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HomeMy WebLinkAboutVA198600038 Application 1986-11-11 2>444 (_1 $ 5 0 . Permit Fee Application No.'".1370,... C7)71 ... C7)71 Sign Erected By: 1 3t.pui Staff: APPLICATION FOR VARIANCE Zoning Department 401 McIntire Road Charlottesville, VA 22901-4596 County of Albemarle 296-5875 Date of Application October 21 , 19 8 6 OWNER OF PROPERTY OCCUPANT (If other than owner) Nan: Earlvsville Forest Land Trust Name: Address: Post Office Box 2737 Address: Charlottesville , Va 22902 Telephone: 2 9 6-2161 Co r . ,_,,..4,1 C jr- )Telephone: Location of Property: Lot 136 , Earlysville Forest , Section 9 Tax Map 31 b Parcel 136 Acreage t,OIQ� R Existing Zoning PUD District Riv . Existing Use: l� ( cU ,s Variance sought (describe briefly relief sought) : ci .L 41D W-cisL.�_) G ' ' eir4dLt "'.V" - x ►�Q I hereby certify that the foregoing information is true and correct to the best of mr knowledge and belief and that I am the owner named above. Ea iysvi to/Forest La Trust •elicant Date FOR OFFICE USE ONLY Zoning Administrator has/has not rendered a decision. If so, state substance of decision.: Date of Hearing: I , Final Decision Made: //f /46 The variance sought was 7approved with the following conditions: Special Use Permit# BOARD OF 9PEALS Sign Permit# /B1: ate Building Permit# Clis) Allan and Ada Kindrick P.O. Box 83 / Earlysville,Virginia 22936 (804) 973-5436 Li Jacob's Run Farm September 10, 1987 County of Albemarle Department of Zoning 401 McIntire Road Charlottesville, VA 22901-4596 Attention: Mr. Charles W. Burgess, Jr. Zoning Administrator RE: Albemarle County Board of Zoning Appeals Hearing VA-86-38 Dear Mr. Burgess: At the time I spoke before the above referenced Zoning Appeals Board, I also presented the Board with seven copies of each of the following: 1. Deed between J. G. B. Crenshaw and William Johnson dated November 1, 1886, taken from Deed Book 87, Pages 175 and 176. 2. Deed between Mary H. Lupton and Thomas G. Lupton, her husband and George Harrison Gillam, Trustee for Earlysville Forest Land Trust dated May 22, 1986, taken from Deed Book 897, Pages 350, 351, 352, 353 and 354. 3. One sheet of minutes from the Board of Supervisor's Meeting of October 15, 1980 (night meeting) . In reviewing the files in your office recently, I could not find any evidence that these documents were included in the package of information forwarded to the Court as requested for reference Allan B. Kindrick, et al v. Board of Zoning Appeals of Albemarle County et al , Chancery #5784-C. I was quite suprised at this omission since I distributed seven copies highlighted to show my position regarding the right-of-way for which a variance was being allowed for the house setback from the right-of-way on Lot #136, Earlysville Forest. I appreciate your letter of September 4, 1987 requesting new copies of these documents which you indicate will be forwarded to the Court for addition to the present information on the above referenced variance appeal . I 've taken the liberty of highlighting one copy of each of these documents as were the original copies highlighted and would appreciate your transmitting same to the Court as quickly as possible. I would appreciate County of Albemarle Department of Zoning Mr. Charles W. Burgess, Jr. Page 2 September 10, 1987 copies of the transmittal letter to the Court being forwarded to me and my attorney, Mr. Gerald I. Katz of Katz & Stone, 8300 Boone Boulevard, Suite 310, Vienna, VA 22180. Sincerely, Allan B. Kindrick ABK/jsc cc: Gerald I. Katz w/attachments �.r ` °° SOHAL% COUNTY OF ALBEMARLE Department of Zoning 401 McIntire Road Charlottesville, Virginia 22901-4596 (804) 296-5875 September 4 , 1987 Mr. Allan B. Kindrick Post Office Box 83 Earlysville, VA 22936 Dear Mr. Kindrick: On November 11, 1986, you appeared before the Albemarle County Board of Zoning Appeals to voice your concerns pertaining to the granting of a variance to Earlysville Forest Land Trust (VA-86-38) . During your presentation, you presented two documents to the Board of Zoning Appeals . One was a deed dated 1886 and the other, a deed indicating the purchase of the property in question by Earlysville Forest Land Trust. In reviewing our departmental file for VA-86-38 , I find these two documents to be missing. If you should still have copies of these two documents , I would appreciate your forwarding a copy of each one to this office in order to complete our file. If you should have any questions or cannot provide the information requested, please contact this office. Sincerely, • Charles W. Burgess , Jr. Zoning Administrator CW;3Jr/kjb solo OF `N M � G <4. ��kUf Office of County Attorney FREDERICK W. PAYNE 416 PARK STREET GEORGE R. ST.JOHN JAMES M. BOWLING, IV CHARLOTTESVILLE. VIRGINIA 22901 COUNTY ATTORNEY TELEPHONE 296-7136 DEPUTY COUNTY ATTORNEYS August 25, 1987 Gerald I Katz, Esquire Katz & Stone Suite 310 8300 Boone Boulevard Vienna, Virginia 22180 Re: Our File ACPZ 86-743 Dear Mr. Katz : Your letter addressed to "County of Albemarle Board of Supervisors" dated August 20 was received by t?.e Clerk of the Board and was turned over to me for reply. In your letter you requested the opportunity to inspect and ident: fy for copying certain records having to do with Allan Kindrici_, Dailey Craig, and the development of Earlysville Forest Subdivi.,ion. I believe that such of these records as exis_ are contained in the files of the Albemarle County Department of Planning and Human Development and in the files of the Zoning dministrator . There are some references to Earlysville Forest a1 : o in minutes of the Board of Supervisors. All of these files, and any others you want to see, are available for your inspection at any time during business hours if you will call ahead to tell the department head you are coming to inspect them. I do not think it is possible, nor is it required under the F. O. I , for county personnel to go through these files and make judgement calls as to what papers are pertinent to your request. You can pick out the papers you want copied and copying will be done promptly for you by county personnel . A copy of this letter and a copy of your request are being sent to the Clerk of the Board, the Director of Planning and Human Development, and the Zoning Administrator. Sincerly zeewefi George R. St . John County Attorney NoV Mr. Gerald I. Katz August 25, 1987 cc: Miss Estelle Neher Clerk of Board of Supervisors Mr. John T.P. Horne Director of Planning Mr. Charles Burgess Zoning Administrator GRStJ/kkm 1st OF ALB,E o�� pF A�872 < Office of County Attorney FREDERICK W. PAYNE 416 PARK STREET GEORGE R. ST.JOHN JAMES M. BOWLING, IV CHARLOTTESVILLE, VIRGtNIA 22901 COUNTY ATTORNEY TELEPHONE 296-7139 DEPUTY COUNTY ATTORNEY• July 6 , 1987 Gerald I . Katz , Esquire Katz & Stone Suite 310 8300 Boone Boulevard Vienna, Virginia 22180 Re : Kindrick v . Board of Zoning Appeals, et al .--Our file ACPZ 86-743 Dear Mr. Katz : This will acknowledge receipt of yours of July 1 , covering a copy of a draft order sent to Judge Tremblay and a copy of yours of July 2 to Mrs . Marshall . As I told you , as attorney for the Board , I have no objection to the issuance of the writ and indeed think your client is entitled to it . However , I do object to tendering draft orders to the Court without extending to me the courtesy of reviewing them for endorsement . Technically , I think Rule 1 : 13 ' s exception is inapplicable in this case and the Court should not dispense with endorsement of counsel . However , I do not intend formally to object in this case since I do not object to the substance of the relief granted . Please be advised , however , that , henceforth , I will insist on either prior review of tendered orders or a hearing at which I have the opportunity to be heard on potential objections. I respectfully request that you afford me this courtesy and avoid unnecessary unpleasantness. On a related matter , since your sketch does not expressly provide for service on the Board , I assume you will be patient with respect to its return if there is some confusion on this score. By copy of this letter , I am advising the Chairman of the Board and the Zoning Administrator to expect formal notice of the issuance of the writ and have the record ready accordingly . Sincerely yours , Frederick W. Payne Deputy County Attorney cc : Max C. Kennedy , Esquire Mr . Charles W. Burgess , Jr . Robert J . Kroner , Esquire Alimp Ire KATZ & STONE AT rORNEYS AT LAW SUITE 310 8300 BOONE BOULEVARD GERALD I. KATZ SUITE 600 MARK J. STONE* VIENNA, VIRGINIA 22180 51 MONROE STREET TERESA ANN KEOUGH° ROCKVILLE., MARYLAND 20850 JULIA A. CROSSLANCDa (703) 761-3000 SUITE 602 2000 K STREET, N.W. wASH1NGTON, D.C. 20006 June 16, 1987 Mr. Jesse R. Hurt County of Albemarle Inspections Department 401 McIntire Road Charlottesville, VA 22901-4596 RE: May 8, 1987 Freedom of Information Act Request Dear Mr. Hurt: By letter dated May 14 , 1987 , Frederick W. Payne, Esq. , responded to my May 8, 1987, Freedom of Information Act request by informing me that I should contact you to review the records requested. Mr. Allan Kindrick, on my behalf, arranged with you to review the requested records. I understand that the files for permits numbers 86-1266NR and 86-1387AR were produced and copied. I further understand that no documents were produced in response to request numbers 3 and 4 of my May 8 , 1987 letter, that is, relating to the right of way and the variance. I would appreciate your informing me whether your department has any records relating to request numbers 3 and 4 , and if so, to produce them to Mr. Kindrick. If no such records exist, I would appreciate your written confirmation to me. Thank you for your continued cooperation. Very truly yours, KATZ & STONE P Mark J. Stone MjS/jsa cc: Mr. Allan B. Kindrick Frederick W. Payne, Esq. KATZ & STONE ATTORNEYS AT LAW SUITE 310 8300 BOONE BOULEVARD GERALD I. KATZ MARK J. STONE• VIENNA, VIRGINIA 22180 SUITE 600 TERESA ANN KEOUGH 51 MONROE STREET ROCKVILLE, MARYLAND 2085,0 JOU', A. CROSSLAND (703) 761-3000 SUITE 602 *v. mo 2000 K STREET, N.W. "A WASHINGTON, D.C. 20006 June 16, 1987 Frederick W. Payne, Esquire Deputy County Attorney County of Albemarle 416 Park Street Charlottesville, VA 22901 RE: May 8 , 1987 Freedom of Information Act Request. Your File ACPZ86-743 Dear Mr. Payne: Thank you for your letter of May 14 , 1987 responding to my Freedom of Information Act request. Mr. Allan Kindrick, on my behalf, arranged to review the files produced by Mr. Jesse Hurt in response to my Freedom of Information Act request. I understand that the files for Permits Nos. 86-1266 and 86-1387AR were produced. I further understand that no documents were produced in response to requests 3 and 4 of our request, that is, relating to the right-of-way and the variance. I have written Mr. Hurt requesting him to inform me whether his department has any files relating to requests 3 and 4 , and if so, to produce them to Mr. Kindrick, If Mr. Hurt should find any additional documents or files responsive to our FOIA request, I trust that he will inform me and supplement his Department's response. Thank you for your continued cooperation. Very truly yours, KATZ & STONE Mark J. Stone MJS11. 