At a regular meeting of the Pulaski County Board of Supervisors held on Monday, December 18, 2006 at 7:00 p.m. at the County Administration Building, Board Room, 143 Third Street, NW, in the Town of Pulaski, Virginia, the following members were present: Joseph L. Sheffey, Chairman; Frank R. Conner, Vice Chairman; William E. Eddie Hale; Ranny L. Akers; and Dean K. Pratt. Staff members present included: Thomas J. McCarthy, Jr., County Attorney; Peter M. Huber, County Administrator; Shawn Utt, Community Development Director; Gordon Jones, Finance Director, and Gena T. Hanks, Clerk. 1. Invocation The invocation was presented by Reverend Jeff Kackley of the First Presbyterian Church. 2. Featured Employees The Board recognized Debbie Boyd of the Treasurer s Office and Trina Rupe of the Commissioner of the Revenue Office as the Featured Employees for the month of January 2007. Mr. Sheffey read a detailed description of the job duties and personal interests of each employee and presented Ms. Boyd and Ms. Rupe with a gift certificate to Shoney s. 3. Additions to Agenda Mr. Huber advised of the addition of a financial report from Finance Director Gordon Jones, as well as an update on the space needs related to New River Community Action. 4. Public Hearings a. A rezoning request by John A. & Christine M. Treese from Residential (R1) to Agricultural (A1) on property identified as tax map no. 068-001- 0000-0007B, 068-001-0000-007C located at 4805 Shelburne Rd. (Rt. 690), (2.5190 total acreage), Ingles District. Mr. Sheffey explained the purpose of the public hearing and called on Community Development Director Shawn Utt to provide additional details on the rezoning request. Mr. Sheffey opened the public hearing. There were no citizen comments and the public hearing was closed. On a motion by Mr. Akers, seconded by Mr. Pratt and carried, the Board approved the rezoning request as noted above and as recommended by the Planning Commission.
Voting yes: Mr. Hale, Mr. Conner, Mr. Sheffey, Mr. Akers, Mr. Pratt. Voting no: none. b. A rezoning request by Vera Jane Mason ET AL from Residential (R3) to Commercial Conditional (CM1) on property identified as tax map no. 029-001-0000-0063, located on the southwest corner of the intersection of Peppers Ferry Blvd. (Rt. 114) and Viscoe Rd. (Rt. 679), (21.7190 acres), Cloyd District. Mr. Sheffey explained the purpose of the public hearing and called on Community Development Director Shawn Utt to provide additional details on the rezoning request, including a listing of voluntary proffers. Mr. Sheffey opened the public hearing. Comments were heard from Mr. John Mason in favor of the request, as well as comments from Jeannette Hall expressing concerns about the types of commercial development which may take place on the property, if the request is approved. Supervisor Hale questioned what type of buffers would be provided between the land and the new school. Mr. Utt responded the buffers would most likely be in the form of a tree line. Supervisor Hale noted one of the reasons for choosing the site for the new school was for the view of the school from Route 114. There being no additional citizen comments, the public hearing was closed. On a motion by Mr. Conner, seconded by Mr. Akers and carried, the Board approved the rezoning request, including voluntary proffers as follows: STATEMENT OF VOLUNTARY PROFFER FOR THE FOLLOWING REZONING REQUEST, A rezoning request by Vera Jane Mason ET AL from Residential (R3) to Commercial Conditional (CM-1 Cond.) on property identified as tax map no. 029-001-0000-0063, located on the southwest corner of the intersection of Peppers Ferry Blvd. (Rt. 114) and Viscoe Rd. (Rt. 679), (21.7190 acres), Cloyd District. The property is designated as Agricultural on the Future Land Use Map of the Pulaski County Comprehensive Plan. General uses proposed are business uses at a proposed density of no greater than one business per 10,000 square feet. I, John D. Mason, Co-owner of the property identified above, do hereby submit the following voluntary proffers in association with our request for a rezoning of the above referenced properties from Residential (R-3) to Commercial Conditional (CM-1 Cond.):
1. Uses shall be limited to the remaining uses as shown on the attached listing of allowable uses in the Commercial (CM-1) Zoning District. The uses crossed out shall not be permitted. 2. Additional buffering will be provided as necessary upon presentation of a site plan for review to the Pulaski County Zoning Administrator. These proffers as submitted are completely voluntary, and are approved by me for the property identified by tax map parcel 029-001-0000-0063 and owned by Vera Jane Mason ET AL. Signed: John D. Mason Date NOTARY STATEMENT State of County of The foregoing instrument was acknowledged before me this day of, 20. ALLOWABLE USES FOR PROPERTIES IDENTIFIED AS TAX MAP PARCELS 029-001-0000-0063, (21.7190 acres total) Statement of Intent ARTICLE 4: COMMERCIAL DISTRICT (CM-1) Generally, this district covers that part of the community intended for the conduct of general business to which the public requires direct and frequent access, but which is not characterized by constant heavy trucking other than stocking and delivery of retail goods, or by nuisance factors other than occasioned by incidental light and noise of congregation of people and passenger vehicles, which are less disruptive than those uses provided for in Industrial, (I-1). 4-1 Uses Permitted by Right 1 Within the Commercial District (CM-1), the following uses are permitted by right. An asterisk (*) indicates additional, modified, or more stringent standards are listed in Article 1, Definitions, Use and Design Standards. Accessory uses as they pertain to items covered in Statement of Intent Agricultural Products Sales * 2 Autos and Home Appliance Services Banks Barber and Beauty Shops Bed and Breakfast * 3 Boarding House Bowling Alley 1 Section 4-1 Revised 08/24/1992 & 03/024/1997 2 Use Added 07/25/2005 3 Use Added 06/28/2004
