HomeMy WebLinkAboutAP201800002 Correspondence 2018-12-03COUNTY OF ALBEMARLE
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MEMORANDUM
TO: Albemarle County Board of Zoning Appeals
FROM: Andrew H. Herrick, Deputy County Attorney
DATE: December 3, 2018
RE: Roslyn Farm Appeal; No. AP 2018-02
On behalf of the County, the County Attorney's Office submits the following summary of
legal issues raised in the Roslyn Farm Appeal (No. AP 2018-02). Appellant Mesa Associates is
appealing the issuance of zoning clearance CLE2018-00091 to Applicant Sue A. Albrecht.
1. Summary of Facts
On February 14, 2018, Applicant Sue A. Albrecht applied for a zoning clearance to permit
certain events and activities outlined in Albemarle County Code § 18-5.1.58. After conducting the
required review, on August 6, 2018, the Zoning Administrator's designee issued the requested
zoning clearance, pursuant to Albemarle County Code § 18-31.5. Appellant Mesa Associates now
appeals the issuance of that clearance.
2. Applicable Standards
A. Standard of Review: Presumption of Correctness / Appellant's Burden of Proof
Virginia Code § 15.2-2309(1) enables the Board of Zoning Appeals (BZA) to "hear and
decide appeals from any order, requirement, decision or determination made by an administrative
officer in the administration or enforcement of [the zoning ordinance]. The decision on such appeal
shall be based on the board's judgment of whether the administrative officer was correct." See Board
ofZoningAppeals ofjames City County v. University Square Associates, 246 Va. 290 (1993).
Virginia Code § 15.2-2309(1) further provides: "The determination of the administrative
officer shall be presumed to be correct. At a hearing on an appeal, the administrative officer shall
explain the basis for his determination after which the appellant has the burden of proof to rebut
such presumption of correctness by a preponderance of the evidence." [emphasis added]
B. Applicable Zoning Ordinances
This appeal primarily involves two provisions of the County's zoning ordinance:
1. Albemarle County Code § 18-5.1.58 outlines what events and activities are permitted
at agricultural operations. Certain events and activities are permitted only with a
zoning clearance, including agricultural operation events that generate more than 50
visitor vehicle trips per day (VTPD) or occur on sites less than 21 acres but have 200
or fewer attendees at any time.
2. Albemarle County Code § 18-31.5 in turn outlines the required process and
standards for the review and issuance of zoning clearances. Two key points bear
noting at the outset:
a. Under subsection (b), the issuance of certain clearances is mandatory, not
discretionary: "If the proposed building, structure, improvements, and site,
and the proposed use thereof, comply with [the zoning ordinance], the zoning
administrator shall issue the zoning clearance." Following this standard,
popular opinion cannot be considered, positively or negatively.
b. Along the same lines, neither a public hearing nor even public notice is
required for the issuance of a zoning clearance. Consistent with state law,
subsection (d) does require notice to owners for any applications involving
their property. But any public notice requirement for zoning clearances is
notably absent.
3. Application/Analysis
At its core, this appeal misunderstands the nature of zoning clearances, what they are and
what they are not.
• Administrative/Non-Discretionary -- Zoning clearances require administrative approval of
proposed future use(s). County staff has no discretion in issuing a zoning clearance when an
applicant has proposed a use that meets the applicable County ordinance(s).
o Role of Public Notice/Input -- Unlike special use permits, whose issuance is a
legislative decision involving discretion and public input, the issuance of zoning
clearances is purely administrative, not allowing for legislative discretion or the
consideration of popular opinion. Because popular opinion cannot be a
consideration, the ordinance does not require public notice of zoning clearance
applications.
• Based on Proposed Uses - Zoning clearances are based on proposed future uses, rather
than current uses. County staff must determine whether the use(s) proposed in the
application meet applicable County ordinances. Actual current uses are not dispositive.
• Not an Unlimited License - A zoning clearance is not a license for an owner/applicant to do
whatever it wants, nor does it give an owner/applicant rights beyond the applicable zoning
ordinance(s). Rather, owner/applicants must continue to comply with all applicable zoning
ordinances at all times. In fact, two of the major functions of the zoning clearance process
are: (i) for staff to inform or remind owner/applicants of the applicable zoning ordinances,
and (b) for owner/applicants to provide definite plans to comply. Any failure to comply with
a zoning clearance is in fact a violation of an underlying zoning ordinance, which can be
enforced accordingly.
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4. Rebuttal
The appeal objects to the zoning clearance on nine grounds. None is legally persuasive.
A. All required notice was given.
Despite the Appellant's argument that staff did not properly notify surrounding property
owners of the zoning clearance application, all required notice was given. As noted above, Albemarle
County Code § 18-31.5 controls the zoning application clearance process. Notably absent from this
section is any requirement to provide legal notice of zoning clearance applications to adjacent owners
or the general public. The Appellant's argument that "staff did not follow its own rules and
regulations to advise surrounding property owners" is simply not supported.
