Lauren Whitley

October 31, 2006

When Virginia enacted the Chesapeake Bay Preservation Act in 1988,[1] it was the first time the State connected local land use controls with the water quality of the Chesapeake Bay.[2] This connection, while a long time coming in Virginia, made sense. The Chesapeake Bay has 11,684 miles of shoreline,[3] and for every acre of water in the Bay there are nine acres of land along its shores.[4] This large amount of shoreline, combined with the Bay's intensely large watershed that stretches 64,000 square miles,[5] means the Bay is particularly sensitive to the land uses that occupy its shores. Controlling land uses inevitably means controlling the water quality, and health, of the Bay.

The Virginia Legislature implemented the Chesapeake Bay Preservation Act ("Bay Act") in part to help Virginia comply with the regional Chesapeake Bay Agreement that was established in 1987.[6] The Bay Act was a large leap forward for Virginia, a State historically focused on fiercely protecting the rights of private property owners.[7] The tentativeness of the State to restrict private property rights in any form or fashion is evidenced by the fact that the Bay Act delegates the majority of the implementation and enforcement of its regulations to local governments.[8] Specifically, the Bay Act's requirements apply only to the local governments of eighty-four counties, cities, and towns located in what the legislation labels "Tidewater Virginia,"[9] and does not apply to the entire State.[10]

This focus on local government implementation, while appearing to allow more local control over the land use restrictions being imposed, has in practice, resulted in a painfully-slow implementation of the Bay Act's provisions. It was not until 2002, fourteen years after the Bay Act's passage, that all of the required eighty-four localities complied with just the initial phase of the Bay Act's regulations.[11] Additionally, some local governing bodies have resisted implementing aspects of the Bay Act because they feel the State has overstepped its authority by forcing them to regulate property owners within their jurisdictions.[12] Many localities had no zoning at all in their communities prior to the Bay Act, and have had to construct comprehensive zoning plans from scratch before they could even begin to implement the Act's provisions.[13] Finally, many local governing bodies have stated that they can not effectively implement the provisions due to inadequate funding and staff.[14] Some attempts by the State to alleviate this funding dilemma at the local level have been rejected by the State Legislature.[15] Another difficulty is that localities have become the focus of a number of lawsuits, brought by private property owners, testing the validity of the Bay Act and its regulations that are enforced at the local level.[16] These problems primarily stem from the focus of the legislation on local government implementation and enforcement.

Even more problematic than the slow implementation of the Bay Act's requirements are the numerous exceptions to, and general lack of enforcement regarding the requirements that have been implemented at the local level. As one local newspaper put it, "The Chesapeake Bay Preservation Act of 1988 may be the most circumvented law since Prohibition."[17] For example, as of October 2002, the City of Virginia Beach, located in the Tidewater Virginia region, approved 806 of 868 requests to bypass restrictions of their local ordinances implementing the Bay Act's provisions.[18] And during the FYs 2000 and 2001, the City of Chesapeake approved thirty-five applications for encroachments into what should be the most protected areas along the shores of the Bay under the Bay Act.[19]

The implementation of the Bay Act should be revamped to allocate more authority to the state level. A primary vehicle for accomplishing this goal would be the State "Chesapeake Bay Local Assistance Board" (CBLAB)[20] that was established under the legislation.[21] The CBLAB currently has the duty of establishing criteria for local governments to follow under the Bay Act,[22] and the supposed duty of ensuring that localities comply with these criteria.[23] The CBLAB additionally provides guidance for localities in their designation of Chesapeake Bay Preservation Areas.[24] Chesapeake Bay Preservation Areas are designated by each locality, and are usually "considered sensitive to development and other activities due to the prevalence of certain land types that if improperly developed, would contribute to the degradation of water quality."[25] However, localities are not required to notify the CBLAB regarding proposed land developments within a Chesapeake Bay Preservation Area.[26]