Condominium, Business4 Daycare Center * 5 Dwelling, Business Accessory Use Feed and Seed Stores Fire Departments Food Sales Funeral Home Gasoline filling stations and/or the servicing and repairing of motor vehicles when in an enclosed structure. Golf Driving Ranges Hardware Stores Hotel Marina, Commercial 6 Maintenance of public utilities, including railroads (except railroad yards) and water and sewerage installations Miniature Golf Courses Motel Office and Personal and Professional Services Off-street Parking as required by this ordinance. Professional Office Buildings Public garages, for storage and/or repair of motor vehicles when in an enclosed space. Public and Semi-public uses, such as: Churches Church Adjunctive Cemeteries Libraries Museums Schools Hospitals Post Offices Public utilities generating booster or relay stations, transformer substations, transmission line and towers, pipes, meters, and other facilities for the provisions and maintenance of public utilities, railroads and facilities; water and sewerage installations, and CATV7 Rescue Squad Facilities Restaurants Retail Drug Stores Sales, Rental and Servicing of Construction and Agricultural Equipment 8 Schools of Special Instruction Theaters Veterinarian Hospitals Waterfront Business Activities: Wholesale and retail marine activities such as: Activities primarily conducted on or about waterfront. All such uses shall be contiguous to a waterfront. Boat Docks Boat Houses Piers Yacht Clubs and Servicing Facilities Wearing Apparel Shops Wholesale and Processing Activities 4 Use added 6/26/2000 5 Use Added 05/23/2005 6 Use Added 07/22/2002 7 Section 4-1 Public Utilities Edited for Consistency Administratively 01/05/1996 8 Use Added 12/19/2005
4-2 RESERVED 9 4-3 Uses Permitted by Special Use Permit (SUP) Only 10 Within the Commercial District (CM-1), the following uses are permitted by Special Use Permit only: Adult Entertainment (see Article 4-9 for criteria) 11 Adult Movie Theatre (see Article 4-9 for criteria) 12 Adult Retail Establishment (see Article 4-9 for criteria) 13 Automobile Graveyards Borrow Pit Commercial Amusement Parks Commercial Assembly Halls Dance Halls and similar forms of public amusement. Dock Facilities, Commercial/Non-Residential (see Article 8-4, Commercial/Non-Residential Docks Regulated) 14 Dwelling, Commercial Apartment Flea Markets Fraternal Lodges and Community Buildings Hospitals, Special Care Manufacturing, Light 15 Manufacturing, Temporary 16 Parks and Recreational Facilities Private Tanks or Pump Stations (above ground), except Pulaski County public water and sewer utility units shall require only a site plan review.17 Exempt from these requirements are: a. tanks eight (8) feet in height or less intended to serve single-family residences for water and/or heating fuel, and b. tanks eight (8) feet in height or less and 1,000 gallons or less for agricultural uses. c. Any tank used for agricultural purposes when such tank is located at least 1,000 feet from adjoining property. 18 Public Billiard Parlors and Pool Rooms Racetracks (Motor Vehicle or Animal) Sale of New and/or Used Vehicles19 Sale of New and/or Used Manufactured Homes, with used manufactured homes not suitable for immediate occupancy to be stored in a fully enclosed area.20 Setback Variance State Water Control Board Permitted Sewage Facilities Taxi Cab Service21 Towers, Public Safety and/or Government Communications, 250 ft. or less 22 Windmills 23 4-4 Height Regulations 9 All CUP s converted to SUP s 07/22/2002 10 Section 4-3 Revised 08/24/1992 & 03/024/1997; All CUP s converted to SUP s 07/22/2002. 11 Use Added 01/23/2006 12 Use Added 01/23/2006 13 Use Added 01/23/2006 14 Use Added 08/25/2003 15 Use Added 03/24/1997 16 Use Added 08/23/2004 17 Use Added 06/01/1998 18 Exemption Added 05/24/1999 19 Use Changed from By Right to SUP 03/24/1997 20 Use Changed from By Right to SUP 03/24/1997 21 Use Added 10/23/2000 22 Use Added 03/24/2003; amended 8/25/2003 increasing height from 199 ft. to 250 ft. 23 Use Added 06/28/2004
4-4.1 Buildings may be erected up to thirty-five (35) feet in height from grade. 4-4.2 A building may be erected to a height of sixty (60) feet from grade provided that required front, side and rear yards shall be increased one (1) foot in height over thirty-five (35) feet. 4-4.3 Church spires, belfries, cupolas, monuments, water towers, chimneys, flues, flagpoles, elevator towers, television antennae, and radio aerials are exempt. Parapet walls may be up to four (4) feet above the height of the building on which the walls rest. 4-4.4 No accessory building which is within ten (10) feet of any party line shall be more than one (1) story high. 24 4-5 Setback Requirements25 Buildings in this zone shall be a minimum of twenty (20) feet from the right-of-way of any street or highway on which the lot fronts. The setback may be reduced to fifteen (15) feet if a sidewalk is provided. 4-6 Yard Regulations 4-6.1 The minimum side and rear yards adjoining a boundary of a residential, agricultural or conservation district shall be ten (10) feet. 4-6.2 Accessory uses, including parking areas, shall be located ten (10) feet or more from side and rear lot lines adjoining a boundary of a residential, agricultural or conservation district. 