Chesapeake Bay Preservation Area Board

Transcription

1 City of Chesapeake ~ DRAFT ~ MINUTES The Chesapeake Bay Preservation Area Board Planning Department 306 Cedar Road PO Box Chesapeake, Virginia (757) FAX: (757) Chesapeake Bay Preservation Area Board October 15, :00 PM Human Resources Training Room Call to Order: Member Curling called the Chesapeake Bay Preservation Board meeting of October 15, 2014, to order at 6:00 p.m. in the Human Resources Training Room. Roll Call: PRESENT Henry Curling, Member Vickie Greene, Member Fred McKenna, Member Roy Scott, Member William H. Spaur Alternate Member EXCUSED Ottinger, Conley, Midgette, Godette PLANNING DEPARTMENT STAFF PRESENT Michael Anaya CBPA Planner Jennifer White, Principal Planner Katie Mason, CBPA Recording Secretary CITY ATTORNEY STAFF PRESENT Andrew Fox, Deputy City Attorney

2 Page 2 APPROVAL OF MINUTES: The September 17, 2014 CBPA Board minutes were presented into the record for Board action. CBPA BOARD ACTION: MINUTES for the September 17, 2014 CBPA Board meeting were APPROVED. (5-0; McKenna/Spaur Ottinger, Conley, Midgette, and Godette were excused) CBPA BOARD VOTE: Mr. Mckenna moved that the MINUTES for the September 17, 2013 CBPA Board meeting be APPROVED. Mr. Spaur seconded the motion. The motion was carried by a vote of 5-0. Ottinger, Conley, Midgette, and Godette were excused. CBPA APPLICATION: 1. CBPA PROJECT/LOCATION: 104 Trilby Court APPLICANT: Bobby Shaker PROPOSAL: In accordance with Section of the Chesapeake City Code, the applicant is seeking an EXCEPTION to construct a shed, within the 50-foot seaward portion of the 100-foot RPA buffer. Based on the extent of all proposed improvements, the overall net increase in impervious area will be 192 SF. SUBDIVISION/LOT #: Tanglewood/119 WATERSHED: Eastern Branch of the Elizabeth River TAX MAP SECTION/PARCEL: (Continued from the June 18, 2014 Public Hearing) CBPA BOARD ACTION: The CBPA Board DENIED CPBA (5 0, Greene/McKenna) Staff Presentation Mrs. White presented the application to the board stating that the application was continued from the August 20, 2014 Board meeting to give the applicant the opportunity to work with a professional surveyor or engineer to present an option to absorb the

3 Page 3 pollutant load and Mr. Shaker had done that. Mrs. White reminded the Board that the site of the application was located in the Indian River section of the City. The shed was located at the bulk head. It was placed without a building permit. Mrs. White presented pictures of the site, showing what the shed looked like. She stated that in addition there was illegal fill placed under the shed to level it out. A permit was previously obtained for the bulk head thru the Wetlands Board. Staff did notice there was ample space to place the shed in the landward buffer. The applicant, at the August 20, 2014 Board meeting, presented to the Board an option to retain the shed in its current location, to remove the illegal fill, and to elevate the shed one foot so water could run underneath and be absorbed. The Board was presented by Mr. Shaker samples of other sheds in his area of the City that were approved. The Board found that these other approved sheds had topography and limitation of space issues within the buffer and that they followed the correct application process for approval. Since the previous Board meeting, staff had gone out to meet with Mr. Shaker on site, and presented photos showing where the shed could be placed within the landward buffer. Since that time Mr. Shaker had consulted with a landscape architect, Mr. Martin A. Arredondo and proposed a plan to install a rain garden, down spouts and gutters. Photos, were presented showing before and after. Under these conditions it would treat the appropriate amount of run off. Mrs. White stated that she was directed by the Board at the August 20, 2014 Board meeting to bring application CBPA back through the CBPA Review Committee process. The CBPA Review Committee stood by their first recommendation of DENIAL, because the policy had always been that if there was an alternative location within the landward buffer, the applicant should move the shed to that location. Only under conditions where topography and limitation of space access, did the CBPA Review Committee allow the shed in the seaward buffer. However, if the Board was willing to approve the application, staff did recommend the suggestions from the landscape architect be considered and included as part of the recommendation. Proponent: Mr. Bobby Shaker, 104 Trilby Court, Chesapeake, Virginia 23325, appeared before the Board on behalf of CBPA representing himself. Board Discussion: Mr. Spaur: If, Mr. Shaker had come to the Board before he built the shed we would have denied it. If, Mr. Shaker had built the shed alongside his house, it would have been quite a view from the street and an eye sore. Mr. McKenna: I have questions on the photos, just to be clear, none of the gutters had been installed yet, correct? These were just doctored photos of the proposal? Mr. Shaker: Correct. It proposed what it would look like. Ms. Greene: I have a question. Did we have a finding of violation?

