Chesapeake Bay Preservation Area Board

City of Chesapeake MINUTES The Chesapeake Bay Preservation Area Board Planning Department 306 Cedar Road PO Box 15225 Chesapeake, Virginia 23328 (757) 382-6176 FAX: (757) 382-6406 Chesapeake Bay Preservation Area Board January 21, 2015 6:00 PM Human Resources Training Room Call to Order: Chair Conley called the Chesapeake Bay Preservation Board meeting of January 21, 2015, to order at 6:00 p.m. in the Human Resources Training Room. Roll Call: PRESENT Amy Conley, Chair Vickie Greene, Vice Chair Fred McKenna, Member George Midgette, Member John Poland, Alternate Member Roy Scott, Member William Spaur, Member ABSENT Henry Curling, Member Anthony Godette, Alternate Member PLANNING DEPARTMENT STAFF PRESENT Michael Anaya, CBPA Senior Planner Katie Mason, CBPA Recording Secretary CITY ATTORNEY STAFF PRESENT Andrew Fox, Deputy City Attorney

Page 2 CBPA APPLICATIONS: 1. CBPA-14-40 PROJECT/LOCATION: 656 Luther Street APPLICANT: Carlton Homes, LLC PROPOSAL: In accordance with Section 26-527, of the Chesapeake City Code, the applicant seeks an EXCEPTION to construct a single-family dwelling within the 100-foot RPA buffer on a currently vacant lot. The total proposed impervious area will be 1,722 SF (1,104 SF in RPA). SUBDIVISION/LOT #: Goodman Village, #54 WATERSHED: Southern Branch of the Elizabeth River TAX MAP SECTION/PARCEL: 0472002000540 CBPA BOARD ACTION The CBPA Board APPROVED CBPA-14-40 with the following stipulations: (6-1, Midgette/McKenna Spaur opposed, Mr. Curling and Mr. Godette were absent). 1. Six (6) large canopy trees shall be planted. It was observed during a site visit that the 12 DBH existing tree in the front yard as depicted on the CBPA Site Plan dated October 20, 2014, had already been removed. All other existing vegetation shall be preserved as proposed on the site plan. 2. The proposed mulch planting bed shall be installed in the front yard as depicted on the CBPA Site Plan dated October 20, 2014. 3. The proposed driveway and sidewalk shall be of pervious concrete as depicted on the CBPA Site Plan dated October 20, 2014. Staff Presentation: Mr. Anaya presented the application to the Board with the CBPA Review Committee s recommendations. The applicant proposed construction of a new single-family residence and driveway with a total footprint of approximately 2,140 SF, creating a total of 1,722 SF of impervious area (proposed driveway and sidewalk are to be pervious concrete). Approximately 1,104 SF and 178 SF of impervious concrete driveway & sidewalk lies within the 50-foot landward portion of the RPA. The project proposed approximately 240 SF of the pervious concrete driveway within the seaward 50-foot portion of the RPA. The site was an undeveloped lot located on Luther Street. The lot was created in 1920 and therefore pre-dated the CBPA Ordinance. He presented pictures of the site showing the edge of wetlands feature across the street. He stated there were no other options to access the lot. He stated that the CBPA Review Committee had recommended approval with the following stipulations: 1. Six (6) large canopy trees shall be planted. It was observed during a site visit that the 12 DBH existing tree in the front yard as depicted on the CBPA Site Plan

