundment. c. If the development is located within other rural land, stream buffers shall be retained if present and established where they do not exist on any lands subject to this article containing perennial streams, nontidal wetlands contiguous to these streams, and flood plains associated with these streams. The stream buffer shall extend to whichever of the following is wider: (i) one hundred (100) feet on each side of perennial streams and contiguous nontidal wetlands, measured horizontally from the edge of the nontidal wetlands, or the top of the stream bank if no wetlands exist; or (ii) the limits of the flood plain. February 11, 1998 (Regular Day Meeting) (Page 39) 000337 d. On agricultural lands used for crop land, whether located in a development area, an area of infill and redevelopment, a water supply protecticx% area or other rural land, the stream buffer shall include all perennial streams, non-tidal wetlands contiguous with these streams, and a twenty-five (25) foot buffer, measured horizontally from the edge of contiguous non-tidal wetlands, or the top of the stream bank if no wetlands exist. On these lands, the stream buffer shall be managed to prevent concentrated flows of surface water from breaching the buffer area. Each owner of crop land with a stream buffer shall have developed by the Thomas Jefferson Soil and Water Conservation District a soil and water conservation plan, or a component thereof, which, shall be based on an assessment of existing conservation practices of the crop land. e. Each stream buffer shall be maintained and incorporated into the design of the land development to the fullest extent possible. f. Except for the activities pertaining to the management of a stream buffer identified in section 19.3-42, the types of development authorized in a stream buffer identified in section 19.3-44, and the additional types of development which may be allowed in a stream buffer identified in section 19.3-45, no indigenous vegetation within the stream buffer shall be disturbed or removed, regardless of the size of the area affected. Sec. 19.3-42. Management of stream buffer. Each stream buffer required to be retained or established pursuant to section 19.3-41 shall be managed as provided herein: a. In order to maintain the runoff, erosion, nonpoint source pollution control, stream temperature, and ecological values of the stream buffer, indigenous vegetation shall be preserved to the maximum extent possible. The target vegetative cover in the stream buffer shall be an indigenous riparian forest with ground cover, shrub, and tree canopy layers. Removal of vegetation in the stream buffer shall be allowed only as provided in subsections (b) and (c). b. Within twenty-five (25) feet of the top of the stream bank and on land classified as nontidal wetland: 1. Indigenous riparian vegetation shall be preserved or allowed to evolve by natural succession where it does not exist. 2. Dead, diseased, and dying trees may be removed. 3. Fallen trees that are blocking stream channels, or trees with undermined root systems in imminent danger of falling, may be removed where stream bank erosion is a current or potential problem that outweighs any positive effects the fallen tree or trees may have on the stream ecosystem. 4. Removal or pruning of invasive shrub and vine species is allowed, provided that such removal or pruning is done in a manner that prevents erosion. 5. Pathways shall be constructed so as to effectively control erosion; stormwater channels shall be constructed to prevent erosion. c. Beyond twenty-five (25) feet from the top of the stream bank and outside of nontidal wetlands: 1. Dead, diseased, and dying trees may be removed. 2. Silvicultural thinning may be conducted based upon the best available technical advice of a professional forester. 3. Trees may be pruned or removed as necessary to provide limited sight lines and vistas, provided that if trees 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. 4. Trees of six (6) inches diameter or greater at breast height shall be preserved. 5. Removal or pruning of invasive shrub and vine species shall be allowed, provided that such removal or pruning is done in a manner that prevents erosion. 000338 February 11, 1998 (Regular Day Meeting) (Page 40) 6. Pathways and stormwater channels shall be constructed to effectively control erosion. Sec. 19.3-43. Types of development exempt from duties to retain, establish or manage a stream buffer. The following types of development shall not be required to retain, establish or manage a stream buffer, provided that the requirements of this section are satisfied: a. The construction, installation, operation and maintenance of electric, gas and telephone transmission lines, railroads, and activities of the Virginia Department of Transportation, and their appurtenant structures, which are accomplished in compliance with the Erosion and Sediment Control Law (Code of Virginia §§ 10.1-560 et seq.) or an erosion and sediment control plan approved by the Virginia Soil and Water Conservation Board. b. The construction, installation, and maintenance by public agencies of water and sewer lines, including water and sewer lines constructed by private interests for dedication to public agencies, provided that: 1. To the extent practical, the location of such water or sewer lines shall be outside of all stream buffer areas; 2. No more land shall be disturbed than is necessary to construct, install and maintain the water or sewer lines; and 3. Ail such construction, installation, and maintenance of such water or sewer lines shall comply with all applicable federal, state and local require- ments and