HomeMy WebLinkAbout1994-08-10August 10, 1994 (Regular Night Meeting)
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A regular meeting of the Board of Supervisors of Albemarle County,
Virginia, was held on August 10, 1994, beginning at 7:00 P.M., Room 7, County
Office Building, McIntire Road, charlottesville, Virginia.
PRESENT: Mr. David P. Bowerman, Mrs. charlotte Y. Humphris, Messrs.
Forrest R. Marshall, Jr., Charles S. Martin, Walter F. Perkins and Mrs.
Sally H. Thomas.
ABSENT: None.
OFFICERS PRESENT: County Executive, Robert W. Tucker, Jr.; County Attor-
ney, Larry W. Davis; and Chief of Planning, Ronald S. Keeler.
Agenda Item No. 1. The meeting was called to order at 7:00 P.M., by the
Chairman, Mr. Perkins.
Agenda Item No. 2. Pledge of Allegiance.
Agenda Item No. 3. Moment of Silence.
Agenda Item No. 4. Other Matters Not Listed on the Agenda from the
Public. There were no other matters from the public.
Agenda Item No. 5. Consent Agenda. On motion by Mrs. Humphris, seconded
by Mr. Marshall, items 5.1 through 5.2a on the consent agenda were approved,
and the remaining items were accepted for information. (Note: Mr. Bowerman
stated that he was abstaining from voting on Item 5.2a due to a conflict of
interest. He owns property on Berkmar Drive.) Discussion on individual items
are included with the item. Roll was called and the motion carried by the
following recorded vote:
AYES: Mrs. Humphris, Messrs. Marshall, Martin, Perkins, Mrs. Thomas and
Mr. Bowerman.
NAYS: None.
Item 5.1. Adopt Resolution to request that the Virginia Department of
Transportation to increase its maintenance funds for the County of Albemarle
in order to improve the appearance of the County's seven entrance corridors.
Mrs. Thomas distributed to Board members additional language to include
in the proposed resolution. She thinks the resolution would be stronger if it
stated why this area deserves more mowing at its entrance corridors. Board
members concurred.
The following resolution was adopted by the above shown vote:
RESOLUTION
WHEREAS
the Board of Supervisors of Albemarle County, Virginia,
would like to improve the appearance of its seven
entrance corridors leading into the City of Charlottes-
ville; and
WHEREAS
in the interest of economic development in the Common-
wealth, the Board notes that the corridors are important
to travellers such as the 622,000 tourists (figure
represents 1993 Monticello ticket sales) and the out-of-
state guests attending University of Virginia events;
and
WHEREAS
it has been determined that other localities of histo-
rical significance are able to maintain a greater empha-
sis on roadway mowing and trimming through funding from
the Virginia Department of Transportation; and
WHEREAS
the Charlottesville-area Resident Engineer has deter-
mined that the cost to improve the maintenance of these
seven corridors through increased mowing and trimming is
approximately $22,000;
NOW, THEREFORE, BE IT RESOLVED that the Board of Supervisors of
Albemarle County, Virginia, does hereby request that the
Virginia Department of Transportation increase its
maintenance funds for the County of Albemarle by approx-
imately $22,000 per year in order to improve the appear-
ance of the entrance corridors as befits an area of such
attractiveness.
Item 5.2. Authorize County Executive to solicit representation for
Illegal Dumping Task Force.
(Mr. Tucker indicated in an Executive Summary to the Board, that illegal
dumping in the community has been a continuous and increasing problem. The
dumping occurs along road rights-of-way and on private property. Many
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August 10, 1994 (Regular Night Meeting)
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citizens have expressed concern regarding the aesthetic impact and environmen-
tal issues associated with trash, furniture, appliances and various other
large items that are seen along the roadside. Individual sites have been
cleaned up and enforcement efforts have been increased. Regardless, the
dumping often reoccurs at locations around the county. Clean up and enforce-
ment efforts have been increased over the past year, however, it is d~fficult
to catch someone in the act. A letter has been prepared soliciting participa-
tion from the community. The proposed agenda is to outline the areas of
concern and potential issues that must be addressed. Once the task force has
recommendations, they can be presented to the Board of Supervisors for consid-
eration.)
Mrs. Thomas suggested that a realtor and someone from the Farm Bureau be
considered for the task force.
By the above shown vote, the Board authorized the County Executive to
solicit representation for a community task force charged with bringing back a
set of recommendations for consideration.
Item 5.2a. Approval of agreement with Rivanna Water and Sewer Authority
to fund Berkmar North Extension.
(Mr. Tucker indicated in an Executive Summary to the Board that Rivanna
Water & Sewer Authority has procured the construction of Berkmar Drive
Extended as part of a contract which combines the extension of a water
transmission line and the building of the road under one contract. The road
is being funded by the County primarily from VDoT Revenue Sharing funds and
the project has been previously approved by the Board. The proposed agreement
commits the County to pay Rivanna for the road construction costs for Berkmar
Drive Extended. It is necessary because the contract between Rivanna and Mega
Contractors, Inc., is dependent upon Rivanna being assured that the County
funding for the road project is available. The contract is proposed to be
executed by Rivanna on August 16, 1994.)
The Board approved the following agreement, by the above shown vote:
AGREEMENT TO PAY FOR EXTENSION OF BERKMAR DRIVE
This Agreement, dated as of the 10th day of August, 1994,
is by and between the Rivanna Water and Sewer Authority (hereafter
called "Rivanna") and the County of Albemarle, virginia (hereafter
called "County").
Rivanna and County, in consideration of the mutual covenants
hereinafter set forth, agree as follows:
1. Rivanna agrees to enter into a contract with Mega Con-
tractors, Incorporated to construct the extension of Berkmar Drive
as described in Project Manual for Water System and Roadway
Improvements for the Rivanna Water and Sewer Authority and Albe-
marle County, virginia, prepared by Wiley & wilson, and dated
October 22, 1993 (hereafter called "Project Manual"), hereby
incorporated by reference.
2. County agrees to pay to Rivanna the cost attributed to
the extension of Berkmar Drive as detailed in items 1 through 55
of the Bid Schedule for Water System and Roadway Improvements for
Rivanna Water and Sewer Authority and Albemarle County, Virginia,
hereby incorporated by reference, which is attached as Exhibit A
to the contract between Rivanna and Mega Contractors, Incorporat-
ed, for construction of Division B--Extension of Berkmar Drive and
Transmission Main Improvements; the total price shown to be
$870,415.55.
3. County agrees to pay to Rivanna in addition to the costs
described in 2, above, the cost of all change orders and other
additional necessary costs relating to the construction of Berkmar
Drive. No change orders or additional costs shall be authorized
without prior written approval by the County.
4. County agrees to pay to Rivanna the proportional share of
the cost of site visits of Wiley & Wilson for general inspections
of the project. The County's share shall be based upon the cost
of the extension of Berkmar Drive as a percentage of the total
cost of the work described as Division A and Division B in the
Project Manual. The County, however, agrees to pay Rivanna 100
percent of the cost of site visits requested solely by the County
and which are only for purposes related to the construction of
Berkmar Drive. The County shall not be responsible for the cost
of site visits requested solely by Rivanna which are only related
to the construction of water line improvements.
5. The County agrees, to the extent permitted by law, to
reimburse the Authority for any costs or damages, arising out of
disputes with the Contractor or others in connection with that
portion of the contract attributable to the extension of Berkmar
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August 10, 1994 (Regular Night Meeting)
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Drive, including any claims for personal or property damage
arising therefrom and any attorneys fees or other costs in defend-
ing claims or actions against the Authority by reason of the
Berkmar Drive extension portion of such contract. In the event
any such disputes, claims or actions are of such a nature to make
it difficult or impossible to ascertain whether they arise out of
the extension of Berkmar Drive or the water system portion of the
contract, the County agrees to reimburse the Authority on a
proportional share of any such costs or damages, such proportion
to be based upon the relative costs of the extension of Berkmar
Drive as a percentage of the total costs of the contract work, as
described in Division A and Division B of the Project Manual.
6. County agrees to pay Rivanna payment for work that is
completed within 30 days of receipt of a written request.
7. No amendments or modifications to the contract with Mega
Contractors, Incorporated relating to the construction of Berkmar
Drive shall be made by Rivanna without the prior written consent
of the County.
8. No amendments or modifications of this Agreement shall
be made except in writing upon mutual agreement of Rivanna and
the County.
IN WITNESS WHEREOF, Rivanna and the County by and through
their duly authorized representatives have signed this agreement
in duplicate, as evidenced below.
RIVANNA WATER AND SEWER AUTHORITY
By: George W. Williams, Executive Director
DATED:
COUNTY OF ALBEMARLE, VIRGINIA
By: Walter F. Perkins, Chairman
Board of Supervisors
DATED:
Item 5.3. Memorandum dated August 4, 1994, from Mr. Robert W. Tucker,
Jr., County Executive, re: Regional Economic Development Partnership, was
received for information.
Item 5.4. Copy of Planning Commission minutes for July 12, 1994, was
received for information.
Item 5.5. Letter dated August 1, 1994, from Mr. David R. Gehr, Commis-
sioner, Department of Transportation, providing notice that Watts Station
Drive (Route 847) in Watts Station Subdivision was added to the Secondary
System, effective August 1, 1994, received for information as follows:
"As requested in your resolution dated June 8, 1994, the following
addition to the Secondary System of Albemarle County is hereby
approved, effective August 1, 1994.
ADDITION LENGTH
WATTS STATION
Route 847 (Watts Station Drive) - From Route 600 to 0.39 mile
Southwest Route 600 0.39 Mi."
Item 5.6. 1994 First Quarter Building Report as prepared by the Depart-
ment of Planning and Community Development, was received for information.
Item 5.7. 1994 Second Quarter Building Report as prepared by the Depart-
ment of Planning and Community Development, was received for information.
Item 5.8. Copy of letter dated August 4, 1994, from Mr. J. S. Hodge,
Chief Engineer, Department of Transportation, to Mr. Robert W. Tucker, Jr.,
County Executive, re: access from existing Route 250 Bypass to North Grounds
of UVA, received for information as follows:
"This letter will confirm my conversation of August 2 with you in
reference to the correspondence (on file) between Leonard Sand-
ridge and me.
This correspondence is not intended in any way to negate the three
party agreement. I stated at the July Albemarle County Board of
Supervisors meeting that nothing has taken place regarding commu-
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ter traffic to feed the North Grounds and there is continued
discussion concerning parking facilities in the vicinity of
University Hall. Mr. Sandridge and I agree that construction of
an access from the Route 250 Bypass in the North Grounds is not
currently needed and should not be built at this time.
We further agreed that development of the North Grounds, the
parking, and commuter situation be advanced and be part of the
bypass construction unless developments occur prior to that time.
I assure you that the Department is committed to building an
access when it is needed."
Item 5.9. Copy of memorandum dated August 5, 1994, from Mr. V. Wayne
Cilimberg, Director of Planning and Community Development, to Mr. Robert W.
Tucker, Jr., County Executive, re: review for Comprehensive Plan compliance -
Jefferson Area Board for the Aging, was received for information.
Item 5.10. Copy of letter dated August 4, 1994, from Mr. Kenneth W.
Butler, Chairman, Transportation Committee, Governor's Commission on Govern-
ment Reform, to Mr. Robert W. Tucker, Jr., County Executive, re: notice of
public hearing to be held on August 22, 1994, was received for information.
Item 5.11. Copy of letter dated August 8, 1994, from Mr. V. Wayne
Cilimberg, Director of Planning and Community Development, to Ms. Susan
Wagner, Voice Services Manager, The Daily Progress, re: Department of
Planning and Community Development's participation in The Daily Progress's
Info Line, was received for information.
Item 5.12. Notice from the Albemarle County Service Authority of its
intent to hold a public hearing on its Five Year Capital Improvement Program
on August 18, 1994, was received for information.
Item 5.13. Copy of letter dated August 4, 1994, from Mr. D. S. Roose-
velt, Resident Engineer, Department of Transportation, re: private entrance
sight distance, received for information as follows:
"Reference is made to my letter of June 24, 1994, concerning
private entrance sight distance.
Implementation of the revised sight distance requirements con-
tained in that letter has called the Department's authority over
control of private entrances into question. As a result, the
interpretation forwarded to you by my June 24, 1994, letter has
been modified. This letter is to appraise you of the procedure
which will be used by this office to review private entrance
permit requests in the future.
On entrances requested to existing platted lots the Department
will attempt to establish entrances at points which have a sight
distance equal to or greater than ten times the operating speed of
the roadway. If such sight distance cannot conveniently be
obtained, a location having a minimum 250 feet of sight distance
will be allowed. If 250 feet of sight distance cannot be obtained
through authority available to the property owner then a permit
will be issued at the point where maximum sight distance is
available.
On new lots being considered for recordation, the Department will
review these for entrance locations having sight distance equal to
or greater than ten times the operating speed. If such locations
do not exist, we will recommend the subdivision not be approved.
To assist us in controlling the creation of lots with substandard
sight distance in the future, we request you allow us to review
all lots before they are subdivided and consider our recommenda-
tion concerning sight distance. Once new lots have been platted
they will be considered under the existing lot criteria which was
outlined above."
