HomeMy WebLinkAboutAP201900002 Staff Report 2019-05-24Lrf2C;l1�ZA
COUNTY OF ALBEMARLE
Department of Community Development
401 McIntire Road, North Wing
Charlottesville, Virginia 22902-4596
Phone (434) 296-5832 Fax (434) 972-4126
ALBEMARLE COUNTY BOARD OF ZONING APPEALS
COUNTY OFFICE BUILDING
401 MCINTIRE ROAD
LANE AUDITORIUM, 2:00 P.M
AGENDA
TUESDAY, JUNE 4, 2019
Call to Order
2. Establish a Quorum
3. Public Hearing:
A. Project Number: AP201900002 Goings/Birdsall TMP 29 — 76
Appellant: Rick and Susan Goings
Subject Property Owner: John H. Birdsall, III, trustee of the
John H. Birdsall III Trust, and Mary Scott Blake Birdsall, trustee
of the Mary Scott Blake Birdsall Trust
Staff: Amelia McCulley
4. Approval of Minutes
A. May 7, 2019
5. Old Business
A. BZA Legal Representation Update
B. BZA Training Information Update
6. New Business
7. Adjournment
BOARD OF ZONING APPEALS MEETING GUIDELINES
Thank you for attending the Board of Zoning Appeals (BZA) meeting. The following information is
provided to help ensure the meeting proceeds as efficiently and effectively as possible. As a courtesy
to others, please turn off all cell phones during the meeting.
General Information:
This meeting is recorded and later transcribed into minutes approved at a later meeting date.
Each item set for public hearing will begin with a presentation of the staff report. Next, the applicant
or appellant for that item will be invited to speak. During the course of the process, the Chairman will
open the public hearing to comments from the public. At the end of these proceedings the Chairman
will announce that the public hearing is closed. Once the public hearing is closed, no further public
comments will be allowed unless the Board asks for additional information from the applicant or
appellant.
The BZA reserves the right to digress from these guidelines in any particular case.
To Members of the Public:
If you wish to address the Board, please raise your hand or stand when the Chairman asks for public
comments for that item. When it is your turn for comment, please come to the microphone and state
your name for the record. For uncommon spellings, please spell your name for the recording
secretary. If you are with a group of people, you may want to have a spokesperson present your
position to the Board.
In order to give all speakers equal treatment and courtesy, the Board requests that speakers adhere
to the following guidelines:
• Come forward to the speaker's podium and state your name;
• Address comments directly to the Board as a whole - open public debate is prohibited;
• State your position and give facts and other data to back it up — keep in mind that there is a 3
minute time limit for public comment;
• Give written statements and other supporting material to the Recording Secretary
(written comments are also welcome if you do not wish to speak).
Additional Guidelines for Applicants and Appellants addressing the Board:
• Please contact staff in Community Development ahead of the meeting to make any necessary
arrangements for your presentation. The Recording Secretary will also need copies of any
handouts __given to the BZA members for the official record of the meetin_q.
• Be clear in stating your position and do not repeat information that has been previously
submitted to the Board.
• Stay on topic by addressing the questions in the application or by responding directly to staffs
determination(s). Focus on presenting facts and data that support your position.
• Keep in mind there is a 15 minute time limit for presentations and a 5 minute time limit for
rebuttal comments. The Board will ask any necessary follow-up questions to clarify points
made during the presentation.
• Understand that the Board of Zoning Appeals cannot change County ordinances.
The BZA reserves the right to place additional time limitations on speakers, as necessary.
STAFF PERSON: Amelia McCulley
PUBLIC HEARING: June 4, 2019
STAFF REPORT: AP 201900002 Hilliard Estate & Land Management
(HELM)
APPELLANTS: Rick and Susan Goings
Contact Person: David W. Thomas, Esq.
In accordance with Section 34.3 of the Albemarle County Zoning Ordinance, the
Appellant is appealing the February 14, 2019, Zoning Administrator
determination that the current use as an agricultural service occupation and the
structure then under construction on Tax Map Parcel 29-76 are by -right uses in a
Rural Area and are not in violation of the Albemarle County Zoning Ordinance.
BACKGROUND
The subject property (Parcel ID 02900-00-00-07600) is owned by the John H
Birdsall III or Mary Scott Blake Trust. The property is addressed at 3190 and
3214 Free Union Road. It is zoned Rural Areas (RA). (See Attachment A.) This
is the location of the newly constructed building for equipment and materials
storage and maintenance for Hilliard Estate & Land Management (HELM), which
leases the property addressed 3214 Free Union Road.
Below is an abbreviated chronology of actions relevant to this appeal:
• HELM business owner, H. Carter Hilliard, met with County staff on June
25, 2018, to discuss zoning requirements for the location of his business
in anticipation of a relocation.
• Mr. Hilliard applied for a letter of zoning determination on June 27t". Staff
applied facts regarding the business received from Mr. Hilliard's
application, from a personal interview with Mr. Hilliard, and from his
website to the regulations of the zoning ordinance. Such facts
demonstrated HELM was primarily engaged in exercising skill and
expertise in agriculturally related fields including vineyard installation,
equestrian facility maintenance, farmland reclamation, silviculture, crop
seeding, custom farming, pasture renovation and maintenance, bush
hogging, fencing, farm maintenance and mowing, and other farm and land
management activities. This resulted in an official letter of determination of
use dated July 26, 2018, in which the Zoning Administrator determined
Page 11
that HELM is an agricultural service occupation permitted to operate by
right in a Rural Area. (See LOD in Attachment B.)
• On November 14, 2018, H. Carter Hilliard applied for a farm building
permit on TMP 29 Parcel 76 that was issued on January 7, 2019. This
building permit (B2018-2699 FB) proposed a "NEW 45'X 100' WITH 16'
EVES STEEL AGRICULTURAL BUILDING FOR STORAGE OF
EQUIPMENT AND MAINTENANCE WITH ONE (1) BATHROOM."
Construction of this building is complete.
• On January 8, 2019, the Community Development Department received a
complaint of zoning violation (ZVIO 2019-004) for TM 29 Parcel 76 with
primary property address 3214 Free Union Road. This complaint alleged
that a business was operating from a new building with no approved
zoning clearance. The Department received 3 complaints from different
people.
• The Department investigated the complaints, performing a site inspection
and interviewing the business owner on the property. Staff made
observations about the equipment and activities onsite. The equipment
included two tractors and tractor implements. HELM was planting trees
along Free Union Road and behind the equipment building. Staff
measured building setbacks.
• On February 1, 2019, the Zoning Administrator sent an email to Rick
Goings, complainant and appellant, informing him that we found no
violations in response to his complaints. The email includes statements
that HELM primarily serves farms and any residential service use is
accessory. (See Attachment C.)
• On February 4, 2019, the Zoning Administrator received a letter from
David W. Thomas, Esq., on behalf of Rick Goings. By this letter, he
contests the findings and methodology for the letter of determination of
use as well as our findings in the investigation of complaint.
• On February 14, the Zoning Administrator sent a letter in response to Mr.
Thomas's letter of February 4t". This letter states that we stand by the
original use determination which is final and unappealable. It further
states that, based on our inspections, it is the Zoning Administrator's
"determination that neither the current use nor the structure currently
under construction is in violation of the Albemarle County Zoning
Ordinance." (See Attachment D.)
• Mr. Hilliard, by counsel, submitted on May 8, 2019, photographs
confirming HELM's work in vineyard installations, orchard maintenance,
farm land fencing, pasture bush hogging and reclamation, large scale
seeding, forest management, controlled burns, crop planting, farm
infrastructure construction, and erosion control. Edward J. Kelly, III, of
Midway Farm confirmed in writing HELM's professional help in managing
the horse farm. Fred W. Scott, Jr., of Ballyshannon did the same, writing,
Page 12
"Carter Hilliard owns and runs the fines agricultural services business I
have known during my fifty-year involvement in Albemarle agriculture."
RELEVANT ZONING ORDINANCE REGULATIONS
The Albemarle Board of Supervisor's purpose in creating the Rural Areas District
was, amongst other reasons, to preserve "agricultural and forestal lands and
activities. ... In relation to residential development, agricultural/forestal activities
shall be regulated only to the extent necessary to protect public health and
safety. ... [T]his district is intended to preserve the county's active farms .... In
addition, the continuation and establishment of agriculture and agriculturally -
related uses will be encouraged." Albemarle County Zoning Ordinance Section
10.1.
Consistent with that purpose, Zoning Ordinance Section 10.2.1 permits "by right
in the RA district ... 7. Accessory uses and buildings ... and 12. Agricultural
service occupation."
This appeal relates to a business which as been classified as an "agricultural
service occupation" by the Zoning Administrator. Directly related to and used in
this term is the use known as "agriculture." These terms are defined within the
Albemarle County Zoning Ordinance Section 3.1 "Definitions."
Agricultural service occupation: An occupation in which skill and
expertise in some agriculturally related field are applied to the
service of others engaged in agriculture; provided that sales of
goods shall be limited to those incidental to the performing of a
service.
Accessory use, building or structure: A subordinate use, building or
structure customarily incidental to and located upon the same lot occupied
by the primary use, building, or structure, and located upon land zoned to
allow the primary use, building or structure; provided that a subordinate
use, building or structure customarily incidental to a primary farm use,
building or structure need not be located upon the same lot occupied by
the primary farm use, building, or structure.
Agriculture: An agricultural operation, the keeping of livestock or poultry,
or both, regardless of whether the keeping of livestock or poultry qualifies
as an agricultural operation. The term includes accessory processing
facilities for agricultural products grown or raised solely on the farm on
which the agriculture is located, such as fruit packing plants and dairies.
The term does not include any processing facilities permitted only by
special use permit.
Page 13
PRIMARY USE VERSUS ACCESSORY USE
Chapter 17-100 of the Albemarle County Land Use Law Handbook relating to
Classifying Primary Uses begins: The zoning administrator and, on appeals, the
BZA often must determine whether a particular use is permitted in a zoning
district, either as a primary(also referred to by some localities as a principal or
main) use or as an accessory use. (See Attachment X)
This is not an appeal of the letter of determination finding HELM to be primarily
an agricultural services occupation and a permitted by right use. However, the
issue of primary versus accessory use is central to this appeal. The Land Use
Law Handbook lists ten rules for classifying a use. Those relevant to this appeal
include:
• Use classifications should not be based on the proposed use's
proximity to other uses.
• Whether a use is appropriate in the district may not be considered.
• Use classifications must be based on legitimate land use
considerations, and not on illegitimate or personal reasons.
Each primary use allowed is accompanied by a range of accessory uses. For
example, a home is typically used for residing (eating, sleeping, living).
Accessory to residing are uses such as hosting a homeowners' association
meeting or a bible study. A longstanding administrative practice both here and is
typical elsewhere is that the majority (more than 50%) of the activity associated
with the use must be the primary use. Any accessory use, by Albemarle Zoning
Ordinance definition, must be subordinate.
Carter Hilliard has confirmed a conservative estimate is that at least 90% of the
work and income from HELM relates to farms and agricultural service. This
results in at most 10% of work and income deriving from residential services. By
any routine zoning determination, the residential use or landscaping use is
accessory.
RELEVANT VIRGINIA CODE
The Zoning Administrator's opinion is presumed correct and is given great weight
per VA Code § 15.2-2309(1). The appellant has the burden of proof to rebut the
presumption of correctness by a preponderance of evidence.
Page 14
SUMMARY OF FACTS
1. The property is zoned Rural Areas (RA), as identified on the official zoning
map.
2. Agricultural service occupation is a by -right use in the Rural Areas (RA)
zoning district per Section 10.2.1 (12). (See Attachment F.)
3. Agriculture is a by -right use in the Rural Areas (RA) zoning district per
Section 10.2.1 (3). (See Attachment F.)
