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HomeMy WebLinkAboutVA197100010 Public Notification 1971-07-15 LAW OFFICES PAXSON, MARSHALL & SMITH 435 PARK STREET CHARLOTTESVI LLE,VI RGI N IA 22902 P 0 BOX 1151 C.ARMONDE PAXSON AREA CODE 703 D.B.MARSHALL TELEPHONE 296-7138 WILLIAM MASSIE SMITH July 15, 1971 T MUNFORD BOYD GEORGE HARRISON GILLIAM W.CLYDE GOULDMAN,II COUNSEL Mr. Joseph M. Goldsmith Albemarle County Zoning Administrator Fourth Floor, County Office Building Charlottesville, Virginia 22901 Re: Board of Zoning Appeals - Case of Greenbrier Limited Partnership Dear Mr. Goldsmith: This letter is in response to your request for an opinion regarding the power of the Albemarle County Board of Zoning Appeals to hear and decide an appeal from the action of the County Planning Commission and you in refusing to approve a site plan submitted by Greenbrier Limited Partnership for an apartment development proposed to be located on State Route 743 near Albemarle High School. I understand that you and the Planning Commission, after reviewing the site plan, required a minimum setback from Route 743 of 60 feet. I further understand that the applicant contends that the Albemarle County Zoning Ordinance gives no legal authority for any setback requirement of more than thirty feet. It is this difference of opinion, involving interpreta- tion of the Ordinance, that the applicant wishes to bring before the Board for determination. In my opinion, such a question of interpretation is a proper issue to be heard and determined by the Board of Zoning Appeals. I am told, however, that the matter came before the Board of Zoning Appeals on a petition "to review the decision of the Planning Commission. " Some members of the Board stated that they had no jurisdiction to review any decision of the Planning Commission. I agree that the Board has no power to review Planning Commission decisions in the sense of substituting its judgment for that of the Commission. I believe, however, that Mr. Joseph M. Goldsmith July 15, 1971 Page Two the Board does have the power to interpret the Ordinance in order to determine whether the Commission has exceeded its powers derived therefrom. In this case, I believe the Board's power to hear the appeal comes from Section 12-2-1 at page 50 of the Ordinance. The 60-foot setback was, in the words of that section, a "require- ment --- made by an administrative officer". As Zoning Administrator, you are the officer who made it, even though you did so at the Planning Commission's direction. If such a require- ment is not authorized by the Ordinance, the Board of Zoning Appeals has the power and duty to so rule after hearing, but the evidence and argument at the hearing should be limited to that which bears upon the interpretation of the ordinance, and should not go into the wisdom of the requirement from a planning point of view. To apply this opinion even more closely to this case, I would suggest that the petition should be amended so as to request a hearing and determination by the Board of Zoning Appeals of the power of the Zoning Administrator or the Planning Commission to impose the requirement of a 60-foot setback as a condition for issuing the building permit applied for. Second, the Board should hear evidence pertaining only to the existence of plans approved by the State Highway Department or the Board of Supervisors of Albemarle County for widening State Route 743, and the Board should then determine whether the Commission and the Administrator in this case had the power under Section 6-3 at page �nd Section 11-6 at page 43 of the Ordinance to impose any setback uirement beyond the minimum of 30 feet. If the hearing and determination by the Board of Zoning Appeals is thus limited to interpretation of the law, I believe its proper function will have been discharged and, regardless of the Board's decision, the issue will be properly framed for appeal to the Circuit Court, either by the applicant or by the Zoning Administrator. . • Mr. Joseph M. Goldsmith July 15, 1971 Page Three I hope this opinion will be of some assistance to you and the Board. I am sending copies to counsel for the applicant, counsel for the objecting neighbors and to Messrs. Amato and Pickford, the lawyer members of the Board. Very truly yours, /4"). Ai/X.;< D. B. Marshall, County Attorney for Albemarle County DBM/slw cc: V. R. Shackelford, Jr. , Esq. Shackelford & Robertson Orange, Virginia cc: John C. Lowe, Esq. 1111 West Main Street Charlottesville, Virginia 22903 cc: Savory E. Amato, Esq. Professional Bldg. Third and East High Streets Charlottesville, Virginia cc: Herbert A. Pickford, Esq. 230 Court Square Charlottesville, Virginia 22901 GREENBRIER LIMITED PARTNERSHIP - VA-71-10 idsmith "Applicant is requesting the Board of Zoning Appeals of Albemarle County to overturn a decision by the Zoning Administrator based on a decision by the Planning Commission of Albemarle County as it ruled on a site plan on June 21 , 1971 , on a 60-foot setback rather