Item 5.14. Letter dated August 2, 1994, from Mr. David R. Gehr, Commis-
sioner, Department of Transportation, re: notice that Skylark Court (Route
1618) in Whippoorwill Hollow Subdivision was added to the Secondary System,
effective August 2, 1994, received for information as follows:
"As requested in your resolution dated June 8, 1994, the following
addition to the Secondary System of Albemarle County is hereby
approved, effective August 2, 1994.
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ADDITION LENGTH
WHIPPOORWILL HOLLOW
Route 1618 (Skylark Court)
Northwest Route 1616
From Route 1616 to 0.14 mile
0.14 Mi."
Item 5.15. Memorandum dated August 3, 1994, from Mr. Patrick A. McMahon,
Division of Tourism, State Department of Economic Development, to Virginia
Travel Industry, re: Virginia Tourism Cooperative Advertising Fund, was
received for information.
Agenda Item No. 6. Public Hearing on whether to request the Commonwealth
Transportation Board to prohibit the use of through truck traffic on George-
town Road (Route 656). This prohibition could apply to any truck or truck and
trailer or semi-trailer combination, except a pickup truck or panel truck.
Combinations of Hydraulic Road, Route 29-Emmett Street and/or Route 29-250
Bypass, and Barracks ROad are considered reasonable alternatives to trucks now
travelling Georgetown Road to Hydraulic Road or Barracks Road. (Advertised in
the Daily Progress on July 25 and August 1, 1994.)
Mr. Tucker explained that tonight's public hearing is to receive comments
concerning the prohibition of truck traffic on Georgetown Road. This prohibi-
tion would apply to any truck or truck and trailer or semi-trailer combina-
tion, except a pickup truck or panel truck. He then discussed alternative
routes. Staff recommends the Board adopt the proposed resolution.
Mr. Tucker said the manager of Charlottesville Propane expressed concerns
about the Board taking this action because his company's trucks occasionally
travel Georgetown Road to routes west of the County. He noted that there is a
letter in the Supervisors' packets from Mr. Gary McGee, a resident of Old
Forge Road, in support of the prohibition of trucks on Georgetown Road.
Mr. Perkins opened the public hearing.
Mr. Lester Hoel, a member of the Georgetown Road Joint Task Force, said
that on October 5, 1992, he presented a petition to the Board signed by 500
citizens who live in the Georgetown Road area, representing 97 percent of the
households that were surveyed. The petition provided the following informa-
tion: 1) The Georgetown Road area has been designated in the Comprehensive
Plan as a residential area of medium to high density; 2) Traffic and safety
conditions have worsened on Georgetown Road; 3) There are 13 major entrances
from subdivisions and complexes, eight on the east, five on the west and 11
private driveways, which front directly on Georgetown Road, and these numbers
have increased since that time. Georgetown Road is less than one mile long
with nearly 450 dwelling units feeding into it and no other alternative
outlet. These units contain approximately 1500 to 2000 people. Georgetown
Road was designed to serve as a collector street and its intended purpose is
for residential access; 4) Georgetown Road has many of the characteristics of
streets in other parts of Charlottesville that were constructed as parts of
neighborhoods but used by through traffic. He gave Park Street, Locust Avenue
and Alderman Road as examples; 5) Georgetown Road is the route for children
who walk or bike to Greer Elementary School, Jack Jouett Middle School and
Albemarle High School. Many people, other than students, use this road for
walking, jogging and biking. The number of cars and trucks is steadily
increasing and speeds are increasing; and 6) It is dangerous for pedestrians
to cross Georgetown Road. There is a City bus line with more than four stops,
and there are houses on both sides of Georgetown Road.
Mr. Hoelle said after the petition was presented, the Board appointed the
Georgetown Road Joint Task Force composed of citizens, County officials, and
representatives of VDoT and the Board of Supervisors. On February 2, 1994,
the Task Force presented to the Board six recommendations, all of which were
approved. Since then, three of the recommendations have been acted on.
Restricting trucks on Georgetown Road is one of those recommendations. On
August 3, 1994, the Supervisors approved funds to reconstruct the intersection
of Hydraulic and Georgetown Roads and to improve the sidewalks to the level of
the existing road from Terrell Road to Inglewood Drive.
Mr. Hoelle thanked the Board for working with the Task Force to help
achieve a safer and more liveable Georgetown Road. If the Supervisors approve
the resolution to prohibit trucks on Georgetown Road, VDoT's procedure
requires a formal request to the Resident Engineer. VDoT officials will
proceed with a traffic engineering study to determine the factual situation
including origins and destinations, traffic volumes, action data and alterna-
tive routes. VDoT officials will then publish notice and request comments in
writing at a public hearing, if that is necessary. Next, VDoT officials will
review the data to determine if Georgetown Road meets its five criteria.
First, reasonable alternate routes are provided. Second, the road is func-
tionally classified as local or collector. Third, the character and/or
frequency of the truck traffic is not compatible with the affected area.
Fourth, the engineering of the roadway and/or the accident history indicate
that it is not suitable for truck traffic. Fifth, within 150 feet of the
existing or proposed roadway center line there must be at least 12 dwellings
per 1000 feet of roadway.
August 10, 1994 (Regular Night Meeting)
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Mr. Hoelle said if the truck prohibition is recommended by the State
Traffic Engineer and approved by the Chief Engineer, it is then presented to
the Commissioner for consideration by the Commonwealth Transportation Board.
This is a lengthy process. The Task Force recommended the elimination of
trucks because they are incompatible with a safe, environmentally friendly
neighborhood road. Task Force members believe that there are alternative
routes for trucks using Georgetown Road and they believe the CTB will approve
the request. Task Force members hope the Supervisors will adopt the proposed
resolution.
Mr. Peter Easter, a representative of the Truck Rental and Leasing
Association of Virginia, said restricting truck travel on highways and roads
in localities disrupts commerce. Every additional mile out of the way and off
direct routes wastes fuel, causes more pollution and adds to the increased
chance of accidents. Truck drivers have a better driving record than the
typical motorist but everybody is better off if fewer miles are traveled. He
said the staff report overlooked the cost that goes into all of the goods and
services that are bought. Transportation is a big item, and every time
additional restrictions are required for trucks, it means greater costs for
trucks, and this adds to the cost of food, housing and other things that
people buy. Trucking companies pay heavy taxes in the Commonwealth of
Virginia, both in license fees and fuel taxes. He said these taxes are much
greater than taxes and fees for automobiles, and this money goes to the
maintenance and construction of roads. He has driven past the intersection of
Georgetown Road and Barracks Road every business day for the last 32 years,
and he has seen tremendous improvements in the road in recent years. He drove
over Georgetown Road this evening, and there are good intersections at both
ends, there are turning lanes throughout the interior portion of the road, and
the entire road is safe for truck traffic. Given the construction that is
occurring on Route 29 north, everybody needs other routes to traverse this
community.
Mr. Easter commented that the Supervisors are being asked to make a
similar recommendation for the route from Shadwell to Gordonsville. This
would be an even more serious situation to the trucking industry. People
think of trucking as relating to truckers, but a lot of the truckers are local
business people who either own their own trucks or lease them from companies.
Larger trucks are used by food wholesalers to haul things to grocery stores,
clothing supply houses and others. He emphasized that the Shadwell situation
would be a tremendous disaster to the trucking industry because the route
involves many miles. He talked with someone at VDoT recently and was told
that there is only one stretch of highway in the whole Commonwealth of
Virginia that is restricted, and that is a mountainous road in southwest
Virginia. That one-laned road has very sharp curves and a narrow pavement.
There are a lot of repercussions that do not show on the surface of this
proposal.
Ms. Deborah Kron, a resident of Terrell Road East, spoke about the
dangerous situation on Georgetown Road. She is a mother of four children; she
and her husband have lived in the area for over 12 years, and she sees an
increasing number of trucks traveling Georgetown Road at dangerous speeds.
The trucks come around the curves, and the children are walking on the path,
and because of the way the road is elevated, the trucks seem to be shoulder
height to the children. This is alarming even to an average sized adult who
might be walking along the path. Ail of the members of the Task Force have
walked that area and they have all been discouraged by the dangerous traffic.
Truck traffic discourages children from walking back and forth to the high
school and the middle school, which are supposed to be community schools. She
and others in the community would like to access all of the facilities that
are there but many parents are reluctant to let their children ride bikes or
even walk to those schools. She noted, too, that access to any of the
neighborhoods across Georgetown Road is difficult for a child. She voiced her
appreciation to the Supervisors for the attention they have given to the
issues pointed out by the Task Force. She hopes that the Supervisors will
continue to realize that the Task Force is working towards improving George-
town Road for the residents, as well as the motorists.
Mr. Bill Dettor, President of Dettor, Edwards and Morris, read a prepared
statement to the Board, in which he voiced his concerns about the prohibition
of trucks on Georgetown Road. (See Mr. Dettor's statement, which was received
in the Board of Supervisors office on August 10, 1994.)
Since there were no others who wished to speak, Mr. Perkins closed the
public hearing.
At this time, Mrs. Humphris offered a motion, seconded by Mr. Bowerman,
to adopt the proposed resolution to request the Commonwealth Transportation
Board to prohibit the use of through truck traffic on Georgetown Road (Route
656).
Mr. Perkins said he has some concerns about limiting all trucks except
pickups and panel trucks. He thinks it would be better if the prohibition was
limited to trucks with more than six wheels or more than two axles. Delivery
trucks have to go on that road and are usually large vans, but they only have
six wheels, and are local trucks. These are not tractor-trailers seeking a
way to avoid Route 29; instead, they are making deliveries and it is easier
and quicker for them to get to Barracks Road and Garth Road. He traveled
south last winter and he noticed that it was common on many roads, even the
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interstates, to have vehicles with over two axles restricted to certain lanes.
He would prefer to restrict trucks with more than two axles rather than all
trucks.
Mrs. Thomas said there are sufficient steps in the process, as Mr. Hoelle
pointed out, that will allow the Board and Highway Department officials, to
make decisions as to reasonable restrictions and the number of trucks relating
to Georgetown Road. It is not known, at this time, the number of trucks or
the different types of trucks that are involved. The Supervisors are setting
in motion a way of gathering more facts, as well as expressing their concern
about Georgetown Road, rather than making a definite decision as to what kind
of restrictions should be placed on that road.
Mrs. Humphris agreed. She added that the resolution applies to through
trucks only and not to trucks that have a destination along the route. A lot
will be learned about the numbers and types of trucks as the process is
followed and that is the purpose of the process.
Mr. Bowerman mentioned that a transcript of this meeting will be sent to
VDoT, and he thinks it is important to recognize the number of citizens who
are here in support of this application. He then asked supporters of the
resolution to raise their hands. Mrs. Thomas estimated that there were
approximately 50 people in support. Mrs. Humphris said the support from that
area has been steadfast and continuous since the Task Force has been working
on this problem. The members of the Task Force have been unstinting in giving
their time and ability, as well as VDoT representatives from Culpeper who have
come to numerous meetings with the members of the Task Force. This has been a
unanimous effort by the community, and the residents deserve a round of
applause. It is because of their hard work that the situation has gotten to
this stage and she commended everyone involved. She thinks the residents'
position of trying to reclaim their community is correct, instead of allowing
it to be taken over by through traffic consisting of large vehicles. That is
why she made the motion.
Roll was then called and the motion carried by the following recorded
vote:
AYES:
NAYS:
Mrs. Humphris, Messrs. Marshall, Martin, Perkins, Mrs. Thomas and
Mr. Bowerman.
None.
(The adopted resolution is set out below:)
RESOLUTION
WHEREAS, the Board of Supervisors of Albemarle County,
Virginia, received a request from the Georgetown Road Task Force
to consider the prohibition of through truck traffic on Georgetown
Road (Route 656) as a means to address various traffic design
concerns; and
WHEREAS, the Board of Supervisors held a legally advertised
public hearing on August 10, 1994, to receive comments from
citizens on this request;
NOW, THEREFORE, BE IT RESOLVED that the Board of Supervisors
of Albemarle County, Virginia, does hereby request the Common-
wealth Transportation Board to prohibit the use of through truck
traffic on Georgetown Road (Route 656). Further that this prohi-
bition apply to any truck or truck and trailer or semi-trailer
combination, except a pickup truck or panel truck; and
FURTHER RESOLVES, that combinations of Hydraulic Road, Route
29-Emmett Street and/or Route 29-250 Bypass and Barracks Road are
reasonable alternatives to trucks now travelling Georgetown Road
to Hydraulic Road or Barracks Road. The Board also states its
intent that it will use its good offices for enforcement of the
proposed prohibition by the appropriate local law enforcement
agency.
Agenda Item No. 7. ZMA-93-03. Craig Builders (Applicant); Mechum River
Land Trust wner)
~: ~, . (Applicant requests deferral until December 14, 1994.) (Advertised in
the Daily Progress on July 25 and August 1, 1994.)
Mr. Perkins announced that Mr. Hunter Craig, of Craig Builders, has
requested that ZMA-93-03 be deferred until December 14, 1994.
Mr. Bowerman moved that ZMA-93-03 be deferred until December 14, 1994.
Mrs. Humphris seconded the motion. Roll was called and the motion carried by
the following recorded vote:
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August 10, 1994 (Regular Night Meeting)
(Page 8)
AYES: Mrs. Humphris, Messrs. Marshall, Martin, Perkins, Mrs. Thomas and
Mr. Bowerman.
NAYS: None.