4-7 Frontage Regulations A minimum width of one hundred (100) feet is required at a point located thirty-five (35) feet from the front property line with a minimum street frontage of sixty (60) feet. 4-8 Area Regulations.26 For commercial lots, the minimum lot area shall be ten thousand (10,000) square feet. 4-9 Special Use Permit (SUP) Criteria for Adult Businesses 27 4-9.1 Preamble to Adult Business Ordinance WHEREAS, adult businesses as defined in this ordinance require special supervision from the public safety agencies of the County in order to protect and preserve the health, safety, morals and welfare of the patrons of such businesses as well as the citizens of the County; and WHEREAS, adult businesses are frequently used for unlawful sexual activities, including prostitution and sexual liaisons of a casual nature; and WHEREAS, the concern over the sexually transmitted diseases is a legitimate health concern of the County which demands reasonable regulation of adult businesses in order to protect the health and well-being of the citizens; and WHEREAS, there is a convincing documented evidence that their secondary effects have a deleterious effect on both the existing businesses around them and the surrounding residential areas adjacent to them, causing increased crime and the downgrading of property values; and 24 Removed requirement that all accessory buildings shall be less than the main building in height. 07/22/2002 25 Section 4-5 Revised 08/24/1992; Revised 06/01/1998; Revised 04/25/2005 to reduce setback from 50 ft. to 20 ft. and eliminate allowance for Special Use Permit for setback reduction. 26 Section 4-8 Revised 08/26/1991 27 Section 4-9 Added 01/23/2006
WHEREAS, it is recognized that adult businesses, due to their nature and secondary effects, have serious objectionable operational characteristics thereby contributing to urban blight and downgrading the quality of life in the adjacent area; and WHEREAS, the Board of Supervisors desires to minimize and control these adverse secondary effects and thereby protect the health, safety, and welfare of the citizenry; protect the citizens from increased crime; preserve the quality of life, preserve the property values and character of surrounding neighborhoods and deter the spread of urban blight; and WHEREAS, it is not the intent of this ordinance to suppress any speech activities protected by the First Amendment, but to enact a content-neutral ordinance which addresses the secondary effects of adult businesses; and WHEREAS, based on evidence concerning the adverse secondary effects of adult uses on the community presented in the public hearing and in reports made available to the Board, and on findings incorporated in the case of City of Renton v. Playtime Theatres, Inc. 475 U.S. 41 (1986), Young v. American Mini Theatres, 426 U.S. 50 (1976), Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), City of Erie v. Pap s A.M., 120 S.Ct. 1382 (2000); and Steakhouse, Inc. v. City of Raleigh, 166 F.3d 634 (4 th Cir. 1999), cert. denied, 70 U.S.L.W. 3460 (2002), and on studies in other communities including Phoenix, Arizona; Tucson, Arizona; St. Paul, Minnesota; Houston, Texas; Indianapolis, Indiana; Amarillo, Texas; Garden Grove, California; Austin Texas; and also on findings from the Report of the Attorney General s Working Group on the Regulation of Sexually Oriented Businesses (June 6, 1989, State of Minnesota), the Board of Supervisors finds: 4-9.1.1 Adult businesses lend themselves to ancillary unlawful and unhealthy activities. Further, there is presently no mechanism to make the owners of these establishments responsible for the activities that occur on their premises. 4-9.1.2 Certain employees of adult oriented businesses defined in this ordinance engage in a higher incidence of certain types of illicit sexual behavior than employees of other establishments. 4-9.1.3 Illicit sexual acts occur at adult businesses. 4-9.1.4 Offering or providing such space encourages such activities, which creates unhealthy conditions. 4-9.1.5 Persons frequent adult theaters and other adult businesses for the purpose of engaging in sex within the premises of such adult businesses. 4-9.1.6 At least 50 communicable diseases may be spread by activities occurring in adult businesses, including syphilis, gonorrhea, human immunodeficiency virus infection (HIV-AIDS), genital herpes, hepatitis B, Non A, Non B amebiasis, salmonella infections, and shigella infections. 4-9.1.7 Since 1981 and to the present, there have been an increasing cumulative number of reported cases of AIDS caused by the human immunodeficiency virus (HIV) in the United States. 4-9.1.8 The Surgeon General of the United States in his report of October 22, 1986, advised the American public that AIDS and HIV infection may be transmitted through sexual contact, intravenous drug abuse, exposure to infected blood and blood components, ad from an infected mother of a newborn. 4-9.1.9 According to the best scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts. 4-9.1.10 Sanitary conditions in some adult businesses are unhealthy, in part, because the activities conducted there are unhealthy, and in part, because of the unregulated nature of the activities and the failure of the owners and the operators of the facilities to self-regulate those activities and maintain those facilities. 4-9.1.11 Adult businesses, because of their very nature, have a deleterious effect on both the existing businesses around them and the surrounding residential areas adjacent to them, causing increased crime and the downgrading of property values. 4-9.1.12 The findings noted in paragraphs number 1 through 11 raise substantial governmental concerns. 4-9.1.13 The general health, safety and welfare of the citizens of the County will be promoted by the enactment of this ordinance. 4-9.2 In reviewing an application for these uses, the Planning Commission and Board of Supervisors, may consider the health, safety and general welfare of the public in accordance with (Section 4-9.1) the Preamble to this Ordinance and Section
