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HomeMy WebLinkAboutVA198800015 Correspondence 1988-04-14 • :4R.4.47 Y.t!4r. •tit C ®l i„ COUNTY OF ALBEMARLE Department of Zoning 401 McIntire Road Charlottesville, Virginia 22901-4596 (804) 296-5875 April 14, 1988 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 March 8, 1988, for VA-88-15 and VA-88-16 for David L. Hill and Bailey Construction Company. 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, Gem . Jj Charles W. Burgess, Jr. Zoning Administrator CWB;jr/st cc: VA-88-15 & VA-88-16 Enclosures VERBATIM TRANSCRIPT ALBEMARLE COUNTY BOARD OF ZONING APPEALS MEETING HELD ON MARCH 8, 1988 VA-88-15, David L. Hill VA-88-16, Bailey Construction Company Those members present were W. R. Rennolds, Carl Van Fossen, Jacquelyn Huckle, and Max C. Kennedy, Chairman. Other officials present were Charles W. Burgess, Jr. , Zoning Administrator; Andrew D. Evans, Deputy Zoning Administrator; George St. John, County Attorney, and Sharon Taylor, Recording Secretary. Mr. Kennedy: O.K. David Hill, 88-15. Mr. St. John: Aren't these two things that are Mr. Kennedy: Are they two together? Mr. St. John: Are these two together or they separate? Mr. Burgess: You could probably hear them both together. Mr. St. John: I think they involve the same. Mr. Kennedy: VA-88-15 and VA-88-16 are were together. Mr. Williams: I don't think the issues are significantly different. Mr. St. John: Are they not the same? Mr. Williams: They are not the same but I don't think the issues are any different. I think it would be expedient. (Inaudible) Mr. St. John: Whatever you all think, I (Inaudible) Mr. Van Fossen: Is it proper (Inaudible) is it before us again since we just heard it a month ago? Mr. Burgess: It is the same request. Mr. Kennedy: This is an application to seek a variance. Is it the same one? Mr. Burgess: All the spatial dimensions are the same, yes. (inaudible) Mr. St. John: It might have been some developments since then or something like that. Page 2 March 8, 1988 Verbatim Transcript VA-88-15 & 16 Mr. Burgess: Yes, yes. Mr. Williams: There have been some other developments. Mr. Kennedy: And this is just an, it is not an application for a rehearing it is just a new application. Mr. Burgess: That is correct. Mr. Williams: We, we consulted with the staff as to whether to put it in as a rehearing or as a new application. I don't believe that it made any difference. Mr. Burgess: Yes. I went ahead and established a new file. Mr. Kennedy: Alright. It is here again. Alright, we've got a lot of reading to do. Can the two things override? We got to get it into the record. So Andy I I suppose you are going to have to go on and read them both. So go on and read them both into the record. Mr. Evans: You mean both the staff reports? Mr. Kennedy: Yes. Go on and read them both and we will consider them both at the same time. We want to get them into the record. Mr. Burgess: The staff reports after the first paragraph are identical. Mr. Kennedy: Alright. I was looking at them Mr. Burgess: Can we Mr. Kennedy: It made me think of reading just the first paragraph, I thought it was different. Mr. Van Fossen: This is basically the same as it was last month too. Can we waive the hearing, waive the reading of it into the minutes? Mr. Burgess: Well the staff report might mention a few other factors. Page 3 Verbatim Transcript VA-88-15 & 16 March 8, 1988 Mr. Kennedy: Go on and read the first one and we'll stipulate that the other paragraphs are the same so read 88-15 the first paragraph and all of that and then just read 88-16 the first paragraph. We will suspense with the reading of the rest of it. Read 88-15 in its entirety and read 88-16 only the first paragraph. Mr. Evans: O.K. , the applicant seeks a variance from section 10. 4 of the Albemarle County Zoning Ordinance which states, "Area and Bulk Regulations, Yards, minimum front - 75 feet. " The applicant has recently purchased a new, single-family dwelling in the Northwood neighborhood and now seeks a reduction of the front yard setback from the required measurement of 75 feet to 56 feet. A Certificate of Occupancy was issued for the dwelling on June 18, 1987. The applicant appeared before the Board of Zoning Appeals on February 9th, 1988, variance 88-5 with an identical variance request. That request was denied. The only circumstance which has changed since the previous Board of Zoning Appeals action is that the applicant has discovered that relocating the right-of-way will be a time consuming and cumbersome process. In denying the requested variance on February the 9th, 1988, the Board of Zoning Appeals believed the right-of-way location was the most appropriate means for the applicant to correct the problem. In fairness to the applicant, the staff will once again demonstrate how Albemarle County employees erred in the planning of the subdivision in general and in the placement of the dwelling unit on the property. The Northwoods Neighborhood Association has approved was approved by the Albemarle County Planning Department in 1979. The approved subdivision plat clearly does not provide for adequate front yard setback on lots 9 and 10. This setback line is shown on the plat as the "building line. " The primary source of confusion is the actual location of the graveled road surface. If one assumes that the graveled area constitutes the actual right-of-way line, then the front setback of the dwelling is adequate. Unfortunately, the graveled roadway does not extend far enough in a westerly direction. The cul-de-sac as built, ends in an area where the cul-de-sac should of just started. To compound the problem, a portion of the cul-de-sac as constructed is located outside of the right-of-way line on lot 10. The road was approved and the Road Bond released by the Albemarle County Engineer in 1983 . Such action suggests the approval of the location and construction of the road. Finally, the setbacks were checked by an Albemarle County Inspector prior to the actual pouring of the foundation or footing and were deemed to be adequate. The staff cannot construe the above stated circumstances as a "hardship" when formulating a variance Page 4 Verbatim Transcript VA-88-15 & 16 March 8, 1988 recommendation. It is felt however that the Board of Zoning Appeals may find the above stated information helpful in understanding the predicament of the applicant. The applicant may or may not of had knowledge of a potential setback problem during construction. At no time did an Albemarle County employee indicate the existence of any potential problem, even though one can readily see that multiple mistakes were made in the planning and development of the subdivision in general. The staff believes that a certain degree of responsibility for the applicant's predicament rests with employees of Albemarle County, however, no discernible "hardship" is required by Section 15. 1-495 of the Code of Virginia is evidenced. The application therefore should be denied for cause. 1) The applicant has not provided evidence that a strict application of the ordinance would produce a clearly demonstrable hardship approaching confiscation as distinguished from a special privilege or convenience. 2) The applicant has not demonstrated that the perceived hardship is unique to the 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 properties zoned Rural Areas. 3) The applicant has not demonstrated that the authorization of the variance will not be of substantial detriment to the adjacent properties or that the character of the district will not be altered. Mr. Kennedy: O.K. First paragraph on 16. Well you might read the the title part so we know what we are talking about. Mr. Evans: O.K. Well this is the applicant Bailey Construction, tax map 33-37K, Rural Areas, 4. 031 acres Northwoods Subdivision, Neighborhood at 4205 Sylvan Lane. The applicant seeks a variance from section 10.4 of the Albemarle County Zoning Ordinance which states, "Area and Bulk Regulations, Yards, minimum front - 75 feet. " The applicant has constructed a single-family dwelling in the Northwood Neighborhood and now seeks a reduction of the front yard setback from the required measurement of seventy-five feet to forty-two feet. A Certificate of Occupancy was issued for the dwelling on May 20, 1987 . The applicant appeared before the Board of Zoning Appeals on February 9, 1988 with an identical variance request. This request was denied. The only circumstance which has changed since the previous Board of Zoning Appeals action is that the applicant has discovered, Page 5 Verbatim Transcript VA-88-15 & 16 March 8, 1988 Mr. Kennedy: I don't think that you have to read all of that Andy. We'll, I'll stipulate that the Board has read the two applications and staff reports and they are identical so far as the rest of the 88-16 is concerned. O.K. Applicant. Mr. Williams: My name is J. Page Williams. I am an attorney with the firm of Feil, Deinlein, Pettit & Williams, and we represent Bailey Construction Company. I am not here necessarily as a representative for Mr. Hill, although I understand Mr. Hill is here. Our problems are very similar and that is the reason I will speak to both of them and try to answer any