Agenda Item No. 8. ZMA-94-03. University of Virginia Health Services
Foundation. Public Hear£ng on a request to rezone 5.026 ac from LI to C-i,
proffered. Located on N sd of Rt 250 approx 1.3 mi W of Rt 29 Bypass. TM59,
P23B. Samuel Miller Dist. (Advertised in the Daily Progress on July 25 and
August 1, 1994.)
Mr. Keeler summarized the staff report which is on file in the Clerk's
office and a part of the permanent record of the Board. Staff has reviewed
this request for compliance with the Comprehensive Plan and recommends
approval of the request.
Mr. Keeler said concern was expressed by Mr. Kirtley at the Planning
Commission meeting as to the zoning changes from industrial to commercial
which have been occurring in the area. Mr. Kirtley owns property to the west,
which houses Kirtley Distributing and Kirtley Realty, and is zoned Light
Industrial. Mr. Kirtley does not plan to change the zoning on his property.
He is concerned that the zoning on his property not be changed, by the Board,
at some future time to be more compatible with the other commercial properties
in the area.
Mr. Keeler said the Planning Commission, at its meeting on July 12, 1994,
recommended approval of ZMA-94-03 subject to acceptance of the applicant's
proffers.
Mr. Perkins opened the public hearing. He asked if the applicant was
present.
Mr. Gary Lowe, Facilities Manager for the Health Services Foundation,
said he was available to answer questions from the Board.
Mrs. Catherine J. Womack, an attorney at Feil, Deinlein, Pettit and
Williams, said she is present on behalf of Mr. W. J. Kirtley, Jr. Mr. Kirtley
owns the property immediately to the west of the Northridge Center. She is
not here in opposition to the proposal, but Mr. Kirtley feels strongly that he
needs to go on record every time a change is proposed in this area to protect
his own property. She called the Supervisors' attention to a letter that she
wrote to them which is included in their packets. This letter sets forth Mr.
Kirtley's position. Most people probably do not realize that there is a
warehouse on the back of Mr. Kirtley's property. The front of the property
has been developed nicely and the warehouse is barely visible from the road,
so if a person is not looking for it, it would not be noticed. This property
is perfectly suited to its needs, because it has rail and highway connections,
water and sewer, and everything needed for Light Industrial use. Mr. Kirt-
ley~s fear is that one day he will be operating a business that is a noncon-
forming use on this property which had been zoned Light Industrial use for so
long. She emphasized that Mr. Kirtley needs to know that he will be able to
fully utilize his property under its Light Industry zoning, and that he will
be able to expand his use, if he needs to do so, in the future. Any change in
his property's zoning would jeopardize that. The Supervisors are probably
thinking that nobody is proposing any changes for Mr. Kirtley's property, and
it is not likely to happen unless Mr. Kirtley, himself, asks for it. Some-
times it does happen and that is why he feels that he needs to go on record
every time a request is brought before the Board. Mr. Kirtley has owned the
property for approximately 17 years, and over those years he has seen property
change significantly in that area, and every time it changes, it seems as
though it is changing from uses that might be expected in a Rural Areas
designation. She reiterated that Mr. Kirtley does not want his property to be
changed from Light Industry because that zoning reflects the needs of his
businesses. She concluded her remarks by saying that Mr. Kirtley respectfully
requests the Board to note his concern that he may be forced out of his
present zoning.
No one else came forward to address the Board, so Mr. Perkins closed the
public hearing.
Mr. Perkins asked if this Board or the Planning staff could address Mr.
Kirtley's concerns by writing him a letter. He wondered, too, if Mr. Kirt-
ley's zoning would be "grandfathered." Mr. Tucker said the Commission and
Board have the authority to change any zoning in the County. The likelihood
that Mr. Kirtley's current zoning will change is not great but in the process
of current or future Comprehensive Plan reviews, changes could occur. Future
Boards would not be held to any action that this Board takes. It is appropri-
ate for Mr. Kirtley to continue to remind the Commission and Board that his
interest is to maintain his current zoning. Mr. Tucker added, however, that
he does not think it would be appropriate or legal to write something to Mr.
Kirtley guaranteeing him that the zoning on his property will remain the same
as it is now. Mr. Tucker said the use is "grandfathered" as long as Mr.
Kirtley maintains the warehouse and distributorship, but any future Board
could change the zoning. Mr. Kirtley could continue to operate his businesses
as he chooses, but he could be limited in terms of expansion.
Mrs. Thomas asked about traffic impact. The building is full of employ-
ees and there is significant traffic. She does not anticipate that there
August 10, 1994 (Regular Night Meeting)
(Page 9)
00004S
would be a tremendous change but there will be a different pattern because
people will be coming and going, as opposed to people coming to the building
to spend the entire day. Mr. Lowe responded that parking was also a concern
for Health Services Foundation officials. Dr. J. Levine of the Health
Sciences Center, had a study done which projected patient visits. There are
currently 232 parking spaces and Dr. Levine's projections indicate that there
should be adequate parking and probably less parking will be required, because
one-half hour is assigned to each patient visit. He feels comfortable that
parking will be sufficient. Mrs. Thomas said the concern expressed to her
related more to the traffic flow on Route 250, rather than parking.
At this time, Mrs. Thomas offered motion to approve ZMA-94-03 as prof-
fered in letter dated June 30, 1994, to William D. Fritz, Senior Planner,
County of Albemarle, from N. T. Brinkman, Inc., Owner's Representative, set
out below:
Health Services Foundation hereby extends/clarifies its use
proffer to include that the following uses will be prohibit-
ed:
Section 22.2.1a
Section 22.2.1b
1 through 15 inclusive
2,7,8,9,10,11,12,14,15,16,22,24
Mrs. Thomas said she thinks this is a way of encouraging local enter-
prise. She added that patients outside of the area traveling on Route 250 who
do not have to go any further than this facility should reduce the impact on
roads that are closer to the City.
Mr. Humphris seconded the motion. Roll was called and the motion carried
by the following recorded vote:
AYES:
NAYS:
Mrs. Humphris, Messrs. Marshall, Martin, Perkins, Mrs. Thomas and
Mr. Bowerman.
None.
Agenda Item No. 9. ZMA-94-07. Philip Sansone. Public Hearing on a
request to amend proffers of ZMA-89-24 to permit development adjacent to Rt
20. Located on E sd of Rt 20 approx 0.5 mi N of Rt 20/Rt 250 inters. Property
described as TM78,P8(part of), Neighborhood 3, is recommended for medium
density residential (4.01-10 du/ac) in Comprehensive Plan. Rivanna Dist.
(Advertised in the Daily Progress on July 25 and August 1, 1994.)
Mr. Keeler summarized the staff report which is on file in the Clerk's
office and a part of the permanent record of the Board. He noted that the
request does not require approval from the Architectural Review Board which
was mistakenly indicated in the staff report. The staff reviewed the request
for compliance with the Zoning Ordinance and recommended approval.
Mr. Keeler said the Planning Commission, at its meeting on July 12, 1994,
unanimously recommended approval of ZMA-94-07 subject to acceptance of the
applicant's proffers.
There were no questions from Board members for Mr. Keeler, so Mr. Perkins
opened the public hearing.
Mr. Tom McCrystal said Dr. Sansone was not present but he would be glad
to answer questions.
No one else came forward to address this request, so Mr. Perkins closed
the public hearing.
Mr. Martin offered motion to approve ZMA-94-07 as proffered in letter
dated June 28, 1994, to Bill Fritz, Senior Planner, County of Albemarle, from
Marilynn R. Gale, L.S., Roudabush, Gale & Assoc., Inc., as set out below:
The plan dated April 21, 1994, showing four single family
attached lots between State Route 20 and Wilton Farm Road
(Attachment A) will serve as a guide for development.
A 25' landscaping buffer easement of screening trees (Sec.
32.7.9 of the Albemarle County Zoning Ordinance), along State
Route 20 will be shown on the final subdivision plat, along
with an additional 20' building setback, to provide a total
of 45' building setback from State Route 20.
3 o
A natural berm, created by the lowering of the house site
areas on the proposed 4 lots, will be established by the
developer, with suitable plantings within the 25' landscaping
buffer, and be required to be maintained permanently by the
home owners association or the individual lot owners affect-
ed.
Mr. Marshall seconded the motion. Roll was called and the motion carried
by the following recorded vote:
000049
August 10, 1994 (Regular Night .Meeting)
(Page 10)
AYES: Mrs. Humphris, Messrs. Marshall, Martin, Perkins, Mrs. Thomas and
Mr. Bowerman.
NAYS: None.
Agenda Item No. 10. SP-94-13. Tom Kuhlman. Public Hearing on a request
for Home Occupation Class B on 9.9 ac zoned RA on pvt rd on N sd of Rt 610
approx 1.9 mi E of Rt 20. TM64,P2H. Rivanna Dist. (Advertised in the Daily
Progress on July 25 and August 1, 1994.)
Mr. Keeler summarized the staff report which is on file in the Clerk's
office and a part of the permanent record of the Board. The staff has
recommended denial of the request.
Mr. Keeler said the Planning Commission, at its meeting on June 21, 1994,
unanimously recommended denial of SP-94-13. The Commission also unanimously
denied the waiver request for sales. He added that the applicant appealed the
Zoning Administrator's official determination to the Board of Zoning Appeals
(BZA); that appeal was also denied. The Zoning Administrator and BZA have
determined that Dr. Kuhlman's operation, as it is currently being conducted,
involves on-site sales.
Mr. Martin asked how this request is different from someone having a
Tupperware party, or selling Mary Kay cosmetics, or Avon products door-to-
door. Ms. McCulley, the Zoning Administrator, said, in her opinion, if
products and money exchange hands on the property, then the person would be
conducting sales on the property. If the products are transferred off site,
either through the mail, or people meet at a shopping center, or the products
are taken to a person's place of work, it would not constitute sales, and the
person would not be in violation of the Zoning Ordinance.
Mr. Davis stated that, in his opinion, if people do not come to the place
where a home occupation is located to pick up the goods and the person who is
conducting the home occupation delivers the goods, then the home occupation
would not be in violation of the Ordinance. This is his understanding of how
Tupperware and Avon products are sold, and these sales people would not be in
violation of the Ordinance. It is only when the goods are exchanged on the
site of the home occupation that there is a violation.
Mrs. Humphris asked Mr. Davis to explain what the Board is supposed to
determine tonight. Mr. Davis said there are two issues before the Board. One
issue involves the special use permit for a Class B Home Occupation. A Class
B Home Occupation is when an individual stores the materials or conducts the
business in an outbuilding as opposed to in the main house. Dr. Kuhlman
proposes to use a detached garage as a storage and delivery area for his home
occupation. The second issue is a request for a waiver of a supplemental
condition which prohibits on site sales of goods except for goods which are
made on site. The goods which Dr. Kuhlman sells are manufactured goods which
are brought to his site and they would be prohibited from being sold there,
unless a waiver is granted.
Mr. Martin asked Ms. McCulley if she had an idea of how many distributors
are storing products on their properties. Ms. McCulley said she has figures
available which were compiled from records of Home Occupation Class A permits
from 1992 to the present. Approximately 400 Home Occupation Class A permits
are approved per year and 81 of those are considered to be distributors such
as Amway, Mary Kay Cosmetics, and other familiar named businesses. Unless
someone is in a situation where he or she, by regular distribution, has people
come to the home to receive the goods, it would not be considered as conduct-
ing sales on their premises.
Mrs. Thomas asked if Ms. McCulley knows whether any of the 81 distribu-
tors sell from their homes. She also asked if anyone has previously requested
this waiver. Ms. McCulley said this is the first time, to her knowledge, that
such a waiver has been requested. The waiver request was due to a complaint
from a neighbor.
Mr. Martin said there are probably a lot of people in the County who do
not have a home occupation license but conduct business operations in their
homes. He believes there are a lot of people in the County who sell products
where someone comes to the home to pick up the product. Mrs. Humphris said
the Board is dealing with this specific special use permit and it cannot deal
with all of the other problems at this time. Mr. Martin agreed that the Board
cannot deal with every situation now, but added that the Board's action will
affect a lot of people and set a precedent. He thinks other situations are
relevant to this conversation.
Mr. Perkins stated that if Dr. Kuhlman was receiving these products at
his home, and then delivering them to other people and selling them to
retailers, he could continue to operate from his home with a Class A license.
He asked if this is considered a sales operation because Dr. Kuhlman is
putting products in people's hands on his property. Ms. McCulley replied,
"yes." By definition in Webster's Dictionary and Black's Law, the exchange of
money and products on the premises constitutes sales.
Mr. Martin commented that if Dr. Kuhlman had a Class B license, he could
maintain his operation simply by taking the goods to the State road at the
bottom of the hill.
August 10, 1994 (Regular Night Meeting)
(Page 11)
000050
Mr. Perkins asked Mr. Davis for his opinion on the proposed amendment to
the Zoning Ordinance that the Board received from Direct Selling Association.
Mr. Davis said the difficulty with the suggested language is enforceability.
He said Ms. McCulley shares his opinion that it would be difficult to enforce
the Ordinance with that wording. It would be a situation in which it would be
almost impossible to determine whether someone has been invited to the
premises.
Mr. Perkins asked if the Board has the authority to regulate use of the
road. Mr. Davis said this is a private road and he does not think it is
appropriate for County officials to get involved with private restrictions.
