On Friday, July 1, new legislation arising from the 2022 Virginia General Assembly will take effect. The development community will want to take note of these news laws and their impact on our industry.
1. 2022 Consensus Tree Legislation (SB 537)
Tree preservation concerns raised at local community meetings have been elevated to the General Assembly. In recent years, the General Assembly has dealt with numerous pieces of legislation related to the planting, preservation and replacement of trees during the land development and construction process. In 2022, various groups came together to reach a compromise on tree preservation tools. This compromise was enacted in SB 537 and contained benefits for both sides of the discussion.
SB 537 allows more localities to enact tree replacement ordinances. Currently, only the densest localities could regulate tree replacement. Under SB 537, all localities are able to enact tree replacement ordinances.
SB 537 also provides greater flexibility to meet tree canopy requirements. Currently, use of an off-site tree bank is an available option only when the strict application of such canopy requirements would result in unreasonable hardship to the developer. This new legislation allows developers to meet any tree canopy requirement by making a payment to the Natural Resources Commitment Fund. This creates a favorable new option for developers to offset canopy requirements.
2022 will not be the last of the tree discussion. An effort to give localities the ability to enact tree conservation ordinances is on the horizon. Trees will remain a hot topic at community meetings and in our regulatory environment.
2. VDOT Performance Metrics and Standards (HB 482)
VDOT time delays and VDOT acceptance requirements beyond approved plans continue to be a source of consternation in creating communities and economic opportunities. The General Assembly appears to be interested in seeing some improvement in VDOT’s performance.
Enacted HB 482 directs VDOT to adopt performance metrics that measure the efficiency and quality of the department's processes for the review of and approval of subdivision and commercial development plans. To aid in the development of these performance metrics, the Commissioner of Highways will gather the following information:
(a) the length of time that it takes the Department to review plans from the date the plans are received in the local office of the Department until comments are returned to the local government;
(b) the number of reviews that are required to achieve final approval of plans; and
(c) measures reported at the residency, district, and statewide levels of the Department.
HB 482 also directs the Department of Transportation to adopt performance standards by January 1, 2025, for the review and approval of subdivision and commercial development plans, which will be made available for public view on the department's website and updated quarterly.
3. VDOT Secondary Street Acceptance Requirements (SSAR) (HB 275)
Neighbors opposing a rezoning request frequently question a developer’s need to connect to an existing stub road or provide a stub road to their property. Hopefully, HB 275 will provide flexibility to address neighbor concerns while maintaining some connectivity.
HB 275 requires VDOT to include flexibility in its connectivity requirements for secondary street acceptance to limit the number of connections to adjacent property or highway networks.
4. Plan Validity Extension (HB 272/SB 501)
Once again, the sunset date for certain local land use approvals was extended — this time to July 1, 2023. To qualify for the extension, the applicable land use approvals must have been valid and outstanding as of July 1, 2020. Such approvals include locally approved plats and plans, and time limited special exceptions, special use permits and conditional use permits.
5. Accelerated Release of Stream Nutrient Credits (SB 187)
Nutrient credits are a hot commodity. The General Assembly recognized this trend, and SB 187 was enacted to allow the Department of Environmental Quality to accelerate the release of nutrient credits generated by a stream restoration project based on:
(a) a determination that the level of risk is low,
(b) the provision of additional financial assurance, and
(c) the experience of the applicant.
This will expand the supply and help reduce the process for nutrient bank credits.
The acceleration will be effective 30 days after the Department of Environmental Quality issues guidance regarding its implementation.
6. Pro Rata Reimbursements for Installation of Utilities – SB 52
Prior to the 2022 General Assembly, localities were not required to provide credits for extending wet utilities or oversizing wet utility lines. With enactment of SB 52 all localities are now required to do so.
7. Stormwater Management; Proprietary BMPs - HB 1224
HB 1224 was enacted to expand the stormwater tools that may be used in Stormwater Pollution Prevention Plans. DEQ must now certificate and permit the use of proprietary best management practices (BMPs) approved by other state, regional or national programs. DEQ must do this for particular BMPs that have verified nutrient sediment removal effectiveness and met or exceeded all of the applicable program’s established test protocol requirements.
Local environmental departments are always pushing the industry to adopt new BMPs. Cost is always a barrier. Hopefully this new legislation will bring in new options that are cost effective and result in more efficient use of land for the industry to consider.
Have questions about how these changes in Virginia law will impact your business? Contact a member of the Hirschler Land Use and Zoning Practice Group to learn more.
Luis F. Ruiz