questions you might have for either of them. I know you've been through this once before and I also. I was not here at that time, but I have listened to the tape that was made of the the hearing and so I have some general knowledge as to what went on but I would like to just go over what I perceive to be the salient facts with regard to these applications. And we see the salient facts as being just a number of errors that seemed to compound themselves. The first error was that the developer of this property, Country Living, Incorporated, which has no relationship with Bailey Construction or Mr. and Mrs. Hill other than that they were the developers of the property and Bailey bought four lots in Northwood Neighborhood Subdivision from Country Living. County Living hired a surveyor back in 1979, R. O. Snow, who has been surveying around here for a number of years and I think that he enjoys a pretty good reputation, to draw up plats on Northwood Neighborhood Subdivision. It was done in two plats. The first plat subdivided two lots on the front, lots one and two. The second plat was put to record in 1979. It subdivided the remainder of the parcel into lots three through ten inclusive, eight additional lots. There is no problem with the plat. I believe you may a copy of the plat with your materials until you get down to the cul-de-sac. The way Mr. Snow drew this called for a thirty foot right-of-way for a private road and he's got that shown on on the plat. The building setback line, however, is shown as ninety feet away from the center line of the right-of-way. And that continues on down to the cul-de-sac where the ninety feet is measured from the center of the cul-de-sac. However, the cul-de-sac is fifty feet wide. And by simple mathematics the fifty feet radius, excuse me. And Page 6 Verbatim Transcript VA-88-15 & 16 March 8, 1988 by simple mathematics you can see that fifteen feet you know one-half of the thirty foot right-of-way plus the seventy-five foot setback equals the ninety foot setback. The building setback which is shown on there except when you get to the cul-de-sac area. When you get to the cul-de-sac area what should have been on there since you've got a fifty foot radius and you measure and your building setback line should be measured from the edge of the platted right-of-way. It should have been shown as a one hundred and twenty-five feet, but it was not. So you would have fifty plus the seventy-five equaling one hundred and twenty-five instead of the ninety that is currently shown on the plat which is of record in the County Clerk's Office. There is a difference there of of thirty-five feet and I think that is significant to note that the variances here requested The Bailey Construction one, 88-16, is thirty-three feet, and the one for David Hill is only nineteen feet. Once again to raise a point that that neither Bailey nor Hill had anything to do with the preparation and the recordation of this plat. It is also significant to note another error and that is that the plat wasn't approved by the County Planning Commission and the County Board of Supervisors. Their agent I believe is probably Mr. Keeler whose initials signed, signed that plat and that is of course is a requirement before it is put to record. The third error is that the developer Country Living, Incoporated did not correctly build the private road. The private road is a graveled road and by not correctly building it I am sure that you have probably heard a lot of this but it it does not conform to the right-of-way. It does not go as far as the platted right-of-way is suppose to go. There are some plats that I, I, I, believe you have probably have seen. Two plats, physical surveys done by R. O. Snow subsequently that show lots nine and lots ten and they both show that the cul-de-sac the actual existing road there does not extend as far as they should with regard to the plat. The fourth error was that sometime in 1983 the then County Engineer inspected the road, approved the road, and released the road bond. Now I know that this may not may not be part of his duty to check to see that the road conforms in all respects as to its proper location. But certainly I would think that it's (inaudible) approval or defacto approval of the location of the graveled road as it existed at that time. Clearly significant is that the County lost its leverage on releasing that road bond. To come down to error number five and this is after Bailey Construction acquires four lots in this subdivision. In 1985 he purchased lots six, seven, nine, and ten from the original developer, Country Living, Inc. As far as I know no problem Page 8 Verbatim Transcript VA-88-15 & 16 March 8, 1988 surveyor. He is personally is not in the field doing that so he has to rely on professionals to undertake that for him. I think that it is significant that both houses on lots nine and ten are beyond the building setback as shown on the plat and they are both more than seventy-five feet from the actual edge of the gravelled roadway. One comment that struck me as as very very telling in the tape of the last hearing was that Mr. LaRue indicated that he met with the Planning Department in 1986 and he was left with the impression that they would take care of the problem I think was his words. Ladies and gentlemen this is is essentially the way Bailey Construction felt. They felt that they had gone to the effort in 1977 prior to commencing construction and felt that the County by approving the plat, and by approving the location of the footings would make sure that there was no problem. I can't communicate to you the sense of frustration here with this. Lot nine too was sold to Mr. & Mrs. Hill in June of 1987. I have obtained with their permission from their attorney a copy of their physical survey done by a totally separate surveyor, a Mr. Gary Whelan. I believe that may be in your package as well. You will note on there that a totally different surveyor, Mr. Whelan, also has the ninety foot building line. It shows no violation with regard to to the house. This is an independent person, somebody who has nothing to gain or lose about this situation and also shows that. I believe I also have included in your package yet another survey and this is one that was done on January 26th, 1988. The previous one was on June 5, 1987, excuse me. This one is by B. Aubrey Huffman and Associates. This one was done for Mr. & Mrs. Ford, who are the contract purchasers of lot ten. Mr. and Mrs. Ford are represented by yet another attorney, Bill Marshall. This was suppose to close in February, 1988. And you will note that on the plat prepared by Huffman also shows the house setback beyond the building setback line. I think that it is important to note that once these lines are drawn on the plat it appears to be the (inaudible) feeling that that people don't go back beyond that to to double check and triple check as to what the the Zoning Ordinance called for back in 1979 . That was prior to the existing Zoning Ordinance, but the I believe it was the same for the for the A-1 zoning at the time. We we have the problem with Mr. & Mrs. Ford who are the contract purchasers of the property on lot 10 and Mr. & Mrs. Hill could close. They didn't know about this this apparent zoning violation. Obviously we felt compelled once this became became noticed to notify the attorney by Mr. & Mrs. Ford. He is on notice now and I think it was either Mr. Kennedy or Mr. St. John termed this as kind of like a cloud on title. It Page 9 Verbatim Transcript VA-88-15 & 16 March 8, 1988 kind of is. It's not anything zoning matters cannot be addressed by title insurance. And so basically we've got a contract on a house to be sold. It can't be sold unless there is some way of clearing this up. Bailey Construction tried to clear this up in what they thought was the most expeditious way and that was by coming to this board with a request for a variance and as you will recall it was denied. They had now chosen to reapply. They have talked with two of the property owners Mr. LaRue has been with talked by Mr. Bailey and the Leakes I believe Mr. Bailey has talked to. Mrs. Allen who is another property owner who I understand does not object to this. In fairness I should note that Mrs. Allen works for Bailey Construction. She is present here today. She is another property owner. The Hills I would think obviously would would not object to the application by Bailey nor would Baily object to the application by Hill. Mr. Bailey can present to you what whatever he learned from Mr. LaRue. But as I understand it the concerns raised by Mr. LaRue, Mr. LaRue were that he was afraid that if the variance was approved he would there would no not be a possibility of having this become a state maintained road. Perhaps Mr. Burgess or someone could speak to that but I think that the State Highway Department requirements are pretty exacting as to what you have to build how you have to build a road, what sort of ditches, drainage ditches and so forth you have to have. And I think it would be somewhat remote although, perhaps a good thing for these property owners if it could become a state maintained road. And I think the the other