The Board has some ability, as a condition of the special use permit, to put
restrictions as they relate to the proposed Class B Home Occupation. Within
this authority, the Board could limit the number of people who could come to
the business, if it could be reasonably related to impact on adjacent proper-
ties. Mr. Bowerman said the Board could also deny the application on the
basis of the amount of traffic that the business would generate. Mr. Davis
concurred.
There were no more questions from the Board, so Mr. Perkins opened the
public hearing. He asked if the applicant was present.
Dr. Tom Kuhlman, the applicant, said he has resided in this area for 13
years. The Zoning Administrator has agreed that he does not have retail or
wholesale sales at his home. He distributes goods and that is what has been
interpreted as sales. There are approximately 130 to 140 companies such as
his that are direct selling companies and about half of them are involved with
a system named Multi-Level Marketing of which Amway represents the gold
standard. He is curious about the details relating to the 81 permits, to
which Ms. McCulley referred, to see if any of them were analogous to this type
of distribution business other than the Class A permit. He appreciates the
opportunity to present his case in the hope that his Amway business can
continue to operate out of his home as it has for a number of years. Dr.
Kuhlman said he and his wife have a strong commitment to the environment. He
and his wife choose to live where they do simply because of its rural,
private, secluded nature. They have no interest in being detrimental to the
area. He does not plan to open the road to traffic from the general public.
All traffic to his home is 100 percent personal, private and by invitation.
If someone shows up at his doorstep unexpected, it is usually because the
person is lost and looking for a neighbor's house.
Dr. Kuhlman said he and his wife have always used mail order catalogues.
Mail order is a viable business in this country and most mail orders travel by
UPS. Consequently, he uses UPS. UPS delivery of business related traffic
constitutes one box per week and two to three packages per month. His UPS
traffic is almost solely for personal use. There are three or four individu-
als who come to his home once a week during a designated one hour time period
to pick up pre-ordered products. These individuals are close friends and
business associates. He will not go into detail on the traffic issue but the
Zoning Administrator and the Planning staff concluded that he (Dr. Kuhlman)
complies with all Class B license requirements, including the section which
states: "No traffic shall be generated by such home occupation in greater
volumes than would normally be expected in a residential neighborhood." He
continued to read from the staff report that: "Based on this analysis, staff
opinion is that this request complies with this provision." The Zoning
Administrator denied his request for a business license because of ordinance
regulations which state that there should be no sales on the premises of
anything other than items handcrafted on the premises. He thinks Ms. McCulley
and the members of her staff agree that officially he does not have any retail
or wholesale sales on the site. Products are distributed to a few others and
they are not handcrafted. Dr. Kuhlman said he does not have the option of
moving his business back into his home because he has been told that he is in
noncompliance with Class A and Class B licenses. The ordinance is somewhat
unclear, it is undefined and open to interpretation.
Dr. Kuhlman said his case is a precedent. There is a strict interpreta-
tion of the ordinance directed towards his business. Under this interpreta-
tion sales of any product or service would be disallowed. An easy legal
argument would relate this regulation to sale of a service by a realtor in his
home, or a stock or investment broker selling an investment product, or a
computer wizard selling software programs, all of which are not items hand-
crafted at the home. He asked, too, if a CPA's ledger sheet is an item
handcrafted at home. Just about anything else could be viewed as illegal or
unlicenseable by the County, such as Girl Scout cookies, magazine subscrip-
tions, Tupperware and animal boarding. These operators could be told to cease
and desist if any complaint is made, even if the complaint is unfounded. He
specifically asked the Planning Commission that his license not be denied on
the basis of this definition of sales. This case will tell the taxpaying,
hard working citizens in the County that movement of any product is open to
interpretation and is unlicenseable, unless it is a hand-crafted item made at
home and sold from one person to another.
Dr. Kuhlman said there are literally hundreds of direct selling distribu-
tors in this country and the most recent estimates indicate that there are
1,000 in Albemarle County. Most distributors utilize a system whereby they
either do retail selling in their home or they have parties in their home and
sell products, or they sell orders for products. He has been told by the
Planning staff that there have been no other cases like this nor Class A or
August 10, 1994 (Regular Night Meeting)
(Page 12)
000051
Class B license generated for a business like this, but he would like to see
proof of that. Dr. Kuhlman then related a conversation he and the Zoning
Administrator had on July 27, 1994, in which he asked questions about the
requirements for a Class A license and hypothetical questions about the
process followed for a complaint received on a home based business.
Dr. Kuhlman said the Supervisors have a duty to protect the environment
and they have a duty and responsibility to protect the needs of the citizens
of this county. More and more people are working out of their homes, and
communities and society, in general, are encouraging people to work out of
their homes. For economic and environmental reasons, parents cannot afford to
function on one or two incomes any more, and families are forced to look for
other means of support. His business, like many others, offers taxpaying
citizens a way to increase their income. The Supervisors must recognize the
need for people to be able to use their homes for purposes that are best for
their families. He related a story about a single parent who recently started
a home based business and is now concerned that she may not be able to
continue it. Dr. Kuhlman said this is not the exception. Telling a person to
purchase commercial space for the business is not an option for most of the
people involved in home based direct selling. The direct selling multi-
leveling network marketing businesses cannot be judged using traditional
business as the perspective. These are not traditional store front business-
es, and they are not designed to function that way. These businesses are
designed to function with a minimal investment of time and money, and they are
designed to be compatible with the home and neighborhood environment whether
rural or urban. He feels strongly that the Supervisors need to make the
statement that this is legally viable as a home based business. He does not
want to make any changes in his use. He wants to legally use his garage for
storage and allow a few personally invited private people on a schedule of one
hour per week, 5:30 p.m. to 6:30 p.m., to come up to his house and pick up
their pre- ordered products. He also feels strongly that the ordinance must
be rewritten to reflect the demands of 1994.
Mr. Bowerman asked if Dr. Kuhlman had considered making the deliveries
himself rather than having people continue to come to the house. Dr. Kuhlman
said that until a few days he thought he was able to conduct his business the
way he saw fit. Due to the bad weather between November and March he did make
deliveries and did not have product pickup at his home. He was not given the
option of making deliveries, or if he was, he did not understand it.
Mr. Martin asked if a Class B license would give Dr. Kuhlman the right to
operate his business from his garage as long as he distributed the products
off premise. Ms. McCulley replied, "yes".
Mr. Marshall asked what types of products are picked up at Dr. Kuhlman's
home. Dr. Kuhlman said he distributes from 200 to 300 personal home care
products. Mr. Marshall then asked if Amway marketing tapes are picked up from
Dr. Kuhlman's home. Dr. Kuhlman answered that people can come to his home to
pick up the tapes if they choose to be a part of the Amway program. However,
most of his business is done at a distance. He takes items to UPS for
delivery to his customers. Mr. Marshall asked if people who come to Dr.
Kuhlman's house to listen to Amway presentations are charged a fee. Dr.
Kuhlman answered, "no." Mr. Marshall inquired if Amway presentations are done
outside of Dr. Kuhlman's home. Dr. Kuhlman responded, "yes," and there may
sometimes be a minimal charge to cover the rental room but there is no profit.
Next~ Mr. Marshall asked if the Amway idea is to get a lot of people involved
and pyramid people into a selling network. Dr. Kuhlman said that is not
necessarily true. The people have a choice of four philosophical options in
which they can take advantage. A lot of people get into the business to save
money and they look at Amway as a buying club. Other people get into the
Amway business as a source of income. Mr. Marshall inquired how money is made
from the individual who is only buying products if marketing tapes, etc., are
not sold to that individual. Dr. Kuhlman said each month a bonus is generated
based on total volume funneling through the individual Amway distributor. He
emphasized that everyone is treated the same. Mr. Marshall asked if Dr.
Kuhlman has a room in his house, associated with Amway, which is deducted for
tax purposes. Dr. Kuhlman said he uses his garage space as a tax deduction.
He has used the garage for a number of years and it was not until this problem
arose that he realized he was not in compliance with the ordinance. He
thought his Class A license was sufficient. Mr. Marshall asked if Dr. Kuhlman
could buy furniture and display it in his home and relate this to a tax
deduction. Dr. Kuhlman said he would have to ask his accountant, but he,
personally, would not do that.
Mr. Perkins then opened the public hearing for comments from the audi-
ence.
Mrs. Jessica Lindstrom, one of the landowners on the private drive, said
she shares this drive with four other people, and Dr. Kuhlman is at the top of
the hill. The entire private drive, which accesses Dr. Kuhlman's home, goes
through her property. She then read from a prepared statement in which she
stated that this is a simple case of one landowner wanting the rules to change
for him. The neighbors are asking for no change and no new law, they simply
want the law, which has been on the books for many years, to be enforced. The
County is not trying to put people out of business and this particular case
arose when neighbors complained about truck traffic on a private road in the
heart of a rural are. She believes Dr. Kuhlman has tried to inflame this
issue to gain leverage with the Board but the number of times this issue has
000052
August 10, 1994 (Regular Night Meeting)
(Page 13)
arisen before tonight is insignificant. Denying Dr. Kuhlman a waiver of the
Zoning Ordinance, which can only apply to him, will not change the law, will
not put any people out of business and will not create additional work for the
Zoning Administrator. She noted that it will not even put Dr. Kuhlman out of
business because, as he indicated, he can distribute the goods to his clients,
which should take him and his wife one or two evenings a week. It is also
possible for him to get a small office, which he could share with other
distributors in a properly zoned location, as is the arrangement with most
other businesses. She believes this is a simple case of a minor violation of
the Zoning Ordinance and she pointed out that all of the landowners on the
private road, with the exception of Dr. Kuhlman, would like for the Supervi-
sors to enforce this fundamental provision of the Zoning Ordinance. The
provision indicates that rural areas and residential areas are inappropriate
for commercial activities not directly related to agriculture. The public has
a right to expect this especially in a rural area where the driveway totally
goes through private property. Amending the Zoning Ordinance, as some have
suggested, to allow sales will set a precedent, and, to date, there is little
evidence that there is a need for such an amendment. The specific fact of the
waiver request is that no financial hardship exists in this case. The
violation is easily abated and the business could easily continue even though
there would be some inconvenience to Dr. Kuhlman and his wife. The waiver is
for a parcel of land where the only access to a state road is over approxi-
mately 2,000 feet of private road shared by other families. The state road is
also narrow and gravel. She reiterated that the private road to Dr. Kuhlman's
house passes through her property. Every landowner using this private road,
with the exception of Dr. Kuhlman, objects to this use. There is already a
letter in the Supervisors' files from one person, and she has two statements
with her from the other people along that private road. The sight distance on
the state road leading from this drive is virtually nonexistent.
Mrs. Lindstrom then expressed concerns with the staff report written by
Mr. Fritz. Although Mr. Fritz agreed with the landowners that the waiver
should be denied because of the unanimous decision by the Planning Commission
and the BZA, he indicated that Dr. Kuhlman's use of the road had little
impact. She feels such a statement is very subjective since Mr. Fritz has
only been there one or two times to observe. If the traffic did not impact
the road, the neighbors would not have complained in the beginning. One of
the families on the road, who subsides on social security was so frustrated by
the road deterioration, pulling UPS trucks out of the mud and traffic that he
built his own driveway, at his own expense. She then mentioned the commercial
trips referred to by Mr. Fritz and said they are in addition to, and not
instead of, the residential trips that Dr. Kuhlman could have, since he also
retains these rights. Using, as an example, the vehicle trips allowed by
right if all the potential development were to take place, seems unfair and
irrelevant, at this time. The reality is there are no such future homes and
no other development can take place until the private road is brought up to
state standards. Mr. Fritz' assessment is based on brief observations and
theoretical predictions which do not currently exist. Since April, when
County officials told Dr. Kuhlman to cease his business until he obtained the
proper permit, the traffic situation has been wonderful and greatly improved.
She reminded the Supervisors that they have the opportunity to enforce a long
standing ordinance provision designed to protect the interests of tens of
thousands of County citizens. She asked that the Board not create a special
exception for one person which would set a precedent and open many more
conflicts between people who want to live in their houses in peace and quiet,
especially in the rural area, and those who would like to use their homes for
business purposes. She believes Dr. Kuhlman would comply and work with the
neighbors if he were to get a waiver. However, in setting such a precedent,
the enforceability will not be there to verify what is happening on the
premises. The neighbors would become again the watchdogs. She asked the
Supervisors to seriously think of restrictions if it approves this request,
especially with regard to the private road. She would think that the Supervi-
sors would want all of the landowners on the road who are affected and
bothered by the traffic to unanimously be in agreement. She also thinks the
Supervisors might want to consider how many home occupancy permits exist per
household before approving this request. There is a lot that needs to be
taken into consideration.
Mr. Jeffrey Leach, a small business owner in Albemarle County, said he is
present at the meeting because of the precedent that might be set. He is
concerned about how the approval or denial of the request by this Board might
affect other businesses. His business is called Foreign Language Services and
it involves tutoring, translating and interpreting for different clients. He
connects different associates, who work with him, with people who need the
service. He has a business license and he has spoken to the staff of the
Zoning Department on several occasions but he is not involved in the sale of
handcrafted goods on site. He was told from someone on the Zoning staff a few
weeks ago that if there are several clients coming into his home then his
tutoring business would be a violation of the Zoning Ordinance. He represents
a growing number of small businesses located in their homes. He encouraged
the Board to remember its responsibility within the American tradition to
protect property rights. He said this is not an unreasonable request. Mr.
