HomeMy WebLinkAboutLOD201900003 Correspondence 2019-01-16R R W A- R C H I T E C T 5
To Rachel Falkenstein
Principal Planner
Albemarle County / Community Development
rfalkenstein@albemarle.org
Date January 8, 2019
Project 2000-2010 Marchant, TMP 78-21H
Subject Regarding Phase II Request for Official Letter of Determination
A. Introduction:
The purpose of this letter is to ask for an Official Letter of Determination based on the
suggestion of County Staff after our Pre -Application Meeting held on September 17, 2018, and
based on subsequent notes of that meeting prepared by our office with respect to 2000 -2010
Marchant ("2000 Marchant") and particularly Phase 2 of the redevelopment, as hereinafter
described.
The 2000 Marchant property is zoned `Light industry' (LI) in the Woolen Mills neighborhood of
Albemarle County. Currently, the property includes a historic former residential home consisting
of four (4) residential units (a legal nonconforming use) and one (1) residential cottage (also a
legal nonconforming use), a variety of specimen/mature trees, a parking area, and gently sloping
lawns. Our client would like to redevelop the property to include a more robust use of the land
while preserving many of the unique qualities of the historic residence and grounds.
The preliminary concept for the redevelopment includes work in four phases:
1. Phase 1. Preserve and improve the existing house and cottage consisting of five (5) legal
nonconforming residential uses, no change in use.
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2. Phase 2. Add a series of small 'maker shop' establishments with accessory and integrated
dwelling units for the business owner of each establishment as well as accessory (integral) retail
space to serve customers.
3. Phase 3. A small commercial building that will most likely require a Special Exception or a
Special Use Permit (to be determined at a later date). As currently contemplated, the use would
be a use compatible with the development of the Woolen Mills such as a restaurant or other
retail use to serve the needs of WillowTree employees.
4. Phase 4. Final phase at the 'front' yard along the railroad track side of the existing home to
be determined, for now it will remain generally open and could be used in the future as an
informal sculpture garden/garden/lawn.
To illustrate these ideas, we are including a DRAFT Concept design for DRAFT masterplan of the
redevelopment of the property dated October 3, 2018 for your reference.
B. Description of Phase 2 of the Redevelopment.
As shown in our draft master plan dated October 3, 2018, Phase 2 of our concept for the site
provides for small, affordable, flexible work/maker/fabrication spaces where a dwelling unit
would be attached to the business establishment as an accessory use for the use of the owner of
that establishment. Our client intends to provide 6 to 10 of these small live/work establishments.
C. Current Zoning and Uses.
Section 26.2 of Chapter 18 of the Albemarle County Code (the "Zoning Code") provides for
uses and structures within the industrial district. "Primary uses and structures within the
industrial districts are permitted by right, by special use permit or by special exception." See
Section 26.2(a). For Light Industrial, the table in Section 26.2 provides for the following "by right"
uses (See also Section 27.2):
1. Manufacturing/Processing/Assembly. Fabrication, and Recycling.
2. Laboratories/Research and Development and Experimental Testing.
3. Industrial Offices.
4. Subordinate retail sales for any use permitted by right; use does not exceed 25% of gross
floor area of primary industrial use.
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5. A supporting commercial use; use does not exceed 25% of the gross floor area of the
freestanding building or multiple buildings on an industrial site.
6. Dwelling and sleeping quarters onsite. (See Section 5.1.21).
D. Interpreting Zoning Ordinances. We have kept the following principles in mind in applying the
zoning ordinance to the proposed development:
1. "The first step in interpreting an ordinance is to employ the plain and natural meaning of
the words" (citations omitted) The Albemarle County Land Use Law Handbook, Greg
Kamptner, County Attorney (February 2013) (hereinafter "Handbook"). Chapter 16,
Section 16-400.
2. Because zoning ordinances are in derogation of the common law, they should be
interpreted in favor of the Land Owner. Handbook, Chapter 16, Section 16-300.