Page 3 dated October 20, 2014, had already been removed. All other existing vegetation shall be preserved as proposed on the site plan. 2. The proposed mulch planting bed shall be installed in the front yard as depicted on the CBPA Site Plan dated October 20, 2014. 3. The proposed driveway and sidewalk shall be of pervious concrete as depicted on the CBPA Site Plan dated October 20, 2014. Board Discussion: Mr. Spaur: I am sorry about this lot. Look at the standing water. Here were photos showing the marsh muck, you can smell it. The water table was right at the surface. The water that s lying in the ditch was going nowhere it s typical of the area. Why anyone would build a house on this lot was beyond me. It does not make sense. Mr. Scott: Is this a spec house or had this house already been sold? Mr. Anaya: The applicant was not here tonight. Mrs. Conley: It doesn t look like they had preserved the trees. Can the Board alter the plan on preserving the trees? Mr. Anaya: Yes. Mr. Spaur: It was a wetland. Mrs. Conley: It was not a wetland. The Army Corps of Engineers, made a jurisdictional determination that legally it was an upland and the wetlands line was across the street. Mr. Midgette: I agree with Mrs. Conley. Ms. Greene: What were the CBPA Review Committee recommendations? Mr. Anaya: The CBPA Review Committee recommended: 1. Five (5) large canopy trees shall be installed and existing trees shall be preserved as depicted on the CBPA Site Plan dated October 20, 2014. 2. The proposed mulch planting bed shall be installed in the front yard as depicted on the CBPA Site Plan dated October 20, 2014. 3. The proposed driveway and sidewalk shall be of pervious concrete as depicted on the CBPA Site Plan dated October 20, 2014. The Board could make a stipulation that (6) six canopy trees be planted Mr. Scott: If this was a spec house the potential buyer would have had no idea about the marshy area or flooding potential. Ms. Greene: Can the Board add a requirement about educating the potential buyer about the flooding in this area? Mrs. Conley: If you purchase a house, you are informed if it s in a flood zone. Mr. Midgette: If you acquire a loan for the purchase of a house and the house is in a flood zone, you are required to purchase flood insurance.

Page 4 Mr. Anaya: It was reviewed by zoning. There were certain standards that were required based on zoning standards in a flood zone. Mr. Fox: I thought the Board s purview was limited to the disturbance and improvements on the property and how it potentially affected the water quality of the Chesapeake Bay. That s the purpose of the Board and defines the Board s purview. The purpose of the Board was not to educate the potential home buyer. Mr. McKenna: Were we talking five trees plus one or six trees plus one and the one tree that was removed? Mr. Anaya: The total would be six trees required. CBPA BOARD VOTE: Mr. Midgette moved to APPROVE CBPA-14-40 with the following stipulations: 1. Six (6) large canopy trees shall be planted. It was observed during a site visit that the 12 DBH existing tree in the front yard as depicted on the CBPA Site Plan dated October 20, 2014, has already been removed. All other existing vegetation shall be preserved as proposed on the site plan. 2. The proposed mulch planting bed shall be installed in the front yard as depicted on the CBPA Site Plan dated October 20, 2014. 3. The proposed driveway and sidewalk shall be of pervious concrete as depicted on the CBPA Site Plan dated October 20, 2014. Mr. McKenna seconded the motion. The motion was carried by a vote of (6 1), Midgette/McKenna Spaur opposed, Mr. Curling and Mr. Godette were absent). 2. CBPA-14-44 PROJECT/LOCATION: 4103 Chowan Avenue APPLICANT/AGENT: Kevin & Jamie Baines/John E. Sirine & Associates LTD PROPOSAL: In accordance with Section 26-527 of the Chesapeake City Code, the applicant is seeking an EXCEPTION to construct an in-ground swimming pool with concrete decking, 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 755 SF. SUBDIVISION/LOT #: Seminole Park, Section 3, # Lot 91 WATERSHED: Eastern Branch of the Elizabeth River TAX MAP SECTION/PARCEL: 0133002000910