3 :hnf cc: Mr. Allan B. Kindrick Mr. Jesse R. Hurt � 91 OF AL • OvN A O hRGIrA Office of County Attorney FREDERICK W. PAYNE 416 PARK STREET GEORGE R. ST.JOHN JAMES M. BOWLING, IV CHARLOTTESVILLE. VIRGINIA 22901 COUNTY ATTORNEY DEPUTY COUNTY ATTORNEYS TELEPHONE 296-7138 February 17 , 1987 George H. Gilliam, Esquire Paxson, Smith, Gilliam and Scott , P.C. P.O. Box 2737 Charlottesville, Virginia 22902 Re : Kindrick, et al. , v. B.Z.A. , et al .--Our file ACPZ 86-743 Dear George : In 'accordance with our conversation of this date, enclosed please find a copy of Kindrick ' s motion to join additional parties and amend his petition. It appears to me that this is an attempt to join the purchasers of the house. Otherwise , I see nothing new in this petition, have not answered it and do not intend to. Please let me know if you feel differently . Sincerely yours , Frederick W. Payne Deputy County Attorney Enclosures cc (w/ enc. ) : Mr. Charles W. Burgess, Jr . Max C. Kennedy , Esquire Now if VIRGINI A: IN THE CIRCUIT COURT OF ALBEMARLE COUNTY ALLAN B. KINDRICK and ) ADA KINDRICK, ) Petitioners, ) v. ) IN CHANCERY NO. 5784-C BOARD OF ZONING APPEALS ) OF ALBEMARLE COUNTY, et al. ) i Respondents. ) MOTION FOR LEAVE TO FILE AMENDED PETITION TO JOIN ADDITIONAL RESPONDENTS COME NOW Petitioners, by counsel, pursuant to Rule 1: 8 of the Rules of the Virginia Supreme Court, and move the Court for leave to file an Amended Petition for Writ of Certiorari and Application for Restraining Order, in order to add as additional Respondents the current owners of record of the subject property, and for grounds therefor, state as follows: 1. On December 8, 1986, Petitioners, pursuant to Virginia Code §15. 1-497, filed their Petition for Writ of Certiorari and Application for Restraining Order (hereinafter referred to as the "Petition") . 2 . The Petition seeks review of a November 11, 1986 decision of the Board of Zoning Appeals of Albemarle County, granting a variance to construct a single-family dwelling within the rear-yard zoning set-back line of certain residen- tial property located at and described as Lot 136, *Noy vow _... Earlysville Forest Section 9, Tax Map. No. 31B, Parcel 136, Albemarle County, Virginia. 3 . The variance was applied for by, and granted to, the then-owner of the subject property, Respondent George H. Gilliam, Trustee for Earlysville Forest Land Trust. 4 . Since the filing of the Petition, Petitioner has learned that the subject property was conveyed by Respondent 1 George H. Gilliam, Trustee, to Carl F. Hartwick and Linda A. Hartwick, husband and wife, as tenants by the entirety, as evidenced by deed recorded in the land records in the Office of the Clerk of the Circuit Court of Albemarle County, at Book 911, Page 347. A true and accurate copy of said Deed is attached as Exhibit 1 to the Amended Petition filed herewith. 5. Carl F. Hartwick and Linda A. Hartwick, as the current owners of record of the subject property, have a direct interest in, and will be directly affected by, the outcome of this litigation. 6. In the Amended Petition for Writ of Certiorari and Application for Restraining Order, Petitioners add Carl F. Hartwick and Linda A. Hartwick as additional Respondents, and add paragraph 16 alleging that these additional Respondents are the current owners of record of the subject property. A copy of the Amended Petition is filed herewith. WHEREFORE, Petitioners respectfully request the Court to enter an Order: a) Granting Petitioners leave to file the Amended Petition for Writ of Certiorari and -2- Application for Restraining Order filed herewith; and b) Granting the Petitioners such other and further relief as the Court deems proper. Respectfully submitted, ALLAN B. KINDRICK and ADA KINDRICK, ! By Counsel j/417-t GeZc d I. Katz Mark J. Stone KATZ, FLINN & BEAGAN 8300 Boone Boulevard Suite 310 Vienna, VA 22180 (703) 448-6800 Counsel for Petitioners CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing MOTION FOR LEAVE TO FILE AN AMENDED PETITION TO JOIN AN ADQyTIUNAL RESPONDENT was mailed, postage prepaid, on the b G'- day of January, 1987 to George R. St. John, Esquire Frederick W. Payne, Esquire 416 Park Street Charlottesville, VA 22901 Attorneys for Board of Zoning Appeals of Albemarle County George H. Gilliam, Esquire PAXSON, SMITH, GILLIAM & SCOTT, P.C. 418 East Water Street Charlottesville, VA 22902 Trustee of Earlysville Forest Land Trust Mark J. one MJS.3 -3- .tY OF ALB EM G \ � U ,...,.,,'cam 01 kin a Ito- %DEPARTMENT OF ZONING 401 MCINTIRE ROAD CHARLOTTESVILLE. VA. 22901-4596 (804) 296-5875 January 6 , 1987 Mr . Alan B . Kindrick P. 0. Box 83 Earlysville , VA 22936 Re : VA-86-38 Earlysville Forest Land Trust Tax Map 31B, Parcel 136 Dear Mr . Kindrick : Enclosed please find a copy of building permit #86-1266 and a location sketch which needs to be inserted in your copy of the index of documents, for #14 and #15 . A copy of permit #86-1166 was inserted in error . . If you have any questions , please contact me . Sincerely, . ob) liCl/LIL)- J-Clila • Sharon Taylor Zoning Secretary st/ cc : VA-86-38 OF aLeEMq 00) -0.44 /7/Office of County Attorney FREDERICK W. PAYNE 416 PARK STREET GEORGE R. ST.JOHN JAMES M. BOWLING. IV CHARLOTTESVILLE. VIRGINIA 22001 COUNTY ATTORNEY TELEPHONE 206-7138 DEPUTY COUNTY ATTORNEY• December 17 , 1986 Max C . Kennedy , Esquire Chairman , Board of Zoning Appeals of Albemarle County P .O. Box 5025 Charlottesville , Virginia 22905 Re : Kindrick v . BZA (Our file ACPZ 86-743) Dear Max : In accordance with our conversation of this date , enclosed please find a copy of the petition for certiorari , etc . , and the Board ' s response . I think you will find both to be self- explanatory . Until Mr. Katz procures his writ , I see nothing else that needs to be done , and , by copy of this letter , I am advising Charlie Burgess that I see no need to prepare the record until this is done . I think this case is slightly different in this regard from the normal case in that I think there is a bona fide question as to the Kindricks ' standing to bring this cause . If you have any questions , please let me know. Sincerely yours , Frederick W. Payne Deputy County Attorney cc (w/ enc . ) : Mr . Charles W. Burgess , Jr . IR - C2aVEIJ DEC 19 1986 Cnti NTY ;F'T Nape VIRGINIA : IN THE CIRCUIT COURT OF ALBEMARLE COUNTY ALLAN B. KINDRICK , ET AL. , Petitioners RESPONSE TO PETITION V. FOR WRIT OF CERTIORARI AND OTHER RELIEF BOARD OF ZONING APPEALS OF ALBEMARLE COUNTY, ET AL. , Respondents TO THE HONORABLE JUDGE OF THE ABOVE-STYLED COURT : Comes now the Board of Zoning Appeals of Albemarle County , by counsel , and , for its response to the petition for writ of certiorari and other relief filed by the petitioners in this cause , respectfully says as follows : ( 1 ) That the allegations contained in numbered paragraphs 1 , 2 , 3 and 4 of the said petition are admitted ; (2) That the allegations contained in numbered paragraphs 5 , 6 , 7 , 10 , 11 , 12 , 13 , 14 and 15 of the said petition are denied ; ( 3 ) That , as to the allegations contained in numbered paragraphs 8 and 9 of the said petition , this respondent is without knowledge sufficient either to admit or deny the same and calls for strict proof thereof ; ( 4 ) That this respondent notes that , certiorari being a writ at law, this cause is filed on the wrong side of the court and should be transferred ; And now, having fully answered , this respondent prays that the petition be dismissed and that it may be dismissed hence , • together with its costs in this behalf expended . BOARD OF ZONING APPEALS OF ALBEMARLE COUNTY By Counsel GEORGE R . ST . JOHN COUNTY ATTORNEY BY �cdi d! <i Frederick W. Pe Deputy County Attorney 416 Park Street Charlottesville , Virginia 22901 CERTIFICATE I hereby certify that I have this /7 day of h1ojet 19 c , mailed a true copy of the foregoing , by first class mail , postage prepaid to Gerald I . Katz , Esquire , 8300 Boone Boulevard , Suite 310 , Vienna , Virginia 22180 , counsel for petitioners ; and to George H . Gilliam , Esquire , 418 East Water Street , Charlottesville , Virginia 22902 . Frederick W. Pay Noe Noe COUNTY OF ALBEMARLE Department of Zoning 401 McIntire Road Charlottesville, Virginia 22901-4596 (804) 296-5875 September 17 , 1987 Albemarle County Circuit Court Attn : Shelby Marshall Circuit Court Clerk Charlottesville , VA 22901 Re : Appeal For VA-86-38 Earlysville Forest Land Trust Dear Mrs . Marshall : Attached please find one (1) document to be added to the file of the Albemarle County Board of Zoning Appeals action pertaining to the variance for Earlysville Forest Land Trust (VA-86-38 , granted November 11 , 1986) . The enclosed document is referenced in the minutes of the meeting and had been pre- sented to the Board of Zoning Appeals , but was mistakenly omitted from the departmental file . A revised index sheet is also enclosed . Sincerely , de-4 GtJ , Charles W. Burgess , Jr . Zoning Administrator CWBJr/st cc : Gerald I . Katz Alan B . Kindrick George R. St . John Now CORRECTED COPY - September 17 , 1987 Index of Documents Submitted to Board of Zoning Appeal on November 11 , 1986 , for Earlysville Forest Land Trust for VA-86-38 1 . 10/21/86 Variance Application 2 . 9/22/86 Letter to M. Clifton McClure from George H. Gilliam 3 . 9/15/86 Agreement 4 . Plat of Property 5 . 10/28/86 Notification Letter to Earlysville Forest Land Trust from Charles W. Burgess 6 . 10/29/86 Adjacent Owner ' s Letter and List 7 . Legal Ad 8 . Tax Map 9 . Deed Dated 5/22/86 10 . 11/4/86 Letter to Charles W. Burgess from George H. Gilliam 11 . 11/11/86 Letter to George H. Gilliam from Charles W. Burgess 12 . 10/15/80 Minutes of Board of Supervisors 13 . Staff Report 14 . Building Permit #86-1266 NR 15 . Location Sketch 16 . 11/12/86 Letter to Earlysville Forest Land Trust from Charles W. Burgess 17 . Deed between J . G. B. Crenshaw and William Johnson dated November 1 , 1886 , taken from Deed Book 87 , Pages 175 and 176 'T.f OF ALB jq o� of dy< G ,�8, Tl �wr r �RGItyP DEPARTMENT OF ZONING 401 MCINTIRE ROAD CHARLOTTESVILLE. VA. 22901-4596 (804) 296-5875 January 7 , 1987 Albemarle County Circuit Court Attn : Shelby Marshall , Circuit Court Clerk Court Square Charlottesville , VA 22901 Re : Appeal For VA-86-38 Earlysville Forest Land Trust Dear Mrs . Marshall : Please insert the enclosed corrected index for the above referenced case . If you have any questions , please give me a call at 296-5875 . • Thank-you, a(),(tyn Jo+ Sharon Taylor Zoning Secretary st/ Enc . Now CORRECTED COPY Index of Documents Submitted to Board of Zoning Appeals on November 11 , 1986 , for Earlysville Forest Land Trust for VA-86-38 . 1 . 10/21/86 Variance Application 2 . 9/22/86 Letter to M. Clifton McClure from George H. Gilliam 3 . 9/15/86 Agreement 4 . Plat of Property 5 . 10/28/86 Notification Letter to Earlysville Forest Land Trust from Charles W. Burgess 6 . 10/29/86 Adjacent Owner ' s Letter and List 7 . Legal Ad 8 . Tax Map 9 . Deed Dated 5/22/86 10 . 11/4/86 Letter to Charles W. Burgess from George H. Gilliam 11 . 11/11/86 Letter to George H. Gilliam from Charles W. Burgess 12 . 10/15/80 Minutes of Board of Supervisors 13 . Staff Report 14 . Building Permit #86-1266 NR 15 . Location Sketch 16 . 