People who own land near streams have until the beginning of May to determine whether the streams they border are protected under the revised Chesapeake Bay regulations.
Instead of implementing the new regulations on March 1 as planned, the county’s ordinance changes will not take effect until May 1, according to a recommendation made last Thursday by the Fairfax County Planning Commission.
The recommendation follows a public hearing two weeks ago during which developers said they were unaware of the new regulations and asked that the county defer their implementation until they could learn more. Under the new rules, which were approved at the state level on March 1, 2002, streams in the Chesapeake Bay watershed that run year-round must be protected by a 100-foot buffer zone to reduce the amount of runoff flowing into the stream. That means that landowners who own property near year-round streams will not be able to build anything within 100 feet of the water on either side.
PLANNING COMMISSIONER Walter Alcorn (At Large) who recommended the deferral said the Planning Commission and county staff members would conduct open meetings with landowners and anybody interested to discuss the new rules. Because the new rules have already been approved at the state level, they are not expected to change much during the county's discussions. But Alcorn suggested that developers rewrite those sections of the new ordinance they disagree with and present the new language to the Planning Commission.
Alcorn also said that developers should not blame the county if they were not aware of the new rules.
“If they’re in the development business, they’ve got to be watching,” he said. “If you’re a homeowner and you want to expand your house and you want to put a deck on your property you’re not subject to this.”
But he added that people who want to build a backyard shed close to a year-round stream might no longer be able to.
Planning Commission Chairman Peter Murphy (Springfield) said he supported the motion to delay the implementation of the new rules.
“On something that’s as important as this, if we mess up the format we mess up the content,” he said.
Environmentalists in the county have called the new rules a way to curb development in particularly sensitive areas. By pushing the implementation date back, they said, developers could possibly build in those areas before the new rules are in place.
“It’s quite possible that you would lose some land that would be protected,” said Stella Koch, the vice chair of the Environmental Quality Advisory Council, a citizen group.
Koch said she was “disappointed” that the Planning Commission had deferred the implementation of the new rules. Like Alcorn, she rejected the argument that developers had not been given proper notice about the impacts of the new rules.
“I didn’t find that a very compelling argument,” she said. “This has been out there for a long time. … It’s their job to be on top of this.”
BUT LAURIE FROST WILSON, another at-large Planning Commissioner, said the delay was necessary to give everybody time to work through problems in the county’s ordinance. For instance, she said, what would the county do in a situation where a builder had already been granted permission to build near a year-round stream before the rules took effect? Would that builder’s right to build be rescinded because of the new law?
“There are real property law issues that come into play that we may not have given enough attention to so far,” she said.
An additional problem, she said, is the question of mapping. While county staff members are preparing a map outlining all the year-round streams in the county, that map will not be ready until the end of the year, months after the rules are supposed to take effect.
“It does surprise me that staff doesn’t feel the need for the map before the regulations go in effect,” she said. “I should be able to look at a map and be able to tell whether there’s a possibility that there might be a perennial stream on my property.”
Wilson also said she was concerned the county may not have publicized the total impact of the new rules enough.
“It is the county’s job to tell people,” she said. “We have to provide notice. That raises the issue of how much notice is enough.”
Michael Rolband, a consultant who helps developers navigate the Chesapeake Bay regulations, said Fairfax County should follow the approach followed by Arlington County. Arlington officials sent a letter to every landowner who owned property near streams letting them know of the proposed county ordinance changes.
“Traditionally, Fairfax County has engaged the community at large on the big issues. For some reason on this issue the staff elected not to do that and now they’re going to have to do that,” he said.
But Wilson rejected the Arlington model. “It’s not practical for us to do that,” she said because there are too many landowners in Fairfax County who could be affected.