permits and be conducted in a manner that protects water quality. c. Silvicultural activities, provided that such activities are conducted in compliance with the water quality protection procedures established by the Virginia Department of Forestry in its "Best Management Practices Handbook for Forestry Operations." Sec. 19.3-44. Types of development authorized in stream buffer. If otherwise authorized by the applicable regulations of the zoning ordinance, the following types of development shall be allowed in a stream buffer, provided that the requirements of this section are satisfied: a. A building or structure which existed on the date of adoption of this chapter may continue at such location. However, nothing in this section authorizes the continuance, repair, replacement, expansion or enlargement of such building or structure except as provided in sections 6.0 and 30.3 of the zoning ordinance. b. On-site or regional stormwater management facilities and temporary erosion and sediment control measures, provided that: 1. To the extent~ practical, as determined by the program authority, the location of such facilities shall be outside of the stream buffer; 2. No more land shall be disturbed than is necessary to provide for construction and maintenance of the facility, as determined by the program authority; 3. The facilities are designed and constructed so as to minimize impacts to the functional value of the stream buffer and to protect water quality; and 4. Facilities located within a flood plain adhere to flood plain regulations of the county and are designed and located, to the extent practical, to maintain their water quantity and/or water quality control value, according the standards of this article, during flood conditions. c. Water-dependent facilities; water wells; passive recreation access, such as pedestrian trails and bicycle paths; historic preservation; archaeological activities; provided that all applicable federal, state and local permits are obtained. Sec. 19.3-45. Types of development which may be allowed in stream buffer by program authority. February 11, 1998 (Regular Day Meeting) (Page 41) 000339 Development in a stream buffer may be authorized by the program authority in the circumstances described below, provided that a mitigation plan is submitted to, and approved, by the program authority pursuant to section 19.3-46. a. On a lot which was of record prior to the date of adoption of this chapter and which is not within a water supply protection area: within the fifty (50) horizontal feet of stream buffer that is the most landward (furthest from the stream). b. On a lot which is located within a development area or area of infill and redevelopment: within the fifty (50) horizontal feet of stream buffer that is the most landward. c. On a lot which: (I) is located within a water supply protection area; or (ii) was of record on or after the date of adoption of this chapter and is located within other rural land: within the fifty (50) horizontal feet of stream buffer that is the most landward, but Only for stormwater conveyance channels or other necessary infrastructure, and only if such development is determined by the program authority to be necessary to allow a reasonable use of the lot. In all cases under this subsection (3), the building site and the sewage disposal system shall be located outside of the stream buffer. d. On a lot on which the development in the stream buffer will consist of a lake, pond, or ecological/wetland restoration project. e. On a lot on which the development in the stream buffer will consist of the construction and maintenance of a driveway or roadway, and the program authority determines that the stream buffer would prohibit reasonable access to a portion of the lot which is necessary for the owner to have a reasonable use of the lot. f. On a lot which was of record prior to the date of adoption of this chapter, on which the development in the stream buffer will consist of the construction, installation and maintenance of water and sewer facilities or sewage disposal systems, and the program authority determines that the stream buffer would prohibit the practicable development of such facilities or systems. Any such sewage disposal system must comply with all applicable state laws. g. On a lot which was of record prior to the date of adoption of this chapter, if the stream buffer would result in the loss of a building site, and there are no other available building sites outside the stream buffer on the lot, or to allow redevelopment as permitted in the underlying zoning district. Sec. 19.3-46. Mitigation plan if development allowed in stream buffer. Each owner who seeks to develop in a stream buffer pursuant to section 19.3- 45 shall submit to the program authority for review and approval a mitigation plan as provided herein: a. The owner shall submit a mitigation plan that satisfies the applicable requirements of this section, the fee required by section 19.3-34, and a certification stating that all requirements of the approved plan will be complied with. b. The mitigation plan shall be reviewed by the program authority to determine whether it complies with the requirements of this section and all other requirements of this article. The program authority shall approve or disapprove a mitigation plan within thirty (30) days that a complete plan was accepted for review. The decision shall be in writing and shall be communicated to the owner. If the plan is disapproved, the reasons for such disapproval shall be stated in the decision. c. Each mitigation plan shall: 1. Identify the impacts of proposed development on water quality and lands within