Leach said he does not think his neighbors are even aware that he has a
business in his home because the amount of traffic is so small. He thinks the
Board should review the whole concept of home businesses. He asked Board
members to keep in mind the citizens' property rights, approve Dr. Kuhlman's
request for waiver and protect the rights of small businesses.
August 10, 1994 (Regular Night Meeting)
(Page 14)
0000 3
Ms. Michelle White said she is a distributor for a new network marketing
business and she shares the same concerns as previous speakers. Using
commercial property for her business is not an option for her. Home based
businesses are a growing trend.
A person who did not give her name said she was at the meeting on behalf
of Dr. Kuhlman. She believes this is a precedent setting case. She has
worked outside of the home for the last 15 years as a counselor and therapist
for 50 to 60 hours per week. Two years ago she decided to have children. Two
incomes are absolutely necessary. She has been in the Mary Kay cosmetic
business for three and one-half years, and she is now trying to make it her
full-time income so that she can stay home with her children. She thinks this
is extremely important for the women of today. There is much discussion about
the degeneration of society which is caused by both parents out of the home
trying to make a living, trying to maintain their homes and trying to pay
their mortgages. If she were to put both of her children in day care today,
it would cost her $800 a month. Even with a Master's Degree, she does not
make the kind of money that warrants being able to pay $800 a month for day
care. She thinks that Mary Kay and other like businesses would be dramatical-
ly affected if the language in this ordinance is not considered. She does not
sell a handcrafted item. She sells skin care products and most of her
deliveries and parties do not take place in her home. She has other things
going on in her home such as training and meeting with other associates. This
is not a single issue that has been inflamed by Dr. Kuhlman. This is an issue
for everybody in a home based business. People will have to be in home based
businesses to preserve the society and the family units during the 1990's and
2000's.
Mrs. Thomas asked the speaker if she has a home occupation license. The
lady answered "no." She added, however, that if she needed to get one, she
would do so. She did not know anything about this issue until she saw it in
the newspaper and talked to Dr. Kuhlman. Mrs. Thomas asked if there were
sales in her home. The lady replied, "no." She does most of her business by
delivery and she goes into other people's homes. She thinks the language in
the ordinance needs to be closely considered. She said that 99 percent of her
business is out of the home but this does not mean that if a friend comes to
her home and needs a cleansing cream that she is not going to give it to her.
Mr. Marshall asked Mr. Davis for his opinion as to how this lady's
business is different from Dr. Kuhlman's business. Mr. Davis replied that the
lady could legally get a Class A permit, without a special use permit, as long
as she does not generally conduct sales at her home. She would not need a
waiver and she is in full compliance with the ordinance. Mr. Martin asked if
the words, "generally conduct sales," is a legal term. Mr. Davis answered
that the Zoning Administrator might have a clearer interpretation but he is
confident that an occasional sale would not create a business of sales. It is
when sales are normally conducted on the premises that the use becomes a
problem. Mr. Martin said he was wondering if there were legal terms to define
the word, "general," versus not general. Mr. Davis stated that, "occasional,"
is probably a better term to describe what he means rather than "general."
Mr. Douglas Caine said he has been a resident of this area for approxi-
mately 14 years. He has some of the same questions as Mr. Martin. He thinks
there are a lot of unclear areas in the ordinance. He concurred with previous
speakers that the ordinance needs to be considered closely. He then talked
about the road that is in question. The whole road problem stemmed from a
huge drainage problem. He has dealt with the Kuhlmans through a company for
which he (Mr. Caine) works, and the Kuhlmans went out of their way to appease
their neighbors. When making a decision like this the Board has to consider
everything such as Mary Kay and Avon businesses, as well as counselors and
preachers who come to people's homes to render services. He wondered, too, if
every delivery truck would have to be stopped when it goes on private property
to see if it is delivering business products or a product that was ordered.
Mrs. Thomas mentioned that on June 21, 1994, at a meeting with the
Planning Commission, the question was asked if this decision would extend to
other businesses where a product is sold, such as an architect preparing
building plans or an accountant preparing tax returns. She said the answer
was, "no." She added that the explanation was that these are professional
services and the product as a result of the service is, in essence, hand-
crafted. She pointed out that services are not the issue with this matter.
Mr. Mark Bell stated that he has lived in the Charlottesville and
Albemarle area all of his life. There are a lot of entrepreneurs in this area
who began small but now have substantial businesses. He asked if there had
been a regulation such as this 20 years ago, where would these businesses be
now°
Ms. Sandra Cushman, a neighbor of the Kuhlmans and the Lindstroms, said
there is a right-of-way through her property, and there are two private homes
above her, and there are children who live at these homes. Because of
swimming and soccer, etc., there are probably 10 or 11 car trips in and out of
these places all day long. She would take walks along the Kuhlman's road
through the Lindstrom's property, and very often there is much less traffic
there than where she lives. There is no impact in terms of traffic compared
to the traffic going through her property all the time. She is a massage
therapist and has an office in Charlottesville. Her goal is to bring her
August 10, 1994 (Regular Night Meeting)
(Page 15)
ooooS4
business to her home. She does not sell products but she sells a service and
she sees 20 people a week. She does not understand why selling a few cosme-
tics one hour a week is not allowed but the service she sells would be
allowed. This does not make sense to her and the policy seems selective and
unfair.
Mr. Sandy Farrar, a resident of Albemarle County, said he has been
friends with Tom and Kathy Kuhlman for the last two and one-half years. He is
present to speak on their behalf. He knows they are not in business to hurt
anyone and he has benefitted from their example. He thinks the Board should
find a way to let free enterprise flourish and not squelch it.
An unidentified gentleman said he has been living in Albemarle County for
approximately 14 years and he enjoys it. He is from Bombay, India, and he
came to this country because of free, private enterprise. He agrees with Dr.
Kuhlman and the others who have spoken on his behalf. He is a registered
Amway distributor and is surprised that the subjects of not doing home based
businesses and not conducting sales from homes are being discussed. He would
like to think that business could be conducted more as free enterprise. Home
based businesses are booming, not only in the United States, but all over the
world. In the United States, there are probably 5.0 million people involved
in network marketing and home based businesses. A lot of people have comment-
ed about what this does for the family because moms are at home giving
children the right values. These mothers are rearing their own children and
not having them reared by the cheapest babysitter they can find outside of the
home. He believes whatever decision this Board makes will set a precedent and
it could possibly take away an opportunity for a lot of people who have an
American dream.
An unidentified physician and Amway distributor stated that when she
heard about Dr. Kuhlman's problem, she did not know him, but now she knows him
quite well. She agrees with him that home based businesses are extremely
important. In the course of her physician's practice, she has seen teenage
pregnancies and a lot of social and economic problems and it is because
mothers do not stay home. She thinks this is a precedent setting case and
that could steal the American dream and the family dream. She thought this
was a free country, but she is amazed at what is happening here.
Ms. Elizabeth Petofi said she has worked out of her home for probably 20
or 30 years and she was a court reporter for many years. She traveled to
Arizona or Boston or wherever she wanted to go but she did her work at home.
Now she does the public record for The Daily Proqress from her home. She has
UPS bring software to her home because she happens to like software. She does
not have a business, in terms of licenses, since she gets the court records
from the courthouse. She feels, however, that she might one day want to sell
Amway or some other product. Dr. Kuhlman is doing well with his Amway
business and perhaps the problem is that he is tearing up the road. If she
was a neighbor, she would want him to fix the road or maybe have the main
deliveries off site. She thinks the Supervisors need to think of the people
who need to work in their homes. She will be 62 in March and she could go on
welfare or social security but she would rather work. A lot of time could be
spent trying to determine if her work is handcrafted.
Mr. Perkins then asked Dr. Kuhlman if he had final comments that he would
like to make.
Dr. Kuhlman said he personally does not know the majority of the people
who have spoken tonight. The Board needs to get the facts before they can
make a decision based on traffic. There is always going to be traffic on that
road. There have been three major contractors who have looked at this road
and they have all indicated that the problem was not traffic. These contrac-
tors say that the problem is water and the individual who repaired the road
verified this. If there is no traffic on a road, it goes back to nature. The
five families who live along the road are strong minded individuals and have
their own ideas, and they could not get together on a road maintenance
agreement that was rudimentary. In the twelve years that he has lived at his
current place of residence the road was never maintained. People assume that
the problem relates to traffic coming to his house but everybody's traffic is
involved. It is a private drive and even though it may cross someone's
property, the road still belongs to everyone.
Mrs. Lindstrom said the people on this road are not opposed to soccer
games or cub scout meetings or traffic which might cause 20 to 50 cars
sporadically to be on that road. She had a wedding at her house which 50
people attended but that is not the type of situation she is talking about.
She is talking about regular traffic that has been coming up and down the
road. Since April when the Kuhlmans were told to cease and desist, the
traffic has been wonderful.
No one else came forward to speak, so Mr. Perkins closed the public
hearing.
Mr. Marshall said he has probably fought more for individual property
rights than any member of this Board. He has voted against a lot of zoning
issues and anybody on this Board will attest to that fact. He has also
supported business as much or more than anybody else on this Board. He
believes the issue here is individual property rights. He does not think
anybody has the right to do what they want to do with their property if they
August 10, 1994 (Regular Night Meeting)
(Page 16)
OOO0$$
infringe upon the rights of others. On the other hand, Mr. Marshall said he
thinks people should have the right to do what they want to do with their
property, as long as they do not infringe on the rights of others. This is
the way he votes. He is also a businessman in this community and he has been
paying high taxes for 35 years. He wants to stay on an even keel with the
other citizens in the area, and to compete with them, and he wants to make
sure that others pay their fair share of taxes. He has a lot of licenses and
he is taxed, unfairly he thinks, on sales rather than profits. If he was
taxed on profits, he might not have to pay any taxes but that is another
issue. He does not think the ordinance needs to be changed and he will not
vote for a change because he thinks it protects the rights of all individuals.
The ordinance does not affect a lot of the people who spoke tonight and it is
certainly not going to affect Mary Kay cosmetics. The ordinance probably
would not have affected Dr. Kuhlman if he had done things a little different-
ly. He is not going to support this request for the reasons that he has given
and he cannot go back on an ordinance that is already in existence in the
County.
Mr. Martin remarked that he thinks there are a lot of similar circum-
stances going on in the County. There are probably a lot of people in the
County who have a distributorship and he thinks that a lot of these people
have no idea they are breaking the law by not having a license, as well as
breaking the law because they are conducting sales on their property. He
would be willing to bet that most Tupperware and Mary Kay, etc., distributors
have parties at their own homes once a month or so.
Mr. Bowerman noted that Amway products have been around for more than 20
years and this is the first time he is aware the Board has dealt with this
issue. Mr. Martin concurred. That is why he thinks the issue is precedent
setting. Once the issue was brought up, a lot of people in the County found
out they have been doing something illegal. Until this time they were just
doing it without knowing that there was a problem. He thinks in this particu-
lar case it would be appropriate for the Board to approve the Class B permit
and deny the waiver. He would like for the Supervisors to consider some
language that would ensure that they are actually taking out of the ordinance
what they want to eliminate. He does not believe any of the Supervisors would
care if someone had a Tupperware party at his/her home once a week.
Mr. Marshall stated that some time in the near future, he is going to ask
the staff to consider an amendment to business taxes to allow the County to
tax on property and not sales. If other people get a break, then he is going
to get one, too. He thinks the people with home based businesses should be
required to purchase business licenses. This part of the ordinance is not
really being enforced.
Mr. Bowerman remarked that, emotionally, he feels people should be
allowed to do whatever they can do to make a living in their home, as long as
it does not interfere with other people. There are all sorts of home occupa-
tions which do not involve the physical exchange of a product in the home.
There are a lot of businesses going on in the County and they will continue.
He does not think there is a problem. Proof of this is that most of these
businesses have been around a long time and this is the first time something
of this nature has come before the Board. The ordinance works and it was not
put into place to penalize people who want work out of their home. It was
enacted because people who have businesses sometimes create nuisances around
their homes and cause aggravation.to their neighbors.
Mr. Martin said he agrees with Mr. Bowerman but they are getting to the
same point from different directions. His viewpoint is that the language in
the ordinance needs to be changed. He differs with Mr. Bowerman in that he
thinks problems were created when this issue got so much publicity. Tonight
there are people at this meeting who are concerned about whether or not they
can continue their services in their homes. Mr. Bowerman said those problems
have not arisen because of anything this Board has done or said or actions
that it has taken.
Mrs. Humphris commented that common sense would indicate the best thing
this Board could do would be to require Dr. and Mrs. Kuhlman change the way
they are conducting their business, instead of this Board changing everything
for everybody else in the County. There are good and proven reasons for this
regulation. The regulation has been through the planning process and it has
been decided on by the people in the County through the Comprehensive Plan and
Zoning Ordinance processes. The law protects people in their homes from
disturbances by their neighbors that are unwanted in their neighborhoods. If
Dr. and Mrs. Kuhlman do business the way other people do which is without
having sales on the premises, then nothing will need to be changed. This
makes sense and she does not see where it is any more complicated than that.
Mr. Bowerman remarked that everything is being discussed, except for the
issue before this Board. Mrs. Humphris concurred. She said the issue is that
there are sales taking place on the Kuhlman's premises which should not be.