B. Main property activity is irrelevant.
Despite the Appellant's argument that the main property activity is Airbnb room rentals, the
primary use of the property is not legally relevant. The Appellant may be basing its argument on the
definition of the term "devoted to the bona fide production of crops, animals, or fowl" in Albemarle
County Code § 18-3.1:
"Devoted to the bona fide production of crops, animals, or fowl: As used in the definition of
"agricultural operation," any lot on which the production of one or more agricultural
products is a primary use ("agricultural production") and the agricultural production is
engaged in good faith and not merely to enable the lot to be eligible to host events and
activities at an agricultural operation as provided in sections 5.1.58, 10.2.1(30), 10.2.2(56),
11.3.1(29), and 11.3.2(10). In determining whether the agricultural production is a primary
use and engaged in good faith, the following factors may be considered: (i) whether the lot is
subject to use value assessment because it is real estate devoted agriculture, horticulture, or
silviculture; (ii) the acreage in agricultural production; (ill) the proportion of the lot's acreage
in agricultural production; (iv) the crops, animals, or fowl being produced; (v) the acreage of
the lot and of the site; (vi) the owner's federal tax forms including Form 1040F (Farm
Expense and Income), Form 4385 (Farm Rental Income and Expenses), Form 1040E (Cash
Rent for Agricultural Land), Form 1040C (Business Profit and Loss), or Form 1120
(Corporate Partnership); (vii) receipts showing gross sales over the most recent three-year
period or evidence of the value of agricultural products that would have been sold but for a
natural disaster; (viii) the proportion of the owner's total income derived from agricultural
production on the site; (ix) evidence of participation in a federal farm subsidy program; (x)
evidence of operating under a conservation farm management plan prepared by a
professional; (xi) the proportion of capital investment in the site devoted to the production
of agricultural products, operating, and labor expenses; (xii) Albemarle County -level United
States Department of Agriculture Census of Agriculture data; and (xiii) any other relevant
factors."
At a minimum, this definition requires that the production of one or more agricultural
products be merely a primary use. It does not require that such production be the primary use.
From there, the definition provides 13 different indicators to help determine whether the
agricultural production is a primary use. First on the list is "whether the lot is subject to use value
assessment because it is real estate devoted agriculture, horticulture, or silviculture." Near the end
of the list, as only one of many possible indicators is "the proportion of the owner's total income
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derived from agricultural production on the site." The Appelant's argument that the main property
activity is Airbnb room rentals simply ignores the twelve other indicators of whether a property is
"devoted to the bona fide production of crops, animals, or fowl." As explained more fully below,
when other indicators are property weighted and considered, the subject property in fact meets that
definition.
C. Primary property use need not be agriculture.
On a related note, despite the Appelant's argument that agriculture was not confirmed as
the primary property use, agriculture need not be the primary use, only a property use. See above.
D. Emergency vehicle access was confirmed, twice.
Despite the Appelant's argument, County staff did in fact confirm access, with two separate
site visits: on July 27 and again on August 8.
E. Property's qualification for use value demonstrates its agricultural use.
Despite the Appelant's argument, the subject Property is in fact "devoted to agricultural use,"
as determined by the County Assessor. The subject Property has qualified for agricultural use value
assessments for many years. To assess a property at an agricultural use value, the County Assessor
must first determine that it is "real estate devoted to agricultural use," as defined in Virginia Code
58.1-3230. The subject Property's consistent qualification for use value assessments demonstrates
that it meets this definition. Not coincidentally, qualification for a use value assessment is the number
one consideration (literally) in determining whether a property is also "devoted to the bona fide
production of crops, animals, or fowl" under the County's zoning ordinance, as noted above.
F. Zoning clearances respond to applications.
Despite the Appellants argument that the subject Property's current use does not qualify,
zoning clearances are based on the use(s) proposed in the application. As noted above, a property's
current use is not dispositive.
G. The ordinance controls the numbers of event attendees.
Despite the Appelant's argument that the limit on the number of attendees is unclear,
County Code § 18-5.1.58 permits up to 200 attendees at "agricultural operations," such as the subject
Property. Nothing in the Applicant's supporting materials overrides the ordinance language.
H. Ownership of sound equipment is not required.
Despite the Appelant's argument that the County did not verify ownership of the sound
equipment, the ordinance does not require such verification in all cases. County Code § 18-
5.1.58(g)(1) requires only that the clearance "verify that the sound amplification equipment at the
agricultural operation will comply with the applicable standards in section 4.18 or that the owner has
and will use a sound level meter." By providing a satisfactory sound study, the Applicant verified that
the sound amplification equipment at the agricultural operation would comply with the applicable
standards, thereby meeting the first alternative.
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I. The zoning ordinance, not popular opinion, controls.
Despite the Appellants argument that the use(s) proposed in the clearance application would
have an adverse effect, County staff must consider only the criteria outlined in the zoning ordinance,
not popular opinion, in issuing zoning clearances.
5. Conclusion
For the reasons stated above, the issuance of zoning clearance CLE2018-00091 was correct.
Because the Appellant has failed to rebut the presumption of correctness, its appeal should be
denied, and the issuance of the zoning clearance affirmed.
Cc: Amelia McCulley, Zoning Administrator
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