4 Page 4 Mrs. White: No, the violation was reported and typically we give them the opportunity to submit an application. Ms. Greene: So, we have never gotten to that stage yet? Mrs. White: We did not bring him up to a show cause letter for violation, we notified Mr. Shaker of the violation and he submitted an application to have the shed located where it was. Ms. Greene: Mr. Shaker, the last line of the letter you submitted from Mr. Arredondo states will require approval the local governing authorities at all required levels before proceeding. Do you know what all required levels are? Who besides us? Mr. Shaker: Mr. Arredondo was just covering himself. Just because he s stating this information, it does not give me approval. Ms. Greene: Mr. Arredondo did not tell you, you needed approval from anybody else? Mr. Shaker: Yes, he says right here, local governing authorities, which would mean you all. Ms. Greene: When you asked him to write the letter, the second page last paragraph, second sentence says, he did not investigate the possibility of moving the shed. What was the request you made of this gentleman? How did you propose your request? Mr. Shaker: If, I was allowed to keep the shed where it was, what could I do to go above and beyond to treat the water run-off? Ms. Greene: Did you put any consideration or effort into following the recommendation and moving the shed? Mr. Shaker: No. It would be extremely difficult to move the shed at this point. This solution presented by Mr. Arredondo was more beneficial overall to the waterway, even if the shed was moved where everyone says it should go. I m actually treating water that would run-off my property anyway. Ms. Greene: Actually, that s a recommendation any waterfront land owner was supposed to do, not just when they do construction. I am ready to make a motion. Mr. Curling: According to this letter from Mr. Arredondo, going back to September, I see nothing in his letter about jacking the shed up one foot and clearing out the illegal fill underneath, that you, Mr. Shaker bought to the Board. As far as the other shed samples, these applicants did it before the fact, not after the fact, like you have. This has been going on for six months and nothing has been done. Mr. Shaker: I was told not to do anything.

5 Page 5 Mr. Curling: Ms. Greene, make your motion. Ms. Greene: I move that we deny CBPA and follow the recommendations of the CBPA Review Committee. Mr. McKenna: I second. Mr. Curling: All in favor? Yes. Mr. Shaker, you have to move the shed or you will be fined. Mr. Shaker: I will get an attorney! This does not make sense! It s not fair! Mr. Curling: It s been voted on. You may do that. CBPA BOARD VOTE: Ms. Greene moved to DENY CBPA Mr. McKenna seconded the motion. The motion was carried by a vote of 5 0, Ottinger, Conley, Midgette, and Godette were excused. 2. CBPA PROJECT/LOCATION: 486 Plummer Drive APPLICANT/AGENCY: Mark and Becky Junghans PROPOSAL: In accordance with Section of the Chesapeake City Code, the applicant is seeking an EXCEPTION to construct a 128 SF shed within the 50- foot seaward portion of the 100-foot RPA buffer, on a pre-existing lot. Based on the extent of all proposed improvements, the overall net increase in impervious area will be 3,542 SF. SUBDIVISION/LOT #: Plummer Plantation/139 WATERSHED: Southern Branch of the Elizabeth River TAX MAP SECTION/PARCEL: CBPA BOARD ACTION: The CBPA Board APPROVED CBPA with the following stipulations: (5-0, McKenna/Spaur - Ottinger, Conley, Midgette, and Godette were excused) 1. Move the shed to the AE Flood Zone line as indicated on the survey and at least 6 feet from the property line. 2. Plant 1 small canopy tree.