15.2-2283 of State Code. To this end, the Planning Commission and Board of Supervisors may consider the following factors as well as other appropriate land use considerations: 4-9.2.1 The nature of the surrounding area and the extent to which the proposed use might significantly impair its present or future development; 4-9.2.2 The proximity of dwellings, churches, schools, parks, public buildings or public gathering places, hotels or motels or other commercial establishments; 4-9.2.3 The probable effect of the proposed use on the peace and enjoyment of people in their homes; 4-9.2.4 The limitations of fire and rescue equipment and the means of access for fire and police protection; 4-9.2.5 The effect of the use on the general transportation system and its ability to handle the additional use; 4-9.2.6 The preservation of cultural and historical landmarks and trees; 4-9.2.7 The probable effect of noise, vibrations and glare upon the uses of surrounding properties; 4-9.2.8 The contribution, if any, such proposed use would make toward the deterioration of the area and nearby environs; and 4-9.2.9 The probable effect that alcohol sales and/or consumption at or in proximity to the adult use would have in heightening the risk of violations of local laws, and any negative secondary effects on surrounding properties and the neighborhood. Voting yes: Mr. Hale, Mr. Conner, Mr. Sheffey, Mr. Akers, Mr. Pratt. Voting no: none. c. Amendments to the Pulaski County Erosion and Sedimentation Control Ordinance as required conforming to revised state and federal requirements. Mr. Huber explained a public hearing had been scheduled to consider the amendments to the Erosion and Sedimentation Control Ordinance. Mr. Sheffey opened the public hearing. There were no citizen comments and the hearing was closed. On a motion by Mr. Akers, seconded by Mr. Conner and carried, the Board approved the following Erosion and Sedimentation Control ordinance and amendments: AN ORDINANCE REPEALING AND REENACTING THE EROSION AND SEDIMENTATION CONTROL ORDINANCE OF PULASKI COUNTY, VIRGINIA. BE IT ORDAINED BY THE BOARD OF SUPERVISORS OF PULASKI COUNTY, VIRGINIA, THAT THE EXISTING EROSION AND SEDIMENTATION CONTROL ORDINANCE BE AND THE SAME IS HEREBY, REPEALED AND REENACTED AS FOLLOWS: Section 10-1. TITLE, PURPOSE, AND AUTHORITY This ordinance shall be known as the "Erosion and Sediment Control Ordinance of the County of Pulaski. The purpose of this chapter is to prevent degradation of
properties, stream channels, waters and other natural resources of the County of Pulaski by establishing requirements for the control of soil erosion, sediment deposition and nonagricultural runoff and by establishing procedures whereby these requirements shall be administered and enforced. This Chapter is authorized by the Code of Virginia, Title 10.1, Chapter 5, Article 4 (Sec. 10.1-560 et seq.), known as the Virginia Erosion and Sediment Control Law. Section 10-2. DEFINITIONS: As used in the ordinance, unless the context requires a different meaning: A. "Agreement in lieu of a plan" means a contract between the plan-approving authority and the owner that specifies conservation measures that must be implemented in the construction of a single-family residence; this contract may be executed by the plan-approving authority in lieu of a formal site plan. B. "Applicant" means any person submitting an erosion and sediment control plan for approval or requesting the issuance of a permit, when required, authorizing land-disturbing activities to commence. C. "Board" means the Virginia Soil and Water Conservation Board. D. "Certified inspector" means an employee or agent of a program authority who (i) holds a certificate of competence from the Board in the area of project inspection or (ii) is enrolled in the Board's training program for project inspection and successfully completes such program within one year after enrollment. E. "Certified plan reviewer" means an employee or agent of a program authority who (i) holds a certificate of competence from the Board in the area of plan review, (ii) is enrolled in the Board's training program for plan review and successfully completes such program within one year after enrollment, or (iii) is licensed as a professional engineer, architect, certified landscape architect or land surveyor pursuant to Article 1 (Sec. 54.1-400 et seq.) of Chapter 4 of Title 54.1 of the Code of Virginia. F. "Certified program administrator" means an employee or agent of a program authority who (i) holds a certificate of competence from the Board in the area of program administration or (ii) is enrolled in the Board's training program for program administration and successfully completes such program within one year after enrollment. G. "Clearing" means any activity which removes the vegetative ground cover including, but not limited to, root mat removal or top soil removal. H. "County" means the County of Pulaski.