11/12/86 Letter to Earlysville Forest Land Trust from Charles W. Burgess _vY OF ALBF Ok)14 1�F Al.q • < • �rRGiN�N DEPARTMENT OF ZONING 401 MCINTIRE ROAD CHARLOTTESVILLE. VA. 22901-4596 (8041 296-5875 December 30, 1986 Albemarle County Circuit Court Attn: Shelby Marshall , Circuit Court Clerk Court Square Charlottesville, VA 22901 Dear Mrs. Marshall: Submitted herewith are the documents submitted to the Board of Zoning Appeals by the Zoning Administrator on November 11, 1986 , for VA-86-38 for Earlysville Forest Land Trust . Also, please find attached a copy of the verbatim transcript from the meeting prepared by Sharon Taylor, Recording Secretary. An index of the documents is enclosed for your convenience. • Respectfully, 6216AL A) , Charles W. Burgess, Jr. Zoning Administrator CWB,jr/st cc: VA-86-38 Enclosures ' S (r) LAW OFFICES PAXSON, SMITH, GILLIAM & SCOTT A PROFESSIONAL CORPORATION POST OFFICE BOX 2737 CHARLOTTESVILLE,VIRGINIA 22902 418 EAST WATER STREET WILLIAM MASSIE SMITH "- GEORGE HARRISON GILLIAM (604) 296-2161 C.ARMONOE PAXSON WILLIAM MASSIE SMITH,JR. 1 10 0 5-19701 W.STEPHEN SCOTT JAMES E.SKEEN CHRISTINE C.CHAPMAN ROBERT J.KRONER September 22, 1986 M. Clifton McClure, Esquire McClure, Callaghan, Carter, Atkins & Barnes 415 Fourth Street, N.E. Charlottesville, Virginia 22901 Dear Clif: Enclosed is the original, fully signed copy of the agreement dated September 15, 1986, between the Kindricks and Earlysville Forest Land Trust, which I understand you will have recorded. Please send me a copy of the recording receipt. Thank you for your assistance in resolving this situation. Sincerely, PAXSON, SMITH, GILLIAM & SCOTT By: . . . . George H. Gilliam GHG/pah Enclosure cc: Mr. S. Daley Craig (with enclosure) Ernest A. Flynn, Esq. (with enclosure) 0 AGREEMENT, made this 15th day of September, 1986 , by and between GEORGE HARRISON GILLIAM, TRUSTEE FOR EARLYSVILLE FOREST LAND TRUST ( "Land Trust" ) , party of the first part , whose mailing address is Post Office Box 2737 , Charlottesville , Virginia 22902, eVk and PLLAN KINDRICK and ADA KINDRICK ( "Kindrick" ) , parties of the second part, whose mailing address is Jacob' s Run Farm, State Route 743, Earlysville, Virginia 22936. Background. 1 . Land Trust owns a certain tract or parcel of land situated near Earlysville in the Rivanna District of Albemarle County, Virginia, containing 119 acres , more or less , which Land Trust acquired by deed dated May 22, 1986, of record in the office of the Clerk of the Circuit Court of Albemarle County, Virginia in Deed Book 879 , page 350. 2. Kindrick owns an adjoining tract or parcel of land, containing 254 . 41 acres , more or less , which Kindrick acquired by deed dated April 12, 1977 , of record in such Clerk' s office in Deed Book 618 , page 642 . 3. By deed dated November 1 , 1886, of record in such Clerk' s office in Deed Book 87 , page 175, a right-of-way was reserved over a 10 acre parcel of land, being a part of Land Trust' s 119 acre parcel of land, for the use and benefit of Kindrick ' s land. 4. Land Trust and Kindrick disagree as to the exact location and extent of such right-of-way, and have agreed to resolve their differences by specifically defining Kindrick' s right-of-way across Land Trust' s property, in exchange for which Kindrick has agreed to release any and all claims to any other rights-of-way or easements across any property, wherever located, now or formerly owned by Land Trust. Agreement. NOW, THEREFORE, WITNESSETH, that for and in con- sideration of the premises and of the sum of Ten Dollars ( $10. 00) cash in hand paid, the sufficiency and receipt of which is hereby acknowledged, Land Trust and Kindrick mutually covenant and agree as follows: 1. Land Trust and Kindrick agree that there is an easement of right-of-way over and across that certain tract or parcel of land containing 10 acres , more or less , situated in the Rivanna District of Albemarle County, and being the same 10 acre tract of land conveyed to Keith B. Wiley and Mary Hosmer Wiley by deed dated March 7 , 1943, of record in such Clerk ' s office in Deed Book 256 , page 46. Said easement is situated at and along the southern boundary of such 10 acre parcel , being the common boundary between such 10 acre parcel and a parcel of land now owned by William H. Dancy , Jr. , and being also the southern boundary of Lots 136 , 137 and 138 of Phase A, Section Nine , Earlysville Forest Subdivision as the same is shown on the sub- division map thereof , of record in such Clerk' s office in Deed Book 888 , page 489 The easement hereby granted and -2- •r.;,. .,,,_ ;��+x.,��� __.tea ,.��:.�����Fv�.. conveyed shall be fifteen ( 15) feet in width all along such boun- dary line with such line constituting the southern boundary of the easement. 2. Kindrick hereby releases and quitclaims any and all other easements or rights-of-way across any of the properties now or formerly owned by Land Trust. 3 . Land Trust hereby grants and conveys to Kindrick , subject to the conditions set forth in items 4 and 5 of this agreement, a permanent , non-exclusive easement of right-of-way over and across the fifty ( 50) foot easement reserved by Land Trust in that certain deed dated August 1 , 1985, of record in such Clerk ' s office in Deed Book 849, page 295, together with non-exclusive cut and fill rights for future road construction as reserved in such deed. Such easement of right-of-way is shown on that certain subdivision plat of Section Seven of Earlysville Forest which is of record in such Clerk ' s office in Deed Book 849 , page 301 . Land Trust or its successor in title , upon request by Kindrick or their successor in title , agree to sign any and all documents necessary to dedicate such easement to public use. 4. Upon the first use by Kindrick of such fifty ( 50) foot easement described in item 3, the easement granted and con- veyed in item 1 shall terminate and Kindrick agrees to promptly execute and deliver to Land Trust a deed of abandonment whereby Kindrick will abandon , release and quitclaim all right, title and interest in and to such easement. -3- • 0 5. Upon use by Kindrick of such fifty ( 50) foot ease- ment described in item 3 for any purpose other than as a personal driveway or farm road serving not more than one residence house and associated farm buildings , Kindrick agrees to undertake , at Kindrick ' s sole cost and expense , all work then required by the Virginia Department of Highways and Transportation to upgrade the roads in the Earlysville Forest Subdivision due to the additional traffic generated over such roads upon the use by Kindrick of the fifty ( 50) foot easement to gain access to such roads. 6. The easements conveyed and the covenants and con- ditions contained in this agreement are, and shall be deemed to be, covenants running with the land and shall bind and inure to the benefit of the respective assigns of and successors in interest to Land Trust and Kindrick. 7 . In the event Land Trust (or any entity owned more than 50% by S. Daley Craig ) acquires the property now owned by Dancey identified on T. M. 31 , Parcel 46, Kindrick shall be entitled to have a 50' easement across said land (upon the same terms and conditions set forth in item 3 above) at a location which will not interfere unreasonably with said Craig ' s use of said land. WITNESS the following signatures and seals as of the day and date first above written. GEORGE HARRISON GILLIAM, Trustee for Earlysville Forest Land Trust -4- /' O 37 Ig/Q `r/{ (SEAL) -A-ITAN KINDRICK c' AliAl 674 ez__ ei,44:,, (SEAL) ADA KINDRICK COMMONWEALTH OF VIRGINIA CITY OF CHARLOTTESVILLE, to-wit: The foregoing instrument was acknowledged before me this 21 11e/f day of S {,r , 1986 by George Harrison Gilliam, Trustee for Earlysville Forest Land Trust. My commission expires: if loij:z :y 26 lJ !' Notary Public COMMONWEALTH OF VIRGINIA Castncryl i¢t-/f frat/¢/1Gf- 1 OF C E, to-wit: The fore oing instrument was acknowledged before me this -71 /1 —' day of , 1986 by Alan Kindrick and Ada Kindrick . ��� My commission expires: l fc.►�/ J- Atary 1i 151 -5- • • • ALBEMARLE COUN rY VA-86-38 Earlysville Forest --1 5./ / ' Land Trust TM 31 P 46(part of) ,. ! }-7---- ' -%- ,/ / .... 458/ 57� 5f pp, v '✓_______/ ,p� ` \ sc ,.„. ,...-- .s. K..� T, !/ 4 + \UN. �:.42 14). t' •\St• \�. 45 /... ' ..° 6.6 "46 " Ilig:17sC.?;:. \4 41 A.' e 31 Vr•-• P-rx,::''''''7.'6 “ 46's? . 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CHARLOTTESVILLE DISTRICTS i ,*,,, _ ALBEMARLE COUNTY 4t' L at 10 , a WA 01110 ,__ '„, , t OW \ 0 14 v go oirs -IP ® _" 71 .06` .I 70 f .2 .. dtra - as ' .. ,a V ‘,,,.• 41 .. 41* ,L • j• .wwiiiillirt0, I .. no 0\ 4 z ...104 • it ..* ow no4441gisoo 2 �M� EARLYSVIIlE FOREST , ,r 114: -`w�,t t SECTION I D.&717 PG.324 PLAT 341 SECTION 2,308 738 PG 259 PLAT 270 •r11 gGTiON ♦ 08 748 PG WO pL4T419SECTION 5 08756PGPLAT419SECTION 6 09779PGPLOT787BSECTION 78608 796PG PLAT 392-394 C A RIVANNA- DISTRICT SECTION 318 Ile• « 0 -Ir = n M M M Si to W N N c -y�rvi n r N 461 O = to 0 uu wo_ O _ r o -4 cn 0z v, o _ ZN 111 N N 0 41 y (AN O y v Au wIN rri u n n I. 0 iaav � 6 a o O O I s----- �� O '— ' dp c oke) a o O a / For' y C) w ; nl N' = ►wv o / ' n ' (., 0, / w 2 0 �4b c u CI G 4:c 1, of • c. Z 5 "- 6. 0 4 d csi 47 O r 0 Z !� O w 44 CA O 0 0 a) ~ 0 o, /- A 1. (Al a G. C7 O) m "Ch / t.• o+ c S34044 E co ow+ 2a9 0/ — r 0 N Z 6 Ac3 _ o w 1115 o `` 064� w O C , n N 002 o C) O ao cn 4 C7) —4 Ju " 4n "0 -1 1:. C•1 ,s/ (1) , co 12, ow cm .� N au, nA O U N34O4q W r°f -< u O ,- n M S40o00,E 0 I00 J y to 3.39.43 J J ca O 0r 149 n ° -.4 s 0 _ A -- r- o Z O w 0 a ��' "0w 0 c0 w w N \ 'A w -4as y 7 \ \ a Co\ r. w Q a 2a -4 n CO o Ly \/F96 =7 \ \ 0 0 A psi \ ,------ g -4\ ` of �� A 0 / ' • 0 en J p CO I i>• 0 I I aI 1 ti -I 1 t9t. ror aI s..-% s,3o ry y oI I apo s s0 F 1,, W I i C) cj21 0/ ' J .?/ / C) .9 e I "i/ —. N 03 8 2222 2222 n ,.-• .,„j� co f u -wwo oim00n n 8 ,, o 8 w w0 � 3. , _ . O ! - 466 sPi m $ a& -ito a 0 n rrl •• ~ -4 ZI c) rnfl A1fh to Al "I n yv, CD t cm wY ( Z Wwl _w i► w4U � npN0 N (I) ..... to 40 to co (yNr y n • A ...I0r' to O Cow 19 0 A -.4Dw tnx � CO Na o z CA o 4, ii x t \ < o-N os v.)o • LAW OFFICES PAXSON, SMITH, GILLIAM & SCOTT A PROFESSIONAL CORPORATION POST OFFICE BOX 2737 WILLIAM MASSIE SMITH CHARLOTTESVILLE,VIRGINIA 22902 418 EAST WATER STREET GEORGE HARRISON GILLIAM WILLIAM MASSIE SMITH,JR. (804) 296-2161 C.ARMONDE PAXSON W.STEPHEN SCOTT (1905-I976) JAMES E.SKEEN CHRISTINE C.CHAPMAN November 4 1986 ROBERT J. KRONER The Honorable Charles W. Burgess Zoning Administrator County of Albemarle 401 McIntire Road Charlottesville, Virginia 22901-4596 Dear Mr. Burgess: I have received notice of the hearing on Variance Application #VA-86-38 to be held on November llth. This case involves a house which was built on a properly subdivided lot at Earlysville Forest. The house does not violate any platted or other required set-back lines. Subsequent to the time construction commenced, to resolve a question with Mr. Allan Kindrick, Earlysville Forest Land Trust granted Mr. Kindrick an easement over the back of this lot. You have taken the position that the house is too close to the easement. I discussed this matter with Fred Payne several weeks ago. Fred gave me the opinion that the after-imposed easement did not affect the dwelling and that it would simply be an existing non-conforming use. I would appreciate your advising me, in writing, whether your Department' s position is different from that expressed by Fred Payne. Thank you. Sincerely, PAXSON, S ITH, GILLIAM & SCOTT :BY' J� George H. Gilliam GHG/pah rT` �r?