issue as reported to me by Mr. Bailey, I wasn't present at the conversation, was that he was afraid that the County would not let the road be improved. Well it's a private road and as it is now the County really has nothing to do with it as as it exists now. Getting to to the real meat of the issue we do feel that this is a strict if a strict application of the Zoning Ordinance were to be undertaken this would be an undue hardship. Both houses are presently in violation. We've got some possibilities. One possibility is enforcement either civilly or criminally by the Zoning Administrator. Another possibility is inability to get permanent financing, to get any financing if you don't already have it or to sell the property. A third is inability to get a building permit should there be a desire for Mr. Hill to add onto his house or for the or Bailey Construction to add onto the house. Now there were some alternatives that were raised at the last meeting of this Board. And I they have been Page 10 Verbatim Transcript VA-88-15 & 16 March 8, 1988 investigated to some extent. Mr. Bailey was directed to the Planning Department and asked to consider having a new plat drawn to have the old plat vacated in order to have proper setbacks drawn here. Essentially the plan was to draw an as-built cul-de-sac. I don't believe you have this. I would be happy to share this with you. It didn't get very far. Several days, just a couple of days after the meeting Mr. Bailey went back to Mr. Snow and discussed the matter with the Planning Department and asked them what he should have in order to correct this problem. He was told at that time and I am not really laying any blame but just trying to get you to understand his approach to this. He was told at that time that the vacation of the plat could be done administratively. All you need to do was to have Mr. Snow draw up this plat and have him send it back in. He was he did that and this is the the result of that. The the plat then came back in and he was told he could get administrative approval and the next thing that happened is he got a call and said you better come down here. He came down here and was told and I think that they had been told by Mr. St. John and correctly I believe that you couldn't do it that way. And Mr. St. John referred to a statute that said that there were only two ways to to vacate this plat after some lots had been sold and one was to do it by a written agreement and the other was to do it by ordinance and the Board of Supervisors. If I miss misstate anything Mr. St. John I know you would tell me. Mr. St. John: I will when you finish. I would like to speak to some of these things when Mr. Williams is finished. Mr. Williams: The written agreement I would submit to you is going to be very difficult if not impossible to get. The statute 15. 1.42 (a) requires all owners who own property on on the plat, those would the people who would have standing here and that would be people who are owners of lots three through ten, would have to sign. The statute requires that anyone who is a trustee on a deed of trust is also construed to be an owner for the purpose of that statute. Now that presents a big problem when probably everyone has at least one deed of trust, so we are talking about eight property owners and at least eight deeds of trust. In this day and time when most of your savings and loans associations and lenders mortgage lenders actually sell their loans I they make the loan and then service it, but then they sell it on a secondary market to a third party who has no relation other than that they Page 11 Verbatim Transcript VA-88-15 & 16 March 8, 1988 have purchased that loan. It can be become very difficult to get the trustees to enter into any type of plat such as this. I myself have not tried to do this, this type of situation right here, but I have done other things where I have tried to get trustees particularly trustees from out of state lenders that are very difficult to to do anything. They won't simple won't take any action. The other other way is by ordinance and the ordinance would require advertising, public hearing before the Board of Supervisors. I discussed this with Mr. Burgess that has a possibility of a way of of proceeding and I checked with Mr. Burgess to see if I could quote him before I told him I would. And he indicated to me that it was a possible outcome and I would deem it maybe even a likely outcome that the Board of Supervisors would be inclined to defer this to see if something could be worked out by the written agreement method. Meanwhile Mr. & Mrs. Ford may have lost interest in their contract purchase as well. Also meanwhile several months past. We also believe that there is a hardship that is not generally shared with other properties in the same zoning district and vicinity. Only lots nine and ten and there is a little portion of that cul-de-sac that affects lot eight but apparently there is is no problem with the structure on lot eight. But only those lots are affected by the incorrect setback line shown on the plat and the fact that a road was not fully constructed. The requirements may be the same but the errors which cause the misinterpretation dictate the conclusion that this is unique. This is a unique situation because of the previous errors that were made. There I think is some difficulty associated with lot ten frankly with regard to the placement of the house concerning the the streams that are shown on that plat and a possibility of setting back from septic fields. Lot ten has an additional hardship of being under contract in time becomes an additional restraint there. The authorization of the variance is not a substantial detriment to adjacent properties of character in the neighborhood. I don't know whether or not the letter from The Appraisal Group, Inc. was included in your package. Mr. Burgess: It was not. Mr. Williams: They got it there late. Mr. Burgess: It was not. Mr. Williams: It was not. I have a copy of it. I delivered a Page 12 Verbatim Transcript VA-88-15 & 16 March 8, 1988 copy to the. I I can just read it actually. Delivered a copy to the staff, but I think I got it a little late there. It is a letter from No Romenesko, MAI with The Appraisal Group, Inc. dated March 3 , 1988, to Mr. William Bailey, Bailey Construction, Re: Northwood Subdivision Lot 10. Dear Mr. Bailey: On March 2, I inspected the Northwood Subdivision. Particular attention was paid to the newly constructed residence on lot 10. The house on lot 10 does not visually appear to be unusually close to the cul-de-sac. It has an adequate driveway access and on site parking so as not to interfere with other residences in the vicinity. If this residence were farther back on the lot, it would still be visible visible from the street as well as from lots 8 and 9. Overall, I have found that the location of the house on lot 10 is within acceptable distance from the road for normal marketability and that other homes around lot 10 are not affected by its location. If you should have any questions, or need further information on this matter, please feel free to contact me. I would like to share that with you. Ladies and gentlemen that's that's essentially concludes what I have to say. Mr. Bailey has had some pictures taken that that I think he might be in a better position to show you and to tell you exactly where they they they present themselves to show. And I would be happy to answer any questions that anyone might have. Mr. Bailey: Good afternoon. I am Bill Bailey and the construction company. You fellows are probably getting tired of looking at me by now. I, these are pictures if you care to (inaudible) taken. They start from the street looking in. This is a neighborhood shot of the location at the end of the cul-de-sac as you approach that cul-de-sac. Mr. Kennedy: I know because we were out there. Mr. Bailey: Here is another one a little bit closer. Here is one that is really in question on lot ten. That is a picture from the cul-de-sac showing the setback and the driveway and so forth. And here is a picture taken from the house on lot ten taken out toward the street showing that it in my opinion does have adequate front yard. Here is another just to show the length of the driveway. I think I I've told you all pretty much everything I knew last month. I, I'll say I've I've never tried so hard to be so right and end up so wrong. I in all my years of of building since 1976 I guess, I have watched construction and helped in construction Page 16 Verbatim Transcript VA-88-15 & 16 March 8, 1988 a possibility. The possibility of replatting this cul-de-sac would be something that we would certainly entertain as a neighborhood we feel that we could restore the neighborhood back to its original condition. I did have a conversation with Mr. Bailey and I've more or less in the interim in this within this past month and related to him our concerns that the two things that we wanted were somehow to be given a 50 foot radius on that cul-de-sac and a 75 foot setback as orginally platted. And that is about as far as that conversation went. And we knew that this variance procedure was pending and we didn't make any effort to get back in touch