CBPA BOARD ACTION: Chesapeake Bay Preservation Area Board Page 5 The CBPA Board APPROVED CBPA-14-44 with the following stipulations: (5-2, McKenna/Midgette Greene/Spaur opposed, Mr. Curling and Mr. Godette were absent). 1. Five (5) large canopy trees shall be planted to mitigate impacts to the RPA buffer. 2. The proposed planting bed shall be installed as depicted on the CBPA Site Plan dated November 13, 2014. Staff Presentation: Mr. Anaya presented the application to the Board with the CBPA Review Committee s recommendations. The site was located at 4103 Chowan Avenue in the Eastern Branch of the Elizabeth River watershed. The application proposed construction of a pool with minimum concrete decking to attach to the existing patio and deck within the 50-foot seaward and 50-foot landward portions of the buffer. The lot was created in 1959 and therefore pre-dated the CBPA Ordinance. The majority of the lot is located within the 100 foot RPA buffer, with most of the rear yard encumbered by the 50-foot seaward portion of the buffer. He presented pictures of the site showing the green colored area as the proposed pool area behind the house. He showed an orange area where the applicant would potentially build a detached garage to the right side of the house. That was the reasoning for the pool to be located behind the house. He stated that the CBPA Review Committee had recommended approval with the following stipulations: 1. Five (5) large canopy trees shall be planted to mitigate impacts to the RPA buffer. 2. The proposed planting bed shall be installed as depicted on the CBPA Site Plan dated November 13, 2014. Proponent: Mr. Kevin Baines, 4103 Chowan Ave, Chesapeake, Virginia 23325, appeared before the Board on behalf of CBPA-14-44 representing himself. Board Discussion: Mr. Baines: I want to install a pool for my family to use in the location shown on the photos. I am looking to add more trees down by the water in the future. The garage would be five to ten years down the road. Ms. Greene: How long have you lived at this residence? Mr. Baines: Six months. Ms. Greene: Did you purchase the house knowing it was in the (CBPA) Chesapeake Bay Preservation Area?

Page 6 Mr. Baines: I didn t quite understand the CBPA until I meet with the pool company. They informed me of the steps that needed to be taken in order to get the pool built. Ms. Greene: Instead of that one large canopy tree, was that all you intend to plant to mitigate and manage the run off? Mr. Baines: I plan to plant several palm trees along the back of the lot to cut the wind. Ms. Greene: The other pools in the area, how long had they been there? Was the dock there when you bought the property? Mr. Baines: Probably, I am speculating, the neighbors beside me ten, fifteen, twenty years. Yes, I was repairing the dock. Ms. Greene: Is that kind of repair okay? Mr. Anaya: That was a VMRC and Army Corps of Engineers issue. Mrs. Conley: It s regular repair to the dock, its okay. Mr. Spaur: The neighbors in the Indian River section of the City had organized to clean up the Eastern Branch of the Elizabeth River. They had been very successful with the beautification project but this depended entirely on stopping the run off of nutrients from lawns. Why the City would campaign to clean up the Eastern Branch of the Elizabeth River by approving a swimming pool was beyond me. Instead the Board should be convincing the residents to grow many trees and deeply rooted native plants. The City had not caught on yet, had we? Mr. Midgette: I totally disagree. I think a swimming pool was an excellent thing to put to a body of water like this. Look at the elevations. It s a great thing to do. I understand what you are talking about. But, ground water run-off through the dirt within fifty-feet is already filtered out. Mr. Spaur: I disagree. Ms. Greene: The point of fact was the Chesapeake Bay Preservation Act was established with those distances of one hundred-feet from the water in order to have plenty of space for a riparian border. There were houses that were built before the CBPA went into effect. But, the Board was under minding the intent of CBPA especially in the fifty-foot seaward portion of the buffer. The Board doesn t like to approve things within the fifty-foot seaward portion of the buffer. I am going to argue against approval. The house and dock were there and the applicant had the right to continue with those uses. Pools were nice to have but the Board by law does not have to approve this. Mr. Midgette: I disagree with that too. The reason we had exemption and exception was because it did meet the requirement of the law, otherwise the Board would not be considering this right now. All the other cities are doing it, only with the mitigation that was required. The Applicant had mitigation here. The people from the state who wrote the CBPA came up with the rules and regulations that say you can do this, if you do that. That was why something like this was allowed. The Board in the past had allowed this with the proper mitigation. I would not want to stand in the way of someone putting in a swimming pool.