6 Page 6 Staff Presentation: Mrs. White presented the application to the Board, stating it was located in the Deep Creek section of the City and was a pre-existing lot. She presented pictures of the site, showing two other existing sheds. The applicant was a train enthusiast and had a garden railroad. The applicant was proposing to put the shed in the seaward location, the CBPA covered almost the entire site. The CBPA Review Committee felt that pulling the shed back and making it line up with the patio was a better option with the planting of one small canopy tree. Proponent: Mr. Mark and Becky Junghans, 486 Plummer Drive, Lot 139, Chesapeake, Virginia 23323, appeared before the Board on behalf of CBPA representing themselves. Board Discussion: Mr. Spaur: Here was a goggle image from 1990 before any renovation was done at the site. Ms. Greene: Was the patio permitted or did it pre-date the Chesapeake Bay Preservation Act? Mrs. White: I am not sure, I was not involved at that time and do not know what was discussed with Brian Swets. Mrs. Junghans: I called the Planning office and got approval, as long as we used hard scape. I certainly know the Chesapeake Bay Preservation Act rules and regulations. Ms. Greene: So, you called the Planning office? Mrs. Junghans: Yes. Ms. Greene: Is the garden railroad permeable? Mr. Junghans: Yes, a professional came in and helped us design the garden railroad. Stone, sand and soil with drainage pipes that lead out to the back waterway. Mrs. Junghans: The reason for the third shed is to house a tractor. My husband does want to do a little yard work. As a disabled veteran he can no longer push a lawn mower. Mr. Junghans: We are having a terrible time with erosion, my wife has been working with Kelly who works for the City in regards to the ditch. It has taken five years but a project was supposed to be under way. Mrs. White: I was informed that there was a City project under way on the creek.

7 Page 7 Mr. Junghans: Where do you see us putting the small canopy tree? Mrs. White: Where you can find a spot, anywhere in the seaward buffer was where we recommend. Mr. Curling: Can you concur with staff findings on what to do? Mr. Junghans: Yes. Mr. Curling: Any other questions? No. Mr. McKenna: I motion CBPA be approved with the CBPA Review Committee stipulations. Mr. Spaur: I second that. Mr. Junghans: I want the Board to know that Mrs. White had been a great help to them and thanked her for all she d done. CBPA BOARD VOTE: Mr. McKenna moved to APPROVE CBPA Mr. Spaur seconded the motion. The motion was carried by a vote of 5 0, Ottinger, Conley, Midgette, and Godette were excused. 3. CBPA-14-31, 32, 33 PROJECT/LOCATION: 934, 936, 938 and 940 Willis Street APPLICANT: Douglas Dowdy PROPOSAL: In accordance with Section of the Chesapeake City Code, the applicant is seeking an AFTER-THE-FACT EXCEPTION to retain the fill placed on the lots without prior CBPA approval and an EXCEPTION to fill and grade the area within the RPA of lot 934 with material removed from the wetlands that were also filled. SUBDIVISION/LOT #: Oakville/11, 12, 13 WATERSHED: Southern Branch of the Elizabeth River TAX MAP SECTION/PARCEL: , , CBPA BOARD ACTION: The CBPA Board: DENIED CBPA-14-31, 32, 33 request to fill and grade the area within the RPA of lot 934 with material removed from the wetlands. (5-0, McKenna/Greene - Ottinger, Conley, Midgette, and Godette were excused)