with him and he made no effort to get back in touch with us. Although Mr. Williams made and indicated that he talked with Mr. Leake and I am not aware of any any outcome of that conversation. I think the bottom line is, I think Mr. Williams presents a very impressive case but having been a participant and a principal involved in a lot of these discussions I would have to say that we undertook what seemed to be reasonable at the time to make sure that Mr. Bailey didn't make an error that would not only hurt him but would certainly hurt us. And we felt and I feel that these these communications were most emphatic, especially when we went and met with Mr. Kennedy out at the building site and said look you know here is a copy of the plat and this is the exact precise no doubt about it nature of the problem. And he indicated to me as I indicated in the letter that the nature of the problem was understood and that the the building was within the legal setback, you know was outside of the legal setback. I don't know that there is anything that I could add to the letter unless you want me to read the letter back. The letter that I have given you just before this hearing. I guess the bottom line is that based on what Mr. Kennedy has said at the opening his opening remarks and from other observations at this hearing and the hearing that we attended last month, it seems that the purpose of the variance is to litigate the effect of the Zoning Ordinance that proves to be duly restricted or where possible to forgive oversights that result notwithstanding the petitioner's good faith efforts to comply with the Zoning Ordinance. The facts as we've experienced them compel us to believe that neither of these two circumstances is the case and you know primarily on the basis of the dialogue that we carried on with Mr. Bailey. Just a couple of other remarks. The pictures that you all have before you and the reference that is made in this letter of appraisal that was referred to toward the closing of Mr. William's remarks referenced the actual position of the cul-de-sac, it doesn't the cul-de-sac as constructed, and of Page 17 Verbatim Transcript VA-88-15 & 16 March 8, 1988 course you know we take issue with the fact that the cul-de-sac is not constructed as it should be constructed and when it is constructed in that way it puts the cul-de-sac within 30 to 35 feet of the front door of the house on lot 10. So it is not really the we I think we are pretty much aware, although I haven't gone out and measured that the present structure on lot 10 is 75 foot back from the edge of the existing cul-de-sac but what we hope to do one day is to restore cul-de-sac to its the condition that it should have been left in before the bond was released on that road. Thank-you for listening to my remarks. Mr. Kennedy: Let me ask you about that. You say what you want is the 50 foot cul-de-sac radius and that you admit that if you get that you are going to put the cul-de-sac the cul-de-sac right up it fronts on somebody's front door. Is that what you really want? Mr. LaRue: Well (Inaudible) Mr. Kennedy: Do you want (Inaudible) Mr. LaRue: We would have liked to see Mr. Bailey build back you know have avoided this problem to begin with. (Inaudible) Mr. Kennedy: There houses are now, they are there. The houses are there now. Mr. LaRue: Well that is true, that is true. Mr. Kennedy: So the only other way to get the cul-de-sac in is to move the cul-de-sac back. Mr. LaRue: That is true. That would be true. But see that that is an option that has never been explored, or I don't believe it has been explored. It hasn't been explored with me. It's something that the neighbor, the six I am only speaking for the six original neighbors in this subdivision. It is an option that we recognize exists that it is something that would appear to be doable to bring that cul-de-sac up another, what would it take 30 or 40 feet, and then we would have the 50 foot cul-de-sac. We would have the radius on the cul-de-sac. We would have the 75 foot setback. Once again that is an option that has not yet been explored. Mr. Kennedy: Well the road is not built where it was suppose to be now. It seems like to me it could be built where it is not suppose to be another time to satisfy your problem. Since all the neighbors there you (inaudible) talking about a ten lot neighborhood. Page 18 Verbatim Transcript VA-88-15 & 16 March 8, 1988 Mrs. Huckle: Did you mean that you would like this cul-de-sac to be made wider but in the same place where it is now and improved in in quality? Is that what you want? Mr. LaRue: If that were to happen it would put the then we would have the problem with the 75 foot setback. There is no question about that. Mrs. Huckle: No, but I didn't I Mr. Rennelds: You are talking about moving it up. Mrs. Huckle: I Mr. LaRue: Moving it up, right. Mrs. Huckle: I mean to improve it where it is now. Mr. Rennolds: You can't do that. Mr. LaRue: It can't be done without moving the houses back and we recognize that problem. You know that Mr. Rennolds: It could have been moved up here. Moved up. Mrs. Huckle: I mean to just put it where where it is now long as it is, but but make it wider is that what you want? Mr. Rennolds: You can't do that. Mr. LaRue: Make it. That's correct. Mrs. Huckle: Make it 50 feet in in radius. Mr. LaRue: That's correct. Mrs. Huckle: Right here where it is in the wrong place. Mr. LaRue: That is what we orginally would have wanted, and that's why we were you know that is why some of us took time to come down to the County and explore this issue to see to make sure that when those houses were built they were built so that we could. Mrs. Huckle: Right. Mr. LaRue: Bring that cul-de-sac. (inaudible) Page 19 Verbatim Transcript VA-88-15 & 16 March 8, 1988 Mrs. Huckle: Well now if you were to improve that and widen that and make it the correct diameter that wouldn't bring it any closer to these houses, would it? Mr. LaRue: It would bring it 30 feet, 40 foot closer I believe. Mrs. Huckle: Come over here. This is where it is suppose to be, right, and this is where it is. Now if you were to enlarge this back here. Mr. LaRue: Oh that's split. Mrs. Huckle: That's what you want done? Mr. LaRue: Now that the houses have been built that is really about the only way that those two objections can be achieved. Mrs. Huckle: And you would be satisfied with that? Mr. LaRue: Well we would like to talk that over with with Mr. Bailey but the issue just hasn't been raised before. Mrs. Huckle: I thought that was what you were going to be all be doing this past month after the last meeting. Mr. LaRue: We kind of thought that too, but we felt it was up to Mr. Bailey to approach us with a proposal as to what he was was or was not willing to do. It seems to me that there was a fair amount of expense associated with doing that and it is an expense that we would feel should be borne by Mr. Bailey and not not the neighborhood. Mrs. Huckle: Is there something wrong with the actual construction of the of the road that it's not up to the proper standards, or what? In addition to being in the wrong place. Mr. LaRue: I am not sure what you mean by standards. Mrs. Huckle: Well if it has enough rock and all of that sort of thing. Page 20 Verbatim Transcript VA-88-15 & 16 March 8, 1988 Mr. LaRue: Well we do have a problem with the road. The road is a gravel road. It has always been a problem, and is certainly more of a problem now than it has been in the past. A lot of equipment was moved in and out of that neighborhood during the construction of those four houses and since that time there has been no gravel put on the road. As a matter of fact I understand from talking with a couple of prospective buyers of one of the houses that the reason they decided not to move in there, at least one of the reasons was that everytime a car drives down that road it just creates an amount of dust. Mr. Rennolds: Who is suppose to keep that road up? Mr. LaRue: The Homeowner's Association is suppose to keep that up. And let me in that regards since you have raised that issue, we felt and we when Jay Lucas and I met with Mr. Kennedy prior to the time ,that the construction began we had his assurances that Mr. Bailey would leave that road in the condition that he found it. He may feel that he has done that. It is hard for us to understand how that could be, and certainly there is no agreement on the part of at least most of the neighbors that that in fact is the condition in which it was left. We were kind of hoping that you know that somehow someway before all is said and done that he would do something about that road to bring it up to the condition that we felt it was in before construction began. And this has been a point of friction between he and I and he and the neighborhood. It is an issue that's raised several times and we have we've had some fairly bad disagreements over you know what moving tons and tons of bulldozers and well drilling equipment and so forth can do to a gravel road. But to date nothing has been done. And the reason nothing has been done is simply that we feel still that it's his obligation to do that for us. Mr. Kennedy: Alright. Mr. Van Fossen: So you are asking