Page 7 Mrs. Conley: It was important to note, in cases like this, the lot was created in 1959 and it was grandfathered. Otherwise, it s like saying even though this lot had already been created the Board decided we wanted to enforce a law now and the applicant couldn t do anything in their backyard. Mr. Spaur: That was exactly the case. The lawyer can back the Board up. When you had put in a plan and you got approval it was a five year guarantee that nothing could be changed. The law and ordinance by Virginia law prohibit you from finishing a project. Mr. Midgette: That was for brand new subdivision approved plans. We need the lawyer to help with clarification on this. That s different from what we were talking about here, it was grandfathered. Mr. Spaur: It was not. Mr. Fox: Generally there is a five year period of time that a preliminary approval remains in force for a proposed use of land. I would say that s pretty specific. Everything the Board had said here tonight was legally correct. That s why there were seven of you to decide this issue. Legally you were all correct. Mr. McKenna: Where there any trees removed? Mr. Baines: Yes, a pine tree was removed. Mr. Anaya: Along the edge of the pool, is there going to be a bio-retention bed? Mr. McKenna: Did you consider planting more trees? Mr. Anaya: The applicant was meeting the minimum requirement. The Board had the option to make changes. Mr. Midgette: Mr. Baines would you be willing to plant more trees? How many? Mr. Baines: Yes, I would be willing to plant five trees. CBPA BOARD VOTE: Mr. McKenna moved to APPROVE CBPA-14-44 with the following stipulations: 1. Five (5) large canopy trees shall be planted to mitigate impacts to the RPA buffer. 2. The proposed planting bed shall be installed as depicted on the CBPA Site Plan dated November 13, 2014. Mr. Midgette seconded the motion. (5-2, McKenna/Midgette Greene/Spaur opposed, Mr. Curling and Mr. Godette were absent).

Page 8 3. CBPA-14-45 PROJECT/LOCATION: 3008 King Richard Way APPLICANT: David & Wendy Del Vecchio PROPOSAL: In accordance with Section 26-527 of the Chesapeake City Code, the applicant is seeking an EXCEPTION to relocate an existing shed and construct a new 904 SF workshop, 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 and removing portions of existing concrete and structures, the overall net increase in impervious area will be 904 SF. SUBDIVISION/LOT #: Brittany Woods, Section 9, Lot 45 WATERSHED: Western Branch of the Elizabeth River TAX MAP SECTION/PARCEL: 0102018000450 CBPA BOARD ACTION: The CBPA Board APPROVED CBPA-14-45 with the following stipulations: (7-0, McKenna/Scott Mr. Curling and Mr. Godette were absent). 1. Existing vegetation shall be preserved as depicted on the revised plan and described in the written project proposal submitted on January 13, 2015. 2. The proposed workshop shall be constructed as depicted on the revised plan and described in the written project proposal submitted on January 13, 2015. 3. The shed shall be reduced in size to 9 x12 as depicted on the revised plan and described in the written project proposal submitted on January 13, 2015. 4. Proposed plantings shall be installed as depicted on the revised plan and described in the written project proposal submitted on January 13, 2015 Staff Presentation: Mr. Anaya presented the application to the Board with the CBPA Review Committee s recommendations. The site was located at 3008 King Richard Way in the Western Branch of the Elizabeth River watershed. The application proposed relocation of an existing shed and construction of a new 822 SF workshop (the workshop and shed were reduced in size in a revised plan submitted on January 13, 2015), within the 50-foot seaward portion of the 100-foot RPA buffer. The lot was created in 1989 and therefore pre-dated the CBPA Ordinance. The majority of the rear yard was located within the 100 foot RPA buffer. Relocation of the existing shed and location of the new workshop had been proposed in a way that preserved all existing canopy trees on the site. Additional canopy trees, shrubs, perennials, and annuals were proposed to mitigate new impervious area within the RPA buffer. This application was initially reviewed by the CBPA Review Committee on December 16, 2014. The Committee was in unanimous agreement to recommend granting the requested exception with the following stipulations:

Page 9 1. The tree canopy coverage requirement for encroachment into the RPA buffer is fifty percent (50%). To meet this canopy requirement, existing trees shall be preserved, and new trees shall be installed as proposed in the application and attachments thereto. The proposed workshop shall be located a minimum distance of 25 feet from the RPA feature. This distance is based on the minimum rear yard setback requirement of the R-10S district applicable to the lot per Sec. 6-1202(3) of the City of Chesapeake Zoning Ordinance. 2. The proposed workshop shall not encroach into the rear 15 drainage easement. 3. The relocated existing shed shall be moved, to the maximum extent practicable, outside of the 100-foot RPA buffer. It appears that there was adequate space to the east of the existing river birch to accommodate the relocated shed. These stipulations were taken into consideration by the applicant, and a revised project proposal and plan (attached) were submitted on January 13, 2015. The revised proposal and plan addressed the three stipulations above. The revised plan does not meet stipulation #1 in regard to the 25 foot setback from the RPA feature and #3, in regard to moving the shed outside the 100 foot RPA buffer. The applicant had met stipulation #2. Further, the revised proposal offered detailed reasoning as to why the applicant believed stipulations #1 and #3 are un-preferable. He presented pictures of the site showing the existing shed and an eight to ten-foot deep ditch with sharp slope and the vegetation along the drainage easement at the location approved. Proponent: Mr. David DelVecchio, and Mrs. Wendy DelVecchio, 3008 King Richard Way, Chesapeake, Virginia 23321, appeared before the Board on behalf of CBPA-14-45 representing themselves. Board Discussion: Mr. DelVecchio: We had lived in the house for twenty-one years. I knew nothing about the CBPA until we proposed to build the workshop. The location we choose would help to preserve the existing trees on the lot. One of the reasons we wanted to tuck the workshop in the back corner of the lot was to keep it out of the site line of the house and to keep it off the existing tree root system. Mrs. DelVecchio: With the revised letter dated January 13, 2015, we reduced the workshop size in order to keep it out of the drainage easement and keep the structure as far from the existing tree root system as possible. We are willing to reduce the existing shed from a 10 X 14 to a 9 X 12 shed, so it s not sitting outside of our den window. The shed needed to be six-feet off the site line to meet the zoning set back. We would like to place it to the west side of the River Birch tree. Ms. Greene: The existing shed, are you moving it someplace? Mr. DelVecchio: Yes, to the other side of the yard. Ms. Greene: Was the lot created before or after the CBPA Ordinance? Mrs. Conley: That lot was created in 1989 and pre-dates the CBPA Ordinance.

Mr. Scott: Can we see the photos again? Chesapeake Bay Preservation Area Board Page 10 Ms. Greene: Where were the planting beds going to be? Were they grass or mulch beds? What was the square footage? Mr. DelVecchio: The existing grass lawn in the back yard will be reduced. The planting beds will be mulch with a mixture of small canopy trees, annuals and perennials. The square footage will be approximately 20 X 29. CBPA BOARD VOTE: Mr. McKenna moved to APPROVE CBPA-14-45 with the following stipulations: 1. Existing vegetation shall be preserved as depicted on the revised plan and described in the written project proposal submitted on January 13, 2015. 2. The proposed workshop shall be constructed as depicted on the revised plan and described in the written project proposal submitted on January 13, 2015. 3. The shed shall be reduced in size to 9 x12 as depicted on the revised plan and described in the written project proposal submitted on January 13, 2015. 4. Proposed plantings shall be installed as depicted on the revised plan and described in the written project proposal submitted on January 13, 2015. Mr. Scott seconded the motion. (7-0, McKenna/Scott Mr. Curling and Mr. Godette were absent). CBPA VIOLATION APPLICATION: 1. CBPA(V)-14-10 LOCATION: 1701 Burson Drive OWNER: Freddie & Shirley Gaskins VIOLATION: Unauthorized tree removal within the Resource Protection Area of the Chesapeake Bay Preservation Area WATERSHED: Southern Branch of the Elizabeth River TAX MAP SECTION/PARCELS: 0344002004230 CBPA BOARD ACTION: The CBPA Board CONTINUED CBPA(V)-14-10 to the February 18, 2015 CBPA Board Meeting. (7 0, McKenna/Midgette Mr. Curling and Mr. Godette were absent). Staff Presentation: Mr. Anaya presented the application to the board with the CBPA Review Committee s recommendations. On December 1, 2014, CBPA enforcement staff received a complaint