� t cc: The Honorable Fred W. Paynei �I, ;, ,i p F eAli Mr. S. Daley Craig " '"� NOV 5 1986 - .. v'vt S bT.'1 1 w:YMENT GO /pF �I A '� • DEPARTMENT OF ZONING 401 MCINTIRE ROAD CHARLOTT'ESVILLE. VA. 22901-4596 (804) 296-5875 • November 11 , 1986 Mr. George H. Gilliam P.O. Box 2737 Charlottesville , VA 22902 Re : Access Easement Dear Mr . Gilliam: As you are aware the Albemarle County Zoning Ordinance establishes the setback requirement for yards adjacent to a street, road or access easement in Section 4.6. 3 . 4 . Specifically, this section states: "4.6.3 Lots, Yards Adjacent to Street 4.6.3 . 4 As to any yard adjacent to a street , road or access easement , the yard requirements of this ordinance shall be deemed to have been complied with if the setback shall be not less than the minimum yard dimensions required thereby. (Added 7-1-81 )" • Historically , this department has required that any existing structures maintain a minimum setback as required in Section 4.6.3 at the time of the creation of street , road or access easement by the property owner. I have also adopted this inter- pretation in order to establish a degree of consistency with the determinations made by previous Zoning Administrators. I believe that this application of the section assures that adequate separa- tion is provided between a road, street , or access easement and a dwelling and inevitably protects the value of the dwelling. I hope this clarifies my position on this issue . I would be happy to discuss this further if you are so inclined. Sincerely, Charles W. Burgess, Jr. Zoning Administrator CWB, jr/mva -4040, STAFF REPORT - VA-86-38 APPLICANT: Earlysville Forest Land Trust TAX MAP/PARCEL: 31B/136 ACREAGE: 1.07± ZONING: PUD (Planned Unit Development ) LOCATION: Located in Earlysville Forest , Section 9, Lot 136 The applicant seeks a variance from Section 4.6.3 .4 of the Albemarle County Zoning Ordinance. This section states: "4.6.3 Lots, Yards Adjacent to Street 4.6.3 . 4 As to any yard adjacent to a street , road or access easement, the yard requirements of this ordi- nance shall be deemed to have been complied with if the setback shall be not less than the minimum yard dimensions required thereby. " The applicant is in the process of constructing a new single- family dwelling on lot 136, a building permit ( #86-1266 NR) having been issued on September 8, 1986. The surveyor plat attached to the building permit did not indicate the existence of a fifteen (15) foot access easement parallel to the southern property line. The Zoning Department was informed of the existence of this ease- ment on or about October 8, 1986. The access easement appears to have been createdty 9,n agreement between George H. Gilliam, Trustee for Earlysville Forest Land Trust and Allan Kindrick made on September 15, 1986. In that the rear yard setback measurement for the dwelling must be measured now from the easement line and not the property line , the rear yard does not comply with the minimum requirement . The applicant requests a variance to reduce the rear yard measure- ment from the minimum requirement of twenty-five (25) feet to ten (10) feet . It should be noted that the building permit indicates that the rear setback was to be forty (40) feet . If the applicant had provided the forty (40) foot setback, a variance would not be needed. RECOMMENDATION The application should be approved for cause: 1) The applicant ' s hardship is that the access easement was established after construction had commenced. Until the access easement was established the structure complied for the setback requirements of the PUD. STAFF REPORT - VA-86-3 2 2 ) The applicant has not demonstrated that his perceived hardship is unique to his property in contradistinction to other properties in the same zoning district and general vicinity. The requirement the applicant seeks relief from is shared by all residential properties. 3) The authorization of this variance will not be of detriment to the adjacent properties nor will the character of the district be altered. Date 9/8/86 Tax Map 31 Parcel 136 . \\*\ <,-''' H :$‘t,F,tA BUILDING PERMIT Land Use Yes Permit # (57e`kWilc County of Albemarle, Inspections Dept. Applicant to complete `.._ , 401 McIntire Rd., Charlottesville, Va. 22901-4596 nered spaces only 'Rctnv Telephone (804) 296-5832 m m 1 Earlysville Forest Land Trust 2 NAME ¢ NAME Craig Builders of Alb_ Tnc. tri 3 0 Z ADDRESS Post Office Box 2737 v ADDRESS Post Office Bnx 6156 a cc p CITY Charlottesville, Va. 22902 r r 4 Z CITY Charlottesville, Va. 22906 K o 0 PHONE_296-2161 0 PHONE 971-1162 H H 5 Architect or Designer Mail Address C W State Reg. County State Exempt r rn 6 Type of frame , Type of Heating/Mechanical ❑Masonry ciWood OSteel ❑Other DOH OGas DElectric EitHeat Pump n 7 Type of water supply L3Fireplace ❑Wood Stove CD • ❑Public OPrivate I3tentral Well ❑Other H ko 8 Type of sewage disposal rl OPublic ISeptic 9 Class of work: %ANEW ❑ADDITION ❑ALTERATION ❑REPAIR ❑Other 6 H 10 Describe work: zi U) Residential Construction U) I-- H ~ No. of stories 1 Sq. ft. area 1st floor 158end floor_ Garage Basement Finished area H (D PROPOSED USE SET BACKS Crawl Space 0 Slab C TJ /t'DT) o Front "• _One Family 3 Bedrooms 2 Baths Back Value of Work 65,000 Permit Fee /� (n _-- Garage Carport R.Sd. V Other L. Sd. Type of Use Floor const. Frame Group Live Load Zoning PIM bist. RiV School Dist. RW Tax Map 31 Parcel 1 3( Size of Bldg. No.of 1 Max. Lot 13 Blk. Sec. 9 Acres (Total)Sq.Ft. 1586 Stories Occ.Load Subdivision _ i Fire Fire Sprinklers Plans reviewed by ' Zoning approved for issuance Buildin Required DYes ❑No g Approveor issuance by No.of 1 Na of Structures lielf(7—ii-K, Dwelling Units)1i/iO' Special Approvals pprovals Required �^Received/ `r Not Required Zoning 1 f 5 /1 , f f T!r. NOTICE { / �(( Y! `.;'`-•'4V. Health Dept. SEPARATE PERMITS ARE REQUIRED FOR JRipAL, Pt, B- ING, HEATING, VENTILATING OR AIR COfJD.FtIONIN(, =a Run Off Control THIS PERMIT BECOMES NULL ANOf'�/OID 1F OR { t-` STRUCTION AUTHORIZED I � N- Service Authority «�$f"i+�Ol'�, GOMMEPI�ED N 6 MONTHS, OR IF CONSTRUCTION OR''WORK IS.SUSNE ED OR Planning r �`/rC drt ABANDONED FOR A PEI fp:,OF':�MO TI lS AT A fiIME AFTER (/� f WORK IS COMMENCED:'. '� �i+ Highway Dept. L.-- I HEREBY C TtPit-THAT,1 NAVE RAND EXAMINED THIS Fire Prevention �'- � APPLICATIOoANf'S'KNOW THE SAME E TRUE AND CORRECT. ALL PRDVt.SI N$OF L'AWS'ANE RDINANCES GOVERNING THIS Prel.Zoning 1 / TYPE or.WORK WIG L$ (3GIA>sPLIED WITH WHETHER SPECIFIED Final Zoning , // HEREIN OR,.NOTE T GRANTING OF A PERMIT DOES NOT PRESUME'T4 G HORITY TO VIOLATE OR CANCEL THE Recorded Plat ) ,� �� / PROVISIONFx(E AN OTHER STATE OR THE PERFORMOARC O LOCAL CONSTRUCTION G �i `-�'�.lX/ 9—����1� CONSTRUCT ... REAL ESTATE DEPT. APPRAISED VALUE "NATURE OF CONTRA TOR OR AUTHORIZED AGENT (DATE LAND $ BUILDINGS SIGNATURE OF OWNER(IF OWNER BUILDER) (DATE) TOTAL $ WHEN PROPERLY VALIDATED (IN THIS SPAC ) THIS IS YOUR PERMIT ,l1/)..., . December 30, 1986 Albemarle County Circuit Court Attn: Shelby Marshall Court Square Charlottesville, VA 22901 Dear Mrs. Marshall: I certify that the attached is a true copy of the transcript and all documents submitted to the Board of Zoning Appeals on November 11, 1986 for Earlysville Forest Land Trust . Respectfully, P&L' 41- Jac4uelyn . Buckle Secretary of Board of Zoning Appeals JNH/st VERBATIM TRANSCRIPT OF ALBEMARLE COUNTY BOARD OF ZONING APPEALS MEETING HELD ON NOVEMBER 11 , 1986 VA-86-38 . EARLYSVILLE FOREST LAND TRUST Those members present were William Roberson , Jr . , William Heath , Carl Van Fossen, Jacquelyn Huckle , and Max C . Kennedy, Chairman. Other officials present were Andrew D. Evans , Deputy Zoning Administrator; Charles W. Burgess , Jr . , Zoning Administrator ; and Sharon Taylor , Recording Secretary. Mr . Evans : O.K . This is 86-38 . The applicant seeks a variance from Section 4 . 6 . 3 . 4 of the Albemarle County Zoning Ordinance . This section states : "Lots , Yards Adjacent to Street - As to any yard adja- cent to a street , road , or access easement , the yard requirements of the ordi- nance shall be deemed to have been complied with if the setback shall be not less than the minimum yard dimensions required thereby. " The applicant is in the process of constructing a new single-family dwelling on lot 136 , a build- ing permit (86-1266) having been issued on September 8 , 1986 . The surveyor plat attached to the building permit did not indicate the existence of a fifteen foot access easement parallel to the southern property line . The Zoning Department was informed of the existence of this easement on or about October 8 , 1986 . The access easement appears to have been created by an agreement between George H. Gilliam, Trustee for Earlysville Forest Land Trust and Allan Kindrick made on September 15 , 1986 . In that the rear yard setback measurement for the dwelling must be measured now from the easement line and not the property line , the rear yard does not comply with the mini- mum requirement . The applicant requests a variance to reduce the rear yard measurement from the minimum requirement of 25 feet to 10 feet . It should be noted that the building permit indicates that the rear setback was to be 40 feet . If the applicant had provided the 40 foot setback , a variance would not be needed . Recommendation : The application should be approved for cause : 1) The applicant ' s hardship is that the access easement was established after construction had commenced . Until the access easement was established the structure complied for the setback requirements of the PUD . The applicant Page 2 Verbatim Transcript VA-86-38 has not demonstrated that his perceived hardship is unique to his property in contradistinction to other properties in the same zoning district and general vicinity. The requirement the applicant seeks relief from is shared by all residential properties . 