The Bay Act Is Zoning

Over the past few months, the debate over the Chesapeake Bay Protection Ordinance (CBPO) has been lively and extensive, throughout Loudoun. A discussion with a lot of questions, and fewer answers, as of last Fall has now resulted in a lot more clarity about what is at stake, what is involved, and who is impacted.

I’ve watched this discussion with interest, as it is my kids who I hope will be able to enjoy crab from the Bay in 15 years, and that’s one of the things the CBPO is aimed at ensuring. In watching, discussing and reading over the past five months, I have come to a conclusion about the CPBO.

The CBPO is nothing more than zoning.

This firefight is more of a proxy battle over philosophies of local zoning than a real debate over the merits of protecting the Bay. In fact, our willigness and ability to protect the Bay is not at question at all, but rather has become victim to long-standing opposition to some basic ideas about economic development.

Follow below the fold for my reasoning.
Among the things I’m most grateful for over the past five months of debate over the CBPO is the preponderance of facts and hypotheses that have emerged. For example:

  • We started this process not even knowing how many parcels would potentially be impacted by the CBPO. We now know that it will be somewhere around 1,600, out of the approximately 114,000 property parcels in the County. That’s approximately 1.4% of all parcels. So, for 98.6% of all taxable property parcels in the County, comprising the vast majority of voters, the CBPO will have no impact.
  • It was thought that the CPBO would be toothless if it could not change the pollution coming out of Dulles Airport, and the Board of Supervisors has no authority to regulate the land of the Airport. As it turns out, the Airport already arranges for treatment of its wastewater, so that point is moot.
  • It has been asked, “if the CBPO only impacts 1.4% of parcels, why implement it at all?” The answer is simple: those 1,600 parcels have an outsized impact on the quality of the water in our local streams, so mitigating surface pollution that comes from those parcels into the streams will have a significant impact on the quality of the water entering the Potomac, and from there, the Bay.

    Think of it this way: if your house is absolutely clean except for merely 1.4% of surfaces, but those surfaces happen to be the air conditioning vents, and those vents are contaminated with dog crap, then that small 1.4% surface contamination will have an outsized impact on the air quality in your house.

  • It has been asserted that the CBPO would prevent homeowners from building doghouses. The subsequent discussions have shown that is not the case. In fact, the CBPO would only regulate changes of significant size to the buffer between an existing building and the stream.

    In fact, the CBPO does not prevent anyone from building anything. That bears repeating. The regulations under consideration by the Board of Supervisors do not prohibit anyone from building anything. All the CBPO would do is require that anything that’s built have its impact on the local stream mitigated by some other action.

What is remarkable in all of this debate is that the conditions that the CBPO would impose on the minuscule number of property owners subject to the regulations in the name of water quality are no different from the regulatory conditions that the majority of Loudoun County residents live under in the name of property values!


  • Under the CBPO, a property owner needs to make sure changes they make to their property do not have a harmful impact on the property’s riparian buffers.
  • Under omnipresent HOA rules, a property owner needs to make sure changes they make to their property do not have a harmful impact on the property’s value.

Which brings us to zoning.

The crux of the matter is that many of the opponents of the CBPO have a philosophical problem with the idea that a government (which secures the value of their property through the availability of local services, ensures access to that property through public roads, and provides safety and security on that property through fire, rescue and police forces) has a justifiable interest in what one does with their property, based on the fact that the government represents that property’s neighbors and the overall well-being of the community. Of course, the idea that the government has a role in deciding what gets built where, and how, is the crux of zoning, and the core principle behind development done wisely, rather than foolishly.

The CBPO is nothing more than an exercise in smart zoning. Just as you don’t locate a prison next to a school, and it is the Board of Supervisors who sees to it that such a development doesn’t happen, you do not locate a chicken farm next to a waterway that is used for human consumption (like the Potomac and its tributaries). Similarly, if your neighbor wanted to sink a 20×20 mine shaft in his front yard to look for gold, you would probably want the local authorities to have something to say about that, if only to put a shed over the unsightly hole. The CBPO does not prevent someone from sinking the mine shaft, it simply requires them to mitigate the impact by building that shed.

(We will leave for another time the fact that the same people who take issue with what is, in effect, environmental zoning because of the limitations it places on personal property rights have no problem infringing personal property rights when it comes to enforcing residential occupancy zoning. It is interesting, however, that it is often “health and sanitation” that are cited for such residential occupancy zoning enforcements, and the CBPO is essentially further health and sanitation zoning.)

As a final comment on this, it is interesting to note that if the CBPO does pass, and the handful of property owners it impacts choose to refrain from building enormous structures within 100 feet of streams on their property, those property owners might be eligible for a tax credit for the trees that are saved in the process.

Riparian Waterway Buffer Tax Credit

Individuals and corporations can qualify for a credit of up to 25% of the value of timber growing in a designated buffer area. The credit can’t exceed $17,500. You can carry unused portions of this credit forward for 5 years to help offset future tax liabilities. When you claim this credit, attach a copy of the certificate from the Virginia Department of Forestry.

Support the CBPO, because it will lower taxes. Well, that and the fact that it will ensure my kids will be able to eat crab from the Bay when they grow up.