4. Accessory uses and buildings are by -right uses n the Rural Areas (RA)
zoning district per Section 10.2.1 (7). (See Attachment G.)
5. The July 26, 2018 letter of determination found that the HELM business is
an agricultural service occupation, a by -right use. This decision was not
appealed and is "a thing decided."
6. The owner of HELM incurred substantial expenses and made significant
investments based on the letter of determination, including the
construction of a 4,500 square foot building for his business on the subject
property.
7. As a result of investigation, staff found that the activity conducted by the
HELM business is the same as described for the letter of determination.
8. The appellants have not substantiated their contention that the use is not
an agricultural service occupation but is instead a landscape contracting
business.
9. The appellant's contentions relating to the methodology of the
determinations, the traffic generated by the business and requirements of
the easement on the property — are not material to this appeal and are not
properly before the BZA.
HELM, An Agricultural Service Occupation
Section 10.1 Rural Areas Intent, Where Permitted lists the purpose of the Rural
Areas zoning district. The first listed purpose is: the preservation of agricultural
and forestal lands and activities. The Albemarle County Comprehensive Plan
lists "features expected in the Rural Areas include: 1. A strong agricultural and
forestal economy..." The Comprehensive Plan recognizes the conflicts between
agricultural and residential use. Agriculture can be messy and loud. For this
reason, Section 10.1 clarifies that "[w]here development does occur [in the Rural
Area], rural residents should expect to receive a lower level of service delivery
that will be provided to residential developments in designation growth areas."
Strategy 2a of the Comprehensive Plan includes the following narrative:
Using Rural Area land for residential uses is not the preferred use because it
results in loss of agricultural and forestal land and open space. It can also
create conflicts between residential uses and agricultural activities.
Livestock produces odors and noises. Application of fertilizer, especially manure,
on crops can produce smells that are offensive to non -farming residents,
especially when those residents are entertaining outdoors. Loud noises from
Page 15
outdoor events at residences or other nonagricultural activities can affect
livestock. Uses in the Rural Area can be unattractive and hunting activities
unacceptable to residents expecting a pristine residential experience. The Rural
Area is a home for those whose rural business is there. It has more than scenic
mountains and valleys that provide a beautiful place to live.
The Rural Areas is considered Albemarle County's agricultural zoning district. As
such, agriculture is permitted by -right. In addition, agricultural service occupation
has been permitted in Albemarle County since May 19,1976, to support those
involved in agriculture.
HELM primarily works on farms. For those farms that do not have farm
managers, the work they do is what a farm manager would do. HELM makes it
possible for many landowners to be engaged in agriculture who do not otherwise
have the capital or expertise to make it work. HELM helps preserve and maintain
a strong and viable agricultural and forestal tradition and economy in Albemarle.
The service that HELM does includes the following:
• Fencing
• Vineyard installation
• Mowing, bushhogging fields
• Pasture clearing and reclamation
• Seeding, reseeding
• Clearing invasive trees and thinning early successional growth
• Prescribed burn
• Building farm roads
• Installing automatic waterers for livestock
• Rental of equipment for work on farms
Photos of this activity are found in Attachment H. This activity as shown in the
photos includes planting a vineyard trellis (photo #3), tractor working in farm
fields (#8, 12 and 25), stream work (#10), prescribed burn (#14), fields being
planted (#32), installation of fencing (#44) and installation of an automatic
waterer in front of a barn (#46).
HELM equipment includes the following:
• Large tractors, up to 135 horsepower
• Bush hogs, including bat wings with up to a 15 foot wide cut
• Tractor implements
• Seed drills
• No -till planters
• Excavator
• Skidsteer
• Mowers
Page 16
• Chain saws
• Post drivers
Attachment I includes communication from two of HELM's customers. Each of
these customers own farms. Mr. Scott speaks from a 50 year involving in
Albemarle agriculture. He claims that HELM does "custom farming," a tradition
for many decades in Albemarle.
RESPONSE TO APPELLANT'S ARGUMENTS
1. The letter of determination (LOD) is erroneous.
The appellant confuses the issue by comingling concerns about the initial
determination process with the appeal of the Zoning Administrator's finding of
no violation now pending before the BZA. The letter of determination was
never timely appealed. It is final and is not before the BZA. Additionally, Mr.
Hilliard incurred significant expenses in reliance upon the determination.
Regardless, this matter involves the consideration of a by right use. Hilliard's
application described a plan for an agricultural service occupation. The
question before the BZA is the same as it was then: is HELM an agricultural
occupation? All of the information supports that it is.
2. HELM is NOT an agricultural service occupation.
The overwhelming majority of the evidence from all sources points towards
HELM being an agricultural services business. That evidence includes
Hilliard's application and statements, photographs of large-scale HELM farm
projects, testimonials from Albemarle farmers, observance of the operation,
the base of which is a 4,500 square foot building, and inspection of large
agricultural farm equipment. Ownership of the equipment is not material to a
determination of use. Staff followed standard procedure in fully investigating
these complaints. Staff confirmed that the activities proposed as the basis for
the letter of determination are the same as those conducted by HELM.
Therefore, this is an agricultural service occupation, a use permitted by -right
in this zoning district. Criticizing the investigation does not change the
conclusion that this is a by -right use and is, therefore, not a zoning violation.
3. The actual use IS a landscaping service.
This is the primary basis of the appeal and yet nothing substantiates this
claim. Claims that the investigation was inappropriate is not evidence
showing the primary or majority activity associated with HELM is a
landscaping service. Neither does is contradict the affirmative evidence
Page 17
that HELM is engaged in agricultural services. If HELM was truly
engaged primarily in residential landscaping, that evidence should be
clear and easy to provide. If that were the case, the website, the use
description, the facility, and the equipment would clearly be scaled for
residential and commercial customers. A 135 horsepower tractor and
bush hogs with a 15 foot wide cut are not associated with serving
residential and commercial customers. They serve agricultural operations.
Research both locally and elsewhere show that a landscaping service is
typically involved in lawn mowing, weeding, edging, mulching, pruning,
trimming for homeowners' associations, residential and commercial
customers. Residential customers are typically homes located on
properties in a Residential zoning district, not Rural Area.
Many residences located in Rural Areas, however, may be related to
agricultural uses. Albemarle County recognizes that a residence should
be allowed in association with agricultural property. A residence is
permitted to be constructed even on a rural preservation tract, created for
the maintenance and preservation of agricultural and forestal land and
activity (Section 10.3.3.1(c )). A residence for the farm manager, farm
laborer, an owner, or family member is commonplace on and can be
supportive of a farm. Doing work to maintain a farm house is not purely
residential landscaping service. It is related to agriculture.
Even if it were considered residential landscaping work, it is such a small
percentage of the work done by HELM that at most is a subordinate and
accessory use. The overwhelming primary use remains agricultural
service occupation.
CONCLUSION
The appellant has failed to provide a relevant and substantial basis for their
contention that HELM is primarily a landscape contracting business and that
HELM is in violation of the Albemarle County Zoning Ordinance. Instead, they
have attempted to re -open the letter of determination, an unappealed and final
decision. They have also confused the controlling issue with contentions that the
zoning investigation was improper and biased. Neither of these two approaches
is relevant to this appeal.
The zoning determination was correct and should be upheld.
AMM
ATTACHMENTS
Attachment A Location Map
Attachment B Letter of Determination (LOD 2018-08) dated July 26,
2018
Attachment C Email from Zoning Administrator to Goings finding No
Violation
Attachment D February 14, 2019 letter from Zoning Administrator to
David Thomas
Atttachment E Chapter 17 of the Albemarle County Land Use Law
Handbook
Attachment F Rural Areas District Use Regulations
Attachment G Zoning Ordinance Relevant Definitions
Attachment H Photos of HELM Activities
Attachment I HELM Customer Communication
Attachment J Emails from the Public
Page 19
AP2019-002 HELM
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Any determination of topography or contours, or any depiction of physical improvements, property lines or boundaries is for general information only and shall not be used for the design, modification, or construction of improvements to real property or for flood plain determination. May 17, 2019
Attachment B
County of Albemarle
Department of Community Development
July 26, 2018
Mr. H. Carter Hilliard
Hilliard Estate & Land Management, LLC
2315 Garth Lane
Charlottesville, VA 22901
RE: OFFICIAL DETERMINATION OF USE - Hilliard Estate & Land Management as Agricultural
Service Occupation (LOD 2018-08)
Mr. Hilliard,
Based on your request, staff examined the County's ordinance and previously approved agricultural
service occupation uses. In consultation with the County Attorney's Office, we have determined that
Hilliard Estate and Land Management (HELM) as described in your application's cover letter classifies
as an agricultural service occupation use.
Agricultural Service Occupation Use
County Code § 18-10.2.1(12) now permits agricultural service occupations as a by -right use in the
Rural Areas district, subject to the performance standards in County Code § 18-4.14. An agricultural
service occupation is defined in County Code § 18-3.1 as:
Agricultural service occupation: An occupation in which skill and expertise in some
agriculturally related field are applied to the service of others engaged in agriculture; provided
that sales of goods shall be limited to those incidental to the performing of a service.
Previous approvals for agricultural service occupations include a harness and farrier shop
(SP19780004) and an equine veterinary (SP197800011), prior to allowance of agricultural service
operations as by right uses in the Rural Areas. These two prior uses directly served and were only
applicable to those involved in agriculture. The Zoning Ordinance definition of agriculture includes "the
keeping of livestock or poultry, or both, regardless of whether the keeping of livestock or poultry
qualifies as an agricultural operation." A blacksmithing business (SP198500059) was determined to be
a by right agricultural service occupation in 1990, following a zoning text amendment allowing
agricultural service occupations as by right uses in the Rural Areas district.
Hilliard Estate & Land Management Services
Described Agricultural Services
The uses performed by Hilliard Estate & Land Management Services as described in your application
include: "bush hogging, tractor work, custom farming, pasture renovation & maintenance, landscape
maintenance & mowing of entire farms, fencing, and other farm & land management related activities."
With the exception of landscape maintenance, these described activities are directly related to
agriculture and the preservation of agricultural lands. The uses are similarly described in advertising
on the applicant's website at http://hilIiardmanagement.com/, as accessed on July 25, 2018.
July 26, 2018
Use Determination — HELM as Agricultural Service Operation
Page 2
Incidental Non -Agricultural Services
Landscape maintenance, as described in the business activities of Hilliard Estate & Land
Management, may in some cases not directly pertain to agricultural operations. While the landscape
maintenance described in your application is performed primarily on properties engaged in agricultural
operations, landscape maintenance in general may be classified under "Home and business services
such as grounds care, cleaning, exterminators, landscaping and other repair and maintenance
services," as described in County Code § 18-24.2.1(17). Additionally, you previously described
performing landscape maintenance on residential parcels for clients of your agricultural services. This
use is not directly related to agriculture, and is not a by -right use of Rural Areas properties.
However, due to its limited scope in the larger business operations of Hilliard Estate & Land
Management, landscape maintenance may be considered an incidental use accessory to the
business. The accessory use of landscape maintenance on non-agricultural properties, whether in the
Rural Areas or in Residentially Zoned Districts, must remain in proportion to the agricultural support
services provided by HELM. If this proportion changes significantly, the business will no longer be
classified as an agricultural service operation.
Summary
The nature of Hilliard Estate & Land Management is largely in support of agricultural operations and
the preservation of agricultural lands. As described in your application cover letter, with minimal non-
agricultural accessory landscape management services, Hilliard Estate & Land Management is
determined to be an agricultural service occupation, and a by -right use in the Rural Areas district. The
agricultural service occupations described in your letter are by right uses on all Rural Areas and
Monticello Historic District zoned parcels, and are allowed by special use permit on Village Residential
parcels.
You may have a right to appeal this determination within 30 days of this notice, in accordance with
Virginia Code § 15.2-2311. If you do not file a timely appeal, this determination shall be final and
unappealable.