3) The authorization of this variance will not be of detriment to the adjacent properties nor will the character of the district be altered . Mr . Kennedy : O.K. Mr . Van Fossen : Chairman , before you go, can I ask you a question or legal counsel a question on it too? I wonder if this is properly before us . Is that it looks like that according to the dates that Andy just read is that the building permit was issued on September the eighth and it complied . On September the fifteeth the easement was granted or an agreement for an east ment was taken which was after the fact so to me it appears that the easement is in error or maybe shouldn ' t be recorded or something rather than the set- back requirement here . It ' s just a question before we go . Mr . Kennedy: Let ' s see how those things develop then and then that will probably explain it . (Inaudible) Mr . Payne : I can give you, give you a comment on that . The , this was a question that was posed to me and Mr . Burgess on reply to Mr . Gilliam. And frankly I think it was a pretty close question , and Mr . Gilliam and I talked about it and I told him that I thought that one way to resolve this would be to would be if it were determined that this was of nature of an existing building what would happen is that this setback simply would become lawfully nonconforming as you say the easement was established . You have a building there and the easement was established later . The , you, the building itself is nonconforming. Mr . Van Fossen : Would the easement be non? Page 3 Verbatim Transcript VA-86-38 Mr . Payne : Well , there is a couple of questions whether or not the easement is lawful or not is not really an issue because the easement itself is not subject to the zoning ordinance . You don ' t have to have a setback for an easement you have a setback for the building from the easement , and Mr . Burgess has been I think very conservative in his ruling, and I don ' t have any problem with his ruling. I think it is a very close question and I think that either way would have been an arguable position . I think that if you all determine that in fact this is a lawfully existing nonconforming building the resolution of the matter should be to deny the variance on the ground that no variance is required . You have been asked to be overruling Mr . Burgess ' opinion . You would in essence be allowing the building to remain with the easement there on the basis that you construe this as a non, as a lawfully nonconforming building . Mr . Kennedy: We are not here on an appeal of his decision . Mr . Payne : No , what you have been asked to grant a variance from his ruling that it is not lawful . One other way to resolve that would be to determine that in fact no variance was required because it is lawful . I think that you have the authority to do that under these circumstances . So that was one way to do that . I am not suggesting that that ' s the way you have to do it or should do it or anything else . But if you were of that opinion then that ' s , I think would be the proper way to go about it . Mr . Kennedy : Well let ' s hear what they have to say. Mrs . Huckle : I have a question . It says that the building permit was issued with the understanding that the rear setback was to be 40 feet . Now somehow or other the building wasn ' t built where the permit said it was to be built . Does that make any difference? Mr . Payne : I don ' t think so . Page 4 Verbatim Transcript VA-86-38 Mr . Burgess : The minimum requirements were met . (Inaudible) Mr . Payne : As long as it meets the minimum requirements that is all it really has to do . Mr . Kennedy: The applicant can probably explain that . Mr . Burgess : If I could just make one comment . Mr . Kennedy : Yes . Mr . Burgess : Since I have been here and it appears historically this is the way it has been done if a property owner establishes some type of access easement across his private property for whatever reason at the time that access easement has been established they have been required by the Zoning Department to comply with the setback requirements . So in order to be con- sistent with past administrations of the Zoning Department that is how we determined how I determined that the variance was needed . In that this easement was established on this property by the property owner and he did not meet setback requirements . Mr . Kennedy: What you are saying is you have an existing dwelling and you are going to put a road in and the road when you put that road in it is going to make that dwelling be too close to the road . And before you allow them to put that road to record you will make sure that they comply and then come for a variance . Mr . Burgess : That ' s what has happened several times since I have been here . Not necessarily go for a variance , but to allow proper setback . Mr . Kennedy : I take it that this road already to record . Mr . Burgess : It is . Mr Payne : It is now. Inaudible Mr . Kennedy : O .K. Well are there any more questions to help understand what the applicant and the opposition if any is going to say? Page 5 Verbatim Transcript VA-86-38 Alright , is there someone here to represent the applicant? With that in mind George , help us out with it . Mr . Gilliam: Thanks , Mr . Chairman . The staff report is accurate and we certainly agree that either way that you all choose to resolve this as suggested by Mr . Payne is is satisfactory. What , what happened here is that Allan Kindrick owns some adjoining property and as we proceeded through the Earlysville Forest development , and this is pretty much at the tail end of it . I think it is lot 136 which is right just 20 lots or something from the end . Mr . Kindrick provided us with some historical information including some old aerial photographs and some he traced the existence of an easement back to the 1700 ' s and it was not located . His easement was not located on any plats of public record except as kind of a scriggly line on tax maps that indicated that it was a road . In the area , there is an area which shows some physical signs of an old , very narrow roadway having existed long ago , but there are large trees which have grown up in the general area . And we went back and forth with Mr . Kindrick I guess over a period of five years , and as we got close to building in that area this summer it was in everybody' s interest to resolve it . If we had proceeded to build a house and Mr . Kindrick had later been able to come in and show that he had an easement through the middle of it he could have gotten us , been joined and maybe had the house ripped down or something. So we all wanted to get it brought to a head . Mr . Kindrick was represented by Cliff McClure and I represented the trust and we finally agreed on a fifteen foot strip running up the back of this property line . We went back and forth , and this agreement wasn ' t actually signed until after the day it was dated . As I recall this agreement went through several drafts and revisions , and we started with the date on the 15th , but it wasn ' t actually signed until by the Kindricks on the 19th and by me on the 22nd of September . So it was actually the house was fairly Page 6 Verbatim Transcript VA-86-38 far under construction by the time we made this arrangement. We needed to get the easement of record as I say to solve this this assertion of Mr . Kindrick ' s and to give him what I think that we all agreed that he was entitled to , and that was to simply locate an easement that had not been locatable prior to this time . It is a fifteen foot easement . It ' s not as if a large subdivision access road or or anything like that can go through this area . It does run from the Earlysville Forest line up into Mr . Kindrick ' s property, and so he could he could take a certainly take a vehicle through , although as I say it ' s a wooded area and he would have to do a lot of clearing if he wanted to make any use of it . Mr . Kennedy : George , let me interrupt you for a minute . Mr . Gilliam: Yes , sir . Mr . Kennedy : The plat of phase 8 , section 9 , Earlysville Forest . I can ' t locate the easement on it . Inaudible . Mr . Van Fossen : It is right here along the back property line . Mr . Gilliam: It is on the scale . Inaudible . Inaudible Mr . Kennedy: This runs parallel to the lot line . Mr . Gilliam: Yes , sir . 15 feet . This is the lot that (Inaudible) . Mr . Kennedy: I heard you say lot 136 was the lot . (Inaudible) Mr . Gilliam: Ellen owns this property, (inaudible) . Mr . Kennedy: This is not the plat that was put to record to show the easement . Mr . Gilliam: No . Mr . Kennedy : Well it is just a road parallel to all (Inaudible) 136 and 137 and 138 . Mr . Gilliam: That ' s , that ' s correct . And , of course , we did not we didn ' t Page 7 Verbatim Transcript VA-86-38 have the same problem on on those two. And I don ' t think that any of us realized at the time how close it was to the house that was already under construction . If , if this were an area where a you know a major through road could go I would think that there would be a wholly different con- cern than there is with just a 15 foot right-of-way, which does not meet any of the state or county requirements for a through road . It , it makes no different to to us , Mr . Chairman, whether or not you resolve it by saying it is an existing nonconforming use and we don ' t need a variance or if if a variance were granted . But I think that we are all interested in getting the record straightened up so that we don ' t , we don ' t have a question come up in the future . Inaudible . Mr . Gilliam: Mr . Van Fossen . Mr . Van Fossen : Did you all consider maybe going onto the Dansey property to get the easement to go down which wouldn ' t require a variance on this thing. Mr . Gilliam: Well , we don ' t own the Dansey property. Mr . Dansey does . I believe that Mr . Kindrick has from time to time in the past had discussions with Mr . Dansey, but I don' t know what the you know what the status of , what the status of that is . Our agreement with Mr . Kindrick also gives him another easement farther away that would come directly into one of our cul-de-sacs , and this agreement provides that and at the other easement that we 've given him it provides he would have 50 feet . So if he ever wanted to cut a subdivision road into his property he would have to use this alternative area and it says here that upon the first use by Kindrick of such 50 foot easement described in item 3 , the easement granted and con- veyed in item 1 , which is the 15 foot one , shall terminate and Kindrick agrees to properly execute and deliver to land trust a deed of abandonment Page 8 Verbatim Transcript VA-86-38 whereby Kindrick will abandon the lease and quitclaim all right , title , and interest in and to such easement . So if he ever wants to do a sub- division in his property he can get the 50 feet by going further away and at that time this 15 foot easement that we are talking about would be aban- doned . And I don ' t know how Mr . how Mr . Kindrick viewed it, but I think that that our view was that at some time in the future he would want to exercise his right to put in a 50 foot and he would have to go to another location to do that , which we have already granted him the right to do, and that this easement would then be abandoned . Mr . Roberson : What cul-de-sac does the 50 foot easement go into, the name? Mr . Gilliam: What ' s the name of that? Mr . Hunter Craig: Carriage Hill . Mr . Gilliam: Carriage Hill . Mr . Craig : First one on the right . Mrs . Huckle : So it ' s on here , the 50 foot . Mr . Roberson : Same , same cul-de-sac . Inaudible . Mr . Craig : Excuse , excuse me . Mrs . Huckle : Carriage Hill . Mr . Craig: The 50 foot wide one goes into the Saddle Court cul-de-sac . Mr . Gilliam: That ' s , it ' s down this way. Mr . Craig: Previous section . Inaudible . Mr . Gilliam: That ' s , that ' s the one . Mr . Roberson : What ' s the name again? Mr . Craig : Saddle Court . Mr . Roberson : Saddle Court . Page 9 Verbatim Transcript VA-86-38 Mrs . Huckle : Oh , O .K . Mr . Kennedy : Well anyway the 50 foot easement is a considerable distance from this 15 foot easement. Mr . Gilliam: Yes , the two are unrelated and I think that our view was that this would would give Mr . Kindrick a method right now to get in and out of his property. But if he ever wanted to subdivide it and put in a state road that he would use the other because this isn ' t wide enough for a state road . Mr . Kennedy: Any other questions for Mr . Gilliam? Mr . Gilliam: Thank you Mr . Chairman . Mr . Kennedy: O.K. Anybody here else to speak? Anybody in opposition? Mr . Allan Kindrick : Mr . Chairman , Commission , I am Allan Kindrick . I am one of