Page 11 that several large trees had been removed in close proximity to the shoreline at 1701 Burson Drive. On December 1, 2014, City staff surveyed the site and had the following observations: 1. Several large trees had apparently been removed in the rear of the house and in the front of the house. However, staff did not have access to the property and was unable to determine the exact number of trees that were removed. 2. Large logs were stockpiled on adjacent property, likely a result of the subject unauthorized tree removal. City staff issued a CBPA violation letter to Mr. & Mrs. Gaskins on December 2, 2014. This letter requested that Mr. & Mrs. Gaskins contact the CBPA enforcement staff within 14 days to arrange a meeting on site to discuss the matter further. CBPA enforcement staff had not been contacted by the property owner as requested in the violation letter issued on December 2, 2014, nor had they been able to contact the owner via telephone to discuss the violation. A certified mail receipt indicated that the letter was received by the Gaskins on December 5, 2012. However, the owner of the property had not made contact with CBPA enforcement staff as of January 13, 2015. CBPA enforcement staff sent a letter on January 12, 2015, notifying the property owner that their presence was required at the CBPA Board meeting to be held on January 21, 2015. At this meeting, the owner would have the opportunity to show cause why they should not be held in violation, or to discuss how they intend to resolve the violation. Staff recommended further investigation of the violation. There was limited access to the property due to fences and No Trespassing signs posted, so an accurate count of trees that were removed had not yet been determined. An accurate count of trees removed would allow staff and the Board to better assess the extent of the violation, what restoration may be required, and whether any civil charge was in order. CBPA enforcement staff would continue to investigate the violation and report findings to the CBPA Review Committee and CBPA Board. Board Discussion: Ms. Greene: Who signed the certified letter? Mr. Anaya: Someone named Gaskins. Mr. Scott: Do you think the house was occupied? Mr. Anaya: No one appeared to be home when Staff was on site. Ms. Greene: Were you asking the Board to take action? Mr. Anaya: No, I am presenting the Staff finding to the Board. Staff spoke with the owner of the property, Mr. Gaskins on January 20, 2015. He was unaware of the activity on the property. Mr. Gaskins expressed his intent to resolve the violation per Staff

Page 12 recommendations for corrective measures and had granted Staff permission to enter the property to accurately determine how many trees had been removed. Staff recommended further investigation of the violation to obtain an accurate tree count in order to formulate corrective measures and coordinate restoration of the area with the owner. Due to health issues it was difficult for Mr. Gaskins to travel from Falls Church, Virginia for the Board meeting tonight, he did not regularly visit Chesapeake. Ms. Greene: Was it possible to post a cease and desist order on the site? Mr. Anaya: As far as posting on site I am not sure that was what our enforcement officer does. Mr. Fox: Yes, a sign can be posted. It was within the City Manager designee s power under the ordinance to post a sign. Mr. Anaya: I will get with our enforcement officer. Would the Board want an update before the February 18, 2015 Board meeting? Mr. Fox: When Staff finds out who did the tree removal, it would fall under the jurisdiction of the Board for a civil penalty or any other available recourse. Anyone causing or permitting the violation was liable. CBPA BOARD VOTE: Mr. McKenna moved to CONTINUE CBPA(V)-14-10 to the February 18, 2015 CBPA Board meeting. Mr. Midgette seconded the motion. The motion was carried by a vote of 7 0, - Mr. Curling and Mr. Godette were absent). OTHER BUSINESS: Mrs. Conley informed the Board that the minutes of the December 17, 2014 Board meeting would be presented at the February 18, 2015 Board meeting for vote. Mr. McKenna submitted his resignation to the Board. ADJOURNMENT: With no further business, the meeting was adjourned at 7:30 P.M. Sincerely, Katie Mason Recording Secretary These minutes were APPROVED at the March 18, 2015 CBPA Board meeting. (5-0, Spaur/Conley - Curling and Godette absent)