                                 CODE OF VIRGINIA

CERTAIN COUNTIES, CITIES, AND TOWNS AUTHORIZED TO ADOPT COASTAL PRIMARY SAND
DUNE ORDINANCE (§ 28.2-1403)

Any of the following counties, cities and towns that adopt a wetlands zoning
ordinance pursuant to § 28.2-1302 may adopt the coastal primary sand dune
zoning ordinance that is set out in this section: the Counties of Accomack,
Arlington, Caroline, Charles City, Chesterfield, Essex, Fairfax, Gloucester,
Hanover, Henrico, Isle of Wight, James City, King and Queen, King George, King
William, Lancaster, Mathews, Middlesex, New Kent, Northampton, Northumberland,
Prince George, Prince William, Richmond, Spotsylvania, Stafford, Surry,
Westmoreland, and York; the Cities of Alexandria, Chesapeake, Colonial Heights,
Fairfax, Falls Church, Fredericksburg, Hampton, Hopewell, Newport News, Norfolk,
Petersburg, Poquoson, Portsmouth, Richmond, Suffolk, Virginia Beach and
Williamsburg; and the Town of Cape Charles. In the event that a locality has not
adopted a wetlands zoning ordinance pursuant to Chapter 13 (§ 28.2-1300 et
seq.) or repeals it if already adopted, such locality may adopt or continue to
administer the ordinance contained herein provided the locality appoints a
wetlands board following the procedure specified in § 28.2-1303. Any county or
city that has adopted the Coastal Primary Sand Dune Zoning Ordinance prior to
January 1, 2024, shall amend the ordinance to conform it to the ordinance
contained herein by January 1, 2024. The following ordinance is the only coastal
primary sand dune zoning ordinance under which any board shall operate after
January 1, 2024.
		Coastal Primary Sand Dune Zoning Ordinance
		§ 1. The governing body of ________, acting pursuant to Chapter 14 (§
28.2-1400 et seq.) of Title 28.2 of the Code of Virginia, adopts this ordinance
regulating the use and development of coastal primary sand dunes. Whenever
coastal primary sand dunes are referred to in this ordinance, such references
shall also include beaches.
		§ 2. As used in this ordinance, unless the context requires a different
meaning:
		&#8220;Beach&#8221; means the shoreline zone comprised of unconsolidated sandy
material upon which there is a mutual interaction of the forces of erosion,
sediment transport, and deposition that extends from the low water line landward
to where there is a marked change in either material composition or
physiographic form such as a dune, bluff, or marsh, or where no such change can
be identified, to the line of woody vegetation (usually the effective limit of
stormwaves), or the nearest impermeable man-made structure, such as a bulkhead,
revetment, or paved road.
		&#8220;Coastal primary sand dune&#8221; or &#8220;dune&#8221; means a mound of
unconsolidated sandy soil that is contiguous to mean high water, whose landward
and lateral limits are marked by a change in grade from 10 percent or greater to
less than 10 percent, and upon which is growing any of the following species:
American beach grass (Ammophila breviligulata); beach heather (Hudsonia
tomentosa); dune bean (Strophostyles spp.); dusty miller (Artemisia
stelleriana); saltmeadow hay (Spartina patens); seabeach sandwort (Honckenya
peploides); sea oats (Uniola paniculata); sea rocket (Cakile edentula); seaside
goldenrod (Solidago sempervirens); Japanese sedge or Asiatic sand sedge (Carex
kobomugi); Virginia pine (Pinus virginiana); broom sedge (Andropogon
virginicus); and short dune grass (Panicum amarum). For purposes of this
ordinance, &#8220;coastal primary sand dune&#8221; shall not include any mound
of sand, sandy soil, or dredge spoil deposited by any person for the purpose of
temporary storage, beach replenishment, or beach nourishment, nor shall the
slopes of any such mound be used to determine the landward or lateral limits of
a coastal primary sand dune.
		&#8220;Commission&#8221; means the Virginia Marine Resources Commission.
		&#8220;Commissioner&#8221; means the Commissioner of Marine Resources.
		&#8220;County, city and town&#8221; means the governing body of the county,
city and town.
		&#8220;Governmental activity&#8221; means any of the services provided by the
Commonwealth or a county, city, or town to its citizens for the purpose of
maintaining public facilities, including but not limited to, such services as
constructing, repairing, and maintaining roads; providing street lights and
sewage facilities; supplying and treating water; and constructing public
buildings.
		&#8220;Wetlands board&#8221; or &#8220;board&#8221; means the board created
pursuant to § 28.2-1303 of the Code of Virginia.
		§ 3. The following uses of and activities in dunes are authorized if
otherwise permitted by law:

1. The construction and maintenance of noncommercial walkways that do not alter
the contour of the coastal primary sand dune;

2. The construction and maintenance of observation platforms that are not an
integral part of any dwelling and that do not alter the contour of the coastal
primary sand dune;

3. The planting of beach grasses or other vegetation for the purpose of
stabilizing coastal primary sand dunes;

4. The placement of sand fences or other material on or adjacent to coastal
primary sand dunes for the purpose of stabilizing such features, except that
this provision shall not be interpreted to authorize the placement of any
material that presents a public health or safety hazard;

5. Sand replenishment activities of any private or public concern, provided no
sand shall be removed from any coastal primary sand dune unless authorized by
lawful permit;

6. The normal maintenance of any groin, jetty, riprap, bulkhead, or other
structure designed to control beach erosion that may abut a coastal primary sand
dune;

7. The normal maintenance or repair of existing roads, highways, railroad beds,
and facilities of the United States, this Commonwealth or any of its counties or
cities, or of any person, provided no coastal primary sand dunes are altered;

8. Outdoor recreational activities, provided the activities do not alter the
natural contour of the coastal primary sand dune or destroy the vegetation
growing thereon;

9. The conservation and research activities of the Commission, Virginia
Institute of Marine Science, Department of Wildlife Resources, and other
conservation-related agencies;

10. The construction and maintenance of aids to navigation that are authorized
by governmental authority;

11. Activities pursuant to any emergency declaration by the governing body of
any local government or the Governor of the Commonwealth or any public health
officer for the purposes of protecting the public health and safety;

12. Governmental activity in coastal primary sand dunes owned or leased by the
Commonwealth or a political subdivision thereof; and

13. The construction of living shoreline projects authorized pursuant to a
general permit developed under subsection B of § 28.2-104.1.
			§ 4. A. Any person who desires to use or alter any coastal primary sand dune
within this _______ (county, city, or town), other than for the purpose of
conducting the activities specified in § 3 of this ordinance, shall first file
an application directly with the wetlands board or with the Commission.

   B. The permit application shall include the following: the name and address of
   the applicant; a detailed description of the proposed activities and a map,
   drawn to an appropriate and uniform scale, showing the area of dunes directly
   affected, the location of the proposed work thereon, the area of any proposed
   fill and excavation, the location, width, depth, and length of any disposal
   area, and the location of all existing and proposed structures, sewage
   collection and treatment facilities, utility installations, roadways, and
   other related appurtenances or facilities, including those on adjacent
   uplands; a description of the type of equipment to be used and the means of
   equipment access to the activity site; the names and addresses of owners of
   record of adjacent land; an estimate of cost; the primary purpose of the
   project; any secondary purposes of the project, including further projects;
   the public benefit to be derived from the proposed project; a complete
   description of measures to be taken during and after the alteration to reduce
   detrimental offsite effects; the completion date of the proposed work,
   project, or structure; and such additional materials and documentation as the
   wetlands board may require.

   C. A nonrefundable processing fee shall accompany each permit application. The
   fee shall be set by the applicable governing body with due regard for the
   services to be rendered, including the time, skill, and administrator&#8217;s
   expense. No person shall be required to file two separate applications for
   permits if the proposed project will require permits under this ordinance and
   Chapter 13 (&#xA7; 28.2-1300 et seq.) of Title 28.2 of the Code of Virginia.
   Under those circumstances, the fee shall be established pursuant to this
   ordinance.
   				&#xA7; 5. All applications, maps, and documents submitted shall be open
   for public inspection at the office of the recording officer of this
   ____________ (county, city or town).
   				&#xA7; 6. Not later than 60 days after receipt of a complete application,
   the wetlands board shall hold a public hearing on the application. The
   applicant, local governing body, Commissioner, owner of record of any land
   adjacent to the coastal primary sand dunes in question, the Virginia Institute
   of Marine Science, the Department of Wildlife Resources, the State Water
   Control Board, the Department of Transportation, and any governmental agency
   expressing an interest in the application shall be notified of the hearing.
   The Commission or board shall mail or email these notices not less than 20
   days prior to the date set for the hearing. The board shall also (i) cause
   notice of the hearing to be published at least once in the seven days prior to
   such hearing in a newspaper of general circulation in this ________ (county,
   city or town); (ii) post a notice of the hearing on its website at least 14
   days prior to such hearing; and (iii) provide a copy of such notice to the
   Commission for submittal to the Virginia Regulatory Town Hall. The costs of
   publication shall be paid by the applicant. In the event that the board
   submits a correct and timely notice for publication and the newspaper fails to
   publish the notice or publishes the notice incorrectly, the board shall be
   deemed to have met the notice requirements of this subsection so long as the
   notice is published in the next available edition of such newspaper.
   				&#xA7; 7. A. Approval of a permit application shall require the
   affirmative vote of three members of a five-member board or four members of a
   seven-member board.

   B. The chairman of the board, or in his absence the acting chairman, may
   administer oaths and compel the attendance of witnesses. Any person may appear
   and be heard at the public hearing. Each witness at the hearing may submit a
   concise written statement of his testimony. The board shall make a record of
   the proceeding, which shall include the application, any written statements of
   witnesses, a summary of statements of all witnesses, the findings and decision
   of the board, and the rationale for the decision.

   C. The board shall make its determination within 30 days of the hearing. If
   the board fails to act within that time, the application shall be deemed
   approved. Within 48 hours of its determination, the board shall notify the
   applicant and the Commissioner of its determination. If the board fails to
   make a determination within the 30-day period, it shall promptly notify the
   applicant and the Commission that the application is deemed approved.

   D. If the board&#8217;s decision is reviewed or appealed, the board shall
   transmit the record of its hearing to the Commissioner. Upon a final
   determination by the Commission, the record shall be returned to the board.
   The record shall be open for public inspection at the office of the recording
   officer of this ________ (county, city, or town).
   				&#xA7; 8. The board may require a reasonable bond or letter of credit in
   an amount and with surety and conditions satisfactory to it, securing to the
   Commonwealth compliance with the conditions and limitations set forth in the
   permit. The board may, after a hearing held pursuant to this ordinance,
   suspend or revoke a permit if the applicant has failed to comply with any of
   the conditions or limitations set forth in the permit or has exceeded the
   scope of the work described in the application. The board may, after a
   hearing, suspend a permit if the applicant fails to comply with the terms and
   conditions set forth in the application.
   				&#xA7; 9. In fulfilling its responsibilities under this ordinance, the
   board shall preserve and protect coastal primary sand dunes and beaches and
   prevent their despoliation and destruction. However, whenever practical, the
   board shall accommodate necessary economic development in a manner consistent
   with the protection of these features.
   				&#xA7; 10. A. In deciding whether to grant, grant in modified form, or
   deny a permit, the board shall consider the following:

1. The testimony of any person in support of or in opposition to the permit
application;

2. The impact of the proposed development on the public health, safety, and
welfare; and

3. The proposed development&#8217;s conformance with standards prescribed in §
28.2-1408 of the Code of Virginia and guidelines promulgated pursuant to §
28.2-1401 of the Code of Virginia.

   B. The board shall grant the permit if all of the following criteria are met:

1. The anticipated public and private benefit of the proposed activity exceeds
its anticipated public and private detriment.

2. The proposed development conforms with the standards prescribed in &#xA7;
28.2-1408 of the Code of Virginia and guidelines promulgated pursuant to &#xA7;
28.2-1401 of the Code of Virginia.

3. The proposed activity does not violate the purposes and intent of this
ordinance or Chapter 14 (§ 28.2-1400 et seq.) of Title 28.2 of the Code of
Virginia.

   C. If the board finds that any of the criteria listed in subsection B of this
   section are not met, the board shall deny the permit application but allow the
   applicant to resubmit the application in modified form.
   				&#xA7; 11. The permit shall be in writing and signed by the chairman of
   the board. A copy of the permit shall be transmitted to the Commissioner.
   				&#xA7; 12. No permit shall be granted without an expiration date
   established by the board. Upon proper application, the board may extend the
   permit expiration date.
   				&#xA7; 13. No permit granted by a wetlands board shall in any way affect
   the right of any person to seek compensation for any injury in fact incurred
   by him because of the permitted activity.

HISTORY: 1980, c. 660, §§ 62.1-13.21, 62.1-13.25; 1984, c. 556; 1989, c. 342;
1992, c. 836; 1994, c. 112; 1998, c. 160; 2008, c. 20; 2014, cc. 112, 143; 2020,
c. 958; 2023, c. 195.