An appeal may be taken only by filing an appeal application with the Zoning Administrator and the
Board of Zoning Appeals, in accordance with Albemarle County Code § 18-34.3, along with a fee of
$240 plus the actual cost of advertising the appeal for public hearing.
Applications for Appeal of the Zoning Administrator's Determination are available at the Department of
Community Development located at 401 McIntire Road, Charlottesville, Virginia 22902 or online at
www.albemarle.org/cdapps. This form applies to appeals of decisions of the zoning administrator or
any other administrative officer pertaining to the Zoning Ordinance.
Regulations pertaining to the filing of an appeal to the Board of Zoning Appeals are outlined in
Albemarle County Code § 18-34.3, which may be reviewed online at
www.albemarle.oro/countvcodebza.
Sincerely,
Cw►" y�i[��-� C
Amelia McCulley, A.I.C.P.
Zoning Administrator
Attachment C
From: Amelia McCulley
Sent: Friday, February 01, 2019 12:16 PM
To: 'RickGoings@Tupperware.com'
Cc: Diantha McKeel
Subject:Hilliard Estate and Land Management - 3214 Free Union Road
Attachments: Hilliard.pdf
Mr. Goings,
My name is Amelia McCulley and I'm the Albemarle County Zoning Administrator.
I hear and understand that you have multiple concerns about the Hilliard Estate and Land
Management use on this property. We have fully investigated the complaints you have filed
with this office relating to 3214 Free Union Road on County Tax Map 29 Parcel 76.
Based on inspections of the property and the evidence available, it is my finding that neither
the current use nor the current structure under construction are in violation of the Albemarle
County Zoning Ordinance. The use has been approved as an agricultural service occupation,
a use permitted by -right in the Rural Areas zoning district. Please see the attached
determination letter for this use.
Concerns about the entrance onto the public road are handled by the Virginia Department of
Transportation. This concern can be discussed with Willis Bedsaul at
willis.bedsaul@vdot.virginia.gov, Ph# 434-422-9866 Cell# 540-219-5492.
Concerns about compliance with the terms and conditions of the Virginia Outdoor Foundations
(VOF) easement can be addressed directly with VOF. You can contact Sherry Buttrick,
Assistant Director of Easements, 434-293-3423, sbuttrick@vofonline.org
While I realize this isn't the answer you were seeking, I wanted to be as prompt as possible in
providing a response to you.
� OF AL
JRGINIP
COUNTY OF ALBEMARLE
Department of Community Development
401 McIntire Road, North Wing
Charlottesville, Virginia 22902-4596
Phone (434) 296-5832 Fax (434) 972-4126
February 14, 2019
David W. Thomas, Esq
Michie Hamlett Attorneys at Law
P.O. Box 298
Charlottesville, VA 22902-0298
Re: Hilliard Estate & Land Management
Parcel 29-76 (3214 Free Union Road)
Dear Mr. Thomas,
Thank you for your letter of February 4. You questioned both the County's letter of
determination LOD 2018-08 (issued prospectively) regarding the above -named Subject
Property, and the Subject Property's subsequent compliance with the Zoning
Ordinance.
Like any prospective use determination, LOD 2018-08 was based on and limited to a
hypothetical set of described facts. In preparing prospective use determinations,. the
County does not investigate the actual uses then occurring on a property, but instead
determines whether certain use(s), as described, would be permitted. Please note the
repeated references to "described" uses highlighted in the attached determination letter.
As a result, I stand by that original use determination, which is already final and
unappealable.
Furthermore, we have fully investigated Mr. Goings' subsequent e-mailed complaints
alleging zoning violations on the Subject Property. As noted in my prior e-mail to Mr.
Goings (attached), based on recent inspections of the Subject Property and the
evidence available, it is my determination that neither the current use nor the structure
currently under construction is in violation of the Albemarle County Zoning
Ordinance. The use has been approved as an agricultural service occupation, a use
permitted by -right in the Rural Areas zoning district.
Because Mr. Goings' complaints relate also to other agencies and organizations, I am
providing their contact information. Concerns about the entrance onto the public road
are handled by the Virginia Department of Transportation. This concern can be
discussed with Willis Bedsaul at willis.bedsaul(a)-vdot.virginia.gov (Ph# 434-422-9866
Cell# 540-219-5492).
Concerns about compliance with the terms and conditions of the Virginia Outdoor
Foundations (VOF) easement can be addressed directly with VOF, whose contact is
Sherry Buttrick, Assistant Director of Easements, 434-293-
3423, sbuttrick(o-),vofon line. org
Anyone aggrieved by this determination may appeal it within thirty (30) days of this
notice, in accordance with Virginia Code § 15.2-2311. Any determination not so
appealed is final and unappealable.
An appeal may be taken only by filing an appeal application with the Zoning
Administrator and the Board of Zoning Appeals, in accordance Section 34.3 of the
Zoning Ordinance, along with a fee of $258 plus the actual cost of advertising the
appeal for public hearing.
Applications for Appeal of the Zoning Administrator's Determination are available at the
Department of Community Development located at 401 McIntire Road, Charlottesville,
Virginia 22902 or online at www.albemarle.org/cdapps. This form applies to the appeal
of a decision of the zoning administrator or any other administrative officer pertaining to
the Zoning Ordinance.
Regulations pertaining to Zoning Appeals may be found in Section 34.3 of the Zoning
Ordinance, available online at www.albemarle.org/countycodebza.
If you have additional questions, please do not hesitate to contact me.
Sincerely,
4 r
Amelia G. McCulley, A.I.C.P.
Zoning Administrator
Cc: John H Birdsall, III & Mary Scott Blake Birdsall, Trustees
Mr. H. Carter Hilliard
County of Albemarle
Department of Community Development
July 26, 2018
Mr. H. Carter Hilliard
Hilliard Estate & Land Management, LLC
2315 Garth Lane
Charlottesville, VA 22901
RE: OFFICIAL DETERMINATION OF USE - Hilliard Estate & Land Management as Agricultural
Service Occupation (LOD 2018-08)
Mr. Hilliard,
Based on your request, staff examined the County's ordinance and previously approved agricultural
service occupation uses. In consultation with the County Attorney's Office, we have determined that
Hilliard Estate and Land Management (HELM) as described in your application's cover letter classifies
as an agricultural service occupation use.
Agricultural Service Occupation Use
County Code § 18-10.2.1(12) now permits agricultural service occupations as a by -right use in the
Rural Areas district, subject to the performance standards in County Code § 18-4.14. An agricultural
service occupation is defined in County Code § 18-3.1 as:
Agricultural service occupation: An occupation in which skill and expertise in some
agriculturally related field are applied to the service of others engaged in agriculture; provided
that sales of goods shall be limited to those incidental to the performing of a service.
Previous approvals for agricultural service occupations include a harness and farrier shop
(SP19780004) and an equine veterinary (SP197800011), prior to allowance of agricultural service
operations as by right uses in the Rural Areas. These two prior uses directly served and were only
applicable to those involved in agriculture. The Zoning Ordinance definition of agriculture includes "the
keeping of livestock or poultry, or both, regardless of whether the keeping of livestock or poultry
qualifies as an agricultural operation." A blacksmithing business (SP198500059) was determined to be
a by right agricultural service occupation in 1990, following a zoning text amendment allowing
agricultural service occupations as by right uses in the Rural Areas district.
Hilliard Estate & Land Management Services
Described Agricultural Services
The uses performed by Hilliard Estate & Land Management Services as described in your application
include: "bush hogging, tractor work, custom farming, pasture renovation & maintenance, landscape
maintenance & mowing of entire farms, fencing, and other farm & land management related activities."
With the exception of landscape maintenance, these described activities are directly related to
agriculture and the preservation of agricultural lands. The uses are similarly described in advertising
on the applicant's website at http://hilliardmanagement.com/, as accessed on July 25, 2018.
July 26, 2018
Use Determination - HELM as Agricultural Service Operation
Page 2
Incidental Non -Agricultural Services
Landscape maintenance, as described in the business activities of Hilliard Estate & Land
Management, may in some cases not directly pertain to agricultural operations. While the landscape
maintenance described in your application is performed primarily on properties engaged in agricultural
operations, landscape maintenance in general may be classified under "Home and business services
such as grounds care, cleaning, exterminators, landscaping and other repair and maintenance
services," as described in County Code § 18-24.2.1(17). Additionally, you previously described
performing landscape maintenance on residential parcels for clients of your agricultural services. This
use is not directly related to agriculture, and is not a by -right use of Rural Areas properties.
However, due to its limited scope in the larger business operations of Hilliard Estate & Land
Management, landscape maintenance may be considered an incidental use accessory to the
business. The accessory use of landscape maintenance on non-agricultural properties, whether in the
Rural Areas or in Residentially Zoned Districts, must remain in proportion to the agricultural support
services provided by HELM. If this proportion changes significantly, the business will no longer be
classified as an agricultural service operation.
Summary
The nature of Hilliard Estate & Land Management is largely in support of agricultural operations and
the preservation of agricultural lands. As described in your application cover letter, with minimal non-
agricultural accessory landscape management services, Hilliard Estate & Land Management is
determined to be an agricultural service occupation, and a by -right use in the Rural Areas district. The
agricultural service occupations described in your letter are by right uses on all Rural Areas and
Monticello Historic District zoned parcels, and are allowed by special use permit on Village Residential
parcels.
You may have a right to appeal this determination within 30 days of this notice, in accordance with
Virginia Code § 15.2-2311. If you do not file a timely appeal, this determination shall be final and
unappealable.
An appeal may be taken only by filing an appeal application with the Zoning Administrator and the
Board of Zoning Appeals, in accordance with Albemarle County Code § 18-34.3, along with a fee of
$240 plus the actual cost of advertising the appeal for public hearing.
Applications for Appeal of the Zoning Administrator's Determination are available at the Department of
Community Development located at 401 McIntire Road, Charlottesville, Virginia 22902 or online at
www.albemarle.org/cdapps. This form applies to appeals of decisions of the zoning administrator or
any other administrative officer pertaining to the Zoning Ordinance.
Regulations pertaining to the filing of an appeal to the Board of Zoning Appeals are outlined in
Albemarle County Code § 18-34.3, which may be reviewed online at
www.albemarle.ora/countvcodebza.
Sincerely,
Amelia McCulley, A. I. C.P.
Zoning Administrator
Chapter 17
Classifying Primary Uses and
Determining Whether a Use is an Accessory Use
17-100 Introduction
Attachment E
The zoning administrator and, on appeals, the BZA often must determine whether a particular use is permitted
in a zoning district, either as a primary (also referred to by some localities as a principal or main) use or as an accessory
use. This chapter examines some of the key rules that apply to these determinations.
There are two types of zoning ordinances: (1) the inclusive or permissive type (hereinafter, collectively,
"inclusive"), which permits only those primary uses specifically named; and (2ch) the exclusive type, which prohibits
specified uses and permits all others. TFiley P. Hanover County, 209 Va. 153, 163 S.E.2d 160 (1968); see also Board of
Supervisors of Madison County v. Gaffney, 244 Va. 545, 422 S.E.2d 760 (1992) (nudist club not allowed in conservation
zoning district because not specifically permitted in district regulations). A zoning ordinance also may use both
forms. Wiley, supra.
With an inclusive ordinance, the burden is on the landowner to show that a proposed primary use is permitted.
Board of Supervisors of Fairfax County P. Board of Zoning Appeals of Fairfax County, 271 Va. 336, 626 S.E.2d 374 (2006);
Fairfax County P. Parker, 186 Va. 675, 44 S.E.2d 9 (1947). With an exclusive ordinance, the burden is on the locality to
show that a use is not permitted, or that it falls within a classification that is excluded. Parker, supra.
The inclusive ordinance appears to be the more modern approach to zoning and is the more common type of
zoning ordinance in Virginia.