I. "Department" means the Virginia Department of Conservation and Recreation. J. "Development" means a tract of land developed or to be developed as a single unit under single ownership or unified control which is to be used for any business or industrial purpose or is to contain three or more residential dwelling units. K. "Director" means the Director of the Virginia Department of Conservation and Recreation. L. "District" or "Soil and Water Conservation District" refers to the Skyline Soil and Water Conservation District. M. "Erosion and Sediment Control Plan" or "Plan" means a document containing material for the conservation of soil and water resources of a unit or group of units of land. It may include appropriate maps, an appropriate soil and water plan inventory, and management information with needed interpretations and a record of decisions contributing to conservation treatment. The plan shall contain all major conservation decisions and all information deemed necessary by the plan approving authority to assure that the entire unit or units of land will be so treated to achieve the conservation objectives. N. "Erosion Impact Area" means an area of land not associated with current landdisturbing activity but subject to persistent soil erosion resulting in the delivery of sediment onto neighboring properties or into state waters. This definition shall not apply to any lot or parcel of land of 10,000 square feet or less used for residential purposes [or to shorelines where the erosion results from wave action or other coastal processes.] O. "Excavating" means any digging, scooping or other methods of removing earth materials. P. "Filling" means any depositing or stockpiling of earth materials. Q. "Grading" means any excavating or filling of earth material or any combination thereof, including the land in its excavated or filled conditions. R. "Land-disturbing Activity" means any land change which may result in soil erosion from water or wind and the movement of sediments into state waters or onto lands in the Commonwealth, including, but not limited to, clearing, grading, excavating, transporting and filling of land, except that the term shall not include: (1) Minor land-disturbing activities such as home gardens and individual home landscaping, repairs 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 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 landdisturbing 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, or livestock feedlot operations; including engineering operations and agricultural engineering operations as follows: construction of terraces, terrace outlets, check dams, desilting basins, dikes, ponds not required to comply with the Dam Safety Act, Article 2, (Sec. 10.1-604 et seq.) of Chapter 6 of the Code of Virginia, ditches, strip cropping, lister furrowing, contour cultivating, contour furrowing, land drainage, and land irrigation; however, this exception shall not apply to harvesting of forest crops unless the area on which harvesting occurs is reforested artificially or naturally in accordance with the provisions of Chapter 11 (Sec. 10.1-1100 et seq.) of the Code of Virginia or is converted to bona fide agricultural or improved pasture use as described in Subsection B of Sec. 10.1-1163; (8) Repair or rebuilding of the tracks, rights-of-way, bridges, communication facilities and other related structures and facilities of a railroad company; (9) Disturbed land areas of less than 10,000 square feet in size. (10) Installation of fence and sign posts or telephone and electric poles and other kinds of posts or poles; (11) Shoreline erosion control projects on tidal waters when all of the land disturbing activities are within the regulatory authority of and approved by local wetlands boards, the Marine Resources Commission or the United States Army Corps of Engineers; however, any associated land that is disturbed outside of this exempted area shall remain subject to this ordinance; and (12) Emergency work to protect life, limb or property, and emergency repairs; however, if the land-disturbing activity would have required an approved erosion and sediment control plan, if the activity were not an emergency,
then the land area disturbed shall be shaped and stabilized in accordance with the requirements of the plan-approving authority. S. "Land-disturbing Permit" means a permit issued by County of Pulaski for the clearing, filling, excavating, grading, transporting of land or for any combination thereof or for any purpose set forth herein. T. "Local erosion and sediment control program" or "local control program" means an outline of the various methods employed by the County of Pulaski to regulate land-disturbing activities and thereby minimize erosion and sedimentation in compliance with the state program and may include such items as local ordinances, policies and guidelines, technical materials, inspection, enforcement, and evaluation. U. Natural channel design concepts means the utilization of engineering analysis and fluvial geomorphic processes to create, rehabilitate, restore, or stabilize an open conveyance system for the purpose of creating or recreating a stream that conveys its bankfull storm event within its banks and allows larger flows to access its bankfull bench and its floodplain. V. "Owner" means the owner or owners of the freehold of the premises or lesser estate therein, a mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee, lessee or other person, firm or corporation in control of a property. W. Peak flow rate means the maximum instantaneous flow from a given storm condition at a particular location. X. "Permittee" the person to whom the permit authorizing land-disturbing activities is issued who will be the owner of the property. Y. "Person" means any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, county, city, town or other political subdivision of the Commonwealth, any interstate body, or any other legal entity. Z. "Plan-approving authority" means the County Engineer of Pulaski County or his/her representative responsible for determining the adequacy of a plan submitted for land-disturbing activities on a unit or units of lands and for approving plans. AA. BB. "Program authority" means the County of Pulaski which has adopted a soil erosion and sediment control program that has been approved by the Board. Responsible Land Disturber means an individual from the project or development team, who will be in charge of and responsible for carrying out a landdisturbing activity covered by an approved plan or agreement in lieu of a plan, who
(i) holds a Responsible Land Disturber certificate of competence, (ii) holds a current certificate of competence from the Board in the areas of Combined Administration, Program Administration, Inspection, or Plan Review, (iii) holds a current Contractor certificate of competence for erosion and sediment control, or (iv) is licensed in Virginia as a professional engineer, architect, certified landscape architect or land surveyor pursuant to Article 1 (Sec. 54.1-400 et seq.) of Chapter 4 of Title 54.1 of the Code of Virginia. CC. DD. EE. FF. GG. HH. II. JJ. Runoff volume means the volume of water that runs off the land development project from a prescribed storm event. Single-family residence" means a noncommercial dwelling that is occupied exclusively by one family. Sinkholes means a closed topographic depression or basin, generally draining underground, including, but not restricted to a doline, uvala, blind valley or sink. "State Erosion and Sediment Control program" or "state program" means the program administered by the Virginia Soil and Water Conservation Board pursuant to the Code of Virginia including regulations designed to minimize erosion and sedimentation. "State waters" means all waters on the surface and under the ground wholly or partially within or bordering the Commonwealth or within its jurisdiction. "Town" means the incorporated towns of Pulaski and Dublin. "Transporting" means any moving of earth materials from one place to another place other than such movement incidental to grading, when such movement results in destroying the vegetative ground cover either by tracking or the buildup of earth materials to the extent that erosion and sedimentation will result from the soil or earth materials over which such transporting occurs. Water Quality Volume means the volume equal to the first one-half inch of runoff multiplied by the impervious surface of the land development project. Section 10-3. LOCAL EROSION AND SEDIMENT CONTROL PROGRAM A. Pursuant to section 10.1-562 of the Code of Virginia, the County of Pulaski hereby adopts the regulations, references, guidelines, standards and specifications promulgated by the Board for the effective control of soil erosion and sediment deposition to prevent the unreasonable degradation of properties, stream channels, waters and other natural resources. Said regulations, references, guidelines, standards and specifications for erosion and sediment control are included in but not limited to the "Virginia Erosion and Sediment Control Regulations" and the Virginia Erosion and Sediment Control Handbook, as amended.
