ARLINGTON COUNTY, VIRGINIA. County Board Agenda Item Meeting of June 17, 2017

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1 ARLINGTON COUNTY, VIRGINIA County Board Agenda Item Meeting of June 17, 2017 DATE: June 9, 2017 SUBJECT: Request to authorize advertisement of public hearings by the Planning Commission and County Board on the Chesapeake Bay Preservation Area Map, an element of the County's Comprehensive Plan, and the Chesapeake Bay Preservation Ordinance (Chapter 61 of the County Code). C. M. RECOMMENDATION: Adopt the attached Resolution to authorize advertisement of public hearings by the Planning Commission on July 5, 2017, and by the County Board on July 15, 2017 to consider the adoption of an updated Chesapeake Bay Preservation Area Map and removal of the Chesapeake Bay Preservation Ordinance from the County s Comprehensive Plan. ISSUES: State statute requires local governments to establish and maintain an accurate Chesapeake Bay Preservation Area ( CBPA ) map ( Map ) as a component of their Comprehensive Plan (9VAC ). An accurate Map is required for staff to fairly review development project proposals. Revisions to the Map will remove Resource Protection Area ( RPA ) designations from 280 parcels, but will result in new RPA designations on 196 properties. Property owners who receive new Resource Protection Area designations as a result of the CBPA map update may be concerned about limitations on development rights and potentially decreased property values. SUMMARY: The Chesapeake Bay Preservation Area Map was last updated in Data collection for the Stormwater Master Plan (2014) and the Natural Resource Management Plan (2010) has yielded more accurate and thorough geographic information about the County s water resources. An update to the Map is required to ensure that the County can fulfill its regulatory responsibilities, review development projects fairly, protect water quality and provide accurate information to its residents and stakeholders. Adoption of the updated Map will remove RPA designation from 280 parcels, and will decrease the total number of parcels with RPA in the County from 1,523 to 1,439 parcels. However, 196 new properties will be designated with RPA as result of the update. The additional permitting and mitigation requested for RPA projects can add to the time and expense of a project. Typically, however, planned RPA projects are able to County Manager: ##### County Attorney: ***** Staff: Christin Jolicoeur, OSEM-DES Aileen Winquist, OSEM-DES 42.

2 move forward, and include measures to protect water quality. Analysis of sales data by the Department of Real Estate Assessments during the past 10 years for more than 300 single-family properties designated with RPA did not indicate that the designation negatively impacts the sale of a property. Additionally, the Chesapeake Bay Preservation Ordinance is a regulatory document and as such is not a required Comprehensive Plan element. The Chesapeake Bay Preservation Plan, within the Comprehensive Plan, will continue to guide policy decisions. BACKGROUND: The Virginia General Assembly adopted the Chesapeake Bay Preservation Act in 1988 to improve water quality in the Chesapeake Bay and other waters in the State. The Act and associated Chesapeake Bay Preservation Area Designation and Management Regulations require local governments along the tidal portion of the Bay and its major tributaries to adopt ordinance and Comprehensive Plan elements to protect environmentally-sensitive areas adjacent to streams and tidal shorelines, and to maintain a Chesapeake Bay Preservation Area map depicting the location and extent of such lands. Arlington County adopted its Chesapeake Bay Preservation Ordinance ( Ordinance ) and an official Chesapeake Bay Preservation Area Map in May 1992 as elements of the Comprehensive Plan. In 2001, the County adopted the Chesapeake Bay Preservation Plan as a component of its Comprehensive Plan. The adopted Map has not been revised since The Map depicts lands identified as Chesapeake Bay Preservation Areas by the County Board under the Ordinance. These lands include both RPAs and Resource Management Areas ( RMAs ). RMAs include land types that, if improperly used or developed, have a potential for causing significant water quality degradation or for diminishing the functional value of the RPA. All of Arlington County, outside of RPAs, has been designated as RMA. Arlington s Map is functionally a map of RPAs and is often referred to as the RPA map. Resource Protection Areas: The County s Ordinance identifies RPAs as: tidal wetlands; non-tidal wetlands connected by surface flow and contiguous to tidal wetlands or water bodies with perennial (year-round) flow; tidal shores; and the 100-foot buffer adjacent to these features as well as along both sides of perennial streams. The other lands provision of the state regulation (9VAC ) gives local governments the authority to designate additional environmentally-sensitive lands with intrinsic water quality value as RPA. With the 2003 amendment of the Ordinance, the County Board designated the following additional other lands as RPA: all natural and man-made stream channels mapped in the most recent version of the County s GIS system (includes streams without year-round flow); a 100-foot buffer along both sides of such channels; adjacent 25 percent or greater slopes; and - 2 -