the property owners who feels he has a legal right to use that easement . One of the things that disturbs me is that this is being pre- sented as a new easement . Not meaning to burden you with a lot of paper , but this old road was put into use somewhere about the same time that Albe- marle County was formed back in the 1740 ' s . It does wiggle and scriggle as Mr . Gilliam indicated . I have been able to find most of the locations by title search . But most specifically the right-of-way that we are re- ferring to now, the section that we are referring to now on the back of lots 136 , 137 , and 138 was defined by deed in 1886 , and I have highlighted the spot there . Now that is the same location along the same property line that this new instrument reputedly is a new easement for . Mr . Van Fossen : Mr . Chairman , I am at a lose to see here that I think that Mr . Gilliam said that he has a contract where Mr . Kindrick agreed to this easement and now Mr . Kindrick is opposing it . The Mr . Kennedy: Well I was kind of worried too, but I was going to let Mr . Kindrick finish and see . If , if , this is not the quorum to discuss the Page 10 Verbatim Transcript VA-86-38 agreement that you have already made . It ' s really to decide whether the Zoning Ordinance is being violated by Mr . Kindrick : That ' s right . Mr . Kennedy : By allowing this line , this road to be too close to the dwelling. Mr . Kindrick : O .K. Now there is a copy a piece there actually. That easement stayed in the dockets . The land was traded some five or six times during the next 100 years . It is still listed when Earlysville Land Trust bought the land . It is still shown . Now, back in 1980 when this thing first became came before the Board of Supervisors October 15 , 1980 , I pointed out at that time that this easement existed and I would like the County to help me preserve it . And there is a copy of that page of those minutes . Over the next five or six years there is a great deal of corre- spondence over this easement , and denial as to where it is located and where it isn ' t located and what have you. I was not able to see the build- ing permit for this lot when I went to the Building Office . It seemed to be out of pocket and I was to be called when they found it . That was the 29th of October . To date they have not called me to tell me whether they have found it or not so I didn ' t know about this 40 foot versus the 30 foot location of the site . I did somewhere in this time frame go to Mr . Agnor ' s office and tell him that the foundation was down and it appeared to be too close to the right-of-way. This was before construction started . Apparently nothing was done about it . The house is now basically completed . The instrument that has been referred to here is a new easement , actually was an instrument which had a benefit to the Earlysville Land Trust because there are some houses built in the earlier stages of this building that I suspect I can show a right-of-way through . I signed off on them for a width definition on this easement . Not a new easement , but for a width Page 11 Verbatim Transcript VA-86-38 definition . I have tried repeatedly to get the County to protect that width . Let ' s talk just a moment about why we have zoning and the purpose of Zoning as I understand it is for protection, health , and welfare . Now I am going to use that road , possibly even build a house on that side of the space and use that as my private driveway, eight or ten trips a day, maybe more . I will be pulling farm machinery over it . I don ' t really feel that it ' s fair to a new home owner to be saddled with a back yard some eight or nine feet wide against a traffic lane when I believe that everybody in- volved knew where this was before that concrete was poured . They certainly knew before the framing was put up if Mr . Agnor had of conveyed my message . Probably one of the first things that is going to happen to this road in the near future , there is a logging operation that is fixing to take place back there three to four months in duration, which means there is going to be tractors and trailers dragging through it . That is certainly not a safe condition . I don ' t know that I can add a great deal more to what I have already said to you except that I appeal to you to protect my interest in it because this is a high turn over area , about every six months to a year I am going to have a new owner in that house and I am going to have a new conflict because he is going to think that I am running through his back- yard . I really appeal to you to protect my interest , and I have been in this room before Planning Commissions , before Board of Supervisors . So far I have gotten little or no help even though it is a legal documented deed dating back over 100 years and has been in the records the entire time . Thank-you. Mr . Kennedy: Thank-you sir . Let me ask you this . Mr . Kindrick : Oh certainly. Mr . Kennedy: In summary you don ' t deny that you went into an agreement Page 12 Verbatim Transcript VA-86-38 to establish the easement from whatever it is , Carriage Hill Drive back to your property. Mr . Kindrick : That agreement in my understanding only establishes width . It did not move it . It didn ' t relocate it . It only established the width in it as an agreement not to do anything about that part of the easement beyond it . Mr . Kennedy : And your position is that road was always there . Mr . Kindrick : It ' s always there . Mr . Kennedy : (Inaudible) Of record . Mr . Kindrick : And it shows . Mr . Kennedy: Inaudible . The question about the width . (Inaudible) Mr . Kindrick : And it specifically says where it is because it has always been there . Mr . Van Fossen : Nothing in this (inaudible) width though . Mr . Kindrick : Width is not specified , and I don ' t claim that width was ever specified . Mr . Van Fossen : So the detriment of a 15 foot width then wouldn ' t be to you, it would be to the person who buys that piece of property. Mr . Kindrick : Except that I 'm going to have to deal with constant owners there and I think that you are sitting up a safety factor or a hazardous factor there with a driveway within eight feet of a house . Mr . Kennedy : In other words . Mr . Kindrick : These are basically young families with small children . This is first ownership type of homes . Mr . Kennedy : Then your solution is to have Earlysville Forest move the house? Mr . Kindrick : That ' s my solution . It shouldn ' t have been there . I came to the County as soon as the concrete was poured and nothing took place . Page 13 Verbatim Transcript VA-86-38 Mr . Roberson : How often do you use this road now, Mr . Kindrick? Mr . Kindrick : Not very often . It just can get a truck through it now. Mr . Kennedy : Are there anymore questions for Mr . Kindrick? Thank-you sir . Mr . Kindrick : Thank-you. Mr . Kennedy: Anybody else to speak? Let me see now. If there is nobody to be heard your public hearing will be closed . Alright, as I understand it the question before the board is that the house was built and in con- struction and at the same time the discussions were going on concerning the location of this easement . Of course , I figured both sides would pro- bably say that it was located here and certain wide here and somebody says this and somebody says that . In the long run they agreed to establish this easement on the back of the lots 136 , 137 , and 138 and recorded that . When they recorded that , that made that building that was in certain stages of completion nonconforming. So either you don ' t grant the guy a variance , you will be nonconforming. Now I suppose the County could take action for the road to be moved . Mr . Roberson : The road or the house? The house . (Inaudible) Mr . Kennedy : Well you can' t move , move the road . Mr . Heath : Move the house . Mr . Roberson : Let me ask you this . If the house was there, the house had been there for years and then the easement came up, what action would we take? What would be our course of action? Our course of action would be to grant . Mr . Kennedy : Well you would probably have to have more facts . You would probably we would explore that and we might call the people back , but it might be certain reasons for having to locate that house where it is , other ' Page 14 Verbatim Transcript VA-86-38 than just happens to be located there . Mr . Roberson : Well , we have had . Mr . Kennedy : You can go into it with a different point of view, topo- graphic reasons . Mr . Roberson : Yes , what I am getting at is let ' s not compress things and complicate them just because they are compressed into a short period of time . We have had occasions where we where we have had houses that were built too close to roads , and we granted a variance . It seems to me to be the simple thing to do here . This appears to me to be an unused road . It hasn ' t been used in the past . We 've heard statements that trees have grown up in it . Mr . Kindrick says you could barely get a truck through and that he doesn ' t use it very often . I don ' t really see the complication . Mr . Kennedy: Alright . Mr . Roberson : I don ' t really see the big complication . Mr . Van Fossen : I don ' t either , Mr . Roberson . The other thing that I was going to say was that maybe it wasn ' t properly before us because the building permit was granted based on County records of what they could do that the easement did not exist per say, you could argue that , but the building per- mit was properly granted according to their records . So you know we could either grant the the setback variance or we could say that it was not pro- perly before us . The easement couldn' t , well they would have to resolve that themselves how to record the easement . Mr . Roberson : Well , that was my, that was my position . When the building permit was granted then from a practical standpoint , probably from a legal standpoint , the building was there . Whether it was built the next day or six years later , it was still there , correct . So then if the easement comes up later , we have to resolve something. Page 15 Verbatim Transcript VA-86-38 Mr . Kennedy: Well I had a problem with that building permit part too. It would seem to me the building permit says something about 40 feet . No one really realized where the road was at that time . (Inaudible) I guess the road would even be there probably at that time . Mr . Payne : Mr . Chairman, I would like to comment on this road . (Inaudible) Mr . Kennedy: Yes , sir . Mr . Payne : One of the issues that concerned me was when the building exists for the purposes of being a nonconforming building. I am not perfectly sure that the Supreme Court has ever answered that question. But what we do know is that if you have a permit of appropriate source , a building permit would be one , that ' s issued and thereafter money is spend in good faith reliance on that project that you have a vested right in what- ever that is . That analysis would apply to this . So I think that if the situation were that the building permit were issued and then this arose , then I would think that probably would not be a , a lawfully nonconform- ing use . Clearly if it was finished and ten years go by then it is obviously a nonconforming. The only issue that comes up if the building is somewhere between