B. Before adopting or revising regulations, the County of Pulaski shall give due notice and conduct a public hearing on the proposed or revised regulations, except that a public hearing shall not be required when the County of Pulaski is amending its program to conform to revisions in the state program. However, a public hearing shall be held if the County of Pulaski proposes or revises regulations that are more stringent than the state program. In addition, in accordance with 10.1-561 of the Code of Virginia, stream restoration and relocation projects that incorporate natural channel design concepts are not man-made channels and shall be exempt from any flow rate capacity and velocity requirements for natural or man-made channels. In accordance with 10.1-561 of the Code of Virginia, any land-disturbing activity that provides for stormwater management intended to address any flow rate capacity and velocity requirements for natural or manmade channels shall satisfy the flow rate capacity and velocity requirements for natural or man-made channels if the practices are designed to (i) detain the water quality volume and to release it over 48 hours; (ii) detain and release over a 24-hour period the expected rainfall resulting from the one year, 24-hour storm; and (iii) reduce the allowable peak flow rate resulting from the 1.5, 2, and 10-year, 24-hour storms to a level that is less than or equal to the peak flow rate from the site assuming it was in a good forested condition, achieved through multiplication of the forested peak flow rate by a reduction factor that is equal to the runoff volume from the site when it was in a good forested condition divided by the runoff volume from the site in its proposed condition, and shall be exempt from any flow rate capacity and velocity requirements for natural or manmade channels. C. Pursuant to Sec. 10.1-561.1 of the Code of Virginia, an erosion control plan shall not be approved until it is reviewed by a certified plan reviewer. Inspections of land-disturbing activities shall be conducted by a certified inspector. The Erosion Control Program of County of Pulaski shall contain a certified program administrator, a certified plan reviewer, and a certified inspector, who may be the same person. D. The County of Pulaski hereby designates the County Engineer or his/her representative as the plan-approving authority. E. The program and regulations provided for in this ordinance shall be made available for public inspection at the office of the County Engineer.
Section 10-4. SUBMISSION AND APPROVAL OF PLANS; CONTENTS OF PLANS A. Except as provided herein, no person may engage in any land-disturbing activity until he or she has submitted to the County Engineer for the County of Pulaski an erosion and sediment control plan for the land-disturbing activity and such plan has been approved by the plan-approving authority. The number of copies of the plan to be submitted shall be determined by the County Engineer. Where land-disturbing activities involve lands under the jurisdiction of more than one local control program, an erosion and sediment control plan, at the option of the applicant, may be submitted to the Board for review and approval rather than to each jurisdiction concerned. Where the land-disturbing activity results from the construction of a single-family residence, an agreement in lieu of a plan may be substituted for an erosion and sediment control plan if executed by the plan-approving authority. B. The standards contained within the "Virginia Erosion and Sediment Control Regulations", the Virginia Erosion and Sediment Control Handbook as amended and any local handbook or publication are to be used by the applicant when making a submittal under the provisions of this ordinance and in the preparation of an erosion and sediment control plan. The plan-approving authority, in considering the adequacy of a submitted plan, shall be guided by the same standards, regulations and guidelines. When the standards vary between the publications, the State regulations shall take precedence. C. The plan-approving authority shall review conservation plans submitted to it and grant written approval within 45 days of the receipt of the plan if it determines that the plan meets the requirements of the Board's regulations and if the person responsible for carrying out the plan certifies that he will properly perform the conservation measures included in the plan and will conform to the provisions of this article. In addition, as a prerequisite to engaging in the land-disturbing activities shown on the approved plan, the person responsible for carrying out the plan shall provide the name of an individual holding a certificate of competence, to the program authority, as provided by 10.1-561, of the Virginia Erosion and Sediment Control Law, who will be in charge of and responsible for carrying out the land-disturbing activity. Failure to provide the name of an individual holding a certificate of competence prior to engaging in land-disturbing activities may result in revocation of the approval of the plan and the person responsible for carrying out the plan shall be subject to the penalties provided in this ordinance. However, the plan-approving authority may waive the certificate of competence requirement for an agreement in lieu of a plan for construction of a single family residence. If a violation occurs during the land-disturbing activity, then the person responsible for carrying out the agreement in lieu of a plan shall correct the violation and provide the name of an individual holding a certificate of competence,