3 adjacent 15 percent or greater slopes when necessary to protect the integrity of the RPA buffer. Currently, this last category of protected lands applies only to the Potomac Palisades area of the County from Chain Bridge to the County boundary, affecting 17 properties in the Arlingwood Civic Association. The County s Ordinance establishes a link between local land use decision making and water quality protection. Within RPAs, building and landscaping activities are regulated to protect water quality and water resources. Some activities within the RPA, including gardening, and repair and maintenance of existing landscape and building areas, can occur at a property owner s discretion. On properties where RPA is designated, building projects, such as the replacement or expansion of an existing home, that increase stormwater runoff and/or could negatively impact the RPA require additional review during permitting. Property owners may be required to adjust their development plan or mitigate water quality impacts and protect or enhance existing RPA vegetation. Certain projects may require an exception from the Chesapeake Bay Ordinance Review Committee (CBORC) before they can be permitted. DISCUSSION: Map Revision: Existing published stream maps, supplemented with limited field assessment, formed the basis for the current Map. Since 2003, the County has used field assessment to refine its natural resource and storm infrastructure mapping. The Natural Heritage Resource Inventory completed in support of the 2010 Natural Resource Management Plan generated revised maps of Arlington s stream and wetland resources. The County mapped and assessed local streams to compile the stream inventory incorporated in the Stormwater Master Plan (2014). Storm sewer mapping completed for that Plan also yielded new and more accurate data about the County s storm sewer infrastructure. Infrastructure and drainage projects undertaken by the County on private property can produce new information about stream and wetland resources on private land. As a result, significant updates to the County s Geographic Information System (GIS) stream map have occurred over the past decade as data collected from these various sources has been incorporated. The County s Ordinance includes two key provisions that, applied together, underscore the necessity of the proposed Map update: 1) RPAs include all natural stream channels and man-made open stream channels as depicted on the most recent storm sewer map layer of the County's geographic information system [GIS].; and, 2) Where RPA boundaries on the adopted CBPA map differ from boundaries as determined from the text of this chapter, the text shall govern. This provision anticipates minor inaccuracies in the County s stream and storm system mapping, and eliminates the need to continuously revise the Map. However, under this provision protected areas can exist on a property, and property owners may be subject to code requirements, in the absence of an accurate adopted Map. These two provisions mean that any update of the GIS map has the potential to create new RPAs

4 A revision to the current Arlington County adopted Map (Attachment A) is necessary at this time to ensure consistency with County Code and State requirements and to ensure fair and equitable customer service to property owners and the development community. Currently, inaccuracies in the adopted 2003 Map are significant enough to create situations where property owners may not be able to determine that their property is affected by the RPA designation. Alternatively, the Map may depict RPA where it does not currently exist. In the absence of an accurate Map, staff implementing the Ordinance have interpreted the Map in favor of the property owner when RPA designations have not been clearly identified. Arlington County s Chesapeake Bay program is periodically reviewed by the Virginia Department of Environmental Quality for compliance with the Chesapeake Bay Preservation Act. Maintaining a current Map consistent with Ordinance language is an element of having a compliant program, as is appropriate and consistent enforcement of the local ordinance. Table 1 presents the quantitative impact of the proposed map revision on Arlington County properties. RPA is currently designated on 1,523 parcels of these, 1,225 are zoned for singlefamily or townhouse development. The Map revision will remove RPA from 280 parcels, but will also designate new RPA on 196 parcels. The net impact of the revision is a decrease in both the number of parcels and number of RPCs impacted by the RPA designation. The extent of the RPA on a parcel may also change as a result of the proposed Map revision. Table 1: Impact of proposed Map revision. Adopted CBPA Map Proposed CBPA Map RPA Removed No. Parcels with RPA designation No. SFH/TH 1 parcels with RPA designation No. of SFH/TH parcels with main structure in RPA No. of SFH/TH parcel - RPA within 15 feet of the main structure No. of RPCs with RPA designation n/a n/a RPA Added n/a n/a 430 Additionally, the proposed CBPA map revision (Attachment B) would result in the RPA designation being added to three park properties (and removed from one) and one school property (and removed from one). 1 Single-family home/townhome - 4 -