basically that that that the road be regraded and regraveled and that possibly the cul-de-sac be moved and graveled, not that it be brought up to state specifications? Mr. LaRue: No, sir. Not at all that, and I quite frankly I see this as two separate issues. I think that that we've gotten on to the topic of the road why haven't we negotiated back and forth, why haven't the neighbors gotten together or Bailey gotten with us Page 21 Verbatim Transcript VA-88-15 & 16 March 8, 1988 or us gotten you know have gotten with them over an issue that really in terms of its economic impact is a relatively small issue putting some some gravel on that road. We haven't been able to see eye to eye on that at all. And we just haven't no one's really pursued that, but exploring you know what should be done about that cul-de-sac. The road we feel is a separate issue and then you know the position of that cul-de-sac and the position of the houses (inaudible) the cul-de-sac as it should be constructed is just a separate issue. Mr. Kennedy: It seems like to me that one of your problems out there is that you don't have any subdivision restrictions. You don't have any covenants. And Mr. Bailey and somebody was an owner, you are an owner, and you are all using the road. Now it could be that he is using it to build something and you are using it to live there and the reason when you bought into this subdivision you didn't have any road maintenance agreement that where you would have the road maintained. You do have one. (Inaudible) Mr. Kennedy: If you do have one then you ought to be calling on your road maintenance agreement to solve the problem without calling on this Board. (Inaudible) Mr. St. John: I believe there is (Inaudible) Mr. Williams: I don't think Mr. St. John's office would let a plat get a plat get recorded without one. Mr. St. John: I believe there is one (inaudible) Mr. Williams: There is. I've got a copy of it. Mr. St. John: It is required by the County. And there is some other things. Mr. Kennedy: (Inaudible) Ought to be calling on the road maintenance agreement to get your maintenance done and not the Board. (Inaudible) Mr. LaRue: Oh I agree with that, and we are not raising that issue at all in anyway. (Inaudible) . Page 32 Verbatim Transcript VA-88-15 & 16 March 8, 1988 Mr. Kennedy: No. (Inaudible) They found that out. Mr. St. John: They've exhausted, you encouraged them to do that and they've exhausted the possiblity of doing it. Mr. Van Fossen: Well George I think we did it. Mr. St. John: I think that the variance ought to be acted on. Mr. Van Fossen: Well I think I think that's what we did last month in that we've we we denied the variance hoping that it would be worked out. Mr. St. John: Well you know the thing is before you and if there is no grounds to approve it, then deny it. If there is no grounds to deny it or whatever you want to do, but to delay something just because you think that will force two adverse groups of people to work something out I don't feel is proper grounds to delay it. Decision delayed is decision denied, and that is not a proper grounds to delay it. One way or the other. One time maybe you know but just to say we are not going to decide this indefinitely and this will force two totally adverse parties to lock themselves in a room and get together is not proper grounds. In the first place that is going not going to happen because one contending party is advocating this status quo and the other needs action now and to say we are not going to decide it is the same as I mean you are deciding it in favor of the objector. That's what you are really doing if you do that. Mr. Kennedy: Alright, what is the pleasure of the Board? Mr. Van Fossen: Mr. Chairman, I really don't want to do this. But I I feel like it is the only thing that I can do is that I feel like I have to make a motion to deny the variance. That is probably what George says I hope that we'll force the parties together to resolve it, but the parties also have a a recourse to the Circuit Court beyond us that might resolve it quicker than maybe getting them together. So I guess I have to make the motion to deny the variance. Mr. Kennedy: Any second? Mrs. Huckle: Soloman where are you when we need you? Page 33 Verbatim Transcript VA-88-15 & 16 March 8, 1988 Mr. Rennolds: Did you second it? Mr. Kennedy: There hasn't been a second. Mrs. Huckle: I didn't say anything. Mr. Rennolds: I'll second it. Mr. Kennedy: Alright, its been moved and seconded that the variance be denied. All in favor, call role. Mrs. Taylor: Mr. Rennolds. Mr. Rennolds: Aye. Mrs. Taylor: Mrs. Huckle. Mrs. Huckle: Aye. Mrs. Taylor: Mr. Van Fossen. Mr. Van Fossen: Aye. Mrs. Taylor: Mr. Kennedy. Mr. Kennedy: No. So it is denied three to one. March 8, 1988 Albemarle County Board of Zoning Appeals Page 11 Mr. Kennedy asked if there were any minutes to be approved? Mrs. Taylor stated that the minutes for January 12, 1988 needed to be approved by the Board. Mrs. Huckle asked if those minutes had been approved last month? Mrs. Taylor stated that the Board had approved the verbatim transcript from that meeting last month. Mr. Van Fossen made a motion to approve the minutes of January 12, 1988. Mrs. Huckle seconded the motion, which was unanimous. Mr. Kennedy read a proposed resolution for the Board to approve as follows: "WHEREAS, William C. Robinson, a resident of Albemarle County, Virginia, was appointed to the Albemarle County Board of Zoning Appeals by Order of the Judge of the Circuit Court of Albemarle County, Virginia, entered December 31, 1975; and WHEREAS, he was appointed by the said Circuit Court for succeeding terms until his resignation in February of 1988 ; and NOW THEREFORE, BE IT RESOLVED, that his keen judgement, astute logic, compassion for the citizens of Albemarle County, and forthright views will be greatly missed by the Board of Zoning Appeals. RESOLVED FURTHER, that the Albemarle County Board of Zoning Appeals, in recognition of the outstanding services of WILLIAM C. ROBINSON, on behalf of the people of Albemarle County, sincerely thank BILL for his many years of faithful service, and direct that a copy of this Resolution be given to him and spread upon the minutes of the Albemarle County Board of Zoning Appeals. March 8, 1988 Albemarle County Board of Zoning Appeals Page 12 Mr. Van Fossen moved that the resolution be approved and published as indicated. Mrs. Huckle seconded the motion. The motion was unanimously approved by the Board. Mr. Van Fossen made a motion to adjourn. Mrs. Huckle seconded the motion, which was unanimous. The meeting adjourned at 6: 10 p.m. Amendment to Verbatim Transcript VA-88-15 David L. Hill & VA-88-16 Bailey Construction Co. Held on March 8, 1988 Page 1 Mr. Kennedy: We'll call the meeting back to order. All in favor in the meeting come back to order say aye. Mr. Kennedy: Aye. Mrs. Huckle: Aye. Mr. Rennolds: Aye. Mr. Van Fossen: Aye Mr. Kennedy: Alright. We want to clarify the motion that was made earlier. So go ahead and state your motion. Mr. Van Fossen: Mr. Chairman I made the motion previously that the motion, that the variance be denied. I want to amend that to read that variance, VA-88-15 and VA-88-16 both be denied. Mr. Kennedy: That was your original intent. Mr. Van Fossen: That was my original intent for both of them to be denied. I think I stated my reason and cause and all in the original motion. Mr. Kennedy: Is there any objections or any motion on what we have discussed. Mr. Van Fossen: Is there a second? Mr. Kennedy: Second? Mr. Rennolds: Second. Mr. Kennedy: Alright, call role. We'll, we'll just clarify that by a vote. Mrs. Taylor: Mr. Van Fossen. Mr. Van Fossen: Aye Amendment to Verbatim Transcript VA-88-15 David L. Hill & VA-88-16 Bailey Construction Co. Held on March 8, 1988 Page 2 Mrs. Taylor: Mrs. Huckle. Mrs. Huckle: Aye Mrs. Taylor: Mr. Rennolds. Mr. Rennolds: Aye. Mrs. Taylor: Mr. Kennedy. Mr. Kennedy: I say aye and I want to clarify that was my original intent. And I think it probably was the intent of all of the Board by that motion. O.K. Page 7 Verbatim Transcript VA-88-15 & 16 March 8, 1988 existed when the houses constructed by Bailey Construction on lots six and seven because they don't share the same problem with the lots at the cul-de-sac. (Inaudible) The building setback line there is correct. However, we obviously have a different story with regard to lots nine and ten. I won't belabor some of the points that were made last and at the last hearing, but you do know that Bailey Construction engaged R. 0. Snow who they had ever reason to think was a good surveyor and had done an appropriate job on the plat to draw up physical surveys for them for lots nine and lots ten to make sure that their house foundations would be back beyond the setbacks and would be appropriate in terms of both subdivision setbacks and in terms of Zoning setbacks. The error is apparently Mr. Snow's error compounded itself when he relied on the previous plat, the subdivision plat which once again shows the setback as being the building setback line ninety feet from the center line from the center of the absolute center of the cul-de-sac. And the sixth error in this situation is that Bailey Construction