than the proposed 45-foot setback as set forth in th site plan. This property which contains 10.33 acres is located on the South/East quadrant of Route 656, Georgetowne Road, on Route 743, Hydraulic Road, on property zoned R-3 and described as County Tax Map 61 , parcel 42, Charlottesville Magisterial District." "Gentlemen, the Greenbrier Limited Partnership is requesting your board to overturn my decision for not issuing a building permit to them for a 45 foot sebtack. There was a misprint in the Daily Progress in the legal advertisements It said you were going to overturn a decision by the Planning Commission which we- John Humphrey and myself-feel is basically the same thing you are doing because you are overturning my decision and if you overturn my decision I still cannot issue a building permit because of the Planning` Commission's ruling° i:ckford "You are implementing the Planning Commission's decision aren't you?" pldsmith "Yes sir, we have to do this.' -. ckford "Are you making a separate decision?" Adsmith "No, I can't. I mean I can not issue Building Permits. " : ckford "You are just abiding by the Planning Commission. " _ idsmith "That's correct." - ckford "So, then the petition to reverse and set aside by the actions taken by the Planning Commission is what we're doing." _. idsmith "That is correct. Now we do have with this the petition of Greenbrier Limited Partnership which I will read to you and entered into the minutes. See Attached oldsmith "Gentlemen, I have spoken with Mr. John Humphrey, County Planner. I must say that the staff can not in good faith condone a setback closer than 60 feet to Hydraulic Road at this location due to the widening of the road that is probable and the increased conjestion that will result. Mr. Humphrey has commented this afternoon that a 60-foot setback is the minimum that he, as County Planner, can accept. The Highway Department as you know, has recom- mended a 70-foot width right-of-way at this location. Now, several weeks ago the County Executive, Mr. Thomas Batchelor, Jr. and the County Engineer, Mr. J. Harvey Bailey, attended a meeting in Richmond to request funding for Route 743 to widen it and to find out what the Highway Department was desirous of doing in this area. " -ickford "Excuse me, Mr. Goldsmith. Before we go into this, I want to know for sure if this Board has jurisdiction to hear what is in appeal here. Where is the authority for us to hear anything coming up from the Planning Commission of this sort?" owe "Section 12-2-1 seems to eliminate such jurisdiction from this board." --ickford "You mean we can hear matters coming from an administrative officer but this is coming from the Planning Commission. " .oldsmith "That's correct, but you are hearing an appeal of my decision not to administer or issue building permits." -ickford "But it is not your decision. It's the decision of the Planning Commission. You' re just implimenting their decision. " :nato "No, Hubert. Under the law, before any person may build, he must have a building permit. Now, the building permit has been refused to the applicant. Well , the reasons, I think, would be one thing, but if you look at this section it says that "appeal from his decision"- his decision, whatever it is based on, is not to issue the permit, and this is what they are. . . ickford "I don't see that their is any decision there at all ." chackleford "May I speak, Judge?" :nato "Oh sure." Mr. Schackleford from Orange. " hacleford "I 'm not familiar with procedures but I 'll try to keep it as informal as I can. It is my understanding that you first present your site plan to the Planning Commission who studies it, the Planning Commission turns it down or makes it subject to certain conditions, but the Zoning Administrator can not issue the permit unless it is issued subject to those conditions. Then under this Section 12-2-1 you have the power and duties of Zoning Appeal . Now this was referred to as a tipetition for a variance, actually it is not a petition for a variance. We are simply coming here asking this Board to consider whether or • not the Planning Commission exceeded the authority which it has under the Ordinance in making this 60-foot setback condition rather than the amount of setback that is required in the Ordinance. So it is really not a variance but I think it is a petition that comes in and before the Board of Appeals under Section 12-2-1 which gives the Board of Zoning Appeals the perogotive to hear and decide appeals from any order of requirement, decision , or determination made by an administrative officer in the administration or enforcement of this ordinance or regulation adopted pursuant hereto. " iato "Are you telling us then that you are appealing from the decision of the Planning Commission? Is this what you are appealing from because that section didn 't cover it." 7:hackleford "It is the decision really of the Planning Commission, but it is implemented by the Zoning Administrator. We can't go, for instance, the