17-200 Rules for classifying uses
Classifying a use means determining whether a particular use or activity fits within one of the uses specifically
permitted by right or by special use permit in an inclusive zoning ordinance, or as one of those prohibited in an
exclusive zoning ordinance. The classification of a use requires the exercise of discretion. Ancient Art Tattoo Studio v.
City of Virginia Beach, 263 Va. 593, 561 S.E.2d 690 (2002).
Ten Rules for Classifying a Use
• When the use regulations are ambiguous, use classifications will likely be strictly construed in favor of the landowner.
• Refer to and rely on the definitions in the zoning ordinance.
• When classifying a use, all possible uses within the district should be considered.
• Use classifications should not be based on the proposed use's proximity to other uses.
• The activity itself, not the activity's accoutrements, determine the type of use.
• Whether a use is appropriate in the district may not be considered.
• Use classifications must be based on legitimate land use considerations, and not on illegitimate or personal reasons.
• For uses of structures, look to their function rather than their form.
• The use itself, not the owner or the nature of the owner, should determine the classification.
• When the use regulations are ambiguous, the purpose and intent of the district should be considered.
To classify a use, in addition to applying the rules for interpreting statutes and ordinances (see chapter 16), the
following rules should be considered as well:
• Use classifications will likely be stnayconstrued in favor of the landowner.• The rule that prevails in most jurisdictions, at
least in the absence of any statute to the contrary, is that because zoning ordinances are in derogation of the
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common law and operate to deprive an owner of a use thereof which otherwise would be lawful, they should be
strictly construed in favor of the property owner. 83 Am. Jur. 2d, Zoning and Planning, § 699; see, e.g., Young v. Town
of Vienna, 203 Va. 265, 123 S.E.2d 388 (1962) (revenue ordinance must be strictly construed); Mitchem v. Counts,
259 Va. 179, 523 S.E.2d 246 (2000). In the context of classifying uses, this rule means that the zoning
administrator and the BZA should not read an implied prohibition of a particular use into a use classification.
Keefer to and rely on the definitions in the Zoning ordinance. Most zoning ordinances include definitions of many, if not
all, use classifications. If a use is defined in the zoning ordinance, that definition must be applied. In Coston V.
Norfolk Board of Zoning Appeals, 81 Va. Cir. 152 (2010), the petitioner challenged the BZA's decision that a
moped was an automobile under the definition of "automobile" in the zoning ordinance, and therefore his
moped sales use was not allowed in the C-1 zoning district. The circuit court upheld the BZA's interpretation
because the definition included "any vehicle propelled by its own motor and operating on ordinary roads" and
the definition included "motor scooters, motorized bicycles and the like." The court also concluded that the
zoning ordinance definition was not in conflict with any State definition of the term.
When classing a use, all possible uses within the district should be considered. Although it may seem obvious, determining
that a use is not allowed in a district because it does not fit within one use classification does not mean that it
may not be allowed under another classification. In Buckley v. Zoning Appeals Board, 59 Va. Cir. 150 (2002), the
circuit court held that the zoning administrator and the BZA erred when it determined that the landowner's
proposed use was not allowed in the zoning district because it was a distribution facility (defined to mean "the
intake of goods and merchandise, the short term storage of such goods or merchandise, and/or the breaking up
into lots or parcels and the shipment off -site of such goods and merchandise"), a use that was not allowed in the
A-3 zoning district. The landowner sorted and hauled unprocessed felled trees. The court concluded that even if
the logs were goods as used in the definition of distribution facility, the use also was a logyard (defined to mean "a
location where unprocessed felled trees are taken, sorted by grade and species, and hauled to prospective
purchasers"), which was an agricultural, forestry and silvicultural use allowed by right in the A-3 zoning district.
In CL 11-93 & CL 1141, opinion letter dated November 28, 2011, the circuit court concluded that the BZA
erred when it found that the landowner's proposed taxi detailing use was a by right use in the C-3 zoning
district, thereby reversing the decision of the zoning administrator that the proposed use required a permit. The
BZA had concluded that the proposed use fell within the by -right "similar to other by -right uses" catch-all
classification. Instead, the court concluded that the zoning administrator had correctly determined that the use
fell within the "vehicle service establishment" use classification, which required a permit.
Use classifications should not be based on the proposed uses proximity to other uses: In Deefield Medical Center P. City of
Deeijield Beach, 661 F.2d 328 (511, Cir. (former) 1981), plaintiff sought to establish a medical facility providing
abortion services. The city determined that the proposed facility was not allowed in the zoning district and
justified its decision because of the proposed use's proximity to single family residences, churches and schools.
The court found that the city's reliance on the proposed facility's proximity to these other uses to classify the
use was impermissible.
• The activity itself, not the activity's equpment and materials, determine the type of use: General use classifications such as
agricultural or commercial can sometimes be problematic because those terms, even if defined, are broad in scope
and likely come with a number of assumptions. For example, in determining whether a landscaping business is
an agricultural or a commercial use, the zoning administrator would err if he simply followed this analysis:
Landscaping business —* Plant stock and small tractors --+ Agricultural use
The equipment and materials of the landscaping business — plant stock and small tractors — do not in and of
themselves, determine whether the use is agricultural or commercial. In fact, continuing with the landscaping
business example, the courts have uniformly concluded that a landscaping business is not an agricultural use
where the business had a number of employees who worked off -site, the plant stock was stored on the property
to be used in landscaping jobs, and equipment stored on the property was used in the landscaping jobs. See, e.g.,
Town of Needbam v. Winslow Nurseries, Inc., 330 Mass. 95 (1953); Petitti v. Plain Township Board of Zoning Appeals, 2003
Ohio 8449 (2003) (unpublished); Winnebago County P. Wilson, 98-3114 (Wis. Ct. App. 1999) (unpublished).
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• WIbether a use is appropriate in the district may not be considered: The determination of what uses are appropriate within
a particular zoning district is a legislative function reserved to the locality's governing body. Board of Supervisors of
Fairfax County v. Southland Corp., 224 Va. 514, 297 S.E.2d 718 (1982). Thus, the role of the zoning administrator
and the BZA is not to determine what types of uses they feel are appropriate in the zoning district, but only to
give meaning to the use classifications the governing body has decided to allow in the district.
Use classifications must be based on legitimate land use considerations, and not on illegitimate orpersonal reasons: A use
classification should not be based or swayed by illegitimate or personal reasons. Marks v. City of Chesapeake, 883
F.2d 308 (4th Cir. 1989). Marks is instructional even though it is not a use classification case. In Marks, a palmist
sought a conditional use permit and the city initially supported granting the permit. However, after certain local
citizens displayed overt religious hostility to the presence of the palmist, the city council denied the permit. The
federal court of appeals concluded that the city council had improperly denied the permit. The court said that
the public's negative attitudes, or fears, unsubstantiated by factors which are properly cognizable in a zoning
proceeding, were not permissible bases for a land use decision. In P.L.S. Partners, Wlomen's Medical Center of Rhode
Island, Inc. P. City of Cranston, 696 F. Supp. 788 (D.R.I. 1988), the center obtained a building permit for a "health
care facility," a use allowed by right in the underlying zoning district. When residents complained that the center
would be providing abortions, the zoning inspector changed the use classification to "hospital," a use that
required a special use permit. The center brought a civil rights action. The court held that singling out abortion
services for special treatment under the zoning ordinance by classifying the use as a hospital rather than as a
health care facility violated equal protection. The city had classified emergency centers, out -patient clinics, and
physician's offices that performed other minor surgical procedures as health care facilities.
• For uses of structures, look to their function rather than their form: Generally, the function, rather than the form, of a
structure is relevant to defining the use under the zoning ordinance. Fritts v. Carolinas Cement Company, 262 Va.
401, 551 S.E.2d 336 (2001) ("silos" used as warehouses were properly classified as a warehouse use).
• The use itself, not the owner or the nature of the owner, should determine the classification: Ownership does not determine
how a use is classified. Maxey P. Board of Zoning Appeals, 480 N.E.3d 589 (Ind. App. 1985); Gallagher P. Zoning
Board ofAdjustment, 32 Pa D&C 669 (1963) (proposal to use single-family dwelling for religious broadcasting is
not a church).
• Consider the purpose and intent of the distrid : When the use regulations are ambiguous, the purpose and intent of the
zoning district and the nature of the uses allowed by -right and by special use permit should be considered to
understand the zoning district.
• Consider the legislative history. The legislative history may provide evidence as to whether a particular use is allowed
in the district or allowed by a special use permit. In Virginia Pgchiatric Co. v. Zoning Appeals Board of Fairfax County,
47 Va. Cir. 36 (1998), the circuit court considered the record of the BZA hearing when it granted a special use
permit for a nursing home in affirming a later decision by the BZA that a residential treatment facility was not
within the scope of the original permit.
One Wav to Reduce the Need to Classifv Uses
• The traditional way in which uses have been classified in a particular zoning district has been to list in the district
regulations the uses that are allowed by right and by special use permit. For example, a commercial zoning district's
regulations might list dozens of retail sales shops with great specificity — gifts shops, clothing shops, shoe shops,
department stores, drug stores, stores selling musical instruments, stores selling photography equipment, and so on. If
someone proposes to sell something not included in the list, the zoning administrator must determine whether it is
allowed.
• Consider replacing the traditional list with broad, defined, categories such as "retail sales."
This list of rules is not exhaustive. The first task for the zoning administrator and the BZA when classifying a
use is to read the language in the zoning ordinance and apply a reasonable interpretation using the plain and natural
meaning of the terms used, within the context they are used.
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The classification of some uses is self-evident and simple. Other uses may not easily fit into a classification or
may be difficult to classify, such as when the use is conducted indoors or in a difficult -to -observe location, the use is
conducted in a manner in which its impacts are outside of the normal hours when the zoning official can observe
the activities (eg., overnight storage of equipment), or when the landowner or occupant is conducting the use in a
manner that prevents it from being easily classified.
The zoning official must collect information that will allow her to make an informed decision as to how a use
should be classified. In order to collect the necessary information, it is suggested that she look to the following
sources:
ollecting Information to Classify a Use
• Ask the owner to describe the nature of its activities in writing.
• Ask the owner for permission to enter the property or buildings to observe the activities; if permission is denied, seek an
administrative search warrant to conduct an inspection to determine whether the use is permitted in the zoning district.
• Interview neighbors.
• Observe the use at various times of the day and week to understand its dimensions.
• For commercial and industrial uses, collect descriptions of the use from telephone book and newspaper advertisements
or the business's website.
• For suspected commercial and industrial uses that you question whether they are being forthright in their descriptions of
their use, conduct an internet search of the business.
• For certain uses, search State records for state -issued permits (e.g., permit issued for a trash hauler) and licenses (e.g., a
Class A contractor's license).
• Search court records and published court decisions involving the person or business for descriptions of the nature of the
activities.
17-300 Accessory uses
Each primary use allowed is accompanied by a range of accessory uses. The issue of whether a use is an
accessory use arises in various situations. For example, a landowner may claim that a use not otherwise allowed in
the zoning district as a primary use is, in fact, accessory use to a permitted primary use.
Because a limited number of Virginia cases have considered the issue of accessory uses, this section relies
heavily on cases from other states. A short survey of uses that have been found or not been found to be accessory
follows section 17-324.
17-310 The nature of accessory uses
An accessory use is commonly defined to be a use that is subordinate and customarily incidental to the primary
use. See Wiley v. County of Hanover, 209 Va. 153, 157, 163 S.E.2d 160, 163 (1968). For example, Albemarle County
defines an "accessory use, building or structure" to mean "[a] subordinate use, building or structure customarily
incidental to and located upon the same lot occupied by the primary use, building, or structure, and located upon
land zoned to allow the primary use, building or structure provided that a subordinate use, building or structure
customarily incidental to a primary farm use, building or structure need not be located upon the same lot occupied
by the primary farm use, building, or structure." Albemarle County Code f 18-3.1. In addition, a locality may expressly
delineate those uses that it deems to be accessory. See, e.g., Carter v. Bavuso, 2014 WL 3510293 (2014) (Virginia.