This Board needs to do something about that and she thinks the simple thing is
to say that it cannot happen.
Mrs. Thomas said the Board has the option of giving a waiver to Dr.
Kuhlman, which anybody else in the same situation could ask for. As she sees
it, the Supervisors' job is to look at the effects of that and to make a
decision. The Board's decision will only affect this one case but for people
August 10, 1994 (Regular Night Meeting)
(Page 17)
OOO056
who are concerned about whether this type of business can be conducted in the
County they should be reminded that the possibility of a waiver exists. In
this case, Mrs. Thomas said she believes the impact is such that this waiver
should not be given. However, the ordinance allows the Supervisors to approve
a waiver if there are distributorships that are on public roads or they are in
a different situation. The Board will need to make a judgment in each case.
She does not think there is anything wrong with the ordinance because the
ordinance allows a waiver to be given after all the factors involved have been
weighed. The Supervisors are weighing the factors in this very specific case.
At this time, Mr. Martin made a motion to approve SP-94-13 subject to the
two conditions suggested by the staff. Mr. Bowerman said he would second the
motion so that it could be discussed.
Mr. Perkins said Dr. Kuhlman should understand that even if this special
permit is approved, he is still in violation of this ordinance.
Mr. Bowerman said he will not support the motion because a Class B Home
Occupation permit is necessitated by the need for a building which is outside
the premises. He thinks a distributorship such as this one, if it is such a
size that it requires a separate building to house the product, is inappropri-
ate for this location. If there is movement of goods and services from a
site, then it is a warehouse and he thinks it belongs in a commercial area.
That is the reason he will not support the motion.
Mr. Martin said it was his assumption that the Board objected to the
waiver of the sales. The Supervisors have not discussed the Class B permit
aspect, and the Planning Commission did not have much discussion on it.
Mr. Bowerman said the issue before the Board involves the generation of
commercial activity in a rural area on a private road. The commercial
activity is taking place to such an extent that it requires a separate
structure to accomplish it. It may be that the Kuhlmans chose to move the
activity out of their house because they wanted to use the space differently.
The fact that the Kuhlmans applied for a Class B Home Occupation permit which
requires the existence of a separate structure, indicates to him (Mr. Bower-
man) that the size of the operation is significant enough that it has moved
beyond the realm of a normal home occupation and it is necessitating an extra
building. This is inconsistent with the ordinance.
Mr. Martin inquired as to how Mr. Bowerman feels about the fact that the
building already exists. Mr. Bowerman replied that the building can be used
for a garage. Mrs. Humphris remarked that the building was supposedly
constructed for a garage and she mentioned that Dr. Kuhlman has said both in
writing and verbally, that the product could be moved back into his home.
This would truly make it a home occupation because that would limit the
business to home size. The extra room could be used for a home business but
when there is a whole other building that is commercial then it is on a
different scale. Commercial activity belongs in an appropriate location. Mr.
Bowerman stated that this case involves warehousing and the building is not
being used for the manufacturing of a homemade product where an extra
outbuilding is needed.
Mrs. Thomas remarked that she thinks the comments made by other Board
members are appropriate. It is possible to say that a person could have built
one more room onto a home and had the same effect. In this case, however, the
fact that a separate building is being used to store products is what has made
this a major item, as well as the size of the operation indicated by this
separate building. It is the size of the business that is creating the impact
on the neighborhood.
Mr. Martin called attention to the staff report where it pertains to the
traffic situation. It appears that there is a lot of traffic which is not
oriented toward the business. He asked if the Class B permit was approved,
could not this Board, with a condition, have some control over the amount of
traffic which would be involved with the business. Mrs. Humphris asked if Mr.
Martin is going to stand on the road and count the traffic. Mr. Martin
responded that he thinks neighbors would bring this to the Board's attention.
Mrs. Humphris said the situation would be back where it started. She said the
neighbors should not have to do the policing.
Mr. Martin recalled that it was said earlier in the meeting that the
reason this Board finds out about most things in the County is because the
neighbors bring it to their attention. Mrs. Thomas said she has thought about
some of the same things as Mr. Martin but she thinks it is almost impossible
for the Zoning Department to enforce such a condition. If there was already a
road maintenance agreement in place, this might make a difference to her but
there is not. She does not want to spend taxpayers' dollars to send someone
out to monitor the traffic on this private road.
Mr. Martin asked if the Board would not actually be helping everyone
involved by limitinH traffic with a Class B permit as opposed to the private
use of UPS, etc. With a Class B permit, the Board would be able to place
limits on traffic, reHardless of what kind. He is just mentioninH some of the
thinHs which have occurred to him.
Mr. Bowerman said Dr. Kuhlman obviously has a well-established operation
and he can continue his business with a Class A permit. Dr. Kuhlman can
August 10, 1994 (Regular Night Meeting) O000S7
(Page 18)
operate his business in exactly the same manner as he has in the past with the
exception of the distribution of products and the storage of products outside
of his home. Dr. Kuhlman has stated that he can store the products in his
house. Mr. Bowerman went on to say that if Dr. Kuhlman delivers the products
off site, then the Class A permit would fit perfectly and the operation can
continue only slightly modified. A Class B permit is not needed for Dr.
Kuhlman to continue to operate his business just so he can have the outbuild-
lng to house the product.
Mr. Davis clarified that it would be an appropriate condition on a
special use permit to limit the traffic generated by the home occupation.
However, he is not sure it would be appropriate to limit the traffic which is
generated by the private residents. Mr. Martin responded that the Board would
have to distinguish between the two types of traffic if such a condition was
put on the permit. Mr. Davis concurred. Mr. Martin agreed that he would not
want to check UPS trucks to see what they are unloading.
At this point, Mr. Martin withdrew his motion. Mr. Bowerman then
withdrew his second to the motion. Me explained, again, that he had seconded
the motion so the Board could discuss the issue.
At this time, Mrs. Humphris moved denial of SP-94-13. Mr. Bowerman
seconded the motion. Roll was called and the motion carried by the following
recorded vote:
AYES:
NAYS:
Mrs. Humphris, Messrs. Marshall, Martin, Perkins, Mrs. Thomas and
Mr. Bowerman.
None.
Mrs. Humphris moved denial of Tom Kuhlman's request for a waiver for
sales. Mr. Bowerman seconded the motion.
Dr. Kuhlman stated that he does not have a Class A or a Class B permit at
this time. Mr. Bowerman explained that Dr. Kuhlman would have a Class A
permit when he ceases and desists to transfer goods on site. This would put
Dr. Kuhlman in compliance with the ordinance.
Roll was then called and the motion carried by the following recorded
vote:
AYES:
NAYS:
Mrs. Humphris, Messrs. Marshall, Martin, Perkins, Mrs. Thomas and
Mr. Bowerman.
None.
Agenda Item No. 11. SP-94-17. St. Anne's-Belfield. Public Hearing on a
request for pvt school on 28 ac zoned R-1 & EC. Site, located in Neighborhood
7, is present location of St. Anne's-Belfield school and is recommended for
institutional public/semi-public use. TM60,P's57,57A, 57B,57C. Jack Jouett
Dist. (Advertised in the Daily Progress on July 25 and August 1, 1994.)
Mr. Keeler summarized the staff report which is on file in the Clerk's
office and a part of the permanent record of the Board. Staff recommended
approval of the request subject to one condition. Mr. Keeler mentioned that
the proposed Alternative 10 alignment appears to affect an area of the
proposed improvement. The architect is working with VDoT officials to
finalize the location and it is his understanding that VDoT officials are
trying to bypass as much of the St. Anne's-Belfield property as possible.
Mr. Keeler said the Planning Commission, at its meeting on June 7, 1994,
unanimously recommended approval of SP-94-17 subject to the condition suggest-
ed by staff. Also, the Commission found that public sewer is not reasonably
available and approved two parallel parking spaces.
Mr. Perkins opened the public hearing and asked if the applicant was
present.
Mr. George Conway, Headmaster of St. Anne's Belfield, said he was present
to answer questions. Me added that Mr. Lou Stevens, who will be overseeing
the building of this project and Mr. Kurt Gloeckner, who developed the site
plan, are also present.
No one else came forward to speak, so Mr. Perkins closed the public
hearing.
Mrs. Humphris offered motion to approve SP-94-17 subject to the following
condition:
1. Enrollment at this campus shall not exceed 330 students.
Mrs. Humphris said she met with the applicant and saw the plans. She has
learned that a change in the Alternative 10 alignment has been proposed which
would then bypass the St. Anne's-Belfield property.
Mrs. Thomas asked if there was a reason for limiting enrollment. Mr.
Conway answered that the limitation of 330 students is the number that has
been used for the planning of this project and it is acceptable to the school
officials.
000058
August 10, 1994 (Regular Night Meeting)
(Page 19)
Mr. Martin seconded the motion.
Roll was called and the motion carried by the following recorded vote:
AYES: Mrs. Humphris, Messrs. Marshall, Martin, Perkins, Mrs. Thomas and
Mr. Bowerman.
NAYS: None.
At 9:40 p.m., the Board recessed and at 9:50 p.m., the Board reconvened.
(Mr. Bowerman was absent.)
Agenda Item No. 12. SP-94-20. Clark Broadcasting Co. Public Hearing on
a request to amend conditions of SP-91-25 to permit 3 meter satellite receiv-
ing dishes. Property consists of 1.2 ac zoned PD-SC & EC at NE inters of Rt
29N & Rio Rd. Site recommended for Regional Service in Comprehensive Plan.
TM61,P123A. Charlottesville Dist. (Advertised in the Daily Progress on July
25 and
August 1, 1994.)
Mr. Keeler summarized the staff report which is on file in the Clerk's
office and a part of the permanent record of the Board. The staff recommended
approval of SP-94-20 subject to three conditions.
Mr. Keeler said the Planning Commission, at its meeting on July 12, 1994,
unanimously recommended approval of SP-94-20 subject to the three recommended
conditions.
Mr. Perkins opened the public hearing.
p.m.)
(Mr. Bowerman returned at 9:51
Since neither the applicant nor a representative was present at this
time, Mr. Perkins suggested that SP-94-20 be deferred until the end of the
meeting. Board members concurred.
Agenda Item No. 13. ZTA-94-01. An ordinance to amend Section 5.0,
Supplementary Regulations of the Albemarle County Zoning Ordinance, to allow
accessory apartments in all single-family dwellings without regard to density
and to impose certain restrictions on accessory apartments. (Advertised in
the Daily Progress on July 25 and August 1, 1994.)
Mr. Keeler summarized the staff report which is on file in the Clerk's
office and a part of the permanent record of the Board. The Planning Commis-
sion, at its meeting on June 21, 1994, recommended that accessory apartments
be allowed by special use permit, with no fee, in any district that allows
single family dwellings by right. The Commission also recommended that this
issue be revisited in six months to determine the impact on the community. He
added that if this Board does not want to allow the units by right, then it
raises the question of why this new definition and new type of dwelling should
be introduced. If it is to be controlled solely by special use permit, a more
direct and simpler solution is to include two family dwellings in all zoning
districts and require a special use permit in those cases where the two family
dwelling exceeds the density that is permitted in that district. This would
remove some of the problems of introducing new language in the ordinance and
new regulations.
Board members did not have questions for Mr. Keeler, so Mr. Perkins
opened the public hearing.
Mr. Walter Johnson said he has looked at the elements and characteristics
of this matter, and there is a definition proposed for accessory apartments
relative to the physical and functional description. They are attached to a
primary structure and they are owner occupied. By definition the use is
limited, the size is limited and the frequency is limited. This is an
individual landowner operation and it is not a corporation or a commercial
operation. Unfortunately, the number of accessory apartments currently
existing in this County is unknown. He can think of many instances where they
exist under this definition and some of them are also rented. The same
situation exists with rentals in this County. The monitoring of the number of
units is not practical, and, probably, not even possible. The controls would
be exercised only in response to an individual complaint and this is the only
way that the units can be detected. Any controls have to be viewed as
limitation of property rights. He referred to a U. S. Supreme Court decision
and he commented that the Supreme Court has taken a position to emphasize and
reiterate property rights. He then mentioned services and benefits involved
including low cost housing. These accessory apartments can accommodate
dependent or aging parents or relatives. It is an augmented income particu-
larly important to that couple or family who is purchasing their first home.
If this family can rent part of their house as an accessory apartment, this
gives them another way tQ afford that home. This is a step in the right
direction. He then noted that accessory apartments can also provide housing
for students.
Next, he mentioned objections, and said the only problem he can think
of is the increased residential density and increased local traffic and
parking. The extent of these two things could be controversial. He asked, in
August 10, 1994 (Regular Night Meeting) 000059
(Page 20)
the presence of an unknown but probably substantial number of existing
occupied accessory apartments in the County now, how many complaints have been
recorded on undue residential density or traffic problems. He wondered what
probability of future valid complaints can be determined. He asked if there
is really a problem with this issue or if one is being invented. He asked if
any specific location can be identified which would really suffer because of
an accessory apartment. Enforcement and restrictions are completely dependent
on neighbor objection. He wondered if County officials want legislation which
will have neighbors opposing each other. He also wondered if County officials
want to legislate support for a single, complaining neighbor. He thinks
everybody agrees with the value of accessory apartments. He then discussed
the situation should a special use permit be required. He asked what service
would this special use permit provide. He wondered how an application would
be evaluated and he asked what is the criteria for judgment. He asked if
there is a difference between a boarder and a resident for an accessory
apartment. There are a lot of definitions involved which can become rather
ambiguous and difficult from a legal standpoint. He noted that the applica-
tion process involves time and expense to the applicant, the staff, the
Commission and this Board. He inquired, since the proposed identification
does not reference use, if a special use permit would be legally required for
a building permit when such an area is included in a house plan. He said the
special use permit process is involved and if it is not required, it is
unreasonable to ask someone to go through that process.