other provisions in this ordinance which makes it necessary to come before the board of Zoning Appeals before any further appeal could be taken. " riato "Now, I interrupted you. You were going to quote another section. I didn't mean to do that to you. I 'M sorry. " :iackleford "It goes on-- Section 12-3, it says - Appeal to the board may be taken by any person aggrieved or by any officer, department, board or bureau of the county affected by any decision of the zoning administrator. Such appeal shall be taken within thirty (30) days after the decision and so forth. We have applied for the appeal , the notices have been sent out, and the ordinance goes on and sets out what the zoning board of appeals does , and then it goes on and set out the procedure to be followed in the event you actually want to go to the court, and I think it is under the ordinance you would be thrown out of the court if you didn 't pursue your appeal before this body. - ;ckford "But there is no`provision to appeal from the Planning Commission to this Board. " :-mato "He said in the petition that he was appealing from the decision of the ti Planning Commission. Actually, in effect, what he means is that he is appealing from the decision of the Zoning Administrator who refused to give you a permit. It's without that setback, but his reasoning is that he's got it from the Planning Commission so the effect of it is actually you are, in effect, appealing from the Planning Commission. Technically you're appealing from his decision." -Aackleford "Technically I 'm appealing from his decision, but as I understand it he is powerless to grant the permit in the absence of approval by the Planning Commission. So really you are appealing his inability to issue the permit but in order to get the permit you've got to have the approval of the Planning Commission. So, in effect that's the thing. . . . "_ -ickford "You'll appeal from the Planning Commission to the Board of Supervisors?" :hackleford "Not that I could find. " ickford "Is there?" :mato "I was going to try to see if we could straighten this think out today, so far as procedure is concerned." owe "That's what I had- some procedural points to raise on this since this is a public hearing and the appropriate time before a decision is made." -nato "Alright, well then, Mr. Schackleford, if you have anything else to present on procedure alone now. Do you?" chackleford "No, I just reaffirm that I think we ought to before this Board of Zoning Appeals , promptly- we couldn't go further unless we did take this step under the Ordinance. niato "Alright, let's hear Mr. Lowe's views." owe "I think that this is being put in the wrong context. First of all , the decision of the Planning Commission as I understand it, in no way said the Zoning Ordiance required 45 or 60 feet. They said that the site plan based on considerations which we feel proper should not be approved unless it has this much, regardless of what the Zoning minimum is , and therefore, it is the Planning Commission's decision. The Ordinance sets forth a minimum, but they've said, No, we' re not interested in minimum, we want to put something that we feel is necessary and they said therefore, we will not approve the site plan. Now there has been no decision by Mr. Goldsmith. He was powerless to make a decision until ' the Planning Commission approved it and this is not an appeal from a zoning matter because the Zoning Ordinance only sets up a minimum and the Planning Commission, for reasons which they deem appropriate, wanted a better site plan, a better setback, and there most certainly is an appeal to the Board of Supervisors as there is in any denial of any site plan for any reason whatsoever. Now, the important think here is that this is not a decision of Mr. Goldsmith's and I would hasten to add that I don't think this Board sees itself in a supervisory or a reviewing position,for the Planning Commission. Now, the petitioner's own words are they are appealing from a Planning Commission decision. They can hardly dispute it in any other terms because Mr. Goldsmith has made no decision. He is powerless to make no decision. These people have proper appeal to the Board of Supervisors and I think if I were on the Planning Commission I would think this Board of being awfully high-handed if I reviewed the Planning Commission's decision. And, I submit that they are in the wrong form and I think they have very good form and they may have a very valid appeal , but not to the zoning appeals. This Zoning Ordinance is not the basis for the denial of the site plan. They're not saying under this ?old? zoning you must have 60 feet. We're saying for other sufficient reasons we are going to require you to have 60 feet even though the minimum is 30, and I think for that reason your jurisdiction is wanting here." -Hato "Well , I agree with you personally, that what came up before the Planning Commission, of course I am a member of the Planning Commission , is the approval of the site plan and