Supreme Court, unpublished).
"The rule of accessory use is a response to the impossibility of providing expressly by zoning ordinance for
every possible lawful use. Even though a given use of land is not explicitly allowed, it is nonetheless permissible if it
may be said to be accessory to a use that is expressly permitted." Town of Salem v. Durrett, 125 N.H. 29, 32, 480 A.2d
9, 10 (1984). An accessory use "must be one `so necessary or commonly to be expected that it cannot be supposed
that the ordinance was intended to prevent it." Wbaleg v. Dorchester County Zoning Board ofAppeals, 337 S.C. 568, 579,
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524 S.E.2d 404, 410 (1994) (parking 18-wheel truck overnight and on weekends at owner's home was not an
accessory use on a residentially -zoned parcel). The Alaska Supreme Court has observed that the accessory use cases
throughout the United States "uniformly give accessory use a fairly narrow meaning." Dykstra v. Municipality of
Anchorage, 83 P.3d 7,10 (2004).
17-320 The key criteria for determining whether a use is accessory
The two key criteria for determining whether a use is accessory are whether the use is subordinate to a lawful
primary use and whether it is customaiiyincidental to a primary use. These key requirements are commonly used terms
to define accessory use in zoning ordinances throughout the United States, and are discussed at length in the following
sections. Whether a use is accessory is a matter to be determined from the evidence. Wiley v. County of Hanover, 209
Va. 153,163 S.E.2d 160 (1968).
17-321 The use must be subordinate to the primary use
A landowner claiming that a use is accessory must first demonstrate that the use is subordinate to an identified
primary use. The term subordinate is defined by Wlebster's Dictionary to mean "placed in or occupying a lower class or
rank: inferior." A subordinate use incorporates the requirement that the accessory use be minor in relation to the
permitted primary use. Dykstra P. Municipality of Anchorage, 83 P.3d 7 (2004); Becker P. Town of Hampton Falls, 117 N.H.
437, 374 A.2d 653 (1977).
ommon Factors to Consider in Determining Whether a Use is Subordinate —Moppri
• Area devoted to the use.
• Frequency of the use.
• Active versus passive activities.
• Number of employees and work hours.
• Whether the use is truly subordinate to the primary use or whether it is a different, alternative, additional use.
The relevant factors in determining whether a particular use is subordinate to a primary use will depend on the
circumstances. Following are some of the factors that should be considered:
Area devoted to the use: The area devoted to the use in relation to the primary use should be considered. However,
the fact that a use occupies less area than the primary use does not necessarily make it subordinate, and the fact
that a use occupies more area than the primary use does not necessarily preclude it from being subordinate. For
example, on a 1-acre lot with a primary residential use, gardening would nonetheless be subordinate to the
primary use even though the gardened portion of the lot may consume more than 90% of the lot's area. In
McLane v. Wiseman, 84 Va. Cir. 10 (2011), the fact that inoperable or junk vehicles occupied a large portion of
the landowner's residentially -zoned parcel was a key factor in the court concluding that the vehicles were not
accessory to the primary residential use. In Gavis v. Board of Zoning Appeals of the City of Winchester, 1985 WL
306753 (1985), the circuit court found that proposed garage and storage facilities that would be 41% the floor
space of the four apartments the facilities would purportedly serve were not accessory where the average in the
city for storage space was less than 10% of the floor space and, therefore, the proposed garage and storage
facilities were not a customary or incidental use.
• Frequency of the use: The time devoted to the use in relation to the primary use may be a relevant consideration.
Orion Sporting Group, LLC P. Board of Supervisors of Nelson County, 68 Va. Cir. 195 (2005) (sporting clays facility was
a year -around activity; hunting preserve limited to eight months per year). A seasonal activity, in relation to a
year -around primary use, would likely be considered to be subordinate to the primary use. Conversely, a
purported year -around accessory use would not be subordinate to a seasonal primary use.
• Active versus passive activities: The relative intensity of the use, and the resulting impacts on the land and the
neighboring properties, should be considered. For example, as between a landscaping business and a nursery,
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the landscaping business is often the more intense use because it may have a business office, employees and
landscaping vehicles and equipment coming and going, as well as a storage yard where landscaping equipment
and materials are stored and equipment is maintained. A nursery, on the other hand, may be limited to an area
where plants are stored and watered until they can be used in the landscaping work.
Number of employees and work hours: The number of employees assigned to a use may be a relevant consideration.
Although in most cases one may expect that the accessory use will have fewer employees than the primary use,
that is not always the case. For example, a primary equipment storage yard use may have a single employee
assigned to work on storage -related activities. However, the maintenance of the stored equipment could be
considered to be a permitted subordinate use, even though there are more employees performing equipment
maintenance work.
Whether the use is truly subordinate to the primary use or whether it is a different, alternative, additional use: The use must truly
be subordinate to the primary use and not simply be a different, alternative or additional use. For example, in
Orion Sporting Group, LLC, supra, the circuit court found that a proposed sporting clays facility was not
subordinate to a hunting preserve because the evidence showed that the sporting clays facility was a different
and alternative use for those who did not wish to participate in hunting. The court found that the sporting clays
facility was a separate primary use of the property. In McLane P. Wiseman, 84 Va. Cir. 10 (2011), the court
affirmed the decision of the BZA that the storage and maintenance of inoperable or junk vehicles on a
residentially -zoned parcel was an alternative use to the residence, not a subordinate use, because of the
landowner's purpose in having the vehicles and the area occupied or extent of the vehicles.
As part of this analysis, recognize that multiple uses on a parcel may each be classified as primary uses — some of
which may be permitted in the zoning district, some of which may not be.
17-322 The use must be customarily incidental to the primary use
A landowner claiming that a use is accessory must next demonstrate that the use is cuslomariyincidental to the
primary use. Although the Virginia courts have not examined the meaning of this commonly used term, the courts
from other states have considered it on numerous occasions. In general, a use that is customafiyincidental to a primary
use implies that the use flows from, naturally derives or follows as a logical consequence of, or is a normal and
expected offshoot from the primary use. Town of Alta v. Ben Hame Corporation, 836 P.2d 797 (Utah Ct. App. 1992)
(boarding houses, lodging houses, hotels are not accessory to permitted primary use in agricultural -residential zoning
district). Some courts have said that the terms customatiyand incidental, though often linked in definitions of accessory
use, impose distinct requirements that warrant separate analysis.
17-323 The meaning of the word customarily
A customarily incidental use is one that has "commonly, habitually, and by long practice been established as
reasonably associated with the primary ... use." Becker v. Town of Hampton Falls, 117 N.H. 437, 441, 374 A.2d 653,
655 (1977) (holding that a barn constructed to house heavy construction equipment on residentially zoned land was
not accessory to primary residential use); Lawrence v. Zoning Board of Appeals of the Town of North Branford, 158 Conn.
509, 264 A.2d 552 (1969); Carmel v. City of Old Town, 2001 Me. Super. LEXIS 24, 2001 WL 1719191 (2001); McKinney
P. Kent County Board ofAdjustment,1995 Del. Super. LEXIS 83, 1995 WL 109032 (1995).
Although a rare association of uses cannot qualify as customary, the uses need not be joined in a majority of the
instances of the primary use. Town of Salem v. Durrett, 125 N.H. 29, 480 A.2d 9 (1984); Southco, Inc. v. Concord Township,
552 Pa. 66, 713 A.2d 607 (1998) (a use may be customarily incidental to a primary use even where there is no
evidence that a majority, or even a substantial number, of similar properties are engaged in a similar accessory use).
However, the lawful occurrence of the use must be more than unique or rare. Lawrence, supra. The use must be
"common enough so that it can be said to be a known and accepted incidental use." County of Lake P. La Salle
National Bank, 76 Ill. App. 3d 179, 182, 395 N.E.2d 392, 394 (1979) (determining whether a trailer for a
groundskeeper's sleeping quarters was accessory to the operation of a golf course). In other words, a use is customarily
incidental "when it is so necessary or so commonly to be expected in connection with the main use that it cannot be
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supposed that the ordinance was intended to prevent it." Grandview Baptist Church v. Zoning Board of Adjustment, 301
N.W.2d 704, 708-709 (1981) (holding that 32 by 42 foot steel storage building was not accessory to a church in a
residential zoning district; of 50 churches examined, it was the only one with a steel storage building).
Common Factors to Consider in Determining Whether a Use is Customary
• The size of the parcel.
• The nature of the primary use of the parcel.
• The use made of the adjacent parcels.
• The economic structure of the area.
• Whether the proposed use is customary within the locality and the region.
Some of the factors that are relevant to determining custom are the size of the parcel in question, the nature of
the primary use of the parcel, the use made of the adjacent parcels and the economic structure of the area. Lawrence,
supra. The zoning administrator and the BZA need to determine whether the proposed use is customary within the
locality and the region. For example, the kinds of uses that are commonly, habitually and by long practice established
as uses that are reasonably associated with a residential use include garages, swimming pools, decks, gazebos, small
sheds and small-scale gardening; the kinds of uses that are commonly, habitually and by long practice established as
uses that are reasonably associated with an agricultural use include barns, sheds, silos, the storage of farm equipment
and machinery, and the raising of crops and livestock.
17-324 The meaning of the word incidental
The term incidental incorporates "the concept of [a] reasonable relationship with the primary use. It is not
enough that the use be subordinate; it must also be attendant or concomitant. To ignore this latter aspect of
`incidental' would be to permit any use which is not primary, no matter how unrelated it is to the primary use."
Lawrence P. Zoning Board ofAppeals of the Town of North Branford, 158 Conn. 509, 512, 264 A.2d 552, 554 (1969); Henry P.
Board ofAppeals of Dunstable, 418 Mass. 841, 641 N.E.2d 1334 (1994) (gravel removal for commercial purposes was
not accessory to a permitted agricultural use, even though the removal of the gravel would allow creation of a
Christmas tree farm).
Survey of Uses Found to be and not to be Customarily Incidental
Customarily Incidental
Not Customarily Incidental
geon house customarily incidental to a
1209
Sporting clays facility not customarily incidental to a hunting preserve. Orion
mily dwelling. Wiley v. County of Hanover,
Sporting Group, LLC P. Board of Supervisors of Nelson County, 68 Va. Cit. 195 (2005).
Va. 153, 163 S.E.2d 160 (1968).
Storage and maintenance of inoperable or junk vehicles on a residentially -zoned
Storage of decommissioned trucks as
parcel not customarily incidental to residential use given the purpose for the
sources of parts customarily incidental to
vehicles and the area occupied by the vehicles. McLane v. Wiseman, 84 Va. Cit.
a milk trucking. County Commissioners of
10 (2011).
Carroll County v. Zent, 86 Md. App. 745,
587 A.2d 1205 (1991).
Outside storage of goods, materials, and equipment composed of appliances,
pieces of wood, pipes, and other miscellaneous items, on property zoned Retail
Crematorium customarily incidental to a
Commercial was not customarily incidental to a primary use because it was not
cemetery. McCormick v. City of Alexandria
stock or inventory of the business. Vaughn v. City of Newport News, 20 Va. App.
Bd. of Zoning Appeals, 5 Va. Cir. 313 (1986);
530, 531-532, 458 S.E.2d 591, 591-592 (1995)
Laurel Lawn Cemetery Association v. Zoning
Board ofAdjustment of Towship of Upper
Proposed garage and storage facilities that would be 41% the floor spaces of the
Deerjzeld, 226 NJ. Super. 649, 545 A.2d
four apartments they would purportedly serve were not accessory where the
253 (1988).
average in the city for storage space was less than 10% of the floor space and,
therefore, the proposed garage and storage facilities were not a customary or
Stone crushing customarily incidental to a
incidental use. Gavis v. Board of Zoning Appeals of the City of Winchester, 1985 WL
quarry. James H. Maloy, Inc. P. Town Board of
306753 (1985).