3. "...when the ordinance is unambiguous, the governing body's intent is determined only
from what the ordinance says and not from what anyone thinks it should have said.
Handbook, Chapter 16, Section 16-400.
4. "...when employing the plain and natural meaning to language that is unambiguous, the
key question is not what the governing body intended to enact, but the meaning of the
words of the ordinance enacted." Handbook, Chapter 16, Section 16-400.
5. "Dictionairies may be used as aids in obtaining the plain and natural meaning of a word."
Handbook, Section 16-400.
E. Does the proposed "maker use" fall within the definition of manufacture, processing
assembly, or fabrication so as to be a primary by right use within a light industrial district?
Section 3.1 of the Zoning Code defines "manufacture or manufacturing in the following manner:
"Manufacture or manufacturing: The transformation of materials into on article or a product
of substantially different character or use. (Amended 10-3-01)"
The following words are not defined in the Zoning Code so we used applicable dictionary
definitions:
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1. Processing. Process is defined as (Merriam Webster) a continuous operation, art, or
method especially in manufacture.
2. Assembly. Assembly is defined as (Merriam Webster) fitting together the parts of.
3. Fabrication. Fabrication is defined as (Merriam Webster) the act or process of fabricating.
Fabricate is defined as (Merriam Webster) to construct from diverse and usually
standardize parts.
4. Recycling. Recycle is defined as (Merriam Webster) as to pass again through a series of
treatments or changes. Also the process of recovering material from waste and turning
it into new products.
5. Material. Material is defined "relating to, derived from, or consisting of matter"
(Merriam -Webster) "Matter" is defined as "a physical substance in general which
occupies space and possesses mass."
It would appear that the definition of the Material is very broad and would include (but
not be limited to) wood, clay, glass, steel, copper and other metals, polymers and plastics,
fiber, textiles, plants, concrete, paper, composites, electronic/optical, metamaterials,
nanomaterials and biomaterials.
Because the definitions of manufacturing and material (which is one of the key terms in the
definition of manufacturing), are broadly defined, it would seem that many activities would
constitute manufacturing. It is likely that many but not all "maker uses" would be covered by the
following examples:
Examples — Manufacturing.
1. Heating sand (silicon dioxide) to make glass objects, plates, cups, glasses, bowls, and other
glass objects.
2. Using clay to make plates, vases, cups, and other clay objects.
3. Using wood to make bowls, cabinets, furniture and other wood objects.
4. Using metals to make various metal objects such as knives, utensils, bowls, jewelry, sinks,
pans, and other metal objects.
5. Using plastic or polymers to cast or create objects such as chairs, tables, lamps, and other
objects.
M
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Examples - Processing/Assembly/Fabrication.
1. Using machinery to process chocolate, cookies, biscuits, fortune cookies, jam, chutneys,
sauces and other food products.
2. Using finished parts to assemble other objects: a robot, a computer, a lamp, a leather belt.
Recycling.
1. Converting used glass bottles into other glass objects.
2. Converting used automobile tires into sandals, door mats, and other objects.
3. Converting waste into new products.
Because the definitions are broad, many different activities should be permitted as a By Right
Use in a light industrial district. The examples given above are illustrative but not exhaustive. To
ensure compliance, each tenant in the lease would be required to describe the activity to be
conducted within the Premises and to represent and warrant that the activity conducted would
be consistent with a "By Right Use"
F. Accessory Uses. Section 3.1 defines Accessory Use, building structure in the following
manner:
"Accessory use, building or structure: A subordinate use, building or structure
customarily incidental to and located upon the same lot occupied by the primary use,
building, or structure, and located upon land zoned to allow the primary use, building
or structure; provided that a subordinate use, building or structure customarily
incidental to a primary farm use, building or structure need not be located upon the
same lot occupied by the primary farm use, building, or structure." (Amended 10-9-02,
5-5-10).