then marked out where it wanted to place its footings, had the County Inspections Department out to check the locations of those footings prior to putting any construction on this property. And the footings inspections were passed they were given permission to to commmence construction and all the way up the line the Inspections Department, but that was the most significant point. All the way up the line the Inspections Department continued to inspect but I don't think they checked the setbacks and the locations after that first one and then eventually for both houses you were given certificates of occupancy. I think it's very significant to point out these last two aspects of it and that is that Bailey did engage a licensed surveyor, someone who I think has a good reputation in town to mark these areas for him and also did engage the County Inspections Department which is a requirement, but had them come out and check the footings before commencing construction. It is not a case of going out and willy nilly putting something where you might want it and then later come back to to this body and asking for a variance. Now I understand that in Mr. LaRue, or maybe it is Dr. LaRue I am not sure which, indicated that at some point in time that there was some problem and indicated this to representatives of Bailey and Bailey with this knowledge felt compelled to be very careful and therefore did engage a surveyor and made sure that the Inspections Department had had an opportunity to inspect the footings before they were poured. Mr. Bailey, Bill Bailey is not a professional Page 22 Verbatim Transcript VA-88-15 & 16 March 8, 1988 Mr. St. John: I would like to speak to some of these issues at some point. Mr. Kennedy: Yes, I am going to call on you. Let me get through with everybody and I am going to come back to you because we we've got the problem here that we might be considering in the long run moving a couple of houses. So I guess you want to speak to that and a couple of other things. Who else wants to speak? Mr. Hill: My name is David Hill, and I am the owner of lot my wife and I are the owner owner of lot nine. And as we met last month I just kind of would like to reiterate some of that and add just a bit. As the staff report says at no time were we informed there was any violation in our property in the setback. And I don't believe Mr. Bailey provided you with any pictures of our lot and our dwelling. In fact we could have built in a number of different places. I almost have four acres. We aren't restricted. We weren't restricted in terms of septic fields or things like that. In fact we and some of Bailey's people mutually agreed on what we thought was the best site. And we still believe it to be the best site. That is until we came across this problem with the setback. I don't know if that is a special issue compared to lot ten, but I want it to be clear that it is not as if we put that lot there or that dwelling there to get around any obstacle nor do I believe that lot ten was done that way either. As I said last time we weren't even aware there was a problem with the road itself in the way that it was platted until closing and our attorney, Mr. Ron Wiley, pointed out to us and that was the first he noticed that there was a discrepancy in the way the road really is versus how it was platted. Yet he he didn't catch it at that time that there was a problem with the setback. And as I I think you can gather from Mr. William's comments that we as well as them had to rely on the County Officials, on the surveyors, and we were given the occupancy and on it goes for all of these different steps that there was not a problem. The reason which may be irrelevant and it is an important one to us, the reason we built out there was was that it was in a beautiful neighborhood and we wanted to get in a rural setting and build a nice house and raise our family away from the city. And that was our intent. It wasn't a problem when we drove on a gravel road. In fact I think if we had to do it all over again we probably would build on a twenty acre lot and be all done with this because of all of the the problems that have come up with this. So I just want to emphasize that it wasn't our condition to be that close to the cul-de-sac. We could have built many, many feet back or in some different place from the cul-de-sac, and that really was not premeditated (inaudible) . Thank-you. Page 23 Verbatim Transcript VA-88-15 & 16 March 8, 1988 Mr. Kennedy: Anybody else? Ms. Allen: Hi, I am Patty Allen. I am the property owner of lot 6 and Mr. Bailey built that. I also work for Bill Bailey, and was not employed at the time that he built the house. I have no problem at all with Mr. Bailey's application for variance. In fact I don't think anybody had a problem until just recently. No one had mentioned the road and there didn't seem to be anything until construction was finished and no gravel was put on the road. And I truly believe that was where it began. And I think that you should grant the variance for Mr. Bailey. Mr. Kennedy: Anyone else? Mr. Dunlap: My name is Tom Dunlap and I am one of the residents of the subdivision. (Inaudible) There seems to be some in my opinion some confusion in the issue of the road brought up. Initial, our real disagreement with Mr. Bailey is that he in our opinion he was informed that there was a problem with the cul-de-sac and the setback prior to the construction. That is the whole problem, not the road. Like David said the road is a different issue. He was (inaudible) . He was told and his representatives were told prior to construction. Thank-you. Mr. Kennedy: Now Mr. LaRue I think said or doctor said he was speaking for all owners. Now what do you want? What do you want to happen? He is speaking to you, he wants the houses moved I take it. Mr. Dunlap: I am not sure that we have really explored that like we should. Mr. Kennedy: Well he is speaking for all of the owners. Now had you given him some authority. Mr. Dunlap: I guess I didn't understand what you were asking. Mr. Kennedy: He said that he spoke for all of the owners and he said that he wanted the house moved, or at least (inaudible) Mr. Dunlap: That is not what I understood. Mr. Kennedy: The ultimate. Mr. Dunlap: I don't think I said (Inaudible) Page 24 Verbatim Transcript VA-88-15 & 16 March 8, 1988 Mr. Kennedy: Or you wanted a 50 foot cul-de-sac (Inaudible) And one way to get that is to move the houses or either move the cul-de-sac. Mr. Dunlap: We, we said there were other options that have not been explored (inaudible) and we felt like it was left up to Mr. Bailey to contact us to explore these other options. We realize that bulldozing or moving the other houses is may not be a realistic. Mr. Kennedy: O.K. Thank-you. Alright, anybody else? O.K. Mr. Williams: Could I have just a couple moments? Mr. Kennedy: Do you want to rebutt? Mr. Williams: Yes, sir. (Inaudible) Very, very brief. Once again ladies and gentlemen our our position is basically that the number of errors leading up to this has caused the problem. Mr. Bailey, Bailey Construction, would be absolute fools to intentionally build something in violation and then after the fact come back for a variance. They have invested hundreds of thousands of dollars in those houses and that just doesn't apply to common sense or reason. Mr. Kennedy I believe indicated that he thought Mr. LaRue represented all of the owners, but I think that he said that he represented six of the owners or the ultimate six original owners. It is a ten lot subdivision and Bailey acquired four lots, and I guess he feels like he doesn't represent those people. There is the issue regarding the gravel and I don't know but that might be the whole point here. There is a situation here where Bailey is in a weak point. He's definitely has got a house that violates the Zoning Ordinance and it seems to me that what this is all about is rather than by taking the steps off one the road maintenance agreement which calls for each party to pay a correct share of the road maintenance cost. There is an effort to extract a larger share or perhaps the entire share from someone who is there at risk. That's true because Mr. Bailey bought into this without knowing where the cul-de-sac the fact that the cul-de-sac did not lie in where it was suppose to be platted. He was not the developer. He was not the one who built the road. He was not the one who platted it. It is a simple case of people who are last in are the ones who ruined it for everyone else. That is the feeling there. Talked about hundreds and tons of equipment, well drilling equipment and so forth. Mr. Bailey was building four houses there. I would submit to you that each of the other houses there there were hundreds of tons of equipment and well drilling equipment brought in that road. But there weren't as many people living there at the time so it is the last person in who is the cow's tail. And the last person in who gets the complaints that they made things worse for the rest of them. And the fact that they are on the cul-de-sac they have to cross all of rest of the property. Page 25 Verbatim Transcript VA-88-15 & 16 March 8, 1988 Mr. Kennedy: O.K. Thank-you