Guilderland, 92 A.D. 2d 1056, 461
Parking 18-wheel truck overnight and on weekends at owner's home on
N.Y.S.2d 529 (1983).
residentially -zoned land not customarily incidental to a residential use. Whaley v.
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Survey of Uses Found to be and not to be Customarily Incidental
Customarily Incidental
Not Customarily Incidental
Heliport customarily incidental to a
Dorchester County Zoning Board of Appeals, 337 S.C. 568, 524 S.E.2d 404 (1994).
construction business. State v. P.T. &L.
Construction Co., Inc., 77 N.J. 20, 389 A.2d
Boarding houses, lodging houses, hotels not customarily incidental to a
448 (1978).
permitted primary use in agricultural -residential zoning district. Town of Alta v.
Ben Hame Corporation, 836 P.2d 797 (Utah Ct. App. 1992).
Toilet customarily incidental to a
campground. Hardy P. Zoning Board of
Barn constructed to house heavy construction equipment on residentially zoned
Review of Town of Coventry, 119 R.I. 533, 382
land not customarily incidental to a residential use. Becker v. Town of Hampton
A.2d 520 (1977).
Falls, 117 N.H. 437, 441, 374 A.2d 653, 655 (1977).
Restaurant customarily incidental to a
32 by 42 foot steel storage building not customarily incidental to a church in a
bowling alley. Gross v. Zoning Board of
residential zoning district. Grandview Baptist Church v. Zoning Board ofAdjustment,
Adjustment of City of Philadelphia, 424 Pa.
301 N.W.2d 704 (1981).
603, 227 A.2d 824 (1967).
Sleeping quarters for employees not customarily incidental to a restaurant.
Day care center operated "for the
Charlie Brown of Chatham, Inc. P. Board ofAdjustment for Chatham Townsh p, 202 N.J.
instruction and education of the children
Super. 312, 495 A.2d 119 (App. Div. 1985).
who attend," and which was "viewed by
the pastor, by the employees, and
Shredding and storage of aluminum not customarily incidental to a beer
presumably by those who have chosen for
business. WegnerAuto Co., Inc. P. Ballard, 353 N.W.2d 57 (S.D. 1984).
their children to attend, as in fact an
extension of the ministry" of the church,
Used car lot not customarily incidental to an auto repair shop. Fleury P. Town of
was customarily incidental to the church
Essex Zoning Board ofAdjustment, 141 Vt. 411, 449 A.2d 958 (1982).
use. Harvest Christian Center v. King George
County Board of Zoning Appeals, 55 Va. Cit.
279 (2001).
Pharmacy not customarily incidental to a doctor's office. In re Porter Medical
Associates Use Change Permit, 139 Vt. 132, 423 A.2d 491 (1980).
Restaurant serving alcohol not customarily incidental to an office use. Tollway
North Ofce Center Central National Bank in Chicago P. Streicher, 83 Ill. App. 3d 239,
403 N.E.2d 1246 (2d Dist. 1980).
Tire storage not customarily incidental to a retail tire store. Hopewell Townshp v.
Wilson, 46 Pa. Commw. 442,406 A.2d 612 (1979).
17-330 An accessory use may not become a lawful nonconforming primary use
An accessory use may not become a lawful nonconforming primary use. Knowlton v. Browning -Ferris Industries of
Virginia, Inc., 220 Va. 571, 260 S.E.2d 232 (1979). See chapter 18 for a discussion of nonconforming uses.
In Knowlton, the owners had operated a hog farm, and garbage was hauled onto the property to feed the hogs. In
1959, Fairfax County enacted a zoning ordinance that permitted hog farming, but did not permit the general
trucking business, which therefore became a nonconforming use. Eventually, the hog farm use terminated, but a
waste hauling operation continued and expanded over the years. One of the questions the Virginia Supreme Court
considered was whether the waste hauling operation was a nonconforming primary use, since it had begun as an
accessory function of the hog farm. The Court stated: "It is true that trash collection ... was related to the hog
raising operation permitted by the ordinance. But a use accessory or incidental to a permitted use `cannot be made
the basis for a nonconforming principal use."' Knowlton, 220 Va. at 575-576, 260 S.E.2d at 236.
In Bull Bun Civic Association v. Board of Zoning Appeals of Loudoun County, 7 Va. Cir. 201 (1983), the circuit court
concluded that a crusher that was accessory to a nonconforming quarry operation under a 1955 permit was limited
to processing stone extracted in accordance with the 1955 permit and to extend its use beyond that which was
permitted under the prior permit would elevate the crusher to a nonconforming primary use.
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In Gwinn v. Lester, 1991 WL 835353 (1991), the circuit court found that the landowners could not continue to
park a dump truck on their residentially -zoned parcel where a prior regulation merely required that each parcel have
one vehicle space per family unit and at that time parking the dump truck on the parcel had begun, the parcel had
been used for a farm and a residence. The current regulations prohibited parking dump trucks of a certain size in
residential zoning districts. Assuming that the parking space requirement under the former regulations was a "use,"
the court held that parking the dump truck was only accessory to the farm and residence use and when the property
ceased to be used for that primary use, parking the dump truck — an accessory use — could not become a
nonconforming primary use.
17-340 The character of the primary use determines the character of the accessory use, and the
accessory use must be allowed in the zoning district
The very nature of an incidental use (see section 17-324) requires that the accessory use be of the same use
classification (i.e., commercial, residential, agricultural or industrial) as the primary use. Ca
pelle P. Orange County, 269
Va. 60, 607 S.E.2d 103 (2005) (because the mining operation was not allowed in the residential zoning district, the
mining access road, which was accessory to the primary mining use, was likewise not allowed in the residential
zoning district); Carolinas Cement Co. P. Zoning Appeals Board of barren County, 49 Va. Cir. 463 (1999) (the character of
the primary use determines the character of the accessory use: "the focus of the analysis is on the character of the
activity on the property rather than the physical characteristics of the structures housing the use").
17-350 Primary and accessory uses on a split -zoned parcel
Occasionally, a single parcel may have multiple zoning designations, such as when a single 10-acre parcel
abutting a highway has 2 acres of commercially zoned land abutting the highway and the remaining 8 acres are
zoned residential or agriculture. The issue that typically arises in a split -zoned parcel situation is whether the access
or some other accessory use is permitted on the portion of the parcel within one zoning district to serve the primary
use which is on the portion of the parcel within another zoning district. Whether an accessory use may be located on
a portion of the parcel subject to different zoning regulations will depend on the applicable zoning regulations.
In Capelle P. Orange County, 269 Va. 60, 607 S.E.2d 103 (2005), the Virginia Supreme Court considered whether a
mining operation allowed by special use permit on the agriculturally zoned portion of a 139-acre parcel could
construct an access road across the residentially zoned portion of the parcel to serve the mining operation. The
residentially zoned portion of the parcel was situated between the agricultural use portion and a public highway.
Although the special use permit request applied only to the part of the parcel located in the agricultural zoning
district, the "operation plan narrative" that the mining operator submitted with its special use permit application
included a proposal to construct an access road across the portion of the parcel zoned for limited residential use to
transport raw materials from the mining site to the public highway.
The Orange County zoning ordinance at issue in Capelle defined accessory use as "a secondary and subordinate use
or structure customarily incidental to, and located upon the same lot occupied by, the main use or structure." In
holding that the mining road could not be used on the portion of the parcel zoned for limited residential use, the
Court relied on the regulations for the portion of the parcel zoned for limited residential use, which further limited
accessory uses to those customarily incidental to the listed permitted uses in the limited residential zoning districts.
The Court also relied on another provision in the zoning ordinance that provided that "any use not expressly
permitted or permitted by special use permit in a specific district is prohibited." Because the mining operation was a
use neither allowed by right nor by special use permit in a limited residential zoning district, the access road to the
mining operation was prohibited in the limited residential zoning district.
In Gilbert's Corner Limited Parinershp v. Loudoun County Board of Zoning Appeals, 1990 Va. Cit. LEXIS 472, 1990 WL
751280 (1990), the two tracts at issue were zoned commercial on one side and agricultural on the other. The
landowners proposed to develop the commercially zoned land for retail, office and personal service uses and to use
portions of the agriculturally zoned lands for drainfields for the waste generated from the commercial uses and for
road access to the commercial uses. The zoning administrator and the BZA determined that the drainfields and
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private roads that would serve the commercial uses were not allowed in the agricultural zoning district, and the
landowners appealed. The circuit court affirmed the BZA's decision on these issues, holding:
Thus, "to the extent such uses are accessory uses, the principal use to which they are incidental or
subordinate must be a permissible use." In the instant cases, the commercial development planned
for the portion of the properties zoned C-1 is not a use specifically permitted by right or by special
exception in the "A-3" district.
Gilbert's Corner,1990 Va. Cit. LEXIS at 8-9, 1990 WL 751280 at 3.
The following cases from other jurisdictions pertain to split -zoned parcels: Dupont P. Town of Dracut, 41 Mass.
App. Ct. 293, 670 N.E.2d 183 (1996) (split -zoned parcel; access and parking on commercially zoned portion of
parcel, which prohibited residential uses, could not serve multi -family dwelling in residentially zoned portion of
parcel); Rolf v. Zoning Board ofAdjustment, 79 NJ. Super. 546, 192 A.2d 305 (1963) (split -zoned parcel; parking lot on
residentially zoned portion could not serve restaurant in commercially zoned portion); Park Construction Co. v.
Planning & Zoning Board of Appeals, 142 Conn. 30, 110 A.2d 614 (1954) (split -zoned parcel; residentially (R-6) zoned
portion could not serve as access to multi -family residentially zoned portion).
The rule distilled from the split -zoned parcel cases is that, where a parcel is located in two different zoning
districts, an accessory use may not be established in one zoning district to serve a primary use in the other zoning
district if the primary use is not allowed in the zoning district in which the accessory use is located. See, e.g., Dupont,
supra. Another rule obtained from these cases is that an accessory use takes on the use characteristics of the primary
use it serves. For example, a parking lot on commercially zoned land serving dwellings on residentially zoned land is
a residential use; a parking lot on residentially zoned land serving a restaurant on commercially zoned land is a
commercial use. See section 17-340.
17-360 Accessory uses on differently zoned and separate parcels
Whether an accessory use serving a primary use may be located on a separate parcel within a separate zoning
district will depend on the applicable zoning regulations.
In Carolinas Cement Co. P. Zoning Appeals Board of barren County, 49 Va. Cit. 463 (1999), the circuit court
concluded that a private road on an agriculturally zoned parcel would not be accessory to a proposed cement and fly
ash distribution facility on an industrially zoned parcel.
A number of cases from other jurisdictions have concluded that an accessory use could not be located on a
separate parcel that was subject to different zoning regulations: Teachers Insurance &Annuity Association v. Furlotti, 70
Cal. App. 4th 1487, 83 Cal. Rptr. 2d 455 (1999) (commercial building's use of portion of alley in residential zone was
commercial in nature and violated residential zoning district regulations); Atria, Inc. P. Board ofAdjustment, 438 Pa.
317, 264 A.2d 609 (1969) (residentially zoned parcel may not be used to provide access to commercial use on
adjoining parcel); Wlilliams P. Bloomington, 108 Ill. App. 2d 307, 247 N.E.2d 446 (1969) (residentially zoned parcel
could not be used to provide access to serve an adjoining commercially zoned parcel); Sprague -Covington Co. V. Zoning
Board of Review, 102 R.I. 317, 230 A.2d 419 (1967) (residentially zoned parcel may not be used to provide access to
commercial use on adjoining parcel); San Francisco v. Safeway Stores, Inc., 150 Cal. App. 2d 327, 310 P.2d 68 (1957)
(residentially zoned easement may not be used to provide access to commercial use on adjoining parcel); Yonkers P.