5 If the proposed Map is adopted by the County Board, it would become effective on January 1, This provides property owners affected by a new RPA designation with time to submit planned projects for permitting. Permit applications received prior to the effective date would not be subject to the review for water quality impacts required by the Ordinance for projects with an RPA designation. An on-line map overlaying the current and proposed RPA is available to illustrate where RPA will be removed and added ( Community Process: Staff initially notified County property owners regarding the proposed CBPA map update via postal letter in June The County also held three public meetings, two in July 2016 and a third in May 2017, to provide residents with the opportunity to learn more about the Map revision. Additionally, staff provided updates to citizen and development groups, including the Arlington County Civic Federation (January 2017), the Arlington County Inspection Services Division Contractors/Expeditors Meeting (April 2017), the Urban Forestry Commission (April 2017) and the Environment and Energy Conservation Commission (June 2016 and May 2017). If authorized by the Board, the Planning Commission will hold a public hearing on the map update on July 5, Owners of properties receiving a new RPA designation have expressed several concerns related to the CBPA map update. Their concerns focus on: the quality of the resources to be protected likely development restrictions on their properties, and loss of property value. These issues and concerns are highlighted in more detail below. Quality of Resources to Be Protected: The stream inventory conducted for the 2014 Stormwater Master Plan identified a number of previously unmapped stream segments, primarily ephemeral and intermittent hillside drainages located on steep slopes. Because these channels do not exhibit consistent flow, residents may consider these streams to be eroded ditches and may not agree that a particular stream warrants the limitations the RPA designation places on their property. However, the County s intermittent and ephemeral streams are tributaries of perennial streams, making them an integral component of the County stream network. Their setting on steep slopes with high erosion potential makes them extremely sensitive to impacts from development. Additionally, because they are alternately wet and dry, they foster unique chemical processes that remove pollutants and provide critical wildlife habitat. These non-perennial water resources especially with their adjacent forest cover are the type of environmentally-sensitive areas the other lands authority is delegated to local governments to protect. Overall, most of the streams designated with RPA in the County are estimated to have perennial flow, and most RPA designations can be attributed to a proximity to perennial streams. In total approximately 32 miles of stream are designated with RPA in the County, and 92 percent are known to be perennial streams

6 Development Constraints: The RPA designation does not eliminate the opportunity for property owners to pursue desired development or redevelopment. RPA development proposals are reviewed relative to the existing RPA condition. Structures and uses existing on a parcel when RPA is designated are grandfathered and can be maintained, repaired or replaced in-kind without regulatory review. Redevelopment proposals such as a home addition or the tear down and replacement of an existing residence must be permitted and may require a CBORC exception and/or mitigation for potential water quality impacts. Almost all planned RPA projects are permitted after review, and frequently projects incorporate measures to protect water quality. Mitigation requests usually include the addition of native vegetation, the removal of invasive plant or additional stormwater management requirements. A key provision of the County Ordinance protects the development potential of undeveloped lots designated with RPA. The additional permitting for RPA projects can add to the time and expense of a project. The fee for a Chesapeake Bay water quality impact review is scaled based on the size of the project. Projects disturbing fewer than 2,500 square feet are not charged a fee. The fee is $525 for singlefamily home projects disturbing 2,500 square feet or more and $1,575 for projects disturbing 5,000 square feet or more in the RPA requiring an exception. Review typically occurs concurrent with other required permitting. Projects requiring an exception may take longer to permit. Mitigation requested to offset potential water quality concerns can also add costs. These costs range from zero to several thousand dollars depending on the mitigation requested. Property owners may also choose to amend the desired scope of a project or modify the footprint or orientation of a proposed development to avoid an exception hearing, reduce mitigation requirements or to streamline permit review. Overall, however, staff strive to implement RPA requirements in a way that is practical, fair and defensible from both the regulatory and community perspective. Impact of The RPA Designation On Property Value: At the request of the Department of Environmental Services, the Department of Real Estate Assessments completed a study of RPA sales data in February That study examined transactions during the past ten years for more than 300 single family properties designated with RPA. The study compared assessed value to sales price, and determined that for RPA properties this relationship is comparable to this relationship County-wide. Sales data for properties with the RPA designation do not indicate that the designation negatively impacts the sale of a property. This study did not examine factors such as time on market or the relationship between the asking and the sales price. Conversations with agents and buyers suggest that a buyer s perspective affects whether the RPA designation is viewed as a positive (because it preserves existing natural areas and open space) or a negative (because it constrains redevelopment). Comprehensive Plan Implications: The Chesapeake Bay element of the County s Comprehensive Plan currently consists of: the Chesapeake Bay Preservation Ordinance the 2003 Chesapeake Bay Preservation Area map; and the Chesapeake Bay Preservation Plan - 6 -