the stream buffer; 2. Ensure that, where development does take place within a stream buffer, it will be located on those portions of a site and in a manner that will be least disruptive to the natural functions of the stream buffer; 3. Demonstrate and assure that development will be conducted using best February 11, 1998 (Regular Day Meeting) (Page 42) 000340 management practices; 4. Specify mitigation which will address water quality and stream buffer impacts; 5. Contain all other information requested by the program authority. d. Each mitigation plan shall be evaluated by the program authority based on the following criteria: 1. Whether all reasonable alternatives to development in the stream buffer have been explored and exhausted; 2. Whether the development in the stream buffer is the minimum necessary and is conducted in a manner that will be least disruptive to the natural functions of the stream buffer; and 3. Whether best management practices will effectively mitigate adverse impacts from the encroachment on the stream buffer and its natural functions. Division 3. Compliance and enforcement. Sec. 19.3-47. Duty to comply, maintain and repair; maintenance agreement. Upon approval by the program authority of a stormwater management/BMP plan, each owner shall: a. Comply with all of the terms and conditions of the approved plan. b. Maintain and repair all structural 'and nonstructural stormwater management measures required by the plan, as provided herein: 1. The owner shall be responsible for the operation and maintenance of such measures and shall pass such responsibility to any successor owner, unless such responsibility is transferred to the county or to another governmental entity as provided in section 19.3-33. 2. If an approved stormwater management/BMP plan requires structural or non- structural measures, the owner shall execute a stormwater management/BMP facilities maintenance agreement prior to the program authority granting final approval for any plan of development or other development for which a permit is required. The agreement shall be recorded in the office of the clerk of the circuit court for the county and shall run with the land. If an owner cannot exercise a purchase agreement until a plan of development or other development receives final approval from the county, the program authority may grant its final approval without a signed agreement, provided that the agreement is signed and recorded as provided herein prior to issuance of any certificate of occupancy for the development project. 3. The stormwater management/BMP facilities maintenance agreement shall be in a form approved by the county attorney and shall, at a minimum: (I) designate for the land development the owner, governmental agency, or other legally established entity which shall be permanently responsible for maintenance of the structural or non-structural measures required by the plan; (ii) pass the responsibility for such maintenance to successors in title; and (iii) ensure the continued performance of the maintenance obligations required by the plan and this article. Sec. 19.3-48. Inspections. The program authority shall insPect any land subject to an approved stormwater management/BMP plan as provided herein: a. During the installation of stormwater management/BMP measures or the conversion of erosion and sediment control measures into stormwater manage- ment/BMP measures, the program authority shall conduct periodic inspections to determine whether such measures are being installed as provided in the approved plan. b. Upon completion of the installation of stormwater management/BMP measures, the program authority shall conduct periodic inspections to determine whether such measures are being maintained as provided in the approved plan, or 00034 . February 11, 1998 (Regular Day Meeting) (Page 43) to investigate a complaint pertaining to the plan. The inspections shall be conducted at least annually, measured from the date the installation or implementation of the stormwater management/BMP measures is deemed by the program authority to be complete. The inability of the program authority to conduct inspections within the time periods set forth in this subsection shall not be deemed to be a failure of the program authority to perform a mandatory duty or a ministerial function, and no liability to the county, the program authority, or any official or employee thereof shall arise therefrom. c. The program authority shall be allowed, after giving notice to the owner, occupier or operator of the land development, to conduct any inspection required by this section. The notice may be either verbal or in writing. Notice shall not be required if the program authority and the owner have entered into a right of entry agreement or if the owner has granted to the program authority an easement for purposes of inspection and maintenance, as provided in section 19.3- 28 (e) (7). Sec. 19.3-49. Determination of noncompliance with plan; procedure. Upon a determination by the program authority that the owner has failed to comply with the approved stormwater management/BMP plan, the following procedures shall apply: a. The program authority shall immediately serve upon the owner a written notice to comply. The notice shall be served by registered or certified mail to the address provided by the owner in the application for approval of the plan, by personal delivery to the owner, or by personal delivery to an agent or employee at the site of the permitted activities who is supervising such activities. The notice shall: (I) instruct the owner to take corrective measures immediately when immediate action is necessary to prevent