sir. The last rebuttal. Mr. LaRue: O.K. Sorry about that. I would just like to make a point that Mr. Williams seems to be making a point that we're in someway taking advantage of Mr. Bailey's unfortunate situations. If I could refer to the letter that we submitted to this Board on February 8th on pages 2 , 3 , 4, 5, and 6. We narrate a sequence of events that had happened before any construction began and we made every effort to make sure that this problem just didn't present itself. And we had assumed that we were dealing with Mr. Bailey who was number one paying attention to us because we were making references to the authoritative support that we were relying on, and number two that he was dealing with us in good faith. One of those two or possibly both occurences or reliances were misplaced. We didn't come up after the fact and say look she found herself in a bad situation now lets see what we can milk you for by any structure of the imagination. We did everything. We met we met with Mr. Kennedy before construction ever began and raised this issue and that was on the basis of time that I spent down here in County Zoning and County Planning taking off work and spending the time because I was concerned and because other people were concerned. We met with Mrs. Brown. We met I ran into Zeke Fantino. We've had discussions with Mr. Kennedy. We did everything that Mr. Bailey. We did everything that I feel we if we had known that there were that we would be here today we would have documented that. We would have filed papers. We would have if necessary hired hired an attorney to prevent these houses from building from being built in a position where now the only alternative is to move that cul-de-sac back or to do something with those houses. We know that those houses can't be moved and no one is suggesting that that is even a a a a a feasible option. But we do feel that this is a problem that Mr. Bailey has brought on himself. He hasn't listened to us and in in the issues that we raised with him and we feel that if there is any damage or if there is any lost or if there is any suffering it ought to be on the shoulders of the person who ought to of known better. And we feel that that is Mr. Bailey. Another this issue about the road I was responding to your question I believe about why we hadn't I am trying to remember you know just a few minutes ago where this issue of the road came up. This issue is not about the road. If we wanted to raise the issue about the road we would have gone to court you know to sue for damages or whatever. I know that this is not the appropriate quorum to raise an issue and ask you all to do something about that road. We have had altercations about Page 26 Verbatim Transcript VA-88-15 & 16 March 8, 1988 or disagreements about the road, but this has nothing to do with that. It has to do with a number of problems that have left us with a cul-de-sac that is a lot smaller than it should be, houses that are much closer, much, much closer than they should be to that cul-de-sac, and in our view that precludes one thing that we would hope that you know sometime maybe not in the near future but at some point in time we would like to have the opportunity to bring in a state maintainable highway and we understand that that is a very valuable thing to have for a neighborhood. We would like to have it. My understanding is that they require a 45 foot radius on a cul-de-sac with an additional 5 foot around the around the edge of non-surfaced highway in order to have a state maintainable highway. Now granted this road was not built or it was not originally constructed or platted to be a state maintained highway, but in my discussion with Ron Keeler we walked over to the Highway Department or Zoning, I don't remember what office it was. The impression that I left that I left with was that it was imminently doable. That a number of problems would have to be worked out, but it was imminently doable. By granting these these variances we feel that that would preclude us from ever being able to build a state maintainable highway in that area. And that is the issue and that is the alpha and omega of our concerns that brings us here today and that inspired us to contact Mr. Bailey and try to you know keep him from making an error that we saw other people making. And and that's I appreciate your time. Mr. Kennedy: Thank-you. Mr. Van Fossen: Mr. LaRue, I guess I really shouldn't be coming to the defense of Mr. Bailey, but I mean you are saying he did these in spite of things. But you know he has three different surveyors that came out there and looked at the property and told him that he was alright. And you know I guess they are professionals that he was relying on professional people to say that they were alright, so I think I feel like that he was answering your your complaint there that there might be something wrong but he was relying on three professionals to tell him what was right. Mr. LaRue: Our discussion with Mr. Kennedy took place no more than two or three days before construction on the house on lot ten began. Before they, they had already dug out the area and that was what inspired us to say wait a minute, there is still a problem we have notified the County, we have notified the builder, Page 27 Verbatim Transcript VA-88-15 & 16 March 8, 1988 and we looked at that we looked at that dug out area and it looks awfully close to the road, I wonder if there has been some, but there are two problems with the cul-de-sac, one is that it is not built as platted and the other one it's platted incorrectly. We thought that they might have been responding to the to one of the problems but not to the wrong problem. That they weren't they were you know we were talking past each other that you know they thought we were talking about the problem of the cul-de-sac not being constructed as platted when in reality our concern was not only that but also the fact that the setback was misdrawn on the cul-de-sac. That's why we went met with Mr. Kennedy and had a very lengthy discussion with him where I took as a matter of fact I've got a copy of the I've got it some place we took an actual copy of the plat and we drew you know for him exactly what the nature of this problem was. He represented to us that Bailey understood that that was the problem that we had raised, that we were raising then and that everything had been o.k. 'd. That they they responded to that problem and then within it could have been the same day for all for all I remember, but I know it was within just a very few days the the construction commenced on that property. I maybe he got another survey in the meantime. Maybe he made a phone call downtown, but there is no evidence that we have seen that indicates that he did anything. There is no question that a lot of mistakes were made, but as a as a relatively (inaudible) not a relatively just a unsophicated person in Real Estate and Zoning Ordinance and County Laws and so forth it took me less than an hour or an hour and one-half to find what Mr. Bailey has has not been able to find during all of the times that you know he hired surveyors or came down to the County Office himself or so forth. If I could find it I don't understand I have a hard understanding why he couldn't find it. Mr. Kennedy: O.K. Thank-you sir. Alright, the matter is before the Board. What is your pleasure? Mrs. Huckle: I would like to hear what Mr. St. John has to say. Mr. Kennedy: Alright. Let me say one thing. We've heard this case before and the only bit of new evidence that I see that has come out of it is the fact I guess I was aware of this because I thought maybe it couldn't take place was that the property owners could get together and solve this matter. It seems like that is impractical matter because of the deeds of trusts and the various lenders and all of the signatures that have to take place it is impractical matter and maybe that can't be done. So I guess there is some additional evidence. So go ahead. Page 28 Verbatim Transcript VA-88-15 & 16 March 8, 1988 Mr. St. John: That's what I the first thing that I was going to say is that my understanding and my recollection that Mr. Bailey was sent out of here last time with encouragement to exhaust his remedies in the Planning Office. I think that he did exhaust them. That is not feasible. The ordinance route is not feasible. I agree with Mr. Williams on that. The other route is to get everybody's signature. You don't have to have an ordinance if you get everybody's signature, but you've got to get the trustees and so forth and if I understand correctly now I may be wrong but my understanding from what was said here today was that the the objectors would not sign to relocate the cul-de-sac on paper as it was actually built unless Mr. Bailey agreed to actually build it you know to improve it, not just to put gravel on the road but to make it his responsibility to build it to a 50 foot circle where it is. But, and that brings me to the next point which is the question of putting these roads in the state. Now if these roads are to be put in the state first of all a private road shown on a plat with a homeowner's agreement mandated by the County. The reason