as provided by 10.1-561 of the Virginia Erosion and Sediment Control Law. Failure to provide the name of an individual holding a certificate of competence shall be a violation of this ordinance. D. The plan shall be acted upon within 45 days from receipt thereof by either approving said plan in writing or by disapproving said plan in writing and giving specific reasons for its disapproval. When the plan is determined to be inadequate, the plan-approving authority shall specify such modifications, terms and conditions that will permit approval of the plan. If no action is taken within 45 days, the plan shall be deemed approved and the person authorized to proceed with the proposed activity. E. An approved plan may be changed by the plan-approving authority when: (1) The inspection reveals that the plan is inadequate to satisfy applicable regulations; or (2) The person responsible for carrying out the plan finds that because of changed circumstances or for other reasons the approved plan cannot be effectively carried out, and proposed amendments to the plan, consistent with the requirements of this ordinance, are agreed to by the plan-approving authority and the person responsible for carrying out the plans. F. Variances: The plan-approving authority may waive or modify any of the standards that are deemed to be too restrictive for site conditions, by granting a variance. A variance may be granted under these conditions: (1). At the time of plan submission, an applicant may request a variance to become part of the approved erosion and sediment control plan. The applicant shall explain the reasons for requesting variances in writing. Specific variances which are allowed by the plan-approving authority shall be documented in the plan. (2). During construction, the person responsible for implementing the approved plan may request a variance in writing from the plan-approving authority. The plan-approving authority shall respond in writing either approving or disapproving such a request. If the plan-approving authority does not approve a variance within 10 days of receipt of the request, the request shall be considered to be disapproved. Following disapproval, the applicant may resubmit a variance request with additional documentation. G. In order to prevent further erosion, the County of Pulaski may require approval of a plan for any land identified in the local program as an erosion impact area. H. When land-disturbing activity will be required of a contractor performing construction work pursuant to a construction contract, the preparation, submission,
and approval of an erosion and sediment control plan shall be the responsibility of the owner. The owner shall not authorize any land-disturbing activity by the contractor until a land-disturbing permit is issued. I. The owner shall obtain the land-disturbing permit. J. In accordance with the procedure set forth by 10.1-563 (E) of the Code of Virginia, any person engaging in the creation and operation of wetland mitigation banks in multiple jurisdictions, which have been approved and are operated in accordance with applicable federal and state guidance, laws, or regulations for the establishment, use, and operation of mitigation banks, pursuant to a permit issued by the Department of Environmental Quality, the Marine Resources Commission, or the U.S. Army Corps of Engineers, may, at the option of that person, file general erosion and sediment control specifications for wetland mitigation banks annually with the Board for review and approval consistent with guidelines established by the Board. K. State agency projects are exempt from the provisions of this ordinance except as provided for in the Code of Virginia, Sec. 10.1-564. L. The County Engineer may seek technical advice from the District and/or such other engineering firms, local, state, or federal agencies that he deems necessary to ensure the adequacy of any submitted plan. When any person submits an erosion and sediment control plan to the County Engineer, the County Engineer may submit it to an independent professional engineering firm and/or engineering consulting firm with experience in preparing erosion and sediment control plans for recommendations. The applicant shall be responsible for any additional cost for review or assistance requested by this section. M. An approved plan shall be valid for 12 months after approval. If a land disturbing permit has not been issued and/or land disturbing has not occurred within the 12 month period after approval, the approval will be determined to have expired and the Erosion and Sediment Control Plan must be resubmitted. Section 10-5. PERMITS; FEES; SECURITY FOR PERFORMANCE A. Agencies authorized under any other law to issue grading, building, or other permits for activities involving land-disturbing activities may not issue any such permit unless the applicant submits with his application an approved erosion and sediment control plan and certification that the plan will be followed. B. No person may engage in any land-disturbing activity until he has acquired a landdisturbing permit, unless the proposed land-disturbing activity is specifically exempt from the provisions of this ordinance, and has paid the fees and posted the required bond.