7 State regulations (9VAC ) require the County to develop and maintain a Chesapeake Bay comprehensive plan component consisting of: relevant data; analysis and policy discussions; a Chesapeake Bay Preservation Areas map; and an implementation plan. The Virginia Department of Environmental Quality confirms that localities are not required to include Chesapeake Bay ordinances in their Comprehensive Plan under the Chesapeake Bay Preservation Act or Chesapeake Bay Preservation Area Designation and Management Regulations as these are regulatory documents and therefore not pertinent in the County s primary policy document, the Comprehensive Plan. The County s Chesapeake Bay Preservation Plan, adopted in 2001, provides the required data on Arlington s water resources and existing and potential water-related development and includes the required analysis and policy discussion and implementation plan. Should any future amendments be considered for the Preservation Plan, those would continue to be reviewed by the Planning Commission and adopted by the County Board. Removal of the Ordinance from the Comprehensive Plan will not affect its regulatory authority. The Ordinance will remain a component of County Code (Chapter 61). If the County Board approves the removal of the Ordinance from the Comprehensive Plan, staff will take additional steps to update/revise other elements of the Comprehensive Plan that currently indicate the Ordinance as part of the Comprehensive Plan. Going forward, amendments to the Ordinance would be reviewed by the County Board. Conclusion: More accurate data on the location and condition of our streams and wetlands collected in support of the Stormwater Master Plan and Natural Resources Management Plan has resulted in substantive revisions to the County s GIS stream map. As a result, an update to the County s Chesapeake Bay Preservation Area Map is required to meet state regulatory requirements and accurately depict the location of Resource Protection Areas established under the Chesapeake Bay Preservation Ordinance. Staff recommends that the County Board adopt the attached resolution (Attachment C) to authorize advertisement of public hearings by the Planning Commission on July 5, 2017, and by the County Board on July 15, 2017, to consider adoption of the proposed update of the Chesapeake Bay Preservation Area Map and removal of the Chesapeake Bay Preservation Ordinance from the Arlington County Comprehensive Plan. FISCAL IMPACT: None. The primary fiscal impact is staff to respond to inquiries regarding the Ordinance, and to review and approve permit applications for RPA impacts. The number of properties with an RPA designation will decrease slightly as a result of the Map update. Currently, fewer than 30 permit applications are reviewed annually. The impact of the Map update on the number of annual permit applications is difficult to predict as it cannot be known which properties will develop and when. However, this number is not anticipated to increase. Therefore, no additional funding for staff is required. Revenue from permit fee collection may decrease slightly, but this decrease is expected to be negligible

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10 Attachment C RESOLUTION TO AUTHORIZE ADVERTISEMENT OF PUBLIC HEARINGS BY THE PLANNING COMMISSION AND BY THE COUNTY BOARD TO CONSIDER ADOPTION OF THE UPDATED CHESAPEAKE BAY PRESERVATION AREAS MAP AND REMOVAL OF THE CHESAPEAKE BAY PRESERVATION ORDINANCE FROM THE COMPREHENSIVE PLAN The County Board of Arlington County hereby resolves to authorize the advertisement of a public hearing by the Planning Commission on July 5, 2017 and by the County Board on July 15, 2017 to consider adoption of the updated Chesapeake Bay Preservation Areas Map and removal of the Chesapeake Bay Preservation Ordinance from the Comprehensive Plan.