8 Page 8 The CBPA Board: APPROVED CBPA-14-31, 32, 33 request to return the fill on all lots. (5-0, McKenna/Greene - Ottinger, Conley, Midgette, and Godette were excused) Staff Presentation: Mrs. White stated that Mr. Dowdy and Mr. Dunn were present. She told the Board that she separated out the application from the violation due to confusion at the last meeting, but I would be talking about both. Mrs. White presented the applicant is requesting to retain the fill. This was all after the fact in the RPA and removal of fill from the wetlands and spreading that in the RPA of lot 934. Sequent to that, you do still have an outstanding issue about the show cause violation when the applicant was cited for the illegal fill. Mrs. White stated she wanted to refresh the Boards memory, the property was on Willis Street located off Military Highway. She presented a hand drawn sketch from the Army Corps of Engineers representative from January 2014, showing the extent of the illegal fill in the RPA and wetlands. She presented a chronology of what had happened since January The violation letter was issued. She presented photos from February 2014 showing the pumping of water from the wetlands and July 2014 photos showing where the fill had impacted the existing trees. The applicant had submitted an application to remove the fill from the wetlands and place it within the RPA and to elevate the house located at 934 Willis Street. In order to rent the house, elevation was required. The CBPA Review Committee finding remained the same. The applicant had agreed that the trees that were impacted by the fill would not be counted toward the canopy requirement that was needed to bring the property back into compliance. The CBPA Review Committee recommended denial of any additional fill on the site. However, if the Board feels like they would approve the existing fill would be difficult to remove. This is what I have for the application portion. Proponent: Mr. Harry Douglas Dowdy, 1730 Pompey Street, Virginia Beach, Virginia 23464, appeared before the Board on behalf of CBPA-14-31, 32, 33 representing himself. Mr. James M. Dunn, Horton & Dodd, PC, 300 George Washington Highway North Chesapeake, VA 23323, appeared before the Board on behalf of CBPA-14-31, 32, 33 representing Mr. Harry Douglas Dowdy. Board Discussion: Mr. Curling: Mr. Dowdy, do you have anything you want to say? Mr. Dowdy: I have been here four times now. I feel I need to bring everyone up to present. The fill was offered to me at no cost with grading included. I felt I could use the fill because I was elevating the house at 934 Willis Street to meet the new flood zone conditions. It would leave the house exposed by eight concrete blocks so I graded the fill to one area so I could push it back toward the house once I got it raised. In the other

9 Page 9 areas, there was little fill moved that was out over what was existing. You could see by the photos of the trees, there was an area of trees located within a swell that was impacted more than others. I spoke with the Environmental Coordinator, Roxanne Stonecypher about the trees and she recommended that I grade that area down and possibility create a swell there. I really don t want to lose the trees, I had agreed to put additional trees in. The area had been reseeded and there was a good growth of grass all the way across it. I intended to reseed again and comply with all other requirements. At the last Board meeting, Ms. Greene suggested that I send a soil sample off to Virginia Tech, when I did. It came back with no requirement for fertilization and some additional information that they noted that I provided the Board with a copy. Apparently what I believed to be happening there was that good soil was put in there. Overall the recommendations from Virginia Tech, there was nothing I couldn t work with there in complying with that. I think that covered most everything. Ms. Greene: The conclusion about your soil was correct the PH is 7.6. Native soils here are 6.2 or 6.3, and yours is a whole point higher. Mr. Dowdy: The effect of that? Ms. Greene: This PH means you are not going to be able to grow many native plants at all. It s way to high for native plants. It s over fertilized, making it almost impossible to grow native plants. It s creating way to high phosphorus load that will reach into the soil. High phosphorus was one of the principle contaminates that affect the quality of the bay. Mr. Curling, do you agree? Mr. Curling: Yes, I agree with that. Mr. Dowdy: Virginia Tech recommendations don t seem to follow what you are saying. I m confused, I had to pick a category for the soil sample and I picked trees and shrubs. Ms. Greene: They are saying don t add anything to the soil because you have to much of it. Mr. Dowdy: I don t read that in here, that it says too much of it. Ms. Greene: 7.6 PH Mr. Dowdy: I m just reading what they wrote. Mr. Curling: It locks the soil up and keeps it from being able to function properly. Mr. Dowdy: The solution for that? Ms. Greene: There was not one. Years, twenty, twenty-five and compost Mr. Curling: Years, time. I don t know if takes that long but it does take years.