The concept of an "accessory" use developed because of the impossibility of providing expressly
for every possible legal use in a zoning ordinance. See Handbook §17-310. Therefore, even
though a proposed use is not explicitly allowed, a landowner may argue it should be permitted
as an accessory use to a primary use that is permitted. (Handbook, Section 17-310.) It is said that
the two key criteria in determining whether a use is accessory is whether the use is subordinate
to the lawful primary use and whether it is customarily incidental to the primary use. Courts in
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Virginia and a number of other jurisdictions have looked to a number of factors to determine
whether a particular use is "subordinate." These factors are listed and discussed in the Handbook
in Section 17-121. Courts in Virginia and a number of other jurisdictions have looked to a number
of other factors to determine whether a particular use is "customarily incidental" to a primary
use. These factors are listed and discussed in the Handbook in Sections 17-322, 17-323, and 17-
324. It should be noted that this multifactor analysis has been employed in cases where the
ordinance under consideration has not otherwise expressly delineated permissible accessory
uses.
In this situation under review, the Zoning Ordinance in Section 5.1.21 has expressly delineated
the conditions applicable to a permissible residential accessory use in a light industrial area and
therefore one needs to look at the language and conditions imposed by Section 5.1.21
(subsequently discussed) rather than employing the more general multifactor analysis. As stated
in the Handbook in Section 17-310 "a locality may expressly delineate those uses which it deems
to be accessory. See, e.g. Carter v. Bavuso, 2014 WL 3510293 (2014) (Virginia. Supreme Court
unpublished)." As subsequently discussed with respect to Section 5.2.21, this is the approach
taken under Albemarle's Zoning Ordinance.
G. Special Conditions on Accessory Uses in Industrial Areas Section 26-2c
Section 26.2c of the Zoning Ordinance imposes three general conditions on accessory uses in
industrial districts. Section 26.2c provides as follows:
"c. Accessory uses and structures. Accessory uses and structures are permitted
within each industrial district, subject to the following:
1. When accessory use is permitted. No accessory use is permitted until the
primary use to which it is accessory has been established.
2. When accessory structure is permitted. No accessory structure is permitted
until either construction of the primary structure or the primary use to which it
is accessory has commenced.
3. Prohibited accessory uses and structures. Parking structures, stand-alone
parking and drive -through windows are permitted only as provided in
subsection (a) and not otherwise as accessory uses. The storage of sludge or
toxic wastes, or both, is prohibited as an accessory use; provided that the
temporary storage of sludge or toxic wastes awaiting proper disposal is a
permitted accessory use."
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In the instant case, the three general conditions of Section 26.2c would be met.
a. The primary use and accessory use would be established at the same time and would be
integrated as part of the same building. The primary use and secondary use would be
rented to one tenant.
b. The occupancy of the primary use and the accessory use would occur at the same time.
c. Parking structures, stand-alone parking, and drive -through vendors, and the storage of
toxic materials or sledge are not contemplated.
H. Is the dwelling unit an accessory use under Section 5.2.1?
Section 5.2.21 of the Zoning Ordinance allows an on -site dwelling unit to be an accessory use
to a commercial or industrial use as a By Right Use subject to specified conditions.
Section 5.2.21 provides as follows:
"5.1.21 ON -SITE DWELLINGS AND SLEEPING QUARTERS ACCESSORY TO COMMERCIAL
AND INDUSTRIAL USES Each on -site dwelling or sleeping quarters that is accessory to
a commercial or industrial use shall be subject to the following:
a. Dwellings and sleeping quarters may be occupied only by owners or employees of
the establishments, including on -site security officers, scientists and lab technicians.
b. Any dwelling may be detached from the establishment to which it pertains or within
the same structure as the establishment, subject to Albemarle County building official
and fire official approvals.
c. Any sleeping quarters shall be located within the primary structure and shall be
subordinate to the primary use.
d. Not more than one (1) dwelling unit or sleeping quarters shall be permitted per
establishment.
e. No manufactured home shall be permitted as a dwelling unit for a period in excess
of six (6) months."