Rentways, Inc., 304 N.Y. 499, 109 N.E.2d 597 (1952) (residentially zoned parcel may not be used to provide access to
commercial use on adjoining parcel).
17-370 Specific accessory uses may be excluded from a zoning district
A locality may exclude specific accessory uses from a district by regulation. Wliley P. County of Hanover, 209 Va.
153, 157, 163 S.E.2d 160, 163 (1968) ("Had it been the purpose of the ordinance to prohibit the raising, sheltering
or harboring of pigeons or other fowl in a residential district, as the county claims, this could easily have been
accomplished by a simple and direct provision to that effect").
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ALBEMARLE COUNTY CODE Attachment F
CHAPTER 18. ZONING
SECTION 10. RURAL AREAS DISTRICT, RA
Sections:
10.1
Intent, where permitted.
10.2
Permitted uses.
10.2.1
By right.
10.2.2
By special use permit.
10.3
Application of regulations for development by right.
10.3.1
Conventional development.
10.3.3
Rural preservation development.
10.3.3.1
Definitions.
10.3.3.2
Intent; design standards.
10.3.3.3
Special provisions.
10.4
Area and bulk regulations.
10.5.2
Where permitted by special use permit.
10.5.2.2
Materials to be submitted by the applicant.
Sec. 10.1 Intent, where permitted.
This district (hereafter referred to as RA) is hereby created and may hereafter be established by amendment
of the zoning map for the following purposes:
-Preservation of agricultural and forestal lands and activities;
-Water supply protection;
-Limited service delivery to the rural areas; and
-Conservation of natural, scenic, and historic resources.
Residential development not related to bona fide agricultural/forestal use shall be encouraged to locate in
the urban area, communities and villages as designated in the comprehensive plan where services and
utilities are available and where such development will not conflict with the agricultural/forestal or other
rural objective. Where development does occur, rural residents should expect to receive a lower level of
service delivery than will be provided to residential developments in designated growth areas. In relation
to residential development, agricultural/forestal activities shall be regulated only to the extent necessary to
protect public health and safety.
In regard to agricultural preservation, this district is intended to preserve the county's active farms and best
agricultural and forestal lands by providing lot areas designed to insure the continued availability of such
lands for preferential land use tax assessment in order to enhance the economy, and maintain employment
and lifestyle opportunities. In addition, the continuation and establishment of agriculture and
agriculturally -related uses will be encouraged, and landowners will be encouraged to employ Virginia State
Water Control Board best management practices.
(§ 20-10.1, 12-10-80, 11-8-89; § 18-10.1, Ord. 98-A(1), 8-5-98; Ord. 01-18(6), 10-3-01)
It is intended that permitted development be restricted to land which is of marginal utility for
agricultural/forestal purposes, provided that such development be carried out in a manner which is
18-10-1
Zoning Supp. #105, 1-10-18
ALBEMARLE COUNTY CODE
compatible with other purposes of this district. Roadside strip development is to be discouraged through
the various design requirements contained herein.
Sec. 10.2 Permitted uses.
Sec. 10.2.1 By right.
The following uses shall be permitted by right in the RA district, subject to the applicable requirements of
this chapter:
1. Detached single-family dwellings, including guest cottages and rental of the same; provided that yard,
area and other requirements of section 10.4, conventional development by right, shall be met for each
such use whether or not such use is on an individual lot subject to section 10.3.
2. Side -by -side duplexes subject to the provisions of section 10.4; provided that density is maintained and
provided that buildings are located so that each unit could be provided with a lot meeting all other
requirements for detached single-family dwellings except for side yards at the common wall. Other
two-family dwellings shall be permitted provided density is maintained.
3. Agriculture, forestry, and fishery uses except as otherwise expressly provided.
4. Game preserves, wildlife sanctuaries and fishery uses.
5. (Repealed 5-5-10)
6. Water, sewer, energy, communications distribution facilities (reference 5.1.12).
7. Accessory uses and buildings including major home occupations (reference 5.2A), minor home
occupations (reference 5.2A), and storage buildings.
8. Temporary construction uses (reference 5.1.18).
9. Public uses (reference 5.1.12).
10. Temporary sawmill (reference 5.1.15 and subject to performance standards in 4.14).
11. Veterinary services - off -site treatment only.
12. Agricultural service occupation (subject to performance standards in 4.14).
13. Divisions of land in accordance with section 10.3.
14. Bed and breakfast (reference 5.1.48).
15. Manufactured homes, individual, qualifying under the following requirements (reference 5.6):
a. A property owner residing on the premises in a permanent home wishes to place a manufactured
home on such property in order to maintain a full-time agricultural employee.
b. Due to the destruction of a permanent home an emergency exists. A permit can be issued in this
event not to exceed twelve (12) months. The Zoning Administrator shall be authorized to issue
permits in accordance with the intent of this ordinance and shall be authorized to require or seek
any information which he may determine necessary in making a determination of cases "a" and
"b" of the aforementioned uses.
16. Temporary manufactured home in accordance with section 5.7.
18-10-2
Zoning Supp. #105, 1-10-18
ALBEMARLE COUNTY CODE
17. Farm winery uses, events, and activities authorized by section 5.1.25(a),(b), and (c)(2).
18. Borrow area, borrow pit, not exceeding an aggregate volume of fifty thousand (50,000) cubic yards
including all borrow pits and borrow areas on any one parcel of record on the adoption date of this
provision (reference 5.1.28).
19. Manufactured homes on individual lots (reference 5.6).
20. Commercial stable (reference 5.1.03).
21. Stormwater management facilities shown on an approved final site plan or subdivision plat.
22. Tier I and Tier II personal wireless service facilities (reference 5.1.40).
23. Farm worker housing, Class A (up to ten occupants and up to two sleeping structures) (reference
5.1.44).
24. County store, Class A (reference 5.1.45).
25. Small wind turbines (reference 5.1.46).
26. (Repealed 11-12-14)
27. Farm stands (reference 5.1.47).
28. Family day homes (reference 5.1.56).
29. Farm brewery uses, events, and activities authorized by section 5.1.57(a), (b), and (c)(2).
30. Events and activities at agricultural operations authorized by right under section 5.1.58(d).
31. Farm distillery uses, events, and activities authorized by section 5.1.59(a), (b), and (c)(2).
32. Group home (reference 5.1.07).
33. Farmers' markets (reference 5.1.47 a-e)
(§ 20-10.2.1, 12-10-80; 12-16-81; 7-6-83; 11-1-89; 11-8-89; 11-11-92; 5-12-93; Ord. 95-20(5), 11-15-95; §
18-10.2.1, Ord. 98-A(1), 8-5-98; Ord. 02-18(6), 10-9-02; Ord 04-18(2), 10-13-04; Ord. 06-18(2), 12-13-06;
Ord. 08-18(7), 11-12-08; Ord. 09-18(11), 12-10-09; Ord. 10-18(3), 5-5-10; Ord. 10-18(4), 5-5-10; Ord. 11-
18(1), 1-12-11; Ord. 12-18(3), 6-6-12; Ord. 13-18(5), 9-11-13; Ord. 14-18(4), 11-12-14; Ord. 15-18(10),
12-9-15; Ord. 17-18(1), 1-18-17; Ord. 17-18(4), 8-9-17; Ord. 18-18(1), 1-10-18; Ord. 18-18(2), 9-5-18)
Sec. 10.2.2 By special use permit.
The following uses shall be permitted by special use permit in the RA district, subject to the applicable
requirements of this chapter:
1. Community center (reference 5.1.04).
2. Clubs and lodges (reference 5.1.02).
3. Fire and rescue squad stations (volunteer) (reference 5.1.09).
4. Swim, golf, tennis or similar athletic facilities (reference 5.1.16).
5. Private schools.
18-10-3
Zoning Supp. #106, 9-5-18
ALBEMARLE COUNTY CODE Attachment G
CHAPTER 18
ZONING
SECTION 3
DEFINITIONS
Sections:
3.1 DEFINITIONS
3.1 DEFINITIONS
Abattoir: See Slaughterhouse, custom. (Amended 10-3-01)
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 dwelling. (Added 8-10-94)
Accessory merchandise: Non-agricultural merchandise that is subordinate and customarily
incidental to the agricultural products sold at a farm sales use or a farmers' market such as pottery,
baskets, canning jars, pumpkin carving kits, wreath making supplies, floral arranging supplies,
garden accessories, hand tools for gardening and handmade crafts. For the purposes of this
definition, farm machinery and equipment (except hand tools), building materials, furniture, and
other similar items are not subordinate merchandise. (Added 5-5-10)
A subordinate use, building or structure customarily
incidental to and located upon the same lot occupied by the primary use, building, or structure, and
located upon land zoned to allow the primary use, building or structure; provided that a
subordinate use, building or structure customarily incidental to a primary farm use, building or
structure need not be located upon the same lot occupied by the primary farm use, building, or
structure. (Amended 10-9-02, 5-5-10)
Administrator (Zoning), The: The official charged with the enforcement of the zoning ordinance
pursuant to section 15.2-2286(4) of the Code.
Affordable housing: The term "affordable housing" means safe decent housing where housing
costs do not exceed thirty (30) percent of the gross household income. For purposes of this
definition, "housing costs" for homeowners are principal, interest, real estate taxes, and
homeowner's insurance (PITI), and for tenants are tenant -paid rent and tenant -paid utilities with
the maximum allowances for utilities being those adopted by the county's housing office for the
Housing and Urban Development housing choice voucher program. For purposes of this chapter,
an "affordable unit" is a dwelling unit that meets the definition of affordable housing. (Added 10-
3-07)
Agricultural museum: An establishment operated as a repository or collection of curiosities or
objects of agricultural interest or significance for public display. (Added 12-2-87)
Agricultural operation: Any operation devoted to the bona fide production of crops, or animals, or
fowl, including the production of fruits and vegetables of all kinds; meat, dairy, and poultry
products; nuts, tobacco, nursery, and floral products; and the production and harvest of products
from silviculture activity. This term includes aquaculture and plant nurseries. (Added 11-12-14)
18-3-1
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ALBEMARLE COUNTY CODE
Agricultural operation event: An event conducted at, and subordinate to, an agricultural operation
for up to three (3) consecutive days comprised o£ (i) agritourism-related events such as tastings
not conducted in the daily course of agritourism, farm sales, or the sale of agricultural products or
food products; farm -to -table dinners; agricultural festivals; and auctions or livestock shows
pertaining to livestock, animals, or other agricultural products not grown or raised at that
agricultural operation; (ii) events that promote the sale of agricultural or silvicultural products; (iii)
events that promote the sale of food products; (iv) events that are usual and customary at Virginia
agricultural operations; and (v) fundraisers and charity events. (Added 11-12-14)
Agricultural products: Any livestock, aquaculture, poultry, horticultural, floricultural, viticulture,
silvicultural, or other farm crops. (Added l l-12-14)
An occupation in which skill and expertise in some agriculturally
related field are applied to the service of others engaged in agriculture; provided that sales of
goods shall be limited to those incidental to the performing of a service.
An agricultural operation, the keeping of livestock or poultry, or both, regardless of
whether the keeping of livestock or poultry qualifies as an agricultural operation. The term
includes accessory processing facilities for agricultural products grown or raised solely on the
farm on which the agriculture is located, such as fruit packing plants and dairies. The term does
not include any processing facilities permitted only by special use permit. (Amended 12-2-87, 5-
5-10,11-12-14)
Agritourism: Any activity carried out at a farm winery, farm brewery, or an agricultural operation,
that allows members of the general public, for recreational, entertainment, or educational
purposes, to view or enjoy rural activities, including farming, wineries, ranching, historical,
cultural, harvest -your -own activities, or natural activities and attractions, regardless of whether or
not the participant paid to participate in the activity. These rural activities also include, but are not
limited to, farm tours, tours of an individual agricultural operation, hayrides, heirloom plant and
animal exhibits, crop mazes, and educational programs, workshops, or demonstrations related to
agriculture or silviculture. (Added 5-5-10; Amended 11-12-14)
Aircraft, light: Aircraft not exceeding twenty-five thousand (25,000) pounds in gross weight.