10 Mr. Dowdy: I wasn t alerted to that fact from Virginia Tech. Chesapeake Bay Preservation Area Board Page 10 Ms. Greene: Virginia Tech was in Blacksburg, they may not have known it was a wetlands site. Mrs. White, do you agree or disagree with the high PH? Mrs. White: I don t have any experience with soil testing. When I contacted Greg Hammer he stated that most of the time soil was tested for farming purposes, to know what to add or not add. Ms. Greene: To grow a good garden you want it 6.5 or 6.6. Isn t that right Mr. Curling? Mr. Curling: That s correct. Mr. Dowdy: So, the trees on our plan, will they grow? Mr. Curling: Any other questions? Mr. Dunn: I would like to point out, based on Roxanne Stonecyher s recommendation of the planting bed, we are putting the appropriate soil mixture in those beds. Mr. McKenna: Can you go back to the photo of the lots. Mrs. White: Yes. Mr. Spaur: Mr. Dowdy you are in a long line of people whose property was now too low for occupancy and have the choice of either trying to fill it or abandon it, which was terrible. Mr. Dowdy: That s a good point. This property had been sitting for two years, until I had the time to get in there. I m in the position now to finish it up. This has been a financial setback, but I m ready to take it up, grade it and square up the whole area, if I can get your approval. Mr. Curling: Any other comments from the Board? Ms. Greene: I need clarification. Mrs. White: Basically the fill taken from the wetlands and being put back on the property, the CBPA Review Committee was saying just remove the fill from the wetlands and take it to a non Chesapeake Bay Preservation Area site. Ms. Greene: Actually you are saying deny these requests. Mrs. White: Right, well, deny that part of it because part of it was when they initially put the fill on the property the CBPA Review Committee was saying that they believe that was too much to try to take up, that it should remain, but they did not feel additional fill should be added.

11 Page 11 Mr. Dowdy: We are not arguing this point. Ms. Greene: So, you are recommending removing the fill off the property? Mrs. White: Yes. Mr. McKenna: You want the fill taken off site because it s very poor soil quality? Mrs. White: Yes. Mr. McKenna: So, if it s denied he would have to take the fill out of the wetlands area and dispose of it someplace away from the Chesapeake Bay Preservation Area? Mrs. White: Yes. Mr. Dowdy: Mrs. Stonecypher recommended to grade down two inches of new soil over what was existing. I have no problem doing that. I certainly do not want to spend all that money planting trees and have them die. I don t mind following the recommendation from the City on the area around the trees because I don t want to loose them. Mr. Dunn: Your recommendation again, was to take the fill that was placed in the wetlands and truck it off site to a non Chesapeake Bay Preservation Area? Mr. McKenna: Chairman, I am ready to make a motion. I recommend CBPA-14-31,32, 33 be denied. What I am saying is remove the fill/dirt and get it off site, out of area. Ms. Greene: I second that. CBPA BOARD VOTE: Mr. McKenna moved to DENY CBPA-14-31, 32, 33. Ms. Greene seconded the motion. The motion was carried by a vote of 5 0, Ottinger, Conley, Midgette, and Godette were excused. CBPA VIOLATION: 1. CBPA(V) LOCATION: 934, 936, 938 Willis Street OWNER: Douglas Dowdy SHOW CAUSE VIOLATION: Failure to remove fill from the Resource Protection Area of the Chesapeake Bay Preservation Act. WATERSHED: Southern Branch of the Elizabeth River TAX MAP SECTION/PARCELS: , , (Continued from the July 16, 2014 CBPA Public Hearing)

