Code of Virginia

Code of Virginia
Title 28.2. Fisheries and Habitat of the Tidal Waters
3/18/2019

Article 3. Permits and Review.

§ 28.2-1406. Permits required for certain activities; issuance of permits by Commission.

A. It shall be unlawful for any person to conduct any activity which would require a permit under a coastal primary sand dune zoning ordinance without such a permit. Until the county, city or town in which a person proposes to conduct an activity which would require a permit under the ordinance adopts the ordinance, such person shall apply for a permit directly to the Commission. Permit applicants desiring to use or develop dunes or beaches owned by the Commonwealth shall also apply directly to the Commission.

B. The Commission shall process permit applications in accordance with the provisions of the Coastal Primary Sand Dune Zoning Ordinance and the Commissioner, or his authorized representative, shall sign any permit granted; however, the Commission may designate one or more hearing officers who may, in lieu of the Commission, conduct public hearings as required under § 28.2-1403 and thereafter report their findings and recommendations to the Commission.

1972, c. 711, § 62.1-13.9; 1980, c. 660, § 62.1-13.26; 1992, c. 836; 1994, cc. 112, 125.

§ 28.2-1407. Administrative procedures.

The Commission may, in conjunction with local wetlands boards and other affected state and federal agencies, develop administrative procedures to expedite the processing of applications for permits required under this chapter. Whenever an application is received by the Commission for a permit over which a local board has jurisdiction under a coastal primary sand dune zoning ordinance, the Commission shall forward a copy of the application to that board within seven days.

1992, c. 836.

§ 28.2-1408. Standards for use of coastal primary sand dunes.

No permanent alteration of or construction upon any coastal primary sand dune shall take place which would (i) impair the natural functions of the dune, (ii) physically alter the contour of the dune, or (iii) destroy vegetation growing thereon unless the wetlands board or the Commission, whichever is applicable, determines that there will be no significant adverse ecological impact, or that the granting of a permit is clearly necessary and consistent with the public interest, considering all material factors.

1980, c. 660, § 62.1-13.23; 1992, c. 836.

§ 28.2-1408.1. Expired.

Expired.

§ 28.2-1408.2. Exemptions.

A. Notwithstanding the requirements of § 28.2-1408 or any other provision of this Code, the Virginia Beach Wetlands Board shall make an ongoing determination in the Sandbridge Beach Subdivision to determine which structures or properties are in clear and imminent danger from erosion and storm damage due to severe wave action or storm surge. The owners of such structures or properties shall not be prohibited from erecting and maintaining protective bulkheads or other equivalent structural improvements of the type, size, and configuration as approved by the Virginia Beach Wetlands Board. As used in this section, "Sandbridge Beach Subdivision" means the area that is bounded on the north by Dam Neck Naval Base, on the west by Sandpiper Road, and on the south by Little Island Park.

The Virginia Beach Wetlands Board shall not impose arbitrary or unreasonable conditions upon its approval of any such bulkhead or other structural improvement. The Virginia Beach Wetlands Board shall maintain a continuing responsibility to ensure that each bulkhead or structural improvement constructed under the authority of this section is maintained in a condition that is safe, structurally sound, and otherwise in conformity with the conditions imposed by the Virginia Beach Wetlands Board.

Upon submission of an application to the Virginia Beach Wetlands Board pursuant to this section, as a requirement for approval, the applicant must consent in writing to any subsequent construction approved by the Virginia Beach Wetlands Board whereby an adjacent property owner desires to tie in a bulkhead at no additional cost with the bulkhead proposed by the applicant. Such consent shall constitute a waiver of property line defenses relating to the bulkhead line.

B. 1. The Virginia Beach Wetlands Board may develop and adopt, after holding a public hearing, a General Permit for Sand Management and Placement Profiles for properties in the Sandbridge Beach Subdivision. The Virginia Beach Wetlands Board shall publish notice of each hearing at least once a week for two consecutive weeks prior to such hearing in a newspaper having general circulation in Virginia Beach.

2. The Norfolk Wetlands Board may develop and adopt, after holding a public hearing, a General Permit for Sand Management and Placement Profiles for properties in the City of Norfolk. The Norfolk Wetlands Board shall publish notice of each hearing at least once a week for two consecutive weeks prior to such hearing in a newspaper having general circulation in the City of Norfolk.

C. Any General Permit for Sand Management and Placement Profiles adopted by a wetlands board pursuant to subsection B shall set forth sand management practices that require owners of real property in the permit area to undertake responsible, cost-effective sand management practices that (i) protect and enhance the value and use of their property and (ii) preserve and protect coastal primary sand dunes and public beaches and prevent their despoliation and destruction. The General Permit for Sand Management and Placement Profiles shall specify all permissible sand management practices, including the manner in which sand removed from these properties shall be transported to and placed upon an appropriate sand placement and spreading zone as may be designated in the Placement Profiles adopted by the wetlands board. The sand shall be in the condition of clean beach sand prior to such transport and placement. A wetlands board may from time to time revise such General Permit for Sand Management and Placement Profiles as appropriate, in accordance with this subsection and subsections B and D.

D. Following adoption of the General Permit for Sand Management and Placement Profiles, the owner of real property in the permit area, or the designee of such owner, may apply for coverage under the applicable General Permit for Sand Management and Placement Profile by submitting a registration statement to the local wetlands board on a form to be developed by the wetlands board requiring the following information: (i) owner's name; (ii) owner's address; (iii) owner's telephone number and email address; (iv) address of property or properties; (v) designee's name, if any; (vi) designee's address; (vii) designee's telephone number and email address; (viii) identification of the applicable Placement Profile for the property; (ix) signature of owner or designee; and (x) date of application. The wetlands board may impose a reasonable fee in connection with processing the registration statement.

The wetlands board shall, within 30 days of receipt of a registration statement, notify the owner or his designee in writing whether the registration statement is approved or disapproved. The wetlands board's written notice of approval or disapproval may be delivered to the applicant via email at the email address stated in the registration statement or it may be delivered via United States mail at the address stated in the registration statement, or both. If the wetlands board fails to notify the applicant in writing within 30 days of receipt of a registration statement, then the registration statement is deemed approved. If the registration statement is disapproved, the wetlands board shall provide in its notification to the applicant a complete statement of the reason for the disapproval. Notwithstanding the requirements of § 28.2-1408 or any other provision of law, if the registration statement is approved, then the applicant is authorized to manage sand in accordance with the applicable General Permit for Sand Management for a period of three years from the date of the application. The approval or disapproval of a registration statement submitted by an applicant is a decision of the wetlands board that is reviewable pursuant to § 28.2-1411.

2009, c. 391; 2017, c. 338.

§ 28.2-1409. Emergency sand grading activities on sand dunes located on the Atlantic Shoreline of Virginia Beach [Not set out].

Not set out. ( 1992, c. 836.)

§ 28.2-1410. Commissioner to review all decisions of wetlands boards.

The Commissioner shall review all decisions of wetlands boards and request the Commission to review a decision only when he believes the board failed to fulfill its responsibilities under the coastal primary sand dune zoning ordinance.

1992, c. 836.

§ 28.2-1411. When Commission to review decision of wetlands board.

A. The Commission shall review a decision of a wetlands board when any of the following events occur:

1. An appeal is taken from the decision by the applicant or by the county, city or town where the dunes are located.

2. The Commissioner requests the review. In order to make the request, the Commissioner shall notify the board, applicant, and county, city or town where the dunes are located within ten days of receiving notice of the board's decision.

3. Twenty-five or more freeholders of property within the county, city or town in which the proposed project is located sign and submit a petition to the Commission requesting the review. The petition shall indicate those specific instances where the petitioners allege that the board failed to fulfill its responsibilities under the coastal primary sand dune zoning ordinance.

B. All requests for review or appeal shall be made within ten days of the date of the board's decision. The Commission shall hear and decide the review or appeal within forty-five days of receiving the request for review or notice of appeal. A continuance may be granted by the Commission on a motion of the applicant, the freeholders specified in subsection A of this section, or the county, city or town where the dunes are located.

1992, c. 836; 1994, c. 112.

§ 28.2-1412. Procedure for review; notice of decision.

A. The Commissioner shall cause notice of the review or appeal to be given to the board, the applicant, the county, city or town where the dunes are located, and where applicable, to the freeholders specified in § 28.2-1411.

B. The Commission shall hear the appeal or conduct the review on the record transmitted by the board to the Commissioner. The Commission may take such additional evidence as may be necessary to resolve any controversy as to the correctness of the record. The Commission, in its discretion, may receive such other evidence as the ends of justice require.

C. The Commission shall notify the parties of its decision within forty-eight hours of the appeal or review hearing.

1992, c. 836; 1994, c. 112.

§ 28.2-1413. When Commission to modify, remand or reverse decision of wetlands board.

The Commission shall modify, remand or reverse the decision of the wetlands board if:

1. The wetlands board, in reaching its decision, failed to fulfill its responsibilities under the coastal primary sand dune zoning ordinance; or

2. The substantial rights of the appellant or the applicant have been prejudiced because the findings, conclusions, or decisions of the board are:

a. In violation of constitutional provisions;

b. In excess of statutory authority or jurisdiction of the wetlands board;

c. Made upon unlawful procedure;

d. Affected by other error of law;

e. Unsupported by the evidence on the record considered as a whole; or

f. Arbitrary, capricious, or an abuse of discretion.

1992, c. 836.

§ 28.2-1414. Time for issuance of permit.

No permit shall be issued until the period within which a request for review or an appeal to the Commission may be made has expired. If a request for review is made or an appeal is noted, no activity for which the permit is required shall be commenced until the Commission has notified the parties of its determination.

1992, c. 836.

§ 28.2-1415. Judicial review.

An appeal from any Commission decision granting or denying a permit or from any Commission decision on the review of or appeal from a board decision may be taken by the applicant, any of the freeholders specified in subsection A of § 28.2-1411, or by the county, city or town where the dunes or beaches are located. Judicial review shall be pursuant to the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

1992, c. 836; 1994, c. 112.

The chapters of the acts of assembly referenced in the historical citation at the end of these sections may not constitute a comprehensive list of such chapters and may exclude chapters whose provisions have expired.

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