Alley: A form of vehicular travelway providing access to the rear and/or side lot line of abutting
properties which front along public streets or private roads. An alley is privately owned and
maintained, is intended to be used primarily by the owners and occupants of the abutting
properties and persons and vehicles providing services to those properties, including emergency
services vehicles, and is not intended for through traffic. An alley is neither a "private road" nor
an "access easement," as those terms are defined or used in this chapter and chapter 14. (Added 2-
6-02)
Alteration: Any change in the total floor area, use, adaptability or external appearance of an
existing structure.
Alternative onsite sewage system: A treatment works approved by the Virginia Department of
Health that is not a conventional onsite sewage system and does not result in a point source
discharge. (Added 7-11-12)
Amenity: An area of activity designed principally for, and accessible to, persons residing or
working within a development. Areas of activity may be either indoors or outdoors, including but
not limited to swimming pools and tennis, volleyball and basketball courts. An outdoor area of
activity may be a passive or an active area, including but not limited to playgrounds, pedestrian
paths through natural areas, courtyards, and paved pedestrian areas for gathering. An indoor area
of activity includes, but is not limited to gyms, weight rooms, indoor swimming pools, indoor
18-3-2
Zoning Supplement #89, 4-8-15
Attachment H
17
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Waterer in front of barn
John Zunka
From: Edward J. Kelly III <ejkellyiii@gmail.com>
Sent: Tuesday, May 07, 2019 4:27 PM
To: John Zunka
Cc: carter@hilliardmanagement.com
Subject: BZA Submission
John. Carter Hilliard has let me know about the proceeding before the BZA and has asked me to provide you with a
description of what Hilliard Estate and Land Management ("HELM") does for us here at Midway Farm. I am happy for
you and Carter to use this in whatever way you deem appropriate.
As you know, my wife Carita and I bought Midway in 1997 and owned it continuously until 2012 when in connection
with a gift transaction involving our children we formed Midway Farm LLC. Midway Farm LLC is owned by trusts for our
children, but I am the Manager of the LLC and my wife Carita is the trustee of each of the trusts.
HELM has been immensely helpful to us in the management of Midway. The vast majority of the land is cleared and
HELM has cleared more of it over the years. We keep all of the fields and the paddocks for our horses closely -mown and
HELM does that for us, while saving us the expense of having our own machinery and employees. Moreover, HELM helps
us to monitor and maintain the turf in the paddocks. HELM also has installed new fencing for us and maintained the
existing fencing both through necessary repairs and painting. In addition, HELM has assisted us with clean-up from storm
damage to trees and clearing roads of snow. In short, what formerly required us to employ the services of several
different people and organizations is now consolidated with HELM as it assists us in doing our best to maintain Midway
to high standards.
Owning and maintaining a farm is not an easy task. HELM has made it easier for us and for that we are grateful. I would
add that HELM is both efficient and remarkably responsive which makes its services to us all the more valuable.
I hope this is helpful. Please let me know should you have any questions or if there is anything else I can do.
Best.
Edward J ("Ned") Kelly, III
Manager
Midway Farm LLC
2600 Ridge Road
Charlottesville, Virginia 22901
Sent from my iPad
EXHIBIT
FREDERIC WILLIAM SCOTT, JR.
BALLYSHANNON - 5440 BALLYSHANNON LANE
NORTH GARDEN, VIRGINIA 22959
May 8, 2019
To: Albemarle County Board of Zoning Appeals
Re: June 5 Agenda "HELM/Carter Hilliard"
Carter Hilliard owns and runs the finest agricultural service business I have known during my
fifty-year involvement in Albemarle agriculture. He provides "custom farming services" at a
level, and in a manner, we rarely see. He's well capitalized, has fine, well -maintained,
equipment that's appropriate to his clientele. His custom services are his primary business and
his outstanding crews (I personally know many of these men) are good and honest people who
are a pleasure for me to see doing productive work. I occasionally get to chat with them as they
work nearby at Bundoran, where I live.
"Custom farming" has been a tradition here in Albemarle for many decades. As Albemarle has
become more populated, it has come as no surprise to me to see such a specialized business
emerge. My father, and then I, operated Bundoran Farm from 1940 until I sold it in 2005. For 65
years —when our own equipment was idle —we provided similar custom farming services to
our neighbors (their tractors may have broken down, or they didn't own the right mower, etc.)
and it made good economic sense to do so. It still does. As tractors and implements rose in price
(the rig you see working can easily be worth $100,000 or more) the full-time use of equipment
became more and more important. An idle machine is a money -loser, so we all —farmers and
stockmen —tried to keep our machines and crews busy. It just makes good business sense.
When I served on several County commissions and study groups —tasked with thinking about
the future of our rural enterprises —about twenty years ago, we discussed the increasingly
likelihood that a team such as HELM would eventually appear. This is a very good eventuality.
The farms today are more tidy, safer, and the overall efficiency of the combined enterprises
simply has to have been increased. There are plenty of farmers now who rely on HELM for their
massively costly large tractors and own ... not a one. Smart. In the Midwest, this is a perfectly
normal operating model, actually more common than not.
Every farmer is a commercial operator —in business to make a profit just as is HELM. As soon
as the economic incentive to prosper is removed, the enterprise is likely to fail. We don't need
failing agricultural enterprises.
We need profitable farms, and a service business like HELM plays a big part in maintaining that
economic sustainability. It's very good for Albemarle that HELM is among us. I gather that this
appeal is because "HELM is a landscaper." Not true. A byproduct of proper agricultural
activities is, indeed, a neat and attractive landscape, but Carter Hilliard is no more a landscape
contractor than I am the King of England.
I have recommended HELM to many neighbors, and a goodly number have hired them. HELM
is an outstanding team of hardworking people and they are completely trustworthy. The HELM
crews occasionally store their equipment overnight in my sheds here at Bundoran so I see them
frequently. I trust them all. When their leader... Carter Hilliard... tells me something, I can "take
it to the bank."
Most sincerely,���
Fred W. Scott, Jr. /►' V✓
HOME (434)293.9221 OFFICE (434)295.4188 CELL (434)953.5257 FSCOTT®B
EXHIBIT
C,
C
Attachment J
-----Original Message -----
From: Cooley, Margien Sara *HS<MSCSM@hscmail.mcc.virginia.edu>
Sent: Tuesday, May 07, 2019 9:14 AM
To: Diantha McKeel <dmckeel@albemarle.org>; Amelia McCulley <AMCCULLE@albemarle.org>
Subject: Protect Free Union with Zoning Laws!
Hi! My name is Margien Cooley and I live at 2993 Free Union Rd. I'm concerned about keeping
Free Union residential and rural. There was no public hearing prior to the start of the landscape
business on Free Union rd. More than 90% of Mr. Carter's work is considered landscaping.
Below is an excerpt from Cornell's Legal Information Institute, on the definition of an
agricultural business.
I've heard the truck backup alarms as I walk my dog to Horseshoe Bend road (attachment
below). I used to enjoy this walk but it reminded me of the construction at the hospital. I'm a
nurse at UVA.
I'm concerned for my neighbor, Deb Kozura, whom has asthma and whom is most affected by
the bush burnings due to proximity. Just to put it in perspective, even big farms, only burn
brush once or twice a year, or none at all. Mr. Carter has already burnt twice in one month.
The traffic situation is the most worrisome: My husband reached out to the police about a year
ago about the speeding on Free Union Rd. I have reached out to VDOT recently. Agriculture
farming traffic is contained to one farm; but this commercial business is operating as a satellite
-- to and from multiple properties, not located on Free Union Rd. This business is servicing
large properties where no farm commodities are produced. Why are we permitting this traffic?
This does not benefit Free Union Rd. nor the greater good.
Please protect Free Union. It's in your hands!
Sincerely,
Margien
Margien Cooley, BSN, MSN, NP, CRNA
pic 4404
Cornell's Legal Information Institute, on the definition of an agricultural business.
§ 780.103 "Agriculture" as defined by the Act.
Section 3(f) of the Act defines "agriculture" as follows:
"Agriculture" includes farming in all its branches and among other things includes the
cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting
of any agricultural or horticultural commodities (including commodities defined as agricultural
commodities in section 15(g) of the Agricultural Marketing Act, as amended), the raising of
livestock, bees, fur -bearing animals, or poultry, and any practices (including any forestry or
lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction
with such farming operations, including preparation for market, delivery to storage or to
market or to carriers for transportation to market.
§ 780.206 Planting and lawn mowing.
(a) The planting of trees and bushes is within the scope of agriculture where it constitutes a
step in the production, cultivation, growing, and harvesting of agricultural or horticultural
commodities, or where it constitutes a practice performed by a farmer or on a farm as an
incident to or in conjunction with farming operations (as where it is part of the subordinate
marketing operations of the grower of such trees or bushes). Thus, employees of the
nurseryman who raised such nursery stock are doing agricultural work when they plant the
stock on private or public property, trim, spray, brace, and treat the planted stock, or perform
other duties incidental to its care and preservation. Similarly, employees who plant fruit trees
and berry stock not raised by their employer would be considered as engaged in agriculture if
the planting is done on a farm as an incident to or in conjunction with the farming operation on
that farm.
(b) On the other hand, the planting of trees and bushes on residential, business, or public
property is not agriculture when it is done by employees of an employer who has not grown the
trees and bushes, or who, if he has grown them, engages in the planting operations as an
incident, not to his farming operations, but to landscaping operations which include principally
the laying of sod and the construction of pools, walks, drives, and the like.
(c) The mowing of lawns, except where it can be considered incidental to farming operations, is
not agricultural work.
Backup alarm sounds:
https://www.youtube.com/watch?v=ohSfmy4l kg
From: Helen M Hilliard <hhilliard@mac.com>
Sent: Wednesday, May 08, 2019 12:57 PM
To: Diantha McKeel <dmckeel@albemarle.org>
Cc: Amelia McCulley <AMCCULLE@albemarle.org>; DeIRBell@house.virginia.gov;
Stephen.Brich@vdot.virginia.gov; bglymph@vofonline.org; Garret.Moore@vdot.virginia.gov
Subject: Zoning board meeting June 4 Regarding Hilliard Estate and Land Management
Dear All,
I am writing in SUPPORT of the zoning commissions decision to allow Carter Hilliard(HELM) to use the
land he has leased from John Birdsall for his Estate and Land Management business. HELM is a business
dedicated to preserving natural habitats, improving and maintaining open space with a conscientious
and civic minded owner who hires many employees and provides much needed services in the
community on many levels. Rick and Susan Goings, the Californians who own Eagle Hill, the corporate
retreat across the street from the business in question, have made an unfounded complaint; they have
used other unreasonable and appalling tactics to try to reverse the boards decision and unsuccessfully
sway public opinion against you, the VOF, the Birdsalls and HELM. We cannot allow them to bring their
invasive, intrusive California policies to The Commonwealth. Please don't let it happen.
They are not interested in "protecting" Free Union or open space. They are interested in controlling
other peoples inalienable rights. I once lived in California and they have some of the most abusive land
use policies in the country; you can hardly take a breath without getting permission from your neighbor.
We don't want that here in Virginia. We all want to preserve the open space and to be considerate of
our surroundings, but not at the expense of limiting our individual freedoms and right to privacy.
Don't "California Virginia"! I
aONI PREA.0 ON IME
Thankyou!
Concerned Citizen,
Helen Hilliard
(sister in Law)
Helen Matheson Hilliard
6682 Free Union Rd
Free Union, VA 22940
434-989-1189
www.helenhilliard.com