12 Page 12 CBPA BOARD ACTION: The CBPA Board determined that, additional restoration was required with the following stipulations: (5-0, McKenna/Curling - Ottinger, Conley, Midgette, and Godette; were excused) 1. Remove the fill in the wetlands off site. 2. As determined by the City s Environmental Coordinator, trees with roots and trunks covered by fill shall not count toward meeting the CBPA tree canopy requirements. 3. New trees shall be planted in accordance with the exhibit dates stamped October 1, New trees shall be planted within a prepared 10 foot x10 foot landscape bed, with each bed amended with 2 of compost within the existing soil, and tilled-in to a depth of 18. Trees shall be large canopy trees (Oaks, Maples, Pines, etc.), and at least 6 in height at planting. 4. Trees on the site shall be maintained in perpetuity and replaced on a 1 to 1 ratio as needed. 5. The property owner has until January 31, 2015 to complete the restoration. Staff Presentation: Mrs. White presented the violation to the board with the CBPA Review Committee s recommendations. Mr. Dowdy still had to bring the site back up to reasonable standard, how it was before, and a modification to off-set the violation. She had not had much experience with the violation section, if you wanted to walk through it. For the Show Cause Hearing, the Board was directed to vote on whether a violation had occurred, whether restoration was complete or if additional restoration was required. The Board was also directed to vote on the appropriate penalty (referral to circuit court, civil charge, restoration, reprimand). In determining an appropriate civil charge, the Board should consider the extent of the violation, Good faith of the property owner, history of non-compliance and cooperation. Proponent: Mr. Harry Douglas Dowdy, 1730 Pompey Street, Virginia Beach, Virginia 23464, appeared before the Board on behalf of CBPA-14-31, 32, 33 representing himself.

13 Page 13 Mr. James M. Dunn, Horton & Dodd, PC, 300 George Washington Highway North Chesapeake, VA 23323, appeared before the Board on behalf of CBPA-14-31, 32, 33 representing Mr. Harry Douglas Dowdy. Board Discussion: Ms. Greene: Last meeting we found that a violation had occurred and continued the penalty phase until the Board saw the restoration plan. We need to figure out if the restoration plan was complete or if additional restoration was required. Mr. Curling: Additional restoration was required. Ms. Greene: Mr. Curling, the proposal was here, if they do this, make it contingent as part of the penalty phase. Are we satisfied that this plan, with the changes, would solve the problem? Mr. McKenna: I believe the applicant has acted in good faith. Mrs. White: Mr. Dowdy has shown by hiring a consultant, producing the plan, planting of trees and trying to do some mitigation that he has acted in good faith. Ms. Greene: I am reasonably satisfied with the current plan, with the removal of the dirt, since we had denied that request, that the remaining plan was probably reasonable restoration. Mr. Curling: Does everyone agree with that? Yes. Ms. Greene: We need to figure out what the penalty should be or if there should be a penalty. Mr. McKenna: Part of the penalty should include the cost of the restoration. Ms. Greene: Mr. Dowdy, what s going to be the cost of the restoration? Mr. Dowdy: The cost to where we are now is $8, Ms. Greene: The cost to do the whole plan, trucking the wetlands fill/dirt away and planting the trees. Mr. Dowdy: Approximately $16, to $20, Ms. Greene: Pretty sufficient cost in restoration. Mr. McKenna: I make a motion that an appropriate penalty be assessed for CBPA(V) with the stipulations made by the CBPA Review Committee at their October 7, 2014 meeting. It confirms that a violation occurred and we agree that that was the penalty.

14 Ms. Greene: May I suggest an amendment, a time limit. Chesapeake Bay Preservation Area Board Page 14 Mr. McKenna: January 31, 2015, was that reasonable, Mr. Dowdy? Mr. Dowdy: Yes. Mr. Curling: I second the motion. CBPA BOARD VOTE: Mr. McKenna moved that appropriate penalty be assessed for CBPA(V) with the stipulations made by the CBPA Review Committee at their October 7, 2014 meeting. Mr. Spaur seconded the motion. The motion was carried by a vote of 5 0, Ottinger, Conley, Midgette, and Godette were excused. OTHER BUSINESS: Mrs. White introduced Mr. Michael Anaya to the Board as the new CBPA Planner stating he came from the City of Hampton and has a degree from Clemson in landscape architecture. Mr. Andrew Fox, Deputy City Attorney introduced himself to the Board as the new council, replacing Dana Sanford. ADJOURNMENT: With no further business, the meeting was adjourned at 7:15 P.M. Sincerely, Katie Mason Recording Secretary