First, the CBLAB should shift its oversight from a complaint-driven approach to more a proactive strategy, with regular independent audits and site visits of planning departments and commissions in the eighty-four localities that compose Tidewater Virginia under the Bay Act. The CBLAB currently initiates investigative oversight when complaints are filed by private citizens, however, it has been rightly noted that this places the primary enforcement responsibility outside the agency.[27] The CBLAB itself has recognized the inadequacy of this system.[28] The CBLAB needs to more frequently visit and inspect actions taking place at the local level regarding the implementation of the Bay Act. Part of this oversight should include regular inspection of all variances or waivers for land uses that occur within the locally designated Chesapeake Bay Preservation Areas. This increased onsite inspection and oversight will require a serious commitment by the Virginia Legislature to increase funding and staff for the CBLAB.[29]

The CBLAB could also utilize the currently existing Regional Coastal Planning District Commissions to achieve more effective oversight and implementation of the agency's regulations under the Bay Act.[30] One of the specific goals of the Regional Commissions is to assist with the planning and implementation of the Chesapeake Bay Preservation Act.[31] The Virginia Department of Environmental Quality, through the State Coastal Zone Management Program, currently provides funding for the Regional Commissions to provide training for local government coastal resource managers and to advance an annual special project that affects a particular locality in that Commission's region.[32] These Commissions should also be used to assist with site visits at planning commissions, and literally along the shores of the Bay, within their regions.

Second, the CBLAB should be given explicit authority to initiate legal action against individual developers and citizens who violate the Bay Act as implemented in local zoning ordinances.[33] The CBLAB has the authority to: "(1) bring legal action to discontinue a development based solely on an approved site plan that clearly shows a violation of the Act and Board Regulations; [and] (2) file an injunction against site developers where they are violating the Act and Board Regulations . . . ."[34] While the Virginia Attorney General has made clear the CBLAB can sue localities for failing to comply with the Bay Act's regulations, the CBLAB remains unclear whether it can sue individual developers for violation of the Bay Act regulations as represented in local ordinances.[35] The Virginia legislature needs to amend the Bay Act to explicitly give the CBLAB the authority to sue individual developers and landowners for violations of the Bay Act regulations as represented in local zoning ordinances. The Virginia Legislature attempted legislation that would permit localities to request the attorney general to defend them when they are sued based on their local ordinances implementing the Bay Act.[36] There needs to be state authority to instigate litigation against individual violators of the land use controls. This will prevent localities from bearing the burden of defending or initiating litigation to enforce the Bay Act's statewide goals.

Allowing a state agency to litigate against individual landowners is a far cry from Virginia's original Bay Act that deferred to the rights of private landowners by allocating the Act's regulatory authority to the most local level. However, it is clear that the resistance from local governing bodies in implementing these regulations has prevented the Bay Act from effectively working towards its goal of improving the health of the Bay. The role of the middleman in this transaction, the local governing body, needs to be minimized. This means putting more authority at the state level for oversight and control over the individual private property owners who are affecting the health of the Bay.

[1] Va. Code Ann. §10.1-2100–2115 (1988).

[2] Steven G. Davison et al., Chesapeake Waters: Four Centuries of Controversy, Concern, and Legislation 208–10 (2d ed.1997).

[3] Ann E. Dorbin, Saving the Bay: People Working for the Future of the Chesapeake xx (2001).

[4] Id.

[5] Id. at xxiii.

[6] See Chesapeake Bay Agreement, available at http://www.chesapeakebay.net/pubs/1987

ChesapeakeBayAgreement.pdf (outlining the Agreement between the Federal Government, the District of Columbia, Virginia, Maryland, and Pennsylvania that set targeted goals for achieving the health of the bay by certain dates).

[7] Jon Cannon, Choices and Institutions in Watershed Management, 25 Wm. & Mary Evtl. L. & Pol'y Rev. 379, 403 (Winter 2000).

[8] Va. Code Ann. §10.1-2100B (1988) (stating "[l]ocal governments have the initiative for planning and for implementing the provisions of this chapter, and the Commonwealth shall act primarily in a supportive role . . . .").