their paper building permit and being completely finished when the problem arises . And that was one of the issues that concerned me whether it was sufficiently in existence . I think that the fact that the building was substantially under way would be sufficient and give him a vested right in that building . Mr . Roberson : You intend to agree with what I am saying or disagree . Mr . Payne : Well what I hear in this case the building was substantially. Mr . Roberson : The building was there . Mr . Payne : It wasn ' t complete , but it was there had been substantial expenditures on this tract . Page 16 Verbatim Transcript VA-86-38 Mrs . Huckle : The question that I was going to ask you according to Mr . Kindrick this is an old right-of-way road preexisting any construction on this lot , any footings or anything. Why wasn ' t it noted? Wasn ' t it noted on the deed? Mr . Payne : Well , what Mr . Gilliam has told me and what he told you now was that it was difficult or impossible to locate it with precision and and that ' s that happens sometimes . Now I want , the reason I got up and was roaming around disturbing your meeting is that I was trying to look at the last line of this deed on this 1886 deed on page 175 I think it is , and it ' s not there . I can ' t read it . The the description of the road is run along a certain property line . I can ' t tell which property line it is . Mr . Kennedy : I think that it is safe to say the party probably had dis- agreement over where the easement was located and its width, and they settled that by the agreement . Mr . Roberson : It appears to me . Mr . Payne : No, what the what the agreement said is that there is a dis- agreement as to its location , and that granting that this document does two things with respect to to the old easement and (1) it locates a new easement and (2) Mr . Kindrick releases any any claim that he has to any old easement . So if , for example , this is not the facts for this case , but if it were the case that we knew that the old easement ran right through the middle of the lot if that was what the facts had been I think that is not the facts of this case, but if those were the facts what this would have done is it would have moved the easement from its first location to its new location . I think the question in this case is is that it was not agreements to where it actually was . I don ' t have the last , the last Page 17 Verbatim Transcript VA-86-38 page of this deed I might be able to (inaudible) . Mr . Kennedy : I don ' t think it makes any different because the fact is that it was somewhere else or the party wouldn ' t have argued on it , and now they have agreed where it was located . Mr . Roberson : Well , what contractor . Mr . Kennedy : It speaks for itself . Mr . Roberson : What they are asking for is a variance to build a house too close to the road . Is that correct? Well if we grant that then I think the situation more than probably will resolve itself because the two parties have agreed to an outlet for Mr . Kindrick that is far more more better than this 15 foot outlet . When he uses that this 15 foot easement becomes obsolete and nonexistent by the reading of their agree- ment . I really don ' t see any complication . Mr . Van Fossen : Mr . Chairman, it is the purpose of this board to grant relief to an applicant whereas we are not adversely affecting another party or the public and where that the granting of such variance will alleviate a clearly demonstrable hardship approaching confiscation , as distinguished from a special privilege or convenience and all . And you know I think that that that ' s our purpose is to if we can find a reason to grant a variance from the ordinance on a hardship basis is that ' s the purpose of us being here . Mr . Kennedy : I want to carry it one step further too would be to look to the lot , the lot involved to the particular parcel of land that is involved . (Inaudible) Mr . Kindrick said that he ' s involved by the use of the road and the house is too close to his road . That is kind of a reverse way of looking at a variance situation . (Inaudible) Mr . Van Fossen : Well I am going to make a motion that the variance be Page 18 Verbatim Transcript VA-86-38 granted in that the adverse use of this easement is upon the applicant or who they sell their property to, not upon the opposing party here . I move that the variance be granted . Mr . Roberson : I ' ll second . Mr . Payne : I take it that the board is endorsing the findings of the Zoning Administrator as expressed in the zoning, in the staff report . Mr . Van Fossen : The building permit was issued in a proper way that it was recorded at that time . Two, I think that it is a hardship on the applicant . Mr . Kennedy : Are we going to have any trouble with the way that motion is phrased . Mr . Payne : Well that ' s the law requires that you state your finding with respect to the existing the hardship, and I think that the staff report lays that out . And what I understand from Mr . Van Fossen is that his motion contemplates that the board if it passes this motion will be saying that it agrees with the Zoning Administrator with respect to the existence of a hardship . (Inaudible) Mr . Van Fossen : In accordance with 34 . 2 , I guess it is paragraph 5 . (Inaudible) Mr . Kennedy : Well that that ' s the motion now we have to vote on it . O.K . It has been moved and seconded that the application be approved with those understanding. All in favor , call role Mrs . Taylor : Mr . Heath . Mr . Heath : Aye . Mrs . Taylor : Mr . Van Fossen . Mr . Van Fossen : Aye . i Page 19 Verbatim Transcript Mrs . Taylor : Mrs . Huckle . Mrs . Huckle : Aye . Mrs . Taylor : Mr . Roberson . Mr . Roberson : Aye Mrs . Taylor : Mr . Kennedy. Mr . Kennedy: Aye Mr . Gilliam: Thank-you, Mr . Chairman . Mr . Kennedy : The application is approved . Thank-you gentlemen for your help . 349 October 15, 1980 (Reg' ar Night . eeing) — — -- — ------- ------- ------ Mr. Fisher asked Mr. Tucker about the phasing of this project, and the dam which is proposed. Mr. Tucker said the dam is scheduled to be constructed sometime during or prior to phase three. Mr. Fisher said he felt the applicant should address the question of water runoff in this area and its effect on Chris Greene Lake. At 8:06 P.M., Mr. Fisher declared the public hearing opened. First to speak was Mr. Roy Parks, representing the applicant. Mr. Parks presented a series of maps showing densities, wooded areas, soils and slopes, topography, drainage and roads. Mr. Parks indicated that drainage from the proposed site would flow toward Chris Greene Lake, but that sedimentation ponds will be used to prevent runoff and erosion from the site. Mr. Parks said the proposed dam would also aid in preventing runoff into Chris Greene Lake, as well as serve for additional recreation within the development. He said the road layout was discussed with the Virginia Department of Highways and Transportation, and that there would be a buffer of approximately 300 feet surrounding the site to act as a separation for the subdivision. Next to speak was Mr. Tommy Turner who said he is an adjacent property owner, who is not opposed to the plan presented, only the possibility of opening Viewmont Road and the road on which the kennel is located. Mr. Turner presented a petition containing 28 signatures representing a total of 102 persons. He said this street is presently used like a cul-de-sac by dozens of children as a play area and people signing this petition wished to retain Viewmont Road in its present state. Mr. Turner next stated his concern about the proposed entrance to this development at Route 743 across from the entrance to Whyte's Store. He indicated that this is already a dangerous and busy intersection, and suggested the developer take advantage of the road frontage available, and move the entrance one-half mile closer to Teledyne; thereby eliminating much congestion. Next to speak was Mrs. Ann Zimmerman, who said she would like to see some protection of the areas in Earlysville which are already developed, not only the proposed project under consideration tonight. Mrs. Zimmerman said the plan as presented will disrupt Earlysville Heights which is an already settled community and may in time cause it's deterioration. She also reiterated Mr. Turner's concern about the safety of the children and the opening of Viewmont Road. Next to speak was Mr. Allan Kindrick who said basically he has no objection to this development, but that it would deprive him of access to his property. Mr. Kindrick said at the time of construction of Chris Greene Lake, a private easement was taken by the County for the park area, but that a public easement on the western portion of the pro- perty remains. Mr. Kindrick indicated that this public easement is shown on the maps used by Mr. Parks, and stated that if access to his property is not reestablished, he will have no alternative but to take court action to regain his access. He requested deferral of action until the matter of right of way is cleared, or pass this special permit request with a condition that access be granted to his property. ' ►1 Mr. Wendell Wynn, attorney representing Mary H. and Thomas G. Lupton, said the public # road does not now and never did exist. He said there are no records indicating the ►A existence of such a road as mentioned by Mr. Kindrick. Mr. Wynn said in searching the chain of title, back as far as 1857, there is no mention of a public road. Mr. Wynn said Mr. Kindrick's property has access from Route 743, and therefore is not being left land- ' locked by this proposed special permit, and stated it is not the burden of the Luptons to • grant additional access for Mr. Kindrick. Mr. Russell Morris said he owns a lot adjacent to the Kennel Road. He said he is opposed to the development of the Kennel Road area for a public park because if is likely to lead to disturbances or vandalism of his property. He said he would also like to see the entrance to this development moved away from the intersection of Route 743 as earlier suggested by Mr. Turner. Finally, Mr. Morris said he was concerned about the availability of water, since Teledyne and many homes in the Earlysville Heights area have experienced low water levels. Mrs. Linda Evers said she lives at the corner of Ridgemont and Viewmont, and stated her concern for the children of Earlysville Heights if development of Forest Run takes r place as planned. , Mr. Kindrick spoke again saying that at the Planning Commission hearing, Deputy County Attorney, Frederick W. Payne stated that "once a public right of way, always a t public right of way, unless removed by action of the government." Mr. Kindrick then asked Mr. Parks if moving the proposed entrance to Forest Run would affect the highway plans. Mr. Parks said it might affect the category of road which the Highway Department feels is rl j t necessary to accommodate this development. Mr. Parks said if the entrance were moved it would not affect the requirements set by the Department of Highways and Transportation, hi a but that to move the entrance would be most difficult, as it would require crossing a S stream. L p 1 Mr. W. B. Coburn, Assistant Resident Engineer of the Virginia Department of Highways 1 and Transportation, stated it is the general policy of the Highway Department to align intersections. He indicated that the only road in Earlysville Heights that is not a cul- de-sac is Viewmont Road, which dead ends at the property line. Mr. Coburn said if this were converted into a through street, he did not foresee a great deal of additional ---, LI traffic for Viewmont, because it does not create a "short-cut" to anywhere. Mr. Eugene Wright said as soon as Viewmont is opened, it will become a more heavily travelled road, because people will use it to get to the proposed park. He stated his 1 concern of it becoming a hangout for teenagers and asked if additional police protection 1 would be provided to the residents. Mrs. Zimmerman spoke again adding her concern about the overcrowding of Broadus Wood School. At this point, with no other member of the public rising to speak, Mr. Fisher '- declared the public hearing closed. At 9:12 P.M., Mr. Fisher declared a five minute recess. The meeting was called back to order at 9:20 P.M. • Mr. Lindstrom asked about the status of Viewmont Road. Mr. St. John said he felt since the ro wa e`:t1rt a part of Earlysville Heights, no other developer could alter -tF ( T: . r10'1 < the residents of F r-1,,rvi; t. ' ,.ufY,tiha lr�t i�t�., a ,..f;i. ss°"+�.