Mr. Johnson said he recommends that accessory apartments be allowed by
right without a special use permit. He suggested that the Board avoid
legislation for a fictitious problem. A special use permit requirement may be
an indefensible regulation because judgment would not be based on universal
conditions but only on a parochial complaint. He also asked that a special
use permit not be used as a political expediency to discharge this issue. He
concluded his remarks by asking that the Housing Strategy for Albemarle
County, dated April, 1992, be accepted. He quoted from this report: "Allow
accessory apartments in all zoning districts," and he stated that the words,
"without restrictions," should be added to this sentence.
Ms. Kathryn Hobbs, President of the League of Women Voters, read a
prepared statement in which she noted that the League of Women Voters does not
support amending the Zoning Ordinance to provide accessory apartments by
right. She said that density cannot be ignored. The League supports the
Planning Commission's action of allowing accessory apartments in all districts
by special use permit with no fee for six months. The League believes the
intent of this action is to learn whether or not there would be significant
increase in density. The League still has questions regarding the Commis-
sion's recommendation of "no fees." (See statement from the League of Women
Voters received by the Board of Supervisors on August 10, 1994.)
Mr. Tom Olivier spoke on behalf of the Citizens for Albemarle. Citizens
for Albemarle takes the position that this Zoning Text Amendment would better
be addressed in the Comprehensive Plan update process. He added, however,
that since this item is being considered by the Board this evening, the
organization takes the position of cautious support, particularly with respect
to allowing accessory apartments in rural areas. The presence of accessory
apartments might ease the hiring of outside help on farms owned by older
individuals who are without help. The presence of accessory apartments could
enlarge the pool of affordable housing although some analysis suggests that in
practical terms, this is likely to be relatively small. The organization
members have various concerns about the amendment because it does represent a
potential increase in density of population in many areas and an increase in
potential infrastructure. In high density growth areas the presence of
accessory apartments may lead to elevated noise levels and conflicts by
neighbors. For these and other reasons Citizens for Albemarle support is
conditional on the requirement of a special use permit for construction of
accessory apartments. He also urged that the staff be provided with guide-
lines that are clear with respect to conditions that must be satisfied for
granting such a permit. He believes the staff could be put in a difficult
position, if it is forced to adhere simply to the very general, generic
conditions which apply to granting special permits. He understands that the
conditions are very broad and do not involve interfering with the character of
the neighborhood or interfering with the adjoining property owners' rights.
If this amendment is accepted and a review of its workings is undertaken in
six months, any new findings on the housing issue by the Planning Commission
in its work on the Comprehensive Plan update should be carefully considered.
Mr. Tom Loach, a resident of Crozet, stated that he generally supports
accessory apartments, however, they are not without problems. From his
experience in New York in an accessory apartment on a block with multiple
accessory apartments, there were some real problems, and he hopes they can be
addressed in Albemarle County. One problem related to parking. He said that
there was even the problem in New York of having a place for fire and rescue
vehicles to park. The decision was made to have alternate sides of the street
for parking for those people in accessory apartments but it was quickly found
that this did not provide enough room for everybody. He hopes on-site parking
will be one consideration. Secondly, Mr. Loach mentioned the handling of
potential complaints from neighbors. Occasionally there will be a grumpy
neighbor but most of the time the complaints are legitimate. He suggested
that the issue of students be considered. In New York accessory apartments
worked out well within the community and he believes that in a small town,
August 10, 1994 (Regular Night Meeting)
(Page 21)
000060
such as Crozet, they would be much more preferable than building apartment
houses.
Ms. Frances Lee Vandell said she supports the idea of accessory apart-
ments because she thinks this will help in the rural areas.
Mr. Kevin Cox said this Zoning Text Amendment does not represent a
dramatic policy change as some people have implied. The Comprehensive Plan
strategy to further reduce residential development in the rural areas will not
be compromised because accessory apartments are not new residential develop-
ment. They are a more efficient use of existing space. Most of the time an
accessory unit uses sPace that was previously occupied by someone who has
moved on either because they grew up and moved out of the home or because they
passed away. Because of this the impact on population density will be
minimal. He noted that 17 percent of the detached single family dwellings in
Albemarle County are currently renter occupied and they will not be eligible
for this change. Contrary to what was said earlier, doubling the zoning
density is not theoretically possible much less realistically possible. The
League of Women Voters, the Piedmont Environmental Council and Mr. Frank
Kessler have all called for accessory apartments to require a special use
permit. Mr. Cox said he has yet to hear a single reason that justifies the
expensive, time consuming, process necessary to grant a special use permit.
While growth pressures continue to create traffic problems and trailers pop up
in the school yards like mushrooms after a rain, the staff is going to be
bogged down by these trivial permits because of the Supervisors' micro-
management of citizens' private affairs. If an applicant meets the require-
ments of the Zoning Ordinance for off street parking, health department
approval, area, owner occupancy, etc., there is no reason to deny that person
a permit. He then asked why the permit would be denied. He asked if it would
be denied because of a bigoted neighbor's fears, or because the Supervisors do
not like the applicant's looks, or because there are already two or three such
units in the neighborhood, and the Supervisors think this is too many. He
emphasized that there is no reason to deny a special use permit for this use
that would not be arbitrary and capricious. Because of that, Mr. Cox stated
that he feels certain the Supervi-sors will grant all of the permits that come
before them. He wondered why the Supervisors would bother with the public
hearings at all. Some people hope that the red tape and hassle of getting the
special use permit will reduce the number of applications. If this is the
Board's intent, then it should not pass this amendment. He added, however,
that if the Supervisors want to create some affordable rental housing without
building a single new building or spending one cent of public money, and they
want to provide the benefits of accessory apart-ments to those homeowners who
want them, then they should pass this ordinance as a by right use. He said
there is another reason that the Supervisors might want to make this a by
right use. He will be at the meeting for every public hearing for every
accessory apartment special use permit, and he asked if the Supervisors really
wanted to see him that often.
Ms. Babette Thorpe read a prepared statement, on behalf of the Piedmont
Environmental Council, in which she stated that PEC supports the Planning
Commission's recommendation to allow accessory apartments by special use
permit. (See statement to the Albemarle County Board of Supervisors from PEC,
dated August 10, 1994.)
No one else wished to speak, so Mr. Perkins closed the public hearing.
Mr. Bowerman said he has read the supplementary regulations for accessory
apartments and they all seem to be clear. He wondered why there could not be
a permit process that has to be reviewed, with regulations attached, which
would require off street parking, health department approval, etc., without
allowing accessory apartments by right, or without necessarily allowing
accessory apartments by permit. All of these things are needed and he
wondered why this would have to come before this Board.
Mrs. Thomas said she had asked the same question. She suggested that
when a person gets a building permit for such things as putting in a kitchen,
which usually triggers an accessory apartment, then that person would automat-
ically be put into this review process. This would also lead to the auditing
of the number of units in the area, which people are concerned about, because
of the zoning process. All of the things are outlined so carefully, that she
does not see what is left up to judgment. The permit process would examine
off street parking, septic system requirements, and it would even take care of
private road problems.
Mr. Tucker said the problem relates to density. If a kitchen is in-
stalled, then that triggers the zoning issue. If the applicant meets the
density require-ments, for instance in the rural areas, then two units per
acre are required, and this is one of the zoning issues that would be consid-
ered. Under this provision, however, Mr. Tucker indicated that density would
not necessarily be an issue. Mrs. Thomas agreed. She said that everything
else would be considered. Density would be considered as far as a private
road is concerned. This could be changed by the Board, however, if density
would need to be related to something else.
Mr. Keeler explained that this provision would only apply to private
roads which have been approved under the Subdivision Ordinance because the
staff has no control over existing easements in the County. He said that now,
if a property is served by an easement, and it is not a County approved
August 10, 1994 (Regular Night Meeting)
(Page 22)
OOO061.
private road or a public road, a person can build a second house on the
property without special approval. He noted that this provision does not
change that context. He pointed out that if a person lives on a private road
which has been approved by the County, the land is already subject to restric-
tion as to the number of units, and adjustments would have to be made. He did
not want the Board members to get the idea that this provision would apply
everywhere and to all situations in the County.
Mr. Davis remarked that the permit, to which Mr. Bowerman and Mrs. Thomas
are referring, would be an occupancy permit which would be issued by the
Inspections Department and the Zoning Department, and it would indicate that
the accessory apartment met the zoning criteria. Ms. McCulley said this
provision will bring a Zoning Inspector into a situation where before an
inspector would not be involved in a residential inspection unless it related
to the site plan. She said this would involve new inspections to the site,
and the inspector will be the person checking the parking requirements and
other conditions. She added that the approval will state that it is for an
accessory apartment. A separate permit will probably be developed to make all
of this clearer or the existing building permit might be amended.
Mr. Marshall gave an example of someone's daughter and her three children
suddenly moving back home when the husband deserted her. He added that a
neighbor might complain because of the traffic, etc. He asked if this would
bring an inspector to the house to see if there is another kitchen, etc.,
involved. Ms. McCulley said it is not uncommon to get such a complaint but if
the records reflect that there has been approval for an accessory apartment,
then there would be no question. If it is not a situation where it can be
established that the person is using an accessory apartment, then that person
would be contacted. If the people are living in a single family house without
an accessory apartment, then they are within the guidelines of the family
definition, so there would not be a violation.
Mr. Bowerman asked if there is a limitation of four unrelated people
renting a house. Ms. McCulley replied that depending on the zoning in the
area, there can be up to six unrelated people living in one house. She
mentioned that in single family districts there can only be two unrelated
people occupying a dwelling. Mr. Keeler said there would be more flexibility
with accessory apartments in place because these regulations do not limit the
occupancy to the definition of family. They would be treated as two units for
purposes of family.
Mrs. McCulley said it is important to note that on a weekly basis
building permits are applied for accessory apartments. She does not know the
exact numbers, but Mr. John Grady, the Assistant Zoning Administrator,
examined the permit log for the past year and estimated that there were
between 5b and 100 which could actually be approved as accessory apartments
under this proposed language.
Mr. Keeler said staff had projected approximately 60 approved accessory
apartments in a year, and Mr. Grady estimated that there were approximately
100 such apartments, so this is the range to be considered. There can be
problems if accessory apartments are introduced by special permit, and they
are considered to be different from two family dwellings. He gave an example
of a person who wants to convert his basement into an apartment and he can
have an accessory apartment by special permit, but he has enough acreage in
his lot whereby he can have a two family dwelling by right. Mr. Keeler said
the person is probably going to call it a two family dwelling and get a
building permit. Then later on, if that same person wants to subdivide his
property, that is when he will apply for a special permit for an accessory
apartment. Mr. Keeler explained that the Board would then be asked to review
a special use permit for an accessory apartment which is already there but in
actuality be reviewing the subdivision of the property. This is why he wanted
to emphasize that if another provision is introduced, it can get peculiar in
actual administration. This sounds far-fetched but generally people take the
easiest course at hand, at the time. He noted that with rural areas zoning,
there can be a two family dwelling on four acres by right. He wondered why,
if a person has four acres, he would not simply do that, instead of going
through a special use permit process, because it is, in fact, a two family
dwelling.
Mr. Martin said it seems to him that if something is going to be tried
for a six month period, it would be best to approve it as a by right situa-
tion. When the situation is then considered after the trial period, there
will be something to base the decision of whether the matter can be handled
with a special use permit or whether it should continue by right. He men-
tioned that one person had suggested the special use permit be used for
transition purposes. If the process is started by using a special use permit,
the information will not be forthcoming which is needed to determine that the
by right situation is the better of the two processes. If the process is
started by right, then he thinks better information will be forthcoming as to
whether or not a special use permit is needed. By starting off with a by
right situation, the worst problems will be noted.
Mrs. Humphris remarked that she is becoming more and more confused about
the problems and the benefits, depending on how a person is looking at the
situation. She keeps hearing that there are not going to be many applica-
tions, but, next, she hears that the County could be inundated with them to
such an extent that it would be impossible to take care of them all. She
called attention to the fact that the effect the by right accessory apartments
August 10~ 1994 (Regular Night Meeting)
(Page 23 )
00006
would have on neighborhoods has not been mentioned. Some people have scrimped
and saved to make the down payment on their home in a single family neighbor-
hood and the neighborhood could suddenly start to change. There could be more
residents on the street because of by right accessory apartments and there may
be the potential for completely changing the nature of that street or neigh-
borhood very rapidly. Some people would be helped but other peoples' dreams
could be hurt.
Mr. Martin mentioned that most single families take up all of the space
in their houses in subdivisions in single family neighborhoods, zoned R-1 and
R-2. In his own neighborhood there is an accessory apartment which should not
be there. The daughter lives upstairs and the father and mother live down-
stairs. He cannot think of any other situations in his neighborhood where a
family is living in a house and there is extra space for an accessory apart-
ment. He understands what Mrs. Humphris is saying about the different
arguments.