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Discussion of Section 5.2.21
The "Dwelling" is an accessory use because it can only be occupied by the owner or the
employees of the "establishment." However, the entire structure could be used for
"manufacturing" purposes as a legal use so the "dwelling" has to be an accessory use. On the
other hand, one could not use the industrial portion for residential purposes because a residential
use is not a permitted use.
The requirement that only the owner or the employee of the industrial portion of a structure
could occupy the dwelling portion would be enforced through the lease. The "dwelling" whether
separate or in the same structure would meet building department requirements.
Section 5.1.21 (c) distinguishes between "dwelling" and "sleeping quarters." The current
design would provide for "Dwellings." Section 5.1.21 (c) applies only to "sleeping quarters" not
"dwellings" and therefore should not be applicable. There would be no more than one dwelling
unit per establishment. The Dwelling Unit would not be a "manufactured home" as that term is
defined in Section 3.1 of the Zoning Ordinance.
Section 3.1 of the Zoning Code broadly defines the word "establishment" as including a place
of business:
"Establishment: A public or private institution of place of business. (Added 4-3-13)"
I. Requested Determinations
1. The word "Manufacture" as well as the word "material" and other applicable terms are
broadly defined and the examples given of possible uses of the "maker spaces" describe
By Right Uses within a light industrial district.
2. Assuming that the general conditions imposed by Section 26.2c would be met as well as
the more specific requirements of Section 5.2.21, the proposed dwelling unit would
constitute a by right accessory use within the light industrial district.
3. Subject to the floor area limitation, a subordinate retail sales use would be permitted as
a by right under Section 26.2.
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Support Materials:
To support the determination, please find the following materials:
I. Application for Official Letter of Determination via Albemarle County forms (with completed
information under `All other Determinations' section);
II. brwarchitects fee for Determination as required;
III. copy of Tax Map 78;
IV. Portion of Albemarle GIS map system with 2000 Marchant highlighted; and
V. Concept design for DRAFT masterplan of the redevelopment of the property, dated
October 3, 2018.
From Kurt Keesecker / Senior Associate
kkeesecker(c@brw-architects.com
Allan H. Cadgene / Property Owner
allan@alimarl.com
E
F:lea h\VA\Virginia Pacific Investments, LLC\2000 2010 March ant\Zoning\March ant Letter of Determination to County 010819.docx
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County of Albemarle - GIS-Web - Property Information
http://bisweb.albemarle.org/GISWeb/Propertylii o.asl)x
Parcel ID: 07800-00-00-021HO
Parcel Assessment Data (CAMA) Last Updated On: 01/13/2019
Other Parcel Data Last Updated On: 01/13/2019
GIS/Mapping Data Last Updated On: 01/13/2019
Summary Information
Parcel Information
Total Acres 0
Primary Prop. Address 2000 MARCHANT ST
Other Address 2010 MARCHANT ST
Property Card(s)
Lot
Property Name
Subdivision
Description
Owner Information
Owner
Address
1
021HO
N/A
Woolen Mills
WOOLEN MILLS C
VIRGINIA PACIFIC INVESTMENTS LLC
2088 UNION STREET STE 1
SAN FRANCISCO CA, 94123
Owner as of Jan 1st VIRGINIA PACIFIC INVESTMENTS LLC
Most Recent Assessment Information
Year
2018
Assessment Date
01/01/2018
Land Value
$96,000
Land Use Value
$0
Improvements Value
$335,300
Total Value
$431,300
Most Recent Sales History
Previous Owner
2000 MARCHANT STREET LLC
Owner
VIRGINIA PACIFIC INVESTMENTS LLC
Sale Date
04/30/2018
Sale Price
$825,000
Deed Book/Page
5040/20
Other Tax Information as of Jan 1st
State Code Multi -Family Residential
Tax Type Reg. Taxable
Parcel Level Use Code Apartments (21+Units)
I of I
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