• r� t. t •K� `9 ` l:x v�y. • • 1, D goo A 3 4 F; r r V 4 • • I. TritS DEEu nadu this 22nd day of May. 1986, by and et en Mary H. Luotan and Thomas G. Lupton, her husband, parties ?sir, . , f the first Gilliam,art; and George Harrison an, Trustee for P �� • •1T J •ar1vsville Forest Land Trust under agreement dated April 30, P �++„�� ••-, � ;s• � - ;�.; ate. .981, party of the second part. V I T H L S SET it 2 i•'g rM "i�t ri r,. :: That for ara in consideration of the sum of S234,000.00, ` ti • ,erl ,�' f'Sr k;9 i I•.. i .r. �, it , of which the sum of S25,000.00 is cash in hand paid by the party 2,,, '* `� s.,,;: ' 1.. )f t:o second part, receipt of which is hereby acknowledged by "he parties of the first part, and the balance of S209,000.00 is , i 1 :viderced by a deferred purchase money note of the party of the Second part secured by a first lien deed of trust executed � ` �` contemporaneous', --•••4 th, said parties of the first part hereby Grant, Bargain, Sell and Convey with GENERAL WARRANTY AND ENGLISH • ; t3: r COVrNANTS OF TITLE unto said party of the second part, all that r SZ a`.i•++w �' -tom- • • t. ! AN a '.'�1 `ui i certain tract or parcel of land, situated near Earlysvi1le in •,k '¢ , ;•` • the Rivanna District of Albemarle County, Virginia, wi.:h all , a'nurtenances ..hereto described on the land books ;:an• '; , ,, . , „. r pertaining, ,�,i Y?• ' ' .i't` of the Albemarle County Real Estate Department as containing ;� i`l� }, , aM e • •• 111 acme hut bP1iv'4i to contain ln9 acres, more or less, being i r.z th; . .?L 4'•;,;• z... . a tract contaiaing 10 acres, more or less, described in a deed , '3 >+rr ; rated November 1, 1886, of record in the Clerk's Office of the :,� �Y • :t; l • ,., Circuit Court of said County in Deed Book 37, nage 175, and a f ., } ; tract of 108 acres, more or 1•!ss, designated as "Residue, ';eta i • t�r �.,K . ! , ram•• + r 118.7 acres. on a olat made by Gloecl:ner, Lincoln & Osborne, Inc. , ^ + ' •' • `< z > cc::.:iflea aat21 ta•' 4 , 19E'1, of record in said ;� � n.s f' ',�•, Cler'.:' s 'D: =icr. in Deed 'ocl: 717, page 36. Said 10-acre tract i • • r »'= sal:"is'c' •.1- ^on.•� l:ei �:� Hosmer.,t, : !t�.r•/ ililey, now F ; • ^ ni �,,s•,�, t..- ti,::,; it f ,. n r t„� F �r 1 ara :�i Joe,' ^� George 7rnnk norrls, •R r t ¢�� f „ �;• 1 .:arL.. 1 i-. ' , of rocori in sAij C`___ .' r�`:lc ' } ci• # -s�. a i'ff't° +j • i• "� T• 7i t, .�4 • - `tom. r02,-ta-t • 7. • ;x._ ri41 eta w 4; t l k ic t >\.v 3 '�' _4 '�-I e,4, -�"♦ i ,.' .. •4 r •fit+ ` • 4, in Deed look 256, page 46. The 109-acts tract is the residue • ,, ^Y v . - of 527 acres conveyed to Keith B. Utley and Mary Hosmer Wiley, _.. ,1 , • now Mary H. Lupton, husband and wife, jointly for joint lives j •': with remainder upon the death of one to the survivor in fee r;. y'- simple, by deed of Charlotte Thomas Wiley and Bradford K. 4 "'*-`` dated December 20, 1944, of record in said . '' Wile', hPr husband, �•,�•...Yt. Clerk's Office in Deed Book 261, page 522. The said Keith B. :;-. 4 Wiley died in 1955. . ,_ -; Said property is conveyed subject to the easer••..nts, ter.•_.;:-;.; .r 'i•' conditions, restrictions and reservations contained in duly :, recorded deeds, plats and other instruments constituting con- , ; .: f'4 r structive notice in the chain of title to the property hereby .,!''. ;.,•_., 57 conveyed, which have not expired by a limitation of time con- c -r ;: tainea therein or have not otherwise become ineffective. :aw;. �l''-� i - !A4 i The aforesaid property is conveyed to the party of the _•.A.s;;: . second part TO HAVE AND TO HOLD the said Property, in fee simple ;'�== `' upon trust and for "` :. ,° with the appurtenances thereunto bel ing •`jam r= ';4 the uses and purposes set forth herein and in the Earlysville . <:. �. t . p1 t,;ti I _ : •.� `' Forest Land Trust Agreement dated Aaril 30, 1981. —re,*74 a a- ,1,1 Full power and authority is hereby granted to the ye' iz ITrustee, and his successors, to protect and conserve the said ...:,-:;:yy Property; to sell, contract to sell and grant options to purchase 'the said Property and any right, title or interest therein on +, 'i any terms; to exchange the said Property or any part thereof for .A4t4 any real or personal property upon any terms; to convey the said 7. t ,;. Property by deed or other conveyance to any grantee, with or ;` - .. without consideration; to mortgage, pledge, or otherwise encumber ;;,;�„ "ems . 'i the said Property or any part thereof; to lease, contract to .t - , :. > urar.:: options tc lease and renew, extend, amend, and •.•--••u. t3Y`;'•y r,ther• it:(, 7,� . e is:os on that said Property or any part thereof = , •-- 7114 . .�..'Jt t +. 4 r J .; . ,1.:.: from .imc to tine, for any rental and upon any other terms and .- `.mix conditions; and to release, convey or assign any other right, s,..: title or inte= st whatsover in said Property or any part - .; '. thereof. 'sue Ui No party dealing with the Trustees, or his successors, a.;-;!..-" in relation to the Property in any manner whatsoever and (without .K..� . `^.t, limiting the foregoing) no party to whom the Property or any part '.:r thereof, or any interest therein shall be conveyed, contracted to be sold, leased or mortgaged by the Trustee, shall be obliged _" A. (a) to see to the application of any purchase money, rent, or y. _ money borrowed, or otherwise advanced on the Property; (b) to see i' '_.c_ that the terms of this trust have been complied with; (c) to =- inquire into the authority, necessity, or expediency of any act -4 - of the Trustee; (d) or be privileged to inquire into any of the :" --, terms of the trust agreement. Every deed, mortgage, lease or .fr- :. A other instrument executed by the Trustee in relation to the _ _ Property shall be conclusive evider : in favor of any person . ..:,: ,? , claiming any right, title or interest thereunder (a) that at the t,—,o , time of the delivery thereof this trust was in full force and a ''. effect; (b) that such instrument was executed in accordance with "`•-� the terms and conditions hereof and of the trust agreement and is _ ' - binding upon all beneficiaries thereunder; (c) that the Trustee was duly authorized and empowered to execute and deliver every .;• s'ich instrument; and (d) if a conveyance has been made to a +,'. successor or successors in trust, that such successor or successors , have been properly appointed and are fully vested with all the `--; - # Y title, estate, rights, powers, duties and obligations of the x; A t: - predecessor in sr.tst. x b �. The Tr•ist:u shall have no individual liability or obii- ; x = , +� 71t_^ 'y�:.l'"5 3L 131:1'j iron"i113 ownership as Trustee of the �i ,; . _ ram '7 :_ legal title to said Property, or with respect to any act done or ^ i contract entered into or indebtedness incurred by him in dealing .' r with said Property, or in otherwise acting as such trustee, ,-_ except only so far as said trust property and any trust funds in "�` the actual possession of the Trustee shall be applicable to the u payment And discharge thereof. KR : "` =r"`Y A copy of: the trust agreement mentioned herein shall be = - � '-`cilzr 4: filed in the offices of Paxson, Smith, Gilliam fi Scott, a`+:'" Charlottesville, Virginia. The interest of every beneficiary hereunder and under =: r the trust agreement and of all persons claiming under any of them e-.- shall be only in the earnings, avails and proceeds arising from h - t the rental or sale or other disposition of the Property. Such =•.: _• interest is hereby declared to be personal property, and no { +'` y beneficiary hereunder shall have any right, title, or interest, ,-•. 4...z r--- legal or equitable, in or to the property, as such, but only in ..: the earnings, avails and proceeds £ereof as provided in the t. trust agreement. i.atT=- ` In the event of the resignation, death, incapacity, . -= removal or absence from the State of the Trustee, a successor t,,,...., trustee may be appointed by the unanimous written consent of the :"s:-•+►-_, - beneficiaries by an instrument duly executed, acknowledged, and _ recorded in the Clerk's Office of the Circuit Court of every : _;_ jurisdiction in which trust property is situated; or such suc- :; ;�� cessor trustee may be appointed in accordance with Section 26-49 , -IC . of the Code of Virginia. Successor trustee shall have all the r`a, Tea. 4 k .4 . .. • • ,N�- fir 1 •` t I • J "� t. • 1 • L. ..n:- -. r t, . • Y .. • rights, oowers, authorities and duties .vested in the Trustee .',` • ` named herein. This deed is to be governed by and construed with ,.;.,';^ ..• . reference to Section 55-17.1 of the Code of Virginia. it • :r 0, WITNESS the following signatures and seals. r r..._../4z, •f•-•$e ,-7' 5 �? (SEAL) ,r5 1n . f JAA,,&q ,1 2Jter3 (SEAL) - Thomas G. pton- I 1 STATE OF VIRGINIA, at large H CITY OF CTiAR OTTESVILLE, to-wit: . ' The foregoing deed dated May 22, 1986, was acknowledged .., t, _fib C.t. before me this L') ' day of �~i , 1986 by nary H. Lupton and , >'`" z Thomas G. Lupton. =a- My commission expires: fassfer-1 lot/q f'a v.7.F t f is I4 ; 114101.." /74.,....4.4„....q.),„ "it 409, Rotary Public F "':"'' "- :Lil' IL ey^: r, ,P.t-,,- r' r • K TRL!- • USE.'`rr Nu-mEl 0413 .r1x.��1,4..wt.,'aA r4,_'.. r ' V. VL'..CETIA: Et I1E CT 7F.K S OFFICE OF 11-11 CIRCUIT COURT OF ALBEMARIE CCXJN Y: , ,: •..i,. THIS DEED WAS FRESrENTED, AND WITH CERTIFICATE AI�IE ), ACt1ITZFD TO RECORD .• 4'w,"F. o.t • ,-; ON U\ !1 r 19 i(p , ac �, 0 CI -K M 't;“;,' t y,_ t STATE TAX $ sld.on (C39) •j;r 'N," _� _,,. L L tAX 3 1 I. 03 (:14` ,.. N i • , SEC:. 58.1-802~ TESTE. F": _ 4 i�- ST.A7_ Tom, "mil 3 . r.,, (039', SHELBY J . MARSHALL, CLERK ' °i•" _:,- .. q 3 � F ; �' Y y a a r 1 t? r+ r rf; { [ " ' ° • A inn / t t:i 1�7-/--(XA} //�/ :�. -.r/�if.,...,,,is t:2-rc.,- + '- .r-v . _ . , . - {. ►J3 Y, ^[a .f , ".s o#^`1 Y�.jy{ 2 *01--:-`'': '<��Q-:• ' . 1J'-L%/7�4�- i,t_.�t ft - _ Y t S.*.-• ,Y'`•{`t5,.4 I.b-r'Y .-454't 7. '"-441°. :14". , .. ,q < ✓1 /•"/-7 / J` '� j j ,:, >< n,u• "-+ 7` tC e ,! L x i iYpt .i .r: { ,'k`1.. 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