the County requires those agreements is to put purchasers on notice that neither the Commonwealth of Virginia nor the County is responsible for maintaining those roads and not going to be put into the system and that they are going to be an expense to the owner. And they are not designed nor intended to be in the state system. If that happens in the future that is new business and is up to the owners, but certainly in a subdivision like this it is not invisioned that the roads are going to be put into the state system. If it comes to past that at the owner's expense this road is brought up to state specs however and at that point the Supervisors agree to ask them to be put into the system. It cannot be done without the Supervisors requesting this of the Highway Department because the secondary road funds then have to go they become sharers in the secondary road fund for maintenance and snow removal and that kind of thing. But if that was all done and the County agreed to do it, homeowner's brought them up to specs and so forth. I do not see where the granting of this variance would in any way inhibit the state from taking them in nor do I see where denying this variance would promote the state taking them in because of this. The state does not enforce setback lines. They couldn't care less about setback lines. The Highway Department doesn't do that. That is purely a County Zoning requirement. So if this variance is granted the houses may be closer to the to the road than the than the Zoning Ordinance requires but they are not closer to the road than the State Highway requires because there is no such state requirement as Page 29 Verbatim Transcript VA-88-15 & 16 March 8, 1988 that. So this would have nothing to do with that. Finally I think you all have already talked about this. I don't believe any court in the state of Virginia would order these houses to be moved under these circumstances balancing the equities and so forth. And even if this variance should be denied and the Zoning Administrator would then order them moved assuming Mr. Bailey wouldn't move them and Mr. Page advised Mr. Williams advised him not to move them, then our remedy is to seek an injunction in court to have them moved, and we are not going to get it. I can almost guarantee you that they are there to stay under these circumstances. There are some other points here but I am not going to take a lot of time to to address those. I think that the Board has heard this twice now, but I do think this, I think that the fact that the applicant went out of here and exhausted the the possibilities that this Board encouraged him to exhaust and is now back here again makes this new business. In other words it is it's not like the application shouldn't be prejudiced by the fact that it is back here so recent because he he did try to exhaust the steps that you encouraged him to exhaust. Mr. Kennedy: Then the application is proper. We can go forward brought within a matter of a months because of the additional matters that have come out. (Inaudible) Alright. Mr. St. John: There is one other thing here if the in due respect to the objectors here. They are saying that it is Mr. Bailey's lawyers and engineers who overlooked these mistakes. Now if they are treating this cul-de-sac as something that is a benefit to everybody a turn around at the end of the street that they need for their use and I guess they are or they wouldn't care that it be enlarged to 50 feet. The only justification for that saying that is that it is a benefit for them to be 50 feet. Now they they are saying that they relied on the original plat there's a 50 foot cul-de-sac shown on it. Well their lawyers overlooked the fact that this thing wasn't built like it was planned just as much as Mr. Bailey's lawyer missed it. Their surveyors and lawyers missed that. If it's of no moment to them and they missed it because it was of no concern to them then now how can it be a great concern to them that they have a 50 foot cul-de-sac. What I am saying is that if it's important to them their lawyers overlooked it just like Mr. Bailey's lawyers did. Those are equities the Court would look at you know if we ever had to go to Court over this stuff. Mr. Kennedy: Thank-you Mr. St. John. What's your pleasure folks? Page 30 Verbatim Transcript VA-88-15 & 16 March 8, 1988 Mr. Van Fossen: Mr. Chairman, I think we denied this variance from last month with the hopes that that the applicant and the opponents would get together to resolve it because I don't think any of us wanted to really to tear to to deny the variance. We just wanted to try to help to find a solution, and I think that's what we are trying to do now even though it might not be our position to do so. Our position is really just to find a hardship or something and and and grant it or deny it. But you know I am not like the homeowners in finding all the fault with Mr. Bailey in that I think that three surveyors looked at this piece of property and all came up with basically the same thing that the first one did. So maybe the first one made a mistake and two more compounded it. And then the County also compounded it by approving the surveyor's plat there too. So that maybe the the ones to the party of bringing this to a satisfactory conclusion shouldn't be totally Mr. Bailey. Maybe it should be a couple of surveyors and the County participating in this thing. But I still would like to see it worked out to satisfaction of everyone that it be approved without us having to deny the variance. Frankly I guess I would have my position would still be as I said last month is that I would have to to I think that I would vote to deny the variance because I don't see the hardship other then a financial hardship. But I would certainly don't think that Mr. Bailey should bear all of the responsibiliy in doing it. I think he relied on professional help in getting something done here. Mr. Kennedy: Well I went out and looked at the site. We go with Mr. Burgess. As the neighborhood now stands with the cul-de-sac where it is it appeared that people are using it to suit themselves to the benefit of everybody. Nobody seems to be harmed by the way the road is laid out and everybody is happy there, pretty happy with their neighborhood. It is a rural setting and enough cul-de-sac there to turn around if you want to. The people who live off of the cul-de-sac I think they need to come in here and testify that they are pretty happy with their site. This this as a whole this whole case is just a balancing of a lot of equities and before we didn't have some of the facts that we have now. There is a certain balancing that cannot take place because of laws or the practical application of the situation in granting and getting the deeds of trust all signed, recorded, and perhaps even the neighbors themselves, the people who would have to sign the deed would not end up in the long run signing these instruments because they might fall out between themselves. So I was hoping that the cul-de-sac could be moved back and put in some compromising position to make everybody happy in the neighborhood and apparently that will not take place. Well so. (Inaudible) Page 31 Verbatim Transcript VA-88-15 & 16 March 8, 1988 Mr. Van Fossen: It could take place. Mr. Kennedy: My views on the whole variance have changed. Mr. Van Fossen: It could take place. It would just be a matter of time. I am going through a situation (inaudible) where I live now, and I live on a private roads and and the sewer line well two different ones the Rivanna and The Albemarle County both, came through my property to (Inaudible) Mr. Kennedy: Well that's true. Mr. Van Fossen: And and they had to go to the trustees of my mortgage and all the other mortgage people I've got to get signatures for the right-of-way for that sewer line. Now of course they had something in their favor that that Mr. Bailey doesn't have. They have the right to condemn my land if they didn't do it. They could condemn it and come on through there anyway. Mr. Kennedy: You you are creating a if you don't grant the variance you are creating a hardship for two property owners that are not shared by the other property owners in an area which is a group of property owners. And probably the only people involved in this whole situation is not the County well it is the County Ordinance but the people that are involved the people that are right there apparently can't solve their own problems. And it might be some practical reasons if they can't. The Board has to do something for them. And it might solve it in the long run. Mrs. Huckle: (Inaudible) delay it for a month or so (inaudible) to get their act together. Mr. Rennolds: Yes, if we deny it they will have to decide. They will have to get together. Mr. Kennedy: Well that's up that's up to the Board on how you figure it. You could defer it another month or you could deny it. You can do a lot of things with it. If you want to defer it and let them work it out, but you've got some people who want to close. Remember the testimony on that. And these are probably the people that are interested parties. Mr. St. John: There is no way that this Board can force people to work something out.