Mrs. Thomas recalled that 25 years ago she was having this same type of
discussion with a planner who lived in the City. She was concerned about the
Lewis Mountain Road neighborhood because of the amount of accessory apartments
located there. She does not know if these apartments were legal or if they
were grandfathered. She was concerned that this neighborhood was going to go
downhill because of these apartments which increased the density. This has
remained a nice neighborhood. The Lewis Mountain Road neighborhood is a
relatively dense neighborhood. The Jefferson Park Avenue neighborhood is in
danger because many of the residences have been sold or turned over completely
to rental units. Maybe if accessory apartments had been possible the situa-
tion might have been different in that neighborhood. She reiterated that the
Lewis Mountain Road neighborhood has had a lot of accessory apartments and it
has maintained itself because of them since people were able to stay in their
homes with a student in the basement.
Mrs. Humphris asked if all the Board members would agree that if this
amendment is approved, then it will have to be decided how this situation can
be watched closely, as well as the length of the trial period, whether that
period of time is six months or a year.
Mr. Marshall said he is unsure how a decision can be made on this matter.
Mr. Bowerman remarked that the Supervisors will know what is happening through
the Zoning Department. Mr. Marshall said he does not think the Board will
have a clear picture. The six months length of time is fine with him and he
believes the staff can use this time as well as the Board.
Mr. Martin suggested a year as the time frame, and he also suggested that
the use should be allowed by right. If the matter is handled in this manner,
it will be possible to discover how the special use permit can be used if it
is desirable to use it at all.
Mr. Tucker said if the Board will give the staff an idea as to what it is
looking for, such as numbers or location, etc., the staff can provide the
Board this information with any frequency that the Board so wishes. He said
the Supervisors can then decide if and when they think it becomes an issue.
The matter can also be handled on an annual basis but the staff can begin
tracking it immediately, as well as giving this Board an updated report in six
months.
Ms. McCulley remarked that part of the useful analysis for this Board
would be the number of complaints received based on nuisance impacts, etc.
She said this information can be provided to the Board with the numbers and
locations of approvals.
Mrs. Thomas said she has a problem with a special use permit in this type
of situation because the regulations are written so carefully that the
Supervi-sors can do nothing except respond to an irate neighbor. Mrs.
Humphris remarked that one of the reasons for special permits is to insure
that there is a watchful eye on growth in the rural areas because services
have to be provided and if the requirement for services gets to be too much,
the growth can be limited. She wondered if the by right situation is ap-
proved, will the Board still have this authority.
Mrs. Thomas recalled that Mr. Keeler had mentioned to her a situation in
Fairfax County where officials after approving several special use permits
decided there had been too many and this situation was taken to court. Mr.
Keeler said he believes the Fairfax County situation involved two family
dwellings permitted by special use permit and 12 or 14 permits had been
approved in a particular area. There was an applicant who wanted a special
use permit and there was a lot of concern expressed by the neighbors. The
permit was denied and the courts sustained the disapproval. The notion that a
permit cannot be denied does not seem to hold at least in that particular
case.
Mr. Davis stated that if the Board decided to require a special use
permit it would be legal, for the reasons that Mrs. Humphris articulated.
These are legitimate considerations in the special use permit process.
Conditions could change as permits are approved and there could be legitimate
land use reasons upon which a denial could be based. He explained that if
traffic, densities or other issues are considered, then it could become a
danger to the health, safety or welfare of a particular neighborhood to
August 10, 1994 (Regular Night Meeting)
(Page 24)
approve additional permits. This is an alternate choice to a by right
process. Mrs. Humphris said it seems to her that the ability to deny a
special use permit might become important to this Board.
Mr. Martin said he does not think this would be necessary on the applica-
tions which are approved during the trial period. From that point on, because
of the experience derived from this time period, Mr. Martin said it could be
determined if the special use permit process might be important.
Mr. Bowerman said Ms. McCulley could come back to the Board in 90 days
and state that she needs help with the situation. He said the Board shares
the same concerns as the League, the Piedmont Environmental Council and the
Citizens for Albemarle, but the Supervisors are also saying that the special
permit require-ments are the same, so they can be included in a permit
process. If the situation does get out of control because of things that are
not anticipated, it can be corrected. Mrs. Humphris said the Board can
examine the matter in six months or a year, or sooner, if necessary. Mrs.
Thomas suggested that the Board receive a quarterly report and then review the
ordinance at the Board's discre-tion. Mr. Tucker concurred. He said the
quarterly reports could come to the Board on the Consent Agenda, and if the
staff feels there is need for discussion, this can be done.
Mr. Martin suggested that the Board receive quarterly reports and then
review the situation a year from now unless the Board votes to do it sooner.
He does not want to create a situation where it appears that the Board will
have such a review any time someone asks the Board to do so.
At this time, Mrs. Humphris made a motion, seconded by Mrs. Thomas, to
adopt an ordinance to amend and reordain Chapter 20, Zoning, Article I General
Provisions and Article II, Basic Regulations, of the Code of the County of
Albemarle to allow accessory apartments in all single-family dwellings. As
part of this action, staff is to provide the Board with quarterly reports
concerning the implementation of accessory apartments. The Board will also
take another look at accessory apartments in 12 months unless it votes to do
so sooner. Roll was then called and the motion carried by the following
recorded vote:
AYES:
NAYS:
Mrs. Humphris, Messrs. Marshall, Martin, Perkins, Mrs. Thomas and
Mr. Bowerman.
None.
(The adopted ordinance is set out below:)
AN ORDINANCE TO AMEND AND REORDAIN
CHAPTER 20, ZONING, ARTICLE I, GENERAL PROVISIONS
AND ARTICLE II, BASIC REGULATIONS,
OF THE CODE OF THE COUNTY OF ALBEMARLE, VIRGINIA.
BE IT ORDAINED by the Board of Supervisors of the County of
Albemarle, Virginia, that Chapter 20, Zoning, is hereby amended
and reordained by amending Section 3, Definitions, by adding a
definition of Accessory Apartment, and by amending Section 5,
Supplementary Regulations, by adding subsection 5.1.34, Accessory
Apartment, as follows:
ARTICLE I. GENERAL PROVISIONS
3.0 DEFINITIONS
Accessory Apartment: A separate, independent dwelling
unit contained within the structure of and clearly
subordinate to a single-family detached dwelling, as
distinguished from a duplex or other two-family dwell-
ing.
ARTICLE II. BASIC REGULATIONS
5.0
SUPPLEMENTARY REGULATIONS
5.1.34 ACCESSORY APARTMENT
bo
An accessory apartment shall be permitted only
within the structure of the main dwelling to which
it is accessory. Usage of freestanding garage or
other accessory structure for an accessory apart-
ment is expressly prohibited. Not more than one
(1) accessory apartment shall be permitted within
any single-family detached dwelling.
The gross floor area devoted to an accessory apart-
ment shall not exceed thirty-five (35) percent of
August 10, 1994 (Regular Night Meeting)
(Page 25)
00064
the total gross floor area of the structure in
which it is located.
Co
The floor area of such accessory apartment shall
not be included in the floor area of the main dwel-
ling unit for calculation purposes such as 5.2 HOME
OCCUPATIONS or other like provisions of this ordi-
nance.
do
An accessory apartment shall enjoy all accessory
uses availed to the main dwelling, except that no
accessory apartment shall be permitted as accessory
to another accessory apartment.
Any single family dwelling containing an accessory
apartment shall be provided with a minimum of three
(3) off-street parking spaces, arranged so that
each parking space shall have reasonably uninhibit-
ed access to the street, subject to approval of the
zoning administrator.
A single-family dwelling which adds an accessory
apartment shall be deemed to remain a single-family
dwelling and shall be considered one (1) dwelling
unit for purposes of area and bulk regulations of
the district in which such dwelling is located.
A guest or rental cottage shall not be deemed to be
an accessory apartment, but shall be deemed to be a
single-family detached dwelling, whether or not
used as such, subject to area and bulk regulations
of the district in which such cottage is locate.
No accessory apartment shall be permitted within
any guest or rental cottage.
The owner must reside in any dwelling to which the
apartment unit is accessory or the apartment unit
itself.
The provisions of section 4.1.6 notwithstanding,
for lots not served by a central sewer system, no
accessory apartment shall be established without
written approval from the local office of the Vir-
ginia Department of Health of the location and area
for both original and future replacement fields
adequate to serve the main dwelling and accessory
apartment.
j o
Accessory apartment shall be deemed to be a dwell-
ing unit for the purposes of section 18-36 Private
Roads of Chapter 18, Subdivision of Land of the
Code of Albemarle.
At this time the Board went back to Agenda Item No. 12. SP-94-20. Clark
Broadcasting.
Mr. Perkins asked if anyone was present to speak on SP-94-20. Since no
one came forward, Mr. Perkins closed the public hearing.
Mr. Bowerman then made motion, seconded by Mr. Martin, to defer SP-94-20
until August 17, 1994.
Roll was called and the motion carried by the following recorded vote:
AYES:
NAYS:
Mrs. Humphris, Messrs. Marshall, Martin, Perkins, Mrs. Thomas and
Mr. Bowerman.
None.
Agenda Item No. 13a. Request approval of an expenditure of $31,364 by
the Jail Board to settle an overtime compensation lawsuit claim.
Mr. Tucker said at the end of July he received a letter from the Chairman
of the Jail Board informing him that on June 9, 1994, the Jail Board agreed to
settle an overtime compensation lawsuit in the sum of $44,000. The Jail Board
is required to pay $31,363.36. Based on the current agreement one-third of
this amount will come from the County's contribution and two-thirds from the
City. The County's contribution will amount to $10,444. In the same letter
the Jail Board requested that the County and City consider amending the
current agreement that requires any excess funds at the close of the fiscal
year to be returned to the localities. The Jail Board's requested amendment
change would grant the Jail Board the ability to retain these annual carry-
over funds to pay incurred liabi-lities as well as create a reserve fund to
meet any future needs. Mr. Tucker explained that amendment of this agreement
will take approval by the City, as well, and he has been discussing this
matter with the City Manager. He then referred to the lawsuit claim, and he
said this is of an emergency nature. He recommended that the Board approve
August 10, 1994 (Regular Night Meeting)
(Page 26)
the Jail Board's request to pay the settlement cost out of this current fiscal
year, with the understanding that the County will cover the cost at some point
during the year, either by returning all or part of the carry-over funds, once
the amount is known, or by agreeing to amend the agreement with the City on
the retention and use of the carry-over funds by the Jail. Mr. Tucker said he
does not think an appropriation is necessary and the simplest way to handle
this matter is for this Board to make the Jail Board aware that the County
will support and cover the cost of the lawsuit claim, even though it is an
unbudgeted amount.
Mr. Martin moved approval of the Jail Board's request to pay the settle-
ment costs, relative to the overtime compensation lawsuit claim, out of its
current budget with the understanding that the County will cover the costs at
some point during the year, either by returning all or part of the carry-over
funds once the amount is known, or by agreeing to amend the agreement with the
City on the retention and use of carry-over funds by the Jail Board. Mrs.
Humphris seconded the motion. Roll was called and the motion carried by the
following recorded vote:
AYES:
NAYS:
Mrs. Humphris, Messrs. Marshall, Martin, Perkins, Mrs. Thomas and
Mr. Bowerman.
None.
Agenda Item No. 14. Approval of Minutes: April 14 and July 20, 1994.
Mrs. Humphris had read the minutes of July 20, 1994, and found them to be
in order.
Mr. Bowerman had read the minutes of April 14, 1994, and with some
typographical errors, found them to be in order.
Mr. Bowerman then offered motion, seconded by Mr. Martin, to approve the
minutes of April 14 and July 20, 1994. Roll was called and the motion carried
by the following recorded vote:
AYES:
NAYS:
Mrs. Humphris, Messrs. Marshall, Martin, Perkins, Mrs. Thomas and
Mr. Bowerman.
None.
Agenda Item No. 15. Other Matters Not Listed on the Agenda from the
BOARD.
Mr. Bowerman informed the Board of a situation where an existing church
submitted a site plan for an expansion, about a year ago, in which the prior
County Attorney determined that a special permit was not necessary because the
use was grandfathered and not a change in use. The site plan was subsequently
approved. The present County Attorney felt the church did require a special
permit. The County currently is holding up the building permit. Mr. Bowerman
feels it is unreasonable to require a special permit at this time because the
applicant acted in good faith based on the approval of the site plan. The
Zoning Administrator and County Attorney agree that it would be unreasonable
to require this applicant to apply for a special permit.
Mr. Davis stated that the distinguishing factor in this case is that the
applicant was given approval of the site plan in reliance upon the Zoning
Administrator's opinion at the time. He said the church officials have
received County approval, they have relied upon that, they have invested sums
of money and it could be a case of vested right. This can be distinguished
from other applications which have come before the Board over the last several
months. Although special permits were required in the other cases, there had
been no other County approvals or site plan approval. It is not unreasonable
to take the position that the church officials can rely upon the County
approval of the site plan. Mr. Martin asked, if the Board needs to take any
further action. Mr. Davis replied, "no." Mr. Bowerman said he felt the Board
should be informed of the situation.
Agenda Item No. 16. Adjourn.
At 11:00 p.m., Mr. Perkins adjourned the meeting.
Chairman