they required the setback, it was first 80 feet and then it was reduced to 60 feet, as a part of the approval of the site development plan': owe "It may very well be that these petitioners will prevail to the Board of Supervisors in holIing that the Planning Commission did not have the power to require that much setback, but that is not a zoning appeal question. The Planning Commission did not base their decision on the Zoning Ordinance, they based it on other considerations , which really are not reviewable here." % -mato "Ladies and Gentlemen, it is the consensus of opinion othe Board that we do not want to put anyone to any inconvenience,but prior to hearing this matter we would like an opinion from the County Attorney. We would not like to proceed further until we have had an opinion. We hesitate in putting anyone to any inconvenience, council , litigants , and interested parties , but it is a matter of great importance to this board, both its members and as a board, and we would not like to take any action that would be improper or to proceed to hear evidence until we first determine that we properly had jurisdiction." :Agin "May I ask a question?" :Hato "Yes Sir. I 'll try to answer that. I may not be able to. " iJtgin "As far as inconvenience, I 'm sorry I had to get a special pass from military duty to come back to this. Timing of course, is very critical . We've been before the Planning Commission several times." :.eato "We know, but. . . ." :Agin "I 'm curious as to whether or not the Board has any provision whereby they can meet with a Health or public hearing or what have you prior to the next scheduled meeting which is four or five weeks away." :nato "This Board, I think I can speak for the Board completely, that we have not adopted that procedure strictly. We have special meetings, and we'll try to see if we can have a special meeting right now. How soon do you think we can get an opinion from the County Attorney?" goldsmith "We can have an opinion in at least three days , I would think." Amato "Can we have our meeting next Tuesday then?" :otgin "It's alright with me. Is that alright with you, John?" :Amato "Mr. Lowe?" _owe "I 'll make myself a meeting with the Board." mato "Mr. Schackleford?" -.chackleford "Yes , Sir; I can come. " --,mato "Alright then, 'we will - it's alright with the Board?" ain "Do we have to advertise for this thing?" - Bickford "If the Attorney says we do not have jurisdiction I don 't think we have to meet to hear that. We'll just notify the parties, cause I 'm certainly going to move, if he says we don't have jurisdiction, I'm certainly going to move that." -:otgin "We would like to know where to go." -3ickford "It's a shame to have to call everyone back here for that purpose." :. chackleford "As I understand it, if this Board decides the matter it goes next to the circuit court on what they call a certiorari . In other words. . . . " Amato "We got the case on profession record. " _,chackleford "We would expect to carry it on, and I think they would have to have a meeting in order to add it in the records. " ::Amato "I think we will continue the matter until next Tuesday, at 5:30." _owe "We have a clarification. This will be of some inconvenience to some people and everyone obviously on both sides , but if this borad determines from the opinion of the County Attorney that it has no jurisdiction I presume that the writ of certiorari would be taken to the circuit court on that decision and it would not go and take all of the evidences to the merits of the case on the assumption that it was no jurisdiction " ato "If we conclude, this is my feeling, that we do not have jurisdiction, I don't believe we are going to hear evidence." :ewe "I would be coming back from Southside, Virginia, for this occassion. " Amato "I think we should meet officially at a meeting and say that we do not have jurisdiction so it goes into the record. We could do that on the telephone. " Bowe "But' we'll be able to check earlier that day for example, and find whether that would be. . . ." Amato "I think too, in fairness , that when the County Attorney gives us his opinion, we ought to give interested council a chance to reargue that matter if you have any additional, authority. We aren't going to close you out completely because the County Attorney says one thing or the other." :::hackleford "Actually, I don't know what you gentlemen will decide,but, if you decide you don 't have jurisdiction I would still move to put the facts in record so that it would be before the court when it got there. We're getting into technicalities." Nato "That's like a motion to strike. Tell the judge that I wish he would hear the defendent's evidence at least. He says No, I am going to entertain a motion to strike the plantiff's evidence right now and that's it." - to "We're not trying to be technical but I think that would be my view, that if we don't have jurisdiction we would have the evidence. The matter is continued until next Tuesday at 5:30. "