or abate drainage or water pollution problems; (ii) specify the measures required to comply with the plan; and (iii) specify the time within which such measures shall be completed. The notice shall also be given to the permit-issuing department. b. If the owner fails to take the corrective measures stated in the notice to comply within the time specified in the notice, the permit-issuing department may revoke any grading, building or other permit for activities involving the land development, and the owner shall be deemed to be in violation of this article. c. If the program authority determines, upon completion of a maintenance inspection provided in section 19.3-48, that maintenance or repair of the measures is neglected, or that any stormwater management facility is a danger to public health or safety, it may perform the work necessary to assure that such measures or facilities are not a danger to public health or safety, and shall be entitled to recover the costs of such work from the owner. Sec. 19.3-50. Penalties and remedies. This article may be enforced as follows: a. Any person who violates any provision of this article shall be guilty of a misdemeanor and shall be subject to a fine not exceeding one thousand dollars ($1000.00) or up to thirty (30) days imprisonment for each violation, or both. b. The county may apply to the circuit court in any jurisdiction wherein the land lies to enjoin a violation or a threatened violation of the provisions of this article without the necessity of showing that an adequate remedy at law exists. c. Without limiting the remedies that may be obtained pursuant to this section, the county may bring a civil action against any person for violation of any provision of this article or any term or condition of a permit or plan. The action may seek the imposition of a civil penalty of not more than two thousand dollars ($2000.00) against the person for each violation. d. With the consent of any person who has violated or failed, neglected or refused to obey any condition of a permit, obligation of a plan or agreement, or any provision of this article, the program authority may provide, in an order issued by the program authority against such person, for the payment of civil charges for violations in specific sums, not to exceed the limit specified in 000842 February 11, 1998 (Regular Day Meeting) (Page 44) subsection (c). Such civil charges shall be instead of any appropriate civil penalty which could be imposed under subsection (c). Agenda Item No. 9. Approval of Minutes: Ms. Thomas had read the minutes of April 2, 1997, and found them to be in order with the exception of one typographical error. Mr. Martin had read the minutes of January 15, 1997, and found them to be in order. Mr. Bowerman had read the minutes of December 6, 1995, pages 1 - 19, and found them to be in order. Mr. Perkins had read the minutes of December 6, 1995, pages 20 - end, and found them to be in order. Ms. Thomas offered motion, seconded by Mr. Martin, to approve the minutes as read. Roll was then called and the motion carried by the following recorded vote: AYES: NAYS: Ms. Humphris, Mr. Marshall, Mr. Martin, Mr. Perkins, Ms. Thomas and Mr. Bowerman. None. Agenda Item No. 10. Other Matters not Listed on the Agenda from the BOARD. Motion was offered by Ms. Thomas, seconded by Mr. Martin, to reappoint Mr. W. Ivar Mawyer to the Equalization Board, with term to expire on December 31, 1998. Motion was offered by Ms. Thomas, seconded by Mr. Martin, to reappoint Mr. J. Randolph Parker to the Albemarle County Service Authority Board, with term to expire on April 16, 2002. Roll was then called and the motions carried by the following recorded vote: AYES: NAYS: Ms. Humphris, Mr. Marshall, Mr. Martin, Mr. Perkins, Ms. Thomas and Mr. Bowerman. None. Mr. Bowerman mentioned a letter he and Mr. Martin received from Mayor Kay Slaughter regarding the use of amplified music at Towe Park on May 9, 1998, for the Rivanna River Festival. Mr. Bowerman and Mr. Martin (members of the Darden Towe Memorial Park Committee) said they were inclined to support the request as long as it does not set a precedent. Following some brief discus- sion, the Board asked staff to review the Towe Park Agreement to see if there is any action required by the Board as it relates to this request. Agenda Item No. 11. Executive Session: Legal Matters. At 8:00 p.m., motion was offered by Mr. Bowerman, seconded by Ms. Humphris, that the Board adjourn into Executive Session pursuant to Section 2.1-344(A), under subsec- tion (7) to consult with legal counsel and staff regarding specific legal matters relating to Charlottesville's transition to town status. Roll was then called and the motion carried by the following recorded vote: AYES: NAYS: Ms. Humphris, Mr. Marshall, Mr. Martin, Mr. Perkins, Ms. Thomas and Mr. Bowerman. None. Agenda Item No. 12. Certify Executive Session. At 9:10 p.m., the Board reconvened into open session. Motion was offered by Mr. Bowerman, seconded by Mr. Perkins, that the Board certify by a recorded vote that to the best of each Board member's knowledge only public business matters lawfully exempted from the open meeting requirements of the Virginia Freedom of Information Act and identified in the motion authorizing the executive session were heard, February 11, 1998 (Regular Day Meeting) (Page 45) discussed or considered in the executive session. motion carried by the following recorded vote: AYES: NAYS: OO084,2 Roll was called and the Ms. Humphris, Mr. Marshall, Mr. Martin, Mr. Perkins, Ms. Thomas and Mr. Bowerman. None. Agenda Item No. 12. Adjourn. The meeting was immediately adjourned. Approved by Board Date