C. An administrative fee of fifty dollars ($50) plus fifty dollars ($50) per acre or any part thereof of land to be disturbed shall be paid to The County of Pulaski at the time of submission of the erosion and sediment control plan. D. No land-disturbing permit shall be issued until the applicant submits with his application an approved erosion and sediment control plan and certification that the plan will be followed. E. All applicants for permits shall provide to the County of Pulaski a performance bond, cash escrow, or an irrevocable letter of credit acceptable to the County Engineer, to ensure that measures could be taken by the County of Pulaski at the applicant's expense should the applicant fail, after proper notice, within the time specified to initiate or maintain appropriate conservation measures required of him by the approved plan as a result of his land-disturbing activity. The amount of the bond or other security for performance shall not exceed the total of the estimated cost to initiate and maintain appropriate conservation action based on unit price for new public or private sector construction in the locality and a reasonable allowance for estimated administrative costs and inflation which shall not exceed twenty-five percent of the cost of the conservation action should it be necessary for the County of Pulaski to take such conservation action, the County of Pulaski may collect from the applicant any costs in excess of the amount of the surety held. Within sixty (60) days of adequate stabilization, as determined by County Engineer in any project or section of a project, such bond, cash escrow or letter of credit, or the unexpended or unobligated portion thereof, shall be either refunded to the applicant or terminated, based upon the percentage of stabilization accomplished in the project or project section. These requirements are in addition to all other provisions relating to the issuance of permits and are not intended to otherwise affect the requirements for such permits. Section 10-6. MONITORING, REPORTS, AND INSPECTIONS A. The County of Pulaski may require the person responsible for carrying out the plan to monitor the land-disturbing activity. The person responsible for carrying out the plan will maintain records of these inspections and maintenance, to ensure compliance with the approved plan and to determine whether the measures required in the plan are effective in controlling erosion and sedimentation. B. The County Engineer shall periodically inspect the land-disturbing activity in accordance with Sec 4VAC50-30-60 of the Virginia Erosion and Sediment Control Regulations to ensure compliance with the approved plan and to determine whether the measures required in the plan are effective in controlling erosion and sedimentation. The owner, permittee, or person responsible for carrying out the plan shall be given notice of the inspection.
If the County Engineer determines that there is a failure to comply with the plan, notice shall be served upon the permittee or person responsible for carrying out the plan by registered or certified mail to the address specified in the permit application or in the plan certification, or by delivery at the site of the land-disturbing activities to the agent or employee supervising such activities. The notice shall specify the measures needed to comply with the plan and shall specify the time within which such measures shall be completed. Upon failure to comply within the specified time, the permit may be revoked and the permittee or person responsible for carrying out the plan shall be deemed to be in violation of this ordinance and shall be subject to the penalties provided by this ordinance. C. Upon determination of a violation of this ordinance, the County Engineer may, in conjunction with or subsequent to a notice to comply as specified in this ordinance, issue an order requiring that all or part of the land-disturbing activities permitted on the site be stopped until the specified corrective measures have been taken. If land-disturbing activities have commenced without an approved plan, the County Engineer may, in conjunction with or subsequent to a notice to comply as specified in this ordinance, issue an order requiring that all of the land-disturbing activities be stopped until an approved plan or any required permits are obtained. Where the alleged noncompliance is causing or is in imminent danger of causing harmful erosion of lands or sediment deposition in waters within the watersheds of the Commonwealth, or where the land-disturbing activities have commenced without an approved plan or any required permits, such an order may be issued without regard to whether the permittee has been issued a notice to comply as specified in this ordinance. Otherwise, such an order may be issued only after the permittee has failed to comply with such a notice to comply. The order shall be served in the same manner as a notice to comply, and shall remain in effect for a period of seven days from the date of service pending application by the enforcing authority or permit holder for appropriate relief to the Circuit Court of County of Pulaski. If the alleged violator has not obtained an approved plan or any required permits within seven days from the date of service of the order, the County Engineer may issue an order to the owner requiring that all construction and other work on the site, other than corrective measures, be stopped until an approved plan and any required permits have been obtained. Such an order shall be served upon the owner by registered or certified mail to the address specified in the permit application or the land records of County of Pulaski. The owner may appeal the issuance of an order to the Circuit Court of County of Pulaski.
Any person violating or failing, neglecting or refusing to obey an order issued by the County Engineer may be compelled in a proceeding instituted in the Circuit Court of County of Pulaski to obey same and to comply therewith by injunction, mandamus or other appropriate remedy. Upon completion and approval of corrective action or obtaining an approved plan or any required permits, the order shall immediately be lifted. Nothing in this section shall prevent the County Engineer from taking any other action authorized by this ordinance. Section 10-7. PENALTIES, INJUNCTIONS, AND OTHER LEGAL ACTIONS A. Violators of this ordinance shall be guilty of a Class I misdemeanor. B. Any person who violates any provision of this ordinance shall, upon a finding of the District Court of Pulaski County, be assessed a civil penalty. The civil penalty for any one violation shall be $100, except that the civil penalty for commencement of land-disturbing activities without an approved plan shall be $1,000. Each day during which the violation is found to have existed shall constitute a separate offense. In no event shall a series of specified violations arising from the same operative set of facts result in civil penalties which exceed a total of $3,000, except that a series of violations arising from the commencement of land-disturbing activities without an approved plan for any site shall not result in civil penalties which exceed a total of $10,000. Note: The adoption of civil penalties according to this schedule shall be in lieu of criminal sanctions and shall preclude the prosecution of such violation as a misdemeanor under subsection A of this section. Refer to Code of Virginia, Sec. 10.1-562 J. C. The County Engineer, or the owner or property which has sustained damage or which is in imminent danger of being damaged, may apply to the Circuit Court of Pulaski County to enjoin a violation or a threatened violation of this ordinance, without the necessity of showing that an adequate remedy at law does not exist. However, an owner of property shall not apply for injunctive relief unless (i) he has notified in writing the person who has violated the local program, and the program authority, that a violation of the local program has caused, or creates a probability of causing, damage to his property, and (ii) neither the person who has violated the local program nor the program authority has taken corrective action within fifteen days to eliminate the conditions which have caused, or create the probability of causing, damage to his property.