[9] Va. Code Ann. §10.1-2101(1988) ("'Tidewater Virginia' means the following jurisdictions: The Counties of Accomack, Arlington, Caroline, Charles City, Chesterfield, Essex, Fairfax, Gloucester, Hanover, Henrico, Isle of Wight, James City, Kin George, King and Queen, King William, Lancaster, Mathews, Middlesex, New Kent, Northampton, Northumberland, Prince of George, Prince William, Richmond, Spotsylvania, Stafford, Surry, Westemoreland, and York, and the Cities of Alexandria, Chesapeake, Colonial Heights, Fairfax, Falls Church, Fredricksburg, Hampton, Hopewell, Newport News, Norfolk, Petersburg, Poquoson, Portsmouth, Richmond, Suffolk, Virginia Beach, and Williamsburg.").

[10] Va. Code Ann. §10.1-2110 (stating that counties outside of Tidewater Virginia can employ the criteria developed under the Bay Act, but they are not required to do so).

[11] Joint Legislative Audit and Review Commission, Implementation of the Chesapeake Bay Preservation Act, Gen. Assem. 2002-23, 32 (2002), available at http://jlarc.state.va.us/Reports/

Rpt281.pdf [hereinafter Joint Legislative Audit and Review Commission].

[12] Id. at 33.

[13] Id. at 30.

[14] Id. at 33–34, tbl.3.

[15] See H.B. 1193, 2006 Gen. Assem., Reg. Sess. (Va. 2006) (attempting to provide localities the option of assessing impact fees for construction under the Bay Act local ordinances).

[16] See, e.g., Cherrystone Inlet, LLC v. Bd. of Zoning Appeals, 271 Va. 670 (Va. 2006); Bd. of Supervisors v. Omni Homes, Inc., 253 Va. 59 (Va. 1997); Chappell v. Bd. of Zoning Appeals for Fairfax, 65 Va. Cir. 142 (Va. Cir. 2004).

[17] Editorial, Loopholes Rob Bay of Vital Protections, Va. Pilot, February 26, 2003, at B8.

[18] Tom Horton, Turning the Tide: Saving the Chesapeake Bay 218–19 (2003).

[19] See Joint Legislative Audit and Review Commission, supra note 11, at 42 (referring to observations where local governing bodies "regularly granted encroachments into [resource protection area] buffers.").

[20] The "CBLAB" has been renamed the Chesapeake Bay Local Assistance Department, but for ease of this editorial it will be referred to as CBLAB. See Department of Conservation and Recreation, Chesapeake Bay Local Assistance, http://www.cblad.virginia.gov/ (last visited Nov. 2, 2006) (providing background information on CBLAB programs).

[21] Va. Code Ann. §10.1-2102 (1988).

[22] Va. Code Ann. §10.1-2107 (1988).

[23] Va. Code Ann. §10.1-2103(8) (1988).

[24] Va. Code Ann. §10.1-2103(7) (1988).

[25] Gloucester, Va., Code §5.5-3 (2003).

[26] Davison, supra note 2, at 208–9.

[27] Joint Legislative Audit and Review Commission, supra note 11, at 59.

[28] Id.

[29] The Chesapeake Bay Foundation, http://www.cbf.org/site/PageServer?pagename=state_sub_va_

programs (last visited October 27, 2006) (noting the need for a consistent $150-$200 million a year in-state funding to clean up Virginia's rivers and the Chesapeake Bay).

[30] See Virginia Department of Environmental Quality, http://www.deq.state.va.us/coastal/pdcs.html (last visited October 27, 2006) (explaining how the eight coastal planning district commissions "provide an important link between the state agencies and the eighty-seven localities that constitute Virginia's network of coastal resource managers.")

[31] Id.

[32] Id.

[33] Joint Legislative Audit and Review Commission, supra note 11, at 62 (noting the agency should incorporate "legal tools into its enforcement process.").

[34] 2001 Op. Va. Att'y Gen. No. 00-087 at 2 (2001).

[35] Joint Legislative Audit and Review Commission, supra note 11, at 62.

[36] H.B